' MRS. IRSHAD QAISER, J.---This judgment will dispose of Criminal Appeal No. 553 of 2011 filed by Amjad Ali under section 10 of Offences in Respect of Banks '(Special Courts) Ordinance 1984 against the judgment and order dated 13-8-2011 passed by Presiding Officer, Special Courts (Offences against Banks) KPK Peshawar in case F.I.R. No. 25 of 2009 dated 13-10-2009 Police Station FIA C.B.C., Peshawar vide which appellant was convicted and sentenced under section 420, P.P.C. To suffer 6 years' R.I with a fine of Rs.10,000,000 (One Crore) and in default of which shall further undergo 3 years' R.I. While accused Nauman Malik and Awal Sher were acquitted of the charge levelled against them.
2. The brief facts of the case as narrated by the complainant Maqsood Ali, Manager, HBL New Bara Market Branch, Peshawar in his complaint dated 10-8-2009 Exh.P.W.4/1 addressed to Director, FIA, Peshawar for registration of F.I.R. Against accused Amjad Ali are that on 6-8-2009 he had received information from the Head Quarter of the Bank at Karachi that some fake/fraudulent transactions have been noticed in Account No.0368-79000206-03 in the name of accused Amjad Ali maintained in his branch.
3. In the complaint it is contended that one Nauman Malik, outsourced IT Engineer working with HBL Mardan Region by committing cyber crime received fake remittances of huge amount in his account maintained at HBL Bank road Branch, Mardan from various branches of HBL in Punjab.
Accordingly, an F.I.R. No.771 dated 6-8-2009, Police Station City Mardan was registered. This prompted a thorough inquiry conducted by the Head 'Office of HBL whereafter the spurious transaction had been traced in Account No.0368-79000206-03 of accused Amjad Ali. On scrutiny of Amjad Ali's Account No.0368-79000206-03 the following unusual/huge transactions were detected:-- {{TABLE}} Serial No. Date of Origination Purportedly originated From Amount Rs.
1 2-7-2009 HBL G.T. Road Gujranwala 10,00,000 2 4-7-2009 HBL Manch Road Okara 2,50,00,000 3 4-7-2009 HBL Chak- 25,00,000 331 'GB Salimpur T.T.
Singh Total 2,85,00,000 {{TABLE}}
4. After checking the record it was brought into the surface that though the transactions had been appearing in Head Office of HBL generated "transactions by us" reports but no one had actually made any such transaction in/from their branches. Complainant also collected Bank record of the Account No 0368-79000206-03 of accused Exh.P.W.12/21 to 12/26 vide which prima facie case made out against accused that he in connivance with other has made fraudulent transactions worth Rs.2,85,00,000. Presently a sum of Rs.1,96,29,930-50 was lying in the account which had been frozen. On the'basis of this complaint a case vide F.I.R. No. 25 of 2009 dated 13-10-2009 under sections 406/ 409/419/420/468/471/477-A/109, P.P.C. Read with 3, 4, 6, 7, 8, 9, 10, 15, 16, 18, 19, 21 of Prevention of Electronic Crimes Ordinance 2009 and 37 of Electronic Transactions Ordinance 2002, Police Station F.I.A. (C.B.C), Peshawar Exh.P.W.7/1 was registered against accused.
5. After the registration of the case, investigation was entrusted to Amjad Naseer .A.D, F.I.A. C.B.C, Peshawar. He checked and collected different Bank record including record of HBL G.T. Road Branch, Gujranwala, HBL Mandi Road Branch Okara and HBL Chak 331 G.B. Salimpur Branch T.T Singh from where an amount of Rs.2,85,00000 had been credited online in Account No.0368-79000206- 03 and the Bank record of NBP, Bank Alfalah and Bank of Khyber wherein huge amount had been transferred from Account No.0368-79000206-03 HBL New Bara Market Branch Peshawar during the period from 2-7-2009 to 7-8-2009. He also recorded the statement of accused and P. Ws. Under section 161, Cr.P.C.
6. On completion of investigation he submitted challan against the accused. Accused were summoned. They attended the Court and provisions of section 265-C of Cr.P.C. Were complied with. They were charge sheeted to which they did not plead guilty and claimed trial.
7. To prove its case, prosecution had produced 14 witnesses. The gist of the statements of ,material P. Ws. Are as under:--
(i) P. W.1 Muhammad Iftikhar Ali the then Manager Operation HBL Mandi Road Okara, P. W.2 Tanveer Ahmad, Manager Operation HBL G.T.Road Gujranwala and P.W.I 1 Muhammad Akbar, Manager, Chak 331 G.B Branch Salimpur T. T Singh produced the original statement of account "transaction on us" Exh.P.W.I/1 and "transaction by us" Exh.P.W.2/1 and stated that a sum of Rs.2,50,00,000 + one million + 2500000 were purportedly generated from Okara Branch of HBL on 4-7-2009 from G.T. Road Gujranwala Branch on 2-7-2009 and from Salimpur T.T. Singh Branch on 4-7-2009 which were credited to the account of accused Amjad Ali Khan in HBL New Bara Market Branch, Peshawar. Though the said transactions have been appearing in their head office as generated by us report but no such transaction in fact had taken place as no one had actually and physically made such transaction through their branches and the said entry were fraudulently and fictitiously appearing in the system.
