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Criminal Appeal No.157 of 1986, heard on 11th February, 1987.

---S.408--Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), S.10--Criminal breach of trust by Bank Official--Bank receipts--Evidence of complainant independent and, straightforward- Witnesses deposing against accused, having no enmity with him- Evidence of such witnesses further corroborated by documentary evidence including extra-judicial confession made by accused- Counterfoils of pay-in-slips clearly showing that accused had received amount in question from different account holders but failed to credit same in their respective accounts--Evidence of majority of prosecution witnesses going unchallenged--Prosecution proved its case beyond any reasonable doubt and conclusions arrived at by Trial Court unexceptionable--Conviction maintained.

---S.408--Sentence--Accused lost his job and remained in jail for over six months-- Sentence of imprisonment reduced from four years to two years.

A.S.Pinger for Appellant.

Anwar Mansoor Khan for the State.

Date of hearing: 11th February, 1987.

.--This appeal is directed against the judgment of conviction passed by the learned Presiding Officer, Special Court (Offences in Banks) Karachi, by which the appellant has been convicted under Section 408 P.P.C. and sentenced to suffer R.I. for four years, and to pay fine of Rs.20,00,000 and in default in suffer further R.I. for one year.

We had disposed of this appeal on 11-2-1987, by a short order by which the appeal was dismissed, but we had reduced the sentence to two years R.I. and maintained the fine, and in default of payment of fine thee appellant will, further suffer R.I. for one year. It was also directed that the appellant is also entitled ' to the benefit of section 382-B, Cr.P.C. With this modification in sentence, the appeal was dismissed. The following are the reasons for the above order. '

The facts giving rise to the present appeal are that the appellant was working as cashier in Jadia Bazar Branch of United Bank Limited at Karachi, during the year 1984. In the month of November, 1984 the appellant received a sum of Rs.9, 34, 500 from twelve account holders and issued counterfoils of pay-in-slips duly signed and sealed by him in token of the receipt of the said amount on behalf of the bank, but he failed to deposit the said amount in their respective accounts with the bank, and committed criminal breach of trust in respect of the above amount.

On 11-11-1984, one Ghulam Mohiuddin, Assistant Vice President/ Manager of Jodia Bazar Branch of U.B.L. Karachi sent a letter to the Deputy Director F.I.A. (CBC) Karachi, inter alia alleging therein that accused Muhammad Hanif is an employee of U.B.L. and was posted at U.B.L. Jodia Bazar Branch as cashier since last several years. That the account holders namely M/S. Al-Tayeb and M/S. Abdul Karim had issued 3 cheques from 6-11-1984, but their accounts did not show sufficient funds at the relevant time. The account holders, however, produced receipts evidencing sufficient funds to honour their cheques. On inquiry Muhammad Hanif cashier produced pay-in-slips for such payments which were not entered in the relevant receiving cashier books, nor in the ledger sheet of the account holders. That on 11-11-1984, Muhammad Hanif voluntarily admitted his guilt orally as well as in writing that he had misappropriated a sum of Rs.9, 34, 500 deposited by the Customers of the Bank for which he also produced relevant pay-in-slips which he had concealed.

The charge under Section 408 P.P.C. was framed against the appellant to which he pleaded not guilty.

The defence of the appellant was that he had collected the above amount but as a normal practice put all the pay-in-slips in foker, and before he could enter the pay-in-slips in question on relevant dates in Cashier's pay-in-slips register, all the slips were removed from the foker by Abdul Hameed the second Officer, and the cash received by him was collected from him by Abdul Qadir and as such he could not complete all the formalities according to bank practice in respect of the amounts received by him through those twelve pay-in-slips. The prosecution has examined P.W.1 Ghulam Mohiuddin, A.V.P. Manager U.B.L. Jodia Bazar Branch, P.W.2, Saleh Muhammad who was another cashier, P.W.3, Muhammad Rafique, P.W.4 Muhammad Ashraf, P.W.5 Javed Anwar, P.W.6 Muhammad Rafiq, P.W.7 Fakhruddin, P.W.8 Ali Abbas, P.W.9 Muhammad Tariq, P.W.10 Muhammad Ashraf son of Ayub, P.W.11 Mr.Sultan Ahmad Siddiqui and P.W.12 Muhammad Zamir Khan Assistant Director, F.I.A. who investigated the case.

After close of prosecution side, the appellant was examined under section 342 Cr.P.C. in which he has denied the allegation made against him. The further defence of the appellant was that he had collected the above amount but as a normal practice put all the pay-in-slips in foker and before he could enter the pay-in-slips in question on relevant dates in Cashier's pay-in-slips register, all the slips were removed from the foker by Abdul Hameed the second Officer, and the cash received by him was collected from him by Abdul Qadir, and as such he could not complete all the formalities according to bank practice in respect of the amount received by him through those twelve pay-in-slips. However he did not examine any witness in defence.

The trial Judge convicted the appellant under section 408 P. P. C. for committing breach of trust of Rs.9,34,500 and sentenced him as described above.

P . W. Ghulam Mohiuddin Baluch who is A . V . P . /Manager of U . B. L. Jodia Bazar Branch has stated that in November, 1984 he was Manager in U.B.L. Jodia Bazar Branch which he joined in February, 1983. The appellant was working as Cashier in the said branch. On 5th November, 1984 account holders M/S. Abdul Karim sent a cheque for Rs.2,50,000 but there were no funds available in their account and therefore he contacted them, on which they were surprised. However, they asked to honour the cheque. On 7th November, 1984 another account holder Al-Tayeb presented a cheque for Rs.5,25,416 for encashment and since there was no balance he contacted him. The account holder was surprised and insisted that there were sufficient funds in his account and he came over to the bank with counterfoils. The counterfoils showed certain deposits made by him. M/S. Abdul Karim deposited Rs.1,55,000 in cash on 8-11-1984 as promised by them for passing their cheque of Rs.2,50,000, this amount was received by the appellant as cashier but the same was not credited in the account of M/S. Abdul Karim, and as such he called the appellant for explanation on 10-11-1984, on which the appellant told him that due to oversight he had not accounted for these deposits which was lying in the safe and he brought the same. He has produced the cheque of Abdul Karim Brothers as Ex.2-A and the pay-in-slips by which M/S. Abdul Karim Brothers deposited Rs.1,55,000 on 8-11-1984 as Ex.2-B, he has further stated that he is conversant with the signatures of the appellant. He has further, stated that he was conversant with the signatures of the appellant and his hand writing, as he has worked with them for two years in which course of time his writing and signature as well as initials came to him in normal course of banking business, M/S. Al-Tayab sent their representative with counterfoils and pay-in-slip for Rs.3,00,000 deposited in their account on 5-11-1985. On examination he found that money was received by cashier but no entry was made in the cash register of that date, nor that amount was deposited in the account of the account holder. Before he could verify the reason for not depositing this amount, appellant produced pay-in-slip dated 5-11-1984 by which he had received the amount which he had credited in the cash book on 7-11-1984 and subsequently party's cheque was honoured. He has produced cheque as Ex.2-C and pay-in-slip of Rs.3,00,000 as Ex.2-D. The appellant's signature for having received Rs.3,00,000 vide Ex.2-D which was dated 5-11-1984, but the date under appellant's signature for having received the said amount is not there, however, counterfoils produced by account holder shows that the amount was deposited on 5-11-1984. He has further stated that the above two entries created doubt in his mind regarding integrity and honesty of the appellant and consequently he kept him under watch. However, on 11-11-1984 he removed the appellant from Jodia Bazar cashier's post and thereafter asked him to honestly disclose the true position in respect of fraud if any committed by him in the branch. The appellant produced 12 original pay-in-slips and statement in writing that he had committed criminal breach of trust in respect of total amount of Rs.9,34,500. According to him this statement was made by appellant voluntarily in presence of other