Find a Lawyer

Case No. 68 of 1984, decided on 29th May, 1985.

‑‑‑Ss. 409 & 109‑‑Misappropriation‑‑Complaint showing that co‑accused, a Bank officer, instead of remitting actual agency commission in favour of Exporter's Agent issuing dishonestly and fraudulently Foreign Mail Transfers to agent and when agent remitted back through pay order, co‑accused fraudulently getting proceeds of pay order credited to and misappropriated same through account maintained and operated by accused, other accused taking plea that he deposited a sum in bank through Manager of Bank and got a receipt duly signed by said Manager‑‑Signature of Manager identified by defence witness, a typist in same bank‑‑Prosecution producing no witness to prove that accused had notice that proceeds of voucher of Pay Order, instead of his own sum which he had deposited, had been credited in his account‑ Prosecution failing to prove case against accused beyond any Shadow of doubt.‑‑No evidence existing, of abetment of co‑accused by accused on basis of any instigation, conspiracy or aid rendered by him‑‑Accused acquitted for charge under section 409/109, Penal Code, in circumstances.

‑---‑S. 409‑‑Misappropriation‑‑Accused a Bank officer, charged for fraudulently crediting proceeds of ‑ Pay Order received from Exporter's Agents, into account of co‑accused after writing and signing voucher, of credit in his own hand and misappropriating amount‑‑Accused not denying execution of voucher by him in name of co‑accused but stating that he had made voucher on verbal instruction of Manager of Bank who has asked him to do so without showing his payment order‑‑Manager of Bank who could have put light on circumstances kept out of case‑ Accused also stating in his statement under S. 342, Criminal Procedure Code, that Manager had kept with him Cashier's Cheque (Payment Order) and Mail Transfer Advice for about six months and had clearly got voucher prepared from accused in name of co‑accused for credit into his account‑‑Plea of accused supported by facts of case of prosecution‑ Possibility of statement of accused being true, existing‑‑Essential ingredients of offence under S. 409, Penal Code, missing in case of accused‑‑No evidence of criminal misappropriation of any sum of money available against accused‑‑Written confession of accused which was addressed to Manager of Bank produced by prosecution but Manager being person in authority and accused his subordinate, prosecution was unable to prove that this writing had not been signed by accused on basis of any inducement, Threat or promise from Manager‑‑Manager also not appearing in evidence to state that confessional statement of accused was not result of any such thing on his part‑‑Prosecution not excluding possibility of accused having signed confessional statement in such circumstances as to disqualify same from being given effect to‑ Accused, having not been proved guilty of offence under S. 409, Penal Code, acquitted in circumstances.

‑‑--S. 3‑‑Proof‑‑Standard of proof for accused in defence, held, was not that as was required of prosecution.

P L D 1953 F.C 93 rel.

‑‑‑S. 3‑‑Proof‑‑Prosecution‑, held, has to prove that act of accused was not capable of any other reasonable explanation except guilt of accused.‑‑[Burden of proof].

Nazir Ahmed Ghazi Public Prosecutor and Sh. Muhammad Zafar Special Prosecutor for the State.

Muhammad Iqbal Bhatti for Petitioner No. 1.

Ch. Muhammad Iqbal and Raja Muhammad Anwar for Respondent No. 3.

