1988 P Cr (PLP)

ALLAHDINO G. MEMON, J.--The appellant alongwith co-accused Ayaz Ahmed were charged under section 408/109, P.P.C, and tried before the learned Presiding Officer Special Court (Offences in Bank) Karachi, and has been convicted under section 408, P.P.C. and sentenced to suffer R.I. for one year, and to pay a fine of Rs.2 lacs in default of payment to suffer further R.I. for one year vide judgment dated 13-10-1987. The brief facts of the prosecution case are that on 2-1-1982 Vice-President, United Bank Limited, Sukkur sent a complaint to the Director F.I.A, Commercial Banks Circle, Karachi which reads as under:- "We have to inform you as follows:- That on 19-4-1979 the cash amounting to Rs.2,50,000 was sent by U.B.L. Tower Road Jacobabad Branch to U.B.L. Sarafa Bazar Jacobabbad Branch through Mr. Abdul Qayoom Shaikh the then Godown-Keeper posted at U.B.L. Tower Road Jacobabbad Branch. The said Abdul Qayoom Shaikh is reported to have delivered the said amount of Rs.2,50,000 to Mr. Aijaz Ahmed Pathan son of Sikandar Baig, Cashier and Cash Incharge of Sarafa Bazar Jacobabad Branch. After proper counting, the said amount was received by Mr. Aijaz Ahmed, Cashier. The IBCA (Inter Branch Credit Advice) was prepared by Mr. Aslam Bugti, Assistant Clerk of the Sarafa Bazar Jacobabbad Branch, which was signed by Mr. Tofiq Ahmed Shaikh son of Qutubuddin Shaikh, the then Second Officer and at present posted as Manager U.B.L. Lakhi Gate Shikarpur Branch. Mr. Inayatullah Narejo son of Mohammad Ibrahim Narejo was Manager of the Branch of Sarafa Bazar, Jacobabbad, at the time when the aforesaid fraud was committed. The entire cash was fraudulently misappropriated by Mr. Aijaz Ahmed Cashier in collusion with other staff members of the U.B.L. Sarafa Bazar, Jacobabbad, Branch and amount was not accounted for in the Sarafa Bazar Jacobabbad Branch. That this fraud was discovered for the first time by the Reconciliation Department Head Officer Karachi on 22-12-1981. The auditors were assigned the job for necessary investigation and report. During course of the auditing another fraud of Rs.2,00,000 (Rs. two lacs only) also came to be discovered which is mentioned as follows:-- On 31st January, 1981 the cash amounting to Rs.2,00,000 (Rs. two lacs only) was sent through M/s. Hub Ali Dayo son of Mohammad Bux Dayo and Mr. Mushtaq Ali Sarki (Cashiers of UBL Sarafa Bazar Jacobabad) from UBL Tower Road Jacobabad Branch to UBL Sarafa Bazar Jacobabad Branch which was handed over and delivered to the Cashier Mr. Aijaz Ahmed Pathan sop Sikandar. Baig Pathan of U.B.L. Sarafa Bazar Jacobabad. The IBCA (Inter Branch Credit Advice) was prepared by Mr. Mohammad Aslam Bugti son of Sukhia Khan Bugti, Assistant Clerk, which was signed by Mr. Arz Mohomed Thahim Sop Kadirdad Khan Thahim and Mr. Ashfaq Ahmed Moryani son of Anwar Ali Moryani, Officers of U.B.L. Sarafa Bazar Jacobabad Branch. The said cash of Rs.2,00,000 was fraudulently and illegally misappropriated by the said Cashier Mr. Aijaz Ahmed Pathan son of Sikandar Baig Pathan in collusion with other officials of the U.B.L. Sarafa Bazar Jacobabad Branch. The Manager of the Branch was Mr. Inayatullah Narejo son of Mohammed Ibrahim Narejo. The other fraud of Rs.3 lacs has been committed by Mr. Inayatullah Narejo, Manager, U.B.L. Sarafa Bazar Branch, Jacobabad. The facts of the fraud are that on 8-6-1981 a sum of Rs. 3,00,000 lacs was remitted by our Frere Road Branch Sukkur by telegraphic transfer through National Bank of Pakistan, Jacobabad, for placing credit to the account of U.B.L. Sarafa Bazar Branch Jacobabad. The aforesaid amount of Rs,3 lacs was fraudulently misappropriated by Mr. Inayatullah Narejo and the same was not placed to the credit of the account of Sarafa Bazar Branch, Jacobabad at NBP, Jacobabad. Mr. Narejo admitted the above misappropriation and arranged deposit of sum of Rs.3 lacs on 30-12-1981. The ?'audit team of the bank is conducting thorough probe into the affairs of the branch and on completion of the audit-report, further information will be laid before law enforcing authorities accordingly, It is apprehended that the responsible officers personnel fraudulently involved will abscond disappear if they are not arrested or taken into custody immediately. We therefore have to lodge this report against the aforesaid officials for their immediate arrest and to proceed against them according to law. On receipt of above complaint enquiry was held and ultimately the F.I.R. was recorded on 6-3-1982 at 11,00 a.m. by Mr. Bashir Ahmed Bhutto Inspector, Commercial Banks Circle. F.I.A. and the complaint was produced as Ex.2/A-B. The photo copy of the same has been produced as Ex.10/A. The F.I.R. has been produced as Ex.10/B. On 13-3-1982 Inspector Bashir Ahmed recorded statement of complainant. On 14-3-1982 he seized the documents produced by complainant Munawar Ali Arbab and prepared such Mashirnama which has been produced as Ex.10/C. On 15-3-1982 further documents were produced before him by complainant Munawar Ali Arbab which he secured under Mashirnama which has been produced as Ex.10/ C-1. 