1. ' ABDUL RASOOL AGHA, J.-- This appeal is directed against the judgment dated 31-1-1988 passed by the learned Presiding Officer of the Special Court (Offences in Banks) Karachi (hereinafter referred to as trial Court) in case No,4 of 1987 convicting the appellant under section 408, P.P.C. And sentencing him to suffer R.I. For 12 months and imposing fine of Rs,5,00,000 (Rupees five lacs only) in default of payment of fine to further suffer R.I. For 18 months. In the judgment it is also ordered that the period for which the appellant remained in jail as under-trial prisoner may he reduced from substantive sentence of 12 months.
2. ' Briefly, the prosecution case giving rise to this appeal is that the appellant was Manager of the U.B.L. Branch, Kashmore and had received certain amounts from the account-holders for deposit in their accounts which were not entered in the books of accounts and the appellant embezzled the amounts and misappropriated the same. As such an Audit Party was constituted by the bank management who reported the defalcation and embezzlement made by the appellant. P.W.
3. Nizamuddin reported the matter to the F.IA. Who registered an F.I.R. Exh.4/A and on conclusion of the investigation, the appellant was challaned before the trial Court for offence under section 408, P.P.C. On 17-2-1987 charge was framed against the appellant and he was put to trial. The charge so framed reads as under:- "I, Justice (Retd.) Z.A. Channa, Presiding Officer, Special Court (Offences in Banks) Karachi, constituted under Ordinance IX of 1984, hereby charge you accused Abdullah Larik son of Muhammad Bachal as follows:- ' That during the period from 15-4-1985 to 11-6-1985 while you were working as the Manager of Kashmore Branch of the U.B.L. You received in the said capacity from four account-holders various sums of money, totalling in all Rs,2,49,000, details whereof are stated hereunder, for crediting in their respective accounts, but instead of doing so you committed criminal breach of trust in respect of the said amount of Rs,2,49,000 and you thereby committed an offence punishable under section 408, P.P.C. And within the cognizance of this Court.
4. And I hereby direct that you lie tried by this Court on the said charge. Details of the amounts deposited with you and misappropriated by you.
5. S.No.Name of PartyPay in slip No.Date A/c No.Amount,
1. Mr. Abdul Wahid828722 15-6-85CD-949Rs.1,09,000 2.Mr. Abdul Wahid3479475 14-4-85CD-949Rs.1,00,000 3.Mr. Muhammad Bux2552663 9-4-85SB-848Rs. 20,000 4.Mr. Noor Muhammad0290372 11-6-85SB-4254Rs. 20,000 Rs.2,49,000 ' Karachi ' Dated 17-2-1987.
6. (Sd.)
7. (Z.A. Channa), ' Presiding Officer ' Special Court (Offences in Banks), Karachi.
8. ' Charge was read over to the appellant who did not plead guilty to the charge hence he was tried by the Court. In support of its case the prosecution -examined following witnesses:- ' P.W.1 Musarat Hussain testified that he took over the charge as Manager of the Kashmore Branch of U.B.L. From the appellant on 18-8-1985. According to him at the time of his taking over charge the audit of the Branch was being conducted by the Inspecting Team comprising of Muhammad Aijaz, Muhammad Ajmal Bhatti and Jamilullah. He produced four (4) counterfoils of the deposit slips Ex.2/A-1, 2/A-2, 2/A-3 and 2/A-4 which bear the signatures of the appellant and according to him the amounts so deposited were not credited in the accounts of respective deposit-holders and the total amount of Rs,2,49,000 (Rupees two lac and forty-nine thousand only) thus misappropriated by the appellant.
9. ' P.W.2, Cashier Muhammad Islam deposed that he was cashier at the Kashmore Branch of U.B.L. In 1984 and 1985. He further stated that he was familiar with the signatures of the accused and after seeing the four counter-foils Ex.2/A-1 to 2/A-4 he testified that all these slips bear the signatures of the appellant, over bank's stamp 'RECEIVED'. He denied that the bank's stamp remained with the cashier. He also denied of having received the amounts mentioned in the slips. He further clarified that these counter-foils did not bear his signatures nor he had made entry in regard to these amounts in the cashier's books on the corresponding dates.
10. ' P.W.3 Nizamuddin who was Grade-1 Officer in the Zonal Office of U.B.L. At Jacobabad has testified that the Kashmore Branch was controlled by Jacobabad Zonal Office and he used to deal with the complaints against branches. According to him an audit team was deputed for checking the accounts of Kashmore Branch which was done on 5-8-1985 and they had submitted a report to the Zonal Office disclosing the defalcations detected during the audit. He has corroborated the evidence of witnesses Nos. 1 and 2 in the said report. It was mentioned that the appellant had reimbursed the amount of Rs,1,00,000 (Rupees one lac only). On the basis of such report he lodged F.I.R. Exh.4-A with the F.IA.
