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Criminal Appeals Nos. 28 and 37 of 19,86, decided on 8th May, 1986:

‑‑‑5. 10(1)‑‑Penal Code (XLV of 1860), S.109/403/471‑‑Misappropria tion‑‑Accused 'D' opened current account in bank‑‑Accused 'R' managed to send false and bogus telegraphic transfer advices, crediting to said account‑‑Accused 'D' withdrawing amount by cheques from his account‑ Alleged T.Ts. found to have not been received in Test Key Gell department‑‑Credit vouchers prepared and signed by accused 'R'‑ Amount credited to account of accused 'D'‑‑Offence committed by accused 'D', held, would fall under 5.420, P.P.C. and not under S. 403/471, P. P: E ‑.similarly offence committed by accused 'R' would fall under 5.471, P.P.C. instead of S. 109/403/471, P.P.C.‑‑Conviction and sentences altered accordingly.

Muhammad Hayat Junejo and Shamshad Alain Lari for Appellant.

Anwar Mansoor for the State.

Dates of hearing: 23rd and 24th April, 1986.

These two appeals are inter‑connected as they are directed against a common judgment dated 6‑2‑1986 passed by the Presiding Officer, Special Court Banks, Karachi in Case No. 273 of 1984, therefore, we intend to dispose of the same by this common judgment.

Appellant Din Muhammad has been convicted by the Presiding Officer under' section 471, P.P.C. and under section 403, P.P.C. and sentenced to suffer R.I. for two years on both counts and also to pay fine of rupees fourteen lacs or in default of payment of fine to suffer further R.I. for six months. The Presiding Officer also convicted appellant Mirza Rashiduddin under section 471, P.P.C. and under section 403/109, P.P.C. and' sentenced him to suffer R.I. for two years on both the counts and to pay fine of Rs. fourteen lacs or in default to suffer further R.I. for six months.

The brief facts of the case are that the appellants were challaned alongwith Anis Hyder by F.I.A. on 20‑9‑1984 on a written complaint dated 5‑9‑1984 of United Bank Ltd. I.I. Chundrigar Road Branch, Karachi on the allegation that appellant Din Muhammad had opened an Account No. 18851 on 24‑7‑1984 in the name of "Star Enterprise" and deposited Rs. 1,000. The above‑named two appellants and Anis Hyder hatched a plan to defraud U.B.L. I.I. Chundrigar Road Branch, Karachi and in pursuance of the said plan and common intention managed to send false and bogus T.T. advices for crediting a total amount of Rs. 17,00,000 in above Account No. 18851 of appellant Din Muhammad between ' 4‑8‑1984 to 4‑9‑1984 in the said branch and thereafter in pursuance o the said conspiracy and common intention appellant Din Muhammad withdrew in all a sum of Rs. 6,60,000 by three cheques from 5‑8‑198 to 23‑8‑1984 from his above‑said account and criminally misappropriated the said amount and thus caused a wrongful loss to U.B.L.I.I. Chundrigar Road, Branch, Karachi. Further the T.T. advices prepared by them were false documents to their knowledge but were used genuine and were forwarded to the department of current deposit account of appellant Din Muhammad .in furtherance of common intention of all of them. The charge was framed under sections 408/471 read with section 34, P.P.C. on 31‑10‑1984 and the above‑named two appellants and co‑accused Anis Hyder pleaded not guilty.