officers of the bank. He has produced the statement of the appellant as Ex.2-E and 12 pay-in-slips as Ex.2-E-1 to 2-E-12. According to him those pay-in-slips were bearing signatures of the appellant. He checked daily cash book for the month of November, 1984 to which the 12 pay-in-slips related, and did not find any entry of the amount in the said cash book which he produced as Ex.2-F. This Ex.2-F pertained to the period from 25th October, 1984 to 12th November, 1984, covering the period of 12 pay-in-slips. He also checked ledger book of the 12 amounts in question but amounts mentioned in the 12 pay-in-slips were not mentioned in the respective ledger book. He has produced the original ledger book of 'account holder M/S. Imran Suleman Ltd. New Pakistan Traders, Kamoki Rice Syndicate, Ashrafia Chemicals, Mushtaque Khan Wala, Jawaid Anwar, Akbar Ali Yousuf Ali, Abu Warand, F.Y. Enter-prises, Haji Muhammad Naim as Ex.2-G to 2-G-9. That he contacted the account holders in question and asked them to produce original counterfoils. That they produced counterfoils and after verifying the counterfoils produced by account holders the bank reimbursed the account holders. The total amount of said reimbursement comes to Rs.9 34 000. He lodged the complaint with F.I.A. under the directions from Zonal Office which he produced as Ex.2-H, to has also produced counterfoils as Ex.3-A to Ex.3-D, Ex.4-A and Ex.4-B, Ex.4-C and Ex.4-D and the counterfoils as Ex.5-A and 5-B. He has also produced counterfoils as Ex.6-A to 6-B, 7-A, 7-B, 8-A, Ex.8-B, Ex.9-A and Ex.9-B. He has also produced counterfoils of pay-in-slips Nos.7722151 which was produced by account holder M/S. F. Y. Enter-Prises along with their letter as Ex.2-1 and 2-1-A, he has also produced counterfoil of pay-in-slip No.2685065 which was produced by account holder Haji Muhammad Naim with his covering letter as Ex.2-J and 2-J-A. He has also produced counterfoils and pay-in-slips No.958955 which was produced by account holder Abu Warrand as Ex.2-K and 2-K-1. He has further stated that he identifies the signature of the appellant on Ex.2-1, 2-J and 2-K having signed as a cashier for having received the amount mentioned in those counterfoils. He has further stated that police had seized various documents from him under mashirnama which he has produced as Ex.2-L, 2-L-1, 2-L-2, 2-L-3, 2-L-4, 2-L-5, 2-L-7 and 2-L-8. He has also produced cash daily receipt book in respect of evening banking from 5th July, 1984 to 13th November, 1984 as Ex.2-M, in which also the amounts received by the appellant vide pay-in-slips as Ex.2/E-1 to 2/E-12 were not shown: According to him Ex.2-F and 2-M are in handwriting of appellant Muhammad Hanif. That when appellant gave Ex.2-E, Mr.Sultan Ahmad Siddiqui, Additional District and Sessions Judge was present in the bank and had signed Ex.2-E as a witness along with one Mehmood Hussain.

P.W.2 Muhammad Saleh has deposed that in November, 1984 he was working as Cashier in Kamoki Rice Syndicate and as such it was his duty to deposit the money in bank as well as to withdraw money from the bank on behalf of his firm. That the above firm had account No.8489 with U.B.L. Jodia Bazar Branch. On 7-11-1984 he went to deposit Rs.39,000 in the account of the firm by pay-in-slip No.5694049, and paid the above amount to accused Muhammad Hanif, who was working as a Cashier in the above Branch. That the accused after receiving the above amount gave him counterfoil of pay-in-slip duly signed and sealed by him which he produced as Ex. 3-A. Similarly on 8-11-1984 he deposited Rs. 46, 000 and the amount was paid to the accused who issued pay-in-slip No.7594051 duly signed and sealed by him in his presence which he has produced as Ex.3-B, 2, 3 days thereafter Mr. Khalil the then Manager of the branch rang-up their firm and asked them to produce the counterfoils of the above mentioned pay-in-slips as the original pay-in-slips have not been credited in their account, on which Mr. Abdul Razzak Shaikh proprietor of the firm sent the original counterfoils to the branch of the bank by two covering letters dated 13-11-1984, and the same were produced as Ex.3-C and Ex.3-D. No question was put to this witness confronting him regarding payment made by him.

