' Accused Naeem Qureshi was posted as Senior Head Cashier in National Bank of Pakistan, Town Hall Branch, Lahore, in 1977. According to the prosecution story, on 14-2-1977 the Audit Team of the National Bank of Pakistan, consisting of Malik Muhammad Ikram and Nasir-ud-Din Bhatti, visited the said branch for its audit. They appeared there a little before 9 a.m. It is stated that they wanted to first check the correctness of the cash available in the late receipt cash safe lying in the banking hall of the said branch. It contained the amount deposited on Sunday, the 13th February, 1977, by Lahore Municipal. Corporation, Lahore, recovered by it as Octroi tax on the said holiday. However, Mr. Muhammad Naeem Qureshi, who had one of the two keys of the said safe with him did not turn up although Mr. Saeed-ul-Zafar, Staff Officer, who had along with accused Muhammad Naeem Qureshi received the cash on Sunday, the 13th of February, 1977, and had with him the other key of the safe was available. The said safe could be opened jointly by accused Muhammad Naeem Qureshi and Saeed-ul-Zafar, Staff Officer. Since it was not possible to open the safe without the key with accused Muhammad Naeem Qureshi, Farhat Hussain, Godown Keeper, was deputed to go to the house of Muhammad Naeem Qureshi to fetch him. However, accused Muhammad Naeem Qureshi did not turn up. For that reason the duplicate keys of the said branch which were in safe custody in National Bank of Pakistan Dina Nath Branch, lahore, were obtained through Saghir Haider, Assistant Manager of the Town Hall Branch, who went to the said branch and got the said keys. The said safe was opened with the said duplicate keys and a shortage of Rs,15,000 was discovered on counting the cash in the said safe. On enquiry by Auditors, Muhammad Naeem Qureshi who had turned up at about 2-30 p.m. Confessed that he had given the said amount unauthorized to one of the officials of the Lahore Municipal Corporation and he could fetch the said sum within no time from him. He was asked to bring the said sum upon which Muhammad Naeem Qureshi left the branch and after a few moments brought the said sum of Rs,15,000 and made good the said loss in the cash of the bank.
2. It is stated that the Auditors next wanted to check the cash of 12-2-1977 in the main safe lying in the caged room. Accused Muhammad Naeem Qureshi had one key each of the lock of the caged room and of the safe lying inside the said caged room and the other key of the lock of the caged room which the said safe was with joint custodian Mr. Murtaza Khan, Staff Officer. The caged room as well as the safe were opened by the accused himself with his own key and that of the said joint custodian and on detailed counting, finally, a sum of Rs,1,60,000 was found to be short in the cash available in the said safe. It was found that the modus operandi adopted by Muhammad Naeem Qureshi was that in order to dodge the joint custodian of the said cash Mr. Muhammad Murtaza, Staff Officer, accused Muhammad Naeem Qureshi had put one packet of hundred currency notes of Rs, fifty denomination on each side of each of the five bundles of currency notes of that denomination and in between them instead of 8 packets of hundred currency notes of Rs, fifty denomination, he had placed 8 packets of hundred currency notes of Rs,10 denomination in each of the said five bundles, resulting in a shortage of said sum of Rs,1,60,000. It is also stated that Muhammad Naeem Qureshi accused confessed before the Auditors and the others that he had done so in order to defraud the bank of the said sum of Rs,1,60,000 and he had given this amount to one of- his relatives, Mr. Badar Qureshi, who was dealing in the export of carpets, etc. Muhammad Naeem Qureshi then sought apology from the Auditors as well as from others and made fervent appeal that he may be given chance to make good the shortage detected by the Auditors. He also submitted that he had dishonest intention to misappropriate the money belonging to the bank and had converted it to his own use with the intention of cheating the bank and deriving illegal benefit of the said amount.
3. Third allegation against accused Muhammad Naeem Qureshi, as indicated in the F.I.R. And later found in investigation is that he misappropriated a sum of Rs,59,172.36 from the Lahore Municipal Corporation Salaries Account which had been detected by the Auditors on detailed checking of cash and record.
4. The charge framed against the accused in the Court of Special Judge (Central) was for offence under section, 409, P.P.C. And section 5 of the Prevention of Corruption. Act, 1947, in respect of a consolidated sum of Rs,2,19,172.36. It appears that this consolidated sum was taken from Letter No,THL/dated 3-3-1979, available on the challan file, on which the Manager of National Bank of Pakistan Town Hall Branch had on enquiry by the S.H.O. P.S. Old Anarkali informed him in writing that the defalcation made by the accused consisted of a cash of Rs,1,60,000 and a sum of Rs,59,172.36 out of L.M.C. Salary Disbursement Account and the total amount of defalcation was Rs,2,19,172.36.
5. The prosecution produced eight witnesses in this case. Muhammad Afzal who was then employed in National Bank of Pakistan Dina Nath Branch, Lahore, produced and proved as Exh.P.W.1/1 a copy of the Safe Deposit Register for the period from 24-2-1975 to 31-1-1985, showing an entry of withdrawal of the sealed wooden box containing the duplicate keys of the Town Hall Branch, on 14-2-1977, by Saghir Haider, Assistant Manager of United Bank Limited Town Hall Branch, Lahore, who had initialled the entry of the said withdrawal in the said register. P.W.2 Anwar-ul- Islam, Area Manager/Manager of the Branch and P.W.3 Muhammad Ikram, Senior Auditor, deposed as eye-witnesses of the checking, etc. Their evidence relates to the basic merits of the case. P.W.4 Nasir-ud-Din Butt, Auditor, was given up by the Prosecutor after his name and address had been written for recording of his statement, P.W.5 Muhammad Siddique Khan is a witness of production of documents from the record of the branch as enumerated and described in seizure memo.