In support of the case prosecution examined P.W.1 Ali Mutahir Zaidi who was working at the relevant time as V.P., U.B.L. Branch. He stated that on 6‑9‑1984 he was made Mashir by police in respect of the house search of appellant Din Muhammad, one Toyota Car bearing No. 181370, V.C.T. and one Colour Television were recovered from his house. Police seized all the articles under Mashirnama (Exh. 2/A). P.W.2 Muhammad Samiullah who was working at the relevant time as A.V.P. U.B.L., I.I. Chundrigar Road Branch. He stated that appellant Mirza Rashiduddin was working as G‑2 Officer in T.T. Department and accused Anis Hyder was working as typist. He also stated that Messrs Star Enterprises had opened Account No, 18851 on 24‑7‑1984 in the branch. Tha; account was‑ introduced by Syed Ahmed Ali who was working as A.V.P. That account was approved by him for opening and he identified his signature on account opening form (Exh. 3/A). He further stated that three T.Ts. were credited, that is T.T. for Rs. 2,00,000 dated 4‑8‑1984 (Exh. 3/C), and the amount was given by (Exh. C/1), T.T. Rs..5,00,000 dated 20‑8‑1984 (Exh. 3/D). The credit of this amount was liven by Exh. 3/D‑1). T.T. for Rs. 10,00,000 dated 4‑9‑1984 (Exh. 3/E). The credit of this amount was given Exh. (3/E‑1). He further stated that Exh. 3/C was prepared and signed by appellant Mirza Rashiduddin and countersigned by Badarul Hasnain. He gave the details of the preparation of debitting bills and credit vouchers by which, the amount in respect of the above‑named T.Ts. were credited in the account of Star Enterprises. P.W.3 Badarul Hasnain who was working as Officer C‑1, U.B.L. I.I. Chundrigar Road Branch has stated that Exh. 3/C to 3/C‑2, 3/D to 3/D‑3 and 3/E to 3/E‑3 did not bear his genuine signature. He further stated that the signatures alleged to be of appellant Mirza Rashiduddin on those vouchers P.W.4 Muhammad Irfan who was working at I.I. Chundrigar Road Branch and he was Incharge of 'issuing cheque books and account opening forms knew appellant Din Muhammad and stated that he had opened a current account on 24‑7‑1984 and he identified his signature on Exh. 3/A and also admitted the signature of appellant Din Muhammad on this exhibit. He further stated that he issued cheque book after verifying appellants' signatures from the account opening form. He also identified signature on Exh. 3/J which was made in his presence. P.W.5 Syed Ahmed Ali was working as A.V.P. He stated that appellant Din Muhammad is working near the house of his sister.‑He had come to him in July, 1984 for introducing his account. He introduced him and identified his signature on the form. P.W.6 Muhammad Hanif was working as Cashier in the concerned branch. He stated that he knew appellant Din Muhammad. He brought a cheque" for Rs. 1,50,000 for encashment. P.W.6 encashed the cheque after obtaining second signature on Exh. 3/F. P.W.7. Muhammad Yusuf was working as Cashier at the relevant time. He stated that he had made payment of 'cheques bearing Exh. No. 3/F to 3/F‑3 at the counter appellant Din Muhammad. He also obtained second signature of appellant Din Muhammad on these cheques. P.W.8 Muhammad Sadiq was working as Manager Banking U.B.L. He identified his signature on Exh. 3/ C‑3. This voucher was sent to him duly signed by appellant Mirza Rashiduddin and Badrul Hasnain. He also stated that vouchers and‑documents which are received from Test Key Cell for preparation of debit or credit like voucher Exh. 3/C‑3 were received by appellant Rashiduddin and it was his duty to check these documents regarding verification of test key and other particulars before preparing such vouchers and then after signing and obtaining signature of other officer he has to forward such voucher to him as Manager for authentication: He further stated that Exh. 3/D‑3, 3/E‑3 are credit vouchers which bear the signature of appellant Rashiduddin. He identified his signature as well as Mirza Rashiduddin on all those exhibits. The witness denied the suggestion that these exhibits did not bear the signature of appellant Rashiduddin. P.W.9 Ozair Ahmed Siddiqui who was working as Officer G‑2 in UBL, stated that alleged T.Ts. (Exhs. 3/C‑3, 3/D‑3 and 3/E‑3) were not received by test key cell. He produced the relevant inward register and outward register and after seeing them stated that the alleged T.Ts. were not received by the Test Key Cell. P.W.10 Lal Muhammad who was working as Officer G‑2 stated that cheques 3/1. 2 and 3 belonged to Star Enterprises and he had dealt with those three cheques. He also stated that he obtained signature of the payee on these cheques. P.W.11 Nazir Ahmad was working as A . S.I . in C.I.A. He stated that he had taken appellant Mirza Rashiduddin for taking his specimen writing and signature before the Magistrate. P.W.12 Yamin was Inspector who investigated the case. P.W.13 lqbal Ahmed acted as Mashir.