'On 16-3-1982 he recorded statements of Shahabuddin and Akhtar Ali Mahar. On 17-3-1982 he arrested the accused and .prepared such Mashirnama, which has been produced as Ex.10/D. On 18-3-1982 he recorded statement of Abdul Karim Baloch. On 19-3-1982 he recorded statements of Arz Mohomed Thahim and Nisar A. Soomro. On 20-3-1982 he got 164, Cr. P. C . statements of prosecution witnesses A . Ghafoor and Shahabuddin recorded by a Magistrate. On 22-3-1982 he recorded statement of Muhammad Aslam. On 23-3-1982 he recorded statements of prosecution witnesses Ghazanfar, Darwesh Mohammad, Faqir Bukhsh and Mohen Lal. On 25-3-1982 he recorded statement of Abdul Qayoom. On 26-3-1982 he recorded further statements of Mohomed Aslam and Amanullah Dahri. On 27-3-1982 he recorded statement of Taufiq Ahmed. On 29-3-1982 he recorded statement of Abdul Ghafoor Soomro and got 164, Cr.P.C. statements of Darwesh Mohomed and Mohd. Aslam Bugti recorded. On 15-6-1982 he recorded statement of Inayatullah Narejo,, On 16-6-1982 he got 164, Cr. P.C. statement of PW Abdul Qayoom recorded. On 20-6-1982 he recorded statement of Ashfaq Ahmed Moryani. On 29-3-1982 he served a notice on Aijaz Ahmed Pathan not to mortgage or dispose of his house, copy of the notice has been produced as Ex.10/E. Thereafter, he was transferred. After necessary investigation the appellant and co-accused Aijaz Ahmed were challaned. A formal charge was framed against the accused to which they pleaded not guilty. At the trial prosecution examined Munawar Ali Arbab, Zonal Head, UBL Sukkur Zone-PW

1. He has produced debit cash voucher as Ex.2/A-1 and IBCA as Ex.2/A-2. He has also produced the entries dated 31-1-1981 from the receiving Cashier's book of Sarafa Bazar Branch as Ex.2/A-3, the copy of complainant as Ex.2/A-4 and the original report regarding three defaulcations as Ex.2/ A-5. Nisar Ahmed who was Manager of the Tower Branch UBL, Jacobabad, at the relevant time PW.2, Shahabuddin IInd Officer, Tower Branch UBL Jacobabad PW 3, Abdul Ghafoor, who happened to be Cashier of the Tower Branch UBL Jacobabad in the year 1981- PW 4, Mohomed Aslam was working as clerk in Sarafa Bazar Branch UBL Jacobabad in the year 1981, Ashfaq Ali Moryani a IInd Officer, Sarafa Bazar Branch UBL Jacobabad in the year 1981-PW 6, Arz Mohammad who was working as IIIrd Officer in the Sarafa Bazar Branch of UBL at Jacobabad in the year 1981-PW 7, Inayatullah Narejo, who happened to be Manager at Sarafa Bazar Branch of UBL Jacobabad in the year 1981 and Bashir Ahmed Bhutto, Investigation Officer-PW

9. Nizamuddin Shaikh and Mohanlal were examined by the Court as Court witnesses No.1 and 2 respectively. After close of the prosecution case the statements of the accused were recorded under section 342, Cr.P.C. in which they denied the allegations. However, they did not examine any witness in their defence. The learned Presiding Officer while relying upon the above evidence convicted the present appellant, while the co-accused was acquitted. The present appeal is directed against the above judgment of conviction. We have heard Mr. Usman Ghani Rashid Advocate for the appellant, Mr. Azhar Ali Sidiqui, Advocate for the State, and have also gone through the R & P of the case. It was contended by Mr. Usman Ghani Rashid that although there was evidence that the amount of Rs.2 lacs was entrusted to the present appellant and PW Mohomed Aslam, but there, was no evidence that the above amount was misappropriated by the appellant. He has further contended that on the contrary there were admissions of the prosecution witnesses, and the documentary evidence which show that the amount of Rs.2 lacs was paid by appellant Hub Ali to co-accused Aijaz, and the learned Presiding Judge had committed an error by convicting the appellant. Mr. Azhar Ali Sidiqui learned counsel for the State has