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Criminal Appeal No.33 of 1986, decided on 24th December,1986.

‑‑‑Ss.221, 225 & 537‑‑Penal Code (XLV of 1860), S.380‑‑Criminal trial‑ Charge‑‑ Accused not charged specifically for offence under S.380, P.P.C. yet convicted for such offence‑‑Accused, held, was misled in defending himself and lacuna in charge not condonable under S.225 or 537, Cr.P.C.‑‑Conviction of accused under S.380, P.P.C., therefore, was bad in law‑‑Case remanded for re‑trial in accordance with law.

P L D 1956 Lah. 157; P L D 1962 Kar. 756; 1985 P Cr. L J 423; A I R 1956 S C 116(I) ref.

‑‑‑S.471‑‑Evidence, appreciation of‑‑Trial Judge failed to formulate specific point for determination whether accused fradulently or dishonestly used as genuine any document nor based his findings on any logical consequences derived from evidence on record‑‑Conviction, held, not sustainable, in circumstances.

‑‑‑S.35‑‑Sentence‑‑Accused awarded only one sentence for two offences, one punishable under S.380/109, P.P.C. and another under S.471/109 P.P.C.‑‑Imposition of one sentence for two offences quite distinct from each other, held, not in consonance with provisions of S. 35, Cr.P.C.‑ Re‑trial ordered, in circumstance.

Zameer Hussain and others v. The Crown P L D 1949 Lah. .79 and Fazal Haq v. The State P L D 1982 Lah. 45 ref.

Syed Ahmed Farooqui for Appellant.

Faez Isa for the State.

Dates of hearing: 24th, 25th and 30th September, 1986.

Appellant Taiyab A. Khambaty has preferred this appeal under section 10 of the Offences in Respect of Banks (Special Court) Ordinance 1984 (Ordinance IX of 1984), against his conviction for offences punishable under sections 380 and 471 read with section 109 P.P.C. and sentence therefore of rigorous imprisonment for two years and fine of Rs.40,000 or rigorous imprisonment for six months more in default awarded by the learned "Presiding Officer, Special Court (Offences in Banks) Karachi by judgment dated 6th February, 1986 in case No. 307 of 1984.

Appellant was tried alongwith his wife Mst. Sakina on the following charge: (Exh.1).

"That you accused Tayab A. Khambaty was sanctioned a loan of Rs.40,000 on 26‑2‑1974 and actually a sum of Rs.33,980 were disbursed to you by A.D.B.P. in the name of Messrs Tasneem Poultry Farm, Orangi Karachi and you were required to furnish Bank Guarantee of 50% of the amount sanctioned and accordingly you furnished a bank guarantee No. LG 615 dated 27‑3‑1974 of Habib Bank Limited in favour of A.D.B.P. Main Branch and consequently a sum of Rs.33,980 were paid to you in all and while this loan was outstanding, you with abetment of co‑accused Mrs. Sakina Khambaty, who was Stenotypist in A.D.B.P. managed to remove the said original guarantee from your loan file and got it replaced with forged guarantee and by forging letter, dated 16‑9‑1975 in the name of A.D.B.P. you forwarded original guarantee to Habib Bank Limited and got it surrendered on the basis of said forged letter, dated 16‑9‑1975 and thus you Tayab A. Khambaty committed offences under section 471 P.P.C. by using forged letter dated 15‑9‑1975 as genuine, while to your knowledge it was forged for surrendering original guarantee No. LG 615 dated 23‑3‑1974 for Rs.20,000 surrendered to Habib Bank Limited and thus caused loss of valuable security which was available to A . D. B . P. for loan sanctioned in your favour and thus, you have committed offences punishable under sections 468 and 471, P.P.C. within my cognizance.

Then you accused Mrs. Sakina Khambaty abetted your husband co‑accused Tayab Khambaty in commission of above offences by removing and/or arranging to remove original guarantee in question from his loan file and replacing the same with forged guarantee and thus you have committed offences punishable under sections 468 and 471, P.P.C. read with section 109, P.P.C., within my cognizance."

