1. ' ALLAHDINO G. MEMON, J.-- The appellant was charged and tried under sections 381, 408, 468 and 471, P.P.C. Before the learned Presiding Officer, Special Court (Offences in Banks), Karachi, who has convicted and sentenced him as under:-
(1) Under section 471, P.P.C.
2. ' R.I. For two years and to pay fine of Rs,7,00,000 (Rupees seven lacs) in default of payment of fine to undergo further R.I. For one year.
(2) Under section 408, P.P.C. R.I. For two years.
3. ' However, it was ordered that the substantive sentences of imprisonment shall run concurrently vide judgment dated 4th June, 1988.
4. ' The brief facts giving rise to the present appeal are that on 27-6-1987 Aziz Ismail Siddiqui, Director, Global Commodities, lodged a report at .'Police Station T.P.X. District West Karachi which reads as under:- "I am residing at the above-mentioned address and am employed at Global Commodities as Director. My office is at V.M. House West Wharf, A person namely Shakeel Ahmed Rashidi is Accounts Assistant in my office who is not coming to the office for the last two weeks. He came to office once or twice and went away saying that the Income-tax Officer had called him. Today morning, his brother Khalid Rashidi informed on phone that Shakeel had met with an accident and he was injured, I asked him that he should send him the next day, if possible, as there was an urgent work. I got suspicious a little so I got the account of company at Habib Bank Foreign Exchange Branch checked, whereupon, it was discovered that a sum of Rs, one lac thirteen thousand and eighty-eight had been overdrawn otherwise a sum of Rs, seventy thousand should have been there in the balance as per account. After getting the account checked it was discovered that on 27-6-1987 I had given Cheque No,00724210 amounting to Rs, one thousand to Shakeel Rashidi for getting it encashed, who after making forgery in the cheque altered it into Rs, one lac and ten thousand, and got the money drawn from the Bank and committed fraud dishonestly, the verification whereof has been made by me from the Bank. Moreover, I shall produce the photo copy of the cheque after obtaining it from the Bank tomorrow. Besides this, I am checking the accounts record of the office. I suspect that he might have committed more forgery, which I shall disclose later on. I lodge report against Shakeel Ahmed Rashidi, notice be taken."
5. ' The above F.I.R. Was recorded by Sub-Inspector Nooran Shah and the F.I.R. Has been produced as Exh.3-D. On 23-7-1987 he arrested the accused/appellant and prepared such Mashirnama, which has been produced as Exh.7/A. He produced the accused before A.C.M. Mr. Usman Shahani, for recording his confession who after recording the confession of the accused remanded him to judicial custody. The S.I.P. Then recorded the statement of P.Ws. Abdul Aziz, Manzoor Hussain, Muhammad Yamin. Thereafter, the investigation was transferred to the F.I.A. On 12th August, 1987.
6. The further investigation was carried on by Hussain All Baloch P.W.B. He secured documents from the Foreign Exchange Branch Account H.B.L. Under Mashirnama, which has been produced as Exh.9/B. He recorded the statement of Aziz Ismail, Abdul Ghaffar, Muhammad Azim Nayyar, Muhammad Yamin, Muhammad Usman Shahan and S.I.P. Nooran Shah. He also recorded statement of Muzaffar Imam, Muhammad lqbal Ahsan, Farhatullah Sadaruddin, Yousuf Ali Rehmani, S.M. Safeer, Moinullah Khan and Bashir Ahmed. On 16-9-1987 he challenged the case before the Court.
7. ' A formal charge was framed against the appellant to which he pleaded not guilty.
8. ' At the trial prosecution examined Mr. Muhammad Usman Shahani, F.C.M. P.W.1. He had recorded judicial confession of appellant/accused, which he has produced as Exh.2/A. Aziz Ismail Siddiqui complainant, P.W.2 has produced the account opening form and specimen signature card of the account as Exhs.3/A-1 and 3/A-2, letter written by him to the H.B.L. Alongwith endorsement from the Bank as Exh.3/B, the counterfoil of the cheque as Exh.3/C, forged cheque as Ex.h 3/C-1, F.I.R. Exh.3/D, 8 other cheques as Exh.3/E-1 to Exh.3/E-8. He has also produced the counterfoil of the above eight cheques as Exh.3/E-1-A to Exh.3/E-8-A. He has prodcued six more cheques as Exh.3/F-1 to Exh.3/F-6, six counterfoils of the cheques Exh.3/F-1-A to Exh.3/F- 6-F as Exh.3/G-1 to 3/G-6. Abdul Ghaffar Officer In charge of Unit No,4 of the Foreign Exchange Branch of H.B.L. P.W.3 has produced 6 statements of payments and receipts on the computer system as Exh.3/E-1-A to Exh.3/E-6-A, acknowledgment signed by the complainant in respect of balance in the account of Global Commodities as Exh.4/A. Muhammad Yamin Sakrani, Officer Foreign Exchange Branch of H.B.L.