Exh.P.W.5/1. Muhammad Ijaz Head Cashier appeared as P.W.6 and stated that he had produced before the police 40 suspense vouchers, P.W. 6/1, 6/40, through which he had made the payment of salaries, etc. To the staff of the Corporation, the amount of which, came to Rs,59,172.36. P.W.7 Muhammad Aslam A.S.I. Is a formal witness who recorded formal F.I.R. Exh.P.W. 7/1, on the basis of complaint, Exh.P.W.2/1, filed by P.W.2 Anwar-ul-Islam. P.W.8 Nazir Ahmad Sub-Inspector Police Station Old Anarkali, Lahore, stated that he had only partly investigated this case because after a few days, the investigation was transferred to Muhammad Sharif A.S.I. However, Muhammad Sharif A.S.I. Was found to have died and on evidence to that effect having been recorded, Kh. Saeed-ul- Zafar, Special Prosecutor, closed the prosecution evidence.
6. Thereafter, statement of the accused was recorded on 18-6-1985. After that, on the application of the Special Prosecutor, under section 540, Cr.P.C., Saghir Haider and other witnesses were summoned to prove the three written confessional statements of accused Muhammad Naeem Qureshi, and other documents which were on the record of the case and had been taken into possession by the police by virtue of memo. Exh.P.W.5/1. After statement of Saghir Haider had been recorded as C .W.1, the Special Prosecutor made a statement that after the statement of the said witness as C.W.1, he did not think that other witnesses should be examined, as, in his opinion they were now unnecessary. After statement/evidence of Saghir Haider, supplementary statement of accused Muhammad Naeem Qureshi was recorded on 22-9-1985. Thereafter, the accused produced six witnesses in his defence and on their conclusion, closed his defence evidence
7. Although the charge against the accused was for a consolidated sum of Rs,2,19,172.36 as permitted by section 222 (2) of the Criminal Procedure Code, I propose to take up each one of the three allegations against the accused separately, in the light of the evidence available on the record in regard to each one of them.
8. As regards the first allegation of criminal breach of trust by the accused of the sum of Rs,15,000, P.W.2 Anwar-ul-Islam and P.W.3 Malik Muhammad Ikram supported fully the story given above. The objection that Anwar-ul-Islam had stated that the duplicate keys could be withdrawn from the Dina Nath Branch on the joint authority of the authorised officers and, therefore, Saghir Haider had illegally withdrawn the said keys from the said branch is of no material consequence because the, said withdrawal of keys by the said Assistant Manager in that manner was at the most an irregularity which did not vitiate the result of the counting made by the Auditors in solemn proceedings taken in the presence of Anwar-ul-Islam, Manager of the Bank, and other officers and staff of the branch. There is a litle bit of discrepancy between the statements of P.W.2, Anwar-ul- Islam and P.W.3 Malik Muhammad Ikram in respect of presence of the accused at the time of final counting of the cash brought out from the late receipt cash safe lying in the banking hall of the branch. Anwar-ul-Islam stated that though accused Muhammad Naeem Qureshi was not present when the said safe was opened and cash was counted, he had arrived in the branch and was present when the cash was counted for the second time and a shortfall of Rs,15,000 was detected.
As against that, P.W.3 Malik Muhammad Ikram stated that accused arrived after the said cash had been taken out of the late receipt cash safe and had been found to be short by a sum of Rs,15,000.
