1989 PLP 952 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑‑This is a petition for leave to appeal, from the judgment of a Division Bench of the Sind High Court, dated 15th July,' 1987, whereby the appeal filed by the petitioner against his conviction under section 409 P.P.C., and sentence passed against him was dismissed.

2. The petitioner was working as Cashier at Muslim Commercial Bank Limited, Plaza Branch, Karachi. The case of the prosecution was that on 8th August, 1983, at about 3 p.m. it was found that a bundle of 149 prize bonds of the denomination of Rs.1,000 each amounting to Rs.1,49,000 under the charge of the petitioner were misappropriated/stolen by him whereby loss to the tune of the aforesaid amount was sustained by the bank.

3. The petitioner was tried by the Special Court (Offences in Banks) at Karachi. The primary evidence on which the prosecution relied was furnished by Muhammad Hanif Khan (PW 1) who was the Manager of the Branch at the relevant time. According to his version the petitioner was the Head Cashier and in that capacity held one of the two keys of the cash safe located in the branch, the other one being in his charge. The cash as well as the prize bonds were kept in the cash safe. The Cashier at the counter was entrusted with the duty of purchase and sale of the prize bonds while entries in the prize bonds register were being made by the Head Cashier and were countersigned by the officer of the Bank. This witness deposed that on 7th August, 1983, there were in the cash safe 149 prize bonds of the value of Rs.1,000 each. Relevant entries in the register of the said date verified this fact which is initialized by the petitioner. The crucial portion of his evidence as reproduced in the judgment of the Division Bench reads as follows: "On 7‑8‑1983 after closing hours he checked the cash and also checked the prize bonds in the cash safe and found that there were 149 prize bonds. He again stated that he had not counted the prize bonds, but he saw that they were lying in the cash safe. In the presence of accused the cash was kept in the safe and the cash safe was locked with both keys. On 8‑8‑1983, they opened the cash safe with two keys at 9 a.m. From 9 a.m. till 1.30 or 1.35 p.m. the cash and the prize bonds remained in charge of the accused as Head Cashier. At about 1.45 p.m. he closed the safe and it was locked with two keys, one of which was with him and other with the accused. On 8th August, 1983, he had not checked the prize bonds or cash. After cash safe was closed, the accused went away from the branch. At about 2.45 p.m. the accused along with Cashier Nazir came to him and told him that upsetting incident had occurred, in that while closing the cash and keeping it in the safe, he had not kept in the cash safe 149 prize bonds of Rs.1,000 each. He further told him that 149 prize bonds were short. He told the accused that if any shortage had actually occurred, he should have reported the matter before the cash was closed and the shortage was discovered. The accused Muhammad Iqbal did not reply to this observation. In the meantime the third Cashier, namely, Hussain Kalu also arrived in his Chamber. He was on duty during the evening banking hours. Thereafter he alongwith the two Cashiers went to the strong room and opened the cash safe with their respective keys. He checked the prize bonds in the presence of the accused and Chashier, and found that 149 prize bonds of the value of Rs.1,000 each were missing. He thereupon informed Vice President and Regional Manager Mr. Shamim Naik, who came to the branch. The Circle Executive and Senior Vice‑President Mr. Ejaz Hussain Shah was also informed who also came to the branch. They made enquiries from the accused who stated that he had kept 149 prize bonds some where but had forgotten as to where they have been kept. The accused then submitted an application addressed to him stating that 149 prize bonds arc short and they may be debited to the banking adjustment account. The witness further deposed par that he had prepared a debit adjustment voucher for the amount of Rs.1,49,(XX) and this debit voucher was signed by accused Muhammad Iqbal on its reverse. Under his two signatures he had put his Account Mc No.SB 5069. The debit voucher has been produced as Ex.2/AS."

