1988 PLP 1699 (MLD)

Accused Sikandar Hayat was Manager, Habib Bank Ltd., Kallar Syedan Branch, District Rawalpindi from July 1976 while accused Muhammad Shafique was working as officer in the said branch. Accused Sikandar Hayat was transferred from the said branch with effect from 13‑7‑1977. As made out by the original complaint dated 8‑4‑1978 Exh. PA. made b,, the succeeding Manager, P.W.4 Shaukat Iqbal against the said accused persons which became the basis of F.I.R. No.13, dated 9‑4‑1979 of P.S. Kallar Syedan for offence under section 408/34, P.P.C. and by supplementary complaint Exh.P.W./2, there are following three allegations against the two accused in this case:‑‑ (i) That the accused Sikandar Hayat while working as Manager, Mirgala Mingral Branch had taken two loans; one for purchase of motor car and the other, a general loan in his private capacity from the Habib Bank Limited which he was paying back through instalments but the said loans had not yet been cleared when 13th of July, 1977 he was transferred to and took over as Manager of Habib Bank Limited Kaller Syedan Branch. He did not show the said loans in the books of Kaller Syedan Branch and on receipt of letter dated 30‑3‑1978 from head office, Karachi by the complainant, the succeeding Manager requiring him to find out as to why these two loans had not been shown in Kaller Syedan Branch, he made inquiry from Mirgalla Mingral Branch and came to know that the papers in respect of loans were m the custody of Sikandar Hayat but he had not entered them in the record of Kaller Syedan Branch and on his giving information of this fact to the Zonal Office. Jhelum an Audit Officer named Muhammad Yousaf had been deputed to make inquiry into the matter who had found that accused Sikandar Hayat had misappropriated sum of Rs.51,891.50 in respect of said loan and had destroyed the documents in respect of the same and had thus deprived the bank of the said documents and the material benefits arising out of the same. (ii) On 12‑11‑1976 accused Sikandar Hayat had by a written requisition asked for a sum of Rs.2,00,000 from Habib Bank Limited, Gujarkhan for use in Kaller Syedan Branch and Sh. Abdul Waheed. Manager, Gujarkhan Branch brought the said sum and delivered it to him in Kaller Syedan Branch on 15‑11‑1976, obtained the signature of accused Sikandar Hayat and Raja Muhammad Shafiq on the receipt of said sum but the two accused did not credit the same in the books of the Branch and dishonestly and fraudulently misappropriated the said sum of Rs.2,(0,000 and committed criminal breach of trust in respect of the said sum. (iii) On 3‑7‑1977 a sum of Rs.320 only was the total receipt in Kaller Syedan Branch by way of deposit etc. On that day when Muhammad Sohail Anwar, Cashier had left the premises of the Branch, accused Sikandar Hayat made a cutting in the cashier's register in his own hand and made: three fake entries of receipt in the cash book of three sums totalling Rs.1,00,000 and showed a sum of Rs.1,00,320 as having been received on 3‑7‑1977 as total receipt in the branch instead of Rs.320 and credited the said fictitious sum of Rs.1,00,000 in the accounts of the following account holders of the branch in the following manner:‑‑ (i) M/s. Rahman Brothers Current A/c No.9. 3‑7‑1977 Rs.78,354.00 (ii) M/s. Rahman Brothers Current A/c No.9. 3‑7‑1977 Rs.13,557.00 (iii) Syed Mujtaba Hussain Shah, Current A/c No.15. 3‑7‑1977 Rs.8,089.00

Rs.1,00,000.00

The said account holders withdrew the said sum of R x.1,00,000 from their said accounts by means of different cheques which bore the signatures of accused Sikandar Hayat and Muhammad Shafiq. Accused Sikandar Hayat considering that though the sum of Rs.1,00,00i) had been shown by him to have been deposited m the branch, the said amount was not available in the safe and thus fraud was liable to be immediately detected had, in order to cover this fraud, taken fictitious proceedings of showing the despatch of said sum of Rs.1,00,000 to Hayal Pindora Branch of Tehsil Kahuta, District Rawalpindi although no such sum had either been demanded by or received by the said branch on that day or any day, thereafter, nor any receipt of the said sum had been kept by accused Sikandar Hayat in the record of the bank and even a voucher of the said sum is not available in the bank record and thus the two accused had along with Syed Mujtaba Hussain Shah and M/s. Rahman Brothers (a firm constituted by three partners named Abdur Rahman, Saeen Miran Bux and Saeen Talib Hussain with Abdur Rahman as the partner who operated the account of the firm) intentionally acting under common intention dishonestly and fraudulently misappropriated a spun of Rs.1,00,000 of the bank. Originally in the complaint Exh.PA, there was an allegation that accused Sikandar Hayat had demanded a sum of Rs.75,000 for use in Kallar Syedan Branch which sum was brought by Abdul Sattar Siddiqi Second Officer, Habib Bank Limited, Gujarkhan branch and delivered to the accused on 22‑11‑1976 and the receipt for the said sum duly signed by both the accused was handed over to said Abdul Sattar Siddiqi but the two accused did not credit the same in the books of the branch and dishonestly misappropriated the said sum. However during the investigation the credit entry ref said sum of Rs.75,000 was found in the books of the branch. Mention of that matter was made in police report. P.W.4 and P.W.10 also stated in their statements :hat the said sum of Rs.75,000 stood adjusted in the books of the. branch. 'the said allegation is no more have allegation in this case. and shall not be adverted to now in this judgment. 2 Trial in this case started in the Court of Special ,fudge (Central), Rawalpindi. The charge was famed against the two accused for offence under section 409, P.P.C. for misappropriation of a total sum of Rs.3,00,000 of Habib Bank Ltd. Kaller Syedan Branch, District Rawalpindi in the year 1976. This appears to have been done under section 272, Cr.P.C. and allegedly appropriated sums of Rs:2,00,000 and Rs.1,00,000 as given in 2nd and 3rd allegation had been consolidated in a single amount. The other head of the charge was for offence under section 5 of Act II of 1917 for their having drawn pecuniary advantage of said sum of money by abusing their official positions respectively as Manager and 11 Officer of Kaller Syedan Branch, District Rawalpindi. The accused denied the charge and therefore evidence in this case was recorded.

3. Out of the witnesses cited in the calendar of witnesses in this case, Math, Ghulam Sabir was given up on the ground that the specimen signatures and writings of the accused obtained by him had been lost and Muhammad Iqbal was given up as unnecessary and thereafter, after production of 10 prosecution witnesses the prosecution evidence was closed. P.W.1 Wakalat Hussain, who was Moharrir, A.S.I. P.S. Kaller Syedan is a formal witness who recorded F.I.R. Exh. PA/1 on the receipt of original complaint Exh.PA. Muhammad Hanif 'who was A.S.I. P.S. Kaher Syedan in 1978 partly investigated the case and appeared as P.W.7. He also proved seizure by him of documents produced before hurt. Muhammad Khan, who was S.H.O. P.S. Kaller Syedan and had partly investigated the case appeared as P.W.9. He stated that on 15‑4‑1978 he had taken bus No.1071 RN into his possession vide memo. Exh.PB. He further stated that on 17‑4‑1978 he had got specimen signatures of both the accused before Magistrate 1st Class, Rawalpindi and had sent them to the handwriting expert alongwith the questioned documents which had been received back but the said report of handwriting expert alongwith the said specimens and original documents had been last. Muhammad 1qbal a driver appeared as P.W.2 and stated that the police had taken Bus No.1071/RN alongwith its documents into possession vide memo. Exh.PB. He stated in cross‑examination that the said bus belonged to him as he had purchased the same in the yea: 1975 and Ra; Sakhawat was his partner in the said bus. Arif Shah, clerk in the office of Excise and Taxation Department appeared as P.W.3 with the record of bus No.1071 /RN and stated that on 29‑7‑1975 the said bus was transferred in the name of Muhammad Shafiq son of Raja Muhammad Akbar and Raja Muhammad Iqbal son of Muhammad Khan. The remaining witnesses namely are P.W.4 Shaukat labal, Manager, Habib Bank Ltd. Kaller Syedan Branch P.W.5 Abdul Waheed, Manager United Bank Ltd. G.T. Road Branch, Gujarkhan, P.W.6 Muhammad Rafiq incharge current account department of Habib Bank Ltd. G.T: Road Branch, Gujarkhan on 12‑11‑1976, P.W.8 Sohail Anwar cashier Habib Bank Ltd. Kaller Syedan Branch on 28‑1‑1976, P.W.10 Ch. Muhammad Yousaf, Senior Account Officer, Jhelum and Officiating Circle Audit Chief with Headquarter at Jhelum in 1978, deposed on merits of the. case.

4. The production of documents was proved in this case by P.W.4 Sh. Shaukat Iqbal, Manager of the Branch and P.W.' Muhammad Hanif, A.S.I., P.S. Kaller Syedan. Shaukat lqbal P.W.4 stated that he had produced before the police ,following documents:‑ (i) Original cash vouchers EA. P11 with original debit advice of Rs.2,00,000 Exh. P12. (ii) Original cash demand letter dated 11‑12‑1976 (actually 12‑11‑1976). (iii) Original receipt in respect of receipt by the accused of the sum Of Rs.2,00,000 bearing signatures of booth the accused. He deposed that the documents were secured by the police by virtue of memo. Exh.PC which was attested by him. He also stated that documents at Sr.Nos.(ii) and (iii) were lost by‑the police when these were sent to the handwriting expert for comparison. Under the permission of the Court granted to the P.I., he, produced photostat of the said demand letter mentioned above at Sr.No.(ii) as Exh.P.13 and the photostat of receipt mentioned at Sr.No.(iii) above as Exh. P.14. Under illustration `a' to section 63 of Evidence Act, 1882, now Article 74 of Qanoon‑e‑Shahadat 1984 the said photostats have been duly admitted as secondary evidence of contents of the original documents. Muhammad Hanif, S.I. in his statement as P.W.7 stated that Shaukat Iqbal P.W.4 had produced before him cash voucher Exh.P.11, advice No.26414, P.12, another advice No.26444 P.17, receipt of cash of Rs.2,00,000 of which photo is Exh.P.14, demand letter of which photo copy is Exh.P.13, demand letter of Rs.75,000 P.18 and its receipt P.19 which were taken into possession by him vide recovery memo. Exh.P.C. Thus, the seizure by the police of the above bank record from the proper custody stands proved on the record. The said recovery of the said documents has not been challenged by the accused either in cross‑examination or in their statements under section 342, Cr.P.C.

