1. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---This appeal is directed against the judgment dated 22- 12-1991 passed by Special Court (Offences in Banks), Karachi-II, whereby the appellant Fateh Alam Siddiqui was convicted for the commission of offence under sections 408 and 420, P.P.C. And was sentenced under each count to undergo rigorous imprisonment for five years and also to pay fine of Rs.40 millions under section 408, P.P.C. And one million under section 420, P.P.C. In default of payment of fine he was to undergo further rigorous imprisonment for 12 months and six months respectively.
2. ' During the pendency of appeal the appellant expired. However the heirs of the appellant prayed that the appeal may not be disposed of as abated, as they intend to pursue the appeal in order to remove the stigma on their father. The request was allowed and the legal heirs were permitted to pursue the matter. The order dated 22-5-2003 is reproduced below: "In this matter, appellant Fateh Alam Siddiqui, is dead. On the last date of hearing i.e. 22-4-2003, learned counsel for the appellant wanted to pursue this matter on behalf of legal heirs of deceased appellant. He was put on notice to satisfy this Court that after death of the appellant any other person/legal heirs of the appellant can pursue the case of deceased appellant.
3. ' Today the learned counsel submitted before us the case of Ghulam Hussain versus State (1971 SCM R 35) where at page 36, in para.2 the Honourable Supreme Court observed as under: "The appellant died during the pendency of the appeal. As however, a sentence of fine was inflicted by the Courts below in addition to the sentence of imprisonment the appeal does not abate under section 431 of the Criminal Procedure Code. The legal heirs of the deceased appellant have appeared through counsel and wish to challenge the conviction on the merits."
4. ' In view of the above, the requests of learned counsel is allowed. However, he has to file a proper application for bringing the legal heirs of deceased on record, which pplication shall be dealt with in accordance with law."
5. ' We have heard Mr. Anjum Ghani learned counsel for the appellant and Mr. Ziauddin Nasir learned Standing Counsel for the State.
6. ' The appellant Fateh Alam Siddiqui who was Vice-President/Manager in Cotton Exchange Branch of National Bank of Pakistan, Karachi was initially tried along with co-accused Muhamamd Ramzan Butt, Muhammad Younus Butt and Nasir Wahab. Accused Muhammad Ramzan Butt and Muhammad Yousaf Butt submitted application under section 249-A, Cr.P.C. And they were acquitted of the charge. The case proceeded against the appellant Fateh Alam Siddiqui and co- accused Nasir Wahab for the commission of offences under sections 408, 420 and 109, P.P.C. The main allegation against the appellant Fateh Alam Siddiqui was that he disbursed the credit facility to co-accused Nasir Wahab without approval from the competent authority. The appellant pleaded not guilty to the charge. The prosecution examined several witnesses. The appellant took plea in his statement under section 342, Cr.P.C. That credit facility advance, was allowed with the verbal approval of the competent authority. The learned trial Court after examining the evidence of the prosecution recorded the findings in respect of the appellant which is as under: "So far as accused Fateh Alam is concerned I shall confine my discussion to the three disputed cheques only because the charge in respect of sale proceeds of 9-E Forms against any of the accused cannot be said to have been proved. Although unauthorized loans were advanced by Fateh Alam to Nasir Wahab to enable him to export cotton on the undertaking of Nasir Wahab that the amount of sale proceeds shall be repatriated are deposited with the Bank, but the unauthorized loans shall be deemed to have been regularized as soon as the entire amount of sale proceeds was deposited by accused Nasir Wahab with the Bank. The bank is only entitled to recover mark-up from Nasir Wahab for the period for which the transfer of the sale proceeds from Citibank to the C.E. Branch of N.B.P was delayed.
7. "The above findings shall not absolve accused Fateh Alam from having forged the three disputed cheques for a heavy amount of Rs.1,55 lacs. These three cheques were passed within a period of three days, that is, on 19-9-1988,, 20-9-1988 and 22-9-1988. The cheque Exh.2/ZB-1 was passed by accused Fateh Alam singly, which was in contravention of the well established banking practice and rule that such cheques should be signed by two Officers. Although the other two cheques bear signatures of Ashfaq as Second Passing Officer but P.W. Ashfaq Ahmed has deposed that since the cheques were already passed by Fateh Alam therefore, he had no alternative but to put his signatures thereon as Second Passing Officer. The main responsibility for having Passed these cheques unauthorisedly lies upon Fateh Alam. Two of these cheques were referred to him through Cheque Refer Register and the objections on these cheques was brought to his notice that there was cutting of the account number on these cheques which pertained to the private account of Nasir Wahab. Account number of Cash Finance was overwritten and it was not authenticated by signature of the drawer hence this was good reason for returning the cheques unpassed. The third cheque was not referred through Cheque Refer Register but it was brought to the notice of Fateh Alam that the cutting of account number has not been authenticated by the drawer. This fact was brought to his notice by the P.W.15 Aziz Ahmed. In spite of this valid objection he passed the cheque for a heavy amount. I have therefore no doubt that accused Fateh Alam in collusion with Zafar Ahmed, who should have been made an accused in this case, have defrauded the Bank to the tune of Rs.1,55 lacs and also misappropriated the amount. He is therefore guilty of offences under sections 408 and 420, P.P.C."
