1. ABDUR REHMAN, J.--Since common ,questions of law and facts are involved in ail the above appeals, hence we are disposing of all these appeals by this common judgment.
2. These appeals are directed against the above judgments of Justice (Rtd.) Z.C. Valiani, Presiding Officer, Special Court of Sind (Banks) at Karachi, whereby the appellant was convicted in each of the case under section 409, P.P.C and sentenced to R.I. For 5 years in the first case and to various other terms in other cases. He was also sentenced to pay a fine of Rs.4,50,000 in the first case and various other amounts in other cases. In default of payment of fine he was further sentenced to R.I.
3. For one year or 6 months in each case. He was also convicted under section 477-A, P.P.C. And sentenced to suffer R.I. For 5 years in each case and to pay a fine of Rs. One lac. In default of payment of fine to suffer R.I. For one year or 6 months more. The substantive sentences under both the sections in all the above cases were directed to run concurrently.
2. Briefly stated the prosecution story is that appellant Huzoor Bux Samejo was working as Manager in Barhoon Branch of Habib Bank Ltd. From 22-3-1976 to 31-12-1976 in the first case. During this period he received in all Rs.2,82,470 in the first case. He also worked as such during various periods subsequent to that in other cases and received various amounts from various account-holders of that village, in those cases. The appellant gave counterfoils of pay in slips duly sealed and signed by him in token of receipt of the said amounts. He did not deposit the amount in the accounts of the account-holders and he criminally misappropriated the same. He also falsified the ledgers of account-holders in question and did not show any entry of the said deposits therein. The matter was investigated by F.I.A. And the appellant was initially challaned before the Special Judge (Central) Karachi. The case was then transferred to the Special Court of Sind (Banks) Karachi, on the promulgation of Ordinance IX of 1984. A fresh charge was framed by the said Court against the appellant under sections 408 and 477-A, P.P.C. On 29-10-1984, in first two cases, while in the other three cases the charge framed by Mr. Qari Atta Muhammad Special Judge A.C.E. (Central) was adopted.
3. The appellant pleaded not guilty to the charge and claimed to be tried. In his statement under section 342, Cr.P.C. The appellant denied to have received the amount in question. He also denied that he had given the counterfoils produced by the P.Ws. He also denied that the said counterfoils bear his signatures. He has alleged that he has been falsely implicated in this case due to personal enmity and political reasons which he has not elucidated.
4. At the trial several witnesses were examined including the Bank Officers, account-holders and the Investigating Officer. Several documents, inter alia, the counterfoils issued by the appellant the receipts of reimbursements made to the account-holders and the extract, of Bank ledgers and cash-Books were produced. The appellant did not examine any defence witness. A number of points for determination were considered by the learned trial Court. These related to the receipt of the amount of Rs.2,82,470 and various other amounts shown above by the appellant from the above account-holders during the period shown above and the misappropriation of the said amount by the appellant resulting in criminal breach of trust. It also came Into consideration whether the appellant had signed, sealed and given the counterfoils produced by the witnesses and that he had with intent to de-fraud, omitted to make entries in the relevant books of account of the Bank. All these points were decided againr4t the appellant by the learned trial Court.
5. Mr. M.A. Kazi, learned counsel for the appellant took us through the evidence on record. His first contention was that the evidence of the payments of the said amounts was not convincing.
4. According to him the oral evidence of P.Ws., who were account-holders of the bank was not to be believed. These witnesses were on hostile terms with him and, therefore, had given false evidence.
5. He further submitted that the counterfoils produced in this case were not issued by him. He denied the signatures on these counterfoils. He submitted that the learned trial Court was not justified in comparing these signatures with his signature on Vakalatnama, which was already on record.
6. According to him the learned trial Court who should have taken the signatures o; the appellant in its presence and then should have compared the same with the disputed signatures of the appellant on the counterfoils.
6. We have carefully considered the contentions raised by the appellant's counsel and we find that there is no merit whatsoever in the same. Admittedly the appellant was Manager of Barhoon Branch of Habib Bank Limited during the relevant period. The appellant has also not denied this fact. Reliable evidence of Bank Officers particularly P.W. Jaferri has come on record to show that the appellant was Manager of Barhoon Branch of Habib Bank Ltd, during the relevant time. He has further stated that on the complaint of customers of the Bank an investigation team checked the account books of the Barhoon Branch and detected that the amount of Rs.5,25,158.29 was criminal].' misappropriated from the said Branch by means of non--deposit of amount, received from customers, withdrawal 'by forged cheques, less credit; and manipulations ire the accounts of the customers. Account-holder, P.Ws. Hap Kamil Khan, Haji Ghulam Mustafa, Muhammad Hassan, Allah Ditto, Haji Jan Muhammad, Muhammad Sales, Ghulam Ahmed and Hai Muhammad Ismail were examined in the first case and many other account-holders in the other 4 cases. On the points that each of then had made deposit in his account or that of his family members. The amount was paid in cash to the appellant who after receiving the same signed and sealed the pay-in-slips in question in token of having received the amount and gave it to the individual witnesses. These witnesses have further deposed that this amount was fully or partly misappropriated by the appellant. Each of them have produced certified extracts of the account book showing that the same was not entered into the account by the appellant. They have also deposed that on coming to know of the embezzlement they lodged their claim with the Habib Bank and were duly reimbursed the same amount, the receipt whereof they have produced. The learned trial Court has given some of the evidence of all the P.Ws. In detail and the amounts deposited by them and the amount which was criminally misappropriated by the appellant alongwith documents referred to above. No useful purpose will be served by reproducing the same.