(ii) Complainant Maqsood Ali was examined as P. W.
4. He reiterated the same facts as mentioned in Paras Nos. 3 and 4 of the this judgment. He also exhibited attested copies of Bank record of Account No. 0368-7900068303, and stated that after checking the record it transpired that transaction appeared in the head office of Bank as "transaction on us" and appeared in account of accused Amjad Ali, but, actually no one had made any such transaction in the same branch and latter on . Accused had withdrawn all the amount except Rs. 19, 600, 000 which is still lying in the account. He further deposed that all the accused by giving unauthorized criminal access to Bank data base have committed offence of electronic forgery, fraud, cheating and misuse of electronic system/ lectronic device and havedefrauded Bank. Amjad Naseer who had conducted investigation was examined as P.W.7.
(iii) Iftikhar Ahmad Manager Operation Bank of Khyber, who produced Bank record of Muhammad Naeem, marked as Exh.P.W.8/1 to Exh.P.W.8/7 was examined as P. W.
8. Muhammad Riaz Khan, P. W. 9 provided computerized attested copies of Bank record of account pertaining to Asim Automobiles/ Suppliers Exh.P.W.9/1 to Exh.P.W.9/11. He also produced statement of account vide which an amount of Rs.8430000 on 8-8-2009 was transferred from Account No.50902008785401 of accused Amjad Ali. The said amount was freezed on the instruction of FIA/C.B. C.
(iv) P. W.10 Muhammad Zaheen, Manager of Bank Alfalah, stated that Mr. Aslam Parvez is maintaining Account No.50902006172501 and 50935906172501, Izhar Ahmad had been maintaining Account No.50902001602703 in the name of Aghaaz Computers. On 13-7-2009 Amjad Ali also opened Account No.50902008785401. He also gave the detail of transactions in the above accounts. He produced Bank record which is Exh.P.W.10/1 to Exh. P. W. 10/101.
(v) P. W.12 Liaqat Ali produced the Bank record in respect of Account No. 7115-3 in the name of Shahid Khan Exh.P.W.12/1 to Exh.P.W.12/7. Shahid Khan account holder was examined as P. W.13 and he confirmed his account and the transaction.
(vi) Exh.P.W.14 Izhar Ahmad, MD of Aghaaz Computers also confirmed his account and other Bank record Exh.P.W.10/55 to Exh.P.W.10/73 and stated that an amount of Rs.1000000 and Rs.700000 has been deposited in his account through cheques Nos.6423216 and 6423218 which was given by accused Amjad Ali, Aslam Parvez P. W.14 also admitted that accused Amjad Ali paid him cheque of Rs.8430000 which was deposited in his account. After closing the prosecution evidence, the statement of accused was recorded under section 342, Cr.P.C. Wherein they denied the allegations and contended that they are innocent and falsely implicated in the case by the Bank officials in order to save their skins. However neither 'they produced any defence nor examined themselves on oath under section 340(2), Cr. P. C.
8. After the conclusion of the trial and hearing of argument the learned trial Court vide its judgment and order dated 13-8-2011 acquitted accused Nauman and Awal Sher while accused Amjad Ali was convicted and sentenced to 6 years' R.I. Along with fine of a sum of Rs.10000000 (One Crore) in default of which shall further undergo three years', R.I. Benefit of section 382-B, Cr.P.C. Was awarded to accused while the frozen amount in the relevant accounts of Aslam Parvez and Aghaaz Computer account were forfeited in favour of the victim Bank.
9. Feeling aggrieved, appellant/ convicted Amjad Ali filed Criminal Appeal No.553 of 2011 and assailed the impugned order and judgment on the ground that it is against law, facts and evidence and record, hence untenable and liable to be set aside. That witnesses produced by the prosecution contradicted each other on the material aspect of the case. That none of the documents produced has been proved by the prosecution in accordance to law.
10. That since the alleged crime had been committed within the period of one year, therefore joint charge had to be framed but the learned trial Court had wrongly framed separate charges in each case which is in utter disregard of relevant provisions of law. The learned trial Court has not considered the provisions of section 397, Cr.P.C, and that the sentence . Should have been ordered to run concurrently.
11. Respondents were summoned. A.A.-G. For the State and advocate for the respondent Bank attended the Court and contested the appeal.
12. Learned counsel for the appellant further contended that the case' of prosecution against accused is to the extent of withdrawal of the laundered money but prosecution has not produced worth reliance evidence. That the alleged drawl cheque has not been sent to the expert. That complaint by HBL New Bara Market Branch Peshawar was neither legal nor proper. That none of the accused is Bank employee therefore, the Court has no jurisdiction to conduct trial and pass conviction order. Learned counsel submitted that there is no evidence on record to show that the alleged withdrawal was made by accused from account. No Bank officials like cashier/Manager was produced to have deposed that the amount was withdrawn by the accused.