However, both the witnesses are at one on the question that at the final counting, accused was presen, and deficiency of Rs,15,000 was found in the said cash. Furthermore, it is proved on their evidence that accused. Muhammad Naeem Qureshi accepted the said shortfall and had stated that he had given the said sum as Qarz-e-Hasna (refundable loan) to one of the employees of the Corporation and had actually fetched back the said sum within a few moments.. The deficiency of the said amount of Rs,15,000 the making up of the said deficiency by the accused, therefore, stand proved on record. The question, therefore, now is whether the accused had committed criminal breach of trust in withdrawing the said sum of Rs,15,000, from the safe and in giving it to the said employee of the Corporation. It was held in Muhammad Yaqoob v. The State PLD 1969 Lah. 548 that in a case where there is a counter-version by the accused, it is often of greatest importance for an accused go be able to show what his own version was which he had put forward at the earliest possible opportunity. In that case, the first plea the accused before the Investigating Officer was taken into consideration. I may deduce from this that the first plea of the accused which he had taken before the Investigating Officer should be considered. In that case, first plea before the police was considered but in the present case matter was yet before the Auditors and members of the staff of Town Hall Branch who had asked the accused in respect of the said deficiency in the cash received from the Lahore Municipal Corporation on account of Octroi collection on 13-2-1977 and he had stated that he had given the sum of Rs,15,000 which constituted the said deficiency to an employee of the Lahore Municipal Corporation. It is in the statement of P W. Malik Muhammad Ikram, Senior Auditor, that the accused had stated that he had given it to the said employee of the Lahore Municipa Corporation as Qarz-e-Hasna. This statement of the accused before P.W.2 and P.W.3, which constituted his first explanation of the sail incriminating circumstance, is of great importance to the accused and must be considered. There is a reasonable possibility of this plea o the accused being true as the Town Hall Branch was created in order to cater to the needs of the Lahore Municipal Corporation and naturall the employees including the officers of Lahore Municipal Corporation must be assumed to command great influence in the said branch and the. Accused cannot be considered to have any mens rea when in the circumstances, in which he was placed in the said branch, he had given this sum for a temporary period to the said employee of the Lahore Municipal Corporation, the parent institution, for which the branch had been created. Furthermore, if the accused had given this sum as Qarz-e-Hasna, as stated by him in his first statement before the Auditor, then obviously he was not to get any benefit out of it. Presumably this refundable loan was for a night or/and a day only. Therefore, on account of shortness of the time for which this sum was' given, the accused was not going to inflict any loss on the bank. Section 405, P.P.C. Which defines criminal breach of trust shows that dishonestly misappropriating or wilfully suffering any other person to dishonestly misappropriate an amount entrusted to a person is a necessary ingredient of criminal breach of trust. Section 24 of P.P.C. Which defines word "dishonestly" says that whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another is said to do that "dishonestly". In my opinion, in giving this sum to an employee or officer of the Lahore Municipal Corporation a Qarz-e-Hasna, accused Muhammad Naeem Qureshi had neither intended to cause any wrongful gain to himself nor any wrongful loss to the bank as the sum was a refundable loan which was liable to be returned and that also within a very short time.
And then the accused made us the said deficiency almost immediately on being pointed out the existence of the shortage of Rs,15,000 in the cash. Since there is a reasonable possibility of the said statement of the accused, before the Auditors, being true, I think that it is doubtful that he committed the offence o criminal breach of trust in respect of the said sum of Rs,15,000.
9. I may also mention in this behalf that in the charge framed against the accused for offence under section 409, P.P.C. In respect of consolidated sum of Rs,2,19,172.36 the said sum of Rs,15,000 had not been included and only other two sums of Rs,1,60,000 and Rs,59,172.36, totalling Rs, 2,19,172,36 had been put in it. There was thus no charge in respect of criminal breach of trust of said sum of Rs,15,000 and, therefore, the accused had no notice of any charge for defalcation of the said sum. He cannot, therefore, be convicted and sentenced for criminal breach of trust of the said sum of Rs,15,000 as serious prejudice would be caused to him resulting in miscarriage of justice in the absence of charge for the said sum. For that reason too accused cannot be said to have committed offence of criminal breach of trust in respect of said sum, of Rs,15,000.
10. As regards the shortage of a sum of Rs,1,60,000 found in the cash of the main safe lying in the caged room, P.W.2 Anwar-ul-Haq and P.W.3 Malik Muhammad Ikram, both stated that at about 2- 30 p.m. When the said safe was to be opened, the accused had arrived and the said cage and the said safe lying therein were opened by accused Muhammad Naeem Qureshi by one key each of the caged room and the safe available with him and another key of the same with Muhamma Murtaza Khan, joint custodian of the cash lying in the said safe and the deficiency of a sum of Rs,1,60,000 had been found in the cash( lying in the said safe. Therefore, that matter appears to be established on the basis of their oral evidence. Learned counsel for the accuse has, however, brought to my attention certain portions of the statement of P.W.2 Anwar-ul-Islam to contend that the said witness was no present at the time of checking by the Auditors and as such his statement was hearsay evidence but I am not inclined to accept this argument of learned counsel for the accused. Anwar-ul-Islam had stated in the beginning of complaint, Exh.P.W.2/1, that he was the Area Manager of the six branches, including the Town Hall Branch of which he was the Manager. It cannot, therefore, be contemplated that he was not present on 14-2-1977, when the Auditors had visited the branch for the purpose of checking of the record and cash of his own branch.
Furthermore, in the cash balance book, a clear note in English language' in green ink is written by Anwar-ul-Islam, duly signed by him, that the checking had been done in his presence on 14-2-1977.
That also negates argument of learned counsel that the said witness was no present at the time when the checking of the branch took place. The factum of presence of the witness at the time of checking was never contested in cross-examination of that witness and, therefore, the accused must be deemed to have accepted then that he was present in the branch on that day. Learned counsel for the accused has next contended that in the F.I.R. It had been clearly written that in respect of the said cash of 12-2-1977, lying in the main safe, Murtaza Khan was the joint custodian and had also one key of the safe with him but neither any investigation had been held at any stage nor any determination had been made that Murtaza Khan had not taken away the said sum of Rs,1,60,000 from the said safe and, therefore, the accused cannot be held responsible for the said shortage of Rs,1,60,000. It is difficult to accept this plea of learned counsel of the accused. The fact that Murtaza Khan, joint custodian, was not responsible for the shortage of Rs,1,60,000 in the main safe is established from the very circumstance of his presence in the said branch on that day. It was the accused who was absent therefrom without any reasonable cause. Bona fides of Murtaza Khan stood established from the proved circumstance of his being ready with his own key to open the cage and the safe and his being thus prepared to face the auditors which gave inkling into the state of his mind that he had no consciousness in his mind of his having committed any crime or of his having fraudulently and dishonestly taken away any sum of money from the said safe.