9. P.W.4, Muhammad Azim Nayyar Exh.5, he has produced the Mashirnama regarding seizure of account opening form and cheques etc. From the Bank as Exh.6/A. Sub-Inspector Syed Nooran Shah, P.W.6, has produced Mashirnama of arrest of the accused Exh.7/A, Muhammad Anwar Dawood General Manager, Nauman Plaza, P.W.7, has produced four entries regarding payment by the accused as Exh.8/B and certified copy of Lease Deed executed by the accused as Exh.8/C, Mr. Hussain Ali Baloch P.W.8 he has produced the copy of the F.I.R. As Exh.9/A. And Mashirnama regarding seizure of documents as Exh.9/B. Shaikh Muhammad Din, Handwriting Expert P.W.9 has produced his opinion as Exh.10-B.
10. ' After close of the prosecution case, the statement of the appellant was recorded in which he has denied the allegations. However, he has admitted that cheques Exhs.3/C-1, 3/E-1 to 3/E-8 were in his handwriting. He has also admitted that the counterfoil Exh.3/C and other counterfoils produced in Court were also in his handwriting. He has also admitted that the cheques Exh.3/F-1 to Exh.3/F-6 and the counterfoils Exh.3/G-1 to Exh.3/G-6 were in his handwriting. That he used to encash the cheques on behalf of the Company including the cheques which have been produced in Court and used to deliver amount thereof to complainant Aziz Ismail. All postings in the account used to be done under the direction of complainant, the cheques produced in Court were signed by the complainant. As far as confession was concerned, he was not produced before the Magistrate but this confession was recorded at the police station. It was neither true nor voluntary. That he had written on counterfoil Exh.3/C that there was a balance of Rs,70,069.50 on 27th June, 1987, in the account of the Company but according to him it was done on the direction of the complainant. He has also admitted that the counterfoil Exh.3/C was counterfoil of Exh.3/C-1 and that the counterfoil Exh.3/C shows the withdrawal of an amount of Rs,1,000 while cheque Exh.3/C-1, shows withdrawal of amount of Rs,1,10,000 but the same was done by him under the direction of complainant. He also examined Khalid Sayeed Rashidi D.W.1, Farhatullah D.W.2, Rafiuddin Junejo D.W.3, Yousuf Ali D.W.4, S.M. Safeer D.W.5, Bashir Ahmed D.W.6, Sadaruddin D.W.7, Iqbal Hasan D.W.8, Muzaffar Islam D.W.9 and Moinullah Khan D.W.10 in his defence. Learned Presiding Officer, after taking into consideration the evidence led by the prosecution and the appellant has convicted the appellant as described above. The present appeal is directed against the above judgment of conviction.
11. ' We have heard Mr. Asad Ali Bilgrami, learned counsel appearing for the appellant, Mr. S.M. Sayeed learned counsel appearing for the complainant, Mr. S.M.W. Hazratji, learned counsel appearing for the State, and have also gone through the R & P of the case.
12. ' It was contended by Mr. Asad All Bilgrami, learned counsel appearing for the appellant that the offence alleged to have been committed by the appellant was not a scheduled offence as defined by section 2(d) of the Ordinance, and therefore, his trial and consequent conviction by the learned Presiding Officer were without jurisdiction and illegal. That the judicial confession alleged to have been made by the appellant was recorded 2t the police station, and after recording the confession he was remanded to police custody by the learned Magistrate, and therefore, the same was neither true nor voluntary. It was further contended that there was only evidence of the complainant, uncorroborated by any other evidence, and the defense taken by the appellant was also probable and, therefore, he was entitled to acquittal. In support of his contention the learned counsel has relied upon 1986 P Cr. L J 567 and 1983 SCMR 1292.
13. ' Mr. S.M.W. Hazratji, learned counsel appearing for the State, has contended that the prosecution had proved its case against the appellant through ocular as well as documentary evidence, coupled with the judicial confession and admissions of the appellant in his statement under section 342, Cr.P.C., and therefore, he was rightly convicted. He has further contended that since the accused had drawn more amounts from the bank on the basis of forged cheques and by manipulation, his act falls within the definition of section 2(d) of the Ordinance, and therefore, the learned Presiding Officer had the jurisdiction to try the appellant.
14. ' Mr. S.M. Sayeed, learned counsel appearing for the complainant has adopted the contentions raised by Mr. Hazratji. He has further contended that the statement of account Exh.4/A which is alleged to have been signed by the complainant was not put to him in cross-examination and, therefore, the same could not be relied upon or considered against the complainant.
15. ' We have considered the contentions of the learned counsel. In order to appreciate the respective contentions of the learned counsel appearing for the parties regarding jurisdiction of the Court, it will be appropriate to refer to section 2(d) of Offences in Respect of Banks (Special Courts)
16. Ordinance, 1979, which reads as under:- "Section 2(d).-- 'Scheduled Offence' means an offence specified in the First Schedule and alleged to have been committed in respect of, or in connection with the business of a Bank."
