1983 P Cr (PLP)

4. On 1‑8‑1974, this Court moved the Government of Pakistan for sanction to prosecute the appellant. Letter of the Court was acknowledged by the Government of Pakistan, under the Ministry of Interior letter dated 9‑8‑1974. Requisite sanction was neither granted nor refused and on 9‑10‑1974, trial Court took the sanction to have been granted.

9. Substances of accusation Exhs. 4, 5 and 6 containing prosecution allegations were read over and explained to the appellant and co‑accused who pleaded not guilty.

10. Prosecution examined complainant Abdul Ghaffar Khan Exh. 7 and P. Ws. Akhtar Hussain, Exh. 21, Zarifuddin Exh. 22, Khushnud Hussain Exb.23., Abid Ali Exh. 24, Ziauddin Exh. 25, Ashir Ahmed Exh. 26, Muhammad Maqsood Exh. 27 and Muhammad Zamir Khan Exh. 30.

11. In this statement Exh. 31 appellant Mukhtiar Ahmed admitted that during the period between June, 1967 to October, 1.969, he was manager National Bank of Pakistan, Drigh Colony Branch, Karachi. He denied, prosecution allegation about having criminally misappropriated Rs. 1,360 Rs. 500 and Rs. 550 being proceeds of cheques Exhs. 8 and 12 and Pay Order No. 585679 respectively He added that originally pay order was not produced in Court. Appellant Mukhtar Ahmed admitted, that the cheque Exh. 12 was presented in his branch for collection and that the amount of said cheque was collected from his branch. He admitted that on 27‑12‑1967, Current Account No. 49 of Hussain Corporation with his branch was debited with Rs. 1.360 being the amount of cheque Exh. 8 and that on the same date corresponding credit entry of similar amount was made in his personal account. He however explained, that such wrong entry was erroneously made and that subsequently, the general account of N. B. P. was given credit of said amount: The appellant admitted his signatures on the credit vouchers Exhs. 9, 13 and

17. Appellant Mukhtiar added that the amount of voucher Exhs. 13 Rs. 500 was credited in his personal account, but subsequently there was reverse entry of the same amount and hence there was no outstanding entry in the general account. Appellant denied that he withdrew and utilised the amount of Rs. 550 credited to his account under voucher Exh. 17 and reiterated that subsequently adjustment entries were passed. He denied having falsified the account of the bank. Appellant Mukhtiar Ahmed pleaded being innocent and claimed that no witness had deposed against him, except the complainant, who had a motive to be manager of Drigh Colony Branch of N. B. P.

12. In their statements Exhs. 32 and 33 co‑accused Shabbir Alam and Muhammad Shamim Arif admitted, that they were Junior Clerks in the Drigh Colony Branch N. B. P. Accused Shabbir Alam admitted his posting in said branch during December, 1967 to November, 1968 co‑accused Shamim Arif added, that he joined in said branch in August, 1968 and continued to work there till 1969. These co‑accused denied the prosecution allegations. A co‑accused Shabbir Exh. 32 stated, that he did not remember if on 27‑12‑1967 he made debit entry of Rs. 1,360 in Current Account No. 49 and credit entry in same amount in Current Account No.

208. Similarly he could not recollect on 16‑3‑1968 he made credit entry of Rs. 520 in current account No.

298. Instead of making such entry in general account of the National Bank of Pakistan, co‑accused Shabbir Alam and Shamim Arif added, that they were junior clerks in said branch and performed their duties in the ordinary course of business and in the way such duties are to be performed by the Clerks.

13. None of the appellant and co‑accused wished to enter in the witness box as his own witnesses and none of them led any evidence in defence. Appellant Mukhtar Ahmed, however, produced two copies of depositions. Exh. 34 of complainant Abdul Ghaffar Khan recorded in case No. 55 of 1974.

14. The learned trial Court taking into consideration the evidence adduced before it, while acquitting co‑accused persons convicted the appellant as hereinbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo. of appeal.

15. The learned Advocate for the appellant at the outset submitted, that he was not pressing the above appeal on merits, but only as far as sentence awarded to the appellant is concerned as Bank suffered no loss at all. In support of this contention, the learned Advocate for the appellant relied upon case reported in 1983 S C M R 36.

16. The learned Advocate for the State, on the other hand submitted, that he was supporting the impugned judgment on merits as well as in respect of the sentence awarded to the appellant, on the basis of cases reported in P L D 1971 S C 541 Nuran v. Nura (P L D 1975 S C 174) and Mokha v. Zulfiqar (P L D1978 S C 10).

17. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the record and proceedings of the learned trial Court as well as impugned judgment and cases cited by the learned Advocates before me.

18. I find that the prosecution by the statements of the prosecution witnesses examined before the learned trial Court has established its case beyond reasonable doubt against the appellant and this fact was rightly conceded by the learned Advocate for the appellant. In view of this I find no merits in the above appeal, as far as conviction. of the appellant is concerned.

19. However, the only question which requires consideration is, whether appellant after the lapse of nearly 5 years be sent back to custody to serve out the remaining sentence awarded to him. In this connection the learned Advocate for the appellant has relied upon case reported in 1983 S C M R 36 and submitted that the ends of justice will be met, if the sentence awarded to the appellant is reduced to the period already under gone by him. However, the learned Advocate for the State on the other hand submitted, that in view of the cases reported in P L D 1971 S C 541, P L D 1975 S C 174 and P L D 1978 S C 10, that merely because 5 years have elapsed in hearing of the above appeal, it is not necessary that the appellant should not be remanded back to custody.

20. I have gone through the cases cited by the learned Advocate before me and in my opinion the cases cited by the learned Advocate for the Stat are based on different facts, whereas the case relied upon by the learned Advocate for the appellant is directly on this point. Keeping in view the facts and circumstances of this case, in my opinion, ends of justice will be A fully met, while maintaining the conviction of the appellant, his sentence of imprisonment is reduced to the one already undergone by him.

21. Accordingly in view of my above conclusions, while dismissing the above appeal, on merits, I reduce the sentence of imprisonment awarded to the appellant from a period of one year, to the period already under gone by him and maintain the fine of Rs. 1,000 imposed on the appellant and in default of payment of said fine suffer further R. I. for 3 months. However, I grant two weeks time from today to the appellant to pay the fine imposed on him, failing which the learned trial Court is directed to issue nonbailable warrants for the arrest of the appellant and remand him to judicial custody to serve out sentence, in lieu of fine.

22. The above appeal stands disposed of in the terms of the above judgment. Order accordingly.