1. SH. RIAZ AHMAD, J.--- Appellant Liaqat Jamil son of Muhammad Jamil was tried by a Special Court (Offences in Banks) on charges under section 409 of the Pakistan Penal Code and under section 5(2) of the Prevention of Corruption Act, 1947.
2. Vide judgment-dated 29-1-1991, the learned Judge presiding over the said Court found the appellant guilty on both the charges. On the charge under section 409, P.P.C, the appellant was sentenced to undergo rigorous imprisonment for a term of one year and to pay fine of Rupees. One lac or in default thereof, to suffer rigorous imprisonment for a term of six months. On the charge under section 5(2) of the Prevention of Corruption Act, 1947, the appellant was sentenced to undergo rigorous imprisonment for a term of one year and to pay a fine of Rupees one lac or in default of the payment of fine to, suffer rigorous imprisonment for a term of six months. The sentences were, however, ordered to run concurrently. It was further directed that half of the fine, if recovered, shall be paid as compensation to the bank.
3. The machinery under the law was brought into motion against the appellant vide F.I.R. Exh.P.W.l/2 dated 30-12-1982 lodged by Mr. Muhammad Munir Qureshi, Manager, United Bank Ltd.; Ghalla Mandi Branch, Gujranwala. The complainant/manager addressed a letter to the Incharge, Police Station Model Town in which he stated that on the checking of the record, it had transpired that ex- cashier of the bank namely Liaqat Jamil appellant, on various dates had been bringing amount from National Industrial Cooperative Bank Ltd. Gujranwala, without any authority and then had been depositing the said amount in the account of National Industrial Cooperative Bank Ltd. It was alleged that on 9th of December, 1975, the appellant brought Rupees two lacs from the National Industrial Cooperative Bank Ltd. Gujranwala and on 11th of February, 1975, he deposited only an amount of Rupees one lac and eighty thousand and thus misappropriated Rupees twenty thousands. Similarly on 30th, of December, 1975, the appellant allegedly brought an amount of Rupees one lac and fifty thousand from the National Industrial Cooperative Bank Ltd. Gujranwala and on 3rd of January, 1976, he deposited Rupees one lac and forty thousand and thus misappropriated Rupees ten thousand. In this way, according to the F.I.R., the appellant had misappropriated Rupees thirty thousand. It was further stated in the F.I.R. That on account of such lapse on the part of the appellant; he was removed from service.
4. To support its case at the trial, the prosecution produced Akhtar Hussain Mir, P.W.2 who was working as Manager in the United Bank Limited, Ghalla Mandi. Branch, Gujranwala when the appellant was serving under him as a cashier. According to his statement, the appellant received Rupees two lacs from the National Industrial Cooperative Bank, on 9-12-1975 for deposit in the main account of the said National Industrial Cooperative Bank. The witness further stated that the appellant did not deposit the said amount but on 11-12-1975 i.e. Two days after the receipt of the amount, he deposited Rupees one lac and twenty thousand. It is further pertinent to mention that unfortunately no attention was paid to the part of the statement of this witness when he stated that Rupees one lac. And twenty thousands were deposited in the account of National Industrial Cooperative Bank maintained m U.B.L. Ghalla Mandi Branch, Gujranwala by transfer under advice issued by U.B.L. Gondlanwala Road Branch, Gujranwala. This circumstance of deposit by transfer from U.B.L. Gondlanwala Road Branch to U.B.L. Ghallah Mandi Branch has not been explained by the prosecution. The appellant also deposited Rs.60,000 on the same day in the same account and thus misappropriated Rs.20,000 out of two lass.
5. Similarly, Akhtar Hussain Mir, P.W.2 stated that on 3rd of January, 1976, two amounts were deposited by the appellant i.e. Rupees one lac and another sum of Rupees forty thousand out of Rs.1,50,000 received by him on 30-12-1975. The documentary evidence ' as to the execution of receipts and vouchers were also relied upon by the prosecution.
6. One of the witnesses Shahbaz Baig, P.W.4 stated that he had gone to the U.B.L. Ghalla Mandi Branch on behalf of the National Industrial Cooperative Bank and contacted Akhtar Hussain Mir, P.W.2 Manager in his cabin and therein the amount was paid and the appellant after receiving the same had issued receipts. The witness Shahbaz Baig further admitted that he informed Mir Akhtar Hussain, P.W. 2 that he had brought cash for deposit in the bank and then he handed over the cash to the appellant.
7. Mir Akhtar Hussain, the Manager at the relevant time, had appeared as P.W.2, he has not denied when asked whether Shahbaz Baig, P.WA had contacted him and he informed him that he brought cash. Mir Akhtar Hussain denied it and stated that the cash .Was straightaway given to the appellant. On the other hand, case of the appellant was that the cash was given to the --Manager Mir Akhtar Hussain P.W. 2 and on his instructions he had issued receipts. A perusal of the F.I.R. Shows that appellant had himself beerr depositing cash in the branch after bringing the same from the office of the Co--operative bank. Precisely, the complainant Muhammad Munir Qureshi stated that on different dates appellant without authority had been bringing the cash from the National Industrial Cooperative Bank and it was on 9th of December, 1975 when the appellant brought Rupees two lacs but deposited Rupees one lac and eighty thousand and similarly, he brought an amount of Rs. One lac and fifty thousand but he deposited Rupees one lay and forty thousand.
8. The prosecution evidence is discrepant as to the manner in which cash was brought. According to the F.I.R. As stated above, the appellant had himself been bringing the cash whereas according to the prosecution evidence, Shahbaz Baig, P.W.4 and employee of the National Industrial Cooperative Bank, had been bringing amount to the Manager of UBL Akhtar Hussain Mir. P.W.2. Keeping this discrepancy coupled with the fact that the amount stood transferred to the Ghalla Mandi U.B.L.
9. Branch under a transfer voucher from Gondlanwala Road U.B.L. Branch does not prove the prosecution case beyond any shadow of doubt.
10. The prosecution in fact did not take pains to trace the source and the manner in which the misappropriation took place; if according to the F.I.R., the money was entrusted to the appellant directly by the National Industrial Cooperative tank, then in the said event, a complaint ought to have been lodged by the National Industrial Cooperative Bank rather than the United Bank Ltd. We do not know in what fiduciary capacity, the appellant was entrusted with this money by the National Industrial Cooperative Bank. The F.I.R. Was lodged after 6/7 years of the occurrence. Had there been any truth in the prosecution case, the F.I.R. Would have been lodged soon after the A detection of the crime: It seems that the appellant has been implicated falsely and has been made scape goat.
11. Since the evidence on the question of entrustment is not free from I doubt, therefore, we are of the view that conviction under section 409, P.P.C. 8 as well as under section 5(2) of the Prevention of Corruption Act, 1947 is not sustainable. In this view of the matter, we hold that the prosecution has failed to prove its case and, thus, we have no other option but to allow this appeal and set aside the conviction and sentences. The appellant shall be released forthwith if not required in any other case.