1. ' NAZIM UHSSAIN SITDDIQUI, J.--This appeal is directed against the judgment dated 23-6-1993, passed by learned Presiding Officer Special Court (Offences in Banks), Karachi, whereby appellant Muhammad Akram Sheikh was convicted under sections 408 and 468, P.P.C. And was sentenced to suffer R.I. For four years under each count, which were to run concurrently, and was also ordered to pay fine of rupees two lacs under section 408, P.P.C. And rupees fifty thousands under section 468, P.P.C., or in default thereof to suffer further R.I. For six and three months respectively. The facts relevant for decision of this Appeal are as follows: ' From July, 1985 till September 1988, appellant Muhammad Akram served an on Officer Grade-III and was posted as an Accountant in Deh Dero Satho Branch of Muslim Commercial Bank at Tando Allahyar. Mehran Sugar Mills, Tando Allahyar maintained its account in said Branch and as a routine it issued bills in triplicate in favour of the suppliers of sugarcane. One copy of the bill was sent to the Branch for crediting amount in the account of the supplier, the second was for information to the supplier, and third one was to be returned to the Mill after debiting the amount from its account. On 30th September, 1988, Mr. Inamul Haq, Manager of said Branch, made a verbal complaint to the Zonal Office at Mirpurkhas that the appellant had committed embezzlement in respect of several bills, pertaining to the suppliers. Consequently, on 1-10-1988 the account was checked by M/s. S. Anwar Ali, Muhammad Siddique Arain, and Muhammad Umer, who were the Officers of the Zonal Office. It was discovered that the appellant had committed fraud and his modus operandi was that, having received a particular bill pertaining to a supplier for crediting amount in the account of the supplier, he got the same credited in some other account of a person, who had already closed his account after surrendering the Cheque Book. Thereafter, the appellant used blank cheques from such cheque books and withdrew amount by forging the signatures of the real account holders. From drawers of table of the appellant, 20 cheque books were recovered, which were of the customers, who had applied for closure of their accounts.
2. ' The prosecution has claimed that the appellant had misappropriated a sum of Rs,2,89,012.66 and subsequently withdrew the amount of Rs,1,93,689 for his personal benefit. Further, it is said that before his senior officers he admitted about said embezzlement and promised to pay said amount in instalments and, in fact, paid five instalments on 4-10-1988, 6-10-1988, 11-10-1988, 12-10-1988, 20- 2-1988 for Rs,21,000, Rs,10,500, Rs,26,000, Rs,2,500 and Rs,40,000 respecively amounting to Rs,1,00,000. Above amounts were deposited in Sundry Account of the Branch, by five deposit slips, bearing the signatures of the appellant.
3. ' It is also the case of prosecution that the appellant had given a statement, in writing, before the Inspection Team, headed by Mr, Ahmed Ali, wherein he admitted to have committed said embezzlement. He had also given a separate statement to this effect to the Regional Manager, S. Anwar Ali. The complaint was lodged by Mr. Muhammad Umer S. Memon, an Officer of Muslim Commercial Bank Ltd., before the Deputy Director, F.I.A. Sindh and Balochistan Circle, Karachi, which was incorporated in F.I.R. No,38/88 dated 3-11-1988 registered under section 409/420/468/471/A, P.
4. P . C .
5. ' The investigation of this case was conducted by Mr. Maqsood Ali Shah, Inspector F.I.A. He recorded statements of P.Ws. Umer Memon, Gulzar Ahmed, Abdul Sattar Khawaja, Ali Ahmed, Misbaul Hassan, Ali Muhammad, Inamul Haq Abbasi, Hassan Ali, and Meer Hassan, Dr. Maqsood Ahmed, Muhammad Bux, Darya Khan, Taj Muhammad and Ghulam Rasool on various dates. On 23-10-1991 he seized certain documents from said Branch of Muslim Commercial Bank. On completion of investigation, he submitted charge-sheet before the concerned Court against the appellant, showing him as absconder, who later on was arrested on 19-1-1992.
6. ' On 30-1-1992 charge was framed against the appellant, which was amended on 14-3-1993.
7. According to amended charge, the appellant during the period commencing from 26-1-1987 to 26- 12-1987, tnisappropriated amount to the tune of Rs,97,946.40 and for that charge was framed under sections 408 and 477-A, P.P.C.
8. ' At trial the prosecution examined, complainant Muhammad Umer, P.Ws. S. Misbaul Hassan, Gulzar Ahmed, Abdus Sultan, Muhammad Sharif, Inamul Haq Abbasi, Abdul Ghani, Alam Ali Khan, S. Wasiuddin, Inspector F .I. A . And Maqsood Ali Shah, Inspector F . I . A .