Facts of the case are that Service Industries Ltd., Lahore exported leather uppers and insoles to firm Messrs Exico, Czechoslovakia for U.S. .21,289.50 and U.S. .19,000 through U.B.L. Shahrah‑e‑Quaid- e‑Azam Branch, Lahore and out of the said sale proceeds received from the foreign bank after adjusting the advance allowed by the brand to .the said customer and remitting the agency commission at the rate of 3% amounting to U.S. .638.68 and U.S. .570 to the exporters agent named Messrs S. A. Traders, Dera Dubai, the remaining sum was to be credited in the account of the said customer. According to the complaint, dated 30‑3‑1982. Exh. P.W. 1/1 made by P.W. 1 Zafar Ahmad Malik, A.V.P. of U.B.L., Lahore for registration of a case against Ansar Hussain, Officer in Foreign Exchange Department of the said branch of the bank, Dildar Hussain, another officer of the said branch of the bank, and S.M. Yousaf hardware merchant of Brandreth Road, Lahore, accused Ansar Hussain had, instead of remitting the actual agency commission of U.S. .638.6,8 in favour of the aforesaid agent, S.A. Traders, issued dishonestly and fraudulently on 31‑1‑1979, respectively, Foreign Mail Transfers for U.S. .21,289.50 and U.S. .19,000 to S.A. Traders. It was further stated therein that S.A. Traders had remitted back through pay order issued by Bank of America the amount of l U.S. .39,953 equivalent to Rs.3,94,907.23 being the excess amount paid to them and the said Ansar Hussain had fraudulently got the proceed of the above pay order credited to and misappropriated through Account No. 2562 maintained and operated by said accused S.M. Yousaf. It way also stated that Ansar Hussain had confessed breach of the trust and misappropriation of money with fraudulent intention. It was further stated that the culprits had refunded the total amount dishonestly misappropriated by them.

2. As a result of the said complaint F.I.R. No. 69/82, Exh. P.W. 7/1, was registered by P.W. 7, Moharrar Head Constable in Police Station Old Anarkali, Lahore on 30‑3‑1982 against the said three accused for offence under section 409, P.P.C.

3. During investigation P.W. 2 Alaud Din, Officer, Foreign Exchange Department, Shah rah ‑e‑Quaid‑e‑Azam Branch U.B.L. produced before P.W. 6 Javed Raza A.S.I., 27 documents Exhs. P.W. 2/1 to 27 which were taken into possession by the said investigating Officer by virtue of memo. Exh. P.W.2/28. The said memo. was attested by P.W. 1 Malik Muhammad Zafar, A.V.P. besides Sayed Jalil Baqir, not produced it) the case. The documents taken into possession by P.W. 6 Javed Raza A.S.I., included in them a photostat of a written confessional statement; dated 30‑5‑1981, allegedly made by accused Ansar Hussain and addressed to the Manager, U.B.L. Shahrah‑e‑Quaid‑e‑Azam Branch which is or record as Exh. P.W. 2/14 and Mail/ Telegraphic Transfer No. 050393. dated 5th/7th April, 1979 from Bank of America, Lahore Branch, Lahore to U.B.L. Shah rah‑e‑Quaid‑e‑Azam Branch, Lahore for a sum of U.S. .39,953 equal to Rs.3,94,907.23 as payment by the S.A. Traders received by mail in U.B.L. Shahrah‑e‑Quaid‑e‑Azam Branch, Lahore on 8th of April, 1979, which Mail Transfer is on record as Exh. P.W., 2/17 and voucher of the sum of Rs.3,94,907.23 made by Ansar Hussain on 20‑8‑197,9 for credit of the said sum in Account No. 2562 of S.M. Yousuf, which is Exhs. P.W. 2/18 and 8 cheques Exhs. P.W. 2/19 to 26, issued by S.M. Yousuf accused respectively on 20th, 21st, 27th, 30th of August, 19th September, 11th, 13th and 14th October, 1979 for respective sums of Rs.27,722.00, Rs.21,900, Rs.35,880 Rs.1,50,030.20, Rs.24,000, Rs.1,15,000, Rs.52,000 and Rs.2,000 and photo copy of three sheets of the ledger containing the statement of account of Account No: 2562 of S.M. Yousuf accused from 19‑12‑1978 to 28‑2‑1980 which 1 on record as Exh. P.W. 2/27. After investigation accused Ansar Hussain Dildar Hussain, another officer of the bank and Sh. Muhammad Yousuf were challaned to stand their trial.

