AHMAD ALI U. QURESHI, J.--This judgment will dispose of the two Criminal Appeals Nos. 85 of 1985 and 87 of 1985 which have been filed against the judgment of the Presiding Officer, Special Court of Sind (Banks), Karachi, dated 30-5-1985, whereby in Case No. 144 of 1984, he convicted appellants, Ghulam Mustafa and Deedar Ali, under `section 408, P.P.C. I read with section 34, P.P.C. And sentenced each of them to suffer R.I. For five years and to pay fine of Rs.10,000 or in default to undergo R.I. For one year. He also convicted them under section 477-A , P.P.C. , read with section 34, P.P.C. And sentenced each of , them to suffer R.I. For five years and to pay fine of Rs.5,000 or in default to further suffer R.I. For one year.
2. The prosecution case in brief is, that the accused Ghulam Mustafa was working as e, clerk and accused, Deedar Ali, was working as cashier in the National Bank of Pakistan, Sita Road Branch. On 23rd April, 1975, P.W. Dhani Bux, who had an account in the said branch of the bank, came to deposit Rs.2,000 in the bank. He gave Rs.2,000 for the said purpose -to accused, Ghulam Mustafa, who filled in the deposit-slip on his behalf and got the signature on the counter-foil of the 'slip-for the receipt of Rs.2,000 from cashier, Deedar All. On the counter-foil the amount in words was written as Rs.1,000, whereas, in the figures it was shown as Rs.2,000. P.W. Dhani Bux, who did not know English writing but only could read English figures, was satisfied with the figure of Rs.2,000 written on the counter-foil. However, after some time, when he came to know about a fraud in the bank, he showed the counter-foil to his English knowing son, who pointed out the discrepancy in the amount in figures and in words. He filed such claim with the bank, who after due enquiry, reimbursed the amount to Dhani Bux. The Bank informed the F.I.A., Police Inspector, Shariff, registered the F.I.R. And started the usual investigation. He challaned the accused in Court of Special Judge (Central), from where case was received by the Trial Court, after promulgation of the Ordinance No. 9 of 1984.
3. The prosecution evidence consists on P.W. Abdul Malik, Exh. 4, P.W. Dhani Bux, Exh. 13; .P. W. Hifazat Hussain, Exh. 14 and P.W. S.M. Sharif Farooqui, Exh.
15. The appellants have not examined any witness in their defence. Both the appellants pleaded not guilty to the charges under section 408, read with section 34, P.P.C. And under section 477-A, read with section 34, P.P.C.
4. The enquiry against the appellants started with the claim filed by. P.W. Dhani Bux, with the Bank, that the amount credited in his account was only Rs.1,000 as against Rs.2,000, which he deposited.
He states in his deposition, that on 23rd April, 1975, he gave Rs.2,000 to appellant, Ghulam Mustafa, for depositing the same in his account, who gave him counter-foil, which is produced as Exh.
6. He saw the figures in English as Rs.2,000, but when he came to know about some fraud in the Bank, he got the counter-foil checked by his English knowing son, who found, that though amount in figures was mentioned as Rs.2,000, but it word:. It was shown as Rs.1,000. He, therefore, filed claim with Bank which is Exh.
5. He admits the fact, that the Bank reimbursed him Rs.1, 000 on account of his claim.
5. P.W. Hifazat Hussain, was Manager of the said branch of Bank at the relevant time. He states, that P.W. Dhani Bux, had Account No. D-17 in the said branch. He states, that Exh. 6 was written in., the handwriting of appellant, Ghulam Mustafa, but the amount mentioned under stamp as received in cash was in the hand of appellant. Deedar Ali, and bore his signature. He further states, that in the cash book which is Exh. 8, the relevant entry No. 8 of 23475 is in handwriting of appellant, Deedar Ali, which has been manipulated from Rs.2,000 to Rs.1,000. He states, that entry No. 7 in the Bank cash- scroll, Exh. 9, was prepared by him under his signature wherein amount shown is Rs.1,000.. He states, that Exh. 10 is a photo-copy of the statement of account of P.W. Dhani Bux, which shows, that only Rs.1,000 was credited to the account of Dhani Bux on 23rd April, 1975. He further states, that original pay slip of the counter-foil, Exh. 6, was not traceable.