13. These arguments and contention of the learned counsel for the appellant were rebutted by learned counsel for the respondent and contended that on the discovery of spurious transaction in Account No. 0368-79000206-03 maintained by accused Amjad Ali an inquiry was conducted and on the scrutiny of Amjad Ali's account 0368-79000206-03 it was discovered that accused in connivance with others had made fraudulent transaction, worth of Rs.2,85,00,000 and on 7-8-2009 only a sum of Rs.19,629,930-50 was lying in the account whereas the remaining amount had been withdrawn by accused Amjad Ali in cash, on transfer to other account of NBP, University Town Branch, Peshawar, Bank Alfalah, Arbab Chowk Jamrud Road Branch Peshawar and Bank of Khyber etc. That accused along with his associate by gaining unauthorized/criminal access to HBL database had committed offence of cheating, electronic forgery, electronic fraud, misuse of electronic system and device. Learned counsel further maintained that when it is prima facie proved on .Record. That certain amounts had come into the account of accused then the burden is on the accused to show the source and bona fide of this transfer of amount in his account, but the accused failed to discharge his burden.
14. Now the question for determination is that whether Account No.0368- 79000206-03 is maintained by the appellant and he dishonestly received fake remittance and fictitiously got transferred a sum of Rs.28,500,000 through cyber crime by online Banking from three HBL Branches at Punjab and then shifted some of that amount in different accounts and also withdraw cash money from the account? Whether objection of defence in jurisdiction of Special Court under Ordinance IX of 1984 is, valid? Whether prosecution witnesses have produced only attested copies of Bank record and the attested copies of Bank relied upon is inadmissible in evidence? Whether the accused along with other accused involved in F.I.Rs. Nos.23, 24, 25 and 26 dated 13-8-2009 and F.I.R. No. 771 dated 6-8-2009 had to be charged jointly as required under sections 234 and 239, Cr.P.C. Or the trial Court has rightly tried and convicted the accused by framing separate charge in each case? Whether the benefits of provision of section 397, Cr.P.C. Have to be given to accused involved in different cases.
15. It is now well-settled principle of law that in such like cases it is the duty of prosecution to prove a prima .Facie reasonable case to the satisfaction of the Court. In case the prosecution succeeds in proving prima facie case, then the burden shifts to the accused. This burden can be discharged by the accused by producing evidence oral and documentary by examining witnesses or through his 'statement recorded' under section 342, Cr.P.C. Moreover section 9 of Offences in Respect of Banks (Special Courts) Ordinance IX of 1984 imposed specific burden on accused to prove that the offence has not been committed by him.
16. Prosecution produced both oral and documentary evidence to prove its prima facie case to the effect that an amount of Rs.1000000, Rs.25000000 and Rs.2500000 had been fraudulently transferred' in accused Amjad Ali Khan's Account No.0368-79000206-03 HBL New Bara Market Branch, Peshawar. Now the question is that how it has been transferred? To prove this fact the prosecution has produced P.W.1 Iftikhar Ali, P.W.2 Tanveer Ahmad and P.W.11 Muhammad Akbar. P.
W.1 Iftikhar Ali, Manager HBL Mandi Road Okara stated that on the receipt of information from Head Office of the Bank at Karachi regarding suspicious transaction of Rs.25000000 purportedly generated from Okara Branch of HBL on 4-7-2009 and credited to Amjad Ali's Account No. 0368- 79000206-03 maintained in New Bara Market Branch of HBL, he checked the Bank record and found that though the said transaction had been appearing in head office generated "transaction by us report but no such transaction had been appearing in Okara branch as no one had actually/physically made any such transaction from or through his branch. He also brought the original statement "transaction on us" the copy of which is Exh.P.W.1/1 (at pages 292 to 299) of Challan. In his cross-examination he denied the suggestion that "transaction on us: are made by the head office. He clarified the method of "transaction by us". P.W.2 Tanveer Ahmad Qazi, Manager Operation, HBL G.T.Road Gujranwala also confirmed the fictitious transaction of an amount of Rs.One million on 2-7-2009.
He stated that during routine checking he observed a suspicious transaction of Rs.1000000 purportedly generated from his branch and credited in Amjad Ali's Account No.0368-79000206-03 at HBL New Bara Market Branch Peshawar. On thorough checking/ scrutiny of record it was found that though said transaction had been appearing in head office generated "transaction by us" report but no one had actually/physically made any such transaction from or through his branch.
He also produced original statement of accounts "transaction by us" which shows that the said transaction has not taken place. The photocopies of which are Exh.P.W.2/1. (Pages 297 to 307 Challan Book). By putting certain suggestions on the P.W. During his cross-examination accused admitted that said transaction was in fact fictitious transaction and has not physically taken place and not transacted by . Our branch. P. W.11 ;Muhammad Akbar, Manager HBL Chak No. 331 G.B.
Branch Salimpur T.T. Singh also supported the contention of prosecution and states that during routine checking and reconciliation of report he observed a suspicious transaction of Rs. 2500000 purportedly generated from his branch on 4-7-2009 and credited in Amjad Ali Account No.0368- 79000206-03 at HBL New Bara Market Brach Peshawar. Though the said transaction had been appening in the head office generated "transaction by us" report but no one had actually/physically made transaction from or through his branch. All the above three P.Ws. Are the witnesses of the record. They through oral as, well as documentary evidence have given the true picture of the occurrence and have unanimously stated that though the said transaction had been appearing in head office but no one had actually/physically .Made any such transaction from or through their branch and the Bank had been subjected to fraud. All the three Bank officer were subjected to lengthy and searching cross-examination but, no question was asked from them with regard to this huge fraudulent remittance from their respective Banks to Account No. 0368- 79000683-03 maintained by the accused Amjad Ali. Rather by putting certain suggestions it is admitted by him that the said transaction were - in fact fictitious transactions and had neither physically taken place nor transacted by their branches.
17. Now the question is that who is the actual beneficiary of this huge amount of Rs.28500000 which was purportedly generated from above noted branches on 2.-7-2009 to 4-7-2009. During investigation Bank record of Account No.0368- 79000206-03 at HBL New Bara Market Branch Peshawar in the name of Amjad Ali was collected which is consisting of. AOF (account opening form), NIC, KYC form, Specimen signature card, statement of account and cheques marked as Exh.P.W.12/21 to Exh . P. W.12/26 available at Pages Nos.4 to 37 of the Challan. According to AOP Exh.P.W.12/21 CNIC verification and KYC Exh.P.W.12/22 and Exh.P.W.12/23 Amjad Ail CNIC No.17301- 9656850-5 had opened Account No.0368-79000206-03 on 26-4-2008. Accused Amjad had accepted these documents and admitted that he had opened the above named account.
According to statement of account available at pages 91 to 97 several transactions were made from 26-4-2008 to 2-5-2009, then on 30-5-2009 the balance was shown as nil but on 2-7-2009 online credit an amount of Rs.1000000 was shown. Similarly on 4-7-2009 two heavy online transactions amounting to Rs. 25000000 and 2500000 had been received in the above account.
The entry of this credit is also appearing in above noted statement of account. Accused has not denied the credit of above noted heavy amount in his above account. Now . The burden of proof is on him to prove that the entries are genuine but he failed to produce any evidence to prove that the amounts credited in his account are genuine and these have never been credited in his account through fraud and forgery. In his statement recorded under section 342 Cr.P.C. In reply to a question No. 1 he simply denied the allegation and stated C "there is nothing in the evidence that the said amount has been shown directly transferred from the concerned branches". He could produce some evidence to show that the transactions are genuine. He could examine himself on oath if he had no witness to support his contention. It is settled principle of law that mere denial in the statement of an accused recorded under section 342, Cr.P.C. Without any convincing material in support of his stance can never be helpful to an accused. While in rebuttal P.Ws.1, 2 and 11 had given the detail that no one had actually/physically made any such transaction from or through their branches. They have also produced original statements Exh.P.W.1/1 and Exh.P.W.2/1 which reflected the details of all afore mentioned online fraudulent/fake transactions. The authenticity of this record is not challenged.
18. According to Bank record after the receipt of above -fraudulent online credit entry accused utilized the same and except an amount of Rs.19629730-50 he withdrew and disposed of rest of the amount. The following withdrawals were noted from the record in Account No. 0368-79000206-03 of Amjad Ali's account:-- {{TABLE}} F I.R. No.25 of 2009.
Date Cheque No. Amount (Rs).
4-7-2009 6423210 1000000 6-7-2009 6423211 1000000 6-7-2000 6423214 100000 6-7-2009 6423212 300000 7-7-2009 6423215 180000 7-7-2009 6423216 1000000 10-7-2009 6423217 210000 13-7-2009 6423219 800000 13-7-2009 6423218 700000 18-7-2009 6423222 200000 20-7-2009 5733518 25616 21-7-2009 6423223 700000 22-7-2009 6423224 500000 27-7-2009 6423227 300000 5-8-2009 6423226 200000 Total. ...........860000 Accused Arnjad All Khan Account No. 0368- 79000206-03 Exhibition .
Exh.PW 12/26(b)
Exh.PW 12/26(c) .
