1. HAIDER ALI PIRZ ADA, J.--These two appeals are interconnected as they are directed against a common judgment dated 30-1-1986 passed by the Presiding Officer, Special Court (Offences in Bank) in Cases Nos. 99 and 100 of 1984, we intend to dispose of the same by this judgment. The appellants have been convicted by the Presiding Officer by which he convicted the appellants under section 408/109, P.P.C. For criminal breach of trust in respect of total amount of Rs. 37,000 and sentenced them to suffer R.I. For four years and to pay fine of Rs. 80,000 each and in default of payment of fine, to suffer further R.I. For one year. They were also convicted under section 471/109, P.P.C. And sentenced to suffer R.I. For two years each. However, he directed that substantive sentences under sections 409 and 471/109, P.P.C. Awarded to both the appellants shall run concurrently. The facts in brief are that the appellants were challaned by police before Special Judge (Central) Karachi, under sections 218, 409, 418, 420, 467, 471, 477-A, P.P.C. Read with section 5(2) of Act II of 1947 on the basis of written complaint dated 14-9-1980 of the United Bank Limited, Zonal Office, Hyderabad.
2. On promulgation of Ordinance IX of 1984 the above case was transferred to the Presiding Officer.
3. The allegations were that appellant Ashraf Nizamani was the Manager and appellant Syed Aziz Akhtar was Second Officer in Taihar Branch of the U.B.L. In the year 1980 when both of these hatched a plan to defraud the Bank and in pursuance and furtherance of said common intention they withdrew Rs. 37,000 from Account No. SB 1402 standing in the name of Muhammad Khan Nizamani in the said branch by two forged cheques dated 17-5-1980 and 31-5-1980 by forging signature of the Account-holder on the said two cheques and realized the said amount and committed criminal breach of trust in respect thereof by using forged cheques as genuine and consequently falsified ledger of Account No SB 1402 in furtherance of their common intention. The charge was reframed against the appellants under sections 408/418, 471 and 477, P.P.C. Read with section 34/109, P.P.C. On 22-12-1984.
4. In support of prosecution Munshi Khan (Exh. 2), P.W.2 P.W.3 Khadim Hussain (Exh. 4) Ghtilam Mustafa (Exh. 6), P.W.6 Ditta (Exh. 8), P.W.8 Muhammad Abbasi (Exh. 10), P.W.10 Shafi Shari! Farooqui (Exh. 12). Case, the prosecution examined P.W.1 Muhammad Khan Nizamani (Exh. 3), , P.W.4 Karim Bux (Exh. 5), P.W.5 Aslam Hussain (Exh. 7), P.W.7 Allah Ibrahim (Exh. 9), P.W.9 Abdul Qayum Muhammad (Exh.11) and P.W.11 S.M.
5. After the prosecution closed its side the appellants were examined under section 342, Cr.P.C. But they denied all the allegations made against them. They examined two defence witnesses D.W. 1 Rasool Bux and D.W.2 Mir Muhammad Shafi.
6. The learned Presiding Officer after analysing the evidence convicted and sentenced the appellants as stated above. Mr. Muhammad Hayat Junejo and Mr. Usman Ghani Rashid the learned counsel for the appellants have assailed the judgment of the learned Presiding Officer on the ground that the prosecution examined a number of witnesses but the main witness on whose evidence the conviction is based was P.W.6 who stated that he paid Rs. 12,000 to the appellant Syed Aziz Abbasi.
7. Their submission is that in relying on the evidence the learned Presiding Officer failed to consider the statement of the witness recorded in a domestic enquiry (Exh. 7-A) in which such an allegation was conspicuous by its absence. The learned counsel have also submitted that the conviction of the appellants for abetment under section 109, P.P.C. Is illegal as there is no finding in the impugned judgment 'as to who was the principal accused. Whereas the learned counsel for appellant Muhammad Ashraf Nizamani has contended that the learned trial Court has erred in convicting the appellant as there was hardly any evidence which could sustain conviction.
