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Criminal Appeal No.72 of 1983/Rawalpindi, heard on 8th April, 1987.

---S.409--Prevention of Corruption Act (II of 1947), S.5(2)--Criminal misappropriation by public servant--Fact that amount withdrawn by accused from bank against a cheque could only be misappropriated with connivance or knowledge of absconding accused, not rebutted on record--Trial Court disallowing questions whereby accused wanted to show that he did whatever was possible to bring to notice of absconding accused (who was Manager) about non-completion of record by another absconding accused who was cashier--Abscondence of both Manager and Cashier shifting total burden over to them--Possibility of accused's statement being true also could not be ruled out--Case against accused not free from doubt--Accused given benefit of doubt and acquitted in circumstances.

Zafar Mahmood for Appellant.

S.M. Naeem for A.A.-G. for the State.

Date of hearing: 8th April, 1987.

Nasir Mahmood, appellant herein, was tried alongwith Lal Hussain (since acquitted) by Special Judge (Central), Rawalpindi, on the charges under section 409 PPC read with section 5(2) of Prevention of Corruption Act, 1947, on the allegation that they while working as Sub-Accountant and Peon, respectively, in Agricultural Development Bank of Pakistan, Gujar Khan Branch, with the help of their co-accused Manzoor Ali Shah Manager and Iqtidar Ali Mirza Cashier of the same Bank (absconders) in their capacity as public servants withdrew an amount of Rs.1,10,000 from National Bank of Pakistan, Gujar Khan Branch, and criminally misappropriated the same. Learned Special Judge vide his judgment dated 3-4-1983 while acquitting Lai Hussain convicted the appellant on both counts and sentenced him to 7 years' R.I., and a fine of Rs.40,000 or in default whereof to undergo further R.I., for one year. The convict has, therefore, preferred this appeal challenging his conviction and sentence.

2. Prosecution case as disclosed at the trial was that in the year 1976 Manzoor Ali Shah (absconder) was posted as Manager, Iqtidar Ali Mirza (absconder) as Assistant-cum-Cashier, Lai Hussain (since acquitted) as Peon and Nasir Mahmood (appellant) as Sub-Accountant in A.D.B.P., Gujar Khan Branch. This Bank had its account in National Bank of Pakistan, Gujar Khan, which was operated by Manzoor Ali Shah and Nasir Mahmood Sub-Accountant, jointly.

3. Mr. Muhammad Asghar Khan, Regional Manager, A. D. B.P., Rawalpindi (PW 1) happened to visit Gujar Khan Branch of his Bank on 22-10-1976 and found Manzoor Ali Shah Manager, Iqtidar Ali Mirza Cashier and Nasir Mahmood Sub-Accountant absent from duty. He, therefore, directed Nazar Hussain (PW 2) Investigating Officer to check accounts of that Branch. It was reported that amount of cheque No.E-17415230, i.e. a sum of Rs.30,000 withdrawn on 12-10;1976 by Nasir Mahmood (appellant) and likewise amounts of cheques No.fi-17425231, E-17415232 and E-17415233 i.e., Rs.80,000 withdrawn by Lai Hussain Peon (acquitted accused) were not entered in the ledger and cash scroll maintained by the appellant and also in the cash book and day book maintained by cashier Iqtidar Ali Mirza (absconder), therefore, aforesaid amounts were taken to have been misappropriated by them. Mr. Muhammad Asghar Khan drafted and sent complaint Ex-PA on the basis of which FIR Ex-PA/1 was registered at police station Gujar Khan on 26-10-1976. Manzoor Ali Shah, Iqtidar Ali Mirza, Lai Hussain and Nasir Mahmood after due investigation were challaned to Court. During the trial, Manzoor Ali Shah and Iqtidar Ali Mirza absconded and only Nasir Mahmood and Lal Hussain were tried.

4. The prosecution examined 9 witnesses in all. Muhammad Asghar Khan, Regional Manager, A.D.B.P., Rawalpindi (PW 1) proved FIR Ex-PA lodged by him. Nazar Hussain, Investigating Officer, A. D. B. P., Gujar Khan (PW 2) stated that he checked the scroll, cash book, day book and ledger of Gujar Khan Branch and found aforementioned four cheques P.1 to P.4 as not entered in the said books. He stated that the cheque book of the Bank remained in joint possession of Manzoor Ali Shah (absconder) and Nasir Mahmood (appellant), the cash scroll and the ledger remained in custody of the appellant, while cash book and day book remained with Iqtidar Ali Mirza, Cashier. When asked, if it was a fact that appellant had been making complaints to the Manager against the Cashier for his not making necessary entries in record, the learned trial Court disallowed the question. He, however, admitted that photostat receipts Exs-D.1 and D.2 bore signatures of Manzoor Ali Shah Manager showing receipt of Rs.80,000 (amount of cheques P.1 to P.3) by him. Muhammad Ali (PW 5) stated that on 15-10-1976 he was posted as Manager of A.D.B.P., Gujar Khan. Cheques P.1 to P.3 were got encashed by Lai Hussain Peon (acquitted accused) while the amount of cheque P.4 was. withdrawn by the appellant. He further stated that the amounts of these cheques were not shown to have been received in' the record of Gujar Khan Branch. In cross-examination, he stated that alongwith the cheque a voucher is prepared which is entered in cash book before the cheque is sent to the Bank for encashment. On receipt of amount the cashier affixes stamp on that voucher and enters the amount in his cash book. The voucher he said, in this case was not prepared by the Account /appellant. He admitted that cheque is sent to National Bank by the Manager himself. Zulfiqar Ali, Credit Officer A.D.B.P., (PW .6) stated that he took over as temporary Sub-Accountant of A. D. B. P. , Gujar Khan, on 28-10-1976. A voucher according to him is prepared after receipt of cash from National Bank against a cheque. That voucher is signed by Manager and Accountant and sent to the Cashier who enters it in his record and also makes entries about it in cash book and in turn sends it to Accountant who enters it in his own record. The Cashier then 'takes cash book to the Manager and the Accountant takes the voucher to him and then the Manager tallies the respective entries made in the two registers by the Accountant and the Cashier.'