Furthermore, it is clear that the Auditors and Anwar-ul-Islam before referring the matter to the police had come to the conclusion, after due cogitation, that accused was responsible for the said deficiency as it had been clearly tatted by Anwar-ul-Islam, Manager, in the complaint made by him which became the basis of the F.I.R. That the accused in order to dodge the joint custodian, Muhammad Murtaza, put the packets of notes of Rs,5 enomination on both sides of bundles and in between them place packets of notes of Rs,10 denomination and thus brought about shortagf a sum of Rs,1,60,000 in the cash of the main safe. In his evidence as P.W.2 he deposed to the same effect and his said evidence remaine lunshattered in cross-examination. That circumstance, therefore, stands established. Now it is well-known that the consolidated cash in th safe is normally counted on the basis of bundles of 100 currency notes of hundred rupees denomination, amounting to Rs,10,000 bundles of 100 currency notes of Rs,50 denomination, amounting to.
Rs,5,000 and bundles of 100 currency notes of Rs,10 denomination, amounting to Rs,1,000.
Subsequent to the opening of the cash in the bank with the help of the joint custodian, if during the course of business operations throughout the day the Senior Head Cashier puts packets of lesser denomination in between the packets of notes of higher denomination, in making up a bundle or bundles, the joint custodian who does not deal with the cash during the day and has to attend to the consolidated cash at the closing hours only and then also he does not normally count and scrutinize each and every note and counts the final cash on the basis of the bundles only, can hardly know the 'deficiency and can get easily deceived as he has to depend upon the Head Cashier as the work of the bank proceeds on the basis of reliance placed by officers and officials of the bank on each other. This plea of learned counsel for the accused is also, therefore, of no avail. It is also notable that it was never the case of the accused during prosecution evidence, especially the evidence of P.W.2 Anwar-ul-Islam and P.W.3 Malik. Muhammad Ikram that Murtaza Khan, the joint custodian, was responsible for the said shortage. Even a suggestion was not given to that effect either to P.W.2 Anwar-ul-Islam, the Manager of the Bank, or P.W.3 Malik Muhammad Ikram, senior auditor. I, therefore, reject this contention of learned counsel for the accused which is just an afterthought.
11. The oral evidence of said two witnesses, P.W.2 Anwar-ul-Islam, Manager of Town Hall Branch and P.W.3 Malik Muhammad Ikram, Senior. Auditor to the effect that a deficiency of Rs,1,60,000 had been found in the said cash proves the said circumstance beyond any shadow of doubt. Their evidence also proves the artifice by means of which said deficiency had been kept covered from the view of the joint custodian Murtaza Khan.
12. Added to that is the circumstance of endorsement by said P.Ws. On page 100 of cash balance book, Exh.P.W.3/1, that a deficiency of Rs,1,60,000 had been found in the cash in the main safe.
Learned counsel has, however, contended that Murtaza Khan, the joint custodian, who had been charge-sheeted in respect of the said deficiency, had in his reply, Exh.P,W.6/3, to the show-cause notice stated that the entire sum in the main cash had been found to be correct initially and it was later on, on counting of the said cash on 12-2-1977 by Muhammad ^Ijaz Khan, Senior Cashier, that the said cash was found deficient by a sum of Rs,1,60,000. Learned counsel has also brought to my notice that on Exh.P.W.3/1, page 100 of the cash balance book, word "verified" was written over the signature of the Senior Auditor and the factum of the deficiency of the said sum having been found was according to him added later. However, these were mere assertions made by Muhammad Murtaza to save his own skin. He was not put in as a defence witness to prove the said averments on factual plane. It may also be noted that he too accepted in his said reply that finally when counting was made by Head Cashier Muhammad Ijaz, deficiency of Rs,1,60,000 was found. Some of the assertions made by Muhammad Murtaza, in his reply, were put to P.W.3 Malik Muhammad Ikram in cross-examination but he denied them. But assumning without accepting that the said averments were correct, in my opinion, they do not help the accused as the artifice employed by accused Muhammad Naeem Qureshi of placing packets of currency notes of Rs,10 denominations in between two packets of notes of Rs,50 denomination, in five bundles, in order to conceal the deficiency from the eye of joint custodian Murtaza Khan could equally deceive the senior auditor and others initially and it was obvious that there was reason for the senior auditor also to get misled by the apparent tenor of the notes in each of the five bundles as it is quite consistent with the said artifice proved to have been adopted by the accused that the said deficiency had been found a bit later when note by note checking was made of bundles. I, therefore, reject this contention of counsel for the accused also.
12-A In consequence, on the basis of the oral evidence of said two P.Ws. As corroborated by endorsement on page 100 of cash balance book, Exh.P.W.3/1, I come to the conclusion that in between the two packets of currency notes of Rs,50 denomination, the accused had placed eight packets of Rs,10 denomination, in each of the five bundles of notes of Rs,50 denomination resulting in a deficiency of Rs,1,60,000 which sum had been taken away by the accused from the said safe.