4. The case was put in the Court of Special Judge (Central) for trial. On 9‑4‑1983, the learned Special Judge (Central) acquitted accused Dildar Hussain under section 265‑K, Cr.P.C. on the ground that the allegation against him was that he introduced S.M. Yousuf in the bank for opening an account but the said account had been opened long before commission of offence and Muhammad Yousuf was genuine person.

5. On the same day viz. 4‑9‑1983, learned Special Judge (Central), Lahore framed charge against accused Ansar Hussain and Muhammad Yousuf. The first head of the charge against Ansar Hussain was that while working as Officer U.B.L. Shah rah ‑e‑Quaid‑e‑Azam Branch, Lahore in 1979, he in collusion with co‑accused S.M. Yousuf, got the proceeds of Pay Order No. 050393 issued by the Bank of America equivalent to Rs.3,94,907.23, which was the excess amount paid to S.A. Traders, credited to and misappropriated through Account No.2562, maintained by S.M. Yousuf, and thereby committed offence under section 409, P.P.C. The next head of the charge was against Muhammad Yousuf and was for abetment of offence of misappropriation committed by co‑accused Ansar Hussain which is punishable under section 409/109 P.P.C. The third head of the charge against accused Ansar Hussain was for criminal mid conduct, punishable under section 5 of Act II of 1947. The third head is not triable by this Court. I would not, therefore, deal with the same.

