Hamid Jan Durrani, Manager, Allied Bank of Pakistan, G.T. Road Branch, Peshawar made a written report on 13-8-1979 to S.H.O. Police Station Hashtnagri wherein he stated that Ghulam Kibrya appellant herein and Altaf Hussain were Head-Cashier and Cashier respectively of the said branch of the Bank which was upgraded as Main Branch and it was decided that the daily cash of different branches of the bank shall be deposited in the said branch, that it was further decided that all the cash received from the branches shall be received by Altaf Hussain Cashier and cash of the far flung branches shall be personally received by Ghulam Kibrya Head-Cashier and all the cash will be deposited in the said branch by both of them, that on 13-8-1979 during checking of registers it came to light that Ghulam Kibriya appellant herein had on 3-7-1979 received an amount of Rs.One lac as cash from the Board of Intermediate and Secondary Education Branch of the Bank but had neither deposited the amount nor had made any entry in the relevant registers of the aforesaid Main Branch, that it further came to light that on 5-7-1979 Rs.One lac were sent as cash by the Katchery Road Branch of the bank which amount was received by Altaf Hussain but he did not deposit this amount nor made any entry in the relevant record of the Main Branch, that both the appellant and Altaf Hussain had misappropriated and embezzled both the amounts with the abetment of Akbar Khan Cashier of Bahana Mari Branch of the bank and Anwarul Haq brother-in- law of Altaf Hussain. This report was incorporated in F.I.R. No. 340 of Police Station Hashtnagri. All the four accused were apprehended and after investigation they were sent up for trial before the Special Judge Anti-Corruption (Central) Peshawar for offences under section 409/109, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947. The learned Special Judge charged the appellant and accused Altaf Hussain under section 409, P.P.C. And accused Anwarul Haq and Akbar Khan under section 109, P.P.C. Read with section 409, P.P.C. All the four accused pleaded not guilty and claimed trial. The State produced ten witnesses in proof of the prosecution case. All the four accused were examined under section 342, Cr.P.C. But they did not produce any defence. The learned Special Judge by his judgment dated 12-12-1983 acquitted accused Anwarul Haq and Akbar Khan and convicted the appellant and co-accused Altaf Hussain under section 409, P.P.C.
And sentenced each of them to undergo R.I. For five years and to pay a fine of Rs. Two lacs in default whereof to further suffer R.I. For two years. Both the convict-accused filed separate appeals in this Court. The present appeal was filed by appellant Ghulam Kibrya on 21-12-1983.
2. The appellant in his statement under section 342, Cr.P.C admitted the receipt of amount of Rs.One lac in cash from the Board of Intermediate' and Secondary Education Branch of the bank on 3-7-1979 but his contention was that he had handed over the said amount and the voucher to co- accused Altaf Hussain Cashier whose duty was to enter the same in the Receipt Register maintained for the purpose.
3. In view of this admission of receipt of cash by the appellant the only question which the prosecution was required to prove was whether the appellant had kept the cash with him or he had handed it over to co-accused Altaf Hussain who was Cashier in the Main Branch of the bank. It has been stated in cross-examination by P.W. 1 Muhammad Yusuf Shah who is an officer of the bank that the cash amount received through vouchers (when received in bank) was entered in the relevant register maintained in the bank and the said register is in custody of the Cashier and that the said register is maintained by the Cashier. P.W. 2 Hamid Jan Durrani complainant has stated that according to the procedure of the Main Branch the appellant, then Head-Cashier in the Main Branch, used to collect surplus amount from the branches of the bank while the money received from the other branches of the bank was received by accused Altaf Hussain. In cross-examination this witness has admitted that the cash book maintained in the bank is in the custody of the Cashier and that the vouchers received from the customers are entered in the cash book by the cashier. He has further stated that in so far as vouchers received from the other branches of the bank are concerned, there is Cashier Long Book maintained by the Cashier in which the number of the voucher and the respective amount is entered and the Higher Authority/Head-Cashier of the Bank uses to verify the entries with the actual vouchers received throughout the day.
4. It shall thus be seen that from the procedure adopted in the Main Branch, the cash which was received by the Head-Cashier was also entered along with the vouchers in the registers of the Bank by the Cashier.
5. It has also come in evidence that the appellant along with the other three co-accused was also tried by the Special Military Court in a case of alleged embezzlement of Rs.29,80,000 in the case of F.I.R. No. 309 recorded in the same police station on 26-7-1979. According to that F.I. R. The said amount was embezzled between the dates of 28-5-1979 to 26-7-1979. The record of the proceedings before the Special Military Court has been requisitioned and I have been led through the evidence recorded therein by the learned counsel for the appellant. PW. 1 in the case before the Special Military Court was Iqbal Ahmad, Senior Manager of the G . T . Road Branch of the bank. He has stated that in his presence accused Altaf Hussain admitted before Zonal Chief of the bank that he had misappropriated the entire amount of Rs.29,80,000 at the instance of accused Akbar Khan.
This witness has further stated that co-accused Altaf Hussain had further stated that the original advices, received along with the cash, were with him in his house and the advices 14 in number were recovered from the house of co-accused Altaf Hussain. A statement of the said vouchers which were recovered from the house of accused Altaf Hussain was prepared by Mian Adam Shah, Inspector Police, Crime Branch and is available on the record of this case. These were sixteen vouchers in all and at serial No. A-6 in this statement is shown a voucher dated 3-7-1979 of receipt of an amount of Rs.One lac from the Board of Intermediate and Secondary Education Branch of the bank. This statement will show that the voucher of the amount, which was allegedly misappropriated by the appellant, was also recovered from the house of co-accused Altaf Hussain. This fact will further prove that the appellant had handed over the voucher for this amount and the cash to co-accused Altaf Hussain who had entered this voucher and the amount in the relevant registers of the branch. It has also come in evidence in the connected case pending in the Special Military Court that it was the duty of the Cashier to receive the vouchers and the cash from the Head-Cashier as well and to make entries of the vouchers and the cash in the relevant registers of the bank and if he did not make entry of any voucher or cash in the register, the same could not be detected immediately. Such an omission would only come to light when the record of all the branches is checked in the Zonal or Head Office of the bank. This factum has been admitted by the prosecution witnesses. As such the Head-Cashier would have no means to check whether the Cashier had entered all the vouchers and the cash in the accounts registers of the branch. Any how the fact remains that the recovery of the voucher with regard to the alleged embezzled amount from the house of the co-accused Altaf Hussain clearly indicates that the latter had received the voucher and the amount from the appellant but had not made entries with regard thereto in the Accounts Registers of the branch. In view of this position of the matter it cannot be said that the appellant had not deposited the amount in dispute in the accounts of the Main Branch and had embezzled the same. On the contrary it has been proved beyond any doubt whatsoever that the appellant, after receipt of the amount from the Board of Intermediate and Secondary Education Branch of the Bank, handed over the cash and the voucher to co-accused Altaf Hussain. As such the appellant could not be accused of or charged with the offence of embezzlement of the amount in dispute. The prosecution had failed to prove the charge of embezzlement of the said amount against the appellant and he could not be convicted and sentenced for the said offence. It is also noteworthy that the appellant was acquitted by the Special Military Court in the case pending before it. Consequently I will accept this appeal, set aside the conviction and sentence of the appellant and will acquit him of the charge under section- 409, P.P.C, He is on bail. His bail bonds are discharged.