Prosecution case stands reflected in the‑charge reproduced above. The alleged mischief of removal of the original gaurantee letter by the forged guarantee letter is said to have come to light during the proceedings taken by the Agricultural Development Bank of Pakistan (hereinafter mentioned as the A.D.B.P.) in the year 1976. The matter was taken up by Mr. M.A.Haq, the then Manager of the Bank when he addressed a letter No. KB/LC‑3031 dated 3‑1‑1977 to the Habib Bank Limited, New Challi Branch, Karachi (hereinafter referred to as the Habib Bank) calling upon them to pay a sum of Rs.27,620 outstanding against the appellant. The Habib Bank informed the A.D.B.P. by their letter dated 13th January, 1977 that the guarantee whereunder the claim was lodged had been released by them under their letter No. KB/LG‑3031 5129, dated 16‑9‑1975 on the borrower having furnished another security. The A.D.B.P. called the appellant /borrower and he made a statement before the aforesaid Manager of the A.D.B.P. on 25‑1‑1977 that he had replaced the original guarantee by its duplicate copy and returned the original to the Habib Bank under the letter referred to by the Habib Bank and got the Bank Guarantee "redeemed". Thereafter there were exchange of letters/notices between the A.D.B.P. and the appellant. It was alleged that the original guarantee papers were replaced from the loan file with the contrivance of the appellant's wife Mst. Sakina who was then working as a stenographer in the Zonal Office of the A . D. B . P . at Karachi. The matter was reported to the Federal Investigation Agency at Karachi (hereinafter abbreviately mentioned as F . I . A .) by the Joint Director Loans (B.A. Siddiqui) by the letter dated 18‑2‑1977. The F.I.A. Personnel made enquiry into the alleged scandal and ultimately registered case on 27‑1‑1980 in respect of commission of offences punishable under sections 380, 420, 468, 471 read with section 109, P.P.C. and section 5(d) of Act II of 1947. The crime was registered and investigated by Fakhurul Islam, Assistant Director, A.D.B.P. Loans. Karachi. Challan was submitted in the Special Court of Sind, (Banks), Karachi by Rounaq Ali, Inspector F.I.A., somewhere in the year 1984.

The learned Presiding Judge, Special Court, commenced trial of the case on the charge reproduced above. Prosecution examined the Bank Manager, M.A. Haq (P.W.1). Abdul Karim P.W.2, Noor Ali P.W.3 and Ahmed Ali P.W.4, all the three officers from Habib Bank, New Challi Branch, and Shafi Muhammad P.W.5, a clerk in the same Branch of Habib Bank, and lastly Rounaq Ali P.W.6, the Inspector F.I.A.

The appellant, in his statement under section 342, Cr.P.C., admitted that he had obtained a loan of Rs. 40, 000 in the name of Messrs Tasneem Poultry Farm, from Agricultural Development Bank of Pakistan (A.D.B.P.) and furnished a Bank guarantee from Habib Bank Ltd. in the sum of Rs.20,000. He, however, stated that he was actually paid Rs.33,980. He also admitted that he had returned to the Habib Bank Ltd. the original guarantee alongwith the forwarding letter dated 16‑9‑1975. He put forth the plea that the original Bank guarantee was returned to him alongwith the forwarding letter dated 16‑9‑1975 in pursuance of his letter addressed to the Bank Exh.2/F‑18. He denied that the original guarantee was surreptitiously removed from the papers of his loan account in collaboration with his wife Mst. Sakina and that the letter dated 16‑9‑1975 was forged one. He alleged false implication at the instance of the Bank Officials as to cover up their own involvement in the affair. The appellant's wife Mst. Sakina totally dissociated herself from the alleged mischief. The appellant examined in defence two witnesses, namely Dr. Saifuddin and Feroze.

The learned trial Judge formulated following three points for determination:

(1) Whether there were any changes in terms and conditions of the loan granted to the accused as alleged in his letter Exh.2/F‑18.

(2) Whether original Bank guarantee was officially returned to the accused as alleged by the accused under the directions of Mr. Zawar Hussain, by Ch. Haq or accused Tayab Khambaty managed to get the original guarantee removed from his loan file and replaced with a forged guarantee as alleged by prosecution with the abetment of co‑accused Mst. Sakina.

(3) What offence if any either of the accused persons has committed."

The learned Judge held, by the impugned judgment, that there was no change in the terms and conditions in the loan transaction. He further held that the applicant had abetted removal of original guarantee from the loan file through some one, but not his wife, and surrendered it to the guarantee Bank under a forged letter. He finally convicted the appellant and acquitted his wife. The order of conviction of the appellant reads as under:

"...I convict the accused Tayab Khambaty under sections 380 and 471, P.P.C. read with section 109 P.P.C. and sentence him to suffer R.I. for two years on both accounts and to pay fine of Rs.40,000 and in default of payment of fine to suffer further R.I. for six months."

The learned counsel for the appellant has ,assailed the conviction of the appellant mainly on the following grounds

(1) That the appellant was not charged with the offence of theft punishable under section 380, P. P. C . or abetment thereof and yet he was convicted thereof.

(2) That there was no evidence against the appellant of commission by him offence punishable under section 471, P.P.C.

