1989 P Cr (PLP)

Qazi Faiz Issa for the State. Date of hearing: 3rd February, 1987. ABDUL QADEER CHAUDHRY, J.‑‑ The appellant was working as Cashier in Muslim Commercial Bank, Rasala Road Branch, Hyderabad at the relevant time. The main branch used to collect all cash from sub‑branches. It is alleged that on 30‑12‑1984 the appellant received Rs.1,90,000 from his Assistant Casnler P.W. 1 Syed Mahmood Talpur and this amount was not entered in the book and was misappropriated. On that charge he was convicted under section 408, P.P.C. and sentenced to R.I. for four years and to pay a fine of rupees four lacs in default of payment of fine to suffer further R.I. for one year, by means of judgment dated 30‑10‑1986 passed by the Presiding Officer, Special Court (Offences in Banks) Karachi.

2. The defence of the appellant was that this amount was never given to him and it was misappropriated by P.W.1 Syed Mahmood Talpur from whom bank recovered this amount but on account of influence of Syed Mahmood Talpur, who is nephew of a former Defence Minister the appellant was made a scapegoat. The admitted position is that a departmental enquiry was held and after the enquiry P.W.1 Syed Mahmood Talpur was held responsible for the embazzlement. However, subsequently the amount was returned to Syed Mahmood Talpur as it was found that the appellant had committed the offence. The report was lodged by Ramzan Ahmad Khan, Manager Muslim Commercial Bank Rasala Road Branch, Hyderabad. After usual investigation the case was put up before the learned special Court against the appellant for trial. The appellant did not plead guilty to the charge.

3. At the trial the prosecution examined Syed Mahmood Talpur, Muhammad Azam Noorwala, Ghulam Muhammad, Cashier and Shahid Hussain, Investigating Officer. Ramzan Ahmad Khan the first informant was not examined as the prosecution witness but he was examined as a Court‑witness. The accused in his statement under section 342, Cr.P.C. admitted that Exh.2/A bears his signature but stated that he had received only Rs.6,60,000 through P.W.1. He denied that he had received Rs.1,90,000 from P.W.1. He examined two witnesses in defence. D.W.1 Abdul Majid is the father of the appellant and he stated that he made the payment of Rs.1,90,000 to the bank as he was called by the bank officer and told him that is son had committed fraud and unless he paid this amount they would lodge F.I.R. In this way he collected the amount of Rs.2,50,000 and out of this amount he deposited Rs.1,90,

000. D.W.2 Kapoor Khan supported the statement of D.W.1 for the collection of the amount. The learned trial Judge disbelieved the prosecution story as regards the payment of Rs.66,00,000 by P.W. Talpur to the accused. He came to the conclusion that only Rs.6,60.000 were received by the appellant through Exh.2/A. He also accepted the prosecution case that initially Rs.1,90,000 were paid by P.W. Syed Mahmood Talpur who had collected this amount from Goods Naka Branch. However, he convicted the appellant on the extra‑judicial confession of the appellant. In fact the entire case against the appellant rests upon the extra‑judicial confession of the appellant. Court witness Ramzan Ahmad Khan has produced two letters Exhs.6‑A and 6‑B wherein the accused has admitted that he had committed the fraud after receiving the amount from P.W.1. This extra‑judicial confession has been retracted by the appellant and there is no corroborative piece of evidence against the appellant. The appellant has stated that the two letters have been procured by the bank officials under duress as they had threatened to launch criminal prosecution against the appellant. This contention of the appellant is supported by D.W.1 who had deposited the amount. The trial Court has observed that Rs.6,60,000 had been received by the appellant. It belies the contention of the prosecution that P.W.1 had paid Rs.66,00,000 to the appellant through Exh.2/A. On the back of Exh.2/A Rs.66,00,000 have been mentioned and there appears some interpolation and on this page Rs.1,90,000 have been mentioned but the original receipt shows that only Rs.6,60,000 had been received by the appellant and appellant has admitted this fact. There is no mention of Rs.l,90,000 in Exh.2/A on the original side. There is also no evidence that P.W.1 had made any payment of ks.1,90,000 to the appellant. In fact the entrustment o Rs.1,90,000 has not been proved by the prosecution therefore, in view of the fact that originally P.W.1 had paid the amount of Rs.1,90,000 and according to the departmental enquiry he was found guilty for the charge, the case against the appellant is not free from doubt. Additionally, the prosecution has not established beyond all reasonable doubt that Rs.1,90,000 has been received by the appellant. Thirdly the appellant has made good the loss on the promise that he would not be prosecuted. In such circumstances the extra‑judicial confession Exh.6‑A and Exh.6‑B does not carry any weight because it has not been corroborated by some independent evidence.

4. As such the appeal is accepted and the conviction and sentence recorded against the appellant is set aside. He shall be set at liberty forthwith if not required in any other case. The appeal was disposed of key the short order, dated? 3‑2‑1987 and the above are the reasons for the same. M.Y.H./A‑502/ K??????????????????????????????????????????????????????????????????????????????? Appeal allowed: