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Case No. 63 of 1984, decided on 30th May, 1985.

---S. 4--Penal Code (XLV of 1860), Ss. 468 & 409--Accused receiving an amount from a customer against a deposit receipt but failing to account for some amount out of total sum received by him--Defence plea that shortage was genuine due to his having not counted cash received by him from said customer not believed by any prosecution witness--Customer who paid said amount to accused, while appearing as prosecution witness not stating that accused had counted cash tendered by him in his presence--Amount deposited by customer being a substantial amount and proof of its having been counted on either side, held, was necessary to fasten responsibility on either side of parties.

---S. 4--Penal Code (XLV of 1860), Ss. 468 a, 409--Guilt of accused- Proof--On us--On us to prove that act of accused is not explainable on any other reasonable hypothesis except guilt of accused is always on prosecution.--[Burden of proof].

---S. 4--Penal Code (XLV of 1860), Ss. 468 409--Accused allegedly failing to account for certain amount out of total amount received by him from a customer--Defence explaining shortage on basis of reasonable hypothesis of accused having not counted cash immediately on its receipt from said customer--Prosecution failing to prove that sum received by' accused from customer had been counted by accused immediately on its receipt--Statement of accused remaining un controverted--Statement of customer appearing to be motivated by prospect of losing deficient amount--Customer in his zeal to support prosecution case even denying fact admitted by other prosecution witness--Customer not appearing to be truthful - witness--Part of statement of accused that he contacted customer in his effort to make shortfall in funds of Bank, held, could not be belied by statement of customer--Number of other positive indications also existing on record which supported defence plea--Defence plea accepted in circumstances.

---S. 4--Penal Code (XLV of 1860), Ss. 468 409--Accused allegedly failing to account for certain amount out of amount received by him from a customer--Accused stating in his statement under S. 342, Cr.P.C. that he had informed Manager very next morning that he had discovered a shortage in a sum received by him on previous day--Letter addressed by Manager to higher authorities showing that even on third day of occurrence Manager of Bank did not choose to add allegation of any criminal import against accused in said letter--According to normal human nature Manager would have laid blame upon accused as he, as a Manager was answerable to all what had happened in his branch and was faced with necessity of exculpating himself too--Explanation of accused to Manager appearing to have neutralized mind of Manager vis-a-vis his criminal involvement in matter--Statement of accused believed.

---S. 4--Penal Code (XLV of 1860), Ss. 468 a 409--Shortage of money in Bank funds--Accused was first person who had given Manager of Bank information of shortage of money in Bank funds and had given his explanation for same--Accused giving such information and explanation on the very next morning of occurrence, which was first available opportunity--Information of shortage and explanation for money given by accused on very next morning, held, was of great significance as same showed first version of incident which accused had put forward at earliest opportunity--Fact that no F.I.R. had been lodged when accused gave such explanation, showed that accused had no reason to concoct a false story in relation to incident--Defence plea believed in circumstances.

Hasil v. Emperor A I R 1942 Lah. 37 rel.

---S. 4--Penal Code (XLV of 1860), Ss. 468 & 471--Criminals who commit their misdeeds in darkness of night or in cover afforded by dark corners during day do not voluntarily expose to light their misdeeds--Such criminals become all the more secretive to avoid detention and apprehension--Only innocent persons through whose inadvertent mistakes wrongful acts take place announce and proclaim such acts and appraise their superiors on first available opportunity of mishap occurred to them.

---S. 4--Penal Code (XLV of 1860): Ss. 468 a 471--Accused allegedly failing to account for a shortage in amount received by him from a customer--Accused issuing a deposit receipt to customer after posting an entry of said sum in ledger--Bank Officer with a shred of sense and a little bit of prudence, held, would not in such situation take away some sum out of deposited sum and expose himself to criminal prosecution--Defence plea that shortage occurred on account of having not counted cash by accused at time of its receipt found to be based on truth--Accused would not have sacrificed his entire career and destroyed means of his livelihood for sake of a small sum especially when during course of fifteen years of his service in Bank he could be visualized to have had innumerable opportunities to make misappropriations of much bigger sums from Bank--Conduct of accused of depositing of deficient amount in Bank within 5/6 days in order to avoid loss to Bank due to his mistake also found to be fair and upright- Shortage of amount found to be genuine in circumstances.

---S. 4--Penal Code (XLV of 1860). Ss. 468 & 409--Accused allegedly causing shortage in funds of Bank--Accused stating in his statement under S. 342, Cr.P.C. that case was registered against him due to instructions of Banking Council for prosecution of all officials responsible for shortage in Bank funds irrespective of fact that such shortages were genuine or not--Nothing on record available to show that before getting case registered against accused Bank authorities took any decision on first plea of accused which was plausible and did not stand negated by any adverse circumstance before them--Prosecution neither bringing on record any report of internal inquiry nor showing that Inquiry officer took into consideration specific plea of accused which he had raised before Manager--Defence plea that case was registered only on instructions of Banking Council found to be truthful in circumstances.

---S. 4--Penal Code (XLV of 1860), S. 409--Accused allegedly failing to account for certain amount of total amount received by him from a customer--Prosecution failing to prove entrustment (which was sin qua non for offence of criminal breach of trust) of alleged deficient amount to accused beyond all shadow of doubt--Mere shortage of amount, held, was not by itself sufficient to prove charge of criminal breach of trust by a public servant, as dishonest misappropriation or conversion of deficient amount to one's own use which was other essential ingredient of criminal breach of trust as defined in S. 405, P.P.C., had not been established--Prosecution failing to discharge its duty by producing evidence to show that accused had put alleged deficient amount to his own use--Accused was not guilty of offence under S. 409, P.P.C. as no misappropriation by accused had been proved--Accused acquitted.

Mir Ahmad v. The State P L D 1962 S C 489 and Syed Mustafa Shah v. The State 1968 P Cr. L J 358 rel.