12-B P.W.2 Anwar-ul-Islam stated in his statement that on enquiry by the auditors, accused Muhammad Naeem Qureshi had stated that he had given this amount to Badar Qureshi, one of his relatives, who was dealing in carpets business. There was no cross-examination by the counsel of the accused on this witness on this aspect of his evidence except that there was a suggestion that the present case had been got registered at the instance of Nasim Bhatti who had enmity with Badar Qureshi a relative of Muhammad Naeem Qureshi accused. This suggestion was denied. It is, however, notable that it was intrinsic in this suggestion that it was accepted on behalf of the accused that Badar Qureshi was related to him. There is nothing on record to show that Anwar-ul- Islam knew already the name of Badar Qureshi as relative of the accused. That proved the correctness of the evidence regarding the making of this statement by the accused. The suggestion that the accused had not made the said oral confession was also denied. There was no follow-up action by the accused by way of putting in any defence witness t prove the correctness of said suggestions of factual plane. It, therefore, stands proved that the accused had made an oral statement on 14-2-197 before Anwar-ul-Islam and others that he had given the sum of Rs,1,60,000 to Radar Qureshi who was his relative and was dealing I F carpet business. By making this oral statement before Anwar-ul-Islam, the accused by implication accepted that he had taken away the sai sum of Rs,1,60,000 from the branch.. The said statement of the accused, therefore, amounted to confession on his part that he had taken away the said sum of Rs,1,60,000 which stood entrusted to him and had dishonestly disposed of the same in violation of the banking law and practice and had suffered Badar Qureshi to convert the said amount to his own use.
13. P.W.3 Malik Muhammad Ikram had not stated in his examination-. In-chief in respect of the said oral confession of the shortage having been made before him and staff on 14-2-1977. In cross- examination, however, he stated that the accused had confessed the shortage before him and the staff on 14-2-1977 and he had, therefore, made report to the Head Office. It is interesting to note that in the last but one sentence of the cross-examination of this witness, the question asked by the defence counsel proceeded on the basis that Badar Hussain Qureshi was the brother-in-law of the accused. This further supports my view that the confession had been made by the accused that he had handed over the amount to Badar Qureshi, his brother-in-law.
14. The above concludes the oral extra-judicial confession made by the accused on 14-2-1977 before Anwar-ul-Islam, Manager, Mali Muhammad Ikram, Senior Auditor and others. However, apart from that there are on record letters, Exhs.C.W.1/1 to 3, dated 15-2-1977 an 14-2-1977 by the accused addressed to the Manager. In letter Exh.C.W.1/3, dated 14-2-1977, the accused clearly stated that the shortage of a sum of Rs,1,60,000 detected in the cash under his control had been converted by him to his own use but he had been showin the cash amount in the safe to be complete and requested that since he is not in a position to pay the whole amount of the shortage in lump sum, he should be given some time to enable him to refund to the bank the said amount and for some days no action should be taken against him. This letter constitutes a clear extra- judicial confession of the accused in writing. In letter, Exh.C.W.1/2, dated 14-2-1977, it was stated by the accused that the shortage of Rs,1,60,000 which had occurred in the bank cash was on his account and he was ashamed of the same and his prayer was that he be given time to sell his house to make up the said shortage with sale proceeds thereof and he should not be handed over to the police. In letter xh.C.W.1/1, dated 15-2-1977, the accused stated that for certain reasons he had not been able to deposit the entire sum of Rs,1,60,000 and was for the moment depositing a sum of Rs,11,500 only and prayed that he should be given further time to pay the remaining sum and during this period, no legal action be taken against him. The letters C.W.1/1 and C.W.1/3, were proved by Saghir Haider to have been written and signed by the accused voluntarily in his presence while Exh.C.W.1/2 was proved by him to bear signature of the accused which he identified.
He als proved that C.W.1/1 and 1/3 bore his endorsements, under his signature, that the accused had voluntarily written said confessional letters in his presence without any pressure or coercion.
