1988 P Cr (PLP)

AJMAL MIAN, J.--By this common judgment, we intend to dispose of the above six appeals as they are directed against a common judgment dated 31-8-1987, passed by the Presiding Officer, Special Court. (Offences in Banks), Karachi, in six cases, namely, cases numbers 1 of 1985, 67 of 1985, 68 of 1985, 69 of 1985, 70 of 1985 and 72 of 1985, acquitting the appellant under sections 468 and 471, P.P.C. and convicting him in the above six cases under section 408, P.P.C. and sentencing him as follows:- (1) "In Case No. 1/85 to imprisonment till rising of the Court and fine of Rs. 2,000 and in default of payment of fine to undergo R.I. for one month; (2) In Case No. 67 of 1985 to imprisonment till rising of the Court and fine of Rs. 8,000 in default of which he will undergo R.I. for 3 months; (3) In Case No. 68/85 to imprisonment till rising of the Court and fine of Rs. 8,000 and in default of payment thereof he will undergo R.I. for 3 months; (4) In Case No. 69/85 to imprisonment till rising of the Court and fine of Rs.8,000 and in default of payment of which he will undergo R.I. for 3 months: (5) In Case No. 71/85 to imprisonment till rising of the Court and fine of Rs. 8,000 and in default of payment of which he will undergo R.I. for 3 months; (6) In Case No. 72/85 to imprisonment till rising of the Court and fine of Rs. 10,000 and in default of payment of which he will undergo R.I. for 4 months."

2. It may be observed that the appellant had filed only one appeal, namely, Cr. Appeal No. 175 of 1987 on 5-10-1987, though he was convicted in six cases, which were tried separately, but disposed of by a common judgment. When the above appeal had come up for hearing before a Division Bench of this Court on 26-4-1988, it was pointed out to the learned counsel for the appellant by the Court that instead of filing six appeals the appellant had filed only one appeal. Thereupon, the learned counsel for the appellant requested for time to file five more appeals, which were filed on 11-5-1988, namely, Criminal Appeals Nos.90 of 1988 o 94 of 1988. It may be advantageous to mention hereinbelow the original case number and corresponding Criminal Appeal number: Case No. Cr. Appeal No. 1/1985 175 of 1987 67/1985 90 of 1988 68/1985 91 of 1988 69/1985 92 of 1988 70/1985 93 of 1988 72/1985 94 of 1988

3. The brief facts leading to the filing of the above appeals are that P.W. 2 Nazir Ahmad Memon son of Hafiz Illahi Bux Memon, Assistant Vice President of the Muslim Commercial Bank Ltd., Karachi (hereinafter referred to as MCB), lodged report with F.I.A. on 24-12-1984 against the appellant and co-accused Shafiq Ahmad, now deceased (hereinafter referred to as the deceased accused), which reads as follows: "I, Nazir Ahmad Memon s/o Hafiz Illahi Bakhsh Memon, Assistant Vice President of Muslim Commercial Bank Limited, Karachi lodged this report as under: (1) That Messrs (1) Shafiq and (2) Muhammad Akbar were working with our Bank as Sports Officer and Manager of our Football team respectively. (2) That both the accused persons in their official capacity made the Bank to pay through certain sums on certain dates to the K.M.C. as Ground Rent for the use of Ground namely "K.M.C. Moghal Football Ground" by our Football Team. The details of the payments and the documents against which the payments were made are disclosed in the Statement attached and marked "A". (3) That on inquiry it revealed hat there does no exist any ground by the name of "K.M.C. Moghul Football Ground" and no payment, as stated above, was ever made to the K.M.C. by the accused persons on behalf of the Bank and all the documents referred to above were forged by the accused persons in furtherance of their common intention who used the same as genuine and withdrew the abovesaid amounts from the Accounts Division of the Bank against the abovesaid forged documents fraudulently and- converted the same to their own use and thereby caused wrongful loss to the Bank to the tune of Rs. 46,185 by misusing their official position "nom 1977 to 1984. This fact has been verified and confirmed by the K.M.C. (4) That the accused persons have, therefore, rendered themselves liable for legal action under Section 409/468/471/34, P.P.C. It is, therefore, requested to please register this case against the accused persons and deal with them in accordance with the law. This should be treated as F.I.R." Pursuant to the above report, F.I.R. was registered and after investigation 8 cases were registered against the appellant and the deceased accused. In 2 of the cases the appellant was acquitted but in the remaining above six cases, which pertain to the years 1977--1980 and 1982 to 1983 he cases against the present appellant were proceeded with after the framing of the charges as the deceased accused had expired.

