1. ' This judgment will govern the Criminal Revision Applications Nos. 22 of 1986 and 24 of 1986 as both arise of the same incident, and the apple' cants were tried together and convicted by the same judgment, dated 30th June, 1980.
2. The brief facts out of which the present revisions arise are that applicants Aspi C. Patel son of Kawasji Patel, and Badar Mian son of Barkat Mian, were working in Pakistan Merchantile Corporation Limited at Karachi. They were sent up by S.H.O. Mithadar Police, Karachi, on 18-7-1973 under section 408/477A/34, P.P.C. This case was transferred to various Courts and finally came up by transfer before 1st Class Magistrate Court No, II(S) Karachi. The Magistrate examined some of the prosecution witnesses, and after law reforms a formal charge was framed against the applicants on 22-5-1976, to which the applicants did not plead guilty.
3. ' The prosecution examined Muzaffar Iqbal, Manager of National Bank of Pakistan (P.W.1), Muhammad Suleman Qasim Mitha, Managing Director, Pakistan Merchantile Corporation Limited (P.W.2), Muhammad Amin Chief Accountant (P.W.3) and Sanaullah Khalid Investigation Officer (P.W.5). After close of the prosecution case the statements of the applicants were recorded under section 342, Cr.P.C. In which they simply denied the allegations, but did not state as to why they were implicated in this case, nor they examined any witness in defence.
4. ' The Magistrate found the applicants guilty and convicted them under section 408/477-A/34, P.P.C.
5. Under section 408, P.P.C. They were sentenced to undergo R.I. For one year and to pay fine of Rs,2,000 or in default of payment of fine to suffer R.I. For one month, and under section 477-A, P.P.C.
6. They were sentenced to suffer R.I. For one year. Both the sentences were ordered to run concurrently. Being aggrieved with the above judgment dated 30th June, 1980 the applicants filed appeals before the learned Sessions Judge, Karachi South, which ultimately came up before the learned III Additional Sessions Judge, Karachi (South), who dismissed the same by one order, dated 27th February, 1986. The present revisions have been filed against the above judgment.
7. ' The allegations against the applicants are that the applicants were working in Pakistan Merchantile Corporation Limited. On 27-10-1969 applicant Badar Mian wrote a Cheque No, H/11409512 in the sum of Rs,4,000 in routine and got it signed from G.K. Doctor, the attorney of the firm. After getting it signed he forged same for Rs,40,000 by adding 'Zero' and try into words four, then got it cashed from National Bank of Pakistan. Accused Aspi C. Patel with the connivance of accused Badar Mian showed the receipts in the cash book as Rs,4,000. To cover the deficit of Rs,36,000 he made false entry of debit for Rs,36,000 in the name of Usman Chandho and Co., and entry of Rs,2,000 instead of Rs,1,000 actually paid in the name of Yousuf Mitha. Both the accused with their common intention misappropriated Rs,36,000 and made forged entries in the Account Book. The mischief of the applicants was detected in 1973 when the complainant Muhammad Suleman Qasim Mitha, the Managing Director of the Corporation asked the accused to give him trial balance sheet which they avoided to give on which complainant suspected that there was some foul play, and therefore, he engaged a Chartered Accountant of A.M. Gangat, for verification of accounts.
8. ' During the audit many misappropriations including that of the present case were detected by the auditor. On inquiry, both the applicants confessed having misappropriated Rs,1,50,000. They wrote two separate letters to the complainant and promised to refund the amount, but since they did not pay the amount, the complainant sent a written complaint to I.-G. Police on 15-8-1973. The investigation of the case was carried out by.C.IA. Police and the accused were arrested. After usual investigation they were sent up under section 408/477A/34, P.P.C.
9. ' I have heard Mr. Muhammad Hayat Junejo, the learned counsel for the applicant Aspi C. Patel and Mr. Niazi Abdul Khaliq learned counsel for the applicant Badar Mian and Mr. Ali Nawaz Dehraj for the State. The learned counsel appearing for the applicants have not challenged the convictions and sentences of the applicants on merits but only contention raised by them was that the applicants have suffered agony of protracted trial from 1973. The applicants are old men, they have lost their service, and in addition thereto Badar Mian is heart patient and is confined in National Institute of Cardio Vascular diseases at Karachi. The photo copy of admission card, Coronary Angiogram and prescription slips have been produced. It was further contended that the applicants have remained in jail for nearly six months and it will not be appropriate to send them back to jail at this stage. Mr. Ali Nawaz Dehraj appearing for the State has submitted that on merits the applicants have no case, but in view of the circumstances mentioned by the learned counsel for the applicants, the sentence already undergone will meet the ends of justice.