6. P.W. Muhammad Abdul Malik, Exh. 4, succeeded P.W. Hifazat Hussain as Manager, also states that P.W. Dhani Bux, made complaint to him about the fact that Rs.1,000 was only credited in his account as against deposit of Rs.2,000. He has produced application of P.W. Dhani Bux, as Exh.
5. He states, that P. W. Dhani, Bux, produced counter-foil of the pay-slip, which he produced as Exh.6. He secured the counter-foil from Dhani Bux and gave him such receipt which is produced as Exh.
7. He has produced Exh. 8, in which the entry of Rs.2,000 has been manipulated as Rs.1,000. He further states, that this entry is in the handwriting of appellant, Deedar Ali. He produced Exhs. 9 and 10. He states, that he recommended the claim of P.W. Dhani Bux, to the head. Office and has produced the copy of his report as Exh.
12. The only other witness is P.W. 4, S.M. Sharif Farooqui, Exh. 15, who registered F.I.R. On 17-4-1979, which he has produced as Exh. 15/A. He arrested both the appellants and prepared Mashirnamas as Exhs. 15/B and 15/C, and submitted challan as Exh. 15/D.
7. However, the main corroboration, that the prosecution case gets is from the admissions of the appellants themselves in their statements under section 342, Cr.P.C. Appellant, Ghulam Mustafa, has admitted, that he did fill in Exh. 6 and its original and that it was due to mistake that there was difference in the amounts shown in words and figures. He, however, contends, that there was no such mistake in original pay-slip. He contends, that such mistakes do occur and has produced one counter-foil of deposit, made by one Muhammad Ramzan on 1-6-1983 in the Sita Road Branch of National Bank of Pakistan, wherein, in words the amount is shown Rs.3,008 only, whereas, in figures it is shows Rs.3,800. The mere fact the one illegality has been committed is no justification for commission of another illegality. Furthermore, the cashier in that respect has also shown the amount as Rs.3,800 and there was no dispute, that the amount of Rs.3,800 was deposited: He also admits, .That the posting in the ledger book, Exh. 1G, is in his handwriting, wherein Dhani Bux's account it respect of 23rd April, 1975, only a sum of Rs.1,000 is shown as posted but states, that it is based on the original pay slip. He claims enmity with Dhani Bux.
8. Appellant, Deedar Ali, also admits in his statement, that Exh. 6 bears his signature, and that Rs.2,000 in figures over the seal are in. His handwriting. He also admits, that in Exh. 8 he corrected figure from Rs.2,000 to Rs.1,000. However, he claims, that he did not receive any amount from Dhani Bux, who paid the same to Ghulam Mustafa, who did not pay the amount to him, but ultimately paid him Rs.1,000.
9. It is contended by Mr. Abdul Fateh Memon, learned counsel for appellant; Ghulam Mustafa, that appellant, Ghulam Mustafa, was only a clerk, and as a clerk nether it was his duty to fill in the pay slip on behalf of the clients, nor could he receive any cash on behalf of bank. He submits, that appellant, Ghulam Mustafa, filled the pay slip on behalf of P.W. Dhani Bux, as a courtesy, but he did not receive any cash from Dhani Bux, nor he passed on any receipt for the same. He admits, that the discrepancy in amount in figures and in words on the counter-foil Exh. 6, but states, that it was bona fide error and such errors do happen from time to time but his client` had written correct amount in figures as well as in words which was Rs.1,000 on the original pay slip on the basis of which Exhs. 9 and 19, were prepared. He submitted, that Dhani Bux had deposited only Rs.1,000, which would have been apparent, if the original pay-slip had been produced, which had been purposely misplaced by the Bank officers in order to implicate the .Appellant. He further argued, that the Bank business starts after the cash is received by the cashier and. Other authorised employees of the Bank. As a clerk the appellant could not receive any cash on behalf of the Bank.
Hey has further drawn attention of the Court to the complaint of P.W. Dhani Bux, which is produced as Exh.
5. In the complaint, P.W. Dhani Bux, has stated as under:--- "On 23rd. April, 1975, I gave Rs.2,000 (Rupees two thousand) to one Ghulam Mustafa Khoso, a clerk in National Bank of Pakistan, for depositing the same in account. He issued me such receipt and delivered the amount 'to the cashier, Deedar Ahmad, in my presence."
