Find a Lawyer

Criminal Appeal No. 98 of 1986, decided on 21st October, 1986.

‑‑‑S. 409‑‑Prevention of Corruption Act (II of 1947), S. 5(2)‑‑Criminal breach of trust‑‑Accused, a bank employee charged for misappropriating amount entrusted to him by customer for return of pledged ornaments‑Facts borne on record indicating that alleged mischief was not a single handed affair‑‑Accused was holding only one key of double lock of safe wherein ornaments were kept and other key was with Officer incharge of bank on relevant day when ornaments were taken out and returned‑ Entry in ledger in hand of accused existing but same was not sufficient evidence that he alone returned ornaments to customer‑‑Explanation of accused that he had made entry in ledger under order of his official appearing plausible in circumstances‑‑Evidence against accused regarding receipt of amount from customer was based on solitary word of customer and not sufficient proof of entrustment of money to accused so as to give rise to allegations of misappropriation of money‑‑Appraisal of evidence by Court below appearing to have been influenced by fact of entry in hand of accused in ledger for which accused gave plausible explanation‑‑Evidence not proving case conclusively against accused Conviction and sentence set aside in circumstances.

Hameed M. Siddiqui for Appellant.

Rashid Nizamani for the State.

Date of hearing: 2nd October, 1986.

‑Appellant Bashir Abid was convicted of an offence punishable under section 409, P.P.C. read with section 5(2) of Act II of 1947 and sentenced to suffer rigorous imprisonment four years and also pay fine Rs.40,000 or suffer rigorous imprisonment for one year more in default by learned Presiding Officer, Special Court of Sind (Banks), Karachi, by judgment, dated 14‑5‑1985 in Case No. 4/1985. He has preferred appeal against his conviction and the sentence awarded on him.

The appellant Bashir Abid was Chief Cashier in main Branch of National Bank of Pakistan, at Nawabshah, in the year 1977. During the course of Special Audit made in the main Branch of the Bank, a sum of Rs.20,790.65 was found short in the cash chest on 1‑9‑1977. The matter was reported to the Superintendent of Police, Nawabshah and enquiry was initiated. In the meantime, a complaint was received by the Bank authorities from a customer Ayaz Ahmed that he had paid Rs.17,500 to the appellant towards partial repayment of his loan taken against pledge of gold ornaments to get some of the pledged of gold ornaments released. This matter also was enquired into. Ultimately, a case of Criminal misappropriation was registered against him on 16‑2‑1978. Finally, the appellant was challaned in the Special Court (Banks) Karachi on or about 20‑11‑1985 to stand trial for having committed the offence punishable under section 409, P.P.C. read with section 5(2) of Act II of 1947.

The appellant was tried on the following charge framed on 6‑ 2‑ 1985.

That in 1977 you were Chief Cashier in National Bank of Pakistan, Main Branch at Nawabshah and during this period you were incharge chest of Rs.20,790.65 which amount on audit on 1‑9‑1977 was found to be missing from the cash chest and consequently the said amount was criminally misappropriated the said amount was criminally misappropriated by you over which you had domain as employees of the National Bank of Pakistan you also received Rs.17,500 in cash from one Ayaz Ahmed towards payment of his loan against gold ornaments, but you did not deposit the said amount in the loan account of said Ayaz Ahmed, although you returned him some pledge gold, but failed to deposit the said amount in the loan account of Syed Ayaz Ahmed and criminally misappropriated the same over which you acquired domain as employee of the National Bank of Pakistan and, therefore, as have committed offence punishable under section 408, P.P.C. within my cognizance.

And, therefore, I hereby direct that you accused be tried by this Court on the aforesaid charge .......................

Prosecution examined Mehmood Khan, Senior Manager, (Administration) (P.W.1) Ayaz Ahmed (P.W.2), Abdul Majeed Soomro (P.W.3), Rehmat Khan (P.W.4), Abdul Hannan (P.W.5), and Muhammad Yusuf Balouch, Assistant Director, F.I.A. Crime Circle‑I, at Karachi (P.W.6).

The appellant advanced the plea of innocence. He stated that short fall in the cash in the chest was allegedly detected much after he was put under arrest in another case. As regards the alleged payment of Rs.17,500 by Ayaz Ahmed for release of some of the pledged ornaments, he made total denial of delivery of the amount to him and return of the ornaments by him. He, however, stated that entry in ledger book of return of ornaments to Ayaz Ahmed was made by him at the instance of the Manager but nothing else was done by him.

The learned Judge acquitted the appellant of the offence in respect of the first part of the charge viz. Short fall of Rs.20,790.65 in the cash chest; and held him guilty of the second part of the charge relating to misappropriation of Rs.17,500 alleged to have been paid to him by Ayaz Ahmed towards part payment of the loan. and return of some of the pledged ornaments and convicted him of the offence punishable under section 408, P.P.C. and awarded on him the sentence appealed against.