Exh.PW 12/26(d)
Exh.PW 12/26(e)
Exh.PW 12/26(f)
'Exh.PW 12/26(g)
Exh.PW 12/26(h)
Exh.PW 12/26(i)
Exh.PW 12/26(j)
Exh.PW 12/26(k)
Exh.PW 12/26(1)
Exh.PW 12/26(m)
Exh.PW 12/26(n)
Exh.PW 12/26(o)"
Exh.PW 12/26(p) {{TABLE}}
19. These cheques bear the account number of accused and the transactions are incorporated in the statement of account. In his statement recorded under section 342 Cr.P.C. He simply denied that no such amount has been withdrawn nor any cheque has been issued by him for withdrawal or other purposes but during the course of cross-examination of the witnesses he himself admitted these withdrawals and debit through different cheques, when he put such a suggestion on complainant P.W.4 and he admitted that most of the cheques have been supervised by him for payment purpose. He also admitted that cheque No. 6423210 dated 4-7-2009 for Rs.1000000, Cheque No. 6423211 dated 6-7-2009 for Rs.1000000, Cheque No.6423214 dated 6-7-2009 for Rs.One lac, Cheque No. 6423212 dated 6-7-2009 for Rs.Three lacs and other Cheques Nos. 6423215 to 6423224 were supervised by him. From the perusal of the Cheques it, reveals that all the cheques- bore the signatures of Amjad Ali. Accused is also well-versed with the Bank transaction and upto date position of the amount in the account as he put a suggestion as P.W.4 and he admitted that in account of Amjad Ali an amount of Rs.19600000 is still lying deposit.
20. According to cheque leaves marked as P.W.12/26 (a to p) some had been paid encashed and some had been transferred to other Bank's account including NBP, University Road Town Branch, Peshawar, Bank Alfalah Limited Arbab Chowk Jamrud Road, Peshawar, Bank Alfalah G.T.Road, Peshawar and Bank of Khyber Karkhano Market Branch, Peshawar. To prove the transaction in NBP Liaqat Ali Manager of NBP University Town Branch Peshawar and account holder Shahid were examined as P.W.12 and P.W.13, respectively. Liaqat produced bank record Exh.P,W12/1 to Exh.P.W.12/6 including statement of account Exh.P.W.12/7 pertaining to Account bearing No. 7115-3: He stated that the amount of Rs.1000000 was credited in the account on 8-7-2009 vide Cheque No.6423211 through HBL from Amjad Ali's account. The cheque was sent to HBL for clearance on 7-7-2009 and the amount was credited in Shahid Account No. 7115-3 on 8-7-2009. His statement is supported by statement of account Exh.P.W.12/7 and cheque Exh . P. W. 12/4 and Exh. P . W . 12/6. P.W.13 Shahid's admitted his account and other record Exh.P.W.12/1 to Exh.P.W.12/ 9.He stated that Amjad Ali is his cousin and he had given him a loan of Rs.1000000 through cheque which was latter on deposited in his Account No.7115-3.
21. According to Bank record Exh.P.W.10/1 to 10/26 accused Amjad Ali opened Account No. 50902008785401 on 13-7-2009 and made different transactions in it. Aslam Parvez P.W.15 and Azhar Ahmad P.W.14, Aghaaz Computer also maintained Account No.50902008179501 and 50902001602703, respectively in Bank Alfalah. Aslam Parvez also opened Account No. 50935906172501 and 50902006172501 on 13-7-2009. He also maintained Account No. 01875027 in Bank Alfalah G.T.Road Branch Peshawar. To prove the authenticity of the Bank record Muhammad Riaz, Manager Bank Alfalah G.T.Road Peshawar and Muhammad Zaheen, Manager Bank Alfalah Limited Jamrud Road, Peshawar as well as account-holders were examined. P.W.9 Muhammad Riaz stated that he has provided computerized attested copies of accounts pertaining to Asim Automobiles and suppliers: He also produced original statement of account duly signed by him and stated that an amount of Rs.8430000 were transferred on 10-8-2009 from Account No. 50902008785401 of Amjad Ali. P. W.10 Muhammad Zaheen has also given the detail of accounts No.50902006172501, 50935906172501 in the name of Aslam Parvez, Account No.50902001602703 in the name of Aghaaz Computer and Account No.50902008785401 in the name of accused Amjad Ali. He produced original relevant record Exh.P.W.10/2 to Exh.P.W.10/101. He stated that on 7-7-2009 and 11-7-2009 Rs.300000 and Rs.210000 were transferred in Aslam Parvez's account through Cheques Nos. 6423212 and 6423217 of Amjad Ali's Account No. 0368-79000206-03 of HBL. On 9-7- 2009 and 15-7-2009 Rs.1000000 and Rs.700000 were transferred in Aghaaz Computers' Account No. 50902001602703 through cheque No.6423216 and 6423218 from Amjad Ali's account, out of which Rs.800000 were transferred to 'Amjad Ali's account on 23-7-2009 through Cheque No. 0257470. An amount of Rs.500000 was transferred on 23-7-2009 in Aslam Parvez's account through Cheque No. 6423224 from Amjad account at HBL New Bara Market and then further transferred to Amjad Ali's Account No.5095008785401 on 23-7-2009 through Cheque No. 0281676. In Amjad Ali's Account No. 50902008785401 cash deposits of Rs.9890000 were also received between 13-7-2009 to 5-8-2009. He further stated that out of total balance of Rs.11430875 Amjad encashed Rs.3000000 and transferred Rs.8430000 to Asim Automobiles Account No. 01875027. P.W.14 Izhar Ahmad, MD of Aghaaz Computer confirmed the transaction executed in his Account No.50902001602703 and stated that accused Amjad Ali was friend of his elder brother and an amount of Rs:1000000 and Rs.700000 had been deposited and credited to his account vide Cheque No. 6423216 and 6423218 by accused Amjad Ali. P.W.15 Aslam Parvez also confirmed that deposit in, his account and stated that Arnjad Ali paid him cheque of Rs.8430000 and Rs.1010000 which he deposited in his account. From the perusal of Bank record and statement of Bank Account No. 036879000206-03 of HBL -it reveals that above noted cheques were issued by Amjad Ali and are available at pages 28 to 37 marked as Exh.P.W.12/26 and are also reflected in the statements of account of different account-holders mentioned above. Since the prosecution has been able to prove the signatures of accused on the cheques, therefore, there is no force in the contention of counsel for the applicant that these have not been sent to Expert.