5. I propose to deal with the case on the basis of each allegation made in this case in the fight of evidence brought on record... 1ST ALLEGATION This allegation does not figure in the challan. Police seems to have just ignored it and given no finding thereon. The allegation was excluded even from the charge which constitutes a notice to an accused person in respect of the case he has to meet. In the absence of any charge against the accused in respect of this allegation, accused Sikandar Hayat cannot be said to have any notice of this allegation. Even otherwise prosecution did not produce either in evidence or at the time of arguments, the rules and regulations of the bank whereby the loan account is transferred to the branch to which the employee taking the loan is transferred nor did the prosecution show that at the time of transfer from Mirgalla Mingral Branch, a direction was given that the said loans be entered in the books of Kaller Syedan Branch as contended in the first complaint which in fact constituted the original F.I.R. in this case. It was also not shown that the accused had closed his loan accounts in Mirgalla Mingral Branch and that the documents of two loans were in his possession. It is true that P.W.10 Muhammad Yousuf, who had under the orders of higher authorities made the checking of entries pertaining to car loan account and provident fund account of accused Sikandar Hayat in Mirgalla Mingral Branch had stated that on checking, he has found that accused Sikandar Hayat had before his handing over charge of Mirgalla Mingral Branch transferred loan amounts from Margalla Mingral to Kaller Syedan Brand: and in slate of that the said account had not been received in Kaller Syedan Branch but his simple testimony to that effect without production of the record to prove the same before the Court is of little consequence. The particular books of Mingral Branch Showing closing of the said two accounts by the accused were not produced in evidence and the relevant closure entries of the two accounts for transfer to Kailer Syedan Branch were not proved by any witness to he in the hand of the accused. It is the Court which has got to be satisfied. It cannot depend on the sole uncorroborated statement of Muhammad Yousuf to the effect that accused had closed the said accounts in Mirgaila Mingral Branch and cannot surrender its judgment to him. There is, therefore, no inference that original documents of loan were brought by the accused with him when he was transferred to Kaller Syedan Branch and were with the accused and were destroyed by him. In these circumstances, it cannot be said that accused Sikandar Hayat intentionally desisted from paying the instalments of said two loans or that lie destroyed the loan documents and thereby misappropriated the entire outstanding amounts of loan while posted as Manager in Kaller Syedan Branch. He cannot also be said to have drawn dishonestly any pecuniary :advantage of the said sums of loans by abusing his official position. 2ND ALLEGATION. This allegation is in respect of accused Sikandar Hayat having received on 15‑11‑1976 a sum of Rs:1,00,000 from Habib Bank Ltd., G.T. Road Branch, p Gujarkhan and having not accounted for and misappropriated the same. The relevant witnesses are P.W.5 Abdul Waheed, P.W. 6 Muhammad Rafiq, P.W.4 Shaukat lqbal, P :y.8 Sohail Anwar and P.W.10 Ch. Muhammad Yousuf. P.W. 4 Shaukat Iqbal who succeeded accused Sikandar Hayat as Manager in Habib Bank Ltd. Kaller Syedan Branch stated that P.W.10 Ch. Muhammad Yousuf, Senior Auditor, Habib Bank Ltd., Jhelum was deputed to check the record at Kaller Syedan Branch and the said checking revealed that Sikandar Hayat had requisitioned Rs.2,00,000 from Habib Bank Ltd. G.T. Road Branch, Gujarkhan on 12‑11‑1976 and had alongwith Raja Muhammad Shafiq received the said sum at Kaller Syedan Branch on 15‑11‑1976. He also stated that he had produced before the police original cash demand letter dated 12‑11‑1976 (11‑12 1976 is typographical mistake in record) demanding a sum of Rs.2,00,000 from Habib Bank Ltd., G.T. Road Branch, Gujarkhan. The said original cash demand letter having been proved to have been lost, he produced its photostat and proved it on record as P.13. He also stated that he had produced before the police original cash voucher for a sum of Rs.2,00,000 prepared in the feeding branch as Exh.P.11. Inter Branch Debit Advice for a sum of Rs.2,00,000 also prepared and retained in the said feeding branch as Exh.P.12. He further stated that he had also produced before police the original receipt dated 15‑11‑1976 signed by accused Sikandar Hayat and Muhammad Shafiq acknowledging the receipt of said sum of Rs.2,00,

