1988 P Cr (PLP)

AJMAL MIAN, J.--This criminal appeal is directed against the judgment, dated 16th September, 1987, passed by the learned Presiding Officer, Special Court (Offences in Banks) Karachi, (hereinafter referred to as the trial Court) in Case No. 6 of 1985 convicting the present appellant under section 408, P.P.C. and awarding him a sentence of 3 months' R.I. and a fine of Rs.43,000 in default of payment whereof the appellant is to go further R.I. of 12 months. The appellant being aggrieved by the above judgment has filed the present appeal.

2. The brief facts leading to the filing of the above appeal are that the appellant was working as an Assistant at the Kandyaro Branch of United Bank Ltd. (hereinafter referred to as the bank Branch) during the period commencing from 1980 to 1985. It appears that on 20-1-1985 P.W.1 Bashir Ahmad, the Manager of the bank branch, lodged a complaint with F.I.A. alleging therein mis appropriation of the amounts mentioned therein by the appellant. The case was investigated by P.W.8 Hussain Ali Balouch. The challan was submitted before the learned trial Court in pursuance whereof the appellant was charged with under sections 468, 477-A and 408, P.P.C. In support of the case the prosecution examined above P.W.1, Bashir Ahmed, the Manager of the bank branch, P.W.2 Manzoor Ali, an account-holder, who had given a sum of Rs.3,500 to the appellant for depositing the same in the bank but the same was misappropriated by the appellant, P.W.3 Basant Lal, another account-holder, who had entrusted a sum of Rs.3,500 to the appellant for above purpose for depositing in the bank but the same was also misappropriated, P.W.4, Nazir Mohammad, a second officer in the bank branch before whom the appellant had allegedly made extra-judicial confession, P. W.5. Nabi Bux, another account-holder, who had entrusted a sum of Rs.4,250 to the appellant for depositing the same in his account which was also misappropriated, P.W.6, Taj Mohammad, another account-holder, who had given a sum of Rs.5,000 to the appellant which was also allegedly misappropriated by the appellant, P.W.7, Mohammad Hussain, who had advanced a loan of Rs.2,000 to the appellant through a cheque drawn on the bank branch which was allegedly converted by the appellant into a sum of Rs.12,000 and the above sum was withdrawn by the appellant against the above cheque. The learned trial Court on the basis of the above ocular evidence and also documentary evidence produced by the prosecution has convicted the appellant in the above terms.

3. As regards the merits of the case, in our view there is sufficient ocular and documentary evidence to sustain the conviction against the appellant. However, on the question of fine Mr. Abdul Mujeeb Pirzada, learned counsel for the appellant, has urged that in the present case the bank has not suffered any loss as the alleged misappropriated amount was deposited by the appellant with the bank and, therefore, no fine should have been imposed on the ;appellant in terms of subsection (3) of section 6 of the Ordinance. In furtherance of his submission he has referred to the case of Momin Shah v. The State reported in 1987 M L D 1500 in which a Division Bench of this Court while dilating upon the above aspect has observed as follows:- .... Therefore, the conviction was proper but in the circumstances of the case we consider that the sentence of fine was not passed in proportion of the gravity of the offence, section 6(3) of the Offences .in Respect of Banks (Special Courts) Ordinance, 1934 (Ordinance No. IX of 1984) provides that where a Special Court passes a sentence of fine, whether in addition to any other punishment or not, the amount of such fine shall be fixed by it having regard to the gravity of the offence for which the accused person is convicted and, where the Special Court finds the offence-to have been committed in respect of a specified amount, shall not be less than twice the said amount. Section 6(4) further provides that where a Special Court passes a sentence of fine, the Court shall order the whole or any part of the fine recovered to be applied in the payment to the bank in respect of which the offence was committed as compensation for the loss caused to it by the offence. The two provisions are to be read jointly and the actual loss is the primary consideration for imposing a sentence of fine. Temporary embezzlement or breach of trust may be considered for conviction but for imposing a sentence of fine that amount cannot be considered for imposing sentence of fine. The criterion would be the actual amount to be paid to the bank as compensation for the loss caused to it by an accused person. As such the amount which had already been deposited in bank cannot be considered for imposing a sentence of fine, as required under section 6(4) of the Ordinance. In the instant case Rs.62,000 has not been deposited by the appellant. This amount was the actual loss caused to the bank. Therefore, we hold that amount of fine should have been imposed in respect of this amount. Consequently, while reducing the substantive sentence to one already undergone, the fine is reduced to Rs.1,25,000 in default of payment of fine the appellant would suffer R.I. for six months more. The fine if recover Rs.62,000 be paid to the bank for the actual loss sustained by it as directed by the Court."

4. In our view, it will be pertinent to reproduce subsections (3) and (4) of section 6 of the Ordinance which read as follows:- "(3) Where a Special Court passes a sentence of fine, whether in addition to any other punishment or not, the amount of such fins shall be fixed by it having regard to the gravity of the offence for which the accused person is convicted and, where the Special Court finds the offence to have been committed in respect of a specified amount, shall not be less than twice the said amount. (4) Where a Special Court passes a sentence of fine, the Court shall order the whole or any part of the fine recovered to be applied in the payment to the bank in respect of which the offence was committed of compensation for the loss caused to it by the offence."

5. A plain reading of the above quoted subsection (3) indicates that while passing a sentence of fine the Special Court is to take into consideration the gravity of the offence for which the accused person is convicted and where the Special Court finds the offence to have been committed in respect of a specified amount, it will have to impose the fine not less than twice the said amount, whereas under above-quoted subsection (4) the Special Court has been empowered to order the payment of part of the fine to the bank in order to compensate for the loss caused to it by the commission of the offence. We are unable to read into the above subsection that in case an accused deposits the amount for which he is charged with and is convicted on proof, no fine is to be imposed. The words used in subsection (3) are 'the offence to have been committed in respect of a specified amount', it is the commission of the offence with reference to the amount which is to be considered and not the factum, whether the accused has made good the amount which he misappropriated. In view of the above clear language employed in the abovequoted subsection (3) of section 6, we are unable to accept the above contention. The judgment relied upon by Mr. Abdul Mujeeb Pirzada,, learned counsel for the appellant, does not lay down a broad proposition of law that in case where an accused deposits the amount which he had misappropriated no fine can be imposed. However, we are of the view that the period of sentence in default of payment of fine, namely, 12 months, appears to be very harsh and, therefore, we would substitute the same by a period of four months.

6. With the above modification the appeal is dismissed. M.Y.H./A-276/ K Order accordingly.