2001 PLP 2698 (YLR)

KHAWAJA MHAMMAD SHARIF, J.‑‑‑This judgment will dispose of Criminal Appeal No.601 of 1988 filed by Farhat Ali Akhtar, appellant, who was convicted and sentenced by the learned Judge, Special Court (Offences in Banks) vide judgment 8‑5‑1988 as under:‑‑‑ Under sections 5 years' R. I. and a 409/511, P.P.C. fine of Rs.4 lacs, in default one year's R.I. Under section 10 years' R.I. and a 409, P.P.C. fine of Rs.8 lacs in default 2 years' R.I. Both the sentences were ordered to run concurrently with the benefit of section 382‑B, Cr.P.C. Out of the fine, if recovered, Rs.5,000 was ordered to be paid to Allied Bank Limited, Shadman Branch, Lahore.

2. Briefly stated the facts of the case are that Mansoob Ali Shah during his tenure as Manager, Mozang Chugni Branch, Lahore had opened four saving bank non‑chequing accounts in the name of Jamshed Ali Shah after getting the amount of Rs.7,70,000 through credits, advice from Allied Bank Limited, Bank Square Branch, Gujranwala. Thereafter Mansoob Ali Shah while posted as Manager Shahdara Branch in the last week of June, 1981 arranged to have issued from A.B.L., Mozang Chungi Branch four Deposit at Calls in favour of Jamshed Ali Shah to the debit of 4 S.B. accounts. The Deposit at Calls were collected by Mansoob Ali Shah after a fortnight. Later on, the said D.A.Cs. were delivered to Farhat Ali Akhtar, the then Manager, Shadman Colony Branch for temporary boosting deposit of his branch because Farhat Ali Akhtar had approached Mansoob Ali Shah for placing the funds in STD account for some time. On receipt of the D.A.Cs., Farhat Ali instead of collecting the proceeds from Mozang Chungi Branch approached the Union Bank of Middle East, Lahore for opening an account with them but they insisted for proper introduction which he failed to produce. The crossing/clearing stamps and endorsements of the Union Bank were affixed on the relevant D.A.Cs. who later on cancelled their stamps and returned the same to Farhat Ali Akhtar. On being refused by the Union Bank no alternate was left for Farhat Ali but to collect the proceeds through Mozaag Ghungi Branch by transfer delivery from Shadman Branch. The proceeds so collected were credited to one fictitious Account No.SB‑984 opened in the name of Mr. Usman instead of Syed Jamshed Ali Shah. Inter on four STDs were issued by Shadman Branch in the name of Mr. Usman instead of Syed Jamshed Ali, the real depositor and delivered to Mansoob Ali Shah, Manager Shadara Branch. Mansoob Ali Shah while receiving the STDs in the name of Usman did not care to get them corrected to the real name but lodged two of them for collection on 15‑8‑1981 and on realization placed the amount is STD account of Syed Jamshed Ali Shah at his branch. Farhat Ali encashed the STD No.003877/7/30 for Rs.2,00,000 on 15‑8‑1981 through debit cash voucher in the absence of original instrument which was already in possession of Mansoob Ali Shah, the Manager Shahdara Branch and thus had indulged himself into an unauthorised transaction with a view to misappropriate the amount of Rs.2,00,000 the voucher of which is missing, it was alleged. Out of this amount, Farhat Ali Akhtar placed Rs.1,00,000 in the STD account favouring Usman, a fictitious account and pocketed the remaining amount of Rs.1,00,000.

3. Investigation was conducted by Muhammad Iqbal Butt SU (P.W.7) who took into possession the documents, recorded statements of witnesses, obtained specimen signature of the accused and then challaned item to face the trial. At the trial, prosecution order to prove its case produced 8 witnesses in all. Mansoob Ali Shah was also camined as C.W.1 and Muhammad Ashraf", C.W.2. Thereafter, the statements of both the accused were recorded under section 342, Cr. P. C. in which they claimed false implication. After conclusion of the trial, Ghualm Hassan was acquitted while the appellant was convicted and sentenced as stated above.

4. Learned counsel for the appellant after having read the entire prosecution evidence submits that no monetary loss was caused to the bank, there was no mens rea on the part of the appellant to cause any loss to the bank, it is general practice in Pakistan banking system that in order to raise the deposits, Deposit at Calls are received and that at the most action of the appellant can be termed as an irregularity but not mis appropriation of amount. Further submits that section 409, P.P.C. is not attracted. Learned counsel lastly submits that the appellant has already been dismissed from service and in the peculiar facts and circumstances of the case, the period which the appellant had remained in Jail may be treated to be sufficient. He has relied upon 1972 SCMR 118, PLD 1995 Karachi 680 and 1997 SCMR 935.

5. Learned counsel for the State submits that C.W.1 has stated before the learned trial Court that the whole amount was reimbursed to the bank. In fact, he does not support the judgment of the learned trial Court.

6. We have heard learned counsel for the parties and have gone through the record. In the instant case, the F.I.R. was registered on 18‑2‑1982. Appellant was arrested on 16‑9‑1984, then was allowed bail on 3‑10‑1984, conviction was recorded by the learned trial Court on 8‑5‑1988, thereafter his sentence was suspended on 26‑8‑1988, then he was arrested in execution of the non- bailable warrants because he had not been appearing before this Court on many dates of hearing, on 13‑3‑2001 and since then he is in judicial lock‑up. After going through the evidence on record and hearing the submissions made by learned counsel for the parties, we are of the considered opinion that there was no criminal misappropriation on the part of the appellant. No monetary loss was caused to the bank which fact has been admitted even by C.W.1. What he did, he did to raise the deposits of the bank as per practice of the banks prevailing in Pakistan. Keeping these facts in mind coupled with the period which the appellant has remained in jail, the agony of trial, pendency of this appeal for the last more than 12 years, at this stage we do not deem it proper to send the appellant behind the bars by relying on the decision reported in PLD 1985 Karachi

680. In these circumstances, we consider the period of sentence which the appellant has remained in jail to be sufficient to meet the ends of justice. With this modification in the quantum of sentence, appeal filed by the appellant is dismissed. The appellant is in jail and shall be released forthwith, if not required to be detained in any other case. N.H.Q./F‑63/L Sentence reduced.