1. ' IFTIKHAR MUHAMMAD CHAUDHARY, J.--- Precisely, the facts of instant case, as narrated in F.I.R. No,6 of 1989, registered at Industrial Area Police Station, Quetta (Exh.P.2/B), lodged by P.W. Rahim Khan Zarkoon, vide report (Exh.P.2/A), are that one Shoib Ahmad, Assistant Director. Accounts, WASA, informed to Managing Director (complainant) that he had found two Cheques bearing Nos.HA- 390694 and HA-390699. Amounting to Rs,4,70.000 and Rs,3,30,000 respectively, in total comes to Rs,8,00.000'missing. This fact was detected, while issuing Salary Cheques on 31st December, 1988 It was further stated that these cheques were deposited in the Habib Bank Limited, Qandhari Bazar Branch and amount was drawn from National Bank of Pakistan. Through Transfer Entry. Accordingly investigation was carried out, during course whereof, it revealed that appellant Akbar Ali Shah, along with acquitted accused Shoib Ahmad, Sada Gull, Tariq Mehmood Rashid, Nisar Ali and one Amjad Hussain, Supervisor, WASA, are responsible for the commission of offence. The last- mentioned accused succeeded in making his escape good. Whereas the remaining were arrested.
2. It revealed that in the Habib Bank Limited, Shahra-e-lqbal Branch, Quetta, vide Exh.P.5/B, one Sajjad Hussain Shah son of Syed Jalal Abbass Shah, Contractor, opened his account. He was introduced by one Adam Khan. At the time of opening of account, his identity card (Exh.P.5/L) was also obtained, which was available in the record. It is alleged that delinquent amount of two cheques of National Bank, were deposited in the account of Sajjad Hussain Shah on 30th October, 1988, vide Exhs.P.5/J and K, from where the amount was withdrawn by means of Cheque No,32427286, amounting to Rs,7,85,000 (Exh.P.5/G) and at the time of presentation of cheque, a written notice for withdrawal of heavy amount (Exh.P.5/M) was also filed. Prior to presentation of cheque, by means of Cheque No,32427285(6), dated 2nd November, 1988 (Exh.P.5/F) amount of Rs,12,000 was withdrawn. It is alleged by the prosecution that it was appellant Akbar Ali Shah son of Anwar Ali Shah, who was operating the account, in the name of Sajjad Hussain Shah son of Jalal Abbas Shah.
3. Thus, all the relevant documents were taken into possession by the Investigation Agency i,e, F.I.A.
4. Vide recovery memos. Consequent upon the completion of investigation, challah was submitted before the Special Court of Baluchistan, constituted for Offences in Respect of Banks (Special Courts) Ordinance.
5. ' Learned trial Court, read over the charge to all the accused, to which, they denied and pleaded innocence It may be noted that in the charge, in respect of appellant Syed Akbar Ali Shah, it was specifically stated that he succeeded in getting the payment of same from the bank, after opening a fictitious Account No,4158-2, dated 29th October, 1989, in Habib Bank Limited, Shahra-e-Iqbal Branch, Quetta, in the name of Sajjad Hussain Shah, Contractor.
6. ' The prosecution, to substantiate the accusation, led evidence of: ' P.W.1 Muhammad Saleem, Officer of N.B.P. He stood witness to the recovery of Record Mark-1 to Mark-10, vide memo. Exh.P.1/A. He also identified the signatures of Tariq Mehmood, accused and Manzoor Ahmad, Officer of the Bank, on the Cheques Marks-1 and 2; ' P.W.2 Rahim Khan Zarkeon, the complainant. He identified the disputed cheques, Marks-1 and 2, which he stated to be not signed by him. ' He also proved the contents of letter Exh.P.2/A on basis whereof F.I.R. Exh.P.2/B was lodged; ' P.W.3 Khalid Mehmood. He also stood witness to the recovery of documents/record Marks-1 to 7, taken into possession by F.I.A. ' ' ' 'Inspector, vide seizure memo. Exh.P.3/A; ' P.W.4 Ghulam Sarwar. He being the employee of WASA identified the cheques Exh.P.1-A (Marks P.1-1 and 1-2), bearing forged signatures; ' P.W.5 Qamarullah. He stood witness with regard to taking into possession documents pertaining to opening of account in the name of ' Syed Sajjad Hussain, vide memo. Exh.P.5/A. He produced these documents as Exhs.P.5/B to 5-M.
7. ' P.W.6 Amjad Durrani. He being Managing Director, WASA deposed that in 1990, fraud was committed in his department, in pursuance whereof, departmental enquiry was conducted. Copy whereof (Exh.P.6/A) was handed over by him to F.I.A.
