1. ABDUL QADEER CHAUDHARY, J.-----This appeal is directed against the judgment, dated 31st August, 1985, passed by the Presiding Officer, Special Court (Offences in Banks) Karachi by which he convicted the appellant under section 468, P.P.C. And sentenced him to suffer R.I. For 4 years and to pay fine of Rs.1,20,000 and in default of payment to suffer further R.I. For two months and also convicted him under section 471, P.P.C. And sentenced him to suffer R.I. For 3 years and to pay fine of Rs.1,20,000' and in default of payment of fine to suffer further R.I. For two months and also convicted him under section 408, P.P.C. And sentenced him, to suffer R.I. For four years and to pay fine of Rs.1,20,000 and in default to suffer further R.I. For six months. However, he directed that substantive sentences under sections-468/471 and 408, P.P.C. Shall run concurrently.
2. The facts in brief are that the appellant was tried by the learned Presiding Officer, Special Court, under section 420/468/471/409, P.P.C. Read with section 5 (2) of Act II of 1947 on the allegation that the appellant was working as Accountant in the Nursery Branch of M.C.B. Karachi. He opened fictitious C. Account No.586 on 4th June, 1980 in the name of Al-Pak Traders Suppliers and he attested the signatures of Mr. Qurban Hussain, the proprietor of the said firm on account opening form etc. It was further alleged that between 4th June, 1980 to 20 April. 1981 accused credited a total sum of Rs.57,700 by fictitious credit entries. The prosecution examined P.W.1 Mst. Hafiza, P.W.2, Qurban Hussain, P.W.3 Mohammad Javed Khan, P.W.4 Syed Mohammad Nawab, P.W.5 Mohammad Shamsuddin, P.W.6 Umer Saleem, P.W.7 Syed Khurshid Ahmed and P.W.8 Mohammad Khalil.
3. The accused was examined under section 342, Cr.P.C. In which he denied the allegations made against him. He did not produce any defence.th The trial Judge after assessm ent of the evidence came to the conclusion that the offences for which he was punished stood proved. The trial Court framed the following questions for determination:--- (1)Whether accused was working as Accountant in Nursery Branch of M.C.B. At Karachi and was incharge of handling machine and for maintenance of ledger sheet in addition to his other duties?
4. (2)Whether on 4-6-1980 accused opened a Current Account No.586 in the name of AI-Pak Traders Suppliers in the Nursery Branch of M.C.B. And himself attested the alleged signatures of its proprietor Qurban Hussain on the account opening form and other connected documents and was operating the said account in the name of Qurban Hussain?
5. (3)Did accused credited Rs.57,700 fraudulently by fictitious credit entries in Account No. 586 between 4-6-1980 to 20th April, 1981, by debiting the said amount in the ledger sheets of Accounts Nos. 587 and 72?
6. (4)Did accused withdraw Rs.51,310 from. Account No.586 after making fictitious credit entries by 18 cheques i.e. Exh.4/A to 4/A-17 and committed criminal breach of trust in respect of the said amount over which he had domain?
7. (5)Did accused forged the signatures of Qurban Hussain, the alleged proprietor of Al-Pak Traders Suppliers Account No.586 and presented the said cheques for encashment as genuine with full knowledge, that they were forged cheques and were not signed by P.W.2 Qurban Hussain, the alleged proprietor of said firm and realized their proceeds?
8. (6)What offences if any accused has committed?
9. He relied all the questions in affirmative and convicted the appellant. It has been established though the evidence of P.W.4 Syed Mohammad Nawab, P.W.6 Umer Saleem and P.W.7 Syed Khurshid Ahmed that the appellant was working as Accountant in the Nursery Branch of M.C.B. The appellant had also admitted this fact. He was Accountant in this Branch since 12th June, 1979.
10. As regards the opening of the Current Account No. 596 in the name of Al-Pak Traders Suppliers, the prosecution examined P.W.3 Mohammad Javed Khan who was working as Assistant in Nursery Branch since 28th May, 1979. He has stated that the signatures of Qurban Hussain on Exh.3/A and 3/B were attested by the accused in the opening form of account. This statement was corroborated by P.W.7 Khurshid Ahmed who was Manager in Nursery Branch from 4-7-1979 to 28th August, 1980. The accused has also admitted this fact. P.W.2 Qurban Hussain who is brother-in-law of the accused in his deposition stated that he had neither opened Account No.586 nor he signed on Exh.2/A and 2/B. He had also not admitted his connection with Al-Pak Traders Suppliers. It is thus established that the Current Account No-586 as operated had been opened by the appellant himself. P.W.4 Syed Mohammad Nawab has identified the signature of the appellant on cheque Exhs.4/A-9. He had issued token in respect of this cheque to accused Asghar Ali and also made payment of this cheque to accused Asghar Ali. He did not ask accused to sign at the back of this cheque as he told him that Qurban Hussain was his brother-in-law and had already signed twice.
11. This witness has also stated that he made payment of cheques Exh.4/A, A-1, A-2, A-3, A-4, A-5, A-6, A-7, A-8, A-10, A-11, and A-12. He has also stated that he made payment of cheques Exh.4/B-2 and B-3 to the appellant as he had already signed these cheques in Gujrati. The appellant has stated that he attested the signature of Qurban Hussain on the account opening form. It was genuine account though this fact is contradicted by Qurban Hussain. P.W.6 Umer Saleem has stated that debit and credit entries in respect of Rs.57,700 on Exh.7/F-2 are initialled by accused. P.W. Umer Saleem who was Manager of M.C.B. Nursery Branch has stated that after taking over as Manager of this Branch; about 3 or 4 months thereafter, one day accused was absent and it was the balancing day when a clerk (Javed) of the bank came to him and informed him that the balance was out and as such he directed the staff to check the accounts properly so that mistake could be corrected. Accordingly, when checked the accounts of National Cements, S.B.H. Shah, it was found that certain entries in the said account were not supported by corresponding debit vouchers. It was detected that these amounts were credited in C.A. No. 586 in the name of Al-Pak Traders Suppliers. The accused admitted the fact that this account was opened by him and he did all these things and has misappropriated a total sum of Rs.57,700 by fictitious entries. He; therefore, filed the complaint Exh.7/A. He produced the same as Exh.7/B which included 18 cheques Exh.4/A to 4/B 17.