He, however, admitted that the accused had been kept in the bank on the 14th after the checking was over and on 15th and 16th of February, 1976. Learned counsel hason that ground contended that the said confessional statements are inadmissible in evidence under section 24 of the Evidence Act, 1872, and should be excluded from consideration. He has also referred me t the statement of D.W. 1 Muhammad Ajaib Khan, a bank guard, and D.W. 3 Muhammad Akbar Khan, a relative of the accused, who stated that the accused was kept in the branch on 14th and 15th of February, 1977, after office hours including the nights under the supervision of the officers and guard of the bank on 14th and under the supervision of the officers of the bank and an A.S.I. On 15- 2-1977. I am, however, not inclined to accept the evidence that an A.S.I. Was there on the 15th. If the police had arrived on 15th of February, 1977, they would have taken the accused to the police station and would not have ventured to confine him in a public place like the bank and coerce him int writing letter Exh. C.W .1/1. But the statement of C.W.1 Saghir Haider that the accused was kept by the officers, and the guard of the bank, in a room of the bank, after the checking of branch was over on the 14th and on 15th is there and, therefore, it falls for determination whether the said three written confessional statements could be taken into consideration and read in evidence in this case against the accused. I, however, do not think that this was a detention of accused Muhammad Naeem Qureshi by the officers and the guard of the bank. C.W.1 Saghir Haider only stated that the accused was kept in supervision and not in custody. As a matter of fact he stated that after detection of the shortage, the accused was not put in any body's custody. Even assuming it was custody, it was not a custody of that type as would vitiate the said confessions as according to the said C.W. Men could come and see him and the said restraint of the accused was presumbly meant to compel him to make up the shortfall in the funds of the bank and not to coerce him to write any confessional statement. The perusal of the said letters itself shows that they were quite voluntary, seeking time from the Manager to collect the deficient sum to pay the same to the bank and praying that case be not reported to the police. It is in evidence that by means of C.W.1/4 the accused had deposited on 15-2-1977, a sum of Rs,11,500 (obtained from relatives) towards making up the said shortfall for which he was held responsible. The fact that a letter Exh.C.W .1/1, dated 15- 2-1977 is apologetic in tone and expresses regrets in his being able to deposit the said sum of Rs,11,500 only further shows that the said letter was voluntary and was not the result of any undue pressure or coercion. Furthermore, it has been held in Dai Lodhi v. Emperor 27 Criminal Law Journal 731 that it is frequently assumed that the mere fact of a person being in custody is a good basis for a presumption that any confession he may make is caused by an inducement, threat or promise having reference to the charge against him proceeding from some police officer (bank manager in the present case) and sufficient to make him believe that he would be benefited in the trial by making it but it is not justifiable inference according to the principle stated in section 114 of the Evidence Act. Furthermore, it was held in Re-Boys Chinna Pappana AIR 1942 Mad. 49 that it is frequently assumed that a person would not make a confession of his guilt which would be prejudicial to his interest unless some pressure were exerted on him but it is not correct because a man who has committed a grave offence--unless he is a hardened offender--has an overwhelming desire to unburden himself and share with somebody his terrible secret and (it is true that) if he thinks of the consequences of his conviction, fear of them will act in restraint of his natural impulse to confess (but) at the moment of his arrest, the ordinary accused feels that the game is up and that it is futile to attempt to tr to conceal his guilt any longer. Respectfully following the said decisions I am of the view that these confessional statements which would hereinafter be shown to have been corroborated by other evidence H were voluntary in nature and were not a result of any pressure exerted or coercion practiced upon the accused by officers of the bank who appear to have kept him in the bank after detection of huge shortfal in the cash of the bank only in order to compel him to make good the deficiency in the cash of the bank.
15. As already shown, C.W.1 Saghir Haider had also stated that a sum of Rs,11,500 had been deposited by the accused towards disbursement of the embezzled amount by means of Exh.C.W.1/1, cash credit voucher, dated 15-2-1977. He also stated that the said cash credit voucher was signed by accused Muhammad Naeem Qureshi on obverse side in token of his having deposited the said amount and was signed by him (witness) also to indicate the receipt of the said amoun in the bank. In cross-examination he stated that some relatives of the accused used to come there to see the accused and probably they has paid him the said money for payment to the bank to adjust the said shortage. Payment by the accused of said sum of Rs,11,500 to make up the deficiency in the cash entrusted to him, is highly corroborative of commission of criminal breach of trust by the accused of the entire sum. Furthermore, above the signatures of the accused on this document, it is clearly written that a sum of Rs,11,500 is the amount deposited by him towards partial adjustment of the shortage of Rs,1,60,000 found by the Auditors on 14-2-1977, in the cash of 12-2-1977. The said signature of the accused underneath these words amounts, in the circumstances of the present case, to confession of his having committee. Criminal breach of trust of the sum of Rs,1,60,000 in cash of bank lying in the main safe.
