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,riminal Appeal No.159 of 1985, decided on 24th May 1986.

‑‑‑Ss. 408 t 477‑A‑‑Sentence‑‑Reduction‑‑Accused, a bank manager, defrauding bank and misappropriating amount by granting loans to non‑existing/fictitious agriculturists;, by not crediting amounts received from various customers in their respective accounts; by withdrawing imounts from various account‑holder's accounts after forging signatures of account‑holders and/or by means of bogus debit vouchers‑‑Prosecution witness identifying signatures of accused on documents which had been produced by prosecution to establish guilt of accused‑‑Accused had not challenged statements of witnesses‑‑Account‑holders supporting prosecution allegations against accuse.‑‑Accused admitting his guilt before a prosecution witness and giving statement in which he stated :hat he misappropriated bank amounts‑‑Details of embezzlement given by him‑‑No motive existing to falsely implicate accused‑‑Guilt of because proved to hilt‑‑No infirmity pointed out in prosecution case by defence counsel‑.‑Accused praying for reduction of sentence as a big portion of embezzled amount had been deposited by him and only a small portion has embezzled but maximum punishment had been awarded to accused by Trial Court‑‑High Court while maintaining conviction reducing sentence of accused keeping in view facts of case.

‑‑‑Ss.408 6 477‑A‑‑Sentence‑‑Accused, held, would be dealt with in matter of punishment in accordance with la n force at time of commission of offence.‑‑[ Sentence].

Muhammad Dawood v. The State P L D 1985 Kar. 730rel.

Allah Dino G. Memon for Appellant.

S. Murtaza Hussain for the State.

Date of hearing: 15th May, 1986.

The appellant Shafi Muhammad find acquitted accused Gul Hassan were tried by the Presiding officer, special Court of Sind (Banks) Karachi who convicted the appellant finder sections 408, P.P.C. and 477‑A, P.P.C. and sentenced him to four years R.I. and fine of rupees ten lacs under section 408, P.P.C. in default of payment of fine to suffer R.I. for one year. Under section 477‑A, P.P.C. for falsifying the account of P.W.8 Muhammad Ibrahim and P.W.5 Girdhari Lal he was sentenced to suffer R.I. for five years and to pay fine of rupees one lac in default to suffer further R.I. for six months.

2. P.W.1 Muhammad Umer lodged complaint Exh.2/A against the accused persons. After usual investigation they were sent to face their trial. The learned trial Judge framed charge under sections 408, 468, 471 and 477‑A, P.P.C. read with section 34, P.P.C. Both the accused denied the allegations. It is alleged that appellant Shafi Muhammad was Manager whereas accused Gul Hassan was Cashier from 1‑9‑1981 to 13‑9‑1982 and both of them hatched a plan to defraud the said branch of the Muslim Commercial Bank and in pursuance of the said plan and common intention misappropriated a total amount of Rs.6,17,209.24 between 5‑1‑1982 and 31‑8‑1982 by granting loans to non‑existing agriculturists, by not crediting amounts received from various customers in their respective accounts, by withdrawing amounts from various account‑holders accounts after forging the signatures of the account holders and/or by means of bogus debit vouchers.

3. The prosecution in order to bring home the charge examined P.W.1 Muhammad Umer, P.W.2 Zorawar Khan, P.W.3 Muhammad Islam, P.W.4 Abdul Latif, P.W.5 Girdhari Lal, P.W.6 Shaukat Ali, P.W.7 Saeed Muhammad Khan, P.W.8 Muhammad Ibrahim and P.W.9 Ahmed Khan. The accused in their statements denied all the allegations.

The learned trial Judge framed the following seven issues:‑

(1) Whether accused Muhammad Shafi was the Manager, whereas accused Gul Hassan was the Cashier at Dhoronaro branch of M . C . B . from 1‑9‑1981 till September 1982

(2) Whether both the accused hatched a plan to defraud Dharonaro Branch of M . C . B . and in pursuance of the said plan and in furtherance of their common intention whether accused received Rs.2,18,000 in all from various account‑holders of the said branch for which accused Muhammad Shafi gave counter‑foils of pay in slips duly signed and sealed by him to the .;said account‑holders, but failed to deposit said amounts in the respective accounts of the account‑holders and committed criminal breach of trust in respect thereof in furtherance of their common intention. If yes what is the effect

(3) Whether both the accused in collusion with each other withdrew a sum of Rs.60,400 by two debit vouchers for making refunds payments to intending Hajis, but failed to make such payments and committed criminal breach of trust in respect of the said amount in furtherance of their common intention

(4) Whether accused in collusion with each other and in furtherance of their common intention credited a sum of Rs.2,95,000 in Account No.317 standing in the name of Muhammad Ibrahim and Rs.25,000 in Account No.331 standing in the name of Girdhari Lal by way of Agricultural Loans alleged to have been given to 32 growers and thereafter withdrew the said amount by forged cheques knowing them to be forged as genuine by passing them for payment and paid the amounts of the said 9 cheques to the alleged payees and thus committed criminal breach of trust in respect of the said amounts

