SALAHUDDIN PANHW AR, J.---At the outset learned counsel for appellant has referred pages Nos,17 to 19 of impugned judgment dated 24.08.2015, relevant paragraph is reproduced herewith:-- "Over all evidence brought on record as discussed above shows that the allegations against the accused are that the accused Syed Kaleem Ahmed had obtained cash of Rs,298400/- from PW Mumtaz for credit in the account of Zulfiqar account holder but it was deposited in his account but the said amount was debited in the account of Zulfiqar from the joint account of PW Muhammad Hassan Salahuddin and the amount of Rs,2850000/- and Rs,26 lacs were credited through transfer entries from the joint account of PW Muhammad Hassan Salahuddin to the account of the accused Muhammad Shakir and the same were withdrawn by the accused Syed Kaleem Ahmed and that cheque book of Muhammad Hassan Salahuddin was processed and issued by Syed Fayaz CSO by using his ID who has been retired and evidence shows that from the said cheque book of the joint account of PW Muhammad Hassan Salahuddin two cheques were issued and transferred in the sum of Rs,2850000/- and Rs,26 lacs but both the said cheques have not been produced before this Court as the said transfer and withdrawal of the said cheques in the sum of Rs,2850000/- and Rs,26 lacs have been alleged against the accused Syed Kaleem Ahmed on 8.3.2013 and 11.3.2013 but as discussed above the accused Syed Kaleem Ahmed has already relinquished the charge of the branch and no evidence has been collected by the prosecution or the investigators of the bank to show or prove that accused Syed Kaleem Ahmed had supervised both the said entries and had received the proceed of the cheques by using his ID. The involvement of the accused Syed Kaleem Ahmed with regard to the said two entries therefore becomes highly doubtful however the deposit slip Exh.8/A produced by PW 5 Mumtaz allegedly bears the rubber stamp and signature of the accused Syed Kaleem Ahmed but the said deposit slip Exh.8/A admittedly has not been sent to handwriting expert to assess that the said deposit slip Exh.8/A bears the handwriting and signature of the accused Syed Kaleem Ahmed and the transfer voucher of the said amount neither been from the joint account of PW Muhammad Hassan Salahuddin has not been traced nor produced in court nor it is alleged that accused Syed Kaleem Ahmed had destroyed the said transfer voucher or that the record relating to the transfer entries vouchers remains in the custody of branch manager as such it has also not been established that the accused Syed Kaleem Ahmed had obtained the said amount of Rs,298400/- from PW 5 Mumtaz and debited it in the account of Zulfiqar front the account of PW 9 Shaik h Hassan Salahuddin. It is also evident from the record that the cheque book relating to the joint account of PW 9 Shaikh Hassan Salahuddin was issued by Syed Fayaz CSO by using his ID and from the said cheque book, two cheques were allegedly used for transfer of money from the account of PW 9 Shaikh Hassan Salahuddin to the account of the accused Muhammad Shakir and the said Syed Fayaz CSO has not been implicated as the accused. The accused Javed Ibrahim as per evidence available on record had posted the cheque in the sum of Rs,2.6 million on 8.3.2013 and Rs,2.85 million on 11.3.2013 by using his ID in the account of the accused Muhammad Shakir which he has also admitted in his statement under section 342(1), Cr.P.C. vide Exh.18 and evidence of PW 1 Owais Ahmed Jaffri branch manager , PW 2 Muhammad Maroof Internal Investigator and PW-8 S.L.K Shahbaz I.O. also shows that the accused Javed Ibrahim had made such posting and on what strength he made such entries by using his ID is completely in obscure in view of the fact that on these dates co-accused Syed Kaleem Ahmed was no more working as branch manager . The record also shows that the amount of Rs,2850000/- and Rs,26 lacs were posted and transferred in the account of the accused Muhammad Shakir which were withdrawn by him vide cheques Exhs.3/E and 3/F. A perusal of cheque Exh.3/E shows that amount of Rs,18 lacs were withdrawn by the accused Muhammad Shakir on 8.3.2013 and through another cheque Exh.3/F an amount Rs,1050000/- were withdrawn on the same day viz 8.3.2013 by the accused Muhammad Shakir . The said withdrawal of the cheque has been deposed by PW 1 Owais Ahmed Jaffri and other witnesses including PW 3 Muhammad Maroof. The accused Muhammad Shakir in his statement under section 342(1), Cr.P.C. has also admitted that both the cheques Exhs.3/E and 3/F bears his signature but he had not received cash and has further alleged that amount of these cheques were not received by him because both the cheques on its reverse bears his one signature which is sufficient to say that he has not received the cash of those cheques. The said stand taken by the accused does not inspire confidence for the reason that on 7.3.2013 the accused Syed Kaleem Ahmed was no more working as branch manager and his assertion that he handed over the said cheques Exhs.3/E and 3/F to the accused Syed Kaleem Ahmed in presence of Owais Ahmed Jaffri branch manager inspire no confidence and Owais Ahmed Jaffri branch manager in his statement as PW 1 has not deposed about receipt of two cheques by the accused Syed Kaleem Ahmed from this accused in presence