1999 PLP 2177 (MLD)

ANWAR ZAHEER JAMALI. J.

This appeal is directed against the judgment, dated 30-12-1997 passed by the Special Court (Offences in Banks) Sindh at Karachi, whereby the appellant being found guilty for an offence under section 409, P.P.C. has been awarded sentence to suffer R.I. for seven years and fine of Rs.1,00,000 and in default of payment of fine to undergo R.I. for one year more.

2. The brief facts of the prosecution case are that one Shaikh Irfan Ahmed Account Holder of C.D. Account No.4419 at U.B.L. Central Branch, Denso Hall, Karachi had sent a sum of Rs.50,000 through his servant Muhammad Salim on 21-10-1992 for being deposited in his account. This amount was received by the appellant who after receiving the same signed and scaled the paying-slip in token of having received this amount and handed over the same to the servant of Shaikh Irfan Ahmed. After two days Shaikh Irfan Ahmed came to know that there was shortage of Rs.50,000 in his account as this amount was not credited in his account. He consequently made a written complaint to the Branch Manager who forwarded the same to the Zonal Chief and from there the same referred to the higher authorities of the Bank who made the payment of claim to the account holder. Thereafter, while charge was being taken from the appellant it was also found that Prize Bonds of Rs.36,100 were short and the appellant could not account for the same, the matter was reported by the Zonal Chief to the F.I.A. C.B.C. Karachi, whereupon F.I.R. No.29 of 1992 was registered and after necessary investigation by F.I.A., appellant was challaned. On i to i 9y:1 charge was framed in the case under section 408, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947, however, on 3-6-1996 amended charge was framed and the appellant was tried by the Court for an offence under section 409, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947.

3. Prosecution in support of its case examined the following witnesses: -- (i) Khan Tofiq Kamal, Vice-President U.B.L Special Assessment Management Group Karachi. (ii) Iftikhar Sultan, Manager, U.B.L. (iii) Shaikh Irfan Ahmed, holder of C.D. Account No.4419 (iv) Muhammad Jamil an employee of U.B.L. Central Branch Karachi (v) Muhammad Salim, servant of Shaikh Irfan Ahmed, Account holder. (vi) Munir Ahmed Shah, Handwriting Expert/Inspector, F.I.A. (vii) Abdul Hameed Pathan, Inspector, F.I.A. C.B.A. Karachi.

4. The trial Court after completion of evidence from the prosecution side recorded the statement of the accused/appellant under section 342, P.P.C. wherein he denied the case of the prosecution and alleged that he being a worker of Union has been falsely implicated in this case. The trial Court thereafter, heard the arguments and passed the impugned judgment.

5. We have heard the arguments of the learned counsel for the appellant, he has made two-fold submissions in the matter: -- (i) Firstly, it has been argued that on the basis of evidence produced at the trial by the prosecution no case for conviction was made out against accused under section 409, P.P.C. and, thus, the sentence awarded to him is liable to be set aside. (ii) Secondly, the trial Court while awarding the sentence of 7 years R.I. and fine of Rs.1,00,000 (Rupees one lac) and in default of payment of fine, further R.I. for one year has over-looked certain material facts and circumstances which were relevant and could have justified a lesser punishment to the appellant and, therefore, even if the conviction of the appellant is maintained he is entitled for reduction in his sentence and fine.

6. In support of his first contention, the learned counsel has referred to the evidence of the prosecution witnesses and attempted to show that there was no proper identification of signature of the accused on pay-in-slip as none of the witnesses deposed that the signatures on pay-in-slip, Exh.4-C were put by the accused in his presence and even the handwriting expert, in his deposition, has not fully supported the case of prosecution. Lastly the learned counsel has submitted that even on the point of entrustment of an amount of Rs.50,000 to the accused, the evidence of the prosecution is shaky and not free doubt and therefore, it was not proved by the prosecution that the appellant is guilty of offence charged for.

7. In support of his above contention, the learned counsel has placed reliance on the following case law: -- (i) Nisar Hussain v. The State (PLD 1964 Pesh. 59). (ii) Royce Dean Wellman v. The State (PLD 1997 Kar. 57) (iii) Safdar Ali v. The Crown. (PLD 1953 FC 93). (iv) Muhammad Aslam alias Aslam v. The Crown. (PLD 1953 FC 115). (v) Muhammad Amin v. The State (1990 PCr.LJ 84). (vi) Muhammad Luqman v. The State (PLD 1970 SC 10).

8. With reference to his second contention, the learned counsel has argued that as a result of this case, the appellant has already suffered the agony of harassment and protracted trial of more than five years and in addition to this he has suffered serious set-back of losing his job and thereby freezing up of his source of livelihood and in such circumstances, the trial Court should have taken a lenient view in the matter and consequently a lesser punishment to the appellant. In support of this contention the learned counsel has placed reliance on the following case law: -- (i)???????? Manzoor Hussain v. The State (1991 PCr.LJ 1865). (ii)??????? M. Habibullah v. The State (PLD 1985 Kar. 680) (iii)?????? Khurshid Anwar v. The State (1985 PCr.LJ. 97).