---S. 4--Penal Code (XLV of 1860), Ss. 468, 463 & 464--Forgery- Accused allegedly making a false and counterfoil voucher of certain amount after tearing off original voucher--No eye-witness of tearing off of voucher produced--Accused admitting to have prepared new voucher in his own hand in substitution of original voucher Accused furnishing plausible explanation for doing so--No intention found on part of accused to cause any wrongful loss to Bank or to commit any fraud upon Bank--Accused having no intention to cause wrongful gain to him--Offence of forgery as defined in S. 463, P.P.C. read with S.464 P.P.C. not proved--Intention to cheat which was essential ingredient of offence under S. 468, P.P.C. was negated by conduct of accused--Accused found to have made new voucher as a measure in order to tide temporarily over difficulty with which he was faced on account of his being all alone in Bank at closing hour when he discovered a deficiency of certain amount--Charge for offence under S. 468, P.P.C., held, was not proved in circumstances--Accused acquitted.

Raja Muhammad Anwar, Sharif. Hussain Bukhari and Muhammad Nawaz Khokhar for Petitioners.

Kh. Saeed-uz-Zafar, Special Prosecutor for the State.

The facts of the case are that by virtue of letter, dated 3^rd 1982. Exh. P.W. 3/1, Muhammad Khalid Khan, Manager, U.B.L., Shamke Bhattian Branch, District Lahore, complained to S.H.O., P.S. Manga Mandi, District Lahore that Messrs Ghulam Rasool and Brothers, Fertilizer Dealers, had deposited a sum of Rs.23,200 in their account which amount was received by Pervaiz Mahmood, Officer Grade III of the bank, against proper counter-foil of the pay-in-slip issued on 11-11-1980. but the entry of the aforesaid amount of Rs.23,200 was missing and was shown as Rs.18.200 in the cash receipt book and that it had been discovered that accused Pervaiz Mahmood had removed original deposit slip of Rs.23,200 replaced the same with the slip of Rs.18,200 and thus defrauded the bank of a sum of Rs.5,000 and misappropriated the same dishonestly. He further alleged therein that accused Pervaiz Mahmood had confessed his criminal act of forgeries and misappropriation of the money and as a token of his confession, had refunded the said sum of Rs.5,000 in the bank. In the end, he requested (hat case be registered against the accused. As a result of this complaint, F.I.R. No. 30/81, Exh. P.W. 4/1, was registered in the said police station on 4-4-1982.

2. Abdul Haq, A.S.I. of the said police station was entrusted with the investigation of this case. On 8-4-1984, the Manager Muhammad Khalid Khan, who later appeared at the trial as P.W. 3, produced before him photo copy of deposit receipt for a sum of Rs.23,200, dated 11-11-1980 which is on record as Exh. P.W. 2/5, a photostat copy of cash credit voucher, dated 11-11-1980 for a sum of Rs.18,200 which is Exh. P.W. 2/2 and photo copy of the cash credit voucher, dated 17-11-1980 for a sum of Rs.5,000 alleged to have been written in the hand of and signed by the accused, by virtue of which he had refunded the sum of Rs.5,000 in the bank which is on record as Exh. P.W. 2/3. The said Investigating Officer, took these documents into possession by virtue of seizure memo. Exh. P.W. 2/4. The said memo was signed by Ghulam Rasool, P.W. 2, Muhammad Khalid Khan, P.W. 3.

3. The trial of the accused started in the Court of Special Judge (Central), Lahore who framed charge against the accused on 10-2-1983, for offences under sections 409, P.P.C. and 468, P.P.C. and section 5 of Act II of 1947. The first head of .the charge alleged that the accused had, while working as Officer Grade III, in the U.B.L., Shamke Bhattian Branch, District Lahore, received on 11-11-1980, a sum of Rs.23.200 from Ghulam Rasool and Brothers Fertilizer Dealers, Shamke Bhattian, for deposit in their account No..51 but had shown Rs.18,200 instead of Rs.23,200 in the bank record and had thus committed offence under section 409, P.P.C. The second head of the charge stated that he had forged deposit slip of Rs.18,200 after removing original deposit slip of Rs.23,200 with intent to cause loss to the bank and thus committed offence under section 468, P.P.C. The third head of the charge was one for offence under section 5 of Act II of 1947 which is not triable by this Court and would, therefore, not be commented upon.