000. The said original receipt having been proved to have been lost, he produced and proved its photostat as Exh.P.14. He also proved that these documents were recovered by police by virtue of its memo. Exh.P.C. P.W.7, Ch. Muhammad Din, S.I. Investigating Officer also stated the same. P.W.4 Shaukat Iqbal stated in cross‑examination that voucher (document P.11 in the present case) which is prepared and retained in the feeding branch at the time when the cash is taken out from it for delivery at the receiving branch is signed by the bearer of cash as well as driver of the vehicle and Exh.P.11‑A on its back is the signature of bearer Sh. Abdul Waheed, Manager, of Habib Bank Ltd., G.T. Road Branch, Gujarkhan and Exh.P.ll‑B is the signature of driver Muhammad Iqbal. He also deposed that along with the cash an Inter Branch Debit Advice (duplicate copy) is sent which is retained by the receiving branch and the Manager of the receiving branch issues a receipt in token of the receipt of cash and Inter Branch Debit Advice and Exh. P.12 is the (copy of the) I.D.B.A. I, retained by the feeding branch. P.W.4 Shaukat lqbal proved all the documents showing demand by accused Sikandar Hayat of said sum and receipt by the two accused of the said sum at his branch. P.W.10 Ch. Muhammad Yousuf, Senior Audit Officer, Jhelum, then officiating as Circle Audit Chief, also stated that during the checking of record of the said branch, hhad found that the accused had received Rs.2,00,000 from Habib Bank Ltd., G.T. Road Branch, Gujarkhan. P.W. 8 Sohail Anwar who was cashier at Habib Bank Ltd.. Kaller Syedan Branch from 1976 to August, 1981 and having worked during this period with accused Sikandar Hayat, Manager and Raja Muhammad Shafiq 2nd Officer was conversant with their handwriting and signatures, identified the writing on photostat Exh.P.13 of cash demand letter and photostat Exh.P.14 of receipt to be in the hand of the accused Sikandar Hayat. He also stated that both the said documents bore the signature of accused Raja Muhammad Shafiq P.W.6 Abdul Waheed, the Manager of Habib Bank Ltd., G.T. Road Branch, Gujarkhan, who is a direct witness in respect of payment of said sum of Rs.2,00,000 to the two accused at Kaller Syedan Branch deposed that on receipt by him of cash demand letter dated 12‑11‑1976, photostat Exh.P.13 bearing signature of Sikandar Hayat which he identified, demanding from his branch a sum of Rs.2,00,000 he had, on 15‑11‑1976, accompanied by Muhammad Iqbal, driver, gone to Kaller Syedan with cash of Rs.2,00,000, after voucher Exh.P.11 was prepared in his own branch. He further stated that having reached Kaiier Syedan at 1 p.m., he had delivered the cash to accused Sikandar Hayat who had executed a receipt photostat Exh.P.14 in his favour. He also stated that the original receipt was signed by both the accused and the contents of the receipt were in the hand of accused Sikandar Hayat. He also stated that he gave an Inter Branch Debit Advice to Sikandar Hayat at that time and Exh.P.12 was the carbon copy of the said Advice. He also deposed that the said Advice was to be kept in Kaller Syedan Branch while the said carbon copy was to be retained by Gujarkhan Branch. P.W.6 Muhammad Rafiq who was then posted as incharge current account department in Habib Bank Ltd., G.T.Road Branch, Gujarkhan fully supported the said witness. He deposed that on 12‑11‑1976 they received the cash demand letter photostat Exh. P.13 from Habib Bank Ltd., Kaller Syedan Branch bearing signature of accused Sikandar Hayat and on that Abdul Wahced, Manager got prepared voucher Exh. P.11 which bore the signature of Abdul Waheed on its front side and that of Abdul Waheed and M. Iqbal driver on its reverse and that he attested their signatures, and sent the cash debit voucher to cash department and Rs.2,00,000 was delivered to Abdul Waheed and M. Iqbal and after delivering the amount at Kaller Syedan Branch, they produced before him receipt photostat P.14 bearing signature of accused Sikandar Hayat and Muhammad Shafiq which he identified. Thus on the basis of the said documents and statements of said witnesses the receipt by the two accused of said sum of Rs.2,00,000 in Kaller Syedan Branch on 15‑11‑1976 stands fully proved. In the cross‑examination of the P.Ws., during the trial, the case of the two accused as regards this allegation appeared to be that the said sum of Rs.2,00,000 had never been received by the accused and also that out of said sum of Rs.2,00,000 received by the accused Rs.one lac and fifty thousand were shown by accused Sikandar Hayat to have been deposited in Kaller Syedan Branch on 16‑11‑1976 and balance Rs.50,000 were deposited in the National Bank of Pakistan Kaller Syedan Branch in the account of Habib Bank Ltd. These two defence pleas were clearly contradictory to each other. The two accused, however, acknowledged in their statements under section 342, Cr.P.C. the receipts of said sum of Rs.2,00,000 by them on 15‑11‑1976 and accused Sikandar Hayat claimed to have deposited out of the said sum of Rs.2,00,000, a sum of Rs.1,50,000 in the account of branch as Pak account and Rs.50,000 in National Bank of Pakistan Kaller Syedan Branch in the account of Habib Bank Ltd. Kaller Syedan Branch. The fact that accused had taken two mutually contradictory defence pleas appears to show that at first the accused was making a roving inquiry in cross‑examination and had no fixed defence plea relatable to true facts but was depending for his defence on the result of such cross‑examination. In these circumstances, the accused must be considered to have adopted the plea of his having made the said two deposits in order to account for the said sum of Rs.2,00,000 on account of his having failed to find any aperture in the prosecution case as regards entrustment to the accused original sum of Rs.2,00,000 or in the alternative this background must be kept in view while ascertaining the truth or otherwise of the said plea or even its being probable or not. To prove the said plea, the accused summoned documents from Manager of Kaller Syedan Branch. Shaukat lqbal, the then Manager of the branch who had earlier appeared as P.W.4, produced these documents and was examined as D.W.1. He proved copy of sheet dated 16‑11‑1976 of Receipt and Payment Register of Habib Bank Ltd. Kaller Syedan Branch as Exh. P.W.1/3 showing credit entry of Rs.1,50,000 in Pak Account of the branch and ledger account of Habib Bank Ltd. Kaller Syedan in National Bank of Pakistan Kaller Syedan Branch as Exh. DW.1/11, showing a cash credit entry of Rs.50,000 on 16‑11‑1976 in the said account. So far the accused appear to have supported his statement with these documents but the question is whether these entries of two deposits; one in the very branch and the other in account of the branch in Kaller Syedan sufficiently account for the said sum of Rs.2,00,000 received by the accused on behalf of the branch. I have given my serious thought to this question and have come to the conclusion that the said two credit entries do not prove that accused had accounted for the said sums of Rs.2 lac. The first and the foremost reason for the same is that the said sum of Rs.2,00,000 was received by the two accused at 1 p.m. on 15‑11‑1976 as deposed to by P.W.5 but was shown to have been accounted for on 16‑11‑1976 as per the entries relied upon by the accused. The said sum had not been tendered to the accused on 16‑11‑1976 and, therefore, no reliance can be placed on said entries of 16‑11‑1976. On cross‑examination from P.W.5 Abdul Waheed, Manager, G.T. Road Branch, Gujarkhan it was elicited that though public dealing time was from 9 a.m. to 1 p.m. there were no fixed timings for bank to bank transactions. P.W.8 Sohail Anwar, then the cashier in Kaller Syedan Branch stated in cross‑, examination that general working hours of the bank during those days were from 9 a.m. to 4 p.m. and after dealing with the public was over at 1 p.m. they used to do the office work till 4 p.m. Having received the ruin of Rs.2,00,000 at I p.m. on 15‑11‑1976 there was ample time till 4 p.m. for the two accused to register this sum as a cash receipt in Cash Receipt and Payment Book for 15‑11‑1976. It is not the case of the accused in their statements under section 342, Cr.P.C. that the said sum had been received on 15‑11‑1976 after closure by them of the Cash Receipt and Payment Book for 15‑11‑1976. The receipt, photostat Exh. P.14 which has been admitted by the accused, shows that the sum had been received by the two accused on 15‑11‑1976. It is a uniform practice in the banks that if a sum is received after closing of the cash receipt account in the Cash Receipt and Payment Book the receipt is issued for the next day and the said sum is shown as receipt in Cash Receipt Book on the next day. Since in the present case P.14, the receipt, was issued on 15‑11‑1978, it was according to said banking practice receipt for 15‑11‑1978 and, therefore, the said sum of Rs.2,00,000 should have been shown on receipt side of Cash Receipt and Payment Book of 15‑11‑1976. However, Exh. D.W.1/2, the page of Cash Receipt and Payment Book for 15‑11‑1976 does not bear any credit entry of Rs.2,00,000 in it. P.W.4 Shaukat Iqbal Manager of Kaller Syedan Branch who must be considered to be fairly senior person in the service of the bank and well‑versed in looking into and interpreting the documents of account of the bank had also stated that the two accused had not shown the receipt of the said amount in the record of Habib Bank Ltd. Kaller Syedan Branch. He also stated in cross‑examination that this sum was not shown in the Daily Extract (which he had already explained was a return showing receipt of cash from other branches and cash sent to other branches) of Kaller Syedan Branch. P.W.10 Muhammad Yousuf who was Senior Audit Officer, Jhelum and was officiating as Circle Audit Chief in 1978 and must be deemed to be an expert in examining bank books of account had stated that on checking the record of Habib Bank Ltd. Kaller Syedan Branch, he had found that accused had not entered the sum of Rs.2,00,000 received by them in the record of Kaller Syedan Branch. It is, therefore, crystal clear that the two accused had not made a credit entry of said sum of Rs.2,0D,000 in the relevant record of the branch on 15‑11‑1976 and had thus not accounted for the said sum in the record of the branch and credit entry of deposit of Rs.1,50,000 in the branch in Pak Account and deposit of Rs.50,000 in account of the branch in National Bank of Pakistan Kaller Syedan Branch on 16‑11‑1976 cannot be considered to be sufficient and valid explanation in respect of the deposit by him of said sum with the bank. My second reason for holding that view is that in any way the sum of Rs.2,00,0tb received in the branch should have been shown as a single whole in a unified and compact credit entry in the Cash Receipt Book and not bifurcated into two portions and one shown as a deposit in the branch and other as a deposit in the account of the branch in National Bank of Pakistan. Invariably the whole of the amount received in a bank is to be shown as credit first in Cash Receipt Book. It is that alone which can ensure the receipt of the sum in the branch and save the bank from its embezzlement by the persons who had received it on behalf of the branch. If a single compact amount received in a branch is allowed to be split up into portions and entered in that position in the record of the bank, there can be no checking and no reconciliation at all, and therefore, no splitting can be allowed at the root and entire amount has to be entered as credit in the books in the first instance. It is after the said credit entry has been made, that any entry of disposal of part or whole of said sum can be made by way of a debit entry or entries on payment side of the Cash Receipt and Payment Book. The accused have not shown any credit entry of a sum of Rs.2,00,000 in Cash Receipt and Payment Book either on 15‑11‑1976 or 16‑11‑1976. No such entry exists in the relevant pages of the said book, Exh. DWl/2 and Exh. DWl/3 produced by the accused in defence. The said sum of Rs.2,00,000 as a single compact amount is, therefore, not proved to have been accounted for in record of the branch for 15‑11‑1976 or even for 16‑11‑197!). Apart from that, there is no certainty that the said sums of Rs.1,50,000, deposited in Pak Account in the branch and Rs.50,000 deposited in the account of the branch in National Bank of Pakistan, Kaller Syedan Branch on 16‑11‑1976 related to the said sum of Rs.2,00,000 received by the accused on 15‑11‑1976 from Habib Bank Ltd., G.T. Road Branch. The accused cannot rely upon credit entries of said sums on 16‑11‑1976 unless they had proved that those sums had not been received from other sources either on 16‑11‑1976 or on any other date in the branch. That proof, however, has not been adduced by the two accused. The said credit entries of 16‑11‑1976; one of a deposit of a sum of Rs.1,50,000 in the branch as Pak Account and other of deposit of Rs.50,000 in the ‑account of the branch maintained in National Bank of Pakistan, Kaller Syedan Branch do not account for the sum of Rs.2,00,000 received by the two accused on 15‑11‑1976. My third reason for coming to that conclusion is that explanation of the accused that the sum of Rs.1,50,000 shown in Cash Receipt and Payment Book as cash receipt on 16‑11‑1976 in Pak Account was out of the said sum of Rs.2,00,000 received on 1.5‑11‑1976, is incorrect on factual plane as the said credit entry was in respect of sum of Rs.1,50,000, received personally by the accused from Habib Bank Ltd. G.T. Road Branch on 23‑9‑1976 as per cash debit voucher, dated 23rd September, 1976, Exh. P.15 and Inter Branch Debit Advice dated 23‑9‑1976 which IBDA had been responded on 16‑11‑1976. According to P.W.4 Shaukat Iqbal IBDA is prepared in triplicate in the feeding branch and it is well‑known that the original is sent alongwith the amount to the receiving branch and out of the two carbon copies, one is retained as office copy in the feeding branch and the other is retained as record in receiving branch. On reading the prescribed form of IBDAs it would be clear that the original IBDA contains a responding portion at its foot. The Manager and officer of the branch receiving the sum given in IBDA, sign on the responding portion of the original IBDA in token of their acknowledgement that they have brought the sum given on the IBDA on the books of the receiving branch and give the date on which they respond and send the original IBDA duly responded to the feeding branch for record The other two carbon copies of IBDA do not contain responding portion. A bar;, perusal of IBDA Exh.P.16 shows that it is al original IBDA as it contains a responding portion which bears signatures of two officers and date written by them as 16‑11‑1976 although top half of the said IBDA prepared in the feeding branch bears 23‑9‑1976 as its date. It is also in the statement of P.W.4 Shaukat Iqbal that at the time of remission of a sum to another branch, a debit voucher is prepared in the feeding branch without any copies thereof. P.W. 5 Abdul Waheed, who was posted as Manager Habib Bank Ltd., G.T. Road Branch, Gujarkhan stated that on 23‑9‑1976 accused Sikandar Hayat himself came to G.T. Road Branch, Gujarkhan and collected rupees one lac fifty thousand from the Manager Ghulam Ali Shah and voucher to that effect which is dated 23‑9‑1976) was Exh. P.15 and signature of accused Sikandar Hayat was on the reverse of the same as Exh. P.15/A. He further stated that he was conversant with the handwriting and signatures of the said accused. He also deposed that Exh. P.16 is Inter Branch Debit Advice in respect of the voucher Exh. P.15 and the accused deposited the amount of Rs.1,50,000 in his branch on 16‑11‑1976 though it should have been deposited there on 23‑9‑1976 because no cash had been sent to Kaller Syedan Branch on 16‑11‑1976 (and the same had been paid to Sikandar Hayat on 23‑9‑1976). He further stated that document Exh. P.16 (IBDA) was signed by both the accused. In cross‑examination, he stated that it was incorrect to suggest that the amount shown in the said voucher dated 23‑9 1976 was delivered in the Kaller Syedan Branch on 16‑11‑1976. 'The said witness had proved his capacity to identify the signature of, accused Sikandar Hayat. He was the Manager of Habib Bank Ltd., G.T.Road, Branch, Gujarkhan from which requisitions were made by the Manager of Kaller Syedan Branch and, therefore, the documents bearing the signature of said accused as well as of accused Muhammad Shafq were being submitted to him in the normal course of banking business. Apart from that on 15‑1' ‑1976 he had come to Kaller Syedan Branch and paid there in the said branch a sum of Rs.2,W,000 and in his presence accused Sikandar Hayat had executed the receipt and accused Sikandar Hayat and Muhammad Shafique had signed the said receipt. The source of acquaintance of this witness with the signature of accused fell squarely within the ambit of explanation appended to section 47 of Evidence Act, 1872, now Article 61 of the Qanoon‑e‑Shahadat, 1984. Learned counsel for the accused had not contested in cross‑examination the source of the acquaintance of this witness with the signatures of the two accused and had, therefore, according to the accepted principle of law, conceded the capacity of this witness to identify the signatures of the two accused. The evidence of the said witness was to the effect that the signature on the reverse of voucher Exh.P.15 was of accused Sikandar Hayat. As a matter of fact in giving the suggestion that amount shown in the voucher dated 23‑9‑1976, Exh. P.?5 was declared in Kaller Syedan Branch on 16‑11‑1976, learned counsel for the accused had accepted the factum of said sum having been received by Sikandar Hayat and his having appended his signature on the back of the said voucher in token of his acknowledgement that he had received the said sum. The evidence of this witness on the basis of voucher P.15 that accused Sikandar Hayat personally came to Habib Bank Ltd., G.T. Road Branch, Gujarkhan and obtained the said sum of Rs.1,50,000 as the voucher bore signature of Sikandar Hayat on its reverse is consistent with and is supported by the statement of P W Shaukat Iqbal to the effect that when the Manager of a branch himself goes to the feeding branch to get money to re‑coup the funds of his branch, no separate receipt is required and the signature of the said Manager on the back of the debit voucher prepared in the feeding branch at the time of delivery to the Manager of the said branch of the money demanded is sufficient. The evidence of the said witness to the effect that the said IBDA Exh. P.16 bore the signatures of accused Sikandar Hayat and Muhammad Shafique in its responding portion made on 16‑11‑1976, which he identified, was also not challenged in cross ;examination and must be deemed to have been accepted as true. The evidence of this witness fully proves that the signature Exh. P.15/A on the back of the cash debit voucher Exh.P.15 is of accused Sikandar Hayat in token of his acknowledgement of receipt by him of said sum of Rs.1 lac and fifty thousand from Habib Bank Ltd. G.T. Road Branch, Gujarkhan on 23‑9‑1976 and that IBDA dated 23‑9‑1976 Exh.P.16 bears the signatures of both the accused in token of their having accounted for the said sum in the books of account of Kaller Syedan Branch on 16‑11‑1976. It stands established that the sum of Rs.1,50,000 had been received by accused Sikandar Hayat from G.T. Road Branch, Gujarkhan on 23‑9‑1976 and had been accounted for in the record of Habib Bank Ltd., Kaller Syedan Branch on 16‑11‑1976. Learned counsel for the accused has challenged the authenticity of the said debit voucher Exh.P.15 on the ground that the said document had not been produced before the police. According to him the said document was forged document. P.W. Abdul Waheed who had produced in evidence the said. document from the record of his own branch., namely, Habib Bank Ltd. G.T. Road Branch, Gujarkhan had also stated in cross‑examination that document P.15 was also demanded by the police during investigation but its photo copy had been produced before the police during investigation and. learned Special Judge (Central) who was then recording statement of P.W.5 Abdul Waheed made a note in the midst of this statement that such photo copy was there on the record. P.W.9 Muhammad Khan, S.I./S.H.O. P.S. Kaller Syedan, Investigating Officer of this case stated that he recorded in zimni dated 20‑4‑1978 that P.W.5 Abdul Waheed stated before him that he would produce document P.15 in the Court. It, therefore, appears that the plea had been raised by accused Sikandar Hayat Khan during investigation that out of said sum of Rs.2,00,000 received by him alongwith his co‑accused Raja Muhammad Shafiq, he had deposited on 16‑11‑1976 the sum of Rs.1,50,000 in the branch in the Pak Account and the said Investigating Officer having seen entry of Rs.1,50,000 as credit towards the Pak account in the receipt side of Receipt and Payment Book of the Kaller Syedan Branch had interrogated P.W.5 Abdul Waheed for any separate voucher of Rs.1,50,000 showing delivery of said sum to accused Sikandar Hayat and it was on that P.W.5 informed that the relevant voucher of said sum of Rs.1,50,000 was voucher dated 23‑9‑1976, P.15 and had produced a photo copy of the same before the said 1.0. and had undertaken to produce the same in the Court. This conclusion is further supported by the circumstance that P.W.5 Abdul Waheed also stated in cross- examination that the police had recorded his statement on two occasions regarding two different transactions and that he had made a statement about the transaction dated 23‑9‑1976 after about 19 days of his First appearance before the police. Re‑examination by the police of P.W.5 Abdul Waheed, Manager, Habib Bank Ltd., G.T.Road Branch, Gujarkhan was obviously made by the 1.0. to determine if the said defence plea of the accused was correct. It appears that due to these facts in the background the prosecution had anticipated and foreseen the above defence plea of the accused and had produced at the trial the said debit voucher Exh.P.15 from the record of the Branch in order to rebut the, said plea of the accused right at the stage of production of prosecution evidence. Accordingly, the said document Exh. P.15 had rightly been admitted in evidence during the recording of the statement of P.W.S Abdul Waheed. It is noteable that the said document was admitted in evidence without any objection by learned counsel for the accused. A suggestion was put to P.W. 5 Abdul Waheed that the document P.15 had been brought on the record of the same during the trial because it was a_ forged document. Another suggestion put to him was that he had made the statement before the police regarding this document after about ,19 days of his first appearance before the police because this document was to be prepared fictitiously. The said witness denied both these suggestions. The production of photostat before the police during investigation was sure proof of its not being a forged document and the mere fact that the statement had been made by P.W.5 Abdul Waheed in respect of said documents 19 days after his first statement does not show that the said document is a forged one, inasmuch as, during the proceedings of the investigation it was only after the accused had raised the above defence plea before the 1.0. that P.W.5 Abdul Waheed could have been interrogated again by the Investigating Officer in that respect. In any way, no evidence was produced by the accused in his defence to the effect that the paid was a forged one or signature on its back was not elf accused Sikandar Hayat. He had not produced any witness acquainted with his handwriting and signature to state so nor had he produced and handwriting expert for the said purpose. It, therefore, stands proved that tile said debit voucher dated 23‑9‑1976 P.15 for Rs.1,50,000 was genuine document and it bore on its back the signature of accused Sikandar Hayat in token of acknowledgement of receipt by him of Rs. 1,50,000 on 23‑9‑ l

