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Criminal Appeal No.52 of 1987, decided on 11th August,1987.

‑‑‑S. 409‑‑Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), S.10(1)‑‑Criminal breach of trust by Banker‑ Misappropriation‑‑Evidence‑‑Misappropriated property, even though not found or traced, but if the fact of misappropriation otherwise satisfactorily established, accused could be held guilty of criminal breach of trust‑‑Absence of direct evidence would not absolve, if circumstances established his guilt‑‑Accused cashier of Bank entrusted with prize bonds, leaving the Bank. on the day of occurrence, at 1‑35 p.m., going to his house and at 2‑45 p.m. returning to Bank and thereafter informing Manager of Bank about missing prize bond‑‑ Explanations offered by accused in his examination under 5.342 Cr.P.C. not only absurd but contradictory‑‑Held, circumstances established guilt of accused and he was rightly convicted under 5.409, P.P.C.

Mir Muhammad v. The State P L D 1962 S C 489 distinguished.

Additional Advocate‑General West Pakistan v. Tahir Baig PLD 1965 Kar.155 and State v . Abu Raza P L D 1959 S C 309 ref:

Muhammad Hayat Junejo for Appellant.

S. Murtaza Hussain for the State.

Dates of hearing: 12th, 13^th, 14th and 15th July, 1987.

‑‑The appellant was charged under section 409 P.P.C. for committing criminal breach of trust in respect of prize bonds worth of Rs.1,49,000, and was tried before the learned Presiding Officer Special Court (Offences in Banks) Karachi, who has convicted him under section 409 and sentenced him to undergo R.I. for two years, and to pay fine of Rs.3,00,000 (3 lacs) or in default to suffer further R.I. for 6 months.

The brief facts of the prosecution case are that on 10‑8‑198a one Mr. Hanif Manager M.C.B. Ltd., Plaza Branch, Karachi, lodged report that on 8‑8‑1983 the appellant Muhammad Iqbal was working as Cashier at M.C.B. Limited Plaza Branch, Karachi. On that day at about 3 P. M. it was found that a bundle of 149 prize bonds of Rs.1,000 each amounting to Rs 1.49,000 under the charge of Muhammad Iqbal Cashier Incharge of key holder was misappropriated/stolen by him, thereby he caused a loss to the tune of Rs.1,49,000 to the bank, while working as Cashier Incharge key holder of the bank. Despite the best efforts the said bonds could not be recovered. That the police after necessary investigation challaned the appellant before the learned Presiding Officer Special Court (Offences in Banks) Karachi.

A formal charge was framed against the appellant to which he pleaded not guilty.

That at the trial the prosecution examined Hanif Khan P. W.1 Manager of the. Bank, Nazir Hussain Shaikh P.W.2 who was Chief Cashier in the said Plaza Branch at the relevant time, Muhammad Hussain Kalu P.W.3 who was cashier in the M.C.B. Branch in question at the relevant time, Shamim Akhtar P.W.4, he was Zonal Chief, South Zone M.C.B., Karachi at the relevant time, Safdar Ali P.W.5 who investigated the present case.

After close of the prosecution case the statement of the appellant was recorded under section 342 Cr.P.C. in which he denied the allegations and further stated that the case against him was false and he has been wrongly accused. He has not stolen or misappropriated the prize bonds. On 7‑8‑1983 when the Manager checked cash and the prize bonds he forgot to put back the prize bonds in the cash safe. He did not know where the Manager had kept these prize bonds as he did not see them. On 8‑8‑1983 he had taken out the cash box from the safe but the prize bonds were not in the cash box. He did not know what had happened to the 149 prize bonds which were missing. .When he closed the cash and was keeping the cash back in the cash safe, he detected shortage of the prize bonds. The detection was made in the presence of the Manager as he and the Manager were closing cash safe. He told the Manager that the prize bonds were missing. They searched the prize bonds but did riot find them. He had not gone to the house but remained in the Branch.' The Manager called Zonal Chief. Later‑the circle executive also came. On their directions he made application Exh.4/A‑1 and also signed ,voucher Exh.2/A‑5. He did not know who had taken away the bonds. According to him' it was possible that the bonds were stolen by Hussain Kalu as he had previous record of misappropriation. However he did not examine any witness in defence.