22. Record shows that some transactions of the fraudulent amount were also effected in Bank of Khyber Karkhano Market Branch Peshawar. I.O. Collected record of the Bank available at pages 212 to 224 Exh.P.W.8/1 to Exh.P.W.8/7 which pertains to Account No. 03821-3 in the name of Muhammad Naeem, vide which Rs.180000 had been transferred from account of Amjad Ali maintained in HBL to Muhammad Naeem's Account No. 03821003 on 8-7-2009 which had been encashed on 11-7-2009 and 13-7-2009. P.W.8 Iftikhar, Manager Bank of Khyber confirmed the transaction through credit advice and Cheque No. 5254321 Exh.P.W.8/1 to Exh.P.W.8/7.
23. Keeping in view the above noted detail discussion in respect of transaction in different accounts in the name of accused Amjad Ali and his other colleagues it is confirmed and established that accused Amjad Ali with others had carried out fictitious bogus online deposit of Rs.1000000, Rs.25600000 and 2500000 on 2-7-2009 and 4-7-2009 in his Account No.0368-79000206-03 HBL New Bara Market Branch Peshawar and after receiving the said fictitious/false credit in his account he had transferred the same to different accounts. He also opened Account No.50902008785-401 in Bank Alfalah Limited Branch Arbab Chowk Peshawar where he also carried out the transaction of this fraudulent amount and during inquiry an amount of Rs.9890000 was lying in that account.
From the statement of account of the above it is proved that this fraudulent amount of Rs. 9890000 was received in his account through cash deposit from 17-7-2009 to 8-8-2009, the period of misappropriation. While on 7-8-2009 an amount of Rs.19629930-50 was lying in his Account No. 0368-79000206-03 maintained at HBL, New Bara Market Branch Peshawar. The details of withdrawal of amount of Rs.8600000 in Account No.0368-79000206 are given in cheques Exh.P.W.12/26 (b to p). These cheques bear the account number of the accused and the transactions are incorporated in the statement of account. Since the withdrawal had been made through different cheques bore the signatures of accused, therefore, it negated the chance of any mala fide on the part of Bank officers. During the course of trial accused could not deny the issuance of these cheques Exh.P.W.12/26 (a to p) from his Account No. 0368-79000683-03 rather during cross-examination of Bank officers he admitted these cheques. Some of the private witnesses namely Shahid, Aslant Parvez and Izhar also admitted and confirmed the issuance of some of these cheques in their favour. Bank Officers of other Banks particularly Muhammad Riaz and Muhammad Zaheen have given the detail of transfer of huge amount from Account No. 0368- 79000206-03 to other accounts including the account of Amjad Ali Account No. 50902008785401 maintained at Bank Alfalah as well as Account No. 50902006172501 and 50935906172501 in the name of Aslam Parvez, Account. No. 5090200160-2703 in the name of Aghaaz Computer Company in Bank Alfalah, Jamrud Road Arbab Chowk, Peshawar as well as Account No. 01875027 in the name of Asim Automobiles' Suppliers maintained in Bank Alfalah G.T.Road, Peshawar. From the record it is proved beyond any shadow of doubt that huge transactions floating in above mentioned Bank accounts are nothing but fraudulent and benami transactions. It is on record that neither the amount credited through the alleged spurious transaction was in a little quantum nor the withdrawal made from the account was negligible figure. Conscious efforts were made by applicant to shift the money to other accounts in other Banks. These facts clearly show that accused ivhile fully knowing that the amount does, not belong to him, had consciously withdrawn the same. While in his defence accused failed to rebut this documentary piece of evidence. As it is settled law that simple denial in his statement of account is not sufficient to discard the Oral and particularly documentary evidence.
24. Record.Shows that accused Amjad Ali along with others is also involved in other cases of the same nature. During the course of investigation prosecution has been able to dig out fraud in other cases and ultimately F.I.Rs. Nos. 23, 24, 25, 26 dated 13-8-2009 and 771 dated 6-8-2009 had been registered. The following table bearing the facts and figures of all the five cases:- {{TABLE}} TABLE S. Date of Originating Amount No. Origination Branches of (Rs.)