976. Apart from the said cash debit voucher Exh. P.15, there is another document I.B.DA. P. 16 which went alongwith the said sum of money to Kaller Syedan Branch and was returned therefrom duly responded as shown by the contents of the said IBDA itself. The said document was allowed to be admitted in evidence without any objection by learned counsel for the accused. Apart from that no suggestion was made by the counsel for the accused to P.W.5 Abdul Waheed in cross‑examination that the said document was a forged document. The said document, IBDA, P.16 must be considered to have been conceded by the. accused to be a genuine document. As a matter of fact accused himself has relied upon this document as he has himself produced and proved the same document as Exh.D.W.l/6. The said IBDA is clearly dated 23‑9‑1976 as issued by G. T . Road Branch, Gujarkhan. No cross‑examination was conducted to challenge the authenticity of the said date given in its tipper portion. However, the responding portion of this IBDA shows that the said IBDA had been responded on 16‑11‑1976 and the said sun) of Rs.1,50,000 had, therefore, been brought on the books of the accounts of Habib Bank Ltd., Kaller Syedan Branch on 16‑11‑1976. P.W. 5 Abdul Waheed had stated that this document, P.16, was signed by both the accused to the purpose of responding the said IBDA). He also stated that on 23‑9‑1976 Abdus Sattar Siddiqi was concerned officer at G.T. Road Branch and said document P.16 was signed by Ghulam Ali Shah, Manager, and Abdus Sattar Siddiqi Officer while on 15‑11‑1976 he was the Manager of the branch instead of Ghulam Ali Shah. Learned counsel for the accused has, however, attacked the said evidence as regards the said IBDA on the ground that Ghulam Ali Shah and Abdus Sattar Siddiqi who as shows in the cross -examination of the said witness, were alive and working as employees of Habib Bank Ltd. had not been produced to prove the said IBDA. The principle, no doubt is that the signature of a person cannot be proved by any person if that person is alive and is available. There was, however, no question of proving the said IBDA as the said IBDA stood proved on account of the failure of the defence counsel to contest its genuineness in cross‑examination and on account of the proved circumstance of the said IBDA, bearing the signature of the two accused on it in its responding portion. Furthermore, the said IBDA constituted the record of Habib Bank Ltd. G.T. Road Branch, Gujarkhan and had been produced from rightful custody and for that reason too, it was obviously a genuine document. Abdul Waheed while making that part of his statement was not proving the signature of Ghulam Ali Shah and Abdus Sattar Siddiqi on the IBDA; he was highlighting the circumstance that on 23‑9‑1976 Ghulam Ali Shah was Manager while on 16‑11‑1976, the date of responding of IBDA, he himself was the Manager instead of Ghulam Ali Shah and that he had not sent sum of Rs.1,50,000 on 16‑11‑1976 on which the said 1BDA was responded. The mere fact, therefore, that Ghulam Ali Shah and Abdus Sattar Siddiqi had not been produced does not show that IBDA is not a genuine document. The said fact is also not sufficient to reject the testimony of this witness in respect of the fact that IBDA dated 23‑9‑1976 had been responded on 16‑11‑1976 although he had not sent Rs.1,50,000 on 16th November, 1976 when he was Manager of the G.T.Road Branch, Gujarkhan. It may also be noted that although there was a lot of unsuccessful cross‑examination on this witness in respect of the date 23‑9‑1976, given on obverse side of voucher P.15 being in two different inks and appearing; to be forged, there was absolutely no cross‑examination by the defence counsel regards the date of the said IBDA shown to be of 23‑9‑1976 issued by G.T. Road Branch Gujarkhan which clearly appeared to have been responded on 16-11-1976. For the foregoing reasons, I am of the firm view that accused Sikandar Hayat had personally received sum of Rs.1,50,000 from G.T. Road Gujarkhan on 23‑9‑1976 and signed the debit voucher dated 23‑9‑1976 Exh. P.15 on its back in token of receipt of said sum on the said date but the two accused had responded the IBDA dated 23‑9‑1976 on 16‑11.‑1976 and had thus brought said sum of money on the books of the branch on 16‑11‑1976. As a consequence of the same, I am of the further view that the sum of Rs.1,50,000 shown by the accused on the sheet relating to 16‑11‑1976 of Cash Receipt and Payment Book of Habib Bank Ltd., Kaller Syedan Branch as Pak Account, was the sum which had been received by accused Sikandar Hayat from Habib Bank Ltd. G.T. Road Branch Gujarkhan on 23‑9‑1976 on the basis of the debit cash voucher dated 23‑9‑1976, Exh. P.15 and IBDA dated 23‑9‑1976 Exh. P.16 but which had been brought on the books of the account of Kaller Syedan Branch on 16‑11‑1976 as shown by lower portion of the said IBDA which had been responded on 16‑11‑1976. The said sum of Rs.1,50,000 was clearly therefore, not out of the said sum of Rs.2,00,000 received by accused from Abdul Waheed P.W. 5 in his own branch on 15‑11‑1976 on the basis of documents P.11 to 14 which related to a totally separate and distinct transaction. As regards the remaining sum of Rs.50,000 the plea of the accused in his statement under section 342 of the Criminal Procedure Code was that he had deposited the remaining sum of Rs.50,000 in the account of Habib Bank Ltd. Kaller Syedan Branch on 16‑11‑1976 and in order to prove that he had produced ledger account of the branch in National Bank of Pakistan, Kaller Syedan Exh. D.W 1/11 which shows a cash credit entry dated 16‑11‑1976 of a sum of Rs.50,000 in the account of Habib Bank Ltd. Kaller Syedan Branch maintained in National Bank of Pakistan Kaller Syedan. P.W.9 Muhammad Khan S.I./I.O. in this case had in cross‑examination stated that the accused did not take the plea before him that a sum of Rs.50,000 of Habib Bank Ltd. was deposited by him in the account of National Bank of Pakistan. The plea taken therefore, is clearly an afterthought. There is another circumstance to negate the same and that is that in the dash Receipt and Payment Book relating to 16‑11‑1976 D.W.1/3, the said sum of Rs:50,000 is not shown on the debit side to have been sent to National Bank of Pakistan. Furthermore, in P.W.1/8, statement of Affairs, dated 16‑11‑1976‑ of Kaller Syedan Branch, the deposit of said sum of Rs.50,000 in the account of the branch in the National Bank of Pakistan has not been shown because entry on the assets side against the word `balance' with the National Bank of Pakistan' is a' paltry sum of Rs.312 only. It appears, therefore, that accused Sikandar Hayat had managed to get made in the account of the branch in National Bank of Pakistan a false and fictitious entry of Rs.50,

000. Assuming, however, that in fact a sum of Rs.50,000 had been deposited by him there, in document Exh. D.W.1/11, the statement of account of the branch in National Bank of Pakistan, the said sum of Rs.50,000 which was shown as deposited on 16‑11‑1976 was again shown to have been withdrawn on 19‑11‑1976 by means of a cheque. The non‑entry in Exh. D.W.1/7, statement of Affairs dated 16‑11‑1976 of said sum of Rs.50,000 as deposit with National Bank of Pakistan also gives rise to the impression that the accused arranged to deposit said sum of Rs.50,000 for two three days only and had withdrawn the same thereafter as it was not meant by him to be a permanent deposit. Accused had not shown it in the Statement of Affairs for the reason that ‑it was not meant to be a permanent deposit. If he had included it in the .Statement of Affairs of 16‑11‑1976, Zonal Office and Head Office of the Bank would have come to know of the same and would not have allowed him to withdraw it and misappropriate it. In any way the accused could not have relied upon the said entry unless he had proved that the said sum of Rs.50,000 was out of the sum of Rs.2,00,000 found to have been received by them in the branch from P.W.5 Abdul Waheed on 15‑11‑1976 and that the said sum of Rs.50,000 had not been received in the branch from any other source. The accused have not produced any evidence to prove that the said sum of Rs.50,000 was decidedly part of the said sum of Rs.2,00,

000. They also did not produce any defence evidence to exclude the possibility of said sum of Rs.50,000 having been received from any other source in the branch. in the normal course of banking business. In these circumstances the said deposit entry of Rs.50,000 'in the account of Habib Bank Ltd. Kaller Syedan Branch maintained in the National Bank of Pakistan cannot be said to be in. respect of remaining sum of Rs.50,000 out of total sum of rupees two lacs received by the accused in his branch from P.W.5. , 1t has thus been proved that credit entry of Rs.1,50,000 in Cash Receipt and Payment Book on 16‑11‑1976 was not out of the sum of Rs.2,00,000 received by the two accused as per receipt Exh. P.14. It has also been established that the sum of Rs.50,000 shown to lave been deposited in the. account of the branch m National Bank of Pakistan cannot be said to form part of the said sum of Rs.2,00,000 proved to have been received by the two accused as per receipt P.14. Thus, the defence plea of the accused stands completely negated. In consequence the said second allegation in respect of the two accused having received the sum of Rs.2,00,000 from P.WS Abdul Waheed and not accounted for the said sum in the books of, account of Habib Bank Ltd. Kaller Syedan Branch stands fully established on the record. The said sum of Rs.2,00,000 had been received by both the accused as shown by receipt Exh. P.14 which has been proved to bear signatures of both of them. They have not accounted for the said sum. Accused Sikandar Hayat had in his statement under section 342, Cr.P.C. given an explanation of his failure to account for the said sum which has been found to be false. Though accused Muhammad Shafiq who denied in his statement under section 342, Cr.P.C. the misappropriation of said amount alongwith accused Sikandar Hayat gave no explanation for his failure to account for the said sum of Rs.2,00,000, his counsel made a statement on 19‑2‑1985 to the effect that he would rely upon the defence evidence produced by accused Sikandar Hayat and thus adopted on behalf of accused Muhammad Shafiq the said defence evidence and the said defence plea of accused Sikandar Hayat which has been found to be false. In these circumstances, it is clear that the accused misappropriated the said sum of Rs.2,00,000 in collusion with each other.