That after recording evidence the learned Presiding Officer convicted the appellant as mentioned above. The present appeal is directed against the said judgment of conviction.

Mr. Hanif Khan P.W.1 has deposed that in 1983 he was Manager of the Muslim Commercial Bank Limited Plaza Quarter Branch, Karachi. At that time the accused was Head Cashier and key holder in the said branch. By key holder he meant that the accused was holder of one of the two keys of the cash safe at the said branch. The other key was with him as the Manager. In the cash safe, prize bonds were also kept. The branch in question used to purchase and sell prize bonds. The prize bonds register was maintained at the branch in which entries regarding purchase and sale of the prize bonds are made. The Cashier at the counter was entrusted with the duty of purchase and sale of prize bonds, while entries in the prize bonds register were being made by the Head Cashier and were initiated by an officer of the bank. All prize bonds purchased by Cashier used to be passed on to the accused, as Head Cashier alongwith a debit voucher for the prize bonds, and the accused as Head Cashier was required to sign on the back of the voucher after verification. On seeing the entries in the ,prize bonds register dated 7‑8‑1983, he stated that the bank had in its cash safe 149 prize bonds of the value of Rs.1,000 each, making it a total Rs.1,49,000. He has produced the entries against the date 7‑8‑1983 from the prize bonds register as Exh.2/A‑1. The entries Exh.2/A‑1 are in the hand of accused Muhammad Iqbal as he had been working under him and was familiar with his handwriting. The entries have been initialled by accused Muhammad Iqbal and verified by an officer of the bank. These 149 prize bonds were purchased between 2nd August, 1983 to 7th August, 1983. On 7‑8‑1983 the bank had purchased 110 prize bonds worth Rs.1,10,000. The debit voucher showing the purchase of these bonds was produced by him as Exh.2/A‑2. According to him this debit voucher was prepared by Muhammad Iqbal accused/ appellant in his capacity as Head Cashier. It was also signed by accused on its reverse in token of having received 110 prize bonds for Rs.1,10,000. This voucher was also signed by him (witness), Yousuf, and Ajmal, as officers of the bank. As per entries in the prize bonds issue register 4 prize bonds of Rs.1,000 each were purchased on 2‑8‑1983, 9 prize bonds of Rs.1,000 each on 3‑8‑1983, and 26 prize bonds of Rs.1,000 each on 6‑8‑1983. On 8‑8‑1983 25 prize bonds of Rs.1,000 each were also purchased. The entry has been produced as Exh.2/A‑3. He has also produced voucher relating to the purchase of 25 prize bonds as Exh.2/A‑4. This voucher was also prepared by accused and he had signed on the front side of the voucher over the stamp of the bank "CASH PAID", as well as on the reverse of the voucher in token of having received the 25 prize bonds. On 7‑8‑1983 after closing hours he checked the cash and also checked the prize bonds in the cash safe and found that there were 149 prize bonds. He again stated that he had not counted the prize bonds, but he saw that they were lying in the cash safe. In the presence of accused the cash was kept in the safe and the cash safe was locked with both keys. On 8‑8‑1983 they opened the cash safe with two keys at 9 a.m. From 9 a.m. till 1‑30 or 1‑35 p.m. the cash and the prize bonds remained in charge of the accused as Head Cashier. At about 1‑45 p.m. he closed the safe and it was locked with two keys, one of which was with him and other with the accused. On 8th August, 1983 he had not checked the prize bonds or cash. After cash safe was closed, the accused went away from the branch. At about 2‑45 p. m. the accused alongwith Cashier Nazir came to him and told him that upsetting incident had occurred, in that while closing the cash and keeping it in the safe, he had not kept in the cash safe 149 prize bonds of Rs.1,000 each. He further told him that 149 prize bonds were short. He told the accused that if any shortage had actually occurred, he should have reported the matter before the cash was closed, and the shortage was discovered. The accused Muhammad Iqbal did not reply to this observation. In the meantime the third Cashier namely; Hussain Kalu also arrived in his Chamber. He was on duty during the evening banking hours. Thereafter he alongwith the two Cashiers went to the strong room and opened the cash safe with their respective keys. He checked the prize bonds in the presence of the accused and Cashiers, and found that 149 prize bonds of the value of Rs.1,000 each were missing. He thereupon informed Vice‑President and Regional Manager Mr. Shamim Naik, who came to the branch. The Circle Executive and Senior Vice‑President Mr. Ejaz Hussain Shah was also informed who also came to the branch. They made enquiries from the accused who stated that he had kept 149 prize bonds somewhere but had forgotten as to where they have been kept. The accused then submitted an application addressed to him stating that 149 prize bonds are short and they may be debited to the banking adjustment account. The witness further deposed that he had prepared a debit adjustment voucher for the amount of Rs.1,49,000 and this debit voucher was signed by accused Muhammad Iqbal on its reverse. Under his two signatures he has put his account No. SB‑5069. The debit voucher has been produced as Exh.2/A‑5. An entry regarding the shortage of 149 prize bonds was made in the cash book dated 8‑8‑1983, which was produced as Exh.2/A‑6. The alterations in the cash book, consequent upon execution of the debit voucher Exh.2/A‑5 by appellant were made by Hussain Kalu to whom charge of the Head Cashier was given. In order to balance the account of the. prize bonds, a credit voucher for Rs.1,49,000 relating to the prize bonds account was prepared and the same was produced as Exh.2/A‑7. This credit voucher makes mention of the shortage of 149 prize bonds on its reverse, allegedly stolen by the accused. That on 10th August, 1983, he had made a report to the Controller fraud, forgery and investigation division of Muslim Commercial Bank Limited. The report was produced as Exh.2/B‑1. On the same day under the instructions of his superiors he lodged report with the Garden Police and the same was produced as Exh.2/B‑2. The police had visited the branch in question and he had produced Photostat copies of documents before the police. In cross‑examination he has deposed that he had referred to the fact that the shortage was discovered at 3‑00 p.m. but he had not specifically stated in the police report that the accused himself came to the branch at 3‑00 p.m. and he reported the shortage of the prize bonds. He admitted that they had in the bank a Chief Cashier by name Nazir Hussain, who was heart patient. The charge of Head Cashier was with accused Muhammad Iqbal. He had not appointed accused as Head Cashier. The order had come from the superiors. As key holder the name of the accused was entered in the key register. On 8th August, 1983, after they had opened cash in the morning, the cash safe remained closed under the single key in charge of the accused upto 1‑45 p.m. He has produced circular issued regarding the operation of the cash safe as Exh.2/C‑1. He has also produced a circular dated 29‑9‑1972 regarding the cash checking as Exh.2/C2. He has further deposed that after this circular, many other instructions have been issued regarding the cash checking from the Head Office. Cashier Muhammad Hussain Kalu was transferred from the Plaza Quarter Branch about 2 or 3 months after this incident. On 8‑8‑1983 after he had applied key to the cash safe, he had gone to his cabin and the cash and the prize bonds were not taken out from the cash safe in his presence. He has denied the suggestion that on that day the cash etc. were taken out from the cash safe by the accused in his presence and he locked cash safe thereafter. He had not physically checked the cash on 8th August, 1983, nor it was correct that he had physically checked the prize bonds on that day. He denied the suggestion that the accused had not stolen or misappropriated the prize bonds. As the accused had the custody of prize bonds he alone was responsible for the same.

