1987 P Cr (PLP)

2. The trial of the accused in this case had started in the Court of the Special Judge (Central) Lahore who framed charge against him on 28‑ 9‑ 1981 for offences under sections 409, 420 and 468, P.P.C. and section 5 of the Prevention of Corruption Act, 1947. The accused denied the charge and claimed to be tried. Later, however, on account of a provision made in the Offences in Respect of Banks (Special Courts) Ordinance, 1984. promulgated on 23‑2‑1984, providing for transfer of cases of scheduled offences pending in other Courts to this Court, this case was sent to this Court for trial of the said accused.

3. On perusal of the case file it appeared to me to be doubtful that the prosecution case would succeed and result in conviction of the accused. I accordingly gave notice to the Special Prosecutor to show cause why in exercise of my powers under section 249‑A/265‑K, Cr.P.C., the accused should not be acquitted.

4. I have heard the Special Prosecutor today on the above question and have also minutely perused the record.

5. It is apparent from the very allegations levelled in the F.I.R. and the challan that offences under sections 467 and 468, P.P.C. are not likely to be proved against the accused. If at all the accused made an inter‑branch debit advice and a debit cash voucher, it cannot be said that he committed the offence of forgery as the said act of the accused does not fall within any one of the three categories detailed in section 464, P.P.C. Clauses 2 and 3 of section 464, P.P.C. are not on the face of it applicable to the facts of the case and only clause First appears on the first sight to be applicable but the accused did not make these two documents with the intention of causing it to be believed that the said documents had been made by a person by whom he knew that those had not been made. On deeper consideration, therefore, it is clear that this clause is also not applicable. Accordingly, in my opinion, none of the two offences under sections 467 and 468, P.P.C. are likely to be made out against the accused even if the statements of all the P.Ws. cited in the calendar of witnesses in the challan are recorded.

6. According to the prosecution story, accused used the documents which he had prepared as he had on their basis withdrawn a sum of Rs.80C from the branch. The challan also describes offence under section

471. P.P.C. having also been committed in this case. Therefore, notwithstanding that at the time of framing of the charge against the accused by the Special Judge (Central) the head of the charge for the said offence under section 471, P.P.C. was omitted, the question whether there is likelihood of it being established in this case that the accused had committed the said offence under section 471, P.P.C. has also got to be considered. I have according given my thought to that question too. It has, however, appeared to me that since the offence of forgery, either under section 467 or under section 468, P.P.C. is not likely to be proved against the accused there is no question of the offence of use of a forged document knowing it to be forged being proved against him. The accused is, therefore, not likely to be convicted of offence under section 471, P.P.C. also.

7. On facts of this case, it cannot be said that the accused played deception upon anyone and induced him to pay to him (the accused) the said sum of Rs.

800. He (the accused) himself got the said sum from the bank as Eid advance. Therefore, there is no likelihood of the accused being convicted and sentenced for offence under section 420, P.P.C. also in this case.

8. Now comes the allegation pertaining to the commission of offence of criminal breach of trust punishable under section

409. P.P.C. and of offence of misconduct punishable under section 5 of the Prevention of Corruption Act, 1947. As already stated the said allegation is to the effect that the accused had by means of I.B.C.A. No. 9863950, dated 20‑9‑1977 and a debit cash voucher of the said date, withdrawn a sum of Rs. 800 from the branch as Eid advance to which he was not entitled.

9. Criminal breach of trust is defined in section 405, P.P.C. The portion of said section which can be said to be applicable to the facts of the present case runs as below:‑‑ "S. 405, P.P.C.‑‑ Whoever being in any manner entrusted with property or with any dominion over property dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract express or implied which he has made touching the discharge of said trust commits criminal breach of trust."

10. Taking of the said sum of money by the accused Manager as Eid advance was not misappropriation as it was meant to be paid back by deductions from his future salary for the next month or so. It is true that dishonest misappropriation for a time only is also criminal misappropriation but that appears to me to be so when the intention ab initio is to misappropriate. In the present case it cannot be said that the accused had intention at any time to misappropriate the sum taken as Eid advance. The act of the accused in obtaining this advance does not, therefore, fall within the scope of earlier portion of section 405, P.P.C. quoted above.

