P L D 1988 Karachi 296 (PLP)

Date of hearing: 27th January, 1988. AJMAL MIAN, J.‑‑This appeal is directed against the judgment dated 25‑4‑1987 passed by the learned Presiding Officer, Special Court (Offences in Banks), Karachi, convicting the appellant No.1 Muhammad Aqeel for offence under section 408, P.P.C. and sentencing him to three months' R.I. and a fine of Rs.4 lacs and in default of payment of fine to further suffer R.I. for 18 months and convicting the appellant No.2 Ghulam Hasnain under the aforesaid section and sentencing him to R.I for three months and to pay a fine of Rs.64,000 and in default to undergo further R.I. for 12 months. The appellants were also convicted under section 477‑A and were sentenced to three months' R.I. The two substantive sentences of imprisonment in case of each of the appellants were to run concurrently, while the sentences of imprisonment in default of payment of fine were to run consecutively. The appellants being aggrieved by the above judgment have filed the present appeal.

2. The relevant facts leading to the filing of the above appeal are that the two appellants were charged on 12‑7‑1986 by the Presiding Officer in pursuance of F.I.R. lodged against them on 24‑2‑1986 by P.W.1 Abdul Maroof, the Manager of U.B.L. Manghopir Road Branch. The charge reads as follows:‑ I, Justice (Rtd.) Zulfikarali C. Valiani, Presiding Officer, Special Court (Offences in Banks) Karachi constituted under Ordinance IX of 1984, do hereby charge you accused (i) Ghulam Hasnain s/o Mazhar Hasnain and (ii) Aqeel Ahmed s/o Maqbool Ahmed as follows:‑ That you accused S. Aqeel Ahmed was Officer Incharge of the Collection of utility bills and you accused S. Ghulam Hasnain was the IInd Officer in the Manghopir Road Branch of UBL in December 1985 and January 1986 when you both hatched a plan to defraud the said branch of UBL and in pursuance of your plan and in furtherance of the common intention of both of you, you both received either jointly or severally a total amount of Rs.2,36,831 in respect of utility bills from various customers between 4‑12‑1985 till 6th January, 1986 and committed criminal breach of trust in respect of said amount in furtherance of the common intention of both of you and consequently you also falsified the ledger/scroll of utility department in question by not showing deposits of these amounts on the dates when they were actually received by you and thus also falsified ledger/scroll of the utility services and thus both of you have committed offence punishable under sections 408, P.P.C. and 477‑A, P.P.C. read with section 34, P.P.C. within my cognizance. And, therefore you both the accused be tried by this Court on the aforesaid charge."

3. The prosecution in support of the case examined aforesaid P.W.1 Abdul Maroof, the complainant and the Manager of UBL Manghopir Road Branch, P.W.2 Zafarul Haq, Zonal Head of the UBL, P.W.3 Nawab Khan a Cashier in the UBL Manghopir Road Branch, P W.4 Farzand Hussain another cashier in the aforesaid Branch, P.W.5 shahid Hussain, Shah. Inspector F.I.A., who investigated the case. The above P.W.1 produced a number of documents namely, Exhs.2/A‑1, 2/A‑2, 2/A‑3 and 2/A‑4, Exh.2/13‑1, 2/8‑2, 2/11‑3, 2/C‑1, 2/C‑2, 2/C‑3, 2/D‑1 and 2/D‑2 which were electricity and gas bills in respect of which the amounts were misappropriated by the appellants, Exh.2/A-5, 2/A-6 are the extra‑judicial confessions made by the two appellants in presence of P.W.1 Abdul Maroof and P.W.2 Zafarul Haq, Exns.2/13‑1, 2/E‑2, 2/E‑3 are the three vouchers under which the two appellants deposited the above misappropriated amounts with the bank after the above discovery on 9‑1‑1986, 11‑1‑1986 and '12‑1‑1986. In addition to the above ocular and documentary evidence, the prosecution also examined P.W. 6 Muhammad Rafiq, P.W.7 Hussain Ali Ibrahim, P.W.8 Javed Nizami, P.W.9 Muhammad Nawaz Malik and P.W.10 Muhammad Zaki, the persons who had deposited the amounts with the appellants in respect of the bills on behalf of the consumers. They were examined after the appellants statements under section 342 were recorded. The appellants examined three witnesses in defence. D.W.1 Muhammad Yaseen, a Cashier, D.W.2 Hussain Abbas Mirza, and D.W. 3 Muhammad Misken. The learned Presiding Officer after hearing the parties convicted the two appellants in the above terms. They have, therefore, filed the present appeal.

4. We have heard Mr. Abdul Mujeeb Pirzada learned counsel for the appellants and Mr. S. Murtaza Hussain learned counsel for the State and we find that there is overwhelming evidence, ocular and documentary against the two appellants. Factually the appellants had not denied the receipt of the amounts mentioned in the charge which was allegedly misappropriated by them, but their plea was that the above amounts were in fact lying with the Manager, P.W.1 Abdul Maroof. Mr. Abdul Mujeeb Pirzada, learned counsel for the appellants has attempted to urge that factually the amounts under Exhs. 2/E‑1 to 2/E‑3 were not deposited by the appellants but were deposited by the Manager. The above contention seems to be contrary to the plea taken by the appellants in the cross‑examination conducted on their behalf by Mr. Karam Ali on 3‑12‑1986, wherein a suggestion was made that the amounts under the above three vouchers were obtained from the appellants under threats that otherwise they would be handed over to the F.I.A., though Mr. Mujeeb Pirzada at a later stage in the cross‑examination had come out with the above inconsistent plea. However, in our view, the ocular and the documentary evidence on record belies the above plea. We are, therefore, of the view that the finding of the learned Presiding Officer on the question of guilt is in consonance with the evidence on record and law. It was also contended by him that since the alleged misappropriated amounts were deposited with the bank after the expiry of few days from the date of their receipt, no offence under section 408, P.P.C. was made out as there was only temporary retention. The above contention is in conflict with the view found favour by the Hon'ble Supreme Court in the case of The State v. Abu Raza, reported in P L D 1959 Supreme Court (Pak.) 309, in which it has been held that it is sufficient if B the party aggrieved was deprived of the use of the money for an unexplained period for proving an offence under section 408, P.P..C. Then it was contended by Mr. Abdul Mujeeb Pirzada that since admittedly the appellants had deposited the alleged misappropriated amounts after few days from the date of the receipt, the learned Presiding Officer could not have imposed the fine twice of the amount allegedly misappropriated. Reliance was placed on the case of Momin Shah v. The State 1987 M L D 1500 in which a Division Bench of this Court has observed that provisions Of subsections (3) and (4) of section 6 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 (Ordinance No.IX of 1984), should be read jointly and actual loss should be primary consideration for imposing fine and temporary embezzlement 'and breach of trust may be considered for conviction but for imposing sentence of tine that cannot be considered. However, in a later unreported case of Abdullah son of Khadim Hussain Manganhar v. The State Criminal Appeal No.167 of 1987 decided on 16‑11‑1987, the above aspect was reconsidered and the following observations were made: ‑ "In our view, it will be pertinent to reproduce subsections (3) and (4) of section 6 of the Ordinance which read as follows: (3) where a Special Court passes a sentence of fine, whether in addition to any other punishment or not, the amount of such fine shall be fixed by it having regard to the gravity of the offence for which the accused person is convicted and, where the Special Court finds the offence to have been committed in respect of a specified amount, shall not be less than twice the said amount. (4) Where a Special Court passes a sentence of fine, the Court shall order the whole or any part of the fine recovered to be applied in the payment to the bank in respect of which the offence was committed of compensation for the loss caused to it by the offence.' A plain reading of the above‑quoted subsection (3) indicates that while passing a sentence of fine the Special Court is to take into consideration the gravity of the offence for which the accused person is convicted and where the Special Court finds the offence to have been committed in respect of a specified amount, it will have to impose the fine not less than twice the said amount, whereas under above‑quoted subsection (4) the Special Court has been empowered to order the payment of part of the fine to the bank in order to compensate for the loss caused to it by the commission of the offence. We are unable to read into the above subsection that in case an accused deposits the amount for which he is charged with and is convicted on proof, no fine is to be imposed. The words used in subsection (3) are 'the offence to have been committed in respect of a specified amount'. it is the commission of the offence with reference to the amount which is to be considered and not the factum, whether the accused has made good of the amount which he misappropriated. In view of the above clear language employed in the above‑quoted subsection (3) of section 6, we are unable to accept the above contention. The judgment relied upon by Mr. Abdul Mujeeb Pirzada, learned counsel for the appellant, does not lay down a broad proposition of law that in case where an accused deposits the amount which he had misappropriated no fine can be imposed."

5. Since we have held in the present case that the appellants are guilty of the offences for which they were charged, namely, for the breach of trust in respect of the specified amounts, in our view, in the presence of clear mandatory provision contained in subsection (3) of section 6 of the aforesaid Ordinance, reproduced hereinabove, the fine amount cannot be less than twice the specified amount However, the factum that the appellants had deposited the amounts with the bank even before lodging of the F.I.R., would be a mitigating circumstance for awarding lesser substantive sentences and lesser sentences in default of payment of the fine.

6. We, therefore, reduce the period of the substantive sentenced to the period already undergone and substitute 6 months R-I in place of 18 months' R.I. in case of default of payment of fine by appellant No.1 Aqil Ahmed and 4 months' R.I. in place of 12 months] R.I. in default of payment of fine by appellant No.2 Ghulam Hasnain. With the above modification the appeal is dismissed. These are the reasons in pursuance of a short‑ order of even date. M.Y.H./A‑253/K Appeal partly allowed.