10. It is true that there is no evidence of actual conversion by the two accused of the said sum of Rs.2,00,000 to their own use in this case but it is not necessary for the prosecution to prove in the facts and circumstances of the present case that the accused had actually converted the said sum to their own use, because accused had taken a defence plea which has been found to be false and a clear inference can be drawn therefrom that they had misappropriated with dishonest intention the said amount. In the case of Jai Krishnadas Manohardas Dasai and another v. The State of Bombay A I R 1960 S C 889 the Supreme Court of India made the following observation at page 891, para. 4: "Direct evidence to establish misappropriation of the cloth over which the appellants had dominion is undoubtedly lacking, but to establish a charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. The principle ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved, may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion. Conviction of a person for the offence of criminal breach of trust may not in all cases be founded merely on his failure to account for the property entrusted to him or over which he has dominion, even when a duty to account is imposed upon him, but where he is unable to account for renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intention may readily be made." In Khalil v. The State P L D 1963 Dacca 983 an inference of misappropriation with dishonest intention was drawn on the ground of accused having put up explanation of his failure to return to its real owner, the Court entrusted to him which had been found to be false. On account of the two accused having given an explanation their failure to account for the said sum of Rs.2 lass which has been found to be False, inference of misappropriation by them with dishonest intention of said sum of Rs.2 lacs stands clearly drawn. The said two accused, Sikandar Hayat and Muhammad Shafiq, are, therefore, proved to have committed offence of criminal breach of trust of said sum of Rs.2 lacs in their capacity as Manager and 2nd officer of Habib Bank Ltd. Kaller Syedan Bench. Raja Muhammad Sabir, learned counsel for accused Muhammad Shafiq contended that though accused Muhammad Shafiq, as Second Officer of the branch had alongwith accused Sikandar Hayat appended his signature on Receipt P.14 acknowledging the receipt of the said sum of Rs.2 lacs in the branch, the subsequent retention/disbursement of the said sum was the exclusive function of Sikandar Hayat who was the Manager of the branch and was the sole Judge with regard to its retention in the branch or to its disbursement or to maintenance of its account and accused Muhammad Shafiq who in his capacity as Second Officer was his subordinate could not be held criminally liable if the said sum did not stand accounted for in the books of the branch. I am afraid, 1 cannot accept the said contention. The said sum of Rs.2 lacs has been proved to have been received by both the accused on behalf of the bank and till the time it was accounted for in the books of the branch, it was deemed to be with them jointly and severally. The prosecution has proved that the said sum went to both of them. Therefore, till the said sum was accounted for in the books of the branch both the accused including Muhammad Shafiq, Second Officer, were liable to account for the said sum. Accused Muhammad Shafiq was a Second Officer in the branch. It is well‑known that officers are independent holders of power of attorney of the Bank. The designations named as Manager, Second Officer and Third Officer etc. are given for the purpose of management and administration of the branch; otherwise powers of all of them are the same and they hold such powers independent of each other. Accused Muhammad Shafiq, Second Officer in the said branch as holder of power of attorney of the bank had the same power as accused Sikandar Hayat had. Seen in that light accused Muhammad Shafiq was not a subordinate of Sikandar Hayat, Manager, and was equal to and at par with accused Sikandar Hayat and there was no question of his subordination to Sikandar Hayat accused for the purpose of the transaction in question. In branches which have two officers holding power of attorney of the bank, one such officer is supposed to exercise a check on the other so that if one tries to commit a fraud on the bank, the other may detect it and protect the bank from the same. Accused Muhammad Shafiq had been given the power of attorney not for the fun of it and it was his responsibility to protect the bank against any fraud at least in respect of a transaction which had come to his notice. The receipt of said sum of Rs.2 lacs in the branch was not only in his notice but having appended his signature to the receipt of the same as a second signatory, he was an actual party to the said transaction. Accordingly he was equally responsible to see that the said sum was accounted for in the books of the bank. His duty as Second Officer was not merely to receive the said amount but also to see that the cash received had come on the books of the branch. This responsibility of his extended up to the time till the said sum of Rs.2 lacs had been accounted for in the books of the branch. After having received the said sum, accused Muhammad Shafiq Second Officer was duty bound to see that the said sum was brought on the bank record and included in the daily cash of the branch. If the said sum had been received at 1 p.m. and Sohaill Anwar cashier was not than present in the branch as stated by P.W.5 Abdul Waheed, it was all the more his duty to see that the said sum was entered in the books of account of the branch as credit in Pak Account on that day and put under safe custody as cash of the branch. This position had clearly been taken both in the F.I.R. and in evidence during the trial. In the original complaint Exh. P.A. it was clearly alleged that after having received the said sum of Rs.2 lac s the two accused, Sikandar Hayat and Muhammad Shafiq, had not shown the receipt of said sum in the books of account of the branch. P.W.4 Shaukat Iqbal had deposed in the Court that accused Muhammad Shafiq alongwith accused Sikandar Hayat) had not shown the receipt of the said sum of Rs.2 lacs in t he record of Habib Bank Ltd., Kaller Sayedan Branch. P.W.5 Abdul Waheed stated that Sohail Anwar, cashier, was not present at Kaller Syedan Branch when he handed over the said sum of Rs.2 lacs to accused Sikandar Hayat (and when receipt P.14 signed by both the accused was issued) and after having. received the said cash the Second Officer Raja Muhammad Shafiq should have entered the same in the Cashier's Receiving Book under the supervision of the. Manager. These portions of evidence of these P.Ws. were not challenged in cross-examination. The said responsibility of accused Muhammad Shafiq thus stood fully proved on the record in the statements of the P.Ws. Apart from that the accused, Muhammad Shafiq, adopted defence plea of accused Sikandar Hayat in regard to disbursement of said sum of Rs.2 lacs. That plea was found to be false, It is admittedly false in relation to accused Muhammad Shafiq. False explanation, of his failure to account for the said sum makes accused Muhammad Shafiq equally guilty. The prosecution had proved the entrustment of said sum to him and accused Sikandar Hayat. Onus now was on Muhammad Shafiq to show that he had fulfilled his said responsibility. He, however, produced no evidence showing that he had taken any measure to put the said sum in safe custody or to have the said sum brought on Bank record. He had on the other hand adopted the plea of accused Sikandar Hayat which has been fund to be false. The only inference which can be drawn from the said circumstances is that he was in collusion with accused Sikandar Hayat and had alongwith him misappropriated the said sum of Rs.2 lacs.

11. No recovery of any sum was made by the Investigating Officer from accused Sikandar Hayat. The recovery of the bus partly owned by accused Muhammad Shafiq was also of little consequence, as, the said bus had according to the prosecution evidence itself been purchased by accused Muhammad Shafiq before the transaction of receipt of said sum of Rs.2 lacs in the branch. However, as discussed above, there is sufficient prosecution evidence otherwise on record proving that the two accused had misappropriated the said sum of Rs.2 lacs. Accordingly accused Sikandar Hayat and Muhammad Shafiq have been proved to have misappropriated the said sum of Rs.2 lacs in their capacity as Manager and Second Officer, respectively, of, Habib Bank Lid., Kaller Syedan Branch. THIRD ALLEGATION I now turn to the third allegation given above. The police stated in its report under section 173, Cr.P.C. that during investigation accused Sikandar Hayat had got a blank voucher signed from Manager, Habib Bank Ltd., Hayal Pindora Branch and sent on its basis Rs.320 to Hayal Pindora Branch but showed in the papers of the branch despatch of a sum of Rs.1,00,320 and after making ` credit entries of sums for a total amount of Rs.1,00,000 in the accounts of Syed Mujtaba Hussain Shah tobacco dealer and Rahman Brothers, had later himself withdrawn the said sum totalling Rs.1,00,000 (from their accounts). The said conclusion arrived at by the police was quite different from the one reached by P.W.4 Shaukat 1qhal, Manager, submitted by him in the supplementary complaint, Exh. P.A./2 as narrated above under allegation No.3. There was, however, no voucher for a sum of Rs.320 on the challan file to sustain that view of Muhammad Khan, S.I. who prepared the challan dated 30‑6‑1978. Even during the trial, the said Muhammad Khan, Sub‑Inspector as P.W.9 could not in his Court statement substantiate the said conclusion of his. He deposed that the averment in the report under section 173, Cr.P.C. dated 30‑6‑1978 that the Manager, Habib Bank Ltd., Hayal Pindora Branch was made to sign a blank voucher for a sum of Rs.320 but despatch of Rs.1,00,320 was shown was not the case of prosecution but was mentioned so in complainant's application. However, the application of the complainant is on the record as Exh.PA./2 which does not state so. There is no other application of the complainant on the challan file showing so. There was, therefore, no justification for the police to have stated in the report under section 173, Cr.P.C. that accused got signed a black voucher from Manager, Hayal Pindora Branch. P.W. 9 Muhammad Khan, S.I. further sated in cross‑examination that he had not taken the said voucher into possession nor was it shown to him and he had not investigated the case on that point. It is noteabe in this connection that since it was not the case of the complainant in his complaint Exh.P.A./2 that a sum of Rs.320 had been sent to Hayal Pindora Branch on the basis of any voucher, there was no question of complainant or any other member of staff of Habib Bank Ltd., Kaller Syedan Branch showing to the said police officer any such voucher. On this ground and addedly on account of admission of said police officer that he had not investigated the case on that point, it is clear that he had no reason to say in the report under section 173, Cr.P.C. that accused Sikandar Hayat had sent a sum of Rs.320 to Hayal Pindora Branch. It is well‑established that report of the police is not binding on the Court and in any way, if any importance is to he attached to it, it has to be based upon evidence, documentary or oral collected by him in the case. The said police officer was not able to show any such evidence for the said conclusion arrived at by him and as a matter of fact he vas constrained to concede that he had not investigated the case on that point. It appears, therefore, that the said police officer had tried to confuse the issue and to stultify the case of prosecution by introducing in his report a matter which had on existence in fact. His further statement in the report under section 173, Cr.P.C. that the accused had later himself withdrawn sums totalling Rs.1,00,000 from accounts of account holders Syed Mujtaba Hussain Shah and Rahman Brothers which too is wholly inconsistent with the stand of the complainant in the supplementary complaint Exh. P.A./2 (to the effect that the said sum of Rs.1,00,000 was withdrawn by the said account holders from their said accounts, through different cheques) is also not supported by any evidence, documentary or oral on the file. Thus, the said two conclusions of the police having been found to be unjustified, the case of prosecution in relation to this allegation shall have to be viewed in the light of facts originally alleged in the complaint Exh.P.A./2 as recounted above in allegation No.