11. As for the next portion of section 405, P.P.C. as reproduced above, in order to bring the case against the accused within its ambit, it was incumbent for the prosecution to prove that the accused used that property in violation of any direction of law prescribing the mode in which such trust was to be discharged. I have perused the report under section 173, Cr.P.C. in this case. From that it does not appear to me to be the case of the prosecution that in withdrawing the said sum from the branch the accused violated any direction given in a provision of law. It is not stated in the challan that the said act of the accused was in violation of any instruction of the bank and no instruction prescribing the mode in which such trust of funds of the bank was to be discharged by the Manager and prohibiting the Manager from obtaining Eid advance has been filed alongwith the challan. But assuming such an instruction of the Head Office of the bank is in existence, it cannot be said that it constitutes law and, therefore, its violation must be visited with penal consequences provided in section 409, P.P.C. It was laid down in F.B. Ali v. The State P L D 1975 S C 506 that the word 'law' as used in Article 4 of 1973 Constitution (which lays down that every citizen must be dealt with in accordance with law and no action detrimental to his liberty shall be taken except in accordance with law), is positive law, that is to say, the formal pronouncement of the will of the competent law‑giver or in other words statute law. The said interpretation of the word 'law' in a constitutional provision appears to me to be directly applicable to dispensation of justice by Courts of criminal jurisdiction under criminal law. Taking the said interpretation to its logical end, I am of the view that no person can be convicted of an offence of criminal breach of trust unless the violation by him is of a direction of any statutory provision of law. Any instruction prohibiting a Manager from drawing any money from the bank as Eid advance is clearly not 'law' in that sense. It is not even a provision of banking law which seen in the context of said interpretation must consist of section of a statute only. We have now to see whether any such instruction is a banking practice and does it constitute 'law'. In Federation of Pakistan v. United Sugar Mills Ltd. P L D 1977 S C 397 usages having the force of law were held to be incapable of being equated with statute law. It is true that it was also observed in that case that 'proper law of contract', 'law merchant' and 'practice of the Court' which are essentially in the nature of usages and practices observed in the relevant fields were well‑recognized by Courts of law but prohibition to get Eid advance would not be considered to have acquired the force of law because as already held by me in Azhar Iqbal v. The State 1986 P Cr. L J 677, a banking practice must have some nexus with the business of banking itself which is defined in section 5 of the Banking Companies Ordinance, 1962, to mean accepting for the purpose of lending or investment. of deposits of money from public repayable on demand or otherwise or withdraw able by cheque, draft or otherwise. Any instruction prohibiting withdrawal by a Bank Manager of any sum from the bank as Eid advance would not deal with banking as defined there but with a matter concerning advances to the employees of the bank, and would not constitute banking practice and would not have the force of law. 1n my opinion, any such instructions would at best be an administrative, instructions violation of which can be dealt with in departmental proceedings only and would not be a direction of law, violation of which would incur the penalty under section 409, P.P.C.

12. The scrutiny of the above act of the accused in the light of last clause of section 405, P.P.C. as reproduced in para. 9 above still remains to be made. It has now to be seen whether when the accused was Manager and was entrusted with the funds of or dominion over funds of the bank, in doing the above act he can be said to have disposed of funds of the bank in violation of any legal contract, express or implied, which he had made touching the discharge of the said trust and whether there is likelihood of his being convicted on that ground if the entire evidence is taken in this case. Now, it cannot be doubted that when the accused got into the service of the bank, he entered into a legal contract with the bank to the effect that in executing his duties as an employee of the bank, he would act in accordance with rules, regulations of the bank and the instructions issued by the Head Office of the bank. The question, therefore, is whether there is any rule, regulation or instructions of the bank as regards taking of Eid advance which had been contravened by the accused. None has been placed on the record of the case. If taking of Eid advance was prohibited by the bank or the accused as Manager was otherwise not entitled to get the said advance, the police who challaned the accused should have filed alongwith the challan the rules, regulations or the instructions by virtue of which taking of Eid advance was prohibited or the accused as Manager was not entitled to get the said advance. This has not been done. 1t is clear that in the matter of instructions etc. there is nothing verbal and the instructions or orders are always in writing so as to bind the employees. It is well‑established that oral evidence in respect of prohibition or lack of entitlement is not sufficient and cannot prove the same when best evidence in the form of written instruction of the Head Office of the Bank can be made available. I may however, add that even number, date or heading of any such instruction etc. has not been specified by the investigating agency in its report under section 173, Cr.P.C. In these circumstances, it would be well high impossible for the prosecution to prove that taking of Eid advance by an employee of the bank was prohibited or that the accused was otherwise not entitled to get the said advance. When prohibition or lack of entitlement is not likely to be proved, there is little likelihood of the contravention of the same and of violation of legal contract express or implied touching the discharge of trust in the accused of funds of the bank being established. For that reason, there is no probability of the accused being convicted of the offence under section 409, P.P.C. under the said last clause of section 406,1 P.P.C. as reproduced in para. 9 above, too.