11. ' P.W.
4. Muhammad Aijaz was Inspection Officer with the U.B.L. Since 1980 whose duty was to inspect the branches. According to him on 5-8-1985 he had gone to Kashmore Branch of U.B.L. For inspection which was surprise inspection. He was accompanied by two officers Jamilullah Khan and Ajmal Bhatti and found that certain deposits were made by the account-holders with the bank but those deposits were not entered in the bank's account or credited in the accounts of account-holders. He conducted the detailed checking and examined the slips entries etc. He further testified that appellant who was Manager of U.B.L. Kashmore Branch at the relevant time had given a written statement signed by appellant as Exh.5/G.
12. ' P.W.5 Noor Muhammad, P.W.6 Abdul Wahid and P.W.7 Muhammad Bux are the account-holders of Account No, SB-4254, CD-949 and 848 respectively with the Kashmore Branch of U.B.L. And they testified that they had deposited Rs,20,000 (Rupees twenty thousand only), Rs,1,00,000 (Rupees one lac only), Rs,1,09,000 (Rupees one lac and nine thousand only) and Rs,20,000 (Rupees twenty thousand only) vide Exh.2/A-4, Exh.2/A-1, Exh.2/A-2 and Exh.2/A-3. According to them the appellant was the Manager of the Branch and the amounts were deposited with him who issued the deposit slips under his signatures over the bank's stamp 'RECEIVED'.
13. ' P.W.8 Hazur Bux is nephew of account-holder Noor Muhammad having Account No, 2254 and he had deposited Rs,20,000 (Rupees twenty thousand only) in the said account on behalf of his uncle Noor Muhammad. He emphatically denied the suggestion that the amount was paid to the cashier.
14. He also stated that it was not a fact that in his presence the appellant had sent for the cashier and delivered the amount to him. He further stated that since he had gone to the branch for the first time so he had given the amount to the appellant Manager of the Bank.
15. ' P.W.9 Syed Fahmid Hussain is the Investigating Officer, who conducted the investigation on receiving the F.I.R. And the complaint of the Bank Exh.4/A. He seized four deposit slips Exhs.2/A-1 to 2/A-4. He prepared the seizure memo. Produced by him as Exh.10/B. He recorded the statements of witnesses Abdul Wahid, Noor Muhammad and Muhammad Bux and checked the Receiving Cashier Book for the relevant period and on conclusion of investigation he submitted the challan. On 13-12- 1987 the appellant was examined under section 342, Cr.P.C. And in his statement he admitted that he was Manager of the Kashmore Branch from 15-4-1985 to 11-6-1985. He also stated that the accountholders had come to him for depositing money and he had written down the deposit slips.
16. He contended that he had sent for the cashier and handed over to him the deposit slips and the money which the account-holders had brought and given to him. He denied that he had affixed the bank's stamp on the four slips and asserted that the stamp remained with the cashier. He however, admitted that the amount specified in the four counter-foils Exhs.2/A-1 to 2/A-4 were neither deposited in the respective accounts of the account-holders nor credited in the bank or in the Account Books of the Bank. His plea was that he had handed over the amounts to cashier in presence of the account-holders. He did not examine any witness in his defence and the suggestion to this effect was made to the witnesses during the cross-examination who denied the suggestion. He also admitted having made the written statement Exh.5/G before P.W. Aijaz, the Inspecting Officer containing details of the embezzled amount. The learned trial Court disbelieving the defence plea recorded the conviction in the above terms, hence the appellant has filed this appeal.
17. ' We have heard Mr. Abdul Mujeeb Pirzada appearing for the appellant and Mr. Abdul Khair Ansari appearing for the State.
18. The appellant has factually not denied the receipt of the amount mentioned in the charge, so also the learned counsel for the appellant has not challenged the evidence on record. We are, therefore, of the view that there is overwhelming and unimpeachable ocular and documentary evidence on the record against the appellant and the finding of the trial Court on the question of guilt is in consonance with the evidence on record and law and we do not find reason to disturb such finding. However, the learned counsel for the appellant has made a submission that the appellant had deposited Rs, one lac out of the amount alleged to have been embezzled with the bank, and according to him the sentence of imprisonment and fine are not in proportion to the offence committed by the appellant. He further submitted that the appellant has undergone protracted trial and has remained in custody since his arrest. The learned counsel has vehemently urged that the appellant had refunded to the bank Rs, one lac and has lost his job in the bank. He also submitted that major portion of the substantive sentence of imprisonment has already been served out by the appellant but he is in custody for the sentence in default of payment of fine, as such he prayed for the reduction of the same.
