1. JUDGMENT RAHMAT HUSSAIN JAFFERI, J. - The present appeal is directed against the judgment dated 27.3.2006 passed by the learned Presiding. Officer, Special Court (Offences in Banks), Sindh at Karachi, by which the learned Judge convicted the appellant for offence punishable under Section 409 P.P.C., sentenced him to suffer R.J. For seven years and fine of Rs. -13.54 million or in default thereof to suffer R.I. For twenty-one months. The appellant was further convicted for offence punishable under' Section 477-A, P.P.C.
2. And sentenced to suffer R.I. For five years with benefit of Section 382-B, Cr.P.C.
3. On 17.5.2001 the complainant Abdul Ghaffar. Dal, Regional Controller (Audit) ABL, Regional Office, Hyderabad filed a written complaint before the Director .FIA, CBC,' Karachi. The said complaint' was incorporated in 154, Cr.P.C. Book on 18.5.2001, which reads as under:- With reference to the' above-cited subject this is to inform you that a fraud has been committed in our ABL Ltd., Khipro Bus Stand, Mirpurkhas Branch by the Senior Cashier, Mr. Zulfiqar Ali, who was.
4. Posted there. The said staff who is the senior cashier while posted in the Khipro Bus Stand, Mirpurkhas Branch on 4 5.2001 released suspense account cash in Transit Voucher for Rs.
5. 9,00,000/- which was to be deposited with main Branch of the Bank Mr, Zulfiqar Ali the senior' cashier did not deposit the said amount as required by him. When incoming cashier took the charge and found the shortage, ' the incoming cashier immediately brought the fact to the knowledge of the management. The management took the control of the situation and managed to recover the shortage amount from the said Mr. Zulfiqar- Ali during the period 7.5.2001 to 9.5.2001 in cash. The said Zulfiqar All confirmed before the senior officials' and admitted that he did misappropriated the funds and gave it to some person related to him, in furtherance to this, fraud, it has been detected that the said cashier without lawful authority debited, and withdraw a sum of Rs. 4.8 million from the Account No. 01- of M/s. Shane Ali Cotton Ginning & Pressing Factory, Naoabad in the following manner of the following date's:-- 6.1.2001 Rs. 0.650 million 13.6.2001 Rs 1 500 million 23 4.2001 Rs. 2.650 million That tins amount of Rs. 5.800 million was withdrawn by said Mr. Zulfiqar Ali, senior cashier on draw (Dr.) cash vouchers by forging the signature of the party. It has further been detected that a sum of Rs. 1.000 million was misappropriated by the said Zulfiqar on 16.2.2001 which is deposited by the party through a pay slip No. 2565346 and this amount of Rs. 1 million was not credited to the account of the party M/s. Shane Ati Cotton & Ginning Factory, Naoabad. Further revelations were made- regarding another misappropriation of Rs. 1.620 million from the account of M/s. K.K. Cotton Ginners misappropriated a total Sum of Rs. 7.420 million while working . As. Senior cashier and is thus guilty of- fraud, forgery, cheating and criminal breach of trust.
6. You are therefore, requested to please register, an F.I.R. So culprit be punished according to. Law."
7. The FIA authorities after collecting- the required documents, recording the statements of the witnesses and arresting the appellant challaned him in the -Court where he was tried and convicted ad mentioned above under the Impugned judgment.
8. We have heard Advocate for the appellant, ADPGA and perused the record of this case very carefully.
9. The learned Advocate for the appellant has stated that the prosecution was required to prove the misappropriation of the amount, but they have failed to produce the required oral and documentary evidence, as such, the prosecution has failed to, prove the case against the appellant.
10. Conversely, the learned ADPGA has stated that the prosecution has led the required oral and documentary evidence, which support the prosecution case, therefore, he has supported the impugned judgment.
11. The case involves the offence of criminal breach of trust punishable under Section 409, P.P.C. A five members Bench of the Honorables Supreme Court of Pakistan in the case of Shakir Hussain v. The State (PLD 1956 S.C. (Pak.) 417) examined the question as to. How the prosecution was required to prove such offence. The Honorables Supreme Court, observed that where the charge against an accused person is that of criminal breach of trust the prosecution musit prove not only entrustment of or dominion over property but also that the accused either dishonestly misappropriated, converted, used or disposed of that property himself or that, he wilfully suffered some other person to do so. It was further observed that the prosecution must affirmatively prove these ingredients of the offence unless the receipt of the money is admitted and the accused offers no satisfactory explanation of what he did with it.