5. In his statement made under section 342 Cr.P.C., Lal Hussain (acquitted accused) stated that after having withdrawn the amount of Rs.80,000 against cheques P.1 to P.3 from National Bank of Pakistan, Gujar Khan, he handed it over to Manzoor Ali Shah. He produced two photostat receipts Exs-D.1 and D.2 purported to be signed by said Manzoor Ali Shah (absconding Manager) in token of receipt of the said amount from him. The appellant in his statement admitted .to have withdrawn Rs.30,000 against cheque P.4 from National Bank of Pakistan, Gujar Khan, but explained that he had also handed this amount over to the Manager and the Cashier (both absconders). He reported to the Manager against the Cashier for not entering this amount in the record but since they were in league with cash other, no action was taken. The plea he raised in reply to question No.2 may be reproduced hereunder for convenience of reference:-

"It is correct that cheques Ex-P.1 to Ex-P.4 were signed by me and Manzoor Hussain manager as the same were to be withdrawn by joint signatures. Cheque Ex-P.4 was taken by me for encashment by the orders of the manager. After withdrawing the amount I handed over the cash to the cashier and the manager. It was the duty of the cashier to receive the cash .and make entries in cash book. The cashier had to prepare vouchers for the same and he had to hand over those vouchers under his signatures to me. The cashier had riot made the entries in the cash book and also not handed over any vouchers under his signatures to me. The matter was reported to the manager many a time but no action was taken as the manager and the cashier were in league with each other. The manager and .the cashier took the cash to distribute it amongst the rain-affected persons."

5. Learned trial Court on consideration of the material on record accepted the plea of Lai Hussain that he had paid Rs.80,000 after withdrawing the same from National Bank to Manzoor Ali Shah, absconding Manager of his Bank, vide photostat receipts Exs-D1 and D2 which, according to Nazar Hussain (PW 2), bear signatures of Manzoor Ali Shah Manager, and acquitted him. Dealing with the case of appellant, learned trial Court observed that he admitted to have withdrawn Rs.30,000 against cheque P.4 from National Bank but has failed to enter the same in cash scroll which he was required to do. It further observed that he absented from 22-10-1976 onward from; duty which meant that he was concealing himself feeling guilty conscience and consequently convicted and sentenced him (appellant as indicated above, hence this appeal.

6. I have heard learned counsel for the appellant as well as for the State.

7. It is argued that the cash was handled by Iqtidar Ali Mirza Cashier who is absconding and that it was he who had to make entries in the relevant record as stated by Zulfiqar Ali (PW 6). It is further contended that the appellant joined police investigation and remained present throughout during trial. This conduct of his betrays his clean conscience, therefore, the learned trial Court was not right in holding that the appellant was concealing himself or that he had guilty conscience. Further argued that the explanation of the appellant that he had handed over the amount to the Manager and the Cashier appears to be reasonably true because both the Manager and the Cashier did not dare to come forward to deny it and have instead gone underground. The appellant is, therefore, entitled to acquittal. Learned State counsel, however, supports the conviction.

8. I have considered the arguments advanced by learned counsel for the parties and also parties the record.

9. Manzoor Ali Shah and Iqtidar Ali Mirza, the absconding accused, were Manager and Cashier of the Bank during the days of occurrence. The amount of Rs.30,000 brought from National Bank by the appellant has not been accounted for in the books of the Bank. From the evidence on record, I find that it is impossible that amount withdrawn from Bank against a cheque could be misappropriated without the connivance or knowledge of the Manager and the Cashier of the Bank. The appellant has stated that he had handed over the amount to the Manager and the Cashier (absconding accused). There is no rebuttal of this assertion on record. The trial Court had disallowed questions whereby the appellant wanted to show that he did whatever was possible to bring to the notice of the Tanager about non-completion of record by the Cashier. Abscondence of both Manager and Cashier in the circumstances shifts total burden over to them to explain as to under what circumstances record was not completed and that whether amount in question had been received by them from the appellant or not as asserted by him. Possibility of appellant's statement being true cannot, therefore, he ruled out. In this view of the matter, it would be perilous to maintain appellant's conviction. The case against him is not free from doubt. Consequently, giving benefit of doubt to the appellant, I accept this appeal, set aside conviction and sentence of the appellant and acquit him.

10. Learned counsel for the appellant states that he is not in jail. Be that as it may, the authorities concerned may be informed of the decision of the appeal.

M. Y. H./N-45/L Appeal accepted.

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