1992 PLP 137 (MLD)

SH. IJAZ NISAR, J.‑‑‑This judgment will dispose of Criminal Appeal No.615 of 1985 filed by Nazar Karim and Criminal Appeal No. 622 of 1985 filed by Abbas Raza Khan.

2. Nazar Karim Bhatti, an Officer and Abbas Raza Khan, Cashier of National Bank of Pakistan, Civil Lines Branch, Gujranwala were tried alongwith Muhammad Asghar Butt, Supervisor, National Bank of Pakistan and Muhammad Siddique, Auditor, District Accounts Office, Gujranwala by Special Court (Offences in Banks), Lahore under section 409/109/467/468/ 471/201, P.P.C. Mr. Justice (Retd.) Ghazanfar Ali Gondal, Judge, Special Court by his judgment dated 29‑10‑1985 acquitted Muhammad Asghar Butt, Supervisor, N.B.P. and Muhammad Siddique, Auditor, District Accounts Office but convicted and sentenced Nazar Karim Bhatti and Abbas Raza Khan as under: NAZAR KARIM BHATTI: (a) Eight years' R.I. and a fine of Rs.90,000 or in default to further R.I. for two years under section 409/34, P.P.C. read with section 6(2) of Ordinance IX of 1984. (b) Five years' R.I. and a fine of Rs. 72,000 or in default to undergo further R.I. for 1‑1/4 years under section 5 of Act II, 1947. (c) Six years' R.I. and a fine of Rs. 80,000 or in default to further R.I. for 1‑1/2 years under section 477‑A, P.P.C. read with section 6(2) of Ordinance IX of 1984. ABBAS RAZA KHAN: (a) Eight years' R.I. and a fine of Rs. 90,000 or in default to undergo further R.I. for two years under section 409/34, P.P.C. (b) Five years' R.I. and a fine of Rs. 72,000 or in default of payment of fine to suffer further R I. for 1‑1/ 4 years under section 5 of Act II of 1947. The above sentences were ordered to run concurrently with benefit of section 382‑B, Cr. P.C. Out of the fine recovered from the appellants a sum of Rs.35,213 was ordered to be paid to N.B.P., Civil Lines Branch, Gujranwala to compensate it for its loss and the remaining was confiscated to the State. Nazar Karim Bhatti and Abbas Raza Khan have filed separate appeals which are being disposed of together by this judgment.

3. The prosecution case is that on 2‑5‑1975 payments in such of Rs. 4,950 Rs. 1,000, Rs.10,700, Rs.6,000, Rs. 115, Rs.7,513 and Rs. 4,935 totalling Rs.35,213 were made by National Bank of Pakistan, Civil Lines Branch, Gujranwala without any authority from District Accounts Office, Gujranwala. Consequently, case F.I.R. No.147 Exh. P.W.6/A‑6 was registered on 22‑1‑1976 at P.S. City, Gujranwala on the report of District Accounts Officer, Gujranwala. During investigation, debit scroll Exh.1 alongwith its relevant summary Exh. P.2 sent by N.B.P., Civil Lines Branch, Gujranwala to the District Accounts Office, Gujranwala, Cashier payment register from 29‑6‑1974 to 23‑6‑1975 and payment scroll dated 2‑5‑1975 were seized. On completion of the investigation the accused named above were challaned.

4. The prosecution produced 12 witnesses to prove its case. Muhammad Sarwar, District Accounts Officer P.W.2 stated; hat National Bank of Pakistan had made unauthorised payment of Rs.35,213 vide 7 entries marked on debit scroll as his office had not authorised the payment of the said amount. Abbas Khan PW. 8, District Accounts Officer, Gujranwala out lined the procedure of the preparation of drawing schedule by the District Accounts Office and that of debit scroll by the Bank.

5. According to the prosecution the procedure of forwarding the bills to the Bank was that after passage those were entered in a drawing schedule bearing the signatures of the District Accounts Officer, token number and his embossed seal. After payment the Bank would prepare debit scroll and send the same to the District Accounts Officer showing the name of the payee and the amount paid etc. According to the prosecution neither any drawing schedule for Rs.35,213 had been prepared by the District Accounts Officer nor were any token numbers mentioned thereon and that the officials of National Bank of Pakistan, Civil Lines Branch, Gujranwala had made unauthorised payment of the above sum.

6. The appellants denied the prosecution allegations. Nazar Karim appellant stated that payments were made on receipt of vouchers from the District Accounts Office. The same were misplaced in the office of the District Accounts Officer, Gujranwala and they shifted the burden on the employees of the National Bank. He denied having prepared debit scroll Exh. P.1. According to him the payments were made in routine on seeing the embossed seal of the District Accounts Officer and his authenticated signatures on the vouchers. Abbas Raza Khan appellant also made a similar statement. No evidence was called in defence.

