SYED ABDUR REHMAN, J.---Appellant, Abdul Majeed, was convicted by the Presiding Officer, Special Court (Offences in Banks) at Karachi, under section 408, P.P.C. And sentenced to suffer R.I. For three years and to pay a fine of Rs.400,000 (Rupees four hundred thousands) or in default of payment of fine to undergo further R.I. For six months. Out of the amount of fine, if recovered, Rs.1,83,000 were ordered to be paid to the Bank. The, appellant has challenged the above conviction and sentence by this appeal.
2. Briefly stated the prosecution story is that the appellant was working as Manager of the Kotdiji Branch of the National Bank of Pakistan in 1989. The appellant in that capacity had withdrawn heavy amounts from the accounts of some of the account-holders and made false and bogus entries in the account books of the bank. This fact came to light when the appellant was transferred and in his place another Manager by name Dhani Bux took over. The charge of ihc Branch on 22-5-1989. On being cautioned by Zameer Ahmed, official of the Bank, Dhani Bux checked the account-books of the bank and found that several entries for heavy amounts were missing. He, therefore, requested the account-holders to confirm what was the balance in their respective accounts. On receipt of the replies from various account-holders Dhani Bux checked the account and found as many as I I discrepancies. Consequently, he made a com'plaint in respect of the above misappropriation to Deputy Director, F.I.A., on 5-6-1989. The case was investigated by Oalander Bux Phulpota, Assistant Director, F.I.A. In consequence of the investigation the appellant was arrested and sent up before the Special Court (Offences in Banks), Karachi, for trial for offences under sections 408, 468, 471 and 477-A, P.P.C. A charge was framed against the appellant under the above sections to which he pleaded not guilty and claimed to be tried.
3. The prosecution has led evidence of all the material witnesses including that of the relevant account-holders and bank officers, and produced the necessary documents.
4. In his statement under section 342, Cr.P.C., appellant, Abdul Majeed has denied the allegations, levelled against him and has alleged that misappropriation and fraud, if any, was committed by P.Ws. Zameer Hussain Clerk and Mubarak Hussain, Cashier.
5. The learned trial Court assessed the evidence led by the prosecution. And came to the conclusion that misappropriation of amount connected with the defalcations and discrepancies in respect of 10 items of the account-holders could not be proved against the present appellant, whereas only one discrepancy and defalcation which related to a sum of Rs.1,83,000, which was sought to be transferred by a cheque by an account-holder, Gul Muhammad, who was a retired Assistant Commissioner, from his Account No.183 to Account No.19, had been proved to be misappropriated by the appellant in collusion with Mubarak Hussain. He therefore, held the appellant liable for the said discrepancy and defalcation and consequent misappropriation and convicted and sentenced him as shown above.
6. We have heard Mr. Usman Ghani Rashid, Advocate for the appellant and Mr. Abdul Ghaffar Siddiqui, Advocate for the Federal Government and Mr. Zubair Oureshi, Advocate for the Provincial Government.
7. To appreciate the arguments advanced by Mr. Usman Ghani Rashid, it will be necessary to, reproduce the following extract from para. No.39 of the judgment of the trial Court which reads as under:- "So far as Rs.1,83,000 of Gul Muhammad is concerned either Mubarak or the accused or both have misappropriated it. The bank has accepted the pay-in-slip Exh.3/A as genuine, that is why Gul Muhammad's claim was satisfied. According to P.W. 2 Gul Muhammad it was the accused, who had himself drawn the amount of cheque Exh.2/M-8 and issued pay-in-slip Exh.3/A. The accused cannot escape his liability for the amount involved in this slip. The presumption is that the accused in collusion with Mubarak has misappropriated the above amount."
8. The sum and substance of his argument was that when it was held by the learned trial Court that so far as the amount of Rs.1,83,000 was concerned either Mubarak or the appellant or both have misappropriated it then it was quite clear that the Court could have drawn two inferences that is either Mubarak or the appellant had misappropriated the amount. He went on to I support his argument with the settled legal proposition that when two inferences are possible from certain facts and circumstances, the A inference which is favourable to the accused is to be drawn by the Court. We have no cavil with the legal proposition set up by the. Appellant's coiinsel but we are quite clear in our mind that the learned trial, Court had never meant to convey the sense, which Mr. Usman Ghani was deducing from the above sentence. The trial Court had not held that an inference that only Mubarak had misappropriated the amount and not the appellant was also possible.