9. ' The appellant in his statement recorded under section 342, Cr.P.C. Has denied the prosecution allegations and claimed to be innocent. He admitted that twenty Cheque Books were recovered from his drawer, but denied to have used any one of them. In reply to a question that the amount of 67 Bills (Exhs.2/6 to 2/72) he had credited in the account of wrong persons, and thereafter withdrew said amount by 36 cheques (Exhs.2/73 to 2/108) by forging signatures of account holders, he stated that he signed those cheques as "passing officer", and Mr. Inamul Haque Manager had also signed those cheques in the same capacity. As regards depositing by him of Rs,1,00,000 towards the misappropriated amount through five credit vouchers (Exhs.2/33 to 2/37), he maintained that he was confined in the Strong Room of the Branch and was released after he had signed those vouchers. According to him, the amount of those vouchers was arranged by his relatives. He admitted that in absence of Mr. Inamul Haq Manager he had passed some cheques but denied said misappropriation. He did not examine himself on oath, and examined Muhammad Umer and Muhammad Ismail as defence witnesses.
10. ' On assessm ent of the evidence brought on record learned Trial Judge believed the prosecution version and convicted the appellant by the judgment, which has been impugned in this appeal.
11. ' Mr. Usman Ghani Rashid learned counsel for the appellant contended that the Trial Court failed to appreciate the evidence available on record in its true perspective and reached wrong conclusion.
12. According to learned counsel, the case of the prosecution is not free from doubt and on that ground the appellant should have been acquitted.
13. ' Above contention is devoid of any force. There is irrefutable evidence both, oral and documentary to demonstrate that embezzlement was committed by the appellant. Complainant Muhammad Umer, in his deposition, has provided details about the said embezzlement. He deposed that twenty cheque books were recovered from the drawer of the appellant and the latter admitted about said recovery. The witness has also deposed about falsification of accounts and misuse of the bills. For example, he has produced a Bill (Exh.2/2) for Rs,1,693 issued by said Sugar Mill for crediting the amount in the' account of supplier namely, Muhammad Aslam. The appellant, instead of crediting said amount in the name of said supplier, deposited it in the account of one Muhammad Bux and such entry was made in the Ledger, which was in the handwriting of the appellant. The witness has also pointed out that, an amount of Rs,1,700 was withdrawn by the appellant from account of said Muhammad Bux by a cheque (Exh.2/4) and that the signatures of said Muhammad Bux were forged. The witness has also produced 67 Bills (Exhs.2/6 to 2/72) which were admittedly received by the appellant for crediting the amounts in the account of the persons in whose favour those bills were issued by the Mill, however, credited the amounts in the accounts of the other persons, than the suppliers and thereafter withdrew said amounts by 36 cheques mentioned earlier. P.W. Misbaul Hassan who was one of the supplier, deposed that two cheques (Exhs.2/76 to 2/77) did not bear his signatures nor he received the amounts mentioned in those two cheques. P.W. Gulzar Ahmed, who was Cashier in the said Branch, has identified the handwriting of the appellant in the Ledger, which has come on record as Exh.2/169.
14. ' It is significant to note that the factum of fraud has not been specifically denied by the appellant.
15. He, however, has stated that he was not responsible for it. He has also not denied misappropriation of the various amounts mentioned in the F.I.R./Complaint and maintained that embezzlement, if any, was committed by P.W. Inamul Haq Abbasi, Manager. There is overwhelming documentary evidence and it is conclusively proved that he had misappropriated the amounts, as is alleged by the prosecution witnesses particularly, complainant Muhammad Umer, and P.Ws. Gulzar Ahmed, Abdus Sultan, and Inamul Abbasi. These witnesses have fully implicated him in the commission of the offence and they had no motive, whatsoever, to falsely involve him nor their credibility was successfully impeached in the cross-examination nor any circumstance was pointed out which could, on its own or on the combined strength of other circumstances, create doubt about the correctness of the prosecutions version. The finding of the Trial Court that the appellant had misappropriated the said amount is perfectly correct and no exception can be taken to it.
16. ' Mr. Usman Ghani Rashid learned counsel for the appellant next argued that Trial Court committed illegality, when it heavily relied upon the extrajudicial confession of the appellant, which according to the learned counsel, was obtained by exercising pressure upon the appellant. It is true that in a case which solely depends upon extra-judicial confession utmost care is to be exercised before it is accepted. When a confession is made to a respectable person voluntarily and the confessor is not in Police custody, conviction can be awarded on the basis of said confession. It is, however, necessary that before such confession is acted upon, in order to ascertain the voluntary nature of such confession, the attending circumstances shall strictly be examined and the truth or falsity of a confession must be considered in the light of all the facts, under which extra-judicial confession was made. There is nothing on record to show that any sort of pressure was exercised upon the appellant for obtaining said confession. On the contrary, it is evident from the record that, after the fraud was detected, the appellant to unburden himself had voluntarily confessed about his guilt before his Officers including complainants Muhammad Usman and Inamul Haq and even had given in writing about the mischief committed by him. One of those writing is on record at Exh.2/230 and is as follows:-- "I Muhammad Akram son of Yaqoob Shaikh, Accountant Deh Daro Sutah Branch state that due to unavoidable circumstances. I have committed misappropriation, fraud, forgery in the Branch. I am responsible for this misappropriation, fraud, forgery and no other staff member is involved in it.
17. ' Whatever amount of misappropriation, fraud, forgery is detected, I undertake to pay the same within a week to the Bank.
