1. JUDGMENT MAMOON KAZI, J.--This appeal arises from judgment passed by the learned Presiding Officer Special Court of Sind (Banks), Karachi, dated 31st December, 3984, whereby appellant S.M.
2. Sardar Jafri was convicted for committing offences under sections 408/109,471 and 477-A P.P.C. For offence under section 408/109, P.P.C., the appellant was sentenced to undergo R.I. For five years and pay a fine of Rs.2,00.000. For offence under section 471, P.P.C. , he was sentenced to undergo R.I. For 3 years together with a fine of Rs.25,000. The appellant was further sentenced to undergo R.I. For five years and pay a fine of Rs.25,000 for offence under section 477-A, P.P.C. In default of the payment of fines, the appellant was further sentenced to R.I.
3. For one year. All the sentences were to run concurrently. The case of the prosecution against the appellant is that the appellant was posted as Officer, Grade-II and Incharge of C.D. Department of Habib Bank Ltd., Bunder Road Branch at Karachi. It is said that Messrs Hussain Shaikh All and Sultan Shaikh Ali had opened a C.D. Account No.4399/94 in the said Branch which they stopped operating since 3-3-1969. It is then alleged that the appellant in order to fraudulently withdrawn a sum of Rs.83,170 from this account, issued a cheque book on 30th September, 1980, containing cheques from serial No.078926 to 078950, in Form 'A' instead of Form '13'. The appellant also verified the signature of the account-holder on the requisition slip. It haS been further alleged that the appellant, by forging signature of the account-holder, on the cheques withdrew a sum of Rs.83,170 from the said dormant account between 30-9-1980 and 2-10-1980. The appellant also passed the cheques, which were forged as genuine. It was further alleged that the appellant realised the amount of Rs.83,170 from the Bank and criminally misappropriated it. The appellant also falsified the account ledger to cover up this fraud. It was further alleged that when the fraud was discovered, the appellant made a confession in writing before the Senior Officers of the bank.
4. Admitting the said fraud and also repaid the said amount of Rs.83,170 to the Bank.
5. On the discovery of the fraud, a complaint in writing was sent by the Bank to the Federal Investigation Agency on the basis of which F.I.R. No.15 of 1981 was lodged. The investigation was then conducted by Muhammad Ishaque Inspector F.I.A., P.W.8, who arrested the appellant on 26th May, 1981. Muhammad Ishaque also recorded statements of prosecution witnesses and obtained specimen of handwriting and signatures from the appellant, before A.C.M. Mr.Munawar Opal which were later forwarded to Mr. Chughtai, the handwriting expert, who sent his report, dated, 28th January, 1981 to the P.W. Muhammad Ishaque also seized certain relevant documents from the bank and prepared memo. Exh.16. Thereafter, nine challans were submitted by the witness in the Court of Special Judge (Central), Karachi from where the cases were transferred to the Special Court of Sind (Bank) Karachi after coming into force of the Banks (Special Courts) Ordinance (No.IX of 1984). The learned Presiding Officer consolidated the nine cases and framed one charge against the appellant. While the prosecution evidence was being recorded, the learned Presiding Officer also joined P.W. Muhammad Zubair and P.W. Muhammad Ghazni as co-accused in the case and reframed charge against all the three accused in the case to which they pleaded not guilty. After framing of the charge of the learned Presiding Officer recalled the prosecution witnesses for cross- examination by the accused. The two accused joined as co-accused with the appellant in the case were, however, acquitted by the learned Presiding Officer as according to him no offence against any of the two co-accused was proved.
6. The appellant in his statement under section 342; Cr. P.C. Admitted to have issued the cheque book in question on Form 'A'. He however, stated that such a course adopted by him was not illegal as the signature of the account-holder on the requisition slip was not forged. The appellant also admitted to have verified the signatures of the account-holder for the same reasons. The appellant also admitted to have closed Account No.4399/94 under his signature on 2-12-1980, although according to him ,that was done under the directions of the account-holder. About the admission of his guilt made in writing before the superior officers, of the Bank, the appellant stated that his signature on such writing was obtained under coercion in respect of which the appellant had also lodged a report to the police. The appellant also filed a written statement before the learned Presiding Officer.
7. The prosecution examined six witnesses besides Muhammad Zubair and Muhammad Ghazni who were later joined by the learned Presiding Officer as co accused in the case. On the basis of the evidence of these witnesses the learned Presiding Officer came to a conclusion that the appellant in order to defraud the bank of Rs.83,170 had passed forged cheques as genuine, made false entries in the account ledger and had abetted the misappropriation of the said amount of Rs.83,170 over which he had domain as employee of the Bank.