P.W.3 Muhammad Rafiq has deposed that he is a sole proprietor of New Pakistan Traders and has account No.8448 with U.B.L. Jodia Bazar Branch, Karachi. On 8-11-1984 he had deposited Rs.50,000 through two pay-in-slips of 89.25,000 each bearing No.8382582 and 8382583, and that he had paid this amount of Rs.50,000 to Muhammad Hanif who was Cashier in the said bank. He has produced both counterfoils as Ex.4-A and 4-B. Two days thereafter he went to the bank to get the L.C. issued when he was informed that the amount of Rs.50,000 deposited by him on 8-11-1984 was not credited in his account. He immediately contacted the Officer of the branch who asked him to bring original counterfoils with covering letter which he did on 12-11-1984. He has produced the two covering letters as Ex.4-C and 4-D. According to him bank has re-imbursed him later. This witness was also not cross-examined by the appellant and his counsel.

P.W.4 Muhammad Ashraf has deposed that he is proprietor of Ashrafia Chemicals and has account No.1276 in U . B. L. Jodia Bazar Branch, Karachi. On 10-11-1984 Rs.1,00,000 was deposited by his brother Muhammad Tariq vide counterfoil No.765702. On 11-11-1984 he wanted to withdraw certain amount from the above account but the amount of Rs.1,00,000 was not credited in the said account and therefore he went to Manager Mohiuddin Baluch, who told him to bring counterfoil which he did. The counterfoil and covering letter have been produced as Ex.5-A and 5-B.

P.W.5 Jawaid Anwar has deposed that he has Account No.8379 in U.B.L. Jodia Bazar Branch, Karachi. On 10-11-1984, he deposited Rs.40,000 vide counterfoil pay in slip No.3707279 in the said account. He paid this amount to accused Muhammad Hanif who was working as cashier in the said bank, and after receiving the said amount accused returned him counterfoil duly signed and sealed by him in his presence and the same has been produced as Ex.6-A. On 12-11-1984, he went to withdraw some amount from his account, when he came to know that Rs.40,000 deposited by him were not credited in his account. He went to the Manager and complained to him, who asked him to produce counterfoil with covering letter, which he did, and he was reimbursed by the Bank. He has produced covering letter as Ex.6-B. It is worthwhile to mention that this witness was not cross-examined by the accused and his counsel.

P.W.6, Muhammad Rafiq, has stated that he was Manager in Imran Salman Limited, in November, 1984, and this company had an account No.7104 with the Jodia Bazar Branch of U.B.L. On 10-11-1984 he had sent one Ashraf who was working 'under him to- deposit Rs.50,000 in the above account which he deposited vide counterfoil pay-in-slip No.9858741 and the same has been produced as Ex.7-A. Since their balance was not tallying, he sent Muhammad Ashraf to the branch for making inquiries, who returned back and told him that the sum of Rs.50,000 deposited by him on 10-11-1984 was not credited in Account No.7404. On this, he went to the bank with a letter from their director Riaz Ahmad, by which original counterfoil Ex.7-A was sent to the bank through him. He saw the Manager and handed over the letter alongwith original counterfoil to him. Thereafter, their amount was fully reimbursed by the bank. He has produced the letter Ex.7-B.