12. In the above authority two situations were visualized. (1) In a situation where the accused admits the receipt of the amount then burden shifts upon him to prove as to what he did with the amount, and (2) in absence of such admission the prosecution must prove, the above ingredients .With positive evidence. In the present case while going through the evidence we found that the appellant in his statement recorded under Section 3432, Cr.P.C. Categorically denied the receipt of amount, therefore, the prosecution is required to prove not only the entrustment of or dominion over the cash, but also that the appellant had either dishonestly misappropriated, converted, used or disposed of the cash himself or that he wilfully suffered some other person to do so Keeping in view the above position of law and burden of proof, we have examined the evidence of the prosecution.
13. In this case, the prosecution alleged four transactions, the charge also spelt into the said four transactions. The first charge in respect of misappropriation of the amount of Rs= 9,0000/-, is as under:- "That in the year 2001 you accused Zulfiqar Ali s/o- Qaimuddin while posted as Senior Cashier, Allied Bank of Pakistan Ltd. (ABL), Khipro Bus Stand, Mirpurkhas Branch, in complicity with deceased accused M. Arif Ali Khan, the then Manager of the Branch to defraud ABL, in pursuance thereof, you accused Zulfiqar Ali on 4.5.2001 knowingly, fraudulently and dishonestly prepared a forged Credit Voucher of Suspense Account dated 4.5.2001 for Rs. 9,0, 000/- (Rupees nine hundred thousand only) for depositing in ABL, Main Branch, Mirpurkhas but did not deposit the same in the main branch and thus misappropriated Rs. 9,00,000/-"
14. In order to prove the charge the prosecution relied upon the evidence of only one witness wz. PW-6 Qamar Abbas, Accountant ABL, Khipro Bus Stand Branch, Mirpurkhas. His evidence reveals that on- 4.5.2001 the. Appellant received a cash of Rs. 9.00,000/- from suspense account to be deposited in the Main Branch of Mirpurkhas. Through Exh.5/C-5. He further deposed that on the next date, on his enquiry from Manager, ABL, M.A. Jinnah Road, Mirpurkhas. He came to know that the said amount was not deposited with the said branch. He also deposed that on their enquiry, the appellant admitted the non-deposit of Rs. 9,0, 000/- with the said branch and then he deposited the said amount through three vouchers in the Bank, on their pressure. He further deposed that at the back of Exh.5/C-5 the signature of the appellant .Was appearing. The appellant challenged the signature on Exh.5/C-5 by taking the plea that he was in custody and under coercion his signature was obtained. As regards the deposit of amount through three vouchers, the witness himself admitted that it was deposited on their pressure, as such, the said deposit cannot be termed as voluntarily act, of the' appellant." Even we accept the statement of this witness that the appellant received the amount of Rs. 9,00,000/- to be deposited in M.A. Jinnah Road, Mirpurkhas, but there is no evidence on record to show that the amount Was not deposited in the Bank, as the prosecution specifically alleged That the appellant misappropriated the amount by not depositing the amount.
15. The appellant has not. Admitted the receipt of the amount, therefore, the prosecution was duty bound to prove affirmatively through tangible evidence that the amount was not deposited in M.A.
16. Jinnah Road Mirpurphas. The PW-6 took the plea, that on enquiry from the Manager, ABL, M.A.
17. Jinnah Road, Mirpurkhas, he came to. Know that the amount was not deposited. The said Manager was not examined in the Court, as such, the said statement of the witness. Is, hearsay and inadmissible, therefore, it cannot be relied upon. In order to prove the non-deposit of the amount up the. Bank, the prosecution could have easily proved such fact by examining some officers from the said Bank or to produce the documents or books showing the transactions dated 4.5.2001 that the amount of Rs. 9,00,000/- was pot deposited. However, the prosecution has failed to produce such evidence, as such, without such, evidence it cannot be held positively that the appellant had misappropriated the amount by not depositing the amount in M.A. Jinnah Road, Mirpurkhas. As regards the extra-judicial confession of the appellant, it is well-settled principle of law that it should be corroborated on material particulars by other pieces of evidence. The prosecution tried to prove it through receipts of deposits of Rs. 9,00,000/-, but the witness himself admitted that the amount was deposited under pressure. Thus, the extra-judicial confession, of the appellant without any corroborative piece of evidence cannot be relied upon.