8. Before us, it has not been denied that the joint C.D. Account No.4399/99 in the name of Husain Shaikh An and Sultan Shaikh All had been opened in January, 1959 and after 3-3-1959 it had remained unoperative. It is also not disputed that this amount of Rs.83,170 was lying in balance in such account It is also an admitted position that the appellant was incharge of C.D. Department in the Bunder Road Branch of the Habib Bank at the relevant time and had issued the cheque book in question on Form 'A' instead of Form 'B'. It has also not been denied that all the cheques in question which were presented after the closing hours of the bank had been verified by the appellant. The closing of the account in question on 2-12-1980 by the appellant is also not denied. It is now to be determined whether the guilt of the appellant has been sufficiently established. Mr. Raja Kureshi, the learned counsel for the appellant has taken us through the relevant material available on record. The contention of the learned counsel has been that the prosecution has failed to bring to me the guilt to the appellant. The main witness in the case is Muhammad Yousuf P.W.1. According to this witness he was officiating as Manager at Bunder Road, Branch of the Habib Bank at the relevant time. On 30 9-1980 a cheque book containing cheques from serial 078926 to 078950 for C.D. Account No. 439E. 94 was issued at the said Branch of the Bank. The signature of the account holder on the requisition slip was on Form 'A' which was verified by the appellant. The witness further stated that such signature on the requisition slip had been forged. The witness further deposed that when a new account is opened the cheque book is issued on Form 'A' but when a cheque book is lost or exhausted, Form 'B' is issued. In that case a guarantee form from another account holder is taken. The average 'balance of such account-holder in the bank should be sufficient to meet the amount of the account-holder to whom Form 'B' is being issued. It was further stated by the witness that on 27-4-1981 when the actual holder of the account in question came accompanied by a Senior Bank Official, it was then discovered that the account had been closed by the appellant on 2-12-1980. The witnesses also deposed that the entire amount of Rs.83.170 had been repaid by the appellant to the Bank. An admission is writing (Exh. 4) was also made by the appellant before the Area Chief of the Bank in which the appellant had confessed to have defrauded the Bank. The witness further stated that for issuance of cheque book on Form 'B' permission of the Area Chief and the Manager of the Bank is required but no such permission was taken by the appellant. According to the witness all the cheques through which the amount was fraudulently withdrawn were cancelled by the appellant. There was no posting of such cheques in the account ledger although such posting was necessary. The appellant also failed to put "dormant" stamp on the nine cheques in question and also failed to issue tokens against the cheques which ought to have been issued. The evidence of this witness is supported by Ismail Ghulam All Tinwala P.W .2 and Sohail Jan Muhammad P.W.4. P.W Ismail Ghulam Ali Tinwala stated that the application for issuance of cheque book in respect of Dormant C.D. Account No.4399/94 on Form A' was wrongly entertained as such cheque book ought to have been issued on Form 'B'.
9. The witness also identified the signature of the appellant on the requisition slip as according to him he was conversant with the signature of the appellant since the appellant had been working under him. P.W. Sohail Jan Muhammad was a token clerk in the Bunder Road, Branch of the Habib Bank.
10. He deposed that the nine cheques Exh.17/1 to 17/9 were entered in the ledger by him but without any token numbers. According to the witness the payment of these cheques were made after banking hours on the same day under the directions of higher officials .
11. On the basis of the evidence of these witnesses the learned Presiding Officer has concluded that the appellant had deliberately issued the cheque book in question on Form 'A' instead of Form 'B' and the same had been done on forged requisition slip. The learned Presiding Officer also concluded, that by doing so the appellant wanted to make it easy for himself to withdraw the amount of Rs.83,170 from the account in question. Another factor which weighed with the learned Presiding Officers, that the word "dormant" was not stamped on the cheques in question, which also pointed out towards the guilt of the appellant. The learned Presiding Officer on his own examination, also found the signature of the account-holder different from the alleged forged signatures and according to him, such difference was so. Marked that the only conclusion which could be drawn was that the nine cheques were passed by the appellant with the knowledge that they were forged. The learned Presiding Officer on the basis of such facts further concluded that as the appellant had facilitated withdrawal of the amount in question on which he had domain as an employee of the Bank, he abetted criminal, misappropriation thereof. The learned Presiding Officer also came to a conclusion that the appellant was guilty of passing the nine cheques as genuine as the appellant had verified the signatures on the cheques with knowledge that they were forged.
12. The learned Presiding Officer also found the appellant guilty of making false entries in the account ledger as according to him the appellant had admittedly closed the dormant account in question on 2-12-1980 by making entries to that effect in the ledger.