4. Muhammad Arif the then Manager of Shamke Bhattian Branch of U.B.L. on 11-11-1980 appeared as P.W. 1. He produced in the Court, from the bank record, original credit voucher for a sum of Rs.18,200 alleged to have been prepared by the accused. It is Exh. P.W. 1/1. He also produced photo copy of sheet, dated 11-11-1980 of receiving cashier's book Exh. P.W. 1/2 showing an entry of receipt of a sum of Rs.18,200 instead o Rs.23,200 in Account No. 51 of Ghulam Rasool and Brothers. He also produced attested copy of the relevant sheet of the ledger showing an entry of Rs.23,200 as having been deposited on 11-11-1980 in the account of Messrs Ghulam Rasool and Brothers. This document is on record as Exh. P.W. 1/3. In narration of facts of the case, he stated that on 11-11-1980, he was working as Manager U. B. L., Shamke Bhattian Branch, Multan Road, Lahore and on 12-11-1980 when he checked the record, he found an entry of Rs.23,200 in the ledger, in the account of Messrs Ghulam Rasool and Brothers. in the hand of the accused but the cash credit voucher, Exh. P.W. 1/1, retained in the bank which was in the handwriting of the accused, was for a sum of Rs.18,200. He also stated that the original cash credit voucher filled in by the party, showing therein sum of Rs.23,200 as having been deposited by it, was destroyed by the accused who had thereafter prepared false credit voucher, Exh. P.W. 1/1, for Rs.18,200. He also stated that he checked the deposit receipt in possession of the party and had found that in that a sum of Rs.23,200 had been shown and on that he had made report to the Zonal Office. He also stated that in receiving cashier's book, the accused had made an entry (photo copy Exh. P.W. 1/2) for a sum of Rs.18,200. In cross-examination, the said witness stated that he left the bank on 11-11-1980 after 1-30 p.m. and that on 13-11-1980, the accused had told him that shortage of Rs.5,000 had occurred in cash received by him on 11-11-1980 and in that connection he had contacted the party also. He admitted that the accused had made up loss of the bank by depositing a sum of Rs.5,000 in the bank. He stated that the accused was ordered to perform the duties of the cashier on 11-11-1980 because the cashier was on leave on that day. Ghulam Rasool of Messrs Ghulam Rasool and Brothers who professed to run the fertilizer agency all alone appeared as P.W. 2 and stated that on 11-11-1980, he paid a sum of Rs.23,200 to the accused who had issued him a receipt. He also deposed in respect of Investigating Officer having taken into possession the photo copies of the documents Exhs.P.W.2/1 to 3 by virtue of memo. Exh. P.W. 2/1 attested by him. He denied that the accused told him on 11-11-1980 that there was a shortage of Rs.5,000 in the cash received by him as officiating cashier from him (said Ghulam Rasool) on 11-11-1980 or that he had told him that he had given him the full amount of Rs.23,200. He denied that the accused had in the presence of Noor Muhammad a Zamindar of Shamke Bhattian, and others asked him that he might have deposited Rs.5,000 less. He also denied that he was also summoned by M. Arif, Manager, on 12-11-1980 in that connection. Muhammad Khalid Khan, who was posted as Manager in this branch of the bank on 16-1-1980 appeared as P.W. 3. He admittedly was not Manager in the said branch at the time of the occurrence and, therefore, had to concede that he had no personal knowledge of the occurrence which had taken place before he was posted in the branch. His evidence on the details of the occurrence is of no consequence. His basic testimony in respect of his having sent a letter Exh. P.W. 3/1 drafted by legal adviser of the bank on the instructions of the Zonal Head and signed by him, to the S.H.O. for registration of a case against the accused. Ire also gave evidence in respect of production by him of three documents enumerated above which were taken into possession by the Investigating Officer. In cross-examination, he admitted that there can be genuine shortage on account of receipt by the cashier inadvertently of an incorrect amount. He also stated that the strong room cannot be closed till the receipt vouchers and the cash in hand do not tally. He, however, emphatically denied that for the sake of tallying the account with a view to close the strong room, a false receipt for a lesser sum or even a temporary receipt can be prepared in case of a genuine shortage. He explained that in such a contingency the procedure to be adopted is that the cashier immediately informs the Manager who when convinced that shortage is genuine, may contribute alongwith others to save the cashier and for that purpose the Manager and other members of the staff may take advances of salary from suspense account against vouchers signed by members of the staff as agree to take advances and contribute sums to the cashier to make-up the deficiency and close the strong room but if the Manager and other members of the staff do not contribute, then a report is made to Zonal Office in respect of shortage. He further stated that if the deficiency in cash is too much, then the Manager makes a voucher of the sundry deposit account in respect of cash shortage and thus tallies the accounts with the cash and closes the strong room. Abdul Haq, A.S.I. Investigating Officer, appeared as P.W. 4 and proved the seizure by him of the document P.W. 2/1 to 3 be virtue of memo. Exh. P.W. 2/3. After this prosecution evidence was closed.

5. The defence counsel had earlier filed an application Criminal Miscellaneous 91/85 for summoning some record of the bank which application had been allowed. He later filed another application Criminal Miscellaneous 92/85 for resummonging P.W. 1 alongwith the said record. He also prayed in the said application that till the recording of statement of P.W. 1 and production by him of the record recording of the statement of the accused be postponed. On a notice on this application, learned Special Prosecutor stated that he had absolutely no objection to the acceptance of this application, requisitioning of the said record and resummoning of P.W. 1. This application was also allowed and in consequence P.W. 1 Muhammad Arif, Manager of Shamke Bhattian Branch of U.B.L. at the time when the occurrence had taken place, reappeared 'on 29-1-1985. He was cross-examined by Mr. Sharif Hussain Bokhari Advocate, on behalf of accused. The said witness brought the original receiving cashiers' book and proved the copy of its sheet for 11-11-1980 as Exh. P.W. 1/2. He stated that the entries of 11-11-1980 in the said receiving cashier's book relating to Account No. 51 of Messrs Ghulam Rasool and Brothers were in the hand of the accused because cashier Ghulam Abbas was on leave and the accused was officiating as cashier on that day. He produced a carbon copy of the report which he made to the Zonal Office as per his Letter No. SKB/DMA/27/80, dated 12-11-1980, as Exh. P.W. 1/4. By means of said letter, he pointed out to the Zonal Chief that there was a glaring difference in receiving cashier's book and the C.D. Ledger of Account No. 51 of Messrs Ghulam Rasool and Brothers and in the receiving cashier's book, the cash entry is of Rs.18,200 instead of Rs.23,200 the receipt of which was with the account holder while ledger entry was of Rs.23,200. He also informed the Zonal Office that working of cash and posting of ledger was being carried out on 11-11-1980 by Pervaiz Mahmood. He prayed in the end of the said letter that the addressee, the Zonal Chief, may make enquiry into the matter which was of important nature. He also produced in the Court the original ledger and proved another copy of the ledger sheet as EXh.P.W.l/31A. He stated that note in red ink against entry, dated 11-11-1980 in the original ledger sheet re-dating to the Account of Messrs Ghulam Rasool and Brothers which read wrong entry posted may be corrected' was made by Fayyaz, Agricultural Credit Officer of the bank in his presence. He stated that when on 12-11--1980, he came to the bank and when vouchers and the ledger register were produced before him, he discovered the discrepancy, and called Fayyaz, the Agricultural Credit Officer to check up the matter and it was then that said Fayyaz made' the said entry in red ink in his own hand in his presence and initialled the same.