18. Dated 4-10-1988 (Sd.)
19. ' MUHAMMAD AKRAM SHAIKH, SON OF MUHAMMAD YAQOOB SHAIKH, M.C.B. Deh Daro Sutah, Branch,
(MSM) Tando Allahyar."
20. Signatures on above letter were neither denied by the appellants before the trial Court nor before this Court. It is a clear confession on the part of the appellant of having committed said crime. The plea that the appellant was forced to sign this letter is without any substance. In fact, besides this letter, he had also signed the letter dated 25-10-1988 (Exh.232) which was another statement in which, though he attempted to show himself innocent, but the reading of the entire letter indicated that he had done the mischief. Besides, the confession, the case of the prosecution has also been proved by the oral as well as documentary evidence. The contention that P.W. Inamul Haq Abbasi had done the mischief, stood belied by the letter quoted above, wherein the appellant frankly conceded to have misappropriated the amount.
21. ' Learned counsel for the appellant also argued that the trial of the appellant was illegal as it was held in violation of section 234, Cr.P.C. He contended at the most the appellant could be tried for three offences of same kind conunitted within a year, whereas as per amended charge the appellant was tried for as many as 32 Bills shown in the charge. He concluded that on this ground alonge, the conviction is liable to be set aside. There is no substance in this contention. The complete answer of this contention is in subsection (2) of section 222, Cr.P.C., which is as follows: ' Subsection (2) of section 222.--When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234: ' Provided that the time included between the first and last of such dates shall not exceed one year."
22. ' Since, it is a case of criminal breach of trust/dishonest misappropriation of money and the period covered by the amended charge was of less than a year no illegality was committed by the Trial Court.
23. The section 408, P.P.C. Applies where breach of trust is committed by _a Clerk or servant. The essential ingredient of this section is dishonest misappropriation. Also, the prosecution is required to prove the entrustment of the property in the aforesaid capacity, or to prove that the aforesaid persons had dominion over the property. In this case, the appellant as discussed above, had misappropriated the aforesaid amount of his employer.
24. ' Though forgery by itself is a substantive offence, but it includes an element of attempt also.
25. Normally, it is done for a criminal act, which follows the forgery. The intention of the forger, however, can conveniently be gathered from the contents of the documents, which has been forged.
26. Deliberately making incorrect entries in the account book of the employer by the employee with the sole object of cheating and causing damage to the employer is an offence within the meaning of section 468, P.P.C. And the appellant had done above acts being an employee of a Bank.
27. ' The evidence of D.W. Muhammad Umer, who is a goldsmith, is not enough to disprove the charge framed against the appellant. The witness himself admitted, in cross-examination, that he does not know details of the criminal case in which the appellant was involved. D.W. Muhammad Ismail, who is the elder brother of the appellant, stated that on being informed about this matter he arranged an amount of Rs,1,00,000 for the appellant and deposited it in the Bank. His evidence also does not belie the prosecution's version and is of no use for the appellant. On the contrary, it supports the prosecution case.
28. ' In the last, learned counsel submitted that the sentence awarded to the appellant is excessive.
29. There is no force in this contention also. The appellant was tried under the Banks (Special Courts)
30. Ordinance IX of 1984). h came in force on 23-2-1984. Section 6 of the Ordinance, which deals with the power of the,Special Court, reads as under:-- "Powers of Special Court.--(1) Subject to subsection (2) and subsection (3), a Special Court may pass any sentence authorised by law and shall have all the powers conferred by the Code on a Court of Session exercising original jurisdiction.
(2) For the purposes of this Ordinance the provisions of the Pakistan Penal Code (Act XLV of 1860), specified in the Second Schedule shall have effect subject to the modifications specified therein.
(3) Where a Special Court passed a sentence of fine, whether in addition to any other punishment or not, the amount of such fine shall be fixed by it having regard to the gravity of the offence for which the accused person is convicted and, where the Special Court finds the offence to have been committed in respect of a specified amount, shall not be less than twice the said amount.
(4) Where a Special Court passes a sentence of fine, the Court shall order the whole or any part of the fine recovered to be applied in the payment to the bank in respect of which the offence was committed of compensation for the loss caused to it by the offence."
31. Second Schedule of the Ordinance provides that the punishment under section 468, P.P.C. Shall not be less than 4 years. As pointed earlier, the appellant has been convicted under sections 408 and 468, P.P.C. And sentenced to suffer R.I. For 4 years under each count, which are to run concurrently.
32. It being so, the sentence under section 468, P.P.C. Cannot be reduced, as, in any case, it cannot be less than 4 years. As regards fine, the Trial Court held that the offence was committed in respect of a specified amount of Rs,1,93,689 and out of said amount Rs,1,00,000 were deposited by the appellant, as mentioned earlier. Thus, the specified amount comes to Rs,93,689. According to subsection (3) of section 6 quoted above, the fine shall not be less than twice the specified amount. The trial Court had ordered to pay two lacs under section 408, P.P.C. And Rupees fifty thousand (Rs,50,000) under section 468, P.P.C. Under these circumstances, the fine imposed upon the appellant is appropriate.
33. ' In consequence, we do not find any merit in this appeal and the same is dismissed.