13. I may add that assuming that any instruction of the bank prohibiting a Bank Manager from getting Eid advance is in existence, the violation of such an instruction does not appear in the present case to constitute either an offence under section 409, P.P.C. or offence of criminal misconduct under section 5 of the Prevention of Corruption Act, 1947, inasmuch as on the facts and circumstances, of this case, criminal intention appears to be absent in the act of the accused in getting the Eid' advance of a petty amount which he did. In support of my view that in such circumstances, the accused cannot be held guilty I am tempted to quote the following observations made in Mujib‑ur‑Rehman v. The State P L D 1964 Dacca 330 at page 358: "The language of clause (d) in subsection (1) of section 5 of the Prevention of Corruption Act suggests that the Legislature never intended directly or indirectly or by any implication to dispense with the element of mens rea or criminal intention in regard to an offence of criminal misconduct. In our opinion ordinarily a criminal intention is the sine qua non of a criminal liability and this is also an essential element to constitute an offence within the meaning of section 5(I) of the Prevention of Corruption Act, 1947:" Again in Amin‑ul‑Islam v. The State 1970 D L C 939 it was observed as below:‑‑ "The trial Court has also come to the conclusion that the appellant spent the money in violation of the direction of law prescribing the mode in which such money was to be disposed of. The law relating to disposal of Work Programme Fund, according to the said Court was laid down in Circular No. 44 issued by the Secretary of the Basic Democracy and Local Government Department. The circular contains certain instructions and provides for, among others, incurring of expenditures on the employment of staff, their pay or allowances as T.A. and contingency .......If the appellant spent some money out of Works Programme Fund in contravention of instructions, contained in Circular No. 44 but without any criminal intention, he cannot be said to have committed either the offence of criminal misconduct under clause (d) of section 5 of the Prevention of Corruption Act, 1947, or the offence of criminal breach of trust. Mere contravention of instructions or rules in the absence of mens rea does not render a person criminally liable. Such contravention may provide basis for disciplinary action by the authorities:" Taking of Eid advance from a Government Department is generally believed to be a privilege normally available to a Government servant. Same is the case with employees of the banks which are now owned by the Government. If, therefore, the accused had, while acting on the said general impression drawn Eid advance of a small sum of Rs. 800 which was liable to be returned by him to the bank through deductions from his future monthly salaries, it cannot be said that he was actuated by any criminal intention to procure wrongful gain to himself and cause wrongful loss to the bank. Therefore, the mere fact that accused Faiz‑ur- Rehman Faizi took the said sum from the cash of the bank by way of Eid advance would not by‑itself bring the said act of the accused within the mischief of section 409, P.P.C. or section 5 of the Prevention of Corruption Act, 1947.

14. In these circumstances, even if all the P.Ws. cited in the calendar of the witnesses in this case are examined and believed, there is no likelihood of the accused being convicted in this case for offences under section 409, P.P.C. and section 5 of the Prevention of Corruption Act, 1947.

15. In my opinion, therefore, holding trial of the accused and examining the P.Ws. cited in the calendar of witnesses of this case would be an exercise in futility and no useful purpose would be served thereby. Accordingly, in exercise of my powers under section 249‑A/265‑K, Cr.P.C. I acquite accused Faiz‑ur‑Rehman Faizi of all the scheduled offences, namely, offences under sections 467, 468, 471, 460 and 409, P.P.C. and section 5 of the Prevention of Corruption Act, 1947. He is on bail. His bail bonds stand discharged. S.A./5/L Accused acquitted.