1990 P Cr (PLP)

IMAM ALI G. KAZI, J.‑‑‑ This is an appeal from the judgment dated 5th November, 1988, .passed by Special Court (Offences in Banks) Karachi, whereby appellant Abdul Jabbar has been convicted under section 408, Pakistan Penal Code and sentenced to suffer rigorous imprisonment for a period of one year and also to pay a fine of Rs.5,00,000 and in default in payment thereof undergo rigorous imprisonment for a further period of one year.

2. In January, 1988 the appellant was working as the Head Cashier in Warah Branch of the National Bank of Pakistan. One Kanyalal, the co‑accused in the case, was posted as the Manager of that Branch. According to the case of the prosecution both the said officers entered the strong room of the flank on 3‑1‑1988 as usual. They were the only officers who were entrusted with the keys of the 'strong room. After sometime Manager Kanyalal came out of the strong room and declared that cash amount of Rs.2,40,000 was short. Appellant Abdul Jabbar followed him after some time and confirmed the shortage. Both of them then went to Zonal Office at Larkana and reported the shortage in cash to Abdul Ghafoor Memon the Zonal Chief at Larkana, who appointed Haq Nawaz Mehar an Officer of Grade‑1 serving in that office as the enquiry officer. During the course of the enquiry both the accused persons deposited an amount of Rs.1,20,000 each on 7‑1‑1988 making good the entire loss. After completion of such enquiry a written complaint was sent to the Deputy Director, Commercial Banks Cell, F.IA., Karachi. Ultimately, First Information Report was recorded on 6‑3‑1988 case investigated and both the accused were sent up for trial. Kanyalal the Manager of the Bank was acquitted by the trial Court while the appellant was sentenced as stated above.

3. The prosecution during the trial produced a number of witnesses and official documents to prove that the appellant and his Manager Kanyalal were exclusively incharge of the: strong room where all cash was being kept. The strong room could only be opened by joint operation of both of them as it required two keys to open the room and each one of them had a key. Before entering the strong room on 3‑1‑1988 the door, lock and seal were all intact as no report of tampering was made. The steel almirah kept in the strong room for keeping,, cash could only be operated by the appellant, who alone had the keys of almirah. He had also reimbursed and credited an amount of Rs.1,20,000 on 7‑1‑1988. In addition to such prosecution evidence the appellant in his statement recorded under section 342, Criminal Procedure Code stated that on 2‑1‑1988 he had deposited the correct amount of cash and the keys of the aimirah maintained with him till next day when he reported the short cash. On the basis of such evidence the trial Judge came to the conclusion that it was the appellant alone who was in exclusive custody of the cash and was solely responsible for the shortage in the cash. Judgment of conviction was, therefore, recorded against the appellant while his co‑accused was acquitted.

4. The only point that has been pressed in support of this appeal by Dr. Hamid Ahmed Ayaz, Advocate for the appellant is that the prosecution have failed to prove that the amount in question was in fact misappropriated by the appellant. According to him, it is a case of shortage only. 1n support of his such contention, he has relied on cases reported in 1985 P Cr. L J 596, P L D 1956 SC 417 and A I R 1939 Mad. 407.

5. We have gone through the evidence recorded by the trial Court and find that prosecution has successfully proved that it was the appellant ho alone could / operate the lock of the almirah where the cash was kept, the appellant alone was, therefore, entrusted with the amount in question. Evidence further reveals that the strong room and Almirah did not have any signs of tampering and locks were functioning normally. Under such circumstances, it will be for the appellant to explain as to how the shortage occurred in the cash. The appellant either by way of cross‑examination or through his statement recorded under section 342, criminal Procedure Code has not been able to explain the same. Not only that the appellant failed to explain the shortage of cash but also he took upon himself to voluntarily make good 50% of the short cash and actually credited that much amount. This fact goes to corroborate the prosecution evidence that the amount was misappropriated by him.

6. We had by our short order passed on 3‑5‑1989 dismissed the appeal, while above are the reasons for the same. SA./A‑712/K Appeal dismissed.