ABDUL ZAHEER vs State Ss — 2022 MLD 577 KARACHI-HIGH-COURT-SINDH

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ABDUL ZAHEER VS State Ss.420, 468, 471 & 109---Prevention of Corruption act (II of 1947), S. 5(2)---Cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating, using as genuine a forged document, common intention, criminal misconduct---appreciation of evidence---Benefit of doubt---Prosecution case was that an amount of more than Rs. 29 million were found short in the account of complainants/account holders and that the accused was responsible for the same through his illegal acts---Record showed that the accused had mainly been convicted because he was allegedly the cash supervisor, however that was in some doubt as according to witness he was client supervisor whose job was to bring more account holders to the Bank---audit report was against account, however the audit report had not explained as to how a loss of several lac jumped to three crore---No prosecution witness had given any direct evidence of any fraudulent activities of the accused except a witness who stated in his evidence that the accused committed the fraud but produced no evidence in support of his contention---Surprisingly, co-accused in whose account some of the fraudulently acquired funds were transferred to and withdrawn, whom there appeared to be more evidence against, was acquitted---Neither the Bank nor the complainant filed any appeal against his acquittal---Operation Manager/witness at the time at the concerned branch stated in his cross-examination which tended to indicate that the person who was meant to monitor fraud at the branch had no knowledge of any such fraud let alone being committed by the accused---auditor/witness stated that he had no proof that the accused was cash supervisor as apparently he did not need evidence of the same despite not even calling for his personal file---Said witness did not produce the statements of Bank staff or complainants which were recorded by him and had only relied on photocopy documents which greatly detracted from the veracity of his audit report---Even the audit report only found the accused guilty of negligence as opposed to criminality which report he concealed from the Investigating Officer---Interestingly, auditor found prosecution witness guilty of gross negligence and yet he was a witness in that case which suggested that witness rather limited evidence against the accused in order to save his own skin---Evidence suggested that the more junior accused might have been made a scapegoat in order to spare more senior Bank officials---Credibility and reliability of evidence of another witness was shattered during cross-examination as he was unable to produce a single document to link the accused to the evidence which he gave against the accused and as such no reliance on his evidence was to be placed which even otherwise hardly implicated the accused in any fraud---Investigating Officer failed to collect the deposit slips of the complainants and Bank statements none of which were exhibited and as such it was difficult to see how he reached the conclusion concerning the fraudulent transactions and that the accused was responsible for them especially as by his own admission he did not read the internal audit report which the prosecution placed so much reliance on---No complainant from whose account money was taken had implicated the accused---No money was recovered from the accused and no withdrawal cheques with his signature on had been recovered---No evidence that the assets which were allegedly owned by the accused and purchased out of the proceeds of crime arose out of the offences for which he had been charged were linked to him---all the documents exhibited against the accused were photocopies and were inadmissible in evidence---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---appeal against conviction was allowed, in circumstances.

ABDUL ZAHEER vs State Ss — 2022 MLD 577 KARACHI-HIGH-COURT-SINDH

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