6. At the trial, Muhammad Zafar Malik stated as P.W. 1 that he was posted in Shah rah‑e‑Quaid‑e‑Azam Branch of U.B.L., Lahore in October, 1981 and had lodged the F.I.R. Exh. P.W.1/1 which is signed by him. He gave the entire story which has been recited in earlier part of this judgment. He also stated that on receipt of Mail Transfer, Ansar Hussain accused managed to credit the money of the said Mail Transfer to Current Account No. 2562 of S.M. Yousuf and the amounts which thus got deposited in the current Account No. 2562 of S.M. Yousuf, was withdrawn by him (accused S.M. Yousuf) from the U.B.L. through cheques. In cross‑examination he admitted that he was not posted as Manager in Shah rah ‑e‑Quaid‑e‑Azam when the occurrence took place. He further stated that Ansar Hussain was not able to get pecuniary advantage out of the transactions till the deposit of the said amount in the account of S.M. Yousuf, accused. He denied that the amount was deposited in the account of S.M. Yousuf by the then Manager and the Asstt. Manager. He also denied that Ansar Hussain had not deposited the embezzled amount and the Manager had made false entries in the safe in and safe out register himself. He further stated that it was incorrect that the Manager obtained the amount to boost the deposit of the bank. P.W. 2 Alauddin, who was working on 27‑6‑1982 as incharge Foreign Exchange Department of the said branch of the bank, deposed that he had produced documents Exhs. P.W. 2/1 to P.W. 2/27 to Javed Raza, A.S.‑I., Investigating Officer which had been taken into possession by him as per memo. Exh. P.W. 2/28. He also stated that documents P.W.2/2, 3, 8 and 11 were initialled by Ansar Hussain while documents Exhs. P.W.2/5, 6, 7, 10, 14 and 18 bore his signatures. He explained that he identified the initials and signatures of accused Ansar Hussain because in routine while working as incharge of Foreign Exchange Department of this branch of U.B.L., the documents initialled and signed by Ansar Hussain had been coming to him in routine. Munir Ahmad appeared as P.W. 3 and stated that on 20‑8‑1979, voucher Exh. P.W. 2/18 for a sum of Rs.3,94,907.23 in favour of S.M. Yousuf was put up before him for clearance and that it was accompanied by pay order of Bank of America endorsed by accused Ansar Hussain, in payee's account credited for U.B.L., Lahore, and voucher P.W. 2/18 was retained by him in the branch and stamp of clearance was affixed on the pay order which was then sent to the main branch of U.B.L., Bank Square, Lahore for from Bank of America through State Bank of Pakistan. He also deposed that voucher Exh. P.W. 2/18 was written and signed by accused Ansar Hussain. P.W. 4, Riaz Ahmad Ayubi produced two letters Exh. P.W. 2/9 and Exh. P.W. 2/12 sent by Service Industries Ltd., Lahore, addressed to Messrs U.B.L. Ltd., Lahore requesting notation of documents under their two invoices and have the respective sums of U.S. .20,650.82 and h.S3.18,430 received from abroad credited in the account of Service Industries and pay the sums of U.S. .638.68 and U.S. .570 to S.A. Traders Dera Dobai as 3% commission of the foreign importer. P.W. 5 Shamim Ahmad Khan, Pro‑Assistant Cashier of Bank of America, Lahore deposed that on receipt on 5‑4‑1979 of Telegraphic Transfer (payment order) for a sum of U.S. .39,953 which sum is equal to Rs.3,94,907.23 of Bark of Credit and Commerce Dera Dobai, in favour of U.B.L. Shah rah‑e‑Quaid‑e‑Azam, Lahore, he had prepared payment advice Exh. P.W. 2/17 and payment order known as cashier's cheque in his bank for the said sum in favour of U.B.L. Shahrah‑e‑Quaid‑e‑Azam in his own hand and signed them and had the two sent to the said Branch of the U.B.L. P.W. 6 Javed Raza A.S.‑I., who was then working in P.S. Old Anarkali, Lahore deposed that on 27‑6‑1982, he took into possession the said 27 documents by virtue of memo. Exh. P.W. 2/28. In cross‑examination, he stated that he had not joined Mr. Azhar Mahmood Wattoo, the then Manager in the branch, in the investigation and did not know that Aslam Hayat Wattoo had been the Director‑General of the F.I.A. for 5 years uptil 1982 and he denied that he had made investigation on wrong lines on pressure of Aslam Hatay Wattoo, because Azhar Mahmood Wattoo was son‑in‑law of Aslam Hayat Wattoo. He also stated that it never came to his knowledge during investigation that the cashier's cheque and Mail Telegraphic Transfer Advice sent to U.B.L. Shah rah‑e‑Quaid‑e‑Azam Branch remained in the custody of Azhar Mahmood Wattoo till the amount of the same was deposited in the account of S.M. Yousuf. He stated that he did not know by whom the envelope containing cashier's and Mail/ Telegraphic Transfer was received in U.B.L. Shahrah‑e‑Quaid‑e‑Azam Branch and that it must have been received by the receipt clerk and he never took the statement of receipt clerk. He stated that he never took into possession the receipt register containing entries of receipt of cashier's cheque and the Mail/ Telegraphic Transfer Advice in the envelope. He stated that accused Muhammad Yousuf had in his first statement, recorded by him on 12‑7‑1982, told him that he had paid a sum of Rs.4,00,000 to Azhar Mahmood Wattoo, Manager of the bank, for deposit in his account and obtained from hirr a receipt for the said sum on prescribed pro form of the bank. He, however, stated that the accused had not produced before him any receipt or deposit of said sum of rupees four lac in the bank and he himself had not examined Azhar Mahmood Wattoo who had been named by S.M. Yousuf as recipient of said amount for deposit in his account. P.W. 7 Sanaullah, Head Constable is a formal witness who recorded F.I.R. Exh. P.W. 7/1 on the basis of complaint Exh. P.W. 1/1. After that evidence of the prosecution was closed.