Nazir Hussain P.W.2 has deposed that in the year 1983 he was Chief Cashier at the Plaza Quarters Branch of M . C . B. As he was heart patient, the charge of Head Cashier was first entrusted to Muhammad Hanif and on his transfer, to the present appellant /accused. However he used to come daily to the bank. The key of the cash safe used to be with the accused as Head Cashier. On 8‑8‑1983 he had come to the Plaza Quarters Branch but did not go to the strong room. He remained in the branch till the cash was closed. He left the branch at about 1‑30 p.m. or 2‑00 p.m. At about 2‑30 p.m. or 2‑45 p.m. on the same day, accused Iqbal came to his house and told him that he was very much upset as some bonds of Rs.1,000 each had been found short and missing from the cash safe. He took the accused to the Manager Muhammad Hanif and reported the matter to him. The accused also told the Manager in his presence that 149 bonds of Rs.1,000 each have been misplaced or taken away from the safe. The Manager told the accused that he would like to check the cash and the prize bonds in the cash safe. During this time another Cashier Hussain Kalu was also present. The Manager in his presence, and in presence of accused and Hussain Kalu checked the cash safe. It was found that 149 bonds of Rs.1,000 each were missing from the safe. Thereafter the Manager reported the matter on phone to the Zonal Chief and the Circle Chief. In cross‑examination, he has deposed that the key of the strong room remains with the Accountant. When the cash safe is opened in the morning with the two keys, one of the Manager, and the other of the Head Cashier, the Manager after applying the key goes away, and the cash and prize bonds required for the day are taken out by the Cashier. He denied the suggestion that the Manager takes out the cash and the bonds from the cash safe and hands them over to the Cashier and thereafter he closes the cash safe. He has denied the suggestion that Manager daily checks currency notes of over Rs.50 and prize bonds of the value of over Rs.50. He used to work on the receipt or payment wherever there was more work for the time being. The accused used to make payment totalling Rs.5 to 7 lacs daily. In reply to the question from the Court he further stated that on 8‑8‑1983 cash was brought to the counter in a same cash box.. No prize bonds were brought to the counter from the safe in the morning. He was not aware that 25 prize bonds of the value of Rs.1,000 each were purchased on 8‑8‑1983. He was not aware whether any transaction for sale or purchase of prize bonds had taken place in the branch on 8‑8‑1983. Only the Head Cashier used to bring out the prize bonds whenever there was a sale transaction of the prize bonds, and he used to deposit the prize bonds whenever there was purchase of the prize bonds. Any purchase of prize bonds made on 8‑8‑1983 or any other date could only be kept in the cash safe by the accused who had the key of the cash safe. He had asked from the accused how the prize bonds had been found short. The accused told him that he was taking 149 prize bonds to keep in the safe but had misplaced them somewhere in the strong room. In the strong room nothing open is kept. All papers and the documents in strong room are kept in steel almirahs and safes. He, therefore, stated that it was not possible that the bonds could have been lost or misplaced in the strong room. The accused did not make request that the strong room be searched for locating the missing prize bonds.