4. In his statement under section 342, Cr.P.C. recorded by the Special Court the petitioner gave the following explanation in his defence: "The case against me is false and I have been wrong accused. I have not stolen or misappropriated the prize bonds. On 7‑8‑1983 when the Manager checked the cash and the prize bonds he forgot to put back the prize bonds in the cash safe. I do not know where the Manager had kept these prize bonds as I did not see them. On 8‑8‑1983, I had taken out the cash box from the safe. The prize bonds were not in the cash box. I do not know, what had happened to the 149 prize bonds. When I closed cash and was keeping the cash back in the cash safe, 1 detected the shortage of the prize bonds. The detection was made in the presence of the Manager as we were both closing the cash safe. I told the Manager that the prize bonds which were missing,. We searched the prize bonds but did not find them. I had not gone home but remained in the branch. in The Manager called the Zonal Chief. Later the Circle Executive also came. On their directions I made: application Ex.4/A‑1 and also signed the voucher Ex.2/A‑5. 1 do not know who has taken away. Possibly the prize bonds were stolen by Hussain Kalu. He has previous record in misappropriation."

5. Learned Judge of the Special Court believed the prosecution evidence to and rejected the version of the petitioner, finding the petitioner guilty of the charge. The appeal tiled by him has been dismissed by the Division Bench, High Court by the impugned judgment

6. The learned Judge Special Court, while holding the, petitioner guilty referred to the fact that the petitioner was incharge of the cash cant the prize bonds, that it was his duty to take them out of the cash safe and put them back there, that there were other circumstances in the evidence indicating that he was solely dealing with the purchase sale and custody of the prize bonds. The relevant register maintained at the back bears entries for the purchase and sale of prize bonds, on the two relevant dates namely, 7th and 8th August, 1983, in the handwriting of tile petitioner and bears his initials. Learned Judge was of the opinion, therefore, that it was for the petitioner to explain how the prize bonds were missing. In this behalf he further referred to the circumstance which indicated his guilt, (flat though according to the petitioner he had detected shortage either on 8th morning. or at the time of closing on the same day, yet he did not report the matter to the Manager, immediately but went out and return along with the Chief Cashier Nazir Ahmed subsequently to report the matter to "the Manager. The evidence was further corroborated by the debited voucher whereby took the responsibility upon himself by having the amount of the value of the missing prize bonds debited against his own account. 7.Learned counsel in support of the petition contended that the Courts below had not correctly appreciated tile evidence and had reached the findings of guilty on insufficient evidence. He put great deal of emphasis upon the conduct of the petitioner which according to him clearly demonstrated his upright and honest approach. In this behalf he submitted that if the intention of the petitioner was to misappropriate the prize bonds, tile Manager had already signed the relevant documents at the time of closing on 8th August, and the cash safe was duly closed with the two keys. The petitioner could according to the learned counsel quietly go away and point out the deficit err the next day when he and the Manager opened the cash safe once again. But intead he went to the Head Cashier, informed him about the missing prize bonds soon after leaving the bank premises and returned to the Manager to report.

8. We do rot think that this conduct was sufficient to dislodge the probative value of the overwhelming evidence produced by the prosecution to establish the guilt of the petitioner. 1n our view the shortage of the prize bonds would have been revealed, in any case, when the cash safe was opened again on the morning A of 9th August and would have resulted in an inquiry as to the responsibility of the concerned person for the loss. Therefore, whether he reported on the same day or not the fact would have been revealed on the next day. The fact that petitioner reported on 8th August, has no material bearing on the outcome of the case.

9. The crucial question on which the case turns is whether the prize bonds were in the charge and custody of the petitioner when they were found missing. It appears to us from the evidence that the prize bonds were found intact at the time of closing on 7th August and it is nobody's case that they were missing at the time the safe was opened in the. morning on 8th August. It seems clear from the evidence that the prize bonds and cash were in the exclusive custody of the F petitioner after the safe was opened on the 8th August and remained so until the 'closing of the safe on the said date. The prize bonds disappeared during this period and it is for the petitioner to furnish a reasonable explanation. His statement that the missing prize bonds were not kept in the cash sale by the Manager on 7th does not seam to find support from any circumstances appearing in the evidence. If they were really found missing from the cash safe on the morning of 8th, he strangely remained quiet about the matter until once again the safe was closed for which no explanation has been furnished. There is, therefore, no substance in the contentions advanced by the learned counsel.

10. In any case ordinarily this Court does not undertake reappraisal of evidence at this stage. There seems to be sufficient evidence on record which could sustain the finding of guilt recorded by the Courts of fact and there is no reason to upset the same.

11. In the result this petition fails and is accordingly dismissed. M.Y.H./M‑756/S Leave refused.