6. The prosecution evidence thus having finally come to an end, statement of the accused under section 342, Cr.P.C. was recorded. The accused stated when the sum had been given by Messrs Ghulam Rasool and Brothers to him, for deposit in their account, he did not count the same and had signed the credit receipt and the voucher which were for a sum of Rs.23,200 and had torn out voucher portion for retention as bank record and handed over the pay-in-slip book containing the deposit receipt of the sum of Rs.23,200 to-the party but subsequently at the closing hour when he counted the said cash, he found that the sum was deficient by Rs.5,000. He also said that by the dosing hour, the Manager, Muhammad Arif Khan and the Agricultural Credit Officer Fayyaz had already left the bank as they had to appear as witnesses in a departmental inquiry being held in Chauburji Branch of U.B.L. and he was the only officer left in the branch at that time and that, therefore, he contacted Ghulam Rasool and Brothers whose premises were just at hand but they refused to acknowledge that they had given the sum deficient by Rs.5,000 and stated that they had given full amount of Rs.23,200. He further stated that he could not close the cash book without balancing it with actual cash nor could close the staring room and, .therefore, he was constrained to prepare a fresh voucher now for a sum of Rs.18,200 in order to make the necessary balancing. He also stated that he had not destroyed the original cash credit voucher for a sum of Rs.23,200 and had kept it in his drawer after deleting his signature from it. He continued that next morning, he had informed the Manager that there was a shortage of Rs.5,000 and that in order to balance the account, he had charged the voucher and that he had done so to solve the problem faced by him. He also stated that he handed over the original voucher for a sum of Rs.23,200 from which he had deleted his signature as the new voucher for Rs.18,200 to the Manager. He further stated that he had made up short-fall in the funds of the bank within five days by depositing the sum of Rs.5,000 in the said branch by means of deposit voucher, dated 17-11-1980 Exh. P.W. 2/3. He denied that he had misappropriated any money belonging to the bank. He admitted that he had made entry of Rs.23,200 in the ledger after receipt of the said sum on the basis of the amount mentioned in the cash credit voucher, but added that when at the closing hour he discovered that the sum was deficient by Rs.5,000, he made an entry of having received a sum of Rs.18,200 in the receiving cashier's book. He had, however, not changed the entry of Rs.23,200 in the ledger in order to show the authorities that short-fall in the funds of the bank was due to his having not counted the cash at the time of its receipt. He stated that the witness had deposed against him due to departmental instructions issued by the Banking Council that all the cases of short-fall in the funds of the bank should be reported to police for registration of cases against the persons responsible for the short-fall (irrespective of the shortage being genuine or not). He stated that he would produce defence evidence.

7. On 4-5-1985, the accused produced Manawar Hussain Shad, Officer Grade-I U.B.L. Circle Officer, Lahore, as D.W.1 who produced the original of Letter No. SKB/DMA/27/20 of Muhammad Arif Manager addressed to the Zonal Chief, carbon copy of which, had earlier been exhibited as P.W.4/1. The carbon copy of the said letter exhibited as P-W. 4/1 shows 12-11-1980 as its date but the original produced from the record of the Zonal Office showed that after drawing a line of cancellation of the said date, new date 13-11-1980 had been substituted.

A photo copy of the said original letter was retained in the record of this Court as Exh. D.1 and the original letter was returned to this Witness. The said witness also produced the photostat of teleprinter message, dated 30-31982 and its confirmatory postal copy, respectively as D. 2 and D. 3. This message was from the Executive Vice-President of Head Office of U.B.L. Karachi addressed to Ziaullah Qureshi, Senior Vice-President, Zonal Office, Lahore directing him under the order of the Senior Executive Vice-President/Member Board U.B.L. Head Office, Karachi to lodge F.I.R. in the fraud case of Shamke Bhattian. After this the accused closed his defence evidence.

8. The facts which are apparent from the above evidence and stand established without any argument or discussion in that behalf are that accused Pervaiz Mahmood was working as an officer Grade III in U.B.L. Shamke Bhattian Branch, Multan Road, Lahore. On 11-11-1980, Ghulam Abbas, cashier was on leave and accordingly under the order of the Manager Muhammad Arif Diwan, accused Pervaiz Mahmood worked on that day as a cashier in addition to his own duties as an officer Grade-III in the said branch. On that day, Ghulam Rasool a Brothers, Fertilizer Agents came to deposit in Account No. 51 of the agency in the said bank, a sum which he has professed to consist of Rs.23,200. He also brought alongwith him pay-in-slip book containing sheet comprising of deposit receipt and deposit voucher both duly filled in for the said sum. The accused received the sum from said Ghulam Rasool, signed the receipt portion as well as the voucher portion of the said pay-in-slip, tore out the voucher portion for retention in the branch and gave away the receipt portion, photo copy Exh. P.W. 2/1 to Ghulam Rasool. He then posted the credit entry of a sum of Rs.23,200 in the account of account holder in the ledger. The Manager Muhammad Arif Diwan left the branch at 1-30 p.m. On 12-11-1980, the next day, when the said Manager checked the bank record, he found that though in the ledger Exh. P.W. 1/3 and Exh. P.W. 1/3-A the entry was of a sum of Rs.23,200 in the account of said account holder, there was different entry of Rs.18,200 in receiving cashier's book Exh. P.W. 1/2, and cash credit voucher (original Exh. P.W. 1/1 and copy Exh. P.W. 2/2) in .the hand of the accused. He also found that deposit receipt, in possession, of account holder also showed a sum of Rs.23,200 having been deposited and the said receipt bore the signature of the accused. Accordingly, he sent Letter No. SKB/DMO/27/80, dated 12-11-1980, carbon copy Exh. P.W. 1/4, informing the Zonal Chief of the discrepancy and informing that work of cash receipts and posting of entries in the ledger was being performed on 11-11-1980 by the accused and praying that since the matter was of serious nature he should make enquiry into the matter. The original letter photo copy of which is on record as Exh. D. 1 shows that a line of cancellation was drawn over the date 12-11-1980 and new date namely 13-11-1980 was written on the said letter. The accused told the Manager Muhammad Arif Diwan on 13-11-1980 that there had occurred in his cash a shortage of Rs.5,000 on 11-11-1980 and in that connection, he had contacted the party. The accused adjusted the said shortage on 17-11-1980 by depositing a sum of Rs.5,000 in the said branch by means of deposit voucher, dated 17-11-1980 (Copy Exh. P.W. 2/3). The matter of above shortage having taken place, however, had been referred by the Zonal Office to Head Office, Karachi. A teleprinter message, dated.30-3-1982 Exh. D. 2 was received directing that an F.I.R. should be lodged in fraud case of Shamke Bhattian Branch. It was on the receipt of said teleprinter message that P.W: 3 Muhammad Khalid Khan, who had succeeded Muhammad Arif as a Manager on former's transfer, wrote letter Exh. D.W. /1 on the basis of which F.I.R. No. 30, dated 4-4-1982 (Exh. P.W. 4/1) was registered in Police Station Manga Mandi, District Lahore.

