1. SAJJAD ALI SHAH, J.-- This appeal is directed against impugned judgment dated 3rd September, 1988 of learned Presiding Officer of Special Court (Offences in Banks) Karachi, whereby appellant is convicted under section 408, P.P.C. And is sentenced to R.I. For eleven months and a fine of Rs.2 lacs or in default he would undergo further R.I. For one year.
2. On 12-1-1989 after hearing learned Advocate for appellant as well as for State, for reasons to be recorded later, by a short order we dismissed the appeal with modification that conviction was maintained and substantive sentence was reduced to six months and sentence in lieu of payment of fine was reduced to six months. Reasons follow now.
3. Prosecution story briefly is that appellant Muhammad Rafiq was working as Head Cashier in the Cloth Market Branch, National Bank of Pakistan, Karachi and on 29-11-1986 in connection with normal business, he was entrusted with the sum of Rs.8.06,000.45 for payment to account-holders.
4. On that day after closing time of business, shortage of Rs.1,00,000 was discovered. Appellanl accepted the responsibility for the shortage and returned to the Bank Rs.50,000 in Instalments.
5. Manager of the Branch Abdul Razzaq reported the matter to the Head Office and subsequently he sent a written report on 13-8-1987 to the F.IA. For registration of the case. Hasan A.I Baloch Sub- Inspector F.I.A. Registered F.I.R. Exh:6/A, recorded statements of witnesses and seized documents produced by Manager Abdul Razzaq. Investigation was taken over from him by Rifatullah Sub- Inspector who recorded statements of some other witnesses and presented challan m the Court.
6. P.W.2 is Muhammad Iqbal, who was working at the relevant time as Cashier with Anwar Corporation. He has deposed that on the day when cash was found short, he went to the concerned Branch and encashed a cheque for Rs.7 lacs. Appellant as Cashier made the payment to him. This witness denied any overpayment to him or the fact that appellant had accompanied to his office as amount of cash with him was large.
7. P.W.3 is Muhammad Ilyas, who was working as Senior Assistant in the Branch of the Bank on the relevant day. According to him on that day between 10-00 and 11-00 a.m. Appellant had left the Bank for ten or fifteen minutes and informed this witness that he was permitted to do so by the Manager. Subsequently on the same day this witness came to know that cash was found short by Rs.1 lac.
8. P.W.4 Rifatullah and P.W.5 Hassan A.I Baloch are Officers of F.I.A. Who have investigated this case as stated above.
9. "I was working as Head Cashier at the Cloth Market Branch of National Bank of Pakistan. On 29-11- 1986 I was the only Cashier working at the said Branch. I was receiving the cash as well as making payment to the Bank's Customers. At about 12-30 when cash transactions were closed, I discovered that there was an amount of Rs.1 lac short. This amount was in ten packets. I am unable to say how this amount was short. It is however, likely that through some mistake excess payment was made to some party by me. I had given somewhat similar statement in my application Exh.2/E-1 to the Manager of the Branch. My relations had reimbursed the Bank an amount of Rs.50,000 and for the remaining amount I have made an application for loan."
10. Appellant further declined to lead any evidence in defence. In his statement on oath, appellant only added to what was stated by him in his 342, Cr.P.C. Statement that on the day when the cash was found short he had gone out for about five minutes to purchase Pan and Cigarettes.
11. Mr. Muhammad Hayat Junejo, Advocate for the appellant argued before us that admission of appellant in 342, Cr.P.C. Statement as stated above is limited to the extent of entrustment of money to the appellant and shortage of Rs.1 lac in cash. According to him third ingredient which is very important with regard to misappropriation is not proved by the prosecution. On the contrary task of prosecution had become easier by admission of appellant regarding entrustment and shortage of cash. It appears from the evidence of prosecution that on the day when the cash was found short appellant was the only Cashier doing the work of receiving cash as well as paying cash which he had taken from safe located in the Strong Room. Now it is to be seen that since there is admission from the appellant what, he had to say with regard to the missing of the cash. In his admission in writing which is available on the record as Exh.2/E-1 he expressed probability of overpayment and also stated that he went out alongwith Muhammad Iqbal Cashier of Messrs Anwar Trading Corporation, who requested to accompany him as Muhammad Iqbal had encashed a cheque of Rs.7 lacs which amount was very large. Since there was only one customer on that day, hence if it was a case of overpayment, then it could be made only to that customer. Prosecution has examined Muhammad Iqbal as P.W.2. Fie has denied over--payment to him and he has also denied that he requested appellant to accompany him. He stated that appellant did not accompany him. Another thing which appears conspicuously in the admission of the appellant Exh.2/E-1 is that appellant stated that he went out with permission of the Manager for about ten minutes and before going out he had locked the cash and had taken the key of the box with him.
12. Manager has been examined by the prosecution and he has denied the fact that appellant went out after obtaining his permission and secondly admission again made by the appellant that he locked the cash and took away the key shows that nobody else had stolen that cash. Appellant has not said that during his absence and on his return he found lock of the box in broken condition or box opened. He has not said that any other person in the Branch had also similar key of the box.
13. These factors clearly show that all chances of stealing the cash or overpayment are eliminated. In the trial Court in his 342, Cr.P.C. Statement he stated that shortage was due to some mistake on account of excess payment to some party. There was no other party on that day except one customer Muhammad Iqbal, who has denied excess payment. Moreover, relatives of the appellant have paid to the Bank Rs.50,000 which is half of the amount found missing. In the circumstances we are of the view that prosecution has I produced sufficient evidence of incriminating nature to connect appellant with commission of crime. Not only that but appellant had admitted in his 342, Cr.P.C. Statement that cash was entrusted to him and an amount of Rs.1 lac was found A short. He has admitted dominion over the property at the time when it was found missing and his explanation is unsatisfactory and is not convincing. He has spoken many lies. Prosecution case stands proved against him. Learned Presiding Officer of the trial Court has awarded lighter sentence for the reasons that appellant remained in custody as under trial prisoner for some time and further paid Rs.50,000 to the Bank. In addition to that we reduce the sentence further for the reasons that according to Mr. Muhammad Hayat Junejo father of appellant had made arrangements for reimbursement of Rs.50,000 to the Bank but has expired after the appellant was convicted and sentenced. It was further submitted by the learned counsel that had father of appellant been alive, he would have made efforts to pay to the Bank the remaining amount. Thirdly it appears from the record that cash was found short on 29-11-1986 at the time of closing, appellant himself reported and subsequently he made admission in writing. Manager of the Bank reported the matter to the Head Office and subsequently report was filed on 13-8-1987 which was after a delay of nine months. From this it can be presumed that the Bank was not serious about filing the criminal case and perhaps F.I.R. Was not intended to be filed if relatives of appellant had succeeded to reimbursing the whole amount.