3. There was another conclusion arrived at by the police in its said report under section 173, Cr.P.C. and that was that during the investigation, no evidence fit for challenging Syed Mujtaba Hussain Shah and Rahman Brothers had been found and they had been found to be wholly innocent. This conclusion of police has continued to hold the field, as Syed Mujtaba Hussain Shah or Rehman Brothers were never summoned in this case as accused persons in the predecessor Court of the Special Judge (Central) in which the trial had practically concluded. The said conclusion of the police had reacted on important aspects of this allegation. It was calculated to show that police had found that the said three sums had in fact been deposited by Syed Mujtaba Hussain Shah and Rahman Brothers in the branch on 3‑7‑1977. It also negated the implied allegation of the complainant that accused Sikandar Hayat had received back the said sum of Rs.1,00,000 in part or whole from Syed Mujtaba Hussain Shah and Rahman Brothers. It was, however, implicit in the said police report under section 173, Cr.P.C. that a sum of Rs.1,00,000 had not actually been sent to Haya1 Pandora Branch. Furthermore, towards the end of the report Muhammad Khan, S.I. had said that according to his investigation, the two accused had obtained a sum of Rs.3,00,000 (rupees two lac relating to allegation No. 2 and rupees one lac relating to the present allegation) fraudulently from the branch and had misappropriated the same. Seeing this last conclusion of police in this back ground, the allegation of which the accused had as per challan notice was that Syed Mujtaba Hussain Shah and Rahman Brothers had deposited on 3‑7‑1977 three sums totalling Rs.1,00,000 and accused Sikandar Hayat had shown in the record of the branch the remission of said sum of Rs. 1 lac to Hayal Pandora Branch but had not actually sent the same there and had misappropriated the same. I have gone; through evidence produced by the prosecution in connection with this allegation. The prosecution had during trial produced P.W.4 Shaukat I bal. P.W.7 Sohail Anwar and P.W.9 Muhammad Khan, S.I. and P.W , 10 Ch. Muhammad Yousuf to prove this allegation. P.W.4 Shaukat Iqbal produced deposit vouchers Exhs.P.1 and P.2 respectively for sums of Rs.13,557 and Rs.78,354 showing deposit of said sum in Account No. CD‑9 of Rahman Brothers on 3‑7‑1977 and deposit voucher Exh.P.3 for a sum of Rs.8,089 showing deposit of said sum in Account No.CD‑15 of Syed Mujtaba Hussain Shah. He proved these vouchers to be in the hand of accused Sikandar Hayat. P.W. 8 Sohail Anwar also stated that deposit vouchers P.1 to P.3 were in the hand of accused Sikandar Hayat and were signed by him. However, as conceded by the said witness in cross‑examination the said deposit vouchers in a village branch like Kaller Sayedan Branch could be filled in by Sikandar Hayat Manager and the mere fact that he filled in those vouchers constituted no violation of any banking rules. P.W.4 Muhammad Iqbal also produced Cashier's Payment and Receipt Book as P.7, relevant page of which showed that originally a sum of Rs.320 only had been shown to have been received in the branch as total deposit but these entries had been cancelled by accused Sikandar Hayat and additional credit entries of Rs.8,089, Rs.13,557 and Rs.78,354 had been made by him alongwith two entries of Rs.100, and Rs.220 which had been repeated and a consequent entry of total of receipts at Rs.1,00,

320. There was also an additional debit entry of Rs. one lac on the debit side of the. said book. P.W.7 Sohail Anwar stated that original entries of receipt in the branch of a total sum of Rs.320 were in his hand and later ones including the debit entry of Rs.1,00,000 were in the hand of accused Sikandar Hayat. He, however, stated in cross‑examination that he had left the bank at about 2 p.m. on 3‑7‑1.977. P.W.10, Muhammad Yousaf, accepted that the Manager can accept late receipt of deposits. If, therefore, any deposits were received by accused Sikandar Hayat, Manager, thereafter, as appears to be the case, there was no impediment in the way of his making entries of the said receipts in the said book right on that day. The said cash book had already been closed by cashier Sohail Anwar. It was, therefore, necessary to cancel entries and make additional entries. The addition of the said credit entries on the said register did not by itself prove that the said entries were fake. The absence from cash position slip P.6 of credit and debit entries of said sums of Rs.1 lac, absence from supplementary sheet P.8 of debit entry of Rs.1 lac and absence of description of number of said three credit vouchers and one debit voucher of Rupees one lac from voucher‑cover envelop EXh.P.9 are explainable on the. ground that these documents had originally been made on 3‑7‑1977 after 1 p.m. when Cash Receipt and Payment Book was closed before Sohail Anwar cashier left at 2 p.m. and the accused missed amending them when he made additional entries in the register Exh.P.7 after Z p.m. P.W.4, Shaukat Iqbal, also produced cheque P.7 showing withdrawal of a sum of Rs.58,516.43 from Account No.CD‑9 on 10‑7‑1977 and cheque P.5 showing withdrawal of a sum of Rs.64,100 on 11‑7‑1977 from the same account. P.W. 7, Sohail Anwar, deposed that cheques P.4 and P.5 were filled in by Sikandar Hayat accused but as admitted by the said witness in cross‑examination, cheques could be filled in by Sikandar Hayat, Manager or by any other officer of the Bank. He also stated that signatures on the said cheques were of the relevant party and the said documents were correctly signed by the said party. It is clear, therefore, that the sums of Rs.58,516.43 and Rs.64,100 had been withdrawn by Rahman Brothers respectively on 10‑7‑1977 and 11‑7‑1977 through cheques Exhs. P.4 and P.5. The mere fact that the two accused had passed these cheques did not show commission of any criminal offence by them. 1n the supplementary complaint, Exh. PA/2 it was at first stated that Syed Mujtaba Hussain Shah and Rahman Brothers were best friends of the two accused and after accused Sikandar Hayat had made fake credit entries of said sum totalling Rs.1,00,000 in their accounts, the said account holders had withdrawn the said sum of Rs.1,00,000 by virtue of different cheques and it was later stated in the said complaint that the two accused had alongwith Syed Mujtaba Hussain Shah and Rahman Brothers in collusion with each other dishonestly and fraudulently misappropriated the said sum of Rs.1,00,

000. Reading the two together, the allegation in the complaint appears to be that the said two account holders had shared the said sum of Rs.1,00,000 which they had withdrawn (without the said sum having first been deposited by them) with the two accused Sikandar Hayat and Raja Muhammad Shafiq. No evidence has, however, been adduced at the trial to the effect that Rahman Brothers who had withdrawn the said sums which in their total exceeded one lac had paid out of that, the said sum of Rs.1,00,000 in part or whole to two accused. In the face of these findings the said story related by P.W.4 in supplementary complaint Exh.PA./2 in regard to this allegation does not appear to be correct on factual plane. The factum of Abdur Rehmhn of Rahman Brothers having not been challaned also shows that no evidence could be collected by the police showing that the sum of rupees one lac withdrawn by Rahman Brothers from their account had been shared by them with the two accused. In this connection it is noteable that the complainant Shaukat Iqbal P.W.4 was not an eye‑witness to the occurrence nor Muhammad Yousaf P.W.10 had seen the occurrence with his own eyes because one was succeeding Manager and the other was the. auditor who had only checked accounts of the branch as ‑;hey stood prepared in the period during which Sikandar Hayat was Manager of the branch. In making prosecution story as it is available in the supplementary complaint Exh.PA./2, namely, of accused Sikandar Hayat having made fictitious credit entries of a total sum of Rs.1,00,000 in the accounts of said two‑accounts holders and later allowed them to withdraw the said sum on the basis of different cheques, the complainant who appears to have been assisted by Muhammad Yousaf had only drawn inferences from the documents found by him in the record and therefore, the facts construed by P.W.4 from said documents cannot be considered to be sancrosanct.