9. In reply to these contentions of the learned counsel for the appellant Mr. S. Tariq Ali, Standing Counsel for the respondent has strongly supported sentence awarded to the appellant and submitted that the perusal of the Judgment of the Trial Court would show that each and every contention raised by the learned counsel for the appellant with reference to the alleged discrepancies and short-comings in prosecution evidence have been distinctly and elaborately discussed by the Trial Court, not only this but sound and cogent reasons have been assigned by the Trial Court for recording conviction against the appellant and, thus, no case for interference in the impugned judgment is made out.

10. In reply to the other contention of the learned counsel for the appellant which relates to the quantum of sentence awarded to the appellant Mr. S. Tari.q Ali. has referred to section 6(2) of Ordinance IX of 1984 of Offences of respect of Bank (Special Courts) Ordinance, 1984 and submitted that after this amendment in section 409, P.P.C. in the year 1984, 7 years imprisonment is the minimum period of imprisonment prescribed by law if accused is found guilty of an offence under section 409, P.P.C. While the maximum period of sentence is life imprisonment or imprisonment of 10 years. The trial Court has already taken a lenient view by awarding the minimum sentence of imprisonment, as permissible in law, to the accused. With reference to the quantum of fine imposed by the trial Court, the learned Standing Counsel has referred to subsection (3) of section 6 of the said Ordinance and has submitted that in the instant case Special Court has found that the offence committed by the appellant was in respect of a specified amount viz. Rs.50,000, thus, the minimum fine which could have been imposed in such circumstances was not less than twice the said amount as awarded by the trial Court. The trial Court was otherwise empowered to impose a fine of more than this amount and, therefore, the judgment of the trial Court should be maintained.

11. We have carefully considered the arguments advanced by the learned counsel for the parties and have perused the case record. The perusal of evidence led by the prosecution in this case goes to show that the contentions raised by the learned counsel for the appellant about the deficiencies in the case of prosecution are devoid of force as all the prosecution witnesses have fully supported their case and there is ample evidence on record to prove the guilt of the accused/appellant. The Trial Court in its judgment has properly assessed the evidence and has assigned cogent reasons for recording conviction of the accused. We are satisfied that there is no misreading or non-reading of evidence by the Trial Court in awarding conviction to the appellant as offence under section 409, P.P.C. is fully proved against the accused/appellant.

12. As regards to the case law cited by the learned counsel for the appellant it will be pertinent to observe that in the case of Royce Dean Wellman v. The State through Collector of Customs (PLD 1997 Kar. 57) (the judgment of this case has been authored by one of us; Dr. Ghous Muhammad, J.). Following the view of the Honourable Supreme Court of Pakistan in the case of Nazar Muhammad v. The State (PLD 1978 SC 236) the following observations were made: -- The principle of law enunciated in the decisions relied upon by the learned D.A.-G. carry no cavil, however, the same are not applicable to the present facts of the case. It is again settled proposition of criminal jurisprudence that precedent do not carry the same binding force as would be in the civil law. In criminal cases the facts of the case have to be seen in their clear perspective". In the instant case also, there is no cavil to this proposition of law as enunciated in various judgments referred by the learned counsel for the appellant however, the same have no applicability to the facts and circumstances of the present case.

13. In view of all this, no case for interference in the conviction awarded by the trial Court is made out by the appellant.

14. Reverting to the next contention of the learned counsel for the appellant about the quantum of sentence awarded by the Trial Court, we are in full agreement with the arguments advanced by the Standing Counsel for the respondent that in view of the amendment in section 409, P.P.C. by Ordinance IX of 1984 and in view of section 6(3) of the said Ordinance, the sentence awarded by the Trial Court viz. 7 years imprisonment and fine of e Rs.1,00,000 is already the minimum sentence which the trial Court could have awarded in the facts and circumstances of the case. We are of the view that in the cases where statute provides, the limits of maximum and minimum sentences for an offence, the Courts are not empowered to travel beyond those limits and C thus this Court as appellate Court in also not empowered to reduce the same beyond the limits as specified in law. The learned counsel for the appellant was called upon to show us any case law contrary to this but he has failed to produce any. The case law cited by the learned counsel for the appellant has also no relevancy to the facts of the present case as the same is prior to the relevant amendment in section 409, P.P.C. whereby the limits of Courts with regard to the minimum sentence have been defined.

15. In view of the above, this appeal has got no merit and we accordingly dismiss it. The appellant who is in custody be informed accordingly. Q.M.H./M.A.K./M-377/K ????????????????????????????????????????????????????????????????? Appeal dismissed.