contended that the appellant had dishonestly denied the entrustment receipt of money and had taken a false defence. However, in view of the fact the co-accused Aijaz Ahmad was acquitted, and there were admissions from the prosecution witnesses that the appellant had paid the amount of Rs.2 lacs to Aijaz Ahmed, he frankly contended that he will not support the conviction of the appellant. We have considered the contentions of the learned counsel. As far as the entrustment of Rs.2 lacs was concerned it was proved through Mohomed Aslam PW-5 who was a clerk working in the Sarafa Bazar Branch UBL Jacobabad, Nisar Ahmed PW 2, Manager Tower Branch U B L, Jacobabad, Shahabuddin Second Officer Tower Branch UBL, Jacobabad, PW-3, Abdul Ghafoor Cashier, Tower Branch UBL, Jacobabad, PW-4, he has also produced debit cash voucher A Ex.2/A-1, and according to him this voucher was signed on its reverse by appellants Hub Ali. Even evidence of Ashfaq Ali Morghni who was working as Second Officer at the Sarafa Bazar Branch of UBL, Jacobabad in 1981 where the appellant was working as Cashier, Arz Mohomed Thahim who was working as IIIrd Officer in Sarafa Barafa Branch of UBL Jacobabad, Inayatullah Narejo the then Manager of Sarafa Bazar branch of UBL, Jacobabad. It was the prosecution case that Mr. Inayatullah Narejo Manager Sarafa Bazar Branch, Jacobabad was told by Aijaz Ali Cashier and Ashfaq Ali Moryani that there was need of more cash in the Branch, and therefore he directed Ashfaq Ali Moryani to send for the cash from the Tower Road Branch. On this Ashfaq Ali Moryani sent Aslam Bugti Clerk of the Tower Road branch for bringing the cash. After some time Aslam Bugti returned and told them that he was not paid money by the Tower Road Branch as he was only a clerk. Ashfaq Ali Moryani then deputed accused Hub Ali who was Cashier, who went with Aslam Bugti to bring cash from Tower Road Branch. Thereafter Hube Ali went alongwith Aslam Bugti and brought Rs.2 lac from the Tower Road Branch, Jacobabad. So far this aspect of the case is concerned it has been proved from the above witnesses and their evidence appears to be natural, straightforward, and has not been shaken in cross-examination. It is supported by cash debit voucher Ex.2/A-1 which bears the signatures of the appellant on its back. Even it was not challenged by Mr. Usman Ghani Rashid learned counsel for the appellant. Now coming to the next important question whether the appellant had failed to deposit the above amount with the Cashier and whether he had committed breach of trust. The evidence of Mohomed Aslam' who was working as clerk in Sarafa Bazar Branch of UBL at the relevant time shows that after taking delivery of cash accused Hube Ali went back to the Sarafa Bazar Branch along with him. On reaching the Bank accused Hube Ali went to the Cash Counter, while (witness) went to his department. After his return to the Branch the Head Cashier asked him (witness) to prepare the IBCA (Inter Branch Credit Advice) for the amount of Rs.2 lacs which had been brought from the Tower Branch. He prepared the IBCA in triplicate, Ex 2/A-2 was the original copy of the IBCA. After preparing the IBCA he handed it over to co-accused Aijaz. The IBCA Ex.2/A-2 bears the signatures of two officers of their branch, namely Arz Mohomed Thahim and Ashfaq Ali Morgani with whose signatures he was fully conversant. He has further deposed that entries of 31-1-1981 in the receiving Cashier's Book of Sarafa Bazar Branch have been checked by the Manager Mr. Inayatullah the then Manager who had signed at the foot of those entries. He has further admitted that he was charge-sheeted in the case relating to defaulcation of an amount of Rs.2,50,000 but he was not charge sheeted in the present case. PW Ashfaq Moriani has also deposed that he had sent Aslam Bugti and accused Hub Ali to the Tower Branch for bringing Rs.2 lacs. Hub Ali and Aslam returned after some time. Hub Ali returned with cash Rs.2 lacs. He told him that he had brought the cash from the Tower Road Branch. He directed the clerk Aslam to prepare the IBCA for the amount which he prepared and handed over to the Head Cashier Aijaz Ali, and the IBCA was prepared in the triplicate. On the first copy of IBCA Head Cashier Aijaz Ali affixed the stamp of Branch "Received cash" and signed over the stamp. Head Cashier then gave the three copies of the IBCA to Mr. Arz Mohomed Thahim the Officer concerned. Mr. Arz Mohamed affixed his signature on the