Muhammad Hussain Kalu P.W.3 has deposed that in August, 1983 he was posted as Cashier in the Plaza Quarters Branch of M.C.B., Nazir Hussain was the Chief Cashier. The accused in .his capacity as Head Cashier had the key of the cash safe as also the cash and the prize bonds used to remain in. his custody. It was the function of the Head Cashier to bring out and keep the prize bonds and also to purchase and sell them. The purchase and sale of prize bonds are entered in the prize bonds receipt and issue register. The entries from the prize bonds register dated 7‑8‑1983 Exh.2/A‑1 and Exh.2/A‑3 respectively are in the handwriting of accused Muhammad Iqbal with whose handwriting he was familiar as he had worked with him. On 8‑8‑1983 the accused had brought cash in small cash box from the cash safe to the counter. The cash box containing the cash etc. remained in charge of accused Muhammad Iqbal. He was not aware whether any prize bonds were purchased on 8‑8‑1983. The work of cash and sale of price bonds used to be done by accused alone. On 8‑8‑1983 the cash was closed at the normal time at about 1‑45 p.m. After closing the cash the accused went away. As he had evening duty on that date, he remained in the branch. On the same day between 2‑45 and 3‑00 p.m. he saw the accused and Chief Cashier going into the room of Muhammad Hanif, he also followed them in the room of the Manager to find out what was the problem. In his presence the accused told the Manager that the prize bonds of the value of Rs.1,49,000 were missing. Thereafter the Manager accompanied by him, the accused, and Nazir Hussain went to the strong room, and the Manager checked the cash and the prize bonds kept in the cash safe. It was found that 149 prize bonds of the value of Rs.1,49,000 were missing. The Manager phoned 'the Zonal Chief, and the Circle Executive, and in their presence he took the charge of the Head Cashier from the accused. The accused in his presence gave an application to the Manager admitting the shortage of prize bonds of the value of Rs.1,49,000 and requested that this amount may be debited to the Bank adjustment account. He has produced that application as Exh.4/A‑1. The accused had made this application in his own hand and had signed the same in his presence. A debit voucher for Rs.1,49,000 was also prepared and‑this was also signed by the accused in token of the amount being short. The debit voucher Exh.2/A‑5 was same. He had also made necessary alterations in the cash box consequent upon the execution of the debit voucher Exh.2/A‑5. The entries in the cash book are Exh.2/A‑6. In cross- examination he has deposed that the key of the strong room remains with the Accountant. The strong room is opened in the morning and remains open during the whole day. All record of the bank is kept in the strong room. There is no toilet room in the strong room. If any member of the staff needs any paper he can go in the strong room. They never took food in the strong room. The documents and the registers are kept in the strong room in cabinets or almirahs. He denied the suggestion that in the morning the Manager opens the safe and delivers the cash and prize bonds to the Head Cashier and then relocks the safe. The correct position is that the Manager applied the key to the cash safe and goes away. It is the Head Cashier who takes out the cash and prize bonds from the cash safe. He denied the suggestion that whenever the Head Cashier takes out or puts anything back in the cash safe, the Manager is present. He denied the suggestion that the Manager checks the cash and prize bonds daily. He also denied that the accused wrote out the application Exh.4/A‑1 at the order of the officers of the bank. The accused had written the application voluntarily. In reply to the question put by the Court he stated that the accused made no statement as to where the prize bonds were being taken or had been misplaced.