(5) Did accused in collusion with each other and in furtherance of their common intention. Un-authorised withdrew a total amount of Rs.59, 957.24 from six accounts and committed criminal breach of trust in respect of the said amount in furtherance of their common intention

(6) Did accused Shafi Muhammad voluntarily admitted his guilt vide Exh.2/G and refunded a sum of Rs.5,53,625 towards the total amount Criminally misappropriated by both the accused persons vide credit voucher Exh.2/G‑2 to 2/G‑9

(7) What offence if any each of the accused was committed

After analysing the evidence he acquitted co‑accused Gul Hassan and convicted the appellant as stated above.

4. P.W.1 Muhammad Umer is the principal witness in this case. He has deposed that the accused in collaboration with each other defrauded ‑the bank‑of Rs.6,17 209.24 by various means. They did not deposit the amounts received from customers in their accounts though such customers were issued counter‑foils of pay in slips by which they had deposited the said amount; by not returning Hai deposits by the intending Hajis though said amount was withdrawn from the bank; by advancing agricultural loans to fictitious persons who did not exist. He produced the counter‑foil Exh.2/B by which P.W. Jummo deposited Rs.3,000 in his Saving Account No.68. He also produced Exh.8/A the counter‑foil by which P.W. Saeed Muhammad deposited Rs.2,000 in his Account No‑19. He also produced counter‑foil Exh.2/B‑1 in respect of Account No.282 of P.W. Abdul Latif. He also produced counter‑foil for Rs.25,000 by which P.W. Muhammad Hassan deposited said amount in his Account No.251. He also produced two counter‑foils in respect of Rs.4,000 each by . which P.W. Muhammad Islam deposited said amounts in his Account No.140 as Exh.2/13‑3 and 2/B‑4. He also produced counter‑foils in respect of Rs.50,000 each by which Hyderi Cotton Factory deposited these two amounts in their Current Account No.146 as Exh.2/13‑5 and 2/B‑6. He also produced counter‑foil Exh.2/B‑7 in respect of Rs,15,000 deposited by Lakhan Mal in his. Account No.74 The accused did not issue any receipt for amount of Rs.25,000 and Rs.13,000 deposited by Haji Moula Bux and Jumo in their respective accounts. He also produced debit voucher for Rs.43,500 for refund of money to three intending Hajis. He further stated that both the accused opened a fictitious Account No.317 in the name of Muhammad Ibrahim and Account No.331 in the name of Girdhari Lal. Account No.311 was introduced by accused Gul Hassan and signatures of the account‑holder on account opening form and specimen signature card was attested by accused Shafi Muhammad whereas Account No.317 was introduced as well as signature of the account‑holder on account opening form and specimen signature card was verified by accused Shafi Muhammad. He produced account opening form in respect of Account No‑317 and specimen signature card as Exh.2/D and 2/D‑1 and in respect of Account No.331 as Exh.2/D‑3 and 2/D‑4. He had identified the signatures of appellant Shafi Muhammad on all the documents and exhibits referred above. This witness further stated that in Account No.317.accused persons deposited Rs.30,000 on 14‑6‑1982, Rs.5‑0,000 on 24‑6‑1982, Rs, 1,00 000 on 8‑7‑1982, Rs.20,000 on 17‑7‑1982, Rs.50,000 on 19‑7‑1982 Rs.25,000 on 29 7‑19,32 and Rs.20,600 on 3‑8‑1982 by way of agricultural loan alleged to have been advanced to the account‑holder Muhammad Ibrahim vide credit voucher Exh.2/D‑5 to 2/D‑11 and debit voucher by which banks Agricultural import loan account was debited as Exh.2/D‑12 to 2/D‑18. Amount of Rs.2,95,600 deposited in this Account No.317 were withdrawn by seven cheque in the fictitious name and under the forged signature of alleged account‑holder Muhammad Ibrahim. He produced Exh.2/D‑19 to 2/D ‑25. These seven cheques were passed i.e. cancelled for payments by ' accused Shafi Muhammad as Manager. Similarly in fictitious Account No.331 in the name of Girdhari Lal a sum of Rs.25,000 was credited by credit voucher Exh.2/D‑26. This amount was debited to agricultural loan vide Exh.2/D‑17. A sum of Rs.47,000 were withdrawn by accused persons from fictitious Account No.331 by two cheques which were produced as Exh.2/D‑27 and 2/D‑28. Both these cheques were passed for payment by accused Shafi Muhammad as Manager and payment was made by accused Gul Hassan as Cashier. No payment of any amount was made to 32 growers who were also factitious persons and against whom the loan had been received and shown The accused also debited in all sum Rs.59,957.24 between October, 1981 and August, 1982 from six accounts of Mr. Islam, Wadero Fateh Muhammad Qasim Ali, Muhammad Suleman, Abdul Latif, a sum of Rs.3,000, Rs.1,000 and Rs.3,000 were debited to Account., No.146 instead of Account No.46 The witness produced Exhs.2/E‑5, 2/E‑6 and 2/E‑7. The witness also produced Exh.Z/G the confession made by accused Shafi Muhammad before this witness.

