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Criminal Appeal No. 80 of 1977, decided on 6th February, 1983

--- S. 477-A-Prevention of Corruption Act (II of. 1947), S. 5 (2) Falsification of accounts-Prosecution by statements of prosecution witnesses examined before trial Court establishing its case beyond reasonable doubt against accused-Conviction maintained but sentence of imprisonment reduced to one already served in circum stances.

-- S. 477-A-Prevention of Corruption Act (11 of 1947), S. 5 (2) Pakistan Criminal Law Amendment Act (XL of 1958), S. 9---Falsification of accounts - Sentence - Record not showing that accused derived any pecuniary gain for himself from amount for which he was convicted under S. 477-A, P. P. C-Sentence of fine imposed appearing harsh and not justified in view of facts and circumstances of case-Sentence of fine reduced in interest of justice.-[Sentence].

1983 S C M R 36; P L D 1971 S C 541; Nuran v. Nura P L D 1975 S C 174 and P L D 1978 S C 10 ref.

Muhammad Hayat Junejo for Appellant.

Abbas Farooqui for the State.

Date of hearing: 27th January, 1983.

Appellant abovenamed, being aggrieved by judgment, dated 30th March, 1977 of the Special Judge (Central), Karachi, in Case No. 55/74 by which appellant has been convicted under section 477-A, P. P. C., read with section 5 (2) of the Prevention of Corruption Act and sentenced to suffer R. I. for 2 years and to pay a fine of Rs. 1,00,000 or in default of payment of fine to suffer further R. I. for one year has preferred the above appeal, on the following facts and grounds: -

2. According to prosecution, during the period between June, 1967 to October, 1969, the appellant was Manager in National Bank of Pakistan, Drigh Colony Branch. During the appellant's tenure as Manager of said branch the appellant received on 23rd July, 1969 Cheque No. 310545, dated 22nd July, 1969 for a sum of Rs. 2,75,000 issued by Garrison Engineer in favour of Messrs Rauf Construction Company, which was maintaining Current Account No. 362 in said branch. The amount of said cheque was to be collected from the State Bank of Pakistan and it was to be credited in current account of Messrs Rauf Construction Co. On the same date, the appellant realised the amount of said cheque from the State Bank of Pakistan but, instead of crediting Current Account No. 362 of P. W. Abdul Rauf with a sum of Rs. 2,75,000 the same was credited with a sum of Rs. 1,75,000 and in this way, a sum of Rs. 1,00,000 was short credited, although general account of N. B. P. was debited, on receipt of said cheque, with a sum of Rs. 2,75,000. The amount of Rs. 1,00,000 short credited was utilised by the appellant in allowing credit of Rs. 4,353.06 to Clearing Adjustment Account of his branch under credit slip Exh. 5 and in allow ing credit of Rs. 5,679.19 to Current Account No. 307 under credit slip Exh. 8 and in allowing credit of Rs. 81,730 to general account of the National Bank of Pakistan under credit slip Exh. 9 and in allowing credit of Rs. 8,737.75 to general account of the National Bank of Pakistan under credit slip Exh. 6. It was alleged that in providing said unauthorised credits, the appellant, in his capacity as Manager of said branch, prepared and passed the vouchers Exhs. 5, 6, 8 and 9. It was further alleged, that the debit voucher Exh. 4 and the credit slips Exhs. 5 to 9 were also bearing signatures of the said appellant. It was further alleged that on 9th May, 1969 the appellant had raised a debt of Rs. 81,730 against the general account of the National Bank of Pakistan and utilised said amount in allowing unauthorised and uncovered overdrafts to his favourite customers. It was further alleged, that the amount of Rs. 81,730 debited by the appellant on 9th May, 1969 against general account of N. B. P. was credited in the same account on 23rd July, 1979 although the same belonged to Current Account No. 362 of Abdul Rauf. The appellant was alleged to have falsified the account of the Bank and to have made unauthorised credit entries on the basis of credit slips Exhs. 5 to 9. It was further alleged that the appellant withdraw amount of Rs. 6,000 from account of Rafiq Ahmad, who was allowed overdraft of Rs. 50,000 in his current account with Drigh Colony Branch of N. B. P. It was further alleged, that posting of credit vouchers Exhs. 5 to 9 were authenticated by the appellant under his initials although said credits were unauthorised. It was further alleged, that the appellant had no authority to short credit Rs. 1,00,000 belonging to the account of Messrs Rauf Construction Company and to distribute said amount to 4 different accounts. All this came to light during investigation of F. I. R. No. 35/71 by Inspector Muhammad Maqsood of P. S. P. E. He, therefore, lodged present F. I: R. No. 4/74 against the appellant. The case was subsequently investigated by Inspector Muhammad Zameer Khan of P. S. P. E. who recorded statements and collected various documents, under seizure memo. Exh. 33. On completion of investigation, the case was challaned on 30th November, 1974.