8. ' P.W.7 Sherdil, M.F.C./E.A.C.-H. He attended the identification parade on 15th March, 1990. Memo. Of the same was produced by him as Exh.P.7/A) (It may be noted that the prosecution got identified to Akbar Ali Shah, through co-accused Nisar Ali, to be the person, who used to operate the Account, in the name of Sajjad Hussain Shah: ' P.W.8 Usman Ali. He conducted the departmental enquiry, being the Director, Administration, WASA, vide Exh.P.6/A. In his presence documents Articles A/5 and A/3, vide Exh.P.8/A were taken into possession by F.I.A. He also stood witness for taking into possession the Rubber Stamps, Articles A/4 and A/5, vide memo. Exh.P.8/B. He produced the sample of rubber stamp as Exh.P.8/C; ' P.W.9 Abdul Rashid, Assistant Transport, B-WASA. He deposed that when he was posted as Despatch Clerk, he made entry of Serial ' 'No,593, in the Register (Article A/6) and the letter was noted in the Peon Book, which he handed over to Peon Gulfam, for delivery to N.B.P. Civil Secretariat Branch, Quetta and Manager, M.C.B. Shahr-e-Iqbal Branch, Quetta. He also identified the peon book Article A/7; ' P.W.10 Muhammad Afzal. He was associated alongwith 12/13 persons as Dummy, in the identification parade held on 15th March, 1990, in the office of Assistant Director, F.I.A. And in his presence, Nisar Ali identified the accused Akbar Ali Shah and stated that he encashed the cheques of Rs,8,00,000; ' P.W.11 Syed Masood Hashmi, Inspector, F.I.A. He lodged F.I.R. No,2 of 1989 on 1st February, 1989, which he produced as Exh.P.11/A. (It may be noted that initially F.I.R. Was lodged at Industrial Area Police Station, but subsequently the case was handed over to F.I.A., therefore, fresh F.I.R., on basis of letter Exh.P.2/B, addressed by P.W. Rahim Khan Zarkoon was registered). This witness arrested Shoib Ahmad, Assistant Director, WASA, Nisar Ahmad, Officer, H.B.L. And Sada Gul. The record was also taken into possession by him vide memo. Exh. P.3/A; ' P.W.12 Muhammad Waqar Aslam. He being E.A.C.-V, recorded statements of four P.Ws. As well as statement of accused Shoib Ahmad, who were produced before him, on 16th June, 1990. He produced the statements as Exhs.P.12/A to F, H & J, and Marasala of F.I.A. Received by him for recording the statements as Exh.P.12/G; ' P.W.13 Habibullah Khan, Inspector, F.I.A. He took over the investigation of case on 27th February, 1990. Arrested the appellant, got conducted identification parade and produced four witnesses Ghulam Nabi, Abdul Rashid, Manzoorul Hassan and Manzoor Ahmad, before the Magistrate, for recording of their statements. On account of his transfer, he made over the file to Habibullah Tarran, Inspector, F.I.A.; ' P.W. 14 Ghulam Dastagir, S.-I. F.I.A. He submitted incomplete challan as Exh.P.14/A; and ' PM, 15 Habibullah Tarran. He on receiving the file of investigation, submitted final challan Exh.P.15/A.
9. ' Thereafter appellant and co-accused were examined under section 342. Cr.P.C., wherein he denied the prosecution case. Except accused Shoib Ahmad, none made statement on oath.
10. Appellant Akbar Ali Shah, in his defense examined D.W, Syed Ahmad, Assistant Director, BIAD, who produced the personal file of appellant in which, application, dated 24th October, 1988, addressed by him to Director, C.D. Was available, However, the application was not got exhibited.
11. ' On completion of trial, vide impugned judgment, dated 21st Novembet, 1998, the Special Judge, found appellant and absconding accused Amjad All Shah, guilty and accordingly sentenced them as follows:- (0 For offence under section 420, P,P.0 to suffer three years' R.I. And to pay fine of Rs, two lacs each and in default in payment of fine to further suffer one year's S.I.
12. ' For offence under section 468. P.P.C. To suffer four years' R.I. And to pay fine of Rs 2 lacs each and in default in payment of fine to further suffer S.I. For one year; and
(iii) For offence under section 5(2) of Act, 11 of 1947, to suffer four years' R,I. And to pay fine of Rs, two lacs each and in default in payment of fine to further suffer S.I. For one year.
13. ' Benefit of section 382-B. Cr.P C. Was also extended to appellant. The amount of fine on recovery was ordered to be adjusted towards the loss caused to the department/hank on account of fraud.