Shamim Akhtar P.W.4 has deposed that he was Zonal Chief M.C.B. (South) Zone Karachi. The Plaza Quarters Branch was within his jurisdiction. On 8‑8‑1983 at about 3‑30 p.m. Muhammad Hanif Manager informed him on telephone that his Cashier had informed him that prize bonds of Rs.1,49,000 were missing. Thereupon he reported the matter to Mr. Aijaz Hussain, Circle Executive, and thereafter went to the Plaza Quarters Branch. He found the Manager, accused Muhammad Iqbal, Chief Cashier Nazir who was heart patient, and another Cashier Muhammad Hussain Kalu present in the cabin of the Manager. After few minutes, Mr. Aijaz Hussain Shah, Circle Executive also came there. They made enquiries from the Manager and the accused. The accused told them that prize bonds of the value of Rs.1,49,000 were missing. The accused did not tell them how or in what circumstances they were missing. As the accused was unable to give any explanation as to how, the prize bonds were missing, and as the accused was the person in whose custody the prize bonds were, they asked the accused that he had to make good the loss. The accused then gave an application that the amount found missing should be debited to the bank adjustment accounts, application Exh.4/A‑1, was same. A voucher for the amount of Rs.1,49,000 was also prepared and this was signed by the accused on its reverse, Exh.2/A‑5 was same. Thereafter the Manager reported the matter to the police under the directions of the Head Office. In cross -examination, he has deposed that it was not correct that every time the cash is taken out or put in the cash safe, the Manager and the Head Cashier have to operate the safe with their keys. As the Plaza Quarters Branch is a big branch, having lot of cash transactions, the practice is that in the morning the cash safe is opened by the Manager and the Head Cashier with their respective keys. Thereafter during the banking hours, the cash safe is operated only with the key of the Head Cashier and he takes out and puts the cash and the prize bonds. While cash is practically checked every day or almost every day, prize bonds are not checked every day. He has denied a suggestion that the accused had told him that on 7‑8‑1983, the Manager had forgotten or might have forgotten to put the prize bonds in the safe. In reply to the question put by the Court he deposed that the prize bonds have numbers. ‑The numbers of the prize bonds are not entered in the bank record. ae has seen the strong room of the Plaza Quarters Branch. In his opinion, the 149 Prize Bonds could not have been possibly misplaced in the strong room. Cash and prize bonds are taken into or brought out from the cash safe either in the cash box or special cash tray provided for the purpose. They are never taken out loose.