13. As far as the repayment of the amount of Rs.83,170 to the Bank by the appellant and his alleged confessio4ial statement is concerned the learned Presiding Officer was of the view that since P.W.
14. Akbar Ali Sayani had stated that it was Muhammad Yousuf P.W.1 who had handed over the amount in question to him and not the appellant, this statement varied from that of P W.Muhammad Yousuf according to whom it was the appellant who had confirmed such payment vide his confessional statement, Exh.4. Moreover. Since the payment of such amount or execution of Exh.4 was denied by the appellant in his 342. Cr.P.C. Statement and written statement, dated 16-12-1984, the learned Presiding Officer came to the conclusion that the prosecution had failed to prove either payment of Rs.83,170 by the appellant or voluntary execution of Exh.4 beyond a reasonable doubt. After perusing the evidence and hearing the learned counsel appearing on behalf of the appellant and the state respectively, we have come to a conclusion that the prosecution has failed to establish the guilt of the appellant. As far as conviction under section 408/109, P.P.C. Is concerned there is no doubt that the appellant was guilty of issuing a cheque book on Form 'A' instead of Form 'B . He is also guilty of verifying the signatures on the nine cheques although according to the learned Presiding Officer the forgery was visible to the naked eye. It is also obvious that the cheques were not stamped "dormant" by the appellant as it should have been done. It is also an admitted position that the appellant closed the account in question on 2-12-1980 without such instructions in writing from the account-holder. All this evidence, however, is not sufficient to sustain the appellant's conviction under section 408/109, P.P.C. No doubt, that the appellant has been guilty of gross negligence by acting in highly irresponsible manner but still the evidence against the appellant is not sufficient to bring home the guilt to him. Neither the principal offender who might have misappropriated the amount in question has been identified nor any conclusion has been reached by the learned Presiding Officer qua the made in which such offence was committed by the principal offender or the manner in which the appellant abetted such offence. We are, therefore, of the view that the charge under section 408/109, P.P.C. Against the appellant has not been proved. The next offence of which the appellant hes been convicted is under section 471, P.P.C.
15. In this respect the prosecution has failed even to prove conclusively that the signatures on the requisition slip or the nine cheques were forged. Neither the actual account-holder whose signatures are alleged to have been forged has been produced as a watness in the case nor the hand writing expert to whom the specimen handwriting of the appellant was referred for comparison with the alleged forged signatures could be examined as a witness before the learned Presiding Officer. Although the learned Presiding Officer himself compared the alleged forged signatures wit' the genuine singatures of the account-holder on the specimen signature card and thus came to the conclusion that the signatures on the cheques were forged, but such evidence without the evidence of the handwriting expert cannot be taken as sufficient to prove that signatures on the cheques were forged. It may be pointed out here, that the learned Presiding Officer has already acquitted the appellant of the charge under section 468, P.P.C. Under such circumstances it is difficult to conclude that the appellant had passed the forged cheques as genuine. Moreover there is no evidence against the appellant to point out that the appellant +tad used such cheques as genuine as neither the appellant has been held to be guilty of forging signature on the cheques as aforesaid nor is he paid to have received the proceeds of the cheques himself. In view of the circumstances the conviction of the appellant under section 471, P.P.C. Also cannot be sustained.
16. Merely because the appellant passed the cheques, it cannot be said that he used them as genuine. Coming next to the offence under section 477-A of the P.P.C. Of which the appellant has also been found guilty it is said that the appellant had closed the account in question on 2-12-1980 and had also made entries to that effect in the account ledger. The appellant, while admitting to have made such endorsement in the ledger in his own handwriting, has stated that the same was done under instruction from the account-holder. The learned Presiding Officer, however, came to a conclusion that since the account was closed without any such instructions in writing from the account- holder the appellant was guilty of making false entries in the ledger. It may be pointed out that in order to sustain a charge under section 477-A of the P.P.C. Mens rea which appears to be an essential ingredient of such offence, must have been proved. That is because of the use of the words "wilfully", and "with intent to defraud" in that section by the Legislature. In this case the appellant no doubt, made entries in the ledger and closed the account in question but there is no e%idence to establish that closing of the account was done without any such instructions from the account-holder or with fraudulent intention. Merely because no such instructions in writing could be proved by the appellant would not mean that the instructions were not given at all. In absence of such evidence, it cannot be held that the account was closed by the appellant either wilfully or with intent to defraud. We, therefore, do not find the appellant guilty of any of the offence for which he has been convicted and as such we set aside the conviction and the sentence awarded to the appellant and acquit him. Before parting with this case, we would like to place on record that the appellant is not fit to hold any responsible office in the Bank as he has been guilty of gross negligence and dereliction of duty.