' RASHEED AHMED SOOMRO, J.---This Crl. Appeal is directed against the impugned judgment dated 17.10.2015 passed by the learned Special Court (Offences in Banks) Sindh at Karachi in Case No,04/2013, whereby the appellant was convicted under sections 419, 420, 468, 471 and 109, P.P.C.
And sentenced to suffer R.I for 07 years on each count and fine of Rs,2,00,000/- on each count. In case of default in payment of fine he shall suffer further R.I for 02 years on each count.
2. Briefly the facts, as narrated by the Complainant in the FIR are that one Saad Qureshi, Manager, MCB. Limited, Badar Commercial Branch, Karachi made written complaint to FIA alleging therein that one Ahmed Khan arrived in their Branch on 30.01.2013 and presented a Cheque of Rs,2,00,000/- drawn from the Account of Ms. Fozia Ahmed. The Complainant was monitoring the Branch as usual when teller referred the cheque to him, which was signed by the Accountholder, therefore, he called the Customer for obtaining CBC for confirmation of, the Cheque to which she informed that she has not issued such Cheque, therefore, he requested Accountholder Mrs. Fozia Ahmed to visit the Branch alongwith her Cheque Book, within 15 minutes. She arrived in the Branch in the meanwhile the person, who presented the Cheque was held in the Branch. The Complainant further narrated that the Accountholder after seeing instrument disclosed that she has not issued any Cheque whereas Cheque bearing same number is lying intact in her original Cheque Book. It is also added in the FIR that during query presenter of the Cheque namely Ahmed Khan responded that one of his friend has given the said Cheque for encashment and he would be waiting at hotel, therefore, by knowing alleged incident and after consulting with Superiors accused Ahmed Khan was handed over to the Area Police. The Complainant said that culprit as well as unknown accomplice has fraudulently withdrawn a sum of Rs,1,00,000/- from the above mentioned account and have also made attempt to withdraw further amount of Rs,2,00,000/- through forged/chemically altered Cheque from the above account, therefore, he has committed the offence.
3. The Investigating Officer submitted the challan before learned trial Court, where after completing legal formalities and recording of prosecution evidence, the appellant was convicted by judgment impugned in this appeal.
4. Heard both the learned counsel for the parties. It is, inter alia, contended by the learned counsel for the Appellant that the Appellant Syed Shafqat Ali Qadri is innocent and he has falsely been involved in this case as the alleged FIR is silent regarding name and specific role of the Appellant to the offence, with which he has been charged. He next argued that the prosecution has failed to cite Mrs. Fozia Ahmed as a witness from whose Account an amount of Rs,2,00,000/- is sought to be withdrawn by presenting a fake cheque leaf. According to the learned counsel, the Appellant Syed Shafqat Ali Qadri has been booked in this offence on the statement of co-accused Ahmed Khan and it is settled principle of law that no one can be punished on the basis of aforesaid statement unless corroborated by other evidence.
Learned counsel for the Appellant has further contended that no direct evidence is available with the Prosecution to connect the appellant in the alleged crime. He lastly argued that the impugned judgment may be set aside and the Appellant may be acquitted of the alleged charged offence.
5. On the other hand, Mr. Muhammad Aslam Butt, learned DAG has vehemently opposed the submissions of learned appellant's counsel and submitted that according to the prosecution witnesses, the Appellant is the Mastermind and he played main role to send the innocent persons for encashment of the Cheque by putting them on false hope of providing service of handsome salary. According to the learned DAG, there may have been minor contradictions in the evidence of the Prosecution witnesses but merely on consideration of such minor contradictions in the evidence of the prosecution witnesses and technicalities, the instant Cr. Appeal cannot be allowed.
When learned DAG was confronted, with the fact that as to why Mrs. Fozia Ahmed was not made a witness from whose Account an amount of Rs,2,00,000/- is sought to be withdrawn by presenting a fake cheque leaf, he remained mum and could not offer any explanation.
6. We have heard the learned counsel for the Parties, examined the evidence, scanned the material on the record, perused the impugned judgment and carefully considered the contentions raised before us by the learned counsel for the Parties.
7. Prima-facie, it appears from the record that on 30.01.2013 co-accused Ahmed Khan went to MCB Limited, Badar Commercial Branch, Karachi arrived the said Branch and presented a Cheque of Rs,2,00,000/- drawn from the Account of Ms. Fozia Ahmed. The Complainant/Manager Saad Qureshi while suspicion called the actual Accountholder namely Mrs. Fozia Ahmed, who came and denied issuance of any Cheque for Rs,2,00,000/- and her cheque book was found intact, therefore, co-accused Ahmed Khan was caught hold and handed over to the Area Police, where he stated that one of his friend has given the said Cheque for encashment and on the statement of the co- accused Ahmed Khan, the Appellant was arrested.
8. Admittedly, except the statement of co-accused Ahmed Khan, the prosecution has failed to bring on record any such material and confidence-inspiring evidence to prove that the Appellant has instigated, abated, or aided the accused persons for committing offence as alleged in the FIR.
It is settled principle of law that accused cannot be convicted on the basis of confessional statement of co-accused whereas in the case in hand only evidence against the Appellant is statement of co-accused Ahmed Khan.
9. In view of the above facts and circumstances of the case, we are of the firm opinion that the prosecution has failed to prove its case against the Appellant Syed Shafqat Ali Qadri beyond any shadow of doubt. Consequently, the instant Cr. Appeal stands allowed. Let Appellate Syed Shafqat Ali Qadri be released forthwith, if not required in any other case.
10. The above Cr. Appeal was allowed by a short order dated 01.09.2016. These are the reasons for the same.