10. ' On merits there is evidence of P.W. Muzaffar Iqbal, Manager National Bank of Pakistan who was working as Assistant Accountant in National Bank of Pakistan, Nicle Road Branch Karachi from 30- 11-1968 to June, 1974. According to him, cheque bearing No,409512, dated 27-10-1969 for Rs,40,000 issued by Pakistan Mercantile Corporation Limited Karachi was encashed on the same date.
11. According to him he was well-conversant with the handwriting of applicant Badar Mian who received the amount of the above cheque and had signed on the back of the cheque. He has produced the Photostat copy of the cheque as Exh.2- A and extract from the Bank ledger regarding the entry of the above cheque as Exh.2-B.
12. ' The complainant Muhammad Suleman Qasim Mitha has deposed that he knew both the applicants who were employees under him in the same Corporation. The applicant Badar Mian worked for 12 years while applicant Aspi C. Patel worked for 13 years. Before the date of incident, both the applicants were working in same Corporation as Accountants. In May, 1973 when he was going to Europe for operation, he asked Aspi C. Patel to give him trial balance sheet of accounts, but he avoided on one or the other pretext. He therefore, suspected some foul play and deputed an independent Chartered Accountant from A.M. Gangant Company for verification of the accounts.
13. After 9/10 days the said Accountant informed him about the fraud committed by the applicants.
14. Then he called the applicants, who admitted their guilt, showed remorse and further stated that they had committed fraud to the tune of Rs,1,50,000. After that both the applicants sent letters separately to the complainant admitting to have committed fraud and further assured that they will pay the amount and that he should not file any complaint against them. He has produced photostat copies of both the letters as Exhs.3-A and 3-B respectively. Since the applicants did not make any payment as promised, therefore, he sent complaint in writing to Inspector-General Police. He has produced the statement of Mr. Muhammad Amin, Chartered Accountant as Exh.4-A.
15. ' P.W.3 Muhammad Amin was the Chief Accountant in Fergoson & Co. In the year 1973. According to him, in 1973, he was asked by his firm to check the records and accounts of Pakistan Merchantile Corporation as requested by the said Firm. He went there and verified the accounts and reported the actual position regarding the irregularities which he found in the accounts. He has produced copy of his report as Exh.4-A.
16. ' P.W.4 Arif has deposed that he was working as Accountant in Metal Packages Limited Co., in 1973.
17. He was working as Auditor In charge in the firm of Messrs A.M. Gangant and Company. In April 1973, Pakistan Merchantile Corporation Limited requested Messrs A.M. Gangant and Company to depute an Accountant to examine and verify their accounts. He was deputed to check the accounts. He checked the accounts and found irregularities and gave his report which is produced as Exh.5-A.
18. ' P.W. Sanaullah Khalid was S.H.O. And posted as Sub-Inspector in C.I.A. Karachi at the relevant time.
19. He received a complaint from the complainant regarding misappropriation and he registered the case. The original complaint has been produced as Exh.3-F and the Photostat copy of F.I.R. As Exh.6-A. He investigated the case, arrested the applicants, and ultimately challaned them in the Court of Law.
20. I have considered the contentions of the learned counsel and have also gone through the R&Ps of the case. On merits there was overwhelming evidence against the applicants, and they were rightly convicted by the trial Court. With regard to sentence it is an admitted position that the applicants were challaned in the year 1973, and had a protracted trial for seven years. Again the appeals and revisions have taken equal time. The applicants are admittedly aged persons and have lost their services. They have remained in jail for nearly six months as under-trial prisoners and as convicts. The applicant Badar Mian is suffering from heart trouble and is confined in the hospital.
21. ' In view of these circumstances, I feel, it will be harsh to send the applicants back to jail to serve out the remaining period. I, therefore, dismiss the above revisions, but reduce the sentences awarded to the applicants to one already undergone. With this modification in sentence, the revisions are dismissed. .