7. Thereafter, statements of the accused under section 342, Cr.P.C. were recorded. Accused Ansar Hussain in his statement, under section 342, Cr.P.C. attributed the despatch by him of the sums of U.S. .21,289.50 and U.S. .19,000 to S.A. Traders to an inadvertent mistake on his part in which he had no bad intention. He admitted having made voucher Exh. P.W. 2/18 but stated that Azhar Mahmood Wattoo had cleverly got this voucher prepared from and signed by him without showing him the actual cashier's cheque or payment order advice Exh. P.W. 2/17. He explained that Azhar Mahmood Wattoo, the Manager, had detained the pay order which was kept by him in his personal custody from February/March, 1979 to 19‑8‑1979 and on 20‑8‑1979 Azhar Mahmood Wattoo had got the voucher made from him. As far his signature on alleged confessional statement Exh. P.W. 2/14 he denied that he made any signature on any such document and stated that Azhar Mahmood and other bank officer, had obtained his signatures on many documents and since document Exh. P.W. 2/12 was a photo copy, he could not say if the signatures on it were his. The said accused alleged that during trial it had been learnt that a sum of Rs.4,00,000 had been taken by Azhar Mahmood Wattoo for boosting the deposit of the branch utilized by the said Manager himself, had cleverly got the voucher prepared from him and taken advantage of his negligence by crediting the amount of said pay order in the account of co‑accused Muhammad Yousuf. He also stated that local. Administration was under his influence due to his close relations with Aslam Hayat Wattoo, the then Director General F.I.A. He also stated that he had no connection whatsoever with S.M. Yousuf co‑accused and by crediting the payment order in his account he had derived no benefit. He stated that he would produce evidence in defence.

8. So far as accused S.M. Yousuf is concerned he denied that co‑accused Ansar Hussain had, in collusion with him, credited in his account the amount of Rs.3,94,907.23 to cause wrongful loss to the bank and to cause wrongful gain to him and Ansar Hussain. He also denied that he had withdrawn the amount of Rs.3,94,907.23 from the branch through cheques Exh. P.W. 2/19 to Exh. P.W. 2/26 and stated that the cheques were issued for the withdrawal by him of the sums of his own money. He stated that he had given Azhar Mahmood a sum of Rs.4,00,000 or. 15‑8‑1979 and obtained a receipt duly signed by him in token of the said deposit. He produced the receipt Exh. D. 1. He reiterated that the amounts had been withdrawn by him bona fide as his own and that he did not know Ansar Hussain co‑accused as he had nothing to do with the Foreign Exchange Department of the said bank. He also stated that he would produce evidence in defence.

9. On 15‑4‑1985, Ansar Hussain accused declined to produce any defence evidence. Accused Muhammad Yousuf, however, produced in defence Muhammad Ashiq as D.W. 1. The said witness was Typist in U.B.L. Shah rah‑e‑Quaid‑e‑Azam Branch, Lahore and claimed to be posted on 15‑8‑1979 in the said branch in that very capacity. He identified the signature of Azhar Mahmood Wattoo on said receipt Exh. D. 1. He stated that lie could identify the signature of the then Manager as he used to receive in the normal course of business of bank, the documents signed by Azhar Mahmood Wattoo when he had to type addresses on the envelopes which came to him alongwith the complete letter signed by said Azhar Mahmood Wattoo. In cross‑examination, however, he stated that signature on receipt Exh. D/1 resembled the signature of‑ Azhar Mahmood Wattoo and he could not say with certainty whether his said signatures are genuine or forged. Thereafter, Muhammad Yousuf, accused, closed evidence in defence.

10. I have heard arguments of learned counsel for the parties at length. I have also perused the record thoroughly. I would first take up the case of S.M. Yousuf as the case of his co‑accused Ansar Hussain is partly dependant upon the result of the case of accused S.M. Yousuf and any decision in the case of S.M. Yousuf must have its effect on Ansar Hussain's case.