19. ' We have given our anxious thought to the contention raised regarding sentence. According to the learned counsel this aspect of the case has not been taken into consideration by the trial Court in terms of subsection (3) of section 6 of the Ordinance and in support of his submission he has referred to the case of Momin Shah v. The State reported in 1987 MLD 1500 in which a Division Bench of this Court while dilating upon the above aspect has observed as follows:- "Therefore, the conviction was proper but in the circumstances of the case we consider that the sentence of fine was not passed in proportion of the gravity of the offence. Section 6(3) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 (Ordinance No, IX of 1984) provides that where a Special Court passes a sentence of fine, whether in addition to any other punishment or not, the amount of such fine shall be fixed by it having regard to the gravity of the offence for which the accused person is convicted and, where the Special Court finds the offence to have been committed in respect of a specified amount, shall not be less than twice the said amount.
20. Section 6(4) further provides that where a Special Court passes a sentence of fine, the Court shall order the whole or any part of the fine recovered to be applied in the payment to the bank in respect of which the offence was committed as compensation for the loss caused to it by the offence. The two provisions are to be read jointly and the actual loss is the primary consideration for imposing a sentence of fine. Temporary embezzlement or breach of trust may be considered for conviction but for imposing a sentence of fine, the criterion would be the actual amount to be paid to the bank as compensation for the loss caused to it by an accused person. As such the amount which had already been deposited in bank cannot be considered for nposing a sentence of fine, as required under section 6(4) of the Ordinance."
21. ' The learned Presiding Officer of the trial Court as is evident from judgment has not taken this aspect of the case into consideration. Also from the arguments of the learned counsel for the appellant we are of the view that the submission of the learned counsel is not without substance and according to us it will be pertinent to reproduce subsections (3) and (4) of section 6 of the Ordinance which read as under:- "(3) Where a Special Court passes a sentence of fine, whether in addition to any other punishment or not, the amount of such fine shall be fixed by it having regard to the gravity of the offence for which the accused person is convicted and, where the Special Court finds the offence to have been committed in respect of a specified amount, shall not be less than twice the said amount.
(4) Where a Special Court passes a sentence of fine, the Court shall order the whole or any part of the fine recovered to be applied in the payment to the bank in respect of which the offence was committed of compensation for the loss caused to it by the offence."
22. A plain reading of the above-quoted subsection (3) indicates that while passing a sentence of line the Special Court has to take into consideration the gravity of offence, for which the accused person is convicted and where the Special Court finds the offence to have been committed in respect of a specified amount, it will have to impose a fine not less than twice the said amount. In subsection (4) the Special Court has been empowered to order the payment of part of the fine to the bank in order to compensate for the loss caused to the bank. Therefore, we hold that the amount of fine should have been fixed after deducting the amount already paid by the appellant from the specified amount shown in the charge. On examination of record the fact that Rs, one lac has been reimbursed by the appellant is borne out from record and we find that this fact has not been taken into consideration while imposing the fine and the sentence in default of payment of fine by the trial Court. The reimbursement of amount is an admitted fact which is neither controverted to nor denied by the learned counsel for the State, and it is shown in the report of the Audit Party and also appears in the statement of Muhammad Aijaz P.W.4. Since we have held in the present case that the appellant is guilty of the offence with which he is charged namely for the breach of trust in respect of specified amount we are of the view that in presence of the mandatory provision contained in subsection (3) of section 6 of the Ordinance reproduced above, the amount of fine cannot be less than twice the specified amount but the fact is that appellant had deposited the amount of Rs,one lac before the report was made. The amount of fine should have been imposed in respect of the actual amount after deducting the amount reimbursed by appellant. It would be a mitigating circumstance for awarding lesser substantive sentence and lesser sentence in default of fine. Reference may be made to case of S. Aqeel Ahmad and others reported in PLD 1988 Kar.
296. After reducing the amount of Rs, one lac already deposited in the bank by the appellant it could not be considered in imposing the sentence of fine as required under section 6(4) of the Ordinance. Consequently, the sentence in default of payment of fine appears to be excessive.
23. ' Accordingly, in view of the above legal as well as factual position we reduce the period of substantive sentence to one already undergone while sentence of fine is maintained in default whereof the appellant shall suffer R.I. For 8 months instead of 18 months. With the above modification, the appeal is dismissed.