1993 P Cr (PLP)

AKHTAR ALI G. KAZI, J.

Appellant Abdul Majeed Soomro was tried in the Special Court (Offences in the Banks) at Karachi, for offences under section 408/4'77-A, P.P,C. and was convicted by the Presiding Officer, Special Court, for offence under section 408, P.P.C. and was sentenced to suffer R.I. for 5 years and also to pay fine of Rs.1,00,000 or in default to undergo further R.I. for 3 months, in Case No.23 of 1990 on 13-6-1991. The appellant has filed this appeal against the said judgment of conviction by the learned trial Judge.

2. The brief facts as alleged by the prosecution are that appellant Abdul Majeed was the Manager in National Bank of Pakistan at Ranipur Branch on f-3-1989. One Abdul Sattar was account-holder of the Bank, having Account NO.PLS-1160. It is alleged by the prosecution that on 16-3-1989, he gave a cheque of Rs.50,000 to the appellant for encashment. He received the amount, but re-deposited it with the appellant possibly with instructions that the amount may be deposited in his account after the date of deduction of Zakat. It is alleged that Abdul Majeed, the present appellant, received the same and issued pay-in-slip to Abdul Sattar, but put the date as 11-4-1989, the date which was after the date of deduction of Zakat. This pay-in-slip was said to have been signed by the appellant. The appellant was, however, transferred on 25-3-1989 from that branch and was succeeded by P.W. Saifullah Memon. Account-holder Abdul Sattar perhaps came to know that the amount of Rs.50,000 was not credited in his account by Abdul Majeed, appellant. Therefore, on 3-6-1989 he approached the Bank Manager and made enquiries about his account from Mr. Saifullah. He was, however, informed by the said Manager that Rs.50,000 were not deposited in his account. He made application to the Manager (Exh.2-A) and an enquiry was held and it came to the knowledge of the bank officers that the several cases of embezzlement were committed by the appellant. Mr. Saifullah referred the matter to the higher authorities, who directed him to lodge a report with F.I.A. The complaint was lodged by Mr. Saifullah Memon (Exh.2-C). The F.I.A., after usual investigation arrested the appellant and challaned him in the Court to stand trial.

3. The learned Judge framed a formal charge under sections.408 and 477-A, P.P.C. to which the appellant pleaded not guilty.

4. The prosecution have examined P.W.1 Saifullah Memon (Exh.2). He has also produced relevant entries from the account ledger of Mr. Abdul Sattar as (Exh.2-B) to show that no entry has been made regarding the deposit of Rs.50,000 in favour of Abdul Sattar. He has also produced a cheque dated 11-3-1989, for Rs.50,000 which was passed by the present appellant. P.W. Ghulam Qader, who was working as Senior Assistant in the Ranipur Branch at the relevant time (Exh.3), has identified the signature on pay-in-slip (Exh.2-B-1) to be the signature of appellant Abdul Majeed. P.W.3 Niaz Ahmed son of account-holder (Exh.4) has been examined as Abdul Sattar, his father, died before his evidence could be recorded. He has identified the signature of his father on various documents, produced in the Court. P.W.4 Kalander (Exh.5) has investigated the case and challaned the accused in Court.

5. The case of the appellant in the trial Court was of denial and he has stated that the pay-in-slip does not bear his signature and has further stated that on 11-4-1989 he was not the Manager of the branch, as such could not have issued pay-in-slip.

6. We have heard the Advocate for the appellant., the learned counsel for the Bank, and also the learned counsel for the State. We have also gone through the evidence on record and the judgment of the trial Court.

7. The learned trial Judge has placed reliance on the evidence of P.W. Saifullah Memon and Ghulam Qader, who have clearly stated that the pay-in -slip (Exh.2-B-1) had been issued by the appellant and signed by him. They both have identified the signature of the appellant on the pay-in-slip. Both these witnesses have worked with the appellant and as such they were conversant and acquainted with the handwriting and signature of the appellant. P.W. Saifullah Memon has further stated that he has seen the ledger and cashier's recovery book, of the above date, but did not find any entry of the deposit of Rs.50,000 in the bank record. The ledger book of the account of the account-holder Haji Abdul Sattar has been produced by P.W. Saifullah Memon. He has also produced the cashier's receipt book, a photostat copy of which has been placed on record as (Exhs.2-D and 2-E).

8. The learned trial Judge has come to the conclusion that the appellant had received Rs.50,000 from Haji Abdul Sattar, as according to him the pay-in- slip-(Exh.2-B-1) has been proved to have been issued and signed by the appellant as is clear from the evidence of Saifullah Memon and Ghulam Qader. The contention of the appellant is that on 11-4-1989 he was not the Manager of the Branch at Ranipur and on that date rubber stamp of the bank was not with him. The learned Judge, however, on the basis of evidence: has drawn conclusion that the appellant had issued pay-in-slip on 25-3-1989 and put a date as 11-4-1989, because the deposit was sought to be made after the expiry of the date of deduction of Zakat. The calendar of that year showed that 1st of Ramazan fell on 7-4-1989 and it was, therefore, that the date on the pay in-slip was shown as 11-4-1989, although it was issued to Haji Abdul Sattar on 25-3-1989 on which date the appellant was the Manager of the Branch and was having the custody of seal of the bank.

9. We have also gone through the entire evidence and relevant record produced in the trial Court. Sufficient evidence has come on record to prove the case of the prosecution beyond any reasonable doubt, that the pay-in-slip has been issued by the appellant in token of having received the amount of Rs.50,000 from one Abdul Sattar, which has not been credited in the account of the account-holder and that the appellant has misappropriated the said amount.

10. The contention raised by the appellant that the pay-in-slip has not been signed by other officer of the bank is of no advantage to the appellant as that on the contrary proves that the appellant wanted to misappropriate the amount, therefore, he alone signed the pay-in-slip.

11. In view of the above circumstances, we find that the conviction of the appellant by the trial Court for offence under section 408, P.P.C. is proper and based on sound reasons. However, as the appellant is likely to lose the job on conviction and will be disqualified for future employment, we therefore, reduce his substantive sentence of rigorous imprisonment for five years under section

408. P.P.C. to that already undergone by him. The sentence of fine of Rs.1,00,000 and R.I. for 3 months in default thereof, as ordered by the trial Court shall remain unaltered. Out of the fine if recovered Rs.50,000- shall be credited to the account-holder's account. In case fine is 'not recovered the bank shall compensate the account-holder for the loss sustained by him due to misdeed of its official as ordered by the trial Court. With this modification in the sentence the appeal is hereby dismissed. N.H.Q./A-1277/K Sentence reduced.