12. The accused also admitted in writing Exh.7/C about his guilt. He has further stated that a sum of Rs.57,700 which was deposited by way of transfer from the accounts of National Cement, S.B.H.
13. Shah and Sale Depot No.47 and credited in Account No.586 and withdrawn by accused by Exh.4/A to 4/A-17. He also produced Exh.2/A in respect of account No.1719, the cheque book of which was recovered from the drawer of accused. This account is in the name of accused's were and some of the proceeds of Exh.4/A to 4/A-17 were credited in Account No.1719. Exh.7/C bears the signature of the appellant and this he admitted that he opened a C/A 586 in the name of A1-Pak Traders Proprietor Qurban Hussain in June, 1980 and all the credit entries are fictitious and these credits are done by him by way of lessening the balance in the C/A Sales Depot by A/C 587 operated by S B H Shah and by debiting quarterly interest in C/A 72 National Cement Industries Limited. This was done without any Credit, Debit Vouchers and to take Rs.57,700 and the same amount was drawn by him partly. He further admitted that at present the balance in this A/C is Rs.6938 and that there is not any other A/C in which he had done fictitious entry and no one of staff was linked with him in this connection The appellant admitted the extra-judicial confession but it is stated that it was obtained under duress but there is no proof of this. Though the appellant has resiled from extra- judicial confession but has failed to show that what duress was given to him. There is no proof of it.
14. Thus the case against the appellant rests on the direct evidence coupled with the documentary evidence. No enmity whatsoever has been alleged against the witnesses. The report of the Handwriting Expert Mohammad Naseer is also against the accused. There is no reason to give statements against the appellant by the witnesses. One of them is his brother-in-law. The case against the appellant has been fully established and he has been rightly convicted under sections 468, 471 and 408, P.P.C.
15. The learned counsel for the appellant has submitted that the sentence is harsh. It has been recorded in view of Ordinance IX of 1984 (Offences in respect of Banks (Special Courts) Ordinance).
16. According to the Ordinance the punishment under section 468 shall not be less than four 'years and so also for an offence under section 471 the punishment shall not be, less than one year. This Ordinance came into force on 23rd February, 1984 but in the present case the offence stated to have been committed during the period from 4-6-1980 to 20-4-1981. The F.I.R. Was recorded on 20- 4-1981 and the charge was framed on 10th November, 1983. The conviction was recorded on 31st August, 1985. It is therefore, clear that the offence has been committed prior to the promulgation of the Ordinance IX. Similarly charge was/also framed before the enforcement of the said Ordinance.
17. Therefore, the provisions of this Ordinance with regard to the minimum punishment as provided in the Schedule of this Ordinance would not apply with retrospective effect. In this behalf the reliance has been placed on they case of Abdul Majid and another v. The State reported in PLD 1974 Kar.
18. 309 and the relevant observation is as under:- "We have imposed the sentence of "transportation for life" and not "imprisonment for life", as under Article 11 of the Interim Constitution, the law cannot authorise the punishment which was not in existence at the time of the act or offence and since at the tithe of offence, murder was punishable with transportation for life and not imprisonment for life. The Law Reforms Ordinance, Article 129 does not expressly or by implication apply retrospectively. The question of sentence is part of substantive law and does not fall under procedure law: as such the amendment has no retrospective effect. As stated in section 6 of the General Clauses Act, the amendment does not affect any penalty or punishment already incurred, or substantive right or liability already accrued.
19. Generally speaking section 6 of the General Clauses Act, 1897 does not deal expressly with the effect of amendment of an Act, but there is no difference between amendment of an Act and its repeal and re-enactment, as held in the case of Screed Ahmed v. The State PLD 1964 SC 266. All rights and liabilities continue in spite of repeal and all proceedings already pending continue as if the amendment had not come into force. For every amendment is in effect a repeal of that part of the Act, in the form in which it stood previously. There is thus no difference between repeal and re- enactment and an amendment. The same view has been taken in State v. Muhammad Jameel PLD 1969 SC 681. Emphasis has been laid in that case on the point that when the law is altered during the pendency of an action, the rights of the parties are to be decided according to the law as it existed when the action was taken, unless the new Act or amendment, expressly shows clear intention to vary such rights, with retrospective effect."
20. We respectfully follow this authority and hold that the provision of Ordinance IX of 1984 would not apply to the present case. The F.I.R. Was lodged on 20-4-1981 and the appellant has faced trial for sufficient long time. He remained in police custody for 1-- months. The total amount of embezzlement is more than Rs.51,000 and about Rs.6,93s are' still lying in the account. He was convicted on 31st August, 1985, and is in prison since then. Therefore, we are of the view that the interest of the justice would be fiat if substantive sentences under sections 468/471 and 408, P.P.C.
21. Are reduced to already undergone on each count and fine of Rs.50,000 under section 468, P.P.C. In default four months and Rs.5,000 under section 408, P.P.C. In default two months. The substantive sentences are to run concurrently.
22. By our short order, dated 4-2-1986 we had dismissed this appeal but reduced the substantive sentence on each count already undergone and fine of Rs.55,000 under sections 468 and 408, P.P.C. Or in default, R.I. For six months and the above are the reasons of our short order.