9. We have also gone through the evidence of P.Ws. Gul Muhammad and Dhani Bux. We reproduce the following extracts from their evidence, which would show that in respect of the item of Rs.1,83,000 each of them have fully saddled the appellant for the misappropriation of the above amount. Each of them has deposed that signatures on the cheque, counterfoil of pay-in-slip, manager's scroll and day book are that of the appellant.
DHANI BUX EXH.2.
"Account-holder Gul Muhammad has an account bearing No.87 at our Branch. The said account- holder had made the complaint Exh.2/M, to the effect that, on 1-4-1989, he had issued a cheque for Rs.1,83,000 on his said account 87 for transfer of the said amount to his Account No.19, but though the amount was withdrawn from Account No.87, it was not transferred in his Account No.19, but misappropriated. I produce ledger Account of Account No.87, showing withdrawal of amount of Rs.1,83,000, on 4-4-1989 as Exh.2/M-1. (Note: Original, ledger account seen and returned to the witness and attested photostat copy thereof kept on the record with the same exhibit number). I also produce from the Manager's Cash Scroll the Cashier's payment book and the Bank Day Book the entries showing withdrawal of amount of Rs.1,83,000 from Account No.87, on 4-4-1989 as Exh.2/M-2, Exh.2/M-3 and Exh.2/M-4 respectively. The entries in Manager's Cash Scroll and Day Book have been signed by the accused. I also produce photostat copy of the counterfoil of the deposit slip under which the amount of Rs.1,83,000 was to be credited in Account No.19, as Exh.2/M-5. The counterfoil bears the signature of the accused. The original counterfoil is with the account holder, Gul Muhammad. I also produce the ledger account of Account No.19, which shows that the amount of Rs.1,83,000 has not been credited in the said account as Exh.2/M-6. (Note: Original ledger account seen and returned to the witness and attested photostat copy thereof kept on the record with the same exhibit number). I also produce the entries from the Cashier's receipt book under the date 4-4-1989, which do not show the receipt or deposit of the amount of Rs.1,83,000 deposited under the deposit-slip, Exh.2/M-5, as Exh.2/M-7."
GUL MUHAMMAD EXH.3: "On 24-3-1989, 1 sent a cheque for Rs.1,83,000 for transfer from PLS Account No.87 to Current Account No.19. The date of the cheque was 1-4-1989. On 4-4-1989, 1 went to the Kotdiji Branch of the bank and inquired from the manager about the transfer of the amount. Abdul Majeed Sooniro accused was the manager. He told that the cheque, was still lying with him. I thought it better to encash the cheque and deposit the same in our current a/c. I therefore, cut off the words "payee's a/c. Only" and made it a bearer cheque. The manager filled in the pay-in-slip from the manager's scroll to his office. I produce the original counterfoil of the account-holder's pay-in-slip as Exh.3/A.
It bears signature of the manager. It also bears stamp of the bank."
10. We have also perused the entire evidence that has been led in this case in respect of this item.
We find that the amount was shown by the appellant to have been withdrawn from Account No.87 after receipt of the cheque of the said amount from the appellant and that it was not transferred to his Account No.19 although pay-in-slip of the said amount in Account No.19 was issued to. The account-holder. The fact that P.W. Mubarak was Cashier and could, therefore, be in collusion with the appellant in the offence of misappropriation would not absolve the appellant of his liability.
Hence we uphold his conviction.
The appellant was arrested on 6-3-1990 and is in custody since then. The learned trial Court has, however, not taken into consideration the period during which he was in custody as an under trial prisoner as required by section 382-B, Cr.P.C., which comes to nearly two years. He has also lost his job and is disqualified from future employment. We have decided to give him the benefit of section 382-B, Cr.P.C. We, therefore, reduce his substantive sentence of R.I. To that already undergone by him. The sentence of fine, R.I. In default thereof and direction for payment of Rs. 1,83,000 to the bank shall, however, remain unaltered. With this modification in sentence the appeal is, otherwise, dismissed.