14. As far as remaining accused Shall, Ahmad, Sada Gul, Tariq Mahmood Rashid and Nisar Ali, were concerned, they were acquitted of the charge. Because no case was proved against them. As such, appellant Akbar All Shah, has instituted, instant appeal, ' Mr. Tariq Mehmood, learned Advocate, appeared for appellant, whereas on behalf of the State through F.I.A., no one appeared, because Syed Ayaz Zahoor. Learned Deputy Attorney-General, stated that at one stage, he remained counsel for one of the accused, therefore, he could not appear and the file has been entrusted to Mr. M.S. Rukhshani, Advocate, but when he was summoned he also expressed his inability to appear in the case, because sanction was not accorded to him. Inasmuch as, no request was made by anyone of them, for adjournment of case.
15. Under these circumstances. Having left with no option, we proceeded with the case.
16. ' Learned counsel for appellant, contended as hollows:- -
(a) (a) The trial Court had no jurisdiction to try the case, because the alleged act of appellant, does not fall within the scheduled offences. As has been defined under section 2(d) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984. Reliance was placed by him on 1986 PCr.LJ 567, NLR 1988 (Crl, Cases) 462 and PLD 1989 Kar,
157. And
(b) The prosecution has failed to produce convincing evidence that it was the appellant, who deposited the disputed cheques of N.B.P. Marks,1,.1 and 1.2, amounting to Rs,4,70,000 and Rs,3,30,000 respectively in the fictitious account of Sajjad Hussain Shah, opened in H.B.L. And thereafter, withdrew the amount, by presenting cheques of Sajjad Hussain Shah (Exhs 13,5/F and 0).
17. ' We have heard the learned counsel and have also gone through the relevant evidence, available on record.
18. ' First of all, it would be appropriate to attend the question, pertaining to jurisdiction of Special Court, constituted under the Ordinance of 1984. For sake of convenience, section 2(d) of the Ordinance of 1984, is reproduced herein below,-- "2(a).. (b) (e)
(d) Scheduled offence' means an offence specified in the First Schedule and alleged to have been committed in respect, or in connection with the business, of a bank."
19. ' It may he seen that the offences charged against appellant are scheduled one, provided it is established that the same have been committed in connection with the business of Bank, Prosecution has produced P.W. Rahim Khan Zarkoon, Managing Director, WASA, who had the authority to sign cheques of WASA, As per his evidence, both the cheques, which were found missing from the cheque book of N.B.P. (Marks 1-I and 1.2) were not signed by him. The stand taken by the witness has not been challenged by any of the accused. Including appellant, during trial.
20. Therefore, it is established that offence has been committed in connection with the business of Bank. In this context, the Honorable Supreme Court, in the judgment reported in PLD 1992 SC 353, while interpreting section 2(d) of the Ordinance of 1984, has observed as under:- "The definition of scheduled offence as contained in section 2(d) of the Ordinance does include a rider to be the offences which are mentioned in the schedule. The rider is that those offences should have been alleged to have been committed 'in respect of or in connection with the business of a bank'. The expression 'business of bank' used in the definition would have to be given extended meaning on account of the use of two such further open ended expressions which connote very wide meaning for the words 'business' and the 'Panic'. There are 'in respect of or 'in connection with'.
21. The scrutiny of the meanings of these words and expressions in the classical sources together with the modern usages and scope of Banking business, leave absolutely no doubt that there will be left out of their ambit only extremely rare cases. They somehow or the other, are linked with the modern extended banking practices in trade business, industry and finance, domestic and other; besides the earlier known scope of their operation. Take, for example, the word 'business' as separate from the word 'bank'. Again take all that goes with the modern banking business and all that is included in the banking procedures. Not only this, banking activities both with regard to the depositors dealing as well as dealing in trading and other enterprises are their business."
22. As we have observed hereinabove, that once the connection with the business of bank stands established, no sooner, it is proved on record that fraud by misappropriating the amount from the bank has been committed by means of a negotiable instrument/cheque, then the conduct of accused, whosoever, is responsible for it, makes him liable to answer for the commission of such offence and it being so, falls within the definition of the scheduled offences. At this juncture, it may be noted that Honourable Supreme Court, in the above judgment has observed that in the modern banking, even a slightest/remote connection of an offence committed in respect of the banking business, shall make the offence liable to be tried by the Special Court constituted under the Ordinance of 1984. Therefore, we are inclined to hold that the Special Court, had the jurisdiction to try the case. Thus, the objection so raised by learned counsel, is overruled.