After the prosecution closed its side the appellants were examined under section 342, Cr.P.C. but they denied all the allegations. P.W.1 Najmul Hasnain was examined as defence witness. He stated that he was working at Inland Bills and Remittance Branch. He stated that he received Exh. 3/H D.W.1 Shafiq'Ahmad was examined by the appellant. Din Muhammad who stated that appellant Din Muhammad was with him at Mirpurkhas from 18‑7‑1984 upto 2‑8‑1984 Appellant Mirza Rashiduddin examined D.W.1 S. Iqbal Habib who was working as Senior V.P. He stated that the responsibility is that of the first Officer to verify signature on T . T / A . D .

The learned Presiding Officer after analysing the evidence convicted and sentenced the appellants as stated above.

Mr. Muhammad Hayat Junejo, the learned counsel for the appellant has assailed the judgment of the learned Presiding Officer on the ground that the appellants have been falsely implicated. The learned, counsel for the appellants further submitted that the officers of the Bank them selves committed misappropriation of the amount by opening the current account.

Mr. Shamshad Alam Lari, the learned counsel for the appellant Mirza Rashiduddin has contended that the appellant is innocent and falsely implicated. His submission is that appellant's handwriting and signature were not proved on the credit vouchers.

Mr. Anwar Mansoor Ahmed Khan, the learned counsel for the state has supported the conviction of the appellants.

We have carefully considered the above submissions made by the learned counsel before us and have gone through the impugned judgment, the statements of the prosecution witnesses examined before the learned Presiding Officer.

Prosecution case against the appellant‑rests on the evidence of P.W.2 Samiullah Ghutala, P.W.4 Muhammad Irfan, P.W.5 Syed Ahmed Ali, P.W.6 Muhammad Hanif, P.W.7 Muhammad Yousuf and P.W.10 Lal Muhammad as stated before in earlier part of this judgment.

P.W.5 Syed Ahmed Ali in his deposition before the learned Presiding Officer stated that appellant Din Muhammad is the neighbour of his sister in North Nazimabad. Appellant had come to him in July, 1984 for introducing his account in I.I. Chundrigar Road Branch. He saw Exh. 3/A the account opening form and identified his signature thereon as introducer. After opening of the account he was contacted by Senior Vice‑President of U.B.L. who informed him that the fraud was committed in the account of Din Muhammad. He took the Police party to the house of appellant Din Muhammad from where appellant was arrested by Police.

P.W.4 Muhammad Irfan has corroborated the statement of P.W.5 to the extent of opening of the account. He stated in his deposition that appellant Din Muhammad made an application for issuance of cheque book in respect of his C.D. Account No. 18851 and after verifying his signature the witness issued cheque book. The witness saw cheques Exh. 3/F, F‑1, F‑2 and F‑3 and stated that these cheques were issued from the cheque book. P.W.2 Samiullah has corroborated statement of P.W.5 Syed Ahmed Ali. This witness produced account opening form Exh. 3/A. The witness stated before the learned Presiding Officer that three T.Ts were credited in account of the appellant Din Muhammad who withdrew Rs. 6,70,000 by four cheques which he produced as Exhs. 3/F, 3/F‑1, 3/F‑2 and 3/F‑3.

P.W.6 Muhammad Hanif has corroborated the statements of P.Ws. 2, 4, 5, 7 and 10. He stated. that he knew appellant Din Muhammad as he is an account‑holder of their branch. He also stated that he obtained the second signature of appellant Din Muhammad on cheque Exh. 3/F.

P.W.7 Muhammad Yusuf has corroborated ‑the statement of the P*Ws. He stated in his deposition that he paid amounts of cheques having Exhs. Nos. 3/F to 3/F‑3 after .taking his second signature on those cheques.

P.W.10 Lal Muhammad has also corroborated the statement of the PWs. to the extent that appellant Din Muhammad opened the account in the concerned branch. A sum of rupees seventeen lacs was deposited in his account and he withdrew Rs. 6,70,000 from that account.

The appellant produced D.W.1 Shafiq Ahmed. He stated ir, his deposition before the learned Presiding Officer that he came to Karachi on 18‑7‑1984 and appellant Din Muhammad with him to Mirpurkhas and remained with him upto 2nd August, 1984.

Taking into consideration the evidence of the above‑named prosecution witnesses, in our opinion, prosecution has established the fact that the appellant is neighbour of sister of P.W.5 Syed Ahmed Ali who introduced him. The appellant opened a C.D. account. A sum of Rs. 17,00,000 was credited in his account. This amount was credited on account of bogus T.Ts. The appellant withdrew a sum of Rs. 6,70,000 by three cheques. The learned counsel for the State states that the. appellant misappropriated and cheated the Bank to the tune of Rs.