4. The prosecution examined nine witnesses, namely P.W 1 Mohammad Hashim Qureshi, Inspector who challaned the case, P.W. 2 Nazir Ahmed Memon Assistant Vice-President MCB, who lodged the report and who produced a number of documents relating to the withdrawal of the amount, P.W. 3 Mohammad Ismail, Cashier who made payments to the appellant on the vouchers for payment of rent for K.M.C. Moghul Football Ground, P.W. 4 Adam A. Karim, an officer in the Central Accounts Division of the MCB, P.W. 5 Abdul Sattar, an employee of the K.M.C. working in the K .M . C . Recreation and Sports Department since 1972, who deposed that the alleged vouchers /letters purporting to be from the K.M.C. Authorities for the use of the K.M.C. Moghul Football Ground on payment of ground rent and the alleged receipts issued by the K.M.C. for use of the said ground were forged P.W. 9 Mohammad Hanif Nasir, Director, Recreation and Sports. K.M.C. who deposed that there was no ground by the name of K.M.C. Moghul Football Ground, P.W. 10 Abdul Malik Khan, Assistant Director Parks and Recreation K.M.C. who deposed that there was no ground by the name of K.M.C. Moghul Football Ground, P.W.11 Hussain Ali Baluch, Sub-Inspector who registered the F.I.R. and investigated the case, C.W. 1 Seeed Ahmed Memon, Reader attached to the Vth Labour Court, who produced letter dated 2-8-1984 from the MCB to the K.M.C. and other correspondence, P.W. 7 Mohammad Iqbal, who produced the MCB Football Expenses Register for the period 1979 to 1984, C.W. 2 who was examined as P.W. 6 was second time examined as C.W. in Case No. 1/1985 as he was working as the Sports Officer in the MCB since 1984.

5. Mr. Iqtidar Ali Hashmi, learned counsel for the appellant, in support of the above appeal has invited our attention to typed page 12 of the judgment (page 85 of the Paper Rook) and has contended that according to the finding of the learned Presiding Officer there is no evidence to indicate that the appellant either forged the alleged permission letters or rent receipts or dishonestly used them and, therefore, the appellant could not have been convicted even under section 408, P.P.C. The above contention is devoid of any force. There is sufficient material on record to conclude that there was no football ground by the name of K.11.C. Moghul Football Ground and that this fact was known to the appellant and that the appellant and the deceased accused obtained the payment of rent of the aforesaid fictitious ground. It is an admitted position that the actual payments were received by the appellant. The appellant cannot escape from his liability by contending that though he had received the amount but he had no knowledge for what purpose the amount was obtained. Admittedly, the appellant was the Captain of the Football Team and also its Manager, whereas the deceased accused was the Sports Officer of the MCB. Once the factum that the amounts in question were received by the appellant on account of alleged Football Ground rent, the burden was shifted on him to show that he was not a sharing party to the misappropriation of the amount. Mr. Hashmi's submission that the appellant was merely a peon, though he was the Captain and the Manager of Football Team, has not impressed us. The amount could not have been misappropriated without the consent and actual participation of the appellant. The learned Presiding Officer has referred to the case of Giazuddin v . State P L D 1962 SC 132 at p. 134, the case of State v. Abu Raza (P L D 1959 SC (Pak. ) 309 at page 312, the case of Sajid Hussain v. The State (1975 S C M R 162), the case of Riaz Hussain v. State (1968 S C M R 1130), the case of Muhammad Ishaq v. State (1973 S C M R 375 relevant at page 379 and the case of Superintendent and Remembrancer of Legal Affairs v. S.K. Roy (AIR 1974 SC 794), on the question of burden of proof. The above-cited cases lend support to our conclusion that once the appellant had admitted the receipt of the amount, he was to account for it. In his 342 statement the appellant has stated that he had paid various amounts of the ground rent received by him in' respect of the above six cases to the deceased accused when he was alone. He has neither produced any receipt for the payment nor has examined any witness to prove the payment. Since the deceased accused had expired the appellant cleverly stated that the amount was paid to the deceased when nobody was present.

6. In our view, the learned Presiding Officer has thoroughly discussed the evidence on record and has correctly concluded that the offence under section 408, P.P.C. stands proved against the appellant and has, therefore, rightly convicted the appellant. However, we are of the view that the sentences awarded ford non-payment of the fine amount are liable to be reduced. In the cases mentioned at S. Nos.2 to 5 in para 1 hereinabove, namely, two months R.I. in place of 3 months R.I. for the non payment of the fine amount of Rs.8,000 and in the case mentioned at S. No. 6 of para 1 hereinabove namely three months' R.I. in default of payment of Rs. 10,000 in place of four months R.I. namely- in Case No. 72 of 1985. With the above modification the above appeals are dismissed. If the appellant has undergone the above sentences, which were to run consecutively, he shall be released forthwith unless he is required in some other case. M.Y.H./M-576/K Order accordingly.