The learned counsel for the appellant has contended that there is evidence of only Ayaz Ahmed that he had delivered to the appellant Rs.17,500 towards repayment in part of the loan amount and he has not produced any receipt of the alleged payment. He has further contended that the prosecution story regarding return of some of the pledged ornaments is unbelievable as it has been admitted by the prosecution witness Abdul Majeed Soomro that the ornaments were lying in strong room under double lock, one key where of was with him and the other key was with the appellant and the safe could not be opened unless both the keys were applied and ornaments could not be removed without applying the key of the lock in his custody. He has also contended that the report of the incident was belated. He has advanced the argument that the alleged mischief could not be carried out without the active participation of the Bank Officers. The learned counsel appearing for the State has conceded that the evidence of only Ayaz Ahmed witness is not sufficient to establish that P.W. Ayaz Ahmed had paid Rs.17,500 to the appellant for return of some of the pledged ornaments.

The charge against the appellant, reproduced above, reflected misappropriation of two sums viz. Rs.20,790 allegedly found short in the cash chest; and Rs.17,500 alleged to have been paid to the appellant for return of pledged ornaments. He has been acquitted of the first part of the charge. As regards the second part of the charge, prosecution case mainly rests. on the evidence of Ayaz Ahmed. He has implicated the appellant that he paid to him Rs.17,500 in part repayment of the loan and received from him some of the pledged ornaments. He has stated that the ornaments were returned to him after they were weighed by the Bank's goldsmith by name Rehmat Khan (P.W.4) Rehmat Khan has confirmed in evidence that fact. Return of the ornaments to Ayaz Ahmed was recorded in ledger book and the entry therein was admittedly made by the appellant. The ornaments are said to have been returned during the afternoon hours. Next is the evidence of Abdul Majeed (P.W.3) who was number two Senior Officer in the Bank. He has stated that the pledged ornaments were returned to Ayaz Ahmed in mysterious circumstances as they could not be removed from the safe without applying to it the second key of lock which was in his charge. He has further stated that the entry in ledger book regarding delivery of the ornaments to Ayaz Ahmed was bearing the signature of the appellant. Another witness Mehmood Khan (P.W.1) who was then Accountant in the main Branch also has stated that entry in the ledger book (Exh.3‑A) regarding return of the ornaments to Ayaz Ahmed was in hand writing of the appellant and bears his initial. All this evidence is, of course, of incriminating nature. But certain facts borne on the record, mentioned below, indicate that the alleged mischief was not a single handed affair. The appellant was holding only one key of the double lock of the safe wherein the ornaments were kept under double lock and second key of the lock was in the custody of P.W. Abdul Majeed who was present in the Bank on that day and it has been disclosed by Ayaz Ahmed that P.W. Abdul Majeed was present when the ornaments were weighed by Rehmat Khan goldsmith and were delivered him. In such a situation, the cash Rs.17,500 alleged to have been paid by Ayaz Ahmed must not have escaped the notice of Abdul Majeed who was the officer Incharge of the Bank on that day. Mere entry in the ledger book in the hand of the appellant does not furnish conclusive evidence that he alone had returned the ornaments to P.W. Ayaz Ahmed. Explanation of the appellant that he had made entry in the ledger book under the order of his officers is plausible in the circumstances of the case. In any case, the evidence against him to the receipt by him of Rs.17,500 from Ayaz Ahmed based on the solitary word of Ayaz Ahmed is not sufficient proof of the entrustment of the money to him as to give rise to the allegations, of misappropriation of the money by him. The evidence of other witnesses does not implicate the appellant on the second part of the charge. Appraisement of evidence by the learned Tribunal seems to have been influenced by the fact of entry in the hand of the appellant in the ledger book but it has been plausible explained by the appellant. The evidence of Rehmat Khan Goldsmith given importance by the learned Tribunal as corroborative evidence does not support the alleged payment of Rs.17,500 by Ayaz Ahmed to the appellant. Obviously, the evidence on record does not conclusively prove the charge of Criminal misappropriation of Rs.17,500 by the appellant. Accordingly, the appeal is allowed, the judgment, dated 14‑5‑1985 passed by the learned Judge, Special Court of Sind (Banks), Karachi, in Case No. 4 of 1985, is set aside, and the appellant is acquitted of the offence he stands convicted of and sentenced for as mentioned above. He shall be released forthwith unless required to be detained in any other case.

The judgment was announced by short order passed on 2‑10‑1986 and herein are the reasons therefor.

M.Y.H./M‑75/K Appeal accepted.

Find a Lawyer Near You

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