16. Apart from that a cash transfer voucher, dated 25-2-1977, was also taken into possession by the police by virtue of which a sum of Rs,15,000 was deposited in the Town Hall Branch by the accused on 25-2-1977. This document has not been exhibited in evidence, but P.W.5 Muhammad Siddique Khan had stated that he had produced before the police the record mentioned in the seizure memo, Exh.P.W.5/1. Now the said memo, Exh.P.W.5/1, describes the said credit transfer voucher, dated 25-2-1977 for a sum of Rs,15,000 as one of the documents which had been taken into possession by the police. Therefore, on the evidence of P.W.5 Muhammad Siddique Khan, this document is to be read in evidence. The accused himself acquiesced in the production of this document in evidence in this manner and has also accepted that it is to be read in evidence in this case because he summoned the T.T. Application/T.T. Voucher by virtue of which this sum had been sent to Muhammad Naeem Qureshi from Karachi and produced. Muhammad Sanaullah as D.W.4 who produced the said T.T. Application/T.T. Credit voucher, dated 17-2-1977, for a sum of Rs,15,000 by virtue of which said sum of Rs,15,000 was sent to Muhammad Naeem Qureshi, Head Cashier, National Bank. Of Pakistan, Town Hall Branch by someone at Karachi. Learned counsel for the accused has submitted that the signatures on the said original application/T.T. Credit voucher Exh.D.W.4/1 appeared to be of Nasir-ud-Din Bhatti, the Auditor. His plea is that a representative of the bank itself sent the said T.T. To create proof of partial payment of said sum by the accused. This plea pre-supposes by clear 'implication that the said sum of Rs,15,000 had been sent by the bank itself in order to make certain the conviction of the accused in this case. It is, however, difficult for me to accept that United Bank of Pakistan as an institution or any officer/auditor of the bank had ulterior motives impelling them to create false evidence in this case against the accused. National Bank of Pakistan is too vast an institution to undertake such a task and officers/auditors of the bank had apparently no enmity against him, their erstwhile colleague. In any way neither the Bank nor the auditors could afford to pay a sum of Rs,15,000 from their own pocket for being sent to Muhammad Naeem Qureshi on 17-2-1977 just for the sake of creating false evidence against the accused. It must be some relative of the accused who had paid the said sum of Rs,15,000 to remitting officer to be sent to Muhammad Naeem Qureshi through T.T. Without any charges being levied so that Muhammad Naeem Qureshi may be able to make partial payment in the bank for adjustment of amount embezzled by him. It is obvious that this sum of Rs,15,000 was received by the accused and it is the same sum which he deposited in the funds of the bank by means of a cash transfer voucher on 25-2-1977. It is the case of learned counsel for the accused himself that it was the same sum. Now in the contents of the voucher it is stated that the amount of Rs,15,000 being deposited in cash, was for adjustment towards shortage in the cash of Rs,1,60,000 embezzled by the accused from the bank safe. The signatures on this voucher correspond exactly with the proved signatures of the accused on the cash credit voucher C.W.1/4 and, therefore, obviously it is the accused who had appended this signature of his to the said voucher. The contents of the said cash transfer voucher also clearly amount to confession on the part of the accused in respect of his having embezzled the said sum of Rs,1,60,000 out of which he was making a payment of Rs,15,000. The said payment is itself highly corroborative of commission by the accused of criminal breach of trust of said sum of Rs,1,60,000.
17. Thus, on the basis of evidence of P.W.2 Anwar-ul-Islam and P.W.3 Malik Muhammad Ikram and oral confessional statement of the accused before them and further written confessional statements of th accused contained in letters Exhs.C.W.1/1 to C.W.1/3 and cash transfer voucher, dated 15-2-1977 C.W.1/4 and cash transfer voucher, dated 25-2-1977 which constituted further confessional statements of the accused to the effect that he had misappropriated the sum of Rs,1,60,000 from the bank by the contrivance of putting eight packets I of currency notes of Rs,10 denomination in between 2 packets of currency notes of Rs,50 denomination in each of five bundles of currency notes of Rs,50 denomination in order to dodge his joint custodian Muha mad Murtaza Khan and had given the said amount of Rs,1,60,000 to Badar .Qureshi, his brother-in-law for carpet business. It is further established that out of the said sum he had been able to pay back to th bank only a sum of Rs,26,500. His act, therefore, constitutes offen e of crimina breach of trust as defined in section 405, P.P.C. In explanation to section 161, P.P.C. It is stated that in section 409, P P.C. "publi servant" includes any employee of any corporation or her body or organization set up, controlled or administered by or under the authority of the. Federal Government. The accused was an emplo ee of United Bank of Pakistan which was a nationalized bank and was in he ownershi and control of the Government. The accused was, therefore, a "public servant" and he committed offence of criminal breach o trust in his capacity as such public servant which is punishable unde section 409, P.P.C.
18. Third allegation against accused Muhammad Naeem Qureshi is of misappropriation by him of a sum of Rs,59,172.36 fro the Lahore Municipal Corporation Salary Disbursement Account. In the complaint filed by Anwar-ul-Islam on 17-2-1977 the actual amount was not mentioned and only this much was stated that misappropriation ad also been committed by accused Muhammad Naeem Qureshi in the a count of the disbursement of Lahore Municipal Corporation Staff Salar Account. In evidence P.W.2 Anwar-ul-Islam stated that the accused had misappropriated a sum of Rs,59,172.36 in the Lahore Municipal Corporation Salary Disbursement Account and that the said amount had been worked out by a team of the bank officers including the Assistant Manager. He stated that the accused had drawn an amount of Rs,1,17,896.28 on the basis of a consolidated debit voucher Exh.P.W.2/2 for the said sum which bore the signature of the accused as the recipient of the said amount. He explained that the Lahore Municipal Corporation had entered into a special arrangement with the bank for disbursement of the salary of its employees at Town Hall Branch and the employees of the various departments of the corporation used t receive salaries from the bank on the dates of their turn and the sum which could not be disbursed to the employees had to be deposited back to the Lahore Municipal Corporation Salaries Disbursement Account by accused Muhammad Naeem Qureshi. The said witness meant to say that the said sum of Rs,59,272.36 had not been disbursed by the accused towards payment of salaries out of the consolidated sum o Rs,1,17,805.28 received in cash by him by virtue of withdrawal voucher. Exh.P.W.2/2, for the said amount. However, no prosecution evidence is on record to show that the sum of Rs,59,172.36 had not been disbursed to the employees of Lahore Municipal Corporation and the remaining sum of Rs,58,729.92 had actually been, disbursed as salaries to the staff of Lahore Municipal Corporation.