HBL 1 2 3 4 1 2-7-2009 G.T. Road 1000000 Gujranwala 2 4-7-2009 Mandi Road 25000000 Okara 3 4-7-2009 Chak 336, G.B. 2500000 Salimpur, T.T.
Singh Total 28500000.
1 15-7-2009 University of 1825000 Sargodha.
2 15-7-2009 -do- . 540000 3 25-7-2009 Old Shuja Abad 2550000 Road Multan.
Total. 4915000 1 25-7-2009 Old Shuja Abad 5000000 Road Multan.
2 29-7-2009 -do-. 1500000 3 1-8-2009 -do- 2500000 Total 9000000 1 29-7-2009 Old Shuja Abad 25000004 Road, Multan.
2 1-8-2009 -do- 1825000 Total 4325000 1 1-8-2009 Old Shuja Abad 500000 Road, Multan.
2 4-8-2009 Mandi 1000000 Bahauddin Branch.
3 4-8-2009 Kahuta. 1500000 4 5-8-2009 Grain Market 1000000 Branch T.T.
Singh 5 5-8-2009 -do- 1000000 Total 5000000 Grand Total 51700000 Beneficiary Name/Account F.I.R./Case Accused(s) who No. Of No. Are challaned.
5 6 7 Amjad Ali 25/2009 Amjad Ali Khan 0368- 13-8-2009 and Nauman 79000206-03 (2/2010) Malik Ahmad Ali 26/2009 Nauman Malik, 0368- 13-8-2009 Amjad Ali 79000533-03 (2/2010) Khan,' Awal Jawad Traders. 23/2009. Amjad All 0368- 13-8-2009 Khan, Nauman 79000538-03 (4/2010) Malik, Awal Sher, Bashir Ahmad (absconding).
Awal Sher 24/2009 Awal Sher, 0368- 13-8-2009 Amjad All Khan 79000683-03 (5/2010) and Nauman Malik.
Nauman Malik. 771, Nauman Malik.
0219002818780 ' 6-8-2009.
1 (6/2010) {{TABLE}}
25. All these facts reveal that they are habitual and hardened offenders. Due to their filthy design they had caused great loss to public/Banks ex chequers and they had left no stone un-turned to cheat the Banks.
26. Learned defence counsel raised the objection with regard to the admissibility of the attested copies of Bank record and contended that since original Bank record had not been produced, therefore, the procurement of the copies of record has no value in the eyes of law and are inadmissible in evidence. This contention of a learned defence counsel has no force. Record shows that during the course of investigation I.O. Procured the attested copies of Bank record which are duly signed and sealed by concerned Bank officers. Some of the Bank officers also produced original record at the time of recording of their statements which were produced and returned to them and the attested copies were exhibited. It is also cleared from the record that the prosecution agency brought all the original record including the withdrawal receipts at the time of arguments for perusal of all concerned as this fact is reflected in para No. 11 of the impugned order/judgment dated 13-8-2011. Even if it is presumed that original record has not been produced the presumption of truth in term of section 4 of BANKERS BOOKS EVINDECNE ACT, 1891 is attached with the Bank record, specially statement of accounts etc. Reference is made to 2003 CLD 1464 and 2004 HC 576.
The record produced by prosecution was not rebutted by the accused with cogent reasons orally or through documents. Furthermore this Bank record is equally protected and admissible under article 76(t) (g) of Qanun-e-Shahadat Order, 1984.
27. The learned counsel for the appellant also questioned the jurisdiction of the trial Court and alleged that since the appellant and accused are not the Bank employee therefore neither this Court has jurisdiction to adjudicate upon the matter nor FIA C.B.C. Has any jurisdiction to take the legal steps. It is admitted fact that appellant is not the Bank employee and none of the concerned Bank employees has been charged but jurisdiction of the Court does not depend upon the employment of the accused with the Bank. Jurisdiction of this Court is vested by virtue of sections 3 and 4 of the Offences in Respect of Banks (Special Courts) Ordinance IX of 1984. The trial Court shall have jurisdiction with respect to the schedule offences defined in section 2(d) of the Ordinance.
The definition of the schedule offences entails that the offences should be included in the schedule appended to the Offences in Respect of Banks (Special Courts) Ordinance IX of 1984, and secondly that the offences should involve business of the Bank. Keeping the above criteria in view it is evident that the alleged offence qualifies for the jurisdiction of the trial Court.
28. Learned counsel for appellant has also challenged the framing of separate charges in each case and has vehemently contended that since the present crime along with other crimes reported in different F.I.Rs. Have been allegedly committed within the span of one year, therefore, the learned trial Court initially framed joint charge but subsequently it has wrongly amended the joint charge and a separate charge in each case was framed which are in utter disregard of relevant provision of law.