nor such fact has been put in cross examination by the defence counsel of the accused Muhammad Shakir to PW-1 Owais Ahmed Jaffri. The learned counsel for the accused Muhammad Shakir has not produced any law showing that on reverse of the cheque presented for encashment two signatures of recipients are mandatory even one signature on its reverse is sufficient regarding receipt of proceed of the cheque by the presenter , therefore no direct evidence is available on record to show that any amount in cash was paid by the cashier to co-accused Syed Kaleem Ahmed in response to their two Cheques Exh.3/E and Exh.3/F . It has also alleged against the accused Sajid that he has paid the amount of these cheques being cashier . Over all evidence as discussed above shows that the disputed cheque in the sum of Rs,2850000/- (which has not been produced in court) and two cheques Exhs.3/E and 3/F were paid by the accused Sajid after their clearance in all respects by the different officials who had to verify the antecedents as well as signature on the said cheques coupled with availability of amount in the said account as such in my humble opinion it could not be said that the accused Sajid wrongly made payments against these cheques. All the evidence available on record firmly shows that the accused Javed Ibrahim by using his ID posted the cheques in the sum of Rs,2850000/- and cash entries in the sum of Rs,26 lacs from the joint account if PW 9 Shaikh Hassan Salahuddin by using his ID in the account of the accused.
Muhammad Shakir and the accused Muhammad Shakir withdrew the said amount vide cheques Ex.3/E and 3/F, as such the case against both these accused stands proved beyond any reasonable doubt, whereas case against the accused Syed Kaleem Ahmed and Sajid is not free from reasonable doubt. Points are therefore answered accordingly ."
2. Having referred the above, learned counsel contends that on such conclusion, accused Muhammad Sajid Ahmed and Syed Kaleem Ahmed were acquitted whereas accused Javed Ibrahi m and Muhammad Shakir were convicted although it is a matter of recor d that as per FIR lodged by the concerned Bank, main allegations were against the acquitted accused persons. Learned counsel further emphasized on internal Bank enquiry wherein complete opportunity of hearing was afforded to the accused Syed Kaleem Ahmed and he (Syed Kaleem Ahmed) was found guilty . Having said so, the learned counsel lasted that impugned judgment is prima facie result of misreading rather non-reading of the available matter .
3. Learned D.A.G, on his turn, also conceded that main allegations were against accused Muhammad Sajid Ahmed and Syed Kaleem Ahmed as well that in internal bank enquiry both accused were found guilty hence impugned judgment on these counts is not legal which would require further probe and deep er appreciation of the evidence with regard to its legality or otherwise.
4. The picture prima facie surfaced from a perusal of impugned judgment as well from admission of the learned DAG that evidence/ material has not been appreciated properly while convicting the appellants and acquitting those who otherwise were found guilty in internal bank inquiry and were charged with main allegations in FIR. Such exercise appears to be not in conformity with settled principles of law. Here, it is material to add that the provision of Section 439(1) of the Code of Criminal Procedure 1898 does vest jurisdiction in this Court to exercise any of the powers, conferred on a Court of appeal not limited but includes Section 423(1)(a), Cr .P.C. which reads as:- "(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be tried or sent for trial to the Court of Session or High Court as the case may be, or find him guilty and pass sentence on him according to law;"
There can also be no denial to the legally established principle of law that such jurisdiction is never dependent upon a written application but notice of a patent illegality or excess of jurisdiction is sufficient. The picture, so came to notice during proceedings, require exercise of jurisdiction under Section 439(1) of the Code so as to properly examine this aspect which however requires a notice to the acquitted accused persons, as insisted under Section 439(2) of the Code. Accordingly, issue show-cause notice to acquitted accused Muhammad Sajid Ahmed and Syed Kaleem Ahmed as to why the jurisdiction under section 439(1) of Code be not exercised to extent of their acquittal through judgment impugned (came into notice during hearing of appeals in hand)?.
5. Besides, we are of the clear view that it is a fit case to suspend operation of the impugned judgment against Appellant/accused Javed Ibrahim because for suspending a sentence it is always sufficient if prima facie judgment of conviction opens a room for further inquiry because Sections 497 and 426, Cr.P.C. are analogous to each other .
Reference may be made to the case of Nazir Ahmed and another v. State and others (PLD 2014 SC 241). Further the appellant/accused Muhammad Shakir is already on bail on suspension of judgment. Accordingly the impugned judgment is suspended to the extent of appellant Javed Ibrahim too. He is granted bail subject to furnishing solvent surety in the sum of Rs,1,00,000/- and P .R. bond in the like amount to the satisfaction of the Nazir of this Court.