5. P.W.3 Muhammad Islam an accouht‑holder has deposed that he deposited Rs.22,000 in his Account No 140 on various dates for which he had received counterfoil of pay in slips and amounts had been paid personally to accused Shafi Muhammad who gave him these counter foils. He has admitted his signatures on Exh.2/E.

6. Account‑holder P.W.4 Abdul Latif has deposed that he has deposited Rs.7,000 and paid the amount in cash to accused Shafi Muhammad who gave him counterfoil of the pay in slip duly signed. He wanted to withdraw the money from the account when he came to know that the amount was not available in his account.

7. P. W . 5 Girdhgri Lal has deposed that he has not deposited Rs.25 000 in his Account N'o.381. Since this amount was not deposited by him he gave a cheque for Rs.25,000 to accused Shafi Muhammad at his request.

8. P.W.6 Shaukat Ali has deposed that they have deposited Rs.1,00,000 in Account No.146 and he did not find credit entries for these amounts..

9. The accused in his 342, Cr.P.C. statement has denied the allegation. About his admission of guilt in Exh.2/G he has stated that it was obtained under duress. He was compelled to do payment, which was not due from him at all. He produced the defence but the evidence of the defence witnesses is not material.

10. P.W.1 has identified the signatures of appellant on the documents, which have been produced by the prosecution to establish guilt of the appellant. The appellant has not challenged the statements of the witnesses. Account holders have also supported the prosecution allegation against the appellant. There is overwhelming evidence against the accused. The accused admitted his guilt before P.W.1 and has given statement Exh.2/G in which he has stated that he misappropriated the bank accounts as follows:‑

He has also admitted that he has taken loans from the villagers amounting to Rs,49,120 which he had taken in his personal use. He has also admitted that he had opened Account No.317 in the name of Muhammad Ibrahim and he credited Rs.3,20,600 on various dates. He also admitted that he took agricultural loan in March, in the name of 49 persons amounting to Rs.1,96,000. He has given the names of these persons in his statement. He also admitted that he again got sanctioned the loan in March‑April, 1981 in the sum of Rs.1,42,985 in the names of nine persons. He also admitted that he handed over the slips to Saeed Muhammad, Jumma, Lakhano Mal, Abdul Latif, Hyderi Factory, Muhammad Hassan Murri, Islamdin and Haji Moula Bux after putting the signatures and he had 'taken the amounts in his personal use. He has also admitted that he has given short loans amounting to Rs.80,000 to several persons names of whom he has mentioned in his statement. He has given further details of embezzlement in his statement. Even minor details have been B given in his statement Exh.2/G which has been produced by P.W.1. There was no motive for falsely implicating the present appellant. The account‑holders have also appeared and they have stated that they made payments to the accused and the accused had given pay in slips which bear the signature of the accused /appellant. The appellant had obtained agricultural loan in 'fictitious names and misappropriated the same. The appellant then deposited Rs.5,53,625. All these facts would prove the guilt of the accused to the hilt. Learned counsel for the appellant has not challenged the finding of the learned trial Judge. He has not been able to point out any infirmity in the prosecution evidence. His only contention is that the allegation against the appellant was that he had misappropriated Rs..6,17.249.24 out of which he had made the payment of five lacs and less than rupees one lac has been embezzled by him but the maximum punishment has been awarded by the trial Court. He prayed for the reduction of sentence. The offence had been committed in 1981‑82. Complaint was filed on 26‑12‑1982 and the formal F.I.R. was registered on 15‑8‑1983. An amendment in law was brought in on 23‑2‑1984. He, therefore, submitted that the amendment could not be‑ used against the appellant with retrospective effect. He has relied on the case of Muhammad Dawood v. The State PLD 1985 Karl 730 wherein it has been held that accused would be dealt with in matter of punishment in accordance with law in force at the time of commission of offence. We have also taken such view in a number of cases.

Keeping in view all the facts we reduce the sentence under section 408, P.P.C. to one year R.I. and fine of Rs.1,00,000 (Rupees one lac only) or in default of payment of fine R.I. for 11 months more and under section 477‑A, P.P.C. to undergo R.I. for one year and D fine of rupees one lac only or in default to suffer further R.I for 11 months. The substantive sentences are directed to run concurrently. The appellant will also be entitled to the benefit of section 382‑B, Cr.P.C. With this modification in the sentence the appeal is dismissed.

The appeal was disposed of by a short ‑order, dated‑15‑5‑1986 and the above are the reasons for the same.

M.Y.H. Appeal partly accepted.

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