8. ' Mr. S. Murtaza Hussain, the learned counsel for the State has supported the conviction of the appellants. We have carefully considered the. Above submission made by the learned counsel before us and we have gone through the statements of the prosecution witnesses and defence witnesses and have also examined the impugned judgment of the learned Presiding Officer.
9. P.W.1 Munshi Khan stated before the Presiding Officer that he was working as Manager Advances in Zonal Office of U .B.L. At Hyderabad and as such Talhar Branch was under his jurisdiction. He knew both the appellants. Appellant Nizamani was Manager whereas appellant Aziz Akhtar was Second Officer in the year 1980. P.W.2 Muhammad Khan Nizamani was an account-holder of S.B. 1402 in Talhar Branch who had reported to P.W.9 Abdul Qayum Abbasi that a total sum of Rs. 37,000 was fraudulently withdrawn from his account without his knowledge. He was asked to lodge a complaint in writing to F.I.A. Which he did on 14-9-1980.
10. P.W.2 Muhammad Khan Nizamani has corroborated the statement of P.W.1. He stated that he opened an account on 28-11-1979 after opening of account he was issued a cheque book bearing No. 972371 to 972380 as well as a pass book. He also stated that on 31-7-1980 he had presented a cheque from his cheque book for withdrawal of Rs. 10,000. According to him the cheque was prepared on 3-5-1980. The cheque was not encashed on the ground that there was no sufficient fund in his account and according to him he should have balance of about Rs. 39,000 and not Rs.
11. 14,000. The Manager Ghulam Mujtaba informed him that a sum of Rs. 25,000 was withdrawn from his account on 17-5-1980 and a sum of Rs. 12,000 was withdrawn from his account on 31-5-1980.
12. These cheques were issued from a cheque book which was issued to one Shafi Muhammad. He also produced' cheques Exh. 3/G and 3/H. He further stated that after this fraud was discovered appellant Nizamani visited him in the month of Ramazan at his village when P.Ws. Karim Bux Nizamani, P.W. Khadim Hussain, Gullan and Noor Ahmad were sitting with him. Appellant Nizamani requested him not to take any legal action and promised to refund him the said amount as he admitted his guilt and sought his pardon on the basis that he belongs to the same community but he did not repay the said amount. P.W.4 Khadim Hussain and P.W.5 Karim Bux have corroborated P.W. 2 Nizamani and stated that appellant ,Nizamani visited 'Otaq' of P.W.2 and admitted his guilt.
13. P.W.5 Ghulam Mustafa has corroborated the statement of P.W.2 that he was working as Manager during the months of July and August 1980. He has corroborated that P.W.2 had an account and he came to encash cheque for Rs. 10,000 which was not encashed due to insufficiency of funds. P. W.6 Aslam Hussain stated in his deposition before the Presiding Officer that in May 1980 he was working as Cashier in the Talhar Branch. He was shown Exh. 3/G and after seeing it he stated that the token of the cheque Exh. 3/G was given for encashment to him by appellant Nizamani and he paid Rs. 25,000 to the appellant. He also stated that cheque Exh. 3/H was brought to him by appellant Aziz Akhtar and he paid Aziz Akhtar a sum of Rs. 12,000 as requested by him. He stated that his statement was recorded before the Enquiry Officer who conducted domestic enquiry. He filed his statement as Exh. 7/A. He admitted that he was issued a show-cause notice and he sent a reply as Exh. 7/B.
14. P.W.7 Allah Ditta stated in his deposition recorded before the Presiding Officer that on 17-5-1980 he was godown keeper in Talhar Branch and he issued a token in respect of Exh. 3/G. This was given to him by appellant Nizamani. He stated that he issued token during rush hours when the token clerk was busy. P.W.8 Muhammad Ibrahim stated in his deposition recorded before the Presiding Officer that on 31-5-1980 he was working as messenger boy and he issued token 22. This was given to him by appellant Aziz Akhtar. He admitted that he was given show-cause notice by the Bank and he submitted a reply. He also produced copy of the reply. P.W.9 Abdul Qayum Abbasi stated in his deposition that he was directed to conduct the inquiry regarding withdrawal of Rs. 37,000.