It is argued by the learned counsel, that even if any amount was paid to Ghulam Mustafa, according to the admission of P.W. Dhani Bux, in his application, Exh. 5, in his presence the amount was delivered to cashier, Deedar Ali, who issued the receipt, Exh.
6. It. May be pointed that in Court, P.W. Dhani Bux, does not state, that appellant, Ghulam Mustafa, paid the amount to Deedar Ali in his presence, nor such question was suggested to him in the cross-examination to enable him to explain the contradiction. Mr. Abdul Fateh Memon, also relied upon the report of P.W. Muhammad Abdul Malak, which is produced as Exh. 12, on 'the basis' of which the-claim of P. W. Dhani Bux, was satisfied by the Bank. This report shows, that no other person except the cashier was involved in the case.
10. It is contended by Mr. Khanzada, that without receiving the actual cash, relying upon appellants Ghulam Mustafa, Deedar Ali, signed the counter-foil, showing the receipt of amount of Rs.2,000. He further contends, that the original receipt itself showed amount as Rs.1,000 both in words and figures which in fact was the amount he received and on basis of which, he corrected the entry, Exh. 8, and other entries, were also made on the basis of original receipt, which has been purposely misplaced by the Bank Officers to implicate him. The learned counsels have attacked the credibility of P.W. Hifazat Hussain, who was Manager at the relevant time. This witness admits in cross--- examination, that one embezzlement case is pending against him in the Court. He has further admitted, that it was his duty as Manager to supervise and authenticate all the records of the Bank.
He admits, that in Exh. 8 the correction in respect of Rs.2,000 was made by the cashier, when he showed him, the original pay-slip which showed only Rs.1,000. He admits, that correction was neither initialled by him nor by the cashier. He has denied the suggestion, that he had committed fraud and was now involving the appellants. He admits, that all the vouchers, receipts are sealed and kept in the custody of the Manager in the Bank premises, but after one month such vouchers are put in the bag and dumped in godown. He has denied the suggestion, that he had destroyed the original pay-slip. This witness has further admitted, that Exh. 9, which is cash scroll, is prepared in his handwriting and Exh. 10 is initialled by him. It is argued by Mr. Abdul Fateh Memon, learned counsel for the appellant, that no reliance can be placed on the evidence of such witness, who is admittedly an accused person in embezzlement case, and on whose suggestion, correction was made in entry but for the reasons best known to him, he neither initialled it nor he asked the cashier to initial it, and has also misplaced or destroyed the original pay-slip which was in his possession.
Learned counsel argued, that all these contradictions, discrepancies in his statement, indicate that he himself committed this fraud. This witness appears to have failed in the performance of his duty as he did not take steps to find out the reasons of discrepancy which he pointed out to the cashier and corrections were made. Sits is a small town, he could even have called the account-holder to find out as to what amount he actually deposited on that day. The very fact, that he left the corrected entry un initialled by himself or by the cashier raises a doubt. It is really strange, that the authorities concerned have ignored this conduct of the Manager. Under the circumstances, it will not be safe to rely upon his evidence.
11. We have to judge the prosecution evidence keeping in- mind the admissions of the appellants themselves. P.W. Dhani Bux, positively states, that he gave Rs.2,000 to appellant. Ghulam Mustafa for depositing the same in the Bank by filling the pay-slip. He is corroborated in this by the fact, that even the cashier has shown on. Exh. 6 in his handwriting to have received Rs.2,000. On his application his case was considered by Bank authorities and after proper enquiry, he was reimbursed the amount of Rs.1,000. The Banks are very reluctant to, make any payment and would have made payment after due enquiry and consideration. There can be no doubt, that P.W. Dhani Bux, had paid Rs.2,000 to Ghulam Mustafa for depositing the same in his account. The cashier, Deedar Ali, has himself issued receipt of Rs.2,000 which amount he himself wrote in figures on the receipt viz. Exh, 6, therefore, he will be presumed to have received Rs.2,000 unless he proves otherwise. There is no evidence, apart from his sole word, that he did not receive Rs.2,000 but he received Rs.2,000. In his statement under section 342, Cr.P.C. As well as in the arguments of his counsel, stress is put upon the statement of P.W. Dhani Bux, in the Court, that he made payment to appellant, Ghulam Mustafa, and not to Deedar Ali. As already pointed in his complaint, which is produced as Exh. 5, this witness has stated, that accused, Ghulam Mustafa, gave the amount in his presence to accused, Deedar Ali. Be as it may his own writing on exhibit shows, that he has received Rs:2,000.
