KARACHI: A district court exonerated on Thursday three Chinese nationals in cases pertaining to cyber terrorism, unauthorised data access and ATM-skimming fraud as the prosecution failed to prove the charges against them.

The foreigners — Xu Zhuping, Zhang Qiaocheng and Zhong Shaowen — were acquitted of the charges of committing electronic crimes, fraud and forgery in 2018.

District and Sessions Judge (south) Amjad Ali Bohio pronounced his verdict reserved after recording evidence and final arguments from both sides. All the three men were produced in court from the prison.

The judge wrote in his order that the prosecution had failed to prove its case against the accused persons and acquitted them by extending the benefit of the doubt.

Investigation officer admits he did not conduct fair probe and submitted a false charge sheet against the accused

The judge also directed the prison authorities to release them forthwith, if their custody was not required in any other case.

According to the prosecution, Zhang Qiaocheng and Zhong Shaowen were allegedly spotted in suspicious conditions around an ATM installed at an HBL branch on Abdullah Haroon Road for two days.

On Jan 10, 2018 FIA officials captured them at 8.15pm while trying to insert a skimming device into the said ATM by committing unauthorised access to the critical infrastructure information system with the intention to cause damage to the public property, it added.

In August, the court had indicted them for committing an offence punishable under Section 13 (electronic forgery) of the Prevention of Electronic Crime Act (PECA), 2016 read with Section 420 (cheating or dishonestly inducing delivery of property) of the Pakistan Penal Code.

Complainant Munawar Ali, manager at the bank’s branch, deposed that on a lead provided by the held accused, FIA officials also recovered 102 blank debit/credit cards, a union pay card, a 16 gigabytes memory card from their room in a guesthouse in Khayaban-i-Tanzeem, Defence Housing Authority. The investigators also recovered a magnetic strip reader (MSR) writer, other equipment and passports, he added.

The prosecution claimed that both the accused used the equipment to counterfeit the ATM cards/credit cards with dishonest intentions for unauthorised access to the information system or data to unauthorisedly copy or transmit the data, thus committing an offence punishable under sections 3 (unauthorised access to information system or data), 4 (unauthorised copying or transmission of data) of the PECA, 2016. The accused “also committed the offences of cyber terrorism and cheating to deceive any person punishable under sections 5 (interference with information system or data), 6 (unauthorised access to critical infrastructure information system or data), 7 (unauthorised copying or transmission of critical infrastructure data), 10(a) (cyber terrorism) and 14 (unauthorised use of identity information) of the PECA, 2016”, the prosecution added.

The complainant, Munawar Ali, further deposed that he lodged a complaint stating that over Rs10 million had been stolen from 559 of its customers’ accounts through bogus ATMs, credit and debit cards by the accused persons. The transactions had been traced to Indonesia, China and other countries, he added.

The witness testified that upon noticing suspicious activities of the foreign nationals, he sent two staffers — Salman Haider and the relations manager — to inquire about both men, who then tried to escape but the shopkeepers caught hold of them.

The complainant added that an ATM-skimming device and a spy camera were allegedly recovered from their possession. Both the suspects had arrived in Pakistan on Jan 2, 2018 on business visas.

The investigating officer, Sub-inspector Bilal Ahmed, filed an interim charge sheet against both the accused along with a forensic laboratory examination report, which concluded that the memory cards and the magnetic strip reader writer were being used for preparation and utilisation of the counterfeit ATM cards/credit cards.

However, the judge pointed out that none of the two staffers and shopkeepers were cited as witnesses by the investigating officer, adding that without evidence of the material witnesses the charge would become unfounded unless proved by corroborative evidence.

The judge noted that the prosecution also failed to produce the CCTV footages showing the accused roaming around and installing the skimming device in the ATM machine, as the IO deposed that the bank did not provide him information about the amount withdrawn from the bank by committing fraud through alleged devices.

The IO’s admission

The IO admitted that he did not do fair investigation and submitted a false charge sheet against the accused.

The investigator also admitted that he failed to collect the video recording shown to the accused, who after seeing the same had admitted their presence at the ATM machine, adding that in fact there was a CCTV camera recording of the bank, which he did not collect as evidence. The investigator also admitted to have failed to collect the fingerprints of the accused persons from the place of the occurrence of the alleged offence during investigation.

The judge noted that the prosecution neither examined witnesses — staffer Salman Haider and the relation manager — nor it collected CCTV footages, which could have been the best evidence to prove their presence and doing something with the ATM machine, was withheld by the prosecution without any plausible reason or justification.

The prosecutor pleaded to the court to convict the accused persons since they themselves had filed an application pleading guilty under Section 265-E of the criminal procedure code.