11. The plea of S.M. Yousuf is that he had deposited a sum of Rs.4,00,000 in the bank through Manager Azhar Mahmood Wattoo on 15‑8‑1979 and had got receipt duly signed by Azhar Mahmood Wattoo in his possession. He produced the said receipt as Exh. D/1 and has examined Muhammad Ashiq as D.W. 1, a typist on 15‑8‑1979 in U.B.L. Shahrah‑e‑Quaid‑e‑Azam Branch, who has identified the signature of Azhar Mahmood Wattoo on the said receipt on the ground that he used to receive documents bearing signature of the said Manager in normal course of his work in the bank. It is true that he also stated in cross‑examination that he could not say that signature is genuine or forged but as held in Safdar Ali's case P L D 1953 P C 93, the standard of proof for the accused in defence is not that which is required of the prosecution. The evidence of this D.W. is sufficient to indicate that this receipt has most probably been signed by the said Manager. As shown by his statement of account, the said accused had been depositing a huge sums in his said account, it was not improbable for him to have produced this heavy amount before the Manager Azhar Mahmood Wattoo for deposit in his account. It can be, therefore, said that accused S.M. Yousuf had deposited a sum of Rs.4,00,000 in the bank on 15‑8‑1979 in his account which then had a balance of Rs.268.45 only since 31‑7‑1979 and must be deemed to have a sum of Rs.4,00,268.45 in his own account on 15‑8‑1979. He could, therefore, validly issue eight cheques Exh. P.W. 2/19 to Exh. P.W. 2/26 for withdrawal from his account of sums of Rs.27,722, Rs.21,000, Rs.35,880, Rs.1,50,030, Rs.24,000, Rs.1,15,000, Rs.52,000 and Rs.2,000 on 20th, 21st, 27th and 30th August, 1979, 19th of September, 1979, 11th, 13th and 14th of October, 1979, respectively especially when during the period he had issued these cheques he had been depositing further sums in his account also as shown by ledger sheet of his account Exh. P. 2/27. The impression in his mind could be said to be that he had deposited a sum of Rs.4,00,000 on 15‑8‑1979. It has not been proved by the prosecution that he had notice that the sum of Rs.3,94,907.23 proceeds of voucher Exh. P.W. 2/18 instead of his sum of Rs.4,00,000 had been credited in his account. No prosecution witness stated anything in that regard in his statement. P.W. 2 Alaud Din, who was at the relevant time incharge of Foreign Exchange Department stated in cross‑examination that he did not remember that he' sent credit statement to Muhammad Yousuf and that it was for the concerned section of the bank to do so. In spite of the fact that said witness appeared in the Court on 11‑10‑1983 and between the said date and 31‑10‑1984, the date of closure of evidence by the prosecution, there was s time lag of about one year, the prosecution did not produce any witness to state that accused Muhammad Yousuf had guilty knowledge that the sum of Rs.3,94,907.23 which did not belong to him stood credited in his account. If, therefore, accused S.M. Yousuf thought that he had a sum of Rs.4,00,000 in his account since 15‑8‑1979 and had withdrawn sums through eight cheques mentioned above, it cannot be said that he had misappropriated any bank money. It is well‑known that prosecution has to prove that act of an accused is not capable of any other reasonable explanation except the guilt of the accused. It was for the prosecution to have proved, that accused had knowledge that said sum of Rs.3,94,907.23 had allegedly been credited in his account and the only inference to be drawn from F the said circumstance was of the guilt of the accused. The prosecution has thus failed to prove case against accused S.M. Yousuf beyond any shadow of doubt. On the other hand, the accused S.M. Yousuf has indicated that on account of deposit by him of sum of Rs.4,00,000 in the bank in respect of which he produced a receipt, he had the impression that he was issuing cheques for withdrawal from the bank of money which belonged to him. There is no evidence of abetment of co‑accused Ansar Hussain by the accused S.M. Yousuf on the basis of any instigation, conspiracy or aid rendered by him. As a matter of fact no offence is established to have been committed by the accused, S.M .I Yousuf. I, therefore, acquit the said accused of offence under section 409/109, P.P.C. with which he had been charged.

12. Next is the circumstance of accused, Ansar Hussain having written in his own hand and having signed voucher Exh. P.W. 2/18 for credit of said sum of Rs.3,94,907.23 in Account No. 2562 of S.M. Yousuf as a result of which said sum was credited in the account of said co‑accused on 20‑8‑1979 as shown by ledger sheet of said account Exh. P.W. 2/27. Alaud Din P.W. 2 stated that he identified the signature of Ansar Hussain on the said voucher. Accused Ansar Hussain did not deny execution by him of said voucher in the name of S.M. Yousuf but he has come out with a plea that he had made the said voucher on verbal instruction of the Manager Azhar Mahmood Wattoo who had asked him to do so without showing him payment order Exh. P.W. 2/17.