18. Further the appellant took the plea of tempering with Exh.5/C-5 by alleging that his signature on it was obtained under coercion. In order to ascertain'. Whether or not Exh.5/C- 5 was ever tempered with? We have examined the said document and found that on its front the words on two lines are under the stamp of the Bank, that means that first the words on the said' lines were written and then stamp was affixed. But the position is not same in respect of third time as three words "through Zulfiqar Ali" were written upto the outer line of Bank's st&mp though there was plenty of space in the said line and the. Last word-"Shar" could have been written in that space but the word "Shar" was written- on fourth line. This was manifestly done as the stamp was already fixed on the document therefore, the last word was shifted to fourth line instead of writing on the third line. This' clearly demonstrates that the words "through' Zulfiqar Ali Shar" were written, subsequently, after the Bank's stamp was put on the document. It is pointed out that there was no need of written the words "through Zulfiqar Ali Shar" as it is reptation of the words appearing in third line with change of name of officer as the third line read's "through office and the (last word illegible)". Thus, the words "through Zulfiqar Ali Shar" were written subsequently to involve the appellant by tempering with the document. In such a situation the Exit 6/C 5 has become a doubtful document and the plea of the appellant about its tempering gets support from the above position. Thus, the prosecution has failed to prove the ingredients of the offence in respect of this charge.
19. As regards the second allegation, the Trial Court framed the following charge:- "And during 6.1.2001' to 23.4 2001 you accused Zulfiqar Ali in capacity of Senior Cashier. Khipro Bus Stand, Mirpurkhas Branch, knowingly fraudulently and dishonestly prepared three forged debit 'touchers for- Rs. 0.650 million, dated 6.1.2001, Rs. 1.500' million, dated 13.2.2001 and Rs. 2.650 million, dated 23.4.2001 after forging the signature of Account holder M/s. Shane Ali Cotton ginning Factory, Naoabad and on the basis of aforesaid three debit vouchers fraudulently withdrew -a total sum of Rs. 4.800 million and pocketed/misappropriated, the amount and thus committed the offences of criminal breach of trust, using forged documents as genuine. And falsification of Bank's Books of Accounts.
20. In order to prove the said charge, the prosecution again relied upon the evidence of a. Single witness v.z. PW-5 Raj Kumar,- who was maintaining the Account Mo. CFI', Khipro Bus Stand Branch.
21. After seeing three debit vouchers (Exhs.5/C-8/1 to 8/3) his evidence reveals that the signatures on the back of the documents did not b along to him and that he did not receive the said amount. The allegation in the charge is that the appellant had withdrawn the amount of Rs. 4.800 million through three above- mentioned vouchers From the Account No. CFI. The evidence of Raj Kumar simply shows that he had not received the amount. If the amount had been withdrawn from the account of the PW-5 then, such entries must be available in the Books of Accounts, therefore, the prosecution, was required to -produce the statement of account of the Account No. CFI or produced. Any oral-evidence by examining some bank officials to prove that the amount was withdrawn from the Account No. CFI. No such evidence has been produced to prove the withdrawal of the amount from the account, as such, without such evidence the prosecution has failed to establish the important ingredients of the offence. Thus, the prosecution has failed to prove the charge.
22. The third allegation is mentioned in the charge, which reads as under:- And on 16.2.2001 you accused Zulfiqar capacity of Senior Cashier, received a sum 10,0, 000/- (Rupees ten lacs) from Account-holder Shane Ali Cotton Ginning Factory, Naoabad, under Pay-in- Slip No. 2565340, dated 16.2.2001 under your signature and rubber stamp of the Bank in token of having received the amount, but did not credit the' same amount in the account of M/s. Shane Ali Cotton Ginning Factory and thereby committed the offence of criminal breach of trust."
23. In order to prove the charge, the prosecution relied upon the evidence of PW-5 Raj Kumar, PW-3 Imdad Ali. Memon. DG-III, PW-7 Zulfiqar Ali Manager, PW:8 Rafiq Ahmed Assistant, ABL, M.A. Jinnah Road, Mirpurkhas. The. Evidence of Raj Kumar reveals that he received Advice Slip from ABL. Tando Adam of Rs. 10,00,000/- on 16.2.2001 which he deposited in his account under deposit slip. He produced the said deposit slip as Exh.9/A. A perusal of deposit slip reveals that the amount of Rs.
24. 10,00,000/- is mentioned in it, but the column of "particulars" is blank, it does not show whether the said amount was deposited in cash or through advice slip. Be that as it, the evidence of above- mentioned bank officials of ABL, M.A. Jinnah Road, Mirpurkhas reveals that on 16.2.2001 the appellant brought cash of Rs 23,00,000/- and Inter Bank Credit Advice (IBCA). Of Rs. 10.00,0.007- issued by Tando Adam Branch to M. A. Jinnah Road, Mirpurkhas dated 16.2.2001. The appellant deposited the cash and the said IBCA and the Bank issued another Inter Bank Credit Advice (IBCA) for sum of Rs.