Safdar Ali P. W.5 has deposed that on 6‑12‑1983 he was entrusted with the investigation of this case. Before‑the investigation was handed over to him S.I. Nusrat of C.I.A., Inspector Mujtaba of C.I.A., and Inspector Sadiq Hussain of Garden Police had investigated this case. The F.I.R. was registered by Sadiq Hussain, and the same was produced as Exh.6/A‑1. He had seized documents from the bank which were produced by the Manager Hanif Ahmed Khan. He had prepared the memo of seizure of these documents which was produced as Exh.6/B‑1. He had recorded the statements of Inamullah and Raqib‑ur‑Rehman. He also recorded the statement of security officer Abdullah Khan. He had not recorded the statements of Nazir Hussain, Muhammad Hussain and Shamim Akhtar. Their statements were recorded by the Investigating Officer, before he was entrusted with investigation of this case. He had challaned the case on 2‑6‑1984. He had submitted the report on 17‑12‑1983 to the arosecution for opinion and approval. He obtained the approval on 2‑6‑1984. He had not obtained approval from his superior officer for making an investigation after the expiry of 15 days. In cross‑examination he has deposed that statement of P.W. Shamim was recorded by S.I., Garden Police on 23‑10‑1985.

The statement of the complainant Muhammad Hanif Khan was recorded by him on 17‑12‑1983 but by mistake it has been shown as 1986. The challan was prepared on 9‑6‑1984 but was not presented in Court, as the prosecution agency had directed the recording of statement of two witnesses namely, Shamim A. Naik and Syed Aijaz Hussain, Senior Vice‑President. In June, 1984 he was transferred to Malir Division; all the papers were transferred from C.I.A. to Garden Police Station. The Garden Police sent back papers to him either in December, 1986 or in January 1987. The challan was ultimately submitted on 5‑1‑1987. In other words the F.I.R. was lodged on 10‑8‑1983 and the challan was presented before the Court on 5‑1‑1987.

We have heard Mr. Muhammad Hayat Junejo, learned counsel for the appellant and Mr. S. Murtaza Hussain learned counsel for the State.

It was contended by. Mr. Muhammad Hayat Junejo, that the case was false and the. appellant was made as scapegoat. There were two keys of the cash safe out of which one remained in possession of the Manager, and the other was in possession of the appellant, and therefore, it could not be said that the cash safe was in exclusive possession of the appellant. That the. explanation given by the appellant could be probable and there was no evidence that he misappropriated the prize bonds in question, and, therefore, the conviction of the appellant was unwarranted. In support of his. contentions, the learned counsel has relied upon Mir Muhammad v . State P L D 1962 S C 489.

Mr. S. Murtaza Hussain, learned counsel .appearing for the State has contended that the case was proved against .the appellant beyond any doubt. That the Manager was expected to check the‑ cash and prize bonds weekly and not daily. That the conduct of the appellant _in leaving the bank, , going to his house and thereafter informing the Manager on return about the missing of prize bonds clearly proves his guilt. He has further contended that after opening cash safe, the Manager had to attend to, his other duties and could not sit with the cashier, and the cash and prize bonds remained in possession .of the appellant.

We have considered the contentions of the learned counsel and have gone through the record and proceedings of the case.