23. ' As it has been observed in the paras. Supra, that learned Presiding Officer of Special Court, specifically charged appellant Syed Akbar Ali Shah, for succeeding in getting the payment of cheques from the bank, after opening a fictitious Account No,4158-2, dated 25th October, 1989, in H.B.L. Shahra-eIqbal Branch, Quetta, in the name of Sajjad Hussain Shah, Contractor. Admittedly, except the statement of P.W. Sherdil and Muhammad Afzal, no other evidence has been brought on record, because the statement of Nisar Ali under section 342, Cr.P.C. Is not admissible, even if it is accepted that in presence of P.W. Sherdil, he had identified appellant to be the person, who used to operate the Account in the name of Sajjad Hussain. At this stage, it is also noteworthy that when Account No,4158-2 was opened, vide Account Opening Form (Exh.P.B.), his identity card (Exh.P.5/L) bearing No,235-94-499427 was also obtained and it was present in the Customer's record of H.B.L.
24. Shahra-elqbal Branch, Quetta. Therefore, in such situation, the statement of Nisar Ali is not worthy of acceptance.
25. ' Now we have to see that on basis of which evidence the learned Court find itself convinced to hold that appellant is responsible for the commission of offence. A perusal of the judgment indicates that mainly reliance has been placed on the statement of P.Ws.7 and 10. As far as former witness is concerned, he being the Magistrate, witnessed the identification parade and produced its memo.
26. As Exh.P.7/A, without identifying the appellant in the Court. He has given a precise statement to the effect, that on 15th March, 1990, he was posted as EAC-II/MFC, Quetta. Identification parade was got conducted by him. He identified his signatures on the identification on parade form. Although he has not proved the contents of identification parade form, nor identified the appellant in Court and also did not give details of the process of identification, but even a perusal of Exh.P.7/A, indicates that in respect of the offence, which was allegedly committed in the month of January, 1988, the identification parade was conducted after period of more than two years i,e, on 15th March, 1990. As regards P.W. Muhammad Afzal, he deposed that he was associated in the identification parade along with others as dummy on 15th March, 1990, held in the Office of Assistant Director, F.I.A. And in his presence Nisar Ali, pointed out one of the person standing in the line and stated that this person encased the cheques of rupees eight laces. According to him, the procedure of identification was repeated twice/thrice times, after changing the sequence of persons in the line. He identified the appellant to be the person, who was identified by Nisar Ali in his presence. His evidence is also not admissible, because same is based on the potation of Nisar Ali, who himself was one of the co- accused in the commission of offence, therefore, notwithstanding the fact; whether Nisar Ali himself has identified the appellant or he identified appellant in presence of P.W.10 Muhammad Afzal, it would be of no consequence. We failed to understand that as to how the learned Judge, concluded that on basis of the evidence, which is coming from the source of co-accused, the appellant can be convicted for the commission of offence.
27. ' Mr. Tariq Mehmood, learned counsel, relying on Mehmood Ahmad and 3 others v. The State and another 1995 SCM R 127 contended that without attributing any overt act to the accused, mere holding of his identification parade is of no consequence. As far as the proposition discussed by Honorable Supreme Court is concerned, there is no cavil with it. But in the instant case, as it has been observed hereinabove that the identification of the accused has not been arranged through independent source, therefore, the evidence to this extent from the mouth of a person, who himself is an accused, is not admissible, unless he has not been made as "approver". Therefore, if evidence of P.Ws.7 and 10 on the point of identification, is kept out of consideration, there is absolutely no evidence on record to establish that appellant had deposited the cheques (Exhs.P.I-1 and 1-2) allegedly, on which. The signatures of Managing Director, WASA were turgid, in the account of Sajjad Hussain Shah, vide Deposit Slips Exhs.P./5-J and K and the cash by means of transfer from National Rank on presenting cheques Fxhs P.S/F and G In absence of any evidence on record. It is surprising that how arbitrarily thy: trial Court held that appellant is guilty for the offence of cheating the WASA by depriving it of rupees eight lacy. Similarly, there is absolutely no evidence on record to prove accusation against appellant of forgery, for the purpose of cheating, falling within the mischief of section 468, P.P.C. Likewise to establish the accusation under section 5(2) of Act II of 1947, absolutely no iota of evidence has been produced on record. Thus, we are of the opinion that in absence of any evidence, the conviction/sentence awarded to appellant by means of impugned judgment is not sustainable, ' For the foregoing reasons, the appeal is allowed, impugned judgment, dated 21-11.1998, passed by Special Judge (Offences in Respect of Banks) Baluchistan, Quetta, is set aside to the extent of appellant Akbar Ali Shah. Consequently, he is acquitted of the charge. He be set at liberty, if not wanted in any other case.