three copies and then gave him the same, and he also signed the above three copies. According to him, Ex. 2/A-2 was second copy of the IBCA which is sent to the remitting branch. In December, 1981 it was found that Rs.2 lacs received in their branch on 31-1-1981 were not accounted for in the books of the bank and have been misappropriated. It was also found that the two copies of I B C A of which Ex.2/A-2 was a copy were missing from the Bank. He has admitted' in cross-examination that IBCA is to be prepared after entry regarding receipt of money is made in the Cashier's receiving book. It was the duty of the Cash Department Officer Arz Mohomed to see that the entry has been made. He was not personally aware whether the cash brought by Hube Ali was paid to accused Aijaz Ali. He has further admitted that IBCA was prepared when cash was received. Arz Mohammed PW 7 has deposed that accused Hube Ali Cashier had brought cash in a bag from the Tower Road Branch. He delivered the cash to co-accused Aijaz Ali who was Head Cashier at their Branch at that time. He himself saw Hube Ali delivering the cash to accused Aijaz Ali. Accused Aijaz Ali was sitting just on the back of his chair in a cabin and he could see accused Hube Ali delivering the cash. Shortly thereafter IBCA for amount of Rs.2 lacs was sent to him by the Second Officer and he signed the same, as he had seen Hube Ali delivering the amount of cash to accused Aijaz Ali. He was satisfied about the delivery of cash to the Head Cashier and consequently he signed the voucher IBCA. Ex. 2/1-2 was the same. Cash was delivered by accused Hube Ali, accused Aijaz Ali kept the cash in the cash box. From the above admissions of P.Ws Mohomed Aslam, Ashfaq Ali, Morgani, Arz Mohammed Thahim, IBCA Ex.2/A-2 and the fact that every one including the Manager Mr. Narejo kept mum for three months till the fraud was detected, goes a long way to show that the amount of Rs.2 lacs received by the appellant was brought by him to the bank and was paid to the Cashier. The Cashier and the officer of the Bank would not have prepared and signed the IBC-A Ex.2/A-2 unless the amount was received in the Bank. Under these circumstances we are of the clear view that the case against the applicant with regard to breach of trust misappropriation was not proved beyond reasonable doubt. As regards the stand taken by the appellant in his 342 Cr.P.C. statement denying the receipt of money was concerned, he could not be convicted simply because he had taken a false stand nor any adverse presumption could be drawn against him. In Jumma v. The State (1968 P.Cr. L.J. 352) it was observed that:- "It is well-settled that if reasonable possibility of plea favourable to the accused could be spelt out from the circumstances of the case, the omission on the part of the accused person to raise the same or to take inconsistent position would not be fatal to his defence." In view of the admissions made by P.Ws. Mohommed Aslam Bugti, Arz Mohammed Thahim, Ashfaq Ali Morgani, IBCA Ex. 2/A-2, and the circumstance that the matter was not reported to the police for three months till it was detected by the Audit party goes a long way to show that it was doubtful whether the appellant had misappropriated the amount of Rs.2 lacs received by him from the Tower Road Branch. There was another aspect of the case which could not be lost sight of i.e. PW Mohomed Aslam has admitted in cross-examination that he was charge-sheeted for defalcation of Rs.2,50,

000. PW Ashfaq Ali Moryani has also admitted in cross-examination that he was prosecuted and was an accused in another case. This shows that there was a mess in the Sarafa Bazar Branch of U.B.L., Jacobabad, at the relevant time, and the misappropriation must have been committed by someone in collusion with the other staff, and the position of P,Ws Ashfaq Ali Moryani, Arz Mohammed and Inayatullah Narejo was not better than accomplices. However, in the present case the prosecution had failed to prove its case against the appellant beyond reasonable doubt, and therefore, while extending the benefit of doubt to the appellant, we allow this appeal, set aside his conviction and sentence, and he is acquitted. He shall be released forthwith if not required in any other case. We had allowed this appeal on 2-12-1987 by a short order and these are the reasons for the same. M.Y.H/H-79/K.?????????????????????????????????????????????????????????????????????????????????? Appeal allowed.