RIAZ AHMED, J.~ Appellant Liaqat Jamil son of Muhammad Jamil was tried by a Special Court (Offence in Banks) on charges under section 409 of the Pakistan Penal Code and under section 5(2) of the Prevention of Corruption Act, 1947.
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 PPC, the appellant was sentenced to undergo rigorous imprisonment for a term of one year and to pay fine of Rs. 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 Rs. 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.
2. The machinery under the law was brought into motion against the appellant vide FIR Ex.P.W.1/2 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 Co-operative Bank Ltd. Gujranwala, without any authority and then had been depositing the said amount in the account of National Industrial Co-operative Bank Ltd. It was alleged that on 9th of December, 1975, the appellant brought Rs. Two lac from the National Industrial Cooperative Bank Ltd; Gujranwala and on 11th of February, 1975, he deposited only an amount of Rs. One lac and eighty thousand and thus misappropriated Rs. twenty thousands.
Similarly on 30th of December, 1975, the appellant allegedly brought an amount of Rs. One lac and fifty thousand from the National Industrial Cooperative Bank Ltd. Gujranwala and on 3rd of January, 1976, he deposited Rs. One lac and forty thousand and thus misappropriated Rs. Ten thousand. In this way, according to the FIR, the appellant had misappropriated Rs. Thirty thousand. It was further stated in the FIR that on account of such lapse on the part of the appellant, he was removed from service.
To support its case at the trial, the prosecution produced Akhtar Hussain Mir, PW 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 Rs.2 lac 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 Rs. 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 Rs. One lac and twenty thousand were deposited in the account of National Industrial Cooperative Bank maintained in UBL Ghallah Mandi Branch, Gujranwala by transfer under advice issued by UBL Gondlanwala Road Branch, Gujranwala. This circumstance of deposit by transfer from UBL Gondlanwala Road Branch to UBL 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 lacs.
3. Similarly, Akhtar Hussain Mir, PW2 stated that on 3rd of January, 1976, two amounts were deposited by the appellant i.e. Rs. One lac and an other sum of Rs. 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.
One of the witnesses Shahbaz Baig, PW4 stated that he had gone to the UBL Ghallah Mandi Branch on behalf of the National Industrial Cooperative Bank and contacted Akhtar Hussain Mir, PW2 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, PW2 that he had brought cash for deposit in the bank and then he handed over the cash to the appellant.
4. Mir Akhtar Hussain, the Manager at the relevant time, had appeared as PW2, he has not denied when asked whether Shahbaz Baig, PW4 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 PW2 and on his instructions, he had issued receipts. A perusal of the FIR shows that appellant had himself been depositing cash in the branch after bringing the same from the office of the Cooperative 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 Rs.
Two lacs but deposited Rs. One lac and eighty thousand and similarly, he brought an amount of Rs. one lac and fifty thousand but he deposited Rs. One lac and forty thousand.
The prosecution evidence is discrepant as to the manner in which cash was brought. According to the FIR as stated above, the appellant had himself been bringing the cash whereas according to the prosecution evidence, Shahbaz Baig, PW4 an employee of the National Industrial Cooperative Bank, had been bringing amount to the Manager of UBL Akhtar Hussain Mir, PW2. Keeping this discrepancy coupled with the fact that the amount stood transferred to the Ghallah Mandi UBL Branch under a transfer voucher from Gondlanwala Road UBL Branch does not prove the prosecution case beyond any shadow of doubt.
5. 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 FIR, the money was entrusted to the appellant directly by the National Industrial Cooperative Bank, 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 FIR was lodged after 6/7 years of the occurrence. Had there been any truth in the prosecution case, the FIR would have been lodged soon after the detection of the crime. It seems that the appellant has been implicated falsely and has been made scape-goat.
Since the evidence on the question of entrustment is not free from doubt, therefore, we are of the view that conviction under section 409 PPC 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 & sentences. The appellant shall be released forthwith if not required in any other case.