12. It is contended by the learned counsels and the appellants in their statement, that in fact amount received was Rs.1,000 which was correctly shown in the original pay-slip, which has been misplaced by the Manager to implicate the appellants. Appellant, Deedar Ali, states in his statement, that he does not know, what was the amount written on the original pay-slip. Exhs. 8, 9 and 10, were prepared by the appellants and the Manager, mainly on the basis of the original pay- slip. If the original pay-slip was Rs.1,000 only, then the appellant, Deedar Ali, would not have entered Rs.2,000 in the cash register viz. Exh. 8, and there would have been no necessity of his correcting that amount. Similarly, appellant, Ghulam Mustafa, admits to have posted Rs.1,000 in the account of Dhani Bux in the ledger book which entry is produced as Exh.10. This ledger book was prepared on the same date on which amount of Rs.2, 000 was received by this appellant from Dhani bux. If he was not a party to this embezzlement, he would have brought this fact to notice of the Manager that he received Rs.2.000 which he had given to appellant, Deedar Ali, but only Rs.1,000 was being shown in the ledger book. His explanation, that he simply prepared this ledger book from original pay-slip on which Rs.1,000 was shown, has no force under the circumstances of the case.
13. It is argued, by the learned counsel for the appellant, Ghulam Mustafa, that even if appellant, Ghulam Mustafa, received Rs.2,000 and paid Rs.1,000 to Deedar Ali, still he would not deemed to have committed any misappropriation with respect to the Bank, because he was not authorised I to receive the cash, and the banking business in A fact starts with receipt of cash by the cashier and that if he has committed any misappropriation it would be with respect to the amount of P.W.
Dhani Bux. It may not be possible for us to agree with this submission of the learned counsel.
Appellant, Ghulam. Mustafa, was working as employee of the Bank and in that capacity, he was handed over the amount by Dhani Bux for passing it on to the cashier, after filling the pay-slip. Had he not been a clerk in the Bank, it was unlikely that P.W. Dhani Bux, would have entrusted this amount to him. He contends, that P.W. Dhani Bux, has got enmity with him and has given evidence at the instance of one Sohbat Khan Khoso. It may be pointed, that no such question has been put to P.W. Dhani Bux. The evidence on record and circumstances of the case shows, that Rs.2,000 were paid by Dhani Bux to appellant, Ghulam Mustafa who either paid it to Deedar. Ali or kept the same with himself on behalf of cashier, who issued the receipt Exh.
6. Later on finding this discrepancy in the amount shown in figures and words either with or without connivance or blessing of the Manager, the appellants conspired to capitalize' on this discrepancy and misappropriate the amount of Rs.1,000. Hence Deedar Ali made correction in Exh. 8 and appellant, Ghulam Mustafa, made false entry in Exh.
10. All these acts were done by both the appellants in their capacity as employees of the Bank. Thus, the prosecution case against the appellants is proved beyond any reasonable doubt.
14. Next we come to the question of the punishment. While awarding the punishment the Court has to keep into consideration number of factors, including the age and sex of the accused, the gravity of offence, the effect of the offence over the society, the social status of the accused, his capacity to bear the penalty, the period which he has remained as under-trial prisoner, the time consumed in the completion of the trial, the effect of the punishment over his future life and that of his family and so forth. For the above reasons, the legislature generally leaves the quantum of the punishment to the discretion of the trial Court fixing the maximum punishment that could be awarded. In extremely serious offences sometimes the discretion of the Court is curtailed and minimum punishment is provided.