7. Relying on the prosecution evidence the learned trial Court convicted the appellants as described above. The learned trial Court observed that an inference of common intention between Nazar Karim and Abbas Raza Khan appellants could be drawn because both used to it in the bills section of the Branch, located in half of verandah and no payment could have been made unless they shared the common intention. The learned Court further observed that though there was no direct evidence available in respect of the appellants having received Rs. 35,213 or to have misappropriated the same, the Court was not deterred by the incompleteness of tale from drawing inferences flowing from the facts and circumstances of the case.

8. Learned counsel for the appellants contend that there was an inordinate delay of about 3 months in pointing out to the Bank that the vouchers in question had not been sent to the District Accounts Office, that the payment scroll (Drawing schedule) and the Cashier payment register for the relevant period although reported to have been seized during investigation were not produced at the time of trial on the plea of their having been misplaced. It is further stated that the mentioning of token numbers on the debit scroll was not necessary. In this connection they have referred to some other entries in debit scroll Exh. P.1 where token numbers were not mentioned. Lastly, it is contended that debit scroll Exh. P.1 is not proved to have been in the handwriting of any of the appellants or bearing their signatures.

9. To establish the unauthorised payment by the appellants the prosecution was required to prove that the drawing schedule dated 2‑5‑1975 prepared by the District Accounts Office, Gujranwala did not contain entries relating to the payment of sum of Rs.4,950, Rs.1,000 Rs.10,700, Rs.6,000, Rs.115, Rs.7,513 and Rs.4,935 but it has failed to discharge the onus. The appellants' plea is that the payments had been genuinely made on receipt of vouchers bearing the signatures and embossed seal of the District Accounts Office. The particulars of the persons receiving payment must have been mentioned in the Cashier payment register but the prosecution did not produce it before the trial Court on the excuse of its having been lost.

10. The prosecution was required to prove that debit scroll Exh.P.1 showing the details of the payments was fictitiously made by the appellants, but no serious effort was made in this behalf. Their specimen handwriting could have been obtained and got compared with writing Exh. P.l‑but that was not done. Kanwar Munir.PW. 7 exprcsscd his inability to identify the handwriting on debit scroll Exh. P.1. According to him it was the duty of three employees of the Bank to prepare the same, one of them, was Muhammad Asghar Butt accused (since acquitted) and two other officials namely Wahab and Mushtaq. The original drawing schedule prepared by the District Accounts Officer authorising the payment of bills was not produced by the prosecution and the mere assertion on their part that since the token numbers were missing from the copies of the drawing schedule produced by them during investigation was not sufficient to show that unauthorised payments were made by the appellants. The appellants' case is that after payment the vouchers were sent to the District Accounts Office on the next date viz. on 3‑5‑1975 and that the same were lost from the District Accounts Office. In this context a reference has been made to para. 16 of the judgment where the learned trial Court observed as under: "It is true that the Manager of N.B.P., Civil Lines Branch, Gujranwala, had in Exh. DD letter dated 15‑8‑1975 taken the position that vouchers had been sent to the District Accounts Office on the next day viz. 3‑5‑1975." '

11. The judgment of the learned trial Court is based on conjectures anci surmises and it has shifted the burden on the appellants to show that they had made payments against duly authenticated/passed bills. It was the duty of the prosecution to prove each and every ingredient and detail of the offence and the burden could not have been shifted to the appellants to prove their innocence. The prosecution failed to produce the original drawing schedule which formed basis of the payments in question. The debit scroll Exh.P.1 which according to them was fictitiously prepared by the appellants is not proved to be in the handwriting of any of the appellants. The each register which could have proved valuable clue to the persons receiving payments on the basis of forged bills was also not produced at the trial. The payments in question from the National Bank of Pakistan must have been made against the account of some department of the Government but no department has come forward with the allegation that the said payments were unauthorised or bogus or pecuniary loss had been caused to it by the wrong payment. Even the District Accounts Office does not claim to have been defrauded or cheated of any money. Their main plea is that the payments by the National Bank of Pakistan were not made in accordance with the practice and procedure prevailing at the relevant time without showing as to who had been made to suffer on account of the alleged lapse of the appellants. No effort was made by the investigation agencies to find out if at all anybody had suffered any pecuniary loss. The case appears to be the result of a tussel between the officials of National Bank of Pakistan and the District Accounts Office, Gujranwala. The Bank officials could not be expected to have connived at with each other in fraudulent payments of meagre sums like Rs. 115 and Rs.1,

000. For the foregoing reasons the prosecution has failed to prove its case against the appellants. Accordingly, we accept their appeals, set aside their conviction and sentences and honourably acquit them of the charges. They are on bail and are discharged from the bail bonds. N.H.Q/N‑10/L Appeals accepted.