(3) That the impugned judgment is slipshod and perfunctory in as much as that evidence has not been discussed, the appellant's version has not been considered, deficiency in prosecution evidence in withholding evidence of important witnesses has been over‑looked and conviction has been recorded on surmises and congectures.

On the other hand, the learned counsel for the State has supported the judgment. According to him, the evidence on record warranted conviction of the appellant. He has pressed in aid section 537, Cr.P.C. to meet the objection to irregularity in the charge, if at all any, and deficiencies in the judgment.

The appellant was tried for the offences punishable under sections 468 and 471 read with section 109, P.P.C. as reflected in the charge reproduced above. He has been convicted of the offences punishable under sections 380 and 471 read with section 109, P.P.C. The learned counsel for the appellant has contended that the appellant was misled in his defence in the absence of charge for the offence punishable under section 380, P.P.C. and his conviction therefore, is liable to be set aside. He has placed reliance on the provisions of section 232, Cr.P.C., which provides, inter alia, that if any appellate Court or the High Court is of the opinion that any person convicted of any offence was misled in his defence by the absence of a charge or by an error in the charge, it shall direct a new trial to be held upon a charge framed in whatever manner it thinks fit. He has further contended that the appellant could not legally be charged with the offence punishable under section 380, P.P.C. as that offence was not a scheduled offence under the offences in Respect of Banks (Special Courts) Ordinance, 1984 and the learned trial Judge did not have jurisdiction to have tried the appellant for the commission of that offence. He has submitted that section 380 P.P.C. was made scheduled offence under the aforesaid Ordinance by Notification NO.S.R.0.396(1)/85 dated 28‑4‑1985 but the learned trial Judge could not convict the appellant for that offence unless the charge was appropriately amended. According to him, the conviction of the appellant for the offence punishable under section 380, P.P.C. is, therefore, illegal. On the other hand, the learned counsel for the State has urged that since the offence punishable under section 380, P.P.C. was not a scheduled offence when trial of the case had commenced, the appellant could not be charged with that offence, although commission of that offence was referred to in the text of the charge, and after the said offence was included in the schedule under the aforesaid notification, the learned trial Judge could take cognizance of the offence and convict the appellant and mere omission of the section of the offence in the charge was, at the most, an irregularity curable under section 537, Cr.P.C. as no prejudice was caused to the appellant. He has placed reliance on the cases reported in P L D 1956 Lah. 157; PLD 1962 Kar. 756; 1985 P Cr. L J 423 and AIR 1956 S C (I) 116. In the cases relied upon by the learned counsel for the State, conviction for offences not specifically mentioned in the charge was maintained on the consideration that the convicts had not suffered prejudice. In the instant case, the charge framed against the appellant did contain the allegations that he was instrumental to the removal of the original Bank guarantee from the loan file which amounted to commission of an offence punishable under section 380, P.P.C., but the offence under section 380, P.P.C. was not specifically mentioned in the charge for the obvious reason that the learned trial Judge did not have jurisdiction to have tried the appellant for that offence at the time the charge was framed on 13‑1‑1985. The notification, whereby section 380, P.P.C. was included in the schedule was issued on 28‑4‑1985. In that situation, the appellant could not have visualised that he could be convicted for the offence punishable under section 380, P.P.C. The learned trial Judge had to amend the charge as to have included in it the offence punishable under section 380, P.P.C., on assuming jurisdiction to try the appellant for that offence by virtue of the aforesaid notification dated 28‑4‑1985, whereunder the offence punishable under section 380, P.P.C. was included in the category of scheduled offences under the Ordinance. Accordingly, the conviction of the appellant for the offence punishable under section 380, P.P.C. without its specific mention in the charge did offend the provisions of section 221, which lays down, inter alia, that every charge under the Code shall state that offence with which the accused is charged and the law and section of the law against which the offence is alleged to have been committed shall be mentioned in the charge. This lacuna in the charge did mislead the appellant in defending himself and it is not condonable under section 225 or under section 537 of the Cr.P.C. Therefore, the conviction of the appellant for the offence punishable under section 380, P.P. Code in the absence of its specific mention in the charge is bad in law.

As regards conviction of the appellant for the offence punishable under section 471, P.P.Code, the learned trial Judge did not formulate specific point for determination that the appellant had fraudulently or dishonestly used as genuine any document, particularly the letter dated 15‑9‑1975 whereunder the original Bank Guarantee was returned to the Habib Bank. The impugned judgment does not contain discussion on the prosecution evidence and is focussed on the statement of the appellant and a letter Exh.2/F‑18 said to have been addressed by him to the A.D.B.P. The findings arrived at by the learned Judge do not find basis on any logical consequences which could be derived from the evidence on record. The entire judgment gives the impression that burden of proving innocence was cast upon the appellant rather than laying burden of proving charge on the prosecution. In these circumstances, the impugned judgment suffers from such deficiencies that the conviction of the appellant thereunder cannot be sustained.