15. In the instant case the offence was committed on 23-4-1975. The challan was submitted in the Court of Special Judge (Central), on 17-4-1982, vide Exh. 15-D. The appellants have been convicted under sections 408 and 47 7-A both, read with section 34, P.P.C. At the relevant time when the offences was committed or when the challan was submitted, the offences were triable by the Special Judge (Central) and the offence under section 477-A was punishable with imprisonment for a term which may extend to seven ears or with fine or with both.
16. However, with the promulgation of the Ordinance 9 of 1984, the offences have been made exclusively triable by the Special Court (Banks) Sind, and the punishment of offence under section 477-A has been modified under Schedule 2 which provides, that the punishment shall not be less than five years. The maximum punishment has not been altered. This Ordinance came into force on 23-2-1984.
17. If the trial of the appellant had been concluded before 24-2-1984 or if they had pleaded guilty when they were challaned, they could have escaped even with punishment of fine only, but for the same offence now they have to be awarded minimum punishment of five years.
18. We have to see whether the provision with regards to minimum punishment is retrospective in applicability or will be only applicable to the offences committed after the promulgation of the Ordinance.
19. In constructing whether statute has retrospective applicability or is prospective, we have to keep in view the cardinal principle which says, that all the legislation is presumed to be prospective, unless by express words or necessary intendment, the Court finds, that the legislation in question is calculated or designed to have retrospective effect, then too also no mere effect by way of retrospective operation would be given to it, than is absolutely necessary.
20. To come to a finding if this Ordinance has retrospective applicability, if so, to what extent, we have to refer to the relevant provisions of Ordinance. The relevant provision as to the procedure are contained in section 4(1)(3)(7) which reads as under:-- "4.Schedule offence to be tried by Special Court.-- (1)Notwithstanding anything contained in the code, the scheduled offences shall be triable exclusively by a Special Court.
(3)All cases relating to a scheduled offence pending in any Court other than a Special Court immediately before the commencement of this Ordinance, shall on such commencement stand transferred to the Special Court having jurisdiction over such cases.
(7)In cases transferred to a Special Court by virtue of subsection (3) or subsection (4), any bail granted to an accused person by the Court which tried the case before the transfer shall stand cancelled."
The relevant provision as regards the punishment is section 6, which reads as under:-- "6.Powers of Special Court--- (1)Subject to subsection (2) and subsection (3), a Special Court may paste any sentence authorised by law and shall have all the powers conferred by the Code, on a Court of Sessions exercising original jurisdiction.
(2)For the purposes of this Ordinance, the previsions of the Pakistan Penal Code (Act XLV of 1860), specified in the Second Schedule shall have effect subject to the modifications specified therein (3)Where a Special Court passes a sentence of fine, whether in addition to any other punishment or not the amount of such fine shall be fixed by it having regard to the gravity of the offence for which the accused person is convicted and, where the Special Court finds the offence to have been committed in respect of a specified amount, shall not be less than twice the said amount.
(4)Where a Special Court passes a sentence of fine, the Court shall order the whole or any part of the fine recovered :o be applied in the payment to the bank in respect of which the offence was committed of compensation for the loss caused to it by the offence."
This modification/ amendment of punishment is in the substantive law viz. Pakistan Penal Code, and, therefore, its retrospective applicability cannot be presumed in absence of any such specific provision in relevant law. The relevant provision viz. Subsection (2) of section 6 does not either explicitly or impliedly provide that the modification in the provision of Pakistan Penal Code as specified in second schedule would have retrospective applicability. It may be pointed that no minimum punishment has been prescribed for the offence under section 408, P.P.C.
21. In the instant case the amount, in respect of which the offence is committed, is only Rs.1,000. The appellants were petty employees of the Bank viz, clerk and cashier, and have already lost their job with no hope of finding any job in future. Enquiry against them commenced in 1977 and the trial is pending since 1982 at Karachi. They have been coming to Karachi to attend Court on number of dates of hearing and must have undergone lot of expenses in the process. Under the circumstances, we take lenient view in the matter. The appellants have been remained in jail for more than 6 months after trial Court convicted them by the impugned judgment. In the circumstances while maintaining the conviction of the appellants under each Court we reduce the sentence to one already undergone and further reduce the fine to Rs.2,000 on each of the appellants under each count or in default the appellants to undergo further R.I. For two months. Out of the fine, if paid Rs.1,000 are awarded to the National Bank. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.