9. I have heard arguments of learned counsel for the parties. I have also gone through the record thoroughly. The crucial question involved in the case is whether the shortage of Rs.5,000 was genuine one or not. The learned Special Prosecutor submits that having given a deposit receipt duly signed by him, for the said sum of Rs.23,200 to the account holder, the accused had committed himself to the position that he had received and had been entrusted with the entire sum of Rs.23,200 and the factum of his having been unable to account for a sum of Rs.5,000 proved that he had misappropriated the said sum in his capacity as a public servant and had thus committed offence under section 409, P.P.C. The learned defence counsel, however, contends that the accused had not counted the said sum entrusted to him for its being credited in the account of the account holder and at the end of the day he had found, on counting the said sum, t-hat it was deficient by Rs.5,000 and it was thus a case of genuine shortage and the accused cannot be held criminally liable in such circumstances.

10. I have given my serious thought to the question. The plea of, the accused that his case was one of genuine shortage due to his having not counted the cash received by him from Messrs Ghulam Rasool and Brothers is not belied by any statement of any prosecution witness. Ghulam Rasool did not state as P.W. 2 that accused had counted the cash tendered by him to him (the accused) in his presence. He did not even state that the counting of said cash had been made by him or by anyone on his behalf in his business premises with the care and caution essential for the same. The amount of Rs.23.200 is a substantial amount and proof of its having been counted on either side was necessary to fasten responsibility on either of the parties. It is, well-established that onus to prove that the act of the accused is not explainable on any other reasonable hypothesis except guilt of the accused in always B on the prosecution. The defence has explained the shortage on the basis of reasonable hypothesis of the accused having not counted the cash immediately on its receipt from Ghulam Rasool. In order to bring the guilt home to the accused, it was the duty of the prosecution to have proved that the said hypothesis was incorrect on factual plane. They, however, failed to prove that the sum received by the accused from Ghulam Rasool had been counted by the accused immediately on its receipt. The said statement of the accused, therefore, remains un controverted. Furthermore, it is, no doubt, true that in cross examination Ghulam Rasool P.W. 2 had denied that the accused had told him on 11-11-1980 that there was a shortage of Rs.5,000 in the C sum of Rs.23,200 given by him to him (the accused) for being credited in the account of Messrs Ghulam Rasool and Brothers or that he had told him that he had given him the full amount of Rs.23,200 but this denial appears on the face of it to be motivated by the prospect of losing a sum of Rs.5,000 and cannot be given absolute credence to on that account. It is significant that in his zeal to support the prosecution case, this witness had even denied that he had been summoned by Muhammad Arif Diwan Manager in that connection although the factum of the said witness having been called stands established to the hilt by the averment of the said Manager in his letter, dated' 12-11-1980 Exh. P.W. 1/4 to the effect that deposit receipt with the account holder was also for a sum of Rs.23,200. How on earth could the said manager have mentioned so in the said letter if he had not summoned the said witness and not seen the deposit receipt with him. The said witness, therefore, does not appear to be truthful when he stated that the accused had not told him that sum given by him was deficient by a sum of Rs.5,000. Therefore, the part of the statement of the accused that he had contacted Ghulam Rasool in his effort to make-up the shortfall in the funds of the bank also does not conclusively stand belied by the statement of Ghulam Rasool P.W. 2.

11. Apart from that there are a number of positive indications on the record supporting the plea of genuine shortage of a sum of Rs.5,000 having occurred in the sum received by the accused on 11-11-1980. The first significant fact in that regard is the admitted circumstance of the accused having informed Muhammad Arif Diwan, the then Manager, on 13-11-1980 that a shortage of Rs.5,000 had occurred in the cash received by him from Ghulam Rasool and Brothers while working as cashier on 11-11-1980 and that he had contacted the party also in that connection. On the basis of the said fact, which is apparent on record and stands proved without any argument in that behalf, it is clear that the explanation of the accused on 13-11-1980 i.e. third day of the occurrence, in respect of the said shortage was that it was genuine one, having taken place in the normal course of banking business without any criminal act on his own part.

12. The accused had, however, submitted, in his statement under section 342, Cr.P.C. that he had informed the Manager the very next morning that he had discovered a shortage of Rs.5,000 in the sum of E Rs.23,200, received by him from Messrs Ghulam Rasool and Brothers on the previous day. On scrutiny of the statement of Muhammad Arif when he originally appeared as P.W. 1 on 20-6-1983 and his statement in cross-examination when he reappeared on 29-1-1985 as resummoned prosecution witness, as well as his letter, dated 12-11-1980 (carbon copy Exh. P.W. 1/4) it appears to me that the said plea of the accused stands substantiated. According to the said statement of the said witness, especially the one made on 20-6-1983, it was clear that in the deposit receipt in possession of the party and in the ledger, the entry of said transaction in the hand of the accused was for a sum of Rs.23,200 while in the cash credit voucher, available in the record of the bank, and receiving cashier's book, the sum entered was Rs.18,200. However, in spite of all the said information, he did not in his said letter, dated 12-11-1980 make any allegation of the accused, having received the said sum and misappropriated the same. As shown by Exh. D. 1, the said letter was despatched on 13-11-1980 and even then the Manager, Muhammad Arif did not choose to add an allegation of any criminal import against the accused in the said letter. According to normal human experience, the Manager would have laid blame upon the accused especially when he, as a Manager, was answerable for all what had happened in his branch and was faced with the necessity of exculpating himself too. The circumstance that he neither made any assertion of receipt by the accused of the entire sum of Rs.23,200 from Ghulam Rasool P.W. nor laid any charge of defalcation by the accused of the sum of Rs.5,000 in the said letter appears to my mind to show that the accused had on the very next day in the morning informed the said Manager of the said shortfall and had explained to him that it had occurred due to his having not counted the cash at the time of its receipt from the party and had thus neutralized the mind of tile Manager vis-a-vis, his criminal involvement in the matter.