29. From the perusal of judicial record it reveals that initially on 22-6-2010, on the application of accused, joint charges in case F.I.Rs. Nos.23 of 2009, 25 of 2009, 26 of 2009 dated 13-8-2009 and F.I.R. No.771 dated 6-8-2009, were framed against present accused/appellant as well as the accused involved in other cases. Later on vide order dated 3-3-2011 separate charges were framed against the accused involved in each case. Before entering to the realm of facts, it would be desirable to find out what is the meaning of word "same transaction". The expressions the "same transaction" used in sections 235 and 239 is an expression which in its very nature is incapable of exact definition and must have been advisedly used because it had this quality. Their Lordships of Supreme Court in case PLD 1958 SC (Pak.) 131 observed:-- "Community of purpose or design and continuity of action are sine qua non, if the separate acts are to be linked together, so as to constitute one transaction" it was also held in Noor Khan v.
The State PLD 1958 (West Pakistan) Lahore 1052"
' It is however now well-settled that the real and substantial test for determining whether several offences are so connected together as to form one transaction is whether the offences are so related to one another in point of purpose, or as cause and effect, or as principal and subsidiary acts, to constitute one continuous action. Therefore the question whether distinct offences form part of the same transaction is one, the answer to which must depend on the facts of each particular case."
30. Applying this aforementioned principle of law to the facts of the case we find that in the present case when the panel of accused, time, transaction and places are different and separate challans have been submitted in respect of each F.I.R. Then the joint trial of the accused amounts illegal and violation of section 239, Cr.P.C. Reference is made to 1991 MLD 1973 wherein it is held "different persons committed apparently same offence at different places and time with different intentions cannot be tried jointly". The trial Court has rightly framed separate charges and tried the appellants for the offences in accordance with the provision of section 233 Cr.P.C. Learned counsel for the appellant failed to point out any illegality at the end.
31. The learned counsel for the appellant also pointed out some technical defects/irregularities in the investigation but this objection of learned counsel is not entertainable because it is repeatedly held by the august Supreme Court of Pakistan that defect in the investigation is not a valid ground for acquittal of accused. That the case should not be decided on technicalities but on merit.
Reference is made SCMR page 24. In the present case the prosecution witnesses clearly implicated the to 2009 accused with the commission of offence. Their evidence Oral as well as documentary) is worthy credence and inspired which could not be shattered by defence through cross- examination, which fully supported the prosecution version. Appellants have failed to prove any illegality through over whelming and reliable reason, neither they proved their ease through statement under section 342, Cr.P.C. Nor produced any oral and documentary evidence to disprove the allegation of the prosecution. Scanning material of record, it is proved that very huge amount stood credited and remitted to the account of accused, burden is on accused to have shown their proportionate and known source of income to have justified the deposit of the amount in their account. But they are miserably failed to show their proportionate and known sources.
32. At the end it is contended that since the learned trial Court has not granted the benefit of section 397, Cr.P.C. Therefore, the sentenced may be ordered to run concurrently. It is well-settled that appeal is a continuation of original matter; therefore, appellate forum enjoys the same authority and ample jurisdiction to specify nature of sentences by declaring the same to run concurrently. Reference is made to PLD 1977 Karachi, page 833, 1987 PCr.LJ page 719, 1987 SCMR page 1382, 1999 SCMR 2756, 1984 SCMR 153 and 1986 SCMR 1573.
33. Presently Amjad Ali has been convicted and sentence in two case i.e. F.I.Rs. Nos. 23 and 25 dated 13-8-2009. The full particulars of his sentences are given below:--
(a) F.I.R. No. 23 dated 13-8-2009 convicted and sentenced to 5 years' R.I. Along with the fine of sum of Rs.5000000 in default of which -accused shall further undergo 2 years' R.I. Benefit of section 382-B, Cr. P. C. Was given to the accused.
(b) Case No. 25 dated 13-8-2009 accused is convicted and sentenced to 6 years' R.I. Along with a fine of sum of Rs.1 crore in default of which shall further undergo 3 years' R.I. Benefit of 382-B, Cr.
P.C. Is given.
34. The above cases against the appellants were decided on the same date i.e. 13-8-2011. Learned counsel for appellant is invoking the provision of section 397, Cr.P.C. The difficulty has arisen to the appellant because the learned M trial Court, has not stated any thing about two sentences running concurrently, or consecutively. Whereas, this Court can always take curative measure in view of the powers bestowed to it under section 57 r/w sections 234, 397 and 561-A of Cr.P.C. In such an eventuality. Keeping in view the facts and circumstances of the case this Court feels that it would serve the interest of justice if the sentences in both the cases are ordered to run concurrently, thus sentences of appellant Amjad Ali have to run concurrently in both the above noted cases. However, the sentence of fine or the term of imprisonment in default thereof inflicting on the appellants in above cases shall remain the same as adhered by the trial Court.
35. Keeping in view the above noted facts and circumstances of the case we hold that the findings of the lower Court is neither illegal nor suffering from any illegality. The judgment is in according with law and the material available on record. Thus appeal, being without substance is hereby dismissed however both the sentences of imprisonment shall run concurrently.