However, the judge said that the same applications were dismissed on July 3 after hearing arguments from the parties, but the prosecution failed to challenge the order so far. The judge further pointed out that the prosecution failed to cite as witnesses the employees of the guesthouse in whose presence the alleged recoveries were made from the room of the accused.

He also mentioned that the prosecution did not examine a single bank account holder, who was deprived of the amount lying in the bank of the complainant, adding that even the complainant and bank authorities failed to show withdrawal of any sort of money through ATM card within a couple of days of the alleged incident.

Denial of allegations

Earlier, in their statements, under Section 342 of the Criminal Procedure Code, both the detained Chinese nationals denied the allegations.

Their defence counsel, Ahmed Khoso, contended that the prosecution witnesses were officials of the bank and the FIA, whose evidence could not be relied upon without corroboration of the independent witnesses to convict his clients.

The counsel further contended that there was a violation of Section 103 of the CrPC, as the alleged recoveries were shown in the media during a press conference while unsealed property was sent to the chemical analyser after an inordinate delay, which created doubts in the prosecution’s case.

He added that there was no proper complaint filed in the present case in compliance of Section 31 of the CrPC, thus pleaded to acquit the accused.

However, FIA prosecutor Zakir Hussian argued that the prosecution witnesses fully implicated and connected the present accused persons with the commissioning of the offence and proved the charge against them beyond a shadow of a doubt. Thus, he pleaded to the court to punish the accused persons in accordance with the law.

The judge also acquitted a third Chinese national, Xu Zhuping in an identical case of skimming an ATM machine of the Muslim Commercial Bank branch in Adamjee Nagar, Tipu Sultan.

The judge noted that the prosecution case hinged upon two points: first that the accused was arrested by head-constable Babar Ali and alleged recovery of articles (skimming devices, etc) and Rs650,000 withdrawn by using forged ATM cards by managing the bank consumer data of the ATM account-holders without their consent/knowledge was made from the accused persons.

The court ruled out the confession allegedly made by both the accused before the police could not be relied upon to convict him since neither any interpreter was appointed by the FIA officials nor did the accused understand Urdu or English.

The judge ruled that during cross-examination FIA investigating officer Sub-inspector Hamid Wali admitted that no letter was issued to him by the FIA assistant director to conduct an inquiry into the present case and obtain custody of the relevant record and case property — including Rs60,000, passport, ID card of the accused, 11 ATM cards, a USB, a brown and a red card, a handbag, card holder and 1,784 yuans.

Secondly, the IO admitted that neither the word “withdrawal of amount” nor “forgery and fraud” were mentioned in the inquiry document, as alleged in the FIR. Not only this, but he also admitted that in the complaint it was not alleged that the present accused accessed the domain of the bank or he went into the ATM booth or tempered with it, the judge added.

IO Wali also admitted that no complaint was made by the MCB Bank Tipu Sultan branch that an amount from any account was fraudulently withdrawn or tempered with.

“Such admission prima facie suggests that since no complaint to the extent was made that, any fraudulent transaction was observed in the bank, therefore, prima facie from the evidence brought on record it appears that the IO has transgressed his authority and went beyond the mandate and formed opinion against the accused without incriminating evidence brought on the record,” the judge wrote.

He further ruled that the accused were arrested on Jan 14, 2018 at 06.30am by head-constable Babar Ali of the Bahadurabad police station and admittedly they were kept in custody for 35 hours without remand and subsequently handed over to the FIA authorities, whereby without cogent and corroborating piece of evidence, the case was challaned, whereby the accused faced agony of protracted trial being a Chinese national in custody, which leaves a bad impact on the process of investigation in our country.

The second prosecution witness, Mirza Kashif Iqbal, branch manager, deposed that from the CCTV footage he observed some fraudulent transactions were made, thus prepared a USB of the footage and submitted it to the FIA, but in an unsealed condition.

The manager deposed that the FIA head office asked him to go through the record and detect fraudulent transactions but no complaint was received from any customer regarding fraudulent transfer of money from their accounts.

The judge noted that the witness prima facie failed to point out any fraudulent transaction was made at any time from the ATM on one hand and, on the other hand, his entire evidence was silent on pointing out any fraudulent transaction made at any time by any accused or anybody else.

Another witness Kamran Mushir deposed that he went to the branch on Jan 14, 2018 and checked the ATM machine, but did not find any irregularity. The witness said that he also visited the ATM machine on Jan 15. He saw scroll and CCTV footages and found some transactions made in the early morning by the Chinese nationals, but they were not successful.

The judge ruled that it meant no successful transaction was made as per his evidence and in cross-examination his admission to the extent that as per the CCTV camera recording the accused remained inside the ATM booth for 56 seconds and as per the footage the accused did not temper with the ATM machine or any other equipment.

Published in Dawn, January 3rd, 2020