8. ' Co-accused Nasir Wahab was acquitted while the appellant was convicted as narrated above.
9. ' Mr. Anjum Ghani, the learned counsel for the appellant has contended that a perusal of paragraph 45 of the impugned judgment shows that the learned trial Court absolved the appellant from the charge of allowing credit facility without approval. He has drawn our attention to the following finding: "Although unauthorized loans were advanced by Fateh Alam to Nasir Wahab to enable him to export cotton on the undertaking of Nasir Wahab that the amount of sale proceeds shall be repatriated and deposited with the Bank, but the unauthorized loans shall be deemed to have been regularized as soon as the entire amount of sale proceeds was deposited by accused Nasir Wahab with the Bank. The bank is only entitled to recover mark-up from Nasir Wahab for the period for which the transfer of the sale proceeds from Citibank to the C.E. Branch of N.B.P was delayed."
10. ' Mr. Anjum Ghani, has submitted that after the above finding there was no justification for the trial Court to convict the appellant for the charge of allowing credit facility without approval of competent authority and the question of application of section 408, P.P.C. As well as section 420, P.P.C. Does not arise.
11. ' Mr. Anjum Ghani has further submitted that the appellant was prosecuted in three cases on similar charges. In one case he was acquitted by the trial Court and in two cases he was convicted.
12. The appellant filed appeals against both the convictions and sentences. His Criminal Appeal No.110 of 1990, on similar charges was allowed by a Division Bench of this Court, vide judgment dated 16- 5-1993, reported as Fateh Alam Siddiqui versus The State (1993 PCr.LJ 1573). Hp has drawn our attention to the finding of learned Division Bench of this Court in similar circumstances which reads as follows: "The overwhelming evidence on record clearly reveals that the appellant Fateh Alam Siddiqui had brought to the notice of his superiors in the Bank as well as his colleagues of the said loan to the company. Indeed he had acted indiscreetly and without any sense of responsibility but not amounting to fraud or dishonestly. He had been submitting through proper channel monthly and quarterly statements of irregular advances duly scrutinized and signed by auditor/accountant to the Regional Office. There are no false entries or non-maintenance of books of accounts. This arrangement of irregular advances continued for a period of over nine months but from 2-7-1988 there was continuous and heavy overdraft amount in the said account till 13-10-1988 as was observed by the learned trial Judge. Although the entire documentary evidence was available, neither the Head Office nor the Provincial Office nor Regional Office nor audit and inspection initiated any disciplinary or punitive action against him. The banking operations are not carried out singly by a Bank Manager but a team of bankers. It is also not an isolated case of a banking transaction but relates to numerous banking operations for a long span of time to the full knowledge of "Senior Officers and staff of Bank at the Head Office. Provincial Office, Regional Office and Branch Office. In the circumstances, we are of the view that the element of mens rea was missing and the conviction of the appellant Fateh Alam Siddiqui is liable to be set aside. Here we cannot rule out the possibility of implied consent of the Senior Executive of the Bank for want of action for a long period of time. We may add here that the evidence on record shows that it was normal practice of Bank Managers to make irregular advances to account holders to be regularized in due course of time."
13. ' Mr. Anjum Ghani has submitted that the above finding is applicable to the facts and circumstances of the present case also. The conviction awarded to the appellant in the other case was set aside and he was acquitted by this Court. He has submitted that applying the rule of consistency the appellant is entitled to the same relief in the present appeal as well.
14. ' Mr. Ziauddin Nasir the learned Standing Counsel has supported the impugned conviction and sentence.
15. ' We have carefully considered the material available on record, the judgment of the trial Court as well as the earlier Division Bench judgment of this Court referred to above. We are persuaded to agree the submissions of Mr. Anjum Ghani that learned trial Court had framed the charge against appellant for extending credit facility without approval of the competent authority and after absolving the appellant of the said charge there was no justification for the learned trial Court to award the conviction. We are further persuaded to agree that the ratio of the cited judgment, in respect of the appellant under the similar facts and circumstances, is attracted to this appeal also and we feel ourselves bound by the earlier Division Bench judgment of this Court. We are of the considered opinion that the prosecution failed to make out a case against the appellant warranting conviction and sentence and consequently the learned trial Court was not justified in convicting the appellant and awarding the sentences impugned in this appeal. The convictions and sentences are hereby set aside and the appellant is acquitted of the charge. The appeal is allowed accordingly.