17. ' The bare reading of the above provision will show that in order to invest Special Court with the jurisdiction, two ingredients must be satisfied, firstly, that the offence should be specified in the First Schedule to the Ordinance, and secondly, the offence should have been committed in respect of or in connection with the business of the Bank. If any, of the above two ingredients is missing in a case, the Special Court will have no jurisdiction.
18. In the present case, there is no allegation that either the appellant was an employee of the Bank or he had caused any loss to the Bank. Even the Bank has not come forward to file any case against the appellant. It is also an admitted position that the Global Commodities Limited of which complainant Aziz Ismail Siddiqui was a Director is a private firm and the appellant was working as Accounts Assistant in the said firm. The allegations in Court against the appellant are that he used to issue cheques for more amount than the amount shown in the counterfoil. It is also further alleged that certain cheques were forged and more amounts were drawn from the Bank than the amount shown in the counterfoil, and thereby the firm was defrauded. There is no allegation from the prosecution that by doing the above illegal acts the accused had caused any loss to the Bank, therefore, it cannot be said that the appellant had committed any offence in respect of or in connection with the business of the Bank. The expression 'in connection with' was examined in the case of Mushtaq Hussain Shah v. The State reported in 1986 P Cr. L J 561; wherein it was observed by the learned Judge that:- "I am of the view that the said interpretation of the word 'connection' applied equally well to the said word as used in section 2(d) of the Ordinance, and accordingly hold that the word 'connection' in the expression 'in connection with' in the said definition of Scheduled Offence envisages a link which is direct cause and effect and not remote."
19. ' As far as first ingredient was concerned, the offences under sections 408 and 471, P.P.C. Are mentioned in part (a) of the First Schedule and are, therefore, definitely Scheduled Offences.
20. However, as far as the second ingredient was concerned, as discussed above the offences alleged to have been committed by the appellant were not in respect of or in connection with the business of the Bank. This conclusion gets further support from subsection (4) of section 6 of the Ordinance, Which reads as under:- (1)
21. (2)
(3) .....................................................................
(4) Where a Special Court passes a sentence of fine, the Court shall order the whole or any part of the fine recovered to be applied in the payment to the Bank in respect of which the offence was committed as compensation for the loss caused to it by the offence."
22. ' While considering the question of jurisdiction in the case of Ali Hussain and two others v. Presiding Officer, Special Court for offences in respect of Banks Karachi and three others PLD 1989 Kar. 157; a Division Bench of this Court after considering the definition of a Scheduled Offence as given in section 2(d) of the Ordinance and the effect of subsection (4) of section 6 of the Ordinance observed as under:- "It becomes evident that the object of the Ordinance is two-fold, firstly, to punish accused persons who are guilty of a scheduled offence, and secondly, to compensate the Bank for the loss suffered by it on account of the commission of the offence by providing the payment of compensation. The object does not seem to provide any relief to an individual who may be aggrieved by an action of a Bank employee. In the instant case, the respondent No,2 had filed the direct complaint not for the purpose that the Bank should get the balance amount of its dues but to get the alleged accused punished as pointed out hereinabove."
23. ' In the case of Sikandar Ali v. The State 1989 P Cr. L J 613; wherein the appellant had forged an order of A.D.C. To the Prime Minister of Pakistan for getting employment in Bank, it was observed that section 2(d) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984, makes it clear that the said offence of forgery was not in connection with the business of the two banks. The forged orders did not affect the business of the Bank in any manner. Emphasis is upon an offence committed in respect of, or in connection with, the business of a Bank. It was further observed that:- "Special Court constituted for the trial of Scheduled Offences committed in respect of or in connection with the business of a Bank, is competent to try such offences only. A Special Court cannot assume jurisdiction in disregard of the provisions of section 2(d) of the said Ordinance. The omission to raise objection, acquiescence or even consent cannot invest a Court with jurisdiction which it has not.
24. ' Even preamble of the above Ordinance would indicate that it was an Ordinance to provide speedy trial of certain offences committed in respect of Banks and for matters connected therewith or incidental thereto."
25. In view of the above factual as well as legal position, we are clear in our mind that the offence alleged to have been committed by the appellant did not fall within the ambit of section 2(d) of the above Ordinance, and therefore, the trial of the appellant before the learned Presiding Officer and his consequent conviction were without jurisdiction. This appeal is, therefore, allowed, the conviction of the appellant is set aside and he is acquitted of the charge. He shall be released forthwith, if not required in any other case. It will be, however, open to the prosecution to proceed against the appellant under the ordinary law before the competent Court.
26. ' Since, we have allowed this appeal on a legal ground, it is not necessary to go into merits of the case, as it might prejudice the case of one or the other party in the fresh proceedings.