The evidence of Hanif Khan, Manager, P.W.1 shows that on 7‑8‑1983, the Bank had in its cash safe 149 prize bonds of the value of Rs.1,000 each and .he has produced the entries and vouchers regarding the purchase of prize bonds. That on 8‑8‑1983, they opened the cash safe with two keys at 9‑00 a. m. From 9‑00 a. m: till 1‑30 or 1‑35 p.m. the cash and prize bonds remained in charge of the accused as Head Cashier. At about 1‑45 p.m. he closed the safe and it was locked with two keys, one of which was with him and the other was with the accused. He had not checked the prize bonds or the cash on that day. After the cash safe was closed the accused went away from the branch. At 2‑45 p. m. the accused came to him alongwith Cashier Nazir and told him that an upsetting incident had occurred in that while closing the cash and keeping it in the safe he had not kept in the cash safe 149 prize bonds of Rs.1,000 each, and that these 149 prize bonds were short. On which he told the accused that if any shortage had actually occurred, he should have reported the matter before the. cash was closed and shortage was discovered. According to him, the appellant made no reply to this observation.

That the complainant reported the matter to Mr. Shamim Naik, Vice- President, Regional Manager, and Mr. Aijaz Hussain Shah, Circle Executive and Senior Vice‑President. On their arrival in the bank, the accused told them on inquiries that he had kept the 149 prize bonds but had forgotten as to where the same were kept. The accused then submitted an application addressed to him, stating that 149 prize bonds are short and they may be debited to the banking adjustment account. The complainant had prepared debit adjustment voucher for the amount of Rs.1,49,000 which was signed by accused /appellant on its reverse. The application and voucher have been produced. The complainant is further supported by Chief Cashier Nazir Hussain and Hussain Kalu that the prize bonds were in the cash safe and it was the accused who had disclosed in their presence that 149 prize bonds were missing. This fact is further confirmed from the application moved by the appellant and the debit voucher signed by the appellant. Even the appellant has not denied in his statement under section 342, Cr.P.C. that 149 prize bonds were in the cash safe and the same were not found in the cash safe on 8‑8‑1983, after the bank hours. The complainant is further supported in this respect by P.W. Shamim Naik, Zonal Chief.

No doubt, there is no direct evidence available on record to show that the accused misappropriated the prize bonds in question, but there is clear circumstantial evidence to establish that it was the accused who misappropriated the same. Of course .the second key of the safe used to remain with the Manager Hanif Khan, and the safe could be opened by applying both keys, one of the appellant and other of the Manager. That the practice at the bank as stated by P.Ws. had been that the Manager after applying his key to the cash safe left for his cabin to attend to his work, while the Head Cashier took the cash and prize bonds out of the cash safe anti dealt with the same till the closing hours when the cash and prize bonds were put back in the cash safe, and it was then locked with both keys. The complainant is supported by P.Ws. Nazir Hussain, Muhammad Hussain Kalu and Shamim Akhtar Zonal Chief in this respect. These witnesses had no reasons to implicate the present‑ appellant falsely nor any enmity has been alleged against them. Their evidence is natural, convincing, and has not been shaken in cross‑examination. The circular Exh.2‑C was issued on 29‑4‑1972. and it has been stated by complainant that thereafter number of instructions have been issued. So far Circular Exh.2/C‑1 was concerned it was issued on 23rd October, 1983 i.e. about one and half months after the present incident and therefore, it could not apply to the present case. The vouchers Exh.2‑A/2 and 2/A‑4 clearly show that the same were prepared by accused and bear his signatures. Even the entries in the prize bonds receipt and issued register for the purchase and sale of prize bonds particularly the entries dated 7‑8‑1983 and 8‑8‑1983 are in the handwriting of the accused and bear his initials. In view of these circumstances it was for the appellant to explain under what circumstances the prize bonds valued at Rs.1,49,000 were missing. Another circumstance which further points to the guilt of the accused is, that according to him the shortage of prize bonds was detected in the morning when he had taken out the cash box from cash safe, but he did not disclose it to the complainant. Even at the time of closing the cash safe i.e. at about 1‑30 or 1‑35 p.m., he did not disclose it to the Manager. That thereafter he went out and returned back with Chief Cashier Nazir Hussain at about 2‑45 p.m. and disclosed it to the Manager that the prize bonds valued at Rs.1,49,000 were missing, The accused has of course denied that he left bank after closing the cash safe but the evidence of Chief Cashier Nazir Hussain clearly shows that the accused had gone to his house at about 2‑30 or 2‑45 p.m. and informed him that the bonds of Rs.1,49,000 were found short and were missing from the cash safe. The accused has not explained in his statement as to where he remained in between 1‑30 p.m. (The time when the cash safe was closed) and 2‑45 p.m. (when he reported the matter to the Manager). His explanation that the prize bonds might have been stolen by Hussain Kalu Cashier is not supported by any evidence direct or otherwise. Even no such question was suggested to P.W. Muhammad Hussain Kalu in cross -examination. Since one of the keys was with the appellant/accused and the cash safe could not be opened without that key, the statement of the appellant that the prize bonds were possibly stolen by Muhammad Hussain Kalu was absurd and unnatural. The application moved by appellant and the voucher signed by him further belied the stand of the appellant. The case of Mir Muhammad v . The State reported in PLD 1962 S C 489 relied upon by Mr. Muhammad Hayat Junejo learned counsel for the appellant is distinguishable. In the reported case "the case of the accused was that his brother‑in‑law Abdul Haleem visited him in the bank and while the latter was there he himself had been called away to the Office of the Additional Superintendent of Police. He left the key of the cash box in the box itself by mistake. When he returned, Abdul Haleem was still there but shortly thereafter he went away. After some time the accused opened the box and. found that a bundle of Rs.30 hundred rupee notes had been removed. He realised it could only be Abdul Haleem who had removed the money, and, therefore, he did not at once disclose the matter but decided to make efforts to collect the money so as to make it good. This explanation of the accused was supported by circumstances and, therefore, their Lordships of the Supreme Court took the view that the explanation put forward by the accused and his conduct could not have been rejected out of hand in the manner appearing from the judgment of the learned Single Judge, and the appeal was allowed."