7. All these witnesses were cross-examined by the appellant's counsel but he could not shake the testimony of any one of them. The most of these P.Ws. Are respectable Zamindars and landlords of that area. The appellant was unable to suggest, what to say of proving any enmity or motive against any one of these witnesses. The learned trial Court was perfectly right in placing reliance on the evidence of these witnesses There was no reason whatsoever for these witnesses to speak a lie. They had no animus or motive to falsely implicate the appellant.
8. The next contention of Mr. M.A. Kazi, that the learned trial Court was not justified in comparing the disputed signature of the appellant with the signature of the appellant on the Vakalatnama is not tenable. He has relied upon section 84 of Qanun-e-Shahadat Order, 1984, which is similar to section 73 of Evidence Act, 1872 which reads as under:- "Comparison of signature, writing or seal with others admitted or proved-- (1) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although the signature, writing or seal has not been produced or proved for any other purpose.
(2) The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words of figures so written with any words or figures alleged to have been written by such person.
(3) This Article applies also with any necessary modifications, to finger-impressions."
9. He has referred to subsection (2) thereof and has argued that the Court should have directed the appellant to sign in Court and then compared his signature with the disputed signature. The contention of Mr. M.A. Kazi, on the face of it holds no water. Section 84 (1) gives power to the Court to compare the disputed signature of a person with his admitted signature or with the signature which is proved to the satisfaction of the Court. Subsection (2) of section 84 of Qanun-e--- Shahadat Order, 1984, gives an additional power to the Court to compare the disputed signature or handwriting of a person with the signature or handwriting of that person after obtaining the same in its presence. It is, therefore, not correct to argue that the Court has the only power of comparison provided under subsection (2). The signature on the Vakalatnama is nowhere denied by the appellant and was rightly treated by the learned trial Court as the admitted signature of the appellant. Even before us the appellant's counsel had not claimed that the signature on the Vakalatnama which was filed in the learned trial Court was not that of the appellant. We also compared the signature of the appellant on the various pay-in-slips with admitted signature of the appellant on the Vakalatnama, in presence of the appellant's counsel Mr. M.A, Kazi and counsel for the State Mr. A.S. Pinger and found that both of them were similar. Even the appellant's counsel was unable to show even a single point of dissimilarity between the admitted and disputed signatures.
10. All the above witnesses have stated that the appellant had signed all these counterfoils in their presence. Hence doubt is left in our minds that there was no truth in the denial by the appellant of his signatures, on the counterfoils produced in these cases. The oral evidence of these witnesses corroborated by the counterfoils produced by them has proved to our satisfaction that the appellant had received the above amount from them. The certified extract of the account books referred to above is in itself an evidence of the entries made in cash books etc. According to section 4 of Banker's Book Evidence Act which reads as under.- ---4. Subject to the provisions of this Act, a certified copy of any entry in a banker's book shall, in all legal proceeding be received as prima facie evidence of the existence of such entry and shall be admitted as evidence of the matter, transactions, and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible, but not further or otherwise."
11. It was contended that non-production of the original entries of the daily cash register is fatal to the prosecution case and in their place production of certified extract thereof would not be sufficient to prove the fact that the amount was not credited or duly entered in the same. The contention of the learned counsel for the appellant is devoid of any force whatsoever. It has nowhere been claimed by him that thief amount was credited by him in the daily cash registers. His case on the contrary is of a total denial of the receipt of the amounts and of' his signature on the counterfoils. Apart from that we have already pointed out that these certified extracts are relevant and admissible under section 4 of the Bankers Book Evidence Act to prove the existence of the entries in the relevant registers. It was, therefore, not at all necessary for the prosecution to produce the entries of daily casts' register or any other register or book of account in original. The, stand of the appellant that he had not received the amount in question from the P.Ws. Who have been examined in this case has already been proved to be false. The above witnesses all of whom are account-holder have unequivocally stated that they had given the cash in the hand: of the appellant alongwith the pay- in-slips. The appellant after receiving' the cash signed and sealed the counterfoils of the pay-n- slips and returned to the P.Ws. It is a matter of common knowledge that it is the practice of the banks that the account-holders or any body on his behalf delivers the cash in the bank alongwith the pay-in-slips. The, originals of the pay-in-slip is kept by the bank while the counter for thereof is returned to the account-holder duly signed and sealed. We can take judicial notice of the fact that Barhoon is a small village and that there is nothing unusual in a branch of a bank situated in a small` village that Manager should have accepted the amount himself and signed' and sealed the counterfoils and returned it to the account-holder. Although the appellant could have taken the plea that the amount used' to be received by the cashier and that the cashier might have criminally? Misappropriated the same and had taken his signature on the counterfoil", and delivered it to the account-holders but did not enter the same ill' the cash register, but he has chosen not to take this plea. Barhoon Branch being a small branch it was not possible even in these circumstances for the Manager to remain unaware of such an embezzlement which was being repeatedly committed in his branch. We find ourself it agreement with the finding of the learned trial Court that the appellant: has committed criminal breach of trust in respect of various amount for the various periods mentioned in the judgment.