12. In my opinion in the context of the above findings the correct story which could be construed on the basis of the documents which had been found by the complainant Shaukat Iqbal in the branch was that the said sums had been deposited in the branch by Syed Mujtaba Hussain Shah and Rahman Brothers after 2 p.m. on 3‑7‑19177 by virtue of deposit vouchers Exhs. P.1, P.2 and P.3 and accused Sikandar Hayat had shown in the record of the branch the remission/despatch o f the sum of Rs.1,00,000 to Hayal Pindora Branch on the same day on the basis of a debit voucher but had not actually sent the said sum to Hayal Pindora Branch and had pocketed the same and the said voucher was a fictitious document without its being supported by any actual remission/despatch of the said sum to 1.‑Iayal Pindora Branch. This is the story which stands made, now that we come 1,o know that the police had found Rahman Brothers and Syed Mujtaba Hussain Shah to be innocent, and had not cited them as accused persons m this case. This story is sustainable also on the ground that P.W.9 Muhammad Khan. Inspector, had deposed in his statement that Rahman Brothers and Syed Mujtaba Hussain Shah account holders had generally stated before him that the embezzlement teas made by accused Sikandar Hayat and Raja Muhammad Shafiq. At this stage, I may state that it is permissible for this Court to construct its own ‑story on the basis of facts and circumstances of the case. In Syed Ali Bepari y. Nrbaran Mollah and others P L D 1962 S C 502 it was held that the Court must not be deterred from incompleteness of the tale from drawing inferences that properly flow from evidence arid circumstances. Again in Abdul T Majid v. Superintendent and Rememberancer of Legal Affairs P L D 1964 S C 422 it was held that in considering a crime of violence a Court is well‑advised to examine the circumstance of the act and its result for the purpose of gauging natural probabilities. Again in State v. Manzoor Ahmad P L D 1966 S C 664 it was held as below:‑‑ "Even in a case of this kind where there is no direct evidence to show in what precise manner the victim came to be killed, the Court has yet to discharge the duty of determining the same. It is not sufficient to say that since there is no direct evidence to connect any one with the felonious act the guilt cannot be fixed. It is precisely in such cases that I conceive it to be duty of the Court to examine the probabilities in the light of the indirect evidence of injuries on the accused, the nature and condition of the place where the incident took place, the articles found there and the motive for the crime and other surrounding circumstances proved. The principle, laid down in these cases of violence, apply with equal force to cases of other crimes like the present case. Adoption by one of the said story is fully compatible with the said principles. I may also state in this regard that Sikandar Hayat is not likely to be prejudiced by adoption by me of the above story in relation to the present allegation, as the original story as related in the supplementary complaint Exh. PA/2 stood varied as shown above on account of the above conclusion of the police and the said accused grad notice of the same. Apart from that, there is the circumstance that the charge against the accused had been made for rnisapprltpr6tion by the accused of total sum of Rs.3,00,000 out of which Rs.2,00,000 related to allegation No. 2 and Rs.1,00,000 to the present allegation and the manner of making the misappropriation of said sum of Rupees one lac had not been given in the charge. I may also point out in that connection that accused Sikandar Hayat had in his statement under section _342, Cr.P.C. conceded receipt by him on 3‑7‑1977 of the said three sums totalling Rs.1 lac from Syed Mujtaba Hussain Shah and Rahman Brothers as a basic fact, There cannot, therefore, be any objection to my considering the above version of the incident as the correct version relating to allegation No.3. In consequence adopt the said version of allegation No.3 for the purpose of assessing the guilt or innocence of two accused in relation to this allegation. The position now is that it has beer, found that accused Sikandar Hayat had on the basis of deposit vouchers P.1 to P.3 received the said three sums totalling Rs. one lac. It is, therefore, now to be scrutinized whether the accused had sent the said sum of Rs.1.00,000 to Hayal Pindora Branch as per IBDA No. 15;31)1) as shown by him in Cash Payment Book Exh. P.'7 and Pak Account Extract Exh. P.10 and h;1d thus accounted for the said sum or he had not sent the said amount an11 had misappropriated the same. According to P.W.4 Shaukat Iqbal when a sum of money, on requisition by another branch, is sent to that branch, then a debit voucher is invariably prepared in the feeding branch and on the back of the said voucher, the signature of officer taking the said sum to the other branch and signature of driver of vehicle in which said sum is to be taken to tile other branch are taken :,n tae back of the said debit voucher before; the said officer and th1, driver leave for the other branch. The said debit voucher remains in the branch while an original Inter Branch Debit Advice (containing responding portion) and a carbon copy of the same (without regularly portion) are sent alongwith cash to receiving branch which responds the original IBDA and sends it back to the feeding branch to show that it had accounted for the said sum in the books of the said receiving branch and retains the carbon copy as its own record. The Manager/Officer o10 the receiving branch also issues a receipt immediately on letter pad of the branch acknowledging the receipt of the sum in the receiving branch and hands over the same to the Manager/officer of the feeding branch for being taken to and retained in the record of the feeding branch. It is, however, in the statement of P.W.4 Shaukat Iqbal who succeeded the accused as Manager that no voucher for the said sum is available in Kaller Syedan Branch. Voucher is a general word used in the banks practically for all such documents of the bank which have already done their work and are now kept or are to be kept as record in the branch. A cheque after it has been encashed, an original IBDA after having been responded a demand draft after money on it is paid etc. become vouchers. When, therefore, P.W.4 Shaukat Iqbal said that there was no voucher dated 3‑7‑1977, for the said sum of Rs.1,W,Oti0 in the branch, he meant to say that there was neither debit cash voucher nor IBDA in the branch for the said sum nor even the receipt of the said sum. was available in the branch. It is true that in stating that accused Sikandar Hayat had passed a forged (actually fictitious) cash debit voucher for Rs.l lac in favour of Hayal Pindora Branch, P.W.4 Shaukat Iqbal had accepted that a cash debit voucher had been prepared in the branch but there is no IBD:1 either the original tine after having been responded or carbon copy of the sank available in Kal(cr Svcdan Branch. Description in Exh.P.10, Pak Account Extract, that he had sent a sum of Rs.1,00,000 to Hayal Pindora Branch on 3‑7‑1977 by virtue of IBDA No. 18399 is only an admission by Sikandar Hayat in his own favour and does not constitute in actual proof of his having paid the said sum of Rs.1,00,000 Go Hayal Pindora Branch. And at any rate, vital document in proof of the fact that sum of Rs.1,00,000 had been received in Hayal Pindora Branch was a receipt duly executed by Manager/Officer of the Hayal Pindora Branch immediately on receipt of the said sum by him in his branch. However; as stated by the P.W. 4 Shaukat lqbal, even such a receipt too was not available in Kaller Syedan Branch, and thus the said sum of Rs.1,00,000 is proved in the prosecution evidence to have not been remitted to (IT' received in Hayal Pindora Branch. A suggestion was made to P.W.4 Shaukat lqbal that voucher (actually the IBDA) mentioned in P.10 (Pak Account Extract) was available at the time of investigation but he had destroyed it subsequently. This suggestion was denied by the said witness. There is no evidence on record of any ill‑will of this witness towards the accused, his old compatriot. Not even a suggestion of any enmity of the said witnesses towards the accused Sikandar Hayat had been made. There was, therefore, no reason for the said witness to have destroyed the said original IBDA which would have proved the receipt of the said sum of Rs.1,00,000 by Hayal Pindora Branch. As already stated this witness had produced in the Court even the documents which went in favour of the accused. As a matter of fact the accused Sikandar Hayat appears to have complete confidence in the impartiality of the said witness as he had produced the said prosecution witness in his defence as D.W.1 also. It cannot, therefore, be said that the said witness had destroyed or even allowed anyone else to destroy the original IBDA or even the debit voucher or receipt from the Kaller Syedan Branch. The result is that due to non availability of original IBDA in Kaller Sycdan Branch, duly responded by Hayal Pindora Branch or even carbon copy thereof retained as office copy in Kaller Syedan Branch and of receipt of said sum of rupees one lac, the inference to be drawn was that .the said sum of Rs.1,00,000 had not been sent to Hayal Pindora Branch. Apart from that, PW:10 Muhammad Youstrf stated that he had checked the record of Hayal Pindora Branch but had found that entry of receipt of said sum was not available in the record of that branch. He also stated that at the time of inquiry, he had asked Tasaddaq Paracha (the Manager of Hayal Pindora Branch) about the receipt. of sum of Rs.1,00,000 but he (Tasaddaq Paracha) had denied the receipt of the same. The said portions of the statement of the said witness fully prove that the said sum of Rs.1,00,000 had not been received in Hayal Pindora Branch. In the result it stands conclusively established in the prosecution evidence that the said sum of Rs.1,00,000 had not been remitted to or received in Kaller Syedan Branch. The explanatory statement of accused Sikandar Hayat under section 342, Cr.P.C. When the above incriminating evidence was put to him has yet to be considered. He had stated in his said statement that he had received the said three sums totalling Rs.1,00,000 on 3‑7‑1977, after the close of business hours and at that time, Manager of Hayal Pindora Branch reached his branch and asked him to pay to him Rs.1,00,000 upon which he prepared vouchers and paid the said amount to Tasaddaq Paracha. Now, therefore, the crucial question to be resolved as regards this allegation is whether a sum of Rs.1,00,000 had actually been paid to Tasaddaq Hussain Paracha, the Manager of Hayal Pindora Branch after the close of business on 3‑7‑1977 in Kaller Syedan Branch or whether the, said sum had been pockted by accused Sikandar Hayat himself and he had made only a fictitious (debit voucher and made fictitious debit entry of the said stem in Cash Receipt, and Payment Book Exh.P.7 of Kaller Syedan Branch and had also made a fictitious entry in Pak Account Extract Exh.P.10 of his having is sued IBDAN ). 18399 in respect of payment of said sum of Rs. one lac to Hiyal Pindora Branch. The accused does not appear to have laid the foundation of his said defence plea during the recording of prosecution evidence. He did not specifically suggest either to P.W.4 Shaukat Iqbal or P.W.8 Sohail Anwar or any other witness that. Tasaddaq Paracha had come on 3‑7‑1977 after the close of business in Kaller Syedan Branch and obtained from him said sum of Rs.1,00,

000. P.W. 8 Sohail Anwar had stated in cross‑examination that on 4‑7‑1.971 after seeing the said credit entries dated 3‑7‑1977 in Cash Receipt and Payment Book 7.7, he had enquired from Sikandar Hayat about the said entries and Sikandar Hayat had told him that the said cash of Rs.1,00,000 was received but was se.nt to Hayal Pindora Branch. The said witness was not further cross‑examined by the accused's counsel on the question that Sikandar Hayat had not told .him that the said cash had been sent to Hayal Pindora Branch and had in stead told him that the said cash had been paid at late tours on 3‑7‑1977 to Tasaddaq Paracha, Manager of Hayal Pindora Branch who had come on that day to Kaller Syedan Branch to get the same. As a matter of fact, a positive suggestion was made to P.W.10 Muhammad Yousuf that according to Exh.P.10, Pak Aca )unt Extract, amount of Rs.1,00,000 was sent to Hayal Pindora Branch. It is thus clear that the case of the accused at the time of recording of statements of prosecution witnesses was that the said sum of Rs.1,00,000 had been sent to Hayal Pindora Branch and not that Tasaddaq Paracha had come to Kaller Syed;an Branch on 3‑7‑1977 and on his demand the said sum was given to him in Kaller Syedan Branch. It was held in Emperor v. Nge Nyun A I R 1935 Rang. 393 that when defence fails to cross‑examine the prosecution witnesses concerning the version of facts which the defence alleged, it is usually safe to conclude that the defence is an after thought and in fact had not been concocted at the time when the prosecution witnesses were examined. It is clear, therefore, that, plea of accused Sikandar Hayat in his statement under section 342, Cr.P.C. that he had paid on 3 7‑1977 the said sum of Rs.1,00,000 to Tasaddaq Paracha, h4anager of Hayai Pindora Branch when he had on that day come to Kaller Sydan Branch is an after thought and is, therefore, not liable to be believed. Apart from that coming of Tasaddaq Paracha, Manager of Hayal Pindora Branch to Kaller Syedan Branch on 3‑7‑1977 appears to be wholly improbable as there is no cash demand letter on record asking for a sum of Rs.1,00,000 from Kaller Syedan Branch on the record of IKaller Syedan Branch. None was produced by P.W.4 Shaukat Iqbal, the succeeding Manager who otherwise produced even the documents favouring the as.cused in this case for whatever their worth was. The accused Sikandar Haya,t did not summon or produce it in his defence. Tasaddaq Paracha could not have come to Kaller Syedan Branch all of a sudden to ask for a sum of Rs.1,00,

000. That much sum of money is not always available in a rural branch like Kaller Syedan Branch in excess of its own needs and there must be a prior requisition for the said amount so that that much sum is collected in advance and made available for payment to the representative of the other branch on the required date. Over and above that, the said three sums totalling Rs.1,00,000 had, as shown by statements of P.Ws. Sohail Anwar, cashier, been received after 2 p.m. when he had left the branch. At that hour the Manager of another branch cannot think of coming to the said branch to get cash as he knows that books of the branch are already closed and no cash can be given to him at that time. The accused did not produce any member of staff of Kaller Syedan Branch or any other public witness in defence to prove that Tasaddaq Paracha had come to Kaller Syedan Branch late in the day on 3‑7‑1977 and obtained the said sum of Rs.1,00,000 from accused Sikandar Hayat. It is true that in accordance with procedure of the Bank detailed in statement of P.W. 4 Shaukat Iqbal, Sikandar Hayat could have obtained signature of Tasaddaq Paracha on the back of debit voucher which according to said P.W. had been prepared by Sikandar Hayat (fictitiously), but accused has neither stated in his statement under section 342, Cr.P.C. nor had given any suggestion to any P.W. in cross‑examination to the effect that the said debit voucher contained on its reverse signature of Tasaddaq Paracha, Manager, Hayal Pindora Branch in token of his acknowledgement that he had received the said sum of Rs.1,00,