We have carefully considered these submissions of the learned counsel and have gone through the evidence of the prosecution witnesses. It is clear from the evidence on record that the appellant Din Muhammad had an account in. the Bank. A sum of rupees seventeen lacs was credited in his account from bogus T.Ts. He withdrew a sum‑ of Rs. 6,70,000 from the above‑mentioned account.

Prosecution case against appellant Mirza Rashiduddin rests on the evidence of P.W.8 Muhammad Sadiq and P.W.9 Ozair Ahmed Siddiqui.

P.W.3 Badrul Hasnain in his deposition before the learned Presiding Officer stated that Exhs. 3/C to 3/C‑2, 3/D to 3/D‑3 and 3/E to 3/E‑3 did not bear his genuine signatures. He stated that vouchers in case of telegraphic transfer are made after the intimation from Test Key Department but such intimation was to be received by appellant Mirza Rashiduddin. He also stated that signatures alleged to be of appellant Rashiduddin on these vouchers are similar to his signatures but he could not say that these are his signatures.

P.W.8 Muhammad Sadiq has corroborated the statement of P.W.3. He stated in his deposition that appellant Rashiduddin was incharge of T:R. Section. The appellant and witness worked together for 4. or 5 years in this bank department' because of this he became familiar with his signatures. He also stated that Exh. 3/C‑3 a credit voucher was prepared on the basis of which a sum of rupees two lacs was alleged to have been l received by T . T . from Multan in Account No. 18851. He identified his signatures on the above‑named exhibit He stated that he had put ‑ his signatures after the voucher was sent to him duly signed by appellant Rashiduddin. He also identified Exh. 3/D, 3/E‑3 which are credit vouchers as they were already signed by appellant Rashiduddin. This witness also denied the suggestion in cross‑examination that none of these vouchers contain signatures of appellant Mirza Rashiduddin.

P.W.9 Ozair Ahmad Siddiqui stated in his deposition that alleged T.Ts. (Exhs. 3/C‑3, 3/D‑3 and 3/E) were not received by the Test Key Cell. He produced the inward register as well as outward register. He stated that there is no mention of these T.Ts. in both the registers.

Taking into consideration the evidence of the above‑mentione witnesses, in our opinion prosecution has established the fact that th alleged T.Ts were not received by the Test Key Cell The credi E vouchers were prepared in the department and bear the signatures o the appellant Mirxa Rashiduddin. The learned counsel for the appellant has submitted that the signatures on 4hese vouchers were not proved. His submission is that appellant's signatures were taken by A . C . M. and the same were sent to handwriting expert. The report of the expert was 'not produced ‑as the same was against the State.

We have carefully considered these submissions of the learned counsel and have gone through the evidence of P.Ws. 8 and 9. It is clear from the evidence on record that the alleged T.Ts. were not received by the Test Key Cell department. The credit vouchers were signed by appellant Rashiduddin as first Officer and the amount thereo C was credited in Account No. 18851 of Din Muhammad.

In our opinion the offence committed by appellant Din Muhamma falls under section 420, P.P.C. and not under sections 471 and 403,D P.P.C. as held by the learned Presiding Officer. In view of this, we would alter the conviction of the appellant from one tinder section 471/403, P.P.C. to one under section 420, P.P.C. and reduce hi sentence from two years, R.I. to one year R.I. and would maintain the fine imposed on him and in case of default, he would suffer six months, R.I. We would direct that car, colour television and VCR be returned to his wife as the prosecution has not led any evidence that these items were purchased from the amounts withdrawn by him.

In our opinion the offence committed by appellant Mirza Rashiduddir also does not fall under sections 471 and 403/109, P.P.C. but only under section 471, P.P.C. and we reduce his sentence fro twc years, R.1. to one year R.I'. but would maintain the fine imposed on him and ‑in case of default, to suffer further R.I. for six months. The above appeals are dismissed with the above modifications in respect of conviction and sentence awarded to the appellants. However, the appellants will be entitled to the benefit of section 382(B) of the Code of Criminal Procedure.

S.A Order accordingly.

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