13. There is however, another more important circumstance showing the same, and that circumstance is that although Muhammad Arif Diwan, when he originally appeared as P.W. 1, professed to have himself came to know on 12-11-1980 of discrepancy between entry of a sum of Rs.23,200 in the ledger, and entry of a sum of Rs.18.200 in the cash credit voucher retained in the bank and deposit receipt available with the account holder his statement in cross-examination as a resummoned witness, when analysed, shows that it was the accused who had informed him of the shortage in the cash received by him and the consequent discrepancy in entries in the bank record. Muhammad Diwan stated in re-cross-examination on 29-1-1985 that when on the next day, i.e. on 12-11-1980, he had came to the bank, the vouchers and the ledger register were presented before him and there he discovered-discrepancy and on that he called Fayyaz Agricultural Credit Officer to check-up the matter and thereupon Fayyaz recorded a note in the ledger against said entry of Rs.23,200. The said note, however, was only to the effect that a wrong entry of Rs.23,000 had been posted and that it may be corrected. Thus only thing which Fayyaz appears to have been able to find out was that the entry of Rs.23,200 in the account of Messrs Ghulam Rasool and Brothers, ,in the ledger was not commensurate with the entry of a sum of Rs.18, 200 in the receiving cashier's book and was, therefore, liable to be corrected so as to read Rs.18,200. Muhammad Arif, the Manager who had depended upon Fayyaz had thus not been able to know through said Fayyaz that there was actual shortage of hard cash of Rs.5,000 in the bank funds. This he would have been able to know if the entire panorama of facts had been laid bare before him which Fayyaz had failed himself to discover. Next to Fayyaz, the accused was the only officer who could have informed him of the same and put all the facts before him. As deposed to by P. W. 3, Muhammad Khalid Khan, the succeeding Manager, in the course of his cross-examination, staff strength in the said branch, when he was posted there, consisted of a Manager, an officer Grade 111, an Agricultural Credit Officer, a cashier and one gun man. The above statement of Muhammad Arif Diwan P.W.1 shows that Fayyaz Agricultural Credit Officer was .not in know of the said discrepancy in the cash as he had been called by him. (Muhammad Arif Diwan Manager) allegedly on his discovery of discrepancy between the entries in credit voucher, cashier's bank on the one hand and the ledger on the other hand and directed to make necessary checking in the matter and the note recorded by him against the relevant entry in the ledger sheet also did not show that he had realized that there was a shortfall in the bank cash because he recorded the said note considering the entry of a sum of Rs.18,200 in the cash credit voucher and receiving cashier's book to be correct. Ghulam Abbas who was cashier could not have informed the Manager on the said shortfall as he was on leave on 11-11-1980 and could not have possibly known what had happened in the bank or, the previous day. He was not even concerned with the discrepancy which had occurred on 11-11-1980 as somebody else, namely, Pervaiz Mahmood accused had worked in his seat on that day. Thereafter, only one person, namely, accused Pervaiz Mahmood is left. It is he alone who could have apprised the Manager on 12-11-1980 of the background of the discrepancy between the entries in the cash credit voucher and receiving cashier's book on the one hand and ledger register on the other hand. Out of the entire staff, it was he alone who could have informed him of the shortfall in the bank funds to the tune of Rs.5,000 and given him the record therefor. It thus clear that it was the accused who had on the very next day, on 12-11-1980, given the Manager Muhammad Arif Diwan information of the said shortage of money in the bank funds and given his explanation that said shortage had been caused due to the factum of his having not counted the cash. The statement of the accused to that effect, therefore, appears to be correct. Muhammad Arif had stated as P.W. 1 that he had left the branch at 1-30 p.m. on 11-11-1980. Thus, 12-11-1980 constituted the first available opportunity on which the accused could have informed the Manager of the said shortage and his reason therefor and the examination of above evidence shows that the accused actually informed the Manager of the said shortage and had given his said explanation for the same on the very morning of next day.

14. The proved circumstance of the accused having apprised the Manager of the said shortage and given his explanation therefor right on the morning of 12-11-1980 is of great importance in this case as it shows the first version of the incident which the accused had put forward at the earliest opportunity before the Manager of the bank. In Hasil v. Emperor A I R 1942 Lah. 37 Muhammad Yaqoob v. The State PLD 1969 Lah. 548, it was held that where two versions of the same incident are being put forward during investigation, it is often of great importance for an accused to be able to show that his own explanation was put forward at the earliest opportunity. In Ghulam Abbas v. The State PLD 1968 Lah. 101. It was held by Mr. Justice Sajjad Ahmad Jan, who later rose to be learned Judge of the. Supreme Court of Pakistan, that an accused may rely on a statement which had been made by him during investigation in support of his version of the case as the earliest statement which he had given on the subject and it may be admissible for the purpose to clear his own conduct. The said cases are of statements made by the accused during investigation. The present case is on a much higher pedestal as in this case the accused had made the said statement before any ,investigation had started and even before it was decided whether an F.I.R. should be lodged or the matter should be dealt with on departmental side: The fact that no l F.I.R. had been lodged when the accused gave that explanation on H 12-11-1980 shows that accused had no reason to concoct a false story in relation to the incident.

15. Furthermore, the criminals who commit their misdeeds in the darkness. of the night or in the cover afforded by dark corners during the day do not voluntarily expose to light their misdeeds. They do not go about announcing and proclaiming their criminal acts of commission and omission. On the other hand, to void detention and apprehension, I they become all the more secretive. It is only innocent persons through whose inadvertent mistake wrongful acts unintentionally take place who adopt that course and appraise their superiors on the first available opportunity of the mishap which has occurred to them. The accused is surely a man of latter type as he voluntarily stated before his Manager on 12-11-1980 the very next day of the occurrence, that a shortage had taken piece in the cash received by him on 11-11-1980 from Ghulam J Rasool and Brothers. However, kept the matter concealed and immediately brought it to lime light and even stated that he had also taken the active step of approaching the concerned party and his effort to make up the said deficiency in the funds of the bank. Therefore, from the d statement made by the accused to the Manager of his branch of the bank on the first available opportunity falling on the very next day of the incident. I am inclined to think that the accused had in fact come by a deficiency of said sum of Rs.5,000 at the closing hour on 11-11-1980 in the cash received by him as officiating cashier on that day from Messrs Ghulam Rasool and Brothers.