13. In this connection, Azhar Mahmood Wattoo was the most important witness who could have put light on the circumstances. It appears, however, that he had been scrupulously kept out of this case although he was Manager of Shahrah ‑e‑Quaid‑e‑Azam Branch, U.B.L. at the relevant time. He did not come forward to lodge an F.I.R. and this duty was performed by Muhammad Zafar Malik who as mentioned in the separate letter, dated 30th March, 1982 addressed to the S.H.O., was an A.V.P. of the bank. Muhammad Zafar Malik appeared as P.W. 1 and admitted that he was not posted as Manager in the said branch of the bank when the occurrence took place. The said plea of the accused Ansar Hussain is, therefore, not negated by any evidence in the prosecution case.

14. Accused Ansar Hussain also stated in his statement under section 342, Cr.P.C. that the Manager Azhar Mahmood Wattoo had kept with him the cashier's cheque (payment order) and Mail Transfer advice Exh. P.W. 2/17 for a sum of Rs.3.94,907.23 for about six months and had, thereafter, cleverly got the voucher Exh. P.W. 2/18 for the said 1 sum of Rs.3,94,907.23 prepared from him in the name of S.M. Yousuf 41., and had credited the said payment order in the account of S.M. Yousuf. This plea is supported by the facts of the case of the prosecution. The cashier's cheque (payment order) from the Bank of America alongwith Mail Transfer Advice Exh. P.W. 2/17 was prepared in the Bank of America, Bank Square, Lahore on 5/7‑4‑1979. It was received in U.B.L. Shahrah‑e‑Quaid‑e‑Azam Branch on 8‑4‑1979 as shown by a stamp affixed thereon. The voucher Exh. P.W. 2/18 was, however, prepared on 20th August, 1979. There was a time lag of about four months and a half in between. The prosecution should have been put on guard to find out why this delay of four months had occurred in giving effect to the payment advice and in making voucher on the basis of cashier's cheque (payment order) and M.T. advice issued in favour of account‑holder by the Bank of America, which as shown by statement of P.W. 5 Shameem Ahmad Khan had been sent alongwith payment advice in question. The Investigating Officer did not find out the reason for this long delay. Whether it was not done on account of the fact as alleged that Azhar Mahmood Wattoo was son in law of Aslam Hayat Wattoo, the Director of F.I.A. or otherwise is a separate matter. The fact, however remains that voucher P.W. 2/18 was prepared after a time lag of four months and a half after the receipt in the branch of cashier's cheque (payment order) and Mail Transfer advice Exh. P.W. 2/17. This circumstance clearly supports the plea of the accused Ansar Hussain that Azhar Mahmood Wattoo Manager had for his own ulterior' motives sat over the said documents for a period of 4 months and a half and got prepared voucher P.W. 2/18 from him on 15‑8‑1985 without showing him the original documents.