12. Mr. M.A. Kazi however, pointed out that in Criminal Appeal. Nos. 68, 69 and. 70 of 1985 the charge was first framed under section 40, P.P.C., 5(2) of Act of 1947 and 477-A, P.P.C. And was subsequently; amended and section 477-A, P.P.C. Was deleted from there. Hence the accused was tried under section 408, P.P.C. Alone. In these three cases conviction of the appellant under section 477-A, P.P.C.
13. Is therefore, not correct. We find ourself in agreement with this contention; of Mr. M.A.Kazi. The appellant appears to have been taken by surprise in the above circumstances as there was conscious deletion of section;' 477-A, P.P.C. From the charge which would have given the appellant an impression that he was acquitted therefrom. Hence he would not: have been careful in defending himself against section 477-A, P.P.C. This in itself is sufficient to convince the Court that the appellant had no opportunity to meet the charge of falsification of accounts under section 477-A, P.P.C. By convicting him thereon the Court has done gross injustice to him. Reference in this connection be made to AIR 1958 All.225 where the charge was only for substantive offence, conviction for the substantive offence read with section 149 was held to be unjustified when the accused has no opportunity of defending himself against the charge of constructive liability and it was held that there was manifest danger of miscarriage of justice. We however do not feel it necessary to order retrial of the accused for the offence under section 477-A, P.P.C. Because the sentence awarded therein was to run concurrently with the sentence under section 408, P.P.C.
14. Which we are maintaining.
15. The appellant's counsel urged that the substantive sentence of imprisonment awarded to the appellant be reduced at least to some extent because the appellant has already lost his job, and has faced a protracted trial of several years. After hearing learned counsel for the State we are of the view that the sentence of 5 years' R.I. Be reduced to 4 years but the only impediment in our way is said to be that in subsection (2) of section 6 of offences in respect of Bank (Special Court Ordinance, 1984) it has been provided that the punishment under section 477-A, P.P.C. Shall not be less than 5 years. Hence the sentence awarded to the appellant is obviously the minimum imprisonment the Court is required to impose under the Ordinance. But it may be noticed N that the Ordinance came into force on 23rd February, 1984 and therefore, the amendment in section 477-A, P.P.C. Laying down the minimum limit of imprisonment became operative on that date. The appellant had committed these offences and was challaned in respect of the said offences on a date prior to 23-2-1984. Hence he was liable to be punished only in accordance with the law in force at the time of commission of the offence. Reference may be made to PLD 1969 SC 187 and PLD 1970 SC 264 in this connection. The latest case on this point is the unreported judgment in Criminal Appeal No. 72 of 1985, in which one of us (Muhammad Zahoorul Haq, J) was sitting in D.B.
16. With Munawar Ali Khan, J which has also taken the same view.
17. We, therefore, partly allow and partly dismiss the appeal and direct in nutshell as follows:- (1)Criminal Appeal No. 66 of 1985.-- Conviction under section 408 as well as 77-A, P.P.C. Maintained.
18. Sentences under both these sections are reduced to R.I. For 4 years. Imprisonment in default of fine under both these sections are also reduced to R.I. For 6 months each.
19. (2)Criminal Appeal No. 67 of 1985.-- Conviction and sentence under section 408, P.P.C maintained.
20. Conviction under section 477-A, P.P.C. Maintained but sentence reduced to R.I. For 4 years and imprisonment in default of fine reduced to R.I. For 6 months.
21. (3)Criminal Appeal Nos. 68, 69, and 70 of 1985.-- Conviction under section 408, P.P maintained.
22. Conviction and sentence under section 477-A, P.P.C. Are set aside. Sentence under section 408, P.P.C. Is maintained but and imprisonment in default of fine under section 408, P.P.C. Is reduced to R.I. For 6 months each.
23. With these modifications in convictions and sentences all the appeals are otherwise dismissed.
24. Orders with regards to payment of compensation to Bank out of amount of fine are also maintained.