25. 33.0. 000/- from M.A. Jinnah Road, Mirpurkhas to Khipro Bus Stand Branch Mirpurkhas.- The. IBCA Was handed over to the appellant.
26. Apparently, the prosecution has proved first ingredient of the offence of entrustment of IBCA of Rs.
27. 33,00,000/-, but there is no evidence to show that the said IBCA was-not received by Khipro Bus Stand Branch Mirpurkhas or it was not deposited with the said branch. To prove the said facts, the prosecution was required to examine an officer from Khipro Bus Stand Branch. Mirpurkhas to prove non-receipt of IBCA of Rs. 33,00,000/- issued by M.A. Jinnfi Branch, Mirpurkhas to Khipro Bus Stand Branch, or some documents or Books of Accounts to transactions on the said date or subsequent dates the non-deposit of IBCA of Rs. 33,00,000/-. After is IBCA of Rs. 33,0000.0/- which included IBC 10,0. 000/- of Tando Adam Branch to M.A. Jinn|a Branch. Mirpurkhas only books adjustments wo been made in the relevant books to carry on the a the absence of such evidence, it is observed prosecution has also failed to prove the said ingredient offence, hence the charge has not been proved.
28. As regards the fourth allegation, the charge is as under:- "And on.8.3.2001 you accused Zulfiqar Ali in capacity of Senior Cashier further received an amount, of Rs. 1.620 million from Mr. Ashok. Kumar holder ot Account No. CD-02 through relevant account and misappropriated the same."
29. In. Order to prove the charge, the prosecution again relied upon a solitary evidence of PW-10 Ashok Kumar. His evidence reveals .That on 3.3.2001 he deposited cash of Rs. 16,20.000/- under deposit- slip. The appellant after receipt of amount returned the deposit-slip after putting the required Bank's stamp on it. His evidence further reveals fiat after sometime he came to know that the appellant after receiving the amount did not deposit the cash in the bank and did not account for it in his account.
30. From the above evidence even we accept the statement of this witness that the appellant had received the amount as a Cashier at the Counter of Bank, but the prosecution was required to prove the misappropriation that' it was not deposited in the account. The PW-10 simply stated that he came to know about non-deposit of amount' after, sometime. He diff not disclose the source of receipt of such information It could have been verified by obtaining statement of account, but there is no evidence that the PW- 10 came to know such fact through statement of accounts or it was informed to him by any competent bank official. Thus, the statement of the witness is hearsay evidence, which is inadmissible in evidence. In order to prove the non-deposit of amount, the prosecution should have produced- the Statement of Account of Raj Kumar showing the non- deposit of the amount in his account. The prosecution could have also examined any bank official of Khipro Bus Stand Branch to prove such fact, but no evidence whatsoever was- led by the prosecution to prove such fact. Thus, the prosecution has also failed to prove the said charge against the- appellant.
31. After considering the material available on the record, we are of the considered view that the prosecution has failed to prove the ingredients of the offence of provisions. Of Section 409, P.P.C.
32. The appellant has further been convicted for offence punishable under Section 477-A, P.P.C. No evidence worth mentioning has been led by the prosecution to prove that the appellant with .Intent to defraud, make or abet the making of any false entries in the Books of Accounts except the statement of Handwriting Expert which simply shows that the writing on some documents are similar to that of the appellant. We have examined said documents viz. Exhs 5/C-8/1 to 8/3 and the specimen writing of-the appellant; we found that there is vast difference between the both the writing. The Handwriting Expert was also not definite with the disputed writing as he appointed that writings were similar. To a Courts query, the witnesses deposed as under:- It is correct to suggest that I have matched the questioned documents with the specimen signature and handwriting of the. Accused-and gave in opinion as similar, but it cannot be turned as same The appellant has been acquitted in respect of offences falling under Sections 408. 468 and 471, P.P.C. Though charged as he has not been convicted for the said offences Reliance is placed on Kishin Singh v. Emperor (AIR 1928 P C. 254) Thus, the prosecution has also failed to prove the said charge.
33. In the light of what has been discussed above, the prosecution has failed to prove the case against the appellant peyond any reasonable doubt, therefore, the appellant is entitled to the benefit of doubt, which is accordingly given to him. Consequently, the conviction and sentence awarded to the appellant under the impugned judgments are set aside. The appellant is acquitted and set at liberty. He is in custody, he should be released forthwith, if not required in any other custody case.
34. The appeal is allowed.