15. According to him he did not give any particular finding except he pointed- out irregularities. He has corroborated statement of P.W. Aslam Hussain and stated that he recorded statement of Aslam Hussain during the course of investigation. P.W.10 Shafi Muhammad stated in his deposition that he was an account-holder. He has corroborated statement of P.W.1 that he did not submit requisite slip for issuing a fresh cheque book for his account and no cheque book was issued to him. Taking into consideration the evidence of the above-named prosecution witnesses, in our opinion, prosecution has not established the fact that the appellants hatched a plan to defraud Talhar Branch of U.B.L. There is no evidence to support charge of hatching a plan to defraud the bank. It is pertinent to note that both the appellants were acquitted in respect of sections 468 and 477-A, P.P.C.
16. A bare, perusal of section 408, P.P.C. Would show that a person must be entrusted with a movable property or with a dominion over that property and must have committed criminal breach of trust in respect of that property. There is no such evidence on record which can show that an amount of Rs. 37,000 was entrusted to them either. By the Bank or by P.W.2. The evidence of P.W.6 Aslam Hussain does not inspire confidence. He appeared before the Enquiry Officer and stated the following in his deposition recorded before him:- "Q. Do you remember and can recognize the person who has been paid Rs. 25,000 on 17-5-1980 and Rs. 12,000 on 31-5-1980?
17. A. I do not remember and cannot recognize. All big payments are made at the table of Manager generally. Only few clients come directly to the counter.
18. Q. Do you recollect that the payment of the above cheques in question has been received by some member of staff?
19. A. I do not remember. When there is rush on the counter I do not leave my cash department and the big payments are usually sent through staff members. Q. Do you know anything about payment of above two cheques? A. No I do not know anything about it."
20. He also submitted a reply to the show-cause notice in which he stated that "it was always in practice that our valued clients while banking with us were mostly attended by the Manager himself. They usually used to sit with the Manager and were presenting their cheques duly" endorsed for receiving payment at the spot. Thereafter, these cheques were sent to me and cash was always sent to Manager for onward transmission to the client. The above-noted client was always used to sit at the Manager's table. Hence under this situation it was difficult for me to find out and recognize the person to whom the relative payments were made".
21. A perusal of statement and reply would show that he did not remember who got cash of particular cheque.
22. In these circumstances we find it difficult to hold that it was proved that a sum of Rs. 37,000 was paid to the appellant's by P.W.S. It is clear, therefore, that the conviction cannot be maintained on the ground.
23. In this view of the matter this charge o'f abetments under section 109 must also fail. If the principal offence has not been made out, there can be no question of abetting the principal offence.
24. The learned counsel for the appellant submits that the learned Presiding Officer erred in reply on the evidence of accomplices in the crime. P.W.6 Aslam Hussain and P.W.8 Muhammad Ibrahim were issued show-cause notices and they submitted their replies to show-cause notice. It is also an admitted position that they had obtained bail before arrest in tftis case. Apart from them Muhammad Ashraf Nizamani had also obtained bail before arrest.
25. It is clear that the above persons were accomplices, as such appellant's guilt could not be maintained on their admission that the appellants encashed the cheque or used the forged cheques. It is, well-settled principle of law that if the statement of an accused is to be the only evidence, it must be accepted or rejected as a whole and cannot be relied upon only on part (See Khuda Bux v. The State S.C.L.A. No.K-4 decided by the Hon'ble Supreme Court on 3-3-1985).
26. Mr. Ghani, the learned counsel for the appellant Nizamani has also submitted that the alleged confession is also of no use as P.W. Khan Muhammad Nizamani was also an accomplice. We agree with the learned counsel for the appellant that the alleged confession cannot be used against Nizamani.
27. The appeal was allowed by a short order dated 15-4-1986 and the above are the reasons for the same.