15. It has been shown earlier that during the trial it had been revealed that S.M. Yousuf had handed over a sum of Rs.4 lac to Azhar Mahmood Wattoo on 15‑8‑1981 against a deposit receipt of the said date duly signed by Azhar Mahmood Wattoo but the said sum had not been credited in the account of said S.M. Yousuf. The statement of account, Exh. P.W. 2/27, of S.M. Yousuf shows that a cheque for a sum of Rs.27,722 from S.M. Yousuf had been received in the branch for encashment. The said account at that time showed a credit balance of Rs. 268 only. The Manager Azhar Mahmood was thus faced with the necessity of either crediting sum of Rs.4,00,000 deposited by S.M. Yousuf or making some other arrangement to encash the said cheque so that S.M. Yousuf may not come to know that the said sum had not beefs credited in his account. It is quite possible in the circumstances that the said Manager asked accused Ansar Hussain to make pay order, Exh. P.W. 2/18 in favour of S.M. Yousuf, dated 20‑8‑1979, without showing him the cashier's cheque (pay order) and Mail Transfer advice Exh. P.W. 2/17. The prosecution has not shown that the cashier's cheque as well as payment advice, Exh. P.W. 2/17, which had been received in U.B.L., Shahrah‑e‑Quaid‑e‑Azam Branch, Lahore on 8th April, 1979 was in the custody of the accused at any time. In these circumstances, there is a possibility of the statement of the accused Ansar Hussain being true. Since it is doubtful that accused Ansar Hussain knew at the time when he prepared voucher, Exh. P.W. 2/18, that the said sum of Rs.3,94,907.23 belonged to Messrs Services Industries, Ltd. the said accused cannot be considered to have been entrusted by implication the said sum for credit in the account of Messrs Service Industries. Thus the essential ingredient of offence under section 409, P.P.C. is missing in the case of this accused.

16. In any way, no capital can be made out of the mere circumstance that voucher Exh. P.W. 2/18, in favour of S.M. Yousuf for the said sum of Rs.3,94,907.23, is prepared in the hand of accused Ansar Hussain for another reason and that is that the case of Ansar Hussain as already stated is inextricably mixed up with the case of the co‑accused S.M. Yousuf and the decision in regard to implication or innocence of S.M. Yousuf in this case must have invariably its reprecussions on the case of this accused. Since it has been held that S.M. Yousuf was under the impression that it was his own money which he was utilizing, the accused Ansar Hussain cannot be considered to have derived any benefit from the factum of sum of Rs.3,94,907.23 having been credited in the account of S.M. Yousuf who cannot in the circumstances be expected to have made payment of any sum to Ansar Hussain, which sum could be said to have become subject‑matter of misappropriation by Ansar Hussain accused. Further more, there is no evidence of criminal, misappropriation of any sum of money by him. Nobody has stated that the accused was found spending the said sum at any time or spending any sum beyond his visible means. The accused does not, therefore appear to have committed scheduled offence under section 409, P.P.C,

17. I may now take up the written confession alleged to have been made by the accused, Ansar Hussain, on which reliance has been placed by the prosecution. Allaud Din P.W. 2 had stated that he had produced this document from the bank record before the Investigating Officer and it was Exh. P.W. 2/14. He also stated that this document is photo copy of the original written confession. Learned Spl. Prosecutor states that the said document has been proved by the statement of Allaud Din, who had identified the signature on the said document as that of Ansar Hussain. He contends on that basis that accused Ansar Hussain is found to have committed offence under section 409, P.P.C.

18. I have considered this circumstance. No witness has said that the said document is in the handwriting of the accused. Allaud Din P.W. 2 has no doubt made a statement identifying his signature on photostat Exh. P.W. 2/14 but that would not show what is the evidentiary value of the said document. The said document is addressed to the Manager who was person in authority vis‑a‑viz accused Ansar Hussain, his subordinate. In these circumstances, the prosecution was bound to prove that this writing had not been signed by the accused on the basis of any inducement threat or promise from the said Manager so that the said document may operate as effective evidence against the accused. The said Manager was the best person to dispel any doubt regarding any inducement threat or promise having been given by him with reference to the charge against the accused person. The said M Manager has, however, not appeared in evidence to state that the said confessional statement was not the result of any such thing on his part. The prosecution has, therefore, not excluded the possibility of the accused having signed this writing in such circumstance as disqualify this document from being given effect to.

19. From the above discussion, it is clear to me that the accused has not been proved to be guilty of offence under section 409, Cr.P.C.

20. For the above reasons, I acquit both the accused Ansar Hussain and S.M. Yousuf of the scheduled offences under sections 409 and 409/109, P.P.C. They are on bail their bail bonds stand discharged.

M.Y.H Accused acquitted

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.