P.W.7 Fakhruddin has deposed that he is working in M/S. Akber Ali Yousuf Ali as Manager since November 1984. M/S. Akber Ali Yousuf Ali had Account No.1203 with the jodia Bazar Branch of ,U.B.L. On 10-11-1984, he went to deposit Rs.2,00,000 but it was after bank time, and, therefore, he paid this amount to accused Muhammad Hanif who gave him counterfoil of pay-in-slip bearing , No.1492705 duly signed and sealed by him in his presence. According to banking practice in Pakistan, any deposit which was made after banking hours, the date given on pay-in-slip is to be of the next day, and consequently, on this counterfoil 1-1-1984 was mentioned. He has produced the same counterfoil as Ex.8-A. On 12-11-1984, he came to know on inquiries from the bank that this amount of Rs.2,00,000 was not credited in Account No.1203; he saw the Manager, who asked him to produce original counterfoil with the covering letter. He asked partner of M/S. Akber Ali Yousuf Ali to give such letter which he did on 14-11-1984. On 14-11-1984, he gave the letter along with counterfoil to the Manager Mr.Baloch, on which the amount was credited in Account No.1203 by the bank. He has produced the letter as Ex.8-B. According to him he identified signature of the accused on counterfoil pay-in-slip as he had signed in .his presence.

P.W.8 Alt Abbas has deposed that he was working in the shop of Mushtaq Khan-Wala since 1984. Mr. Khanwala had Account No.8357; with Jodia Bazar Branch of U.B.L. On 7-11-1984, he went to deposit Rs.70,000 in the said account. He paid this Amount to accused, who was working as cashier in the said branch who after receiving the same returned him back the counterfoil of pay-in-slip No. 1- 542764, duly signed and sealed by him in his presence. He identified signature of accused Muhammad Hanif on that counterfoil as the accused had signed in his presence. The same has been produced as Ex.9-A. After two days, the Manager of the Bank rang up Mr.-Khan Wala and asked him to send statement, as amount deposited by Ali Abbas was not credited in Account No.8357. Therefore, he went to the bank and gave his statement to the Manager. On 12-11-1984, Mushtaq Khan Wala forwarded original counterfoil along with covering letter to the bank which he produced -as Ex.9-B. After letter Ex.9-B was delivered to the bank a sum of Rs.70,000 was reimbursed in Account No.8357 by the Bank.

P.W.9 Muhammad Tariq has deposed that he is working in Ashrafia Chemicals since 1984, P.W. Muhammad Ashraf is son of the proprietor. On 10-11-1984, P. W. Ashraf had given him Rs.1, 00, 000 in cash for depositing in their account No.1275, with Jodia Bazar Branch, of the U.B.L. He took the said amount and gave it to the accused Muhammad Hanif who after counting the same returned him back counterfoil of pay-in-slip No.7657042, after duly sighing and sealing the same in his presence. He produced receipt as Ex.5-A. This witness was also not cross-examined by the accused and his counsel.

P.W.10 Muhammad Ashraf has deposed that in November, 1984, he was working as Assistant in Imran Salman Ltd. where P.W. Muhammad Rafiq was the Manager. On 10-11-1984, P.W. Muhammad Rafiq had given him Rs.50,000 for depositing in Account No.7407, of Imran Salman Ltd. with Jodia Bazar Branch of U.B.L. He took this amount and gave it to accused Muhammad Hanif who was then working as cashier. The accused accepted the said amount and thereafter returned him back counterfoil of pay-in-slip No.9858741 duly signed and sealed by him in his presence, in token of the receipt of the said amount. He has produced the said counterfoil of pay-in-slip as Ex.7-A. According to him, Ex.7-A bears the signature of the accused. This witness was also not cross-examined by accused or his advocate.