The impugned judgment suffers from another lacuna as well that only one sentence has been awarded for two offences, one punishable under section 380 read with section 109, P.P.C. and another under section 471 read with section 109, P.P.C. and it cannot be said as to what punishment was awarded for each offence individually. Section 35 of the Code of Criminal Procedure provides that when a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of section 71 of the Pakistan Penal Code, sentence him for such offences to the several punishments prescribed therefore and which such Court is competent to inflict. Obviously, the imposition of one sentence for two offences quite distinct from each other is not in consonance with the provisions of section 35 of the Code of Criminal Procedure. The provisions of section 71 of the Pakistan Penal Code which provides for limit of punishment for an offence made up of several offences do not extend to the case of the appellant. The learned counsel for the State has, no doubt, relied upon the cases reported as Zameer Hussain and others v. The Crown P L D 1949 Lah. 179; and Fazal Haq v. The State P L D 1982 Lah. 45 to urge that no illegality has been committed in awarding sentence jointly. In the first case, it was held that failure of the trial Court to specify the sentence under each count was an irregularity and one sentence passed for two offences was treated as a sentence for each offence to run concurrently but that view would not apply to each and every case and even to this case. The appellant has been convicted of offences punishable under sections 380 and 471 read with section 109, P. P. C. and sentenced to suffer rigorous imprisonment for two years and pay fine of Rs.40,000 or suffer rigorous imprisonment for six months more in default; and if the view adopted in the aforesaid case is applied, the appellant will be deemed to have been sentenced to suffer R.I. for two years and pay fine Rs.40,000 or suffer R.I. for six months in default for each offence and thereby he shall have to undergo R.I. for two years as substantive sentence to run concurrently but shall have to pay fine Rs.80,000 or suffer rigorous imprisonment for 12 months as the sentence of fine would not run concurrently. With utmost respect, we cannot subscribe to the view adopted in the aforesaid case. In the second case, separate sentences were awarded for two different offences but it was not mentioned whether they were to run concurrently or consecutively and it was held that the sentences awarded could be given effect to by giving directions to the Jail authorities to execute the two sentences concurrently. Such question is not involved in this case and the aforesaid case is not relevant to the question arising in this case.

The learned counsel for the appellant, having conceded that the defect in the charge and the lacuna in the sentence awarded on the appellant may lead to the remanding of the case for retrial, has not urged that such eventuality would not arise in this case as the evidence on record does not provide commission of any offence by the appellant. He has contended that prosecution has not proved that the letter dated 16‑9‑1975, whereunder the original guarantee was returned to the Habib Bank, was forged one and that the original guarantee was replaced by a forged guarantee by or with the abetment of the appellant. He has further contended that it is borne out from the appellant's letter dated 4‑9‑1975 (Exh.2/F‑18) addressed to the A.D.B.P. for substitution of the guarantee by mortgage of the property and a search certificate dated 9‑9‑1974 that a mortgage deed for the sum of Rs.40,000 between the appellant and the A . D . B . P. was registered with the Registrar T. Division Karachi on 9‑9‑1974, confirms that the Bank guarantee was released by the A.D.B.P. under the letter dated 16‑9‑1975. But there is evidence of P.W. M.A. Haq that the letter dated 16‑9‑1975 was not issued from the A . D . B . P. and also that the original guarantee was not released by the said Bank. There is admission of the appellant that he had returned to the Habib Bank the original guarantee alongwith the aforesaid letter dated 4‑9‑1975. It would suffice to say that it is not a case of no evidence as urged by the learned counsel for the appellant but the determination of that question needs through consideration which was not given by the learned trial Judge in the impugned judgment.

Considering the legal lacuna in the charge and the imposition of the sentence and the deficiencies in the impugned judgment discussed above, we are of the view that it is a case for ordering re‑trial.' Accordingly, we allow the appeal to the extent that the impugned judgment is set aside in respect of the appellant Tayab A. Khambaty and so also the conviction and the sentence recorded thereunder and remand the case to the trial Court for retrial of the appellant after framing appropriate charge against him.

Before parting with the judgment, we would like to observe that the matter pertains to the year 1975, although the crime was registered in the year 1980 and the case was disposed of in February, 1986. The appellant was of course, on bail during trial but he has remained in Jail since the day of his conviction. The question of his release on bail during retrial is left to the discretion of the learned Trial Judge. It is, however, expected that the retrial of the case shall receive due priority.

S.G.D/T‑1/K Order accordingly.

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