16. There is still another circumstance on record which appears to support the plea of the accused that the shortage was genuine one. The accused was admittedly an officer in the bank. He issued a deposit receipt to Ghulam Rasool for the said sum. He also posted an entry of said sum in the ledger. A bank officer with a shred of sense and a little bit of prudence in him would not in that situation take away a sum of Rs.5,000 out of the said sum and expose himself to criminal prosecution which may entail even his imprisonment in jail for quite a' length of time' This also inclines me to think that accused's plea of shortage 'having occurred on account of his having not counted the cash at the time of its receipt is based on truth. Furthermore, the accused showed his age to be 40 years and stated in his statement under section 342, Cr.P.C. that by the time the occurrence in question had taken place, .he had put in 15 years of service in the bank. There is nothing in prosecution evidence to negate the said claim of the accused. The said service constituted the very means of livelihood of the accused. I do not think that the accused would have sacrificed his entire career and destroyed the very means of his livelihood for the sake of a small sum of Rs.5,000 when during the course of 15 long years of service in the bank, he can be visualized to have had innumerable opportunities to make fraudulent and dishonest withdrawals and misappropriation of much bigger sums of money from the bank. This circumstance also eggs me on to think that there was a genuine shortage of Rs.5,000 in the cash received by the accused on 11-11-1980.

17. Another significant fact which cannot be lost sight of in this connection is that the accused was fair and upright in his conduct and since he had stated that he had not counted the sum received by him from Messrs Ghulam Rasool and Brothers, he had, in order to avoid loss to the bank due to his default voluntarily deposited the said sum of Rs.5,000 on 17-11-1980 in the bank and thus made good the deficiency of the bank within 5/6 days only. The said conduct of the accused is consistent with and fully supports the stand of the accused that genuine shortage of Rs.5,000 had occurred in the cash received by him from Messrs Ghulam Rasool and Brothers without counting the same and shows that the plea of trite accused in that regard was correct.

18. There is another startling circumstance in this case touching the question of genuineness of the shortage and that is one of the Head Office of the bank having not trusted this Court with their reason for deciding to prosecute the accused. The accused had in his statement under section 342, Cr.P.C. stated that this case had been made against him because the Banking Council had issued instructions for prosecution of all the officials responsible for shortage in the bank funds irrespective of the fact that the said shortage was genuine or, not. The accused had been able to establish that the Head Office of the bank had directed on 30-3-1982 by a teleprinter message that and F.I.R. be lodged against the accused in said case of Shamke Bhattian Branch of the bank. There is, however, nothing to show why said decision has been taken by the bank. The accused was a,-i experienced officer of theirs, who had spent years of service in the bank. The circumstance that he had stated before the Manager almost immediately after the occurrence that shortage had taken place in his cash (on account of his inadvertence in not immediately counting the case received by him from Ghulam Rasool and Brothers) must have started the authorities in the Head Office in their very face. There is nothing in this case to show that they took any decision on that first plea of the accused which to all intents and purposes was plausible and did not stand negated by any adverse circumstance before that is no doubt true that it is in the statement of P.W. 3 Muhammad Khalid Khan, the succeeding Manager, that there was an internal enquiry in the bank but no enquiry report has been put on the record nor there is any evidence in this case to the effect that the said enquiry took into consideration the said specific plea of the accused which he had raised before the Manager. In the circumstances, there appears to be truth in the statement of the accused that this case had been made against him on account of the instructions of the Banking Council to prosecute every bank Officer/ Official in whose charge any shortage of money had taken place irrespective of the circumstance whether said shortage was genuine or not.

19. For the foregoing reasons, in my opinion, it is not conclusively proved that full sum of Rs.23,200 including the sum of Rs.18,200 which was duly accounted for by the accused in the books of the bank had been handed over to the accused for being credited in Account No. 51 of Messrs Ghulam Rasool and Brothers. The receipt by the accused of the sum of Rs.5,000 on 11-11-1980 (which constitutes the difference between the said two sums) appears, to be extremely doubtful in the circumstance of this case. Therefore, the entrustment (which is the sine qua non for the offence of criminal breach of trust) of said sum of Rs.5,000 to the accused has not been established beyond all shadow of doubt.

20. It is notable that in evidence on record only a shortage of a sum of Rs.5,000 has been proved but mere shortage of the said sum of Rs.5,000 is not by itself sufficient to prove the charge of criminals breach of trust by a public servant, as, dishonest misappropriation or conversion of said money to one's own use which in the other essential ingredient of criminal breach of trust as defined in section 405, P.P.C. has not been established in this case. It was laid down in Mir Ahmad v. The State P L D 1962 S C 489 that mere absence of the money without more is not in all cases, sufficient to establish misappropriation and the accused is under the duty of furnishing an explanation for the shortfall when the custody is exclusively his but cases are conceivable, e.g. of faulty accounting or of lack of control in excess to safe-deposit, where it would also be necessary to furnish something by way of proof of conversion to sustain a conviction. Following the said decision it was laid down in a Lahore case Syed Mustafa Shah v. The State 1968 PCr.LJ 358 that mere disappearance of the property entrusted would not be sufficient to establish misappropriation unless it is also proved by the prosecution that the accused is responsible for doing himself or wilfully suffering some other person to do the acts mentioned in section 405, P.P.C., namely, dishonest misappropriation, conversion to one's own use, dishonest use or disposal of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or wilfully suffering any other person to do so. Seen in the light of these pronouncements it is clear that it was incumbent upon the prosecution to produce evidence to show that the accused had put the said sum of Rs.5.000 to his own use somehow but no such evidence has been placed on record in that respect. Thus, no, misappropriation by the accused has been proved on record.