The only other witness on this subject-matter is P.W .6 Muhammad Ijaz, Head Cashier, National Bank of Pakistan Town Hall Branch, who stated that he had produced before the Investigating Officer 40 suspense vouchers,' P.W.6/1 to P.W.6/40, by virtue of which he had made payment of salaries to the staff of the Corporation and the amount of these comes to Rs,59,172.36. I have seen the 'said suspense vouchers, Exhs.P.W.6/1 to P.W.6/40. All of them are of dates subsequent to 14-2- 1977, the date of visit of the Auditors in the Branch. The evidence of this witness, therefore, appears to show that a sum of Rs,59,172.36 was paid by the National Bank of Pakistan Town Hall Branch to the employees of the Corporation after 14-2-1977. The statement of this witness does not go further than that and does not show that the accused had not disbursed the salaries of the employees of the Lahore Municipal Corporation to the extent of a sum of Rs,59,172.36.
19. I have seen the debit voucher for the said sum of Rs,1,17,895.28, dated 11-1,17,895.28 2-1977. On the back of the said voucher following entries are made.
20.
21.
22.
23.
24. 985052 - 18049-81
25. 985156 18273-50
26. 985180 56000-00
27. 985155 25521-90
28. 984725 50-00 Total: ' There is a signature available on the back of this document which P.W.2 Anwar-ul-Islam had identified to be the signature of the accused which accused had appended in token of his having received a consolidated sum of Rs,1,17,895.28. In regard to this allegation the accused had stated in the statement under section 342, Cr.P.C. That he had not withdrawn any cash from the corporation account and on 11-2-1977 cashiers working under him had paid Rs,1,17,895 as salaries to the employees of the corporation on the basis of the said consolidated voucher and on the back of the said vouchers they had given the details of the money paid against the different cheques as salary to corporation's employees and in this way, the entire sum had been disbursed against the said cheques. Learned counsel for the accused produced Shah Muhammad, Record Keeper of the Lahore Municipal Corporation, Lahore, as D.W.2. He produced vouchers on the basis of which cheques Nos.985160, 985052, 985156 and 985155 wer issued and stated that these cheques related to the payment to the staff Health Department Account, Buildings and other department of Lahore Municipal Corporation as well as of Malies and Coolies and cheque No,985155 related to the payment of pension to the st f. He also stated that the concerned clerk of the Corporation receive the payment from the bank on the basis of authority letter obtained by him from the Lahore Municipal Corporation and thereafter disburse the amount to individual employees, but the amount of pension is di tributed by the Cashier of National Bank of Pakistan himself in cash to the pensioners. He further stated that the acquaintance rolls r grading the payments made to the staff of the Lahore Municipal Corporation are sent to the bank by the Lahore Municipal Corporation while the acquaintance rolls regarding payments to pensioners are maintained by the bank itself. He also stated that the acquittance rolls, regarding the payments on the above-mentioned cheques had, according to the present record, been sent to Town Hall Branch, Lahore. In cross-examination, he stated that question whether the payment had been made to the employees of the bank by the concerned officers of the bank after getting the cheques encashed from the Town Hall Branch could be ascertained only from the acquittance rolls which are in possession of the bank. In these circumstances, it was necessary for the prosecution to have proved from the record of National Bank of Pakistan Town Hall Branch, Lahore, that cheques in respect of payment of salaries to serving staff of Lahore Municipal Corporation had not been encashed by any official of the Lahore Municipal Corporation from the bank and the 4th cheque namely, Cheque No,985155 regarding the payment of the pension of pensioners of Lahore Municipal Corporation had not been utilized by the Town Hall Branch for payment of the pensions to the said pensioners of the Lahore Municipal Corporation. The prosecution should have produced the acquittance rolls lying in the branch to show that no sums had been paid to some employees although the cheque had been encashed by authorized employees of the corporation and some pensioners had not been paid any pension by the cashier under the accused who got the relevant cheque of the pensioners encashed and the unspent sum had been given back to the accused which he had misappropriated. In the absence of any such evidence on behalf of the prosecution the entrustment of said sum of Rs,59,172.3. To the accused does not stand proved on record. I do not, therefore, think that it has been proved on the record that the accused committed offence of criminal breach of trust in relation to the said sum of Rs,56,172.38.
20. The upshot of the above discussion is that the accused has been proved to have committed offence under section 409, P.P.C. In regard to the said sum of Rs,1,60,000 out of which he returned to the bank a sum of Rs,26,500. I, therefore, convict him for the offence under section 409, P.P.C.
21. The accused also committed the offence under section 5 of Act, II of 1947 because by abusing his official position as Senior Head Cashier he drew pecuniary advantage of a sum of Rs,1,60,000 out o which he returned an amount of Rs,26,500. I, therefore, convict him of the said offence under section 5 of Act II of 1947 also. Since th same act has fallen under two separate provisions of the penal law and the accused cannot be punished twice for the same act, no punishmen can be inflicted on the accused for the said act under section 5 of Act. II of 1947. The accused shall be punished only for offence unde section 409, P.P.C.
' As for the punishment, for offence under section 409, P.P.C. Read with subsections (2) and (3) of section 6 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984, I sentence the accused to rigorous imprisonment for eight years and a fine of Rs,3,50,000 (Rupees three lacs and fifty thousand only) and in default of the payment of said fine, he shall undergo further R.I. For a period of two years. Out of the fine, if recovered, a sum of Rs,1,70,000 shall be paid to the National Bank of Pakistan Town Hall Branch, Lahore, as compensation for the loss caused to the bank by the said offence and the remaining sum shall stand confiscated to the State.
Accused convicted/sentenced.