In the present case, the explanation offered by the appellant is not only absurd but is contradictory "On one hand his case was that on 7‑8‑1983, when 'the Manager checked the cash and prize bonds he had forgotten to put back the prize bonds in the cash safe. He did not know where the Manager had kept these prize bonds as he did not see them. On 8‑8‑1983, he had taken out the cash box from the safe. The prize bonds were not in the cash safe. He did not know what had happened to the 149 prize bonds which were missing. In the same breath he has further stated that when he closed the cash and was keeping cash box in the cash safe he detected the shortage of prize bonds. That he did not know who had taken away the prize ‑ bonds. Possibly, the prize bonds were stolen by Hussain Kalu. He made an application, Exh.4/A‑1 and also signed voucher Exh.2/A‑5 under the directions of Zonal Chief and Circle Executive." The above statement shows that the accused/ appellant had been shifting the burden from one person to another. In the case of Additional Advocate‑General West Pakistan v. Tahir Baig, PLD 1965 Kar. 155; it was held by a Division Bench of this Court that:

"It is true, there is no direct evidence of physical appropriation of yarn or it's conversion; but the absence of such direct evidence does not necessarily absolve the accused. It often happens that misappropriate property is not found or traced but if the fact of misappropriation is otherwise satisfactorily established, an accused would still be liable for breach of trust if he had been entrusted with or had the dominion over that property."

In the case of the State v. Abu Raza P L D 1959 S C 309; it was observed by their Lordships of the Supreme Court that:‑

"In a case, like this, it is not, and has never been understood to be the duty of prosecution to prove by evidence that the money received by the accused was actually converted to his own use. It is sufficient that the Government was deprived of the use of the money for an unexplained period, it is being presumed in such a case that the accused had applied this money to his personal needs."

The above case was a case of misappropriation in which the appellant was acquitted by the High Court, and on acquittal appeal from the State, the appeal was allowed and the judgment of conviction passed by the Special Judge was restored.

In view of the above discussion, we are of the considered) view that it was the appellant who misappropriated the prize bonds valued at Rs.1,49,000 , and therefore, he has been rightly convicted by the learned Special Judge. The appeal is, therefore, hereby dismissed.

K.B.A./M‑219/K Appeal dismissed.

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