21. For all the above reasons, I do not find the accused guilty of the offence under section 409, P.P.C.

22. The next charge against the accused is one under section 468, P.P.C. in respect of his having made a false and counter-feit voucher of a sum of Rs.18,200, after tearing off the original voucher for a sum of Rs.23,200. Nobody has deposed as an eye-witness to the occurrence of the accused having torn away the original voucher for a sum of Rs.23.200. It has, however, been proved and even admitted by the accused that a new voucher for a sum of Rs.18,200 was prepared by him in his own hand in substitution of original voucher for a sure of Rs.23,200 which he had at first signed. However, the stand of the accused .in respect of the reason why he did that, appears to be that it was not a case of committing forgery by him but one of his having been constrained to make the said new voucher on account of his having been placed on the horns of a dilema towards the closing hours as to how to balance the cash with the books in order to close the strong room and the bank, when no other officer of the bank was available. Muhammad Khalid Khan, P.W. 3, the succeeding Manager, admitted that there can be a genuine shortage on account of receipt by the cashier inadvertently of an incorrect amount but he contended that in such a case, the procedure to be adopted is that the cashier immediately informs the Manager and makes up the deficiency if the amount is available with him but if the amount deficient is nut available with him then if the 'Manager is inclined to believe that the mistake is genuine, he may contribute alongwith other employees of the bank to save the cashier or otherwise the Manager and other employees of the bank may take advances towards their salary from the suspense account against vouchers signed by them provided they agree to take the advances and contribute the sums to the cashier and make-up the deficiency to close the strong room. He also stated that if the deficiency in the cash is too much, then the Manager Makes a voucher of sundry deposit account in respect of the cash shortage and thus tallies the account with the cash to close the strong room. It is, however, significant that none of the two alternatives was available to the accused at the closing hours when he had found the deficiency of Rs.5,000 in the cash received ,by him from Messrs Ghulam Rasool and Brothers. The manager was not admittedly available at that time because he had left at 1-30 p.m. as conceded by the said Manager Muhammad Arif Diwan when he appeared as P.W. 1. The accused had in his statement under section 342, Cr.P.C. stated that Fayyaz had also left at 1-30 P.m. as Muhammad Arif Diwan, Manager and said Fayyaz. Agricultural Credit Officer had to appear in an inquiry in Mozang Branch of the Bank. There is no indication on record belying this statement of the accused. Prosecution evidence also does not show that Fayyaz was present at the closing hour on 11-11-1980. Even otherwise, he was an Agricultural Credit Officer and was normally expected to be in the field in connection with the grant of agricultural loans. In any way, he was on a totally different assignment and was not concerned with the day to day banking transactions in the branch. There was thus no officer in the bank at the closing hour on 11-11-1980, who could help the accused when he discovered the said shortfall at the closing hour and found himself in a predicament how to make the balancing and close the strong room and in consequence close the bank. As already stated it was a five-men branch consisting of the Manager, Agricultural. Credit Officer, a Grade III Officer, a cashier and a gunman. The cashier was on leave on that day, the gunman was not in a position to help the accused. There was thus nobody who could either make any grievance of any money or sign any voucher to get advance of pay and supply the same to the accused in order to enable him to make-up deficiency of Rs.5,000 which he had discovered about the closing hour. The Manager was not there to make a voucher of sundry deposit account in respect of cash shortage in order to tally the cash with the account. The accused was thus constrained to take resort to some 'contrivance in order to do the necessary balancing. He was facet with the necessity of doing something to make the balancing in order to close the strong room. He could not have sat for the whole night in the' bank. He was thus in these circumstances, compelled to make a voucher for a sum of Rs.18,200 which he put on the record of the bank in order to do the balancing. The making of fresh cash credit voucher for a sum of Rs.18,200 instead of one for a sum of Rs.23,200 may be wrong departmentally but doing of an act in violation of banking law and procedure is one thing and doing of it with a criminal intent is another. The two stands are on "totally different footing. The accused, no doubt, made a false voucher but it was obviously not for the purpose of lulling the bank authorities to sleep and thus enable him to make away with the said sum of Rs.5,000 for as held earlier, he lost no time in informing his superiors about the shortage of a sum of Rs.5,000 which had occurred in his cash and took little time in reimbursing the bank for the shortage it had suffered in its funds due to his default in not counting the cash at the time of its receipt by him from Ghulam Rasool P.W. 2. In making the said new, voucher, there was obviously no intention on his part to cause any wrongful loss to the bank or to commit' any fraud upon the bank. He also had no intention to cause wrongful gain to himself. He had thus n0l committed the offence of forgery 'as defined in section 463 read with clause secondly of section 464, P.P.C. Another circumstances which shows that he had absolutely no intention to cheat the bank is his conduct in placing all his cards I before the Manager on the very next morning. The act of his informing the Manager right on the next morning of the deficiency which had occurred in the cash received by him is an eloquent testimony to the fact that he had no intention to cheat the bank and to cause any wrongful loss to the bank and wrongful gain to himself. The intention to cheat which is the essential ingredient of offence under section 468, P.P.C. was thus conspicuous by its absence from conduct of the accused in making the said new voucher. The accused had made that voucher only as a special measure in order to tide temporarily over the difficulty with which he was faced on account of his being all alone in the bank at the closing hour when he discovered a deficiency of Rs.5,000. In my opinion, therefore, the charge for offence under section 468, P.P.C. is also not proved against him.

23. For the foregoing reasons, I acquit the accused of the scheduled offences under sections 409 and, 468, P.P.C. He is already on bail. His bail bonds stand discharged.

24. So far as the offence under section 5 of Act II of 1947 is concerned, the prosecution may, if so advised, get the accused prosecuted in a competent Court of law. It may, however, be of interest to the prosecution to note that dishonest and fraudulent misappropriation or conversion to his use of any property entrusted to him as a public servant which is the basic ingredient of the said offence had been held not to have been proved in this case. The prosecution may, therefore, consider whether it would be available for them to launch the said fresh prosecution., for offence under section 5 of Act II of 1947 in the circumstances of the present case.

H.A.K. Accused acquitted

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