P.W. Mr.Sultan Ahmad Siddiqui, has deposed that in November 1984 he was Additional District and Sessions Judge at Karachi. He had personal account at Jodia Bazar Branch of U.B.L. where Ghulam Mohiuddin was the Manager at that time. He had this account for over 20 years and as such the members of the staff knew him as he used to visit the branch after banking hours. He has further stated that he knows accused Muhammad Hanif who was then working as cashier in jodia Bazar Branch of U.B.L. On 11-11-1984, he had gone to jodia Bazar Branch, at about 4.00 p.m. He went to cabin of P.W.1 Mr.Baloch where he found Chief Cashier Ashraf the accused present in Court and some other officers of the bank. At that time, his friend Mahmood Hussain Khan had also arrived as he was supposed to meet him at that place. They' saw accused present in Court writing some statement in Urdu, which he signed in their presence and the Manager requested him and Mehmood Hussain Khan to sign the said statement as witnesses. On inquiry, the Manager informed that accused had committed criminal breach of trust of about Rs.9,00,000 and he was admitting his guilt in writing. He also inquired from the accused who confirmed this statement and thereafter Mr.Sultan and his friend Mehmood Hussain Khan put their signatures on extra judicial confession of the accused. He has stated that Ex..2-E bears the signatures of the accused, his signatures, and that .of his friend's signatures. In cross-examination he has denied, that, P.W. Ghulam Mohiuddin had threatened the accused that unless he wrote and signed the extra judicial confession, he will to sent to jail by him.

P .W.12 Muhammad Zamir Khan, has deposed that in November, 1984, he was Assistant Director F.I.A. in Commercial Bank Circle, at Karachi. He incorporated F.I. R. of this case on 11-11-1984, and produced the same in Court as Ex.7. He deputed Inspector Mr. Habib Ali to arrest the accused, who arrested him by mashirnama dated 11-11-1984, and the mashirnama has been produced as Ex.13-B. He has recorded the statements of P.Ws mentioned above. He has also obtained handwriting of the accused before the Magistrate and forwarded the same to handwriting expert but the handwriting expert could not give his report as he wanted more documents which could not be made available by the Bank. He submitted interim challan on 25-11-1984, which was later treated as final by the Court.' The same was produced as Ex.13-C.

We have heard Mr.A.S. Pinger, the learned counsel for the appellant and Mr. Anwar Mansoor Khan Advocate for the State.

The contention of Mr.A.S.Pinger, learned Counsel for the applicant was that ocular testimony was interested, the extra judicial confession made by the appellant was under threat, and, therefore, was inadmissible. He has further contended that in the alternative the sentence awarded to him was excessive.

Mr.Anwar. Mansoor Khan appearing for the State has contended that the prosecution had proved its case, through ocular as well as documentary evidence and P.Ws. had no enmity with the appellant. He, however, conceded that the substantive sentence awarded to the appellant may be reduced in view of the peculiar circumstances of the case.

We have considered the contentions of the learned counsel and have also gone through the evidence. The evidence of complainant Ghulam Mohiuddin, Saleh Muhammad, Muhammad Rafi, Muhammad Ashraf, Javed Anwer, Muhammad Rafiq Fakhruddin, Ali Abbas, Muhammad Tariq, and Mr.Sultan Ahmad Siddiqui, appears to be independent, and straight forward. These witnesses had no enmity with, the appellant. The evidence is further corroborated by the documentary evidence including extra judicial confession made by the appellant himself. The counterfoils of pay-in-slips also clearly show that the accused had received the above amounts but had failed to credit it in respective accounts. Mr.Sultan Ahmad Siddiqui was Additional District and Sessions Judge and had no enmity against the appellant. Even majority of the prosecution witnesses have not been, cross-examined, and their evidence has gone unchallenged. The prosecution had proved its case against the appellant beyond any reasonable doubt, and there are no reasons to interfere with the conclusions arrived at by the learned trial Court.

However, we have given our anxious thought to the question of sentence in this case. The appellant has lost his job and has remained in jail for meanly six and half months, and therefore, we reduce the sentence from four years to two years R.I. and the sentence of fine is maintained, in default he would suffer R.I. for one year. He is entitled to the benefit of section 382-B Cr. P. C. With this modification in sentence the appeal is dismissed.

M.Y.H/M-140/K Appeal dismissed.

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