000. The accused Sikandar Hayat cannot, therefore, take advantage of the absence of the said debit voucher from the branch. In any way in Kaller Syedan Branch, there is no original Inter Branch Debit Advice duly responded bearing the signature of Tasaddaq Paracha in token of his acknowledgement that he had brought the said sum on the record of Hayal Pindora Branch or even carbon copy of said IBDA. The accused has not stated that original IBDA was received by him from Hayal Pindora Branch and was available in the branch on 13‑7‑1977 when he handed over charge to P.W.4 Shaukat Iqbal succeeding Manager nor put up that case in cross‑examination of P.W.7. Therefore, if the said sum had been paid to Tasaddaq Paracha as claimed 4by the accused on 3‑7‑1977, and the original IBDA. which must have been sent, had not been returned till 13‑7‑1977, the date of his handing over the charge, he should have informed P.W.4 Shaukat Iqbal, succeeding Manager of the same and should have produced before him the carbon copy of IBDA from record of the branch and called upon P.W.4 Shaukat Iqbal to obtained the original IBDA duly responded from Hayal Pindora Branch. That does not appear to have been done as accused never stated so in his statement under section 342, Cr.P.C. nor any suggestion to that effect was given by him to P.W.4 Shaukat Iqbal. This circumstance negates the defence plea of accused having paid the said sum of Rs.1,00,000 to Tasaddaq Paracha. Accused Sikandar Hayat had, however, in his statement under section 342, Cr.P.C. further stated that the said amount of Rs.1,00,000 obtained by Tasaddaq Paracha from him on 3‑7‑1977 had not been deposited by Tasaddaq Paracha m the Hayal Pindora Branch and had been embezzled by him. This plea of accused Sikandar Hayat stood negated by categorical denial by P.W.10 Muhammad Yousuf that Tasaddaq Paracha had embezzled the said amount and by statement of the said witness to the effect that at the time of inquiry he had asked Tasaddaq Paracha about receipt of Rs.1,00,000 but he had denied the receipt of the said sum. P.W.10 Muhammad Yousuf had in cross‑examination stated that Tasaddaq Paracha, Manager of Hayal Pindora Branch on 3‑7‑1977, was no more in service and had been dismissed and that he did not know as to why he was removed from service and that he could not say if he was dismissed on this; very charge. Learned counsel for the accused has relied upon this part of the statement of P.W.10 Ch. Muhammad Yousuf to contend that since Muhammad Yousuf was not in a position to tell, why Tasaddaq Paracha was removed from service and he could not say if he had been dismissed from service on the very charge of embezzlement of said sum of Rs.1,00,000, payment by the accused of said sum of Rs.1,f0,000 to Tasaddaq Paracha, Manager, Hayal Pindora Branch stood proved and that exonerated accused Sikandar Hayat of the charge of misappropriation of said sum of Rs.1,00,

000. I am afraid, I cannot accept this contention. When an accused does not know why a certain person had been removed from service, he cannot say whether he had been removed from there on one charge or the other and accordingly from mere lack of knowledge on the part of the said witness of the actual reasons on which said person had been removed from service, no inference can be drawn that he had in fact been removed from service, on the ground that he had embezzled a particular sum. In consequence, from mere ignorance on the part of P.W.10 Muhammad Yousuf of actual reasons for which Tasaddaq Paracha had been removed from service, it cannot be presumed that he was removed from service because he had embezzled the said amount of Rs.1,00,

000. Apart from that the said witness had clearly stated that he asked Tasaddaq Paracha, who was then in office and had not yet been dismissed, about receipt of Rs.1,00,000 but the said Tasaddaq Paracha had denied the receipt of said sum. It is not possible to prove the payment of so huge sum as Rs.l,00,000 to Tasaddaq Paracha on the basis of mere inferences to be drawn from the fact that Tasaddaq Paracha was later removed from service on sonic ground. The accused should have produced some defence evidence to prove the same. The accused could have proved even the factum of Tasaddaq Paracha having been dismissed on the ground that he embezzled the said sum of Rs.1,00,000 by calling for the proceedings of the inquiry and the inquiry report but he did not do‑ so. Thus, no inference can be drawn from said portion of the statement of P.W.10 that Tasaddaq Paracha received the said sure of Rs.1,00,000 from the accused on 3‑7‑1977. I am aware that the burden is always on the prosecution to prove the guilt of the accused beyond any shadow of doubt but prosecution had discharged this onus by proving that Tasaddaq Paracha Manager, Hayal Pindora Branch had denied before Muhammad Yousuf Inquiry Officer that he had received the said sum of Rs.1,00,000 on 3‑7‑1977 and by establishing that there was no record in Kaller Syedan Branch and Hayal Pindora Branch showing the payment of said sum of Rs.1,00,000 by accused Sikandar Hayat to Tasaddaq Paracha who according to the accused had come to the branch to get the said sum of Rs.1,00,000 for being used in his mm branch. 1n these circumstances, it does not stand proved that the accused had paid the sum of Rs.1,00,000 to Tasaddaq Paracha on 3‑7‑1977. It is clear, therefore, that the accused Sikandar Hayat had not accounted for the said sum of Rs.1,00,000 which he had received on 3‑7‑1977 as per deposit voucher Exh.P.1 for a sum of Rs.78,354, P.2 for Rs.13,;57 from Rahman Brothers and Exh. P.3 for a sum of Rs.8,089 from Syed Mujtaba Shah. The accused is thus proved to have misappropriated the said sum of Rs.1,00,

000. So far Muhammad Shafiq is concerned, there is no evidence on record that he was also a party to the receipt of the said three sums totalling Rs.1,00,000 and disposal of the said consequent sum of Rs.1,00,000 alongwith accused Sikandar Hayat. Accused Sikandar Hayat is shown on evidence on record to have exclusively received the said three sums totalling rupees one lakh and to have disposed of the said sum fraudulently. Accused Muhammad Shafiq is not proved to have misappropriated in part or whole the said sum of Rs.1,00,000 which is the subject‑matter of allegation No.3. The upshot of the above discussion is that accused Sikandar Hayat and Muhammad Shafiq have been found to have, in collusion with each other, misappropriated a sum of Rs.200,000 relating to allegation No.2 , detailed above, while accused Sikandar Hayat has been found to have additionally misappropriated a sun, of Rs.1,00,000 relating to allegation No.3. The accused did in their capacity as public servants as defined in clause nineth of section 2' of P.P.C. I, therefore, convict the said two accused for offence under section 409, 1 P.P.C. On the said facts, the accused are proved to have committed offence under section 5(2) of Prevention of Corruption Act, 1947 also as they had drawn pecuniary advantage of the said sums by abusing their official position, respectively as Manager and 2nd Officer of the Habib Bank Ltd., Kaller Syedan Branch. I, therefore, convict them of the said offence also. Since a man cannot be punished for second time for a criminal offence under another enactment arising out of the same act for which he had been won victor under P.P.C., I would not pass any sentence on the accused for offence under section 5(2) of Prevention. of Corruption Act, 1947 as I propose to pass sentence on the two accused only for offence under section 409, P.P.C. I may also state in this connection that banks are national institutions and any offence regarding them should be dealt with an iron hand. Therefore, deterrent sentences should be given to persons accused of offences in respect of banks or in connection with the business of the Banks so as to deter them from making further in‑roads into the said national institutions and to deter others, similarly placed from committing such offences. This is all the more so when the accused persons are bank employees who are custodians of the funds of the hanks. The accused Sikandar Hayat and Muhammad Shafiq as Manager and 2nd Officer respectively of Habib Bank Ltd., Kaller Syedan Branch were custodians of the funds of the branch. T hey should, therefore, be awarded deterrent punishments. I may in this connection refer to following observations in Banch had Lal v. State of Madhya Pradesh A I R 1955 S C 1245. "An offence under section 409, P.P.C. is punishable upto imprisonment for life or imprisonment upto 10 years. The measure of the sentence is usually governed by the nature of the offences committed and the. circumstances of their commission and it cannot be held as a hard and fast rule that a sentence is not to exceed a certain period of imprisonment when the law has left discretion to the Court to adjust the sentence according to circumstances of each case. When the circumstances do not justify taking of any lenient view about the sentence for the offence committed by the accused who holds a very responsible 'position as Sarpanch of the society and as such has to deal with the proper disbursement of public money for the purpose of public benefit but miserably failed in discharging these duties in the manner expected of him, a deterrent sentence is always essential so that others in such responsible positions and having occasions to deal with large sums of public money do not fall victim to greed and dishonesty. There appears to be no definite principle or rule of law to guide me in the assessment of the actual quantum of sentence to be imposed on the accused. In the above case from Indian Jurisdiction, Supreme Court of India refused to alter the consecutive sentences totalling a period of 11 years of imprisonment passed in 4 separate trials for offence under section 409, P.P.C. to concurrent sentences so as to run with sentence of 4 years imprisonment awarded in one out of the said 4 cases and held that sentence cannot be attached as severe on the ground that this would not have been so if offences were tried at one trial. The sentence of 11 years was thus held to be adequate for offence under section 409, P.P.C. Though m the report of the said case, the total sum defalcated in all the four cases is not given a sentence of 11 years in total for a comparatively big sum of money was held to be not excessive. In Muhammad Sadiq Javed v. The State P L D 1969 Pesh. 12 for the embezzlement of a sum of about Rs.60,000 by the,,, accused, a public servant, a sentence of nine years was held in the circumstances' of that case to be excessive and was reduced to 6 years R.I., while fine of Rs.70,000 was held in the circumstances of the case to be in order and was maintained. This case affords to me an instance of judicial determination of the proper quantum of sentence which I may follow. I may also say that though under section 12 of Offences in Respect of Banks (Special Courts) Ordinance, 1984, ‑Criminal Law Amendment Act, 1958 is neither applicable to nor binding on this Court, in my opinion, some of its provisions which appear to represent the policy of the legislative wing of the State in relation to the punishments to be awarded to I the accused, should have persuasive effect and should be followed by this Court. Section 5 of Criminal Law Amendment Act, 1958 lays down that fine to be imposed on any person charged with an offence triable under the said Act shall not be less than the gain found to have been derived by the accused by the commission of the offence. I would, therefore, in assessing the quantum of fine, ‑be guided by the measure given by the legislature in the said provision of law which is already in the field and appears to be the only provision in the existing law which provides the measure of fine to be imposed on a convicted person. Accordingly for said offence under section 409 P.P.C. I sentence the accused Sikandar Hayat to imprisonment for life and a fine for a sum of Rs.2,25 000 and in default of payment of said fine to further R.I. for 4 years. For the said offence under section 409, P P.C., I sentence accused Muhammad Shad to R.I. for 10 years and to a fine of Rs.1, 25,000 and in default of payment of scud fine to further R.I. for 2‑1/2 years. (hut of the fine if recovered a sum of Rs.3,00,000 (3 lac) shall be paid to Habib Bank Ltd., Kaller Syedan Branch and remaining sum shall be confiscated to the State. The two accused shall be given the benefit of section 382‑B, Cr.P.C. and the period of their detention in judicial lock‑up asunder trial prisoners in this case shall be deducted from the term of their imprisonment and they shall be made to undergo the remaining period of imprisonment only. Bus No. RN‑1071 secured by police as per memo dated 15‑4‑1978 Exh. P.B. shall be returned to its driver Muhammad Iqbal son of Muhammad Khan. caste Bhatti; resident of Phulana District Rawalpindi from whom the said bus had been taken into possession by the police. The said bus is stated to have given in possession of said Muhammad Iqbal on Sapurdari. He would now be deemed to be entitled to its possession. S.A./26/Sp.B Accused convicted.