3. Under a letter, dated 1st August, 1974 the learned trial Court moved the Government of Pakistan for sanction to prosecute the appellant. Requisite sanction was neither received nor refused within 60 days of the receipt of this letter in the Ministry of Interior. Requisite sanction was, therefore, deemed to have been accorded.

4. The substance of accusation Exh. 2 containing prosecution allega tions was read over and explained to the appellant, who pleaded not guilty.

5. Prosecution examined complainant Muhammad Maqsood Exh. 30. and P. Ws. Abdul Ghaffar Exh. 3, Muhammad Habibullah Exh. 17, Ansar Ahmad Exh. 18, Rafiq Ahmed Exh. 19, Abdul Rauf Exh. 20, Abu Ahmed Exh. 21, Bashir Ahmad Exh. 23, Muhammad Moid Exh. 24, Muhammad Hanif Exh. 28 and Muhammad Zameer Khan Exh. 32. Pro secution was closed under statement Exh. 35.

6: In his statement Exh. 36, the appellant admitted, that during the period between June, 1967 to October, 1969 he was Manager of the National Bank of Pakistan, Drigh Colony Branch, Karachi and was as such a public servant. The appellant admitted that on 23rd July, 1969 he as Manager of said branch received Cheque No. 362 in his branch. The appellant admitted that the said Cheque was deposited in said account of P. W. Abdul Rauf for collection of the amount of said cheque from the State Bank of Pakistan and for crediting said Current Account No. 362 with the amount of said cheque from the State Bank of Pakistan and for crediting said Current Account No. 362, with the amount of said cheque. The Appel lant admitted that on same date, the amount of said cheque was realised by his branch from the State Bank of Pakistan. The appellant could not recollect that a sum of Rs. 1,75,000 only was credited in account of Abdul Rauf as proceeds of the said cheque. The appellant, however, admitted that on receiving the said cheque, he debited general account of the National Bank of Pakistan under Debit voucher Exh. 4 with a sum of Rs. 2,75,000 but credited Account No 362 with a sum of Rs. 1,75,000 only under credit slip Exh. 7. He admitted his -signatures on debit voucher Exh. 4 and on credit slip Exh. 7. The appellant denied having short credited a sum of Rs. 1,00,000 in current Account No. 362. The appellant took plea, that said amount of Rs. 1,00,000 was to be credited in various accounts under instructions of P. W. Abdul Rauf, the holder of Current Account No. 362. The appellant admitted his signatures on the credit slips Exhs. 5, 6, 8 and 9. The appellant admitted, that he prepared and passed the vouchers Exhs. 5, 6, 8 and 9 but at the same time stated that the same were not unauthorised credits. Vouchers Exhs. 5 to 9 were written in the handwriting of the appellant as admitted by the appellant. Remaining allegations were denied by the appellant. The appellant admitted having authenticated posting of credit voucher Exh. 5 in the ledger sheet copy Exh. 11, but he denied having authenticated posting of credit voucher Exh. 6 in the ledger sheet copy Exh. 12. The appellant admitted having authenticated posting of voucher Exh. 8 into the ledger sheet Exh. 14 relating to Current Account No. 307, but added that he made such authentication as Manager. In respect of the posting of Credit Voucher Exh. 9 into clear cash book at folio No. 118 copy Exh. 15, the appel lant could not say if such posting was authenticated by him. The appel lant explained that the Debit Voucher Exh. 9 was not unauthorised, but it was a reversing entry. The appellant admitted having authenticated posting of credit voucher Exh. 7 in the ledger sheet copy Exh. 13 relating to current account No. 362. The appellant added, that the copy Exh. 16 of clearing Register does not give clear picture of the original register. The appellant added that under an authority given to him verbally by Ch. Abdul Rauf, Proprietor of Messrs Rauf Construction Co., he was com petent to distribute in four different accounts a sum of Rs. 1,00,000 belong ing to said company. That Abdul Rauf had never complained about said amount of Rs. 1,00,000 from the Bank. The appellant added, that P. Ws. Abdul Ghaffar and Habibullah, being Bank employees, had to support the prosecution and moreover Abdul Ghaffar was interested in becom ing Manager of Drigh Colony Branch of said Bank. The remaining witnesses had not deposed against him.

7. The appellant did not wish to enter the witness-box in his defence and did not lead any defence evidence.

8. The learned trial Court taking into consideration the evidence adduced before it, convicted the appellant as hereinbefore mentioned and consequently appellant has filed the above appeal, on the grounds mention ed in memo. of appeal.

9. The learned Advocate for the appellant at the outset submitted, that he was not pressing the above appeal on merits, but only as far as sentence awarded to the appellant is concerned, as Bank suffered no loss at all. In support of this contention, the learned Advocate for the appel lant relied upon case reported in 1983 S C M R 36.

10. The learned Advocate for the State, on the other hand submitted, that he was supporting the impugned judgment on merits, as well as in respect of the sentence awarded to the appellant on the basis of cases reported in P L D 1971 S C 541, Nuran v. Nura (1) and P L D 1978 S C 10.

11. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the record and proceedings of the learned trial Court as well as through the impugned judg ment and cases cited by the learned Advocates before me.

12. 1 find that the prosecution by the statements of the prosecution witnesses examined before the learned trial Court has established its case beyond reasonable doubt against the appellant and this fact was rightly conceded by the learned Advocate for the appellant. 1n view of this I find no merits in the above appeal, as far as conviction of the appellant is concerned.

13. However, the question, which requires consideration is, whether appellant after the lapse of nearly 5 years be sent back to custody to serve out he remaining sentence awarded to him. In this connection the learned Advocate for the appellant has relied upon case reported in 1983 S C M R 36 and submitted, that the ends of justice will be met, if the sentence awarded to the appellant is reduced to the period already undergone by him. However, the learned Advocate for the State on the other hand submitted, that in view of the cases reported in P L D 1971 S C 541, Nuran v. Nura (P L D 1975 9 C 174) and P L D 1978 S C 10, that merely because 51 years have elapsed in hearing of the above appeal, it is not necessary, that the appellant should not be remanded back to custody.

14. The second contention of the learned Advocate for the appellant was, that the fine of Rs. 1,00,000 imposed on the appellant is rather harsh, specially in view of the fact, that there is nothing on record to show, that the appellant personally misappropriated sum of Rs. 1,00,000 and derived any pecuniary advantage from the said sum, so as to attract the provi sions of section 9 of the Pakistan Criminal Law Amendment Act, 1958 to warrant the said fine. I have carefully considered the above submissions of the learned Advocate for the appellant. There is nothing on record to show, that appellant derived any pecuniary gain for himself, from the said amount of Rs. 1,00,000 for which he has been convicted under section 477-A, P. P. C. and as such it was not obligatory on the part of the learned trial Court to impose the fine of the said amount on him. In view of this, I consider, that the fine of Rs. 1.00,000 imposed on the appellant, under the impression, that provisions of section 9 of the Pakistan Criminal Law Amendment Act, 1958 provides for such fine being imposed, which is otherwise harsh, was not justified. Keeping in view the facts and circumstances of this case the interest of justice will be fully met, if the fine imposed on the appellant is also reduced from Rs. 1,00,000 to Rs. 25,000 and in default of payment of such fine to suffer further R. I. for period of one year.

15. Accordingly in view of my above conclusions, while dismissing the above appeal, on merits, I reduce the sentence of imprisonment awarded to the appellant from a period of one year, to the period already undergone 'by him and reduce the fine of Rs. 1,00,000 to Rs. 25,000 only (rupees twenty-five thousand only) imposed on the appellant and in default of payment of said fine to suffer further R. I. for 3 months. However, I grant two weeks time from today to the appellant to pay the fine imposed on him, failing which the learned trial Court is directed to issue non-bailable warrants for the arrest of the appellant and remand him to judicial custody to serve out sentence in lieu of fine.

16. The above appeal stands disposed off in the terms of the above appeal.

M. Y. H. Order accordingly.

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