' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.--- The above appeals are directed against the judgment, dated 21-11-2001 passed by the Special Court (Offences in Banks) Sindh at Karachi, in Case No,14 of 1994, thereby convicting both the appellants, for the offences punishable under sections 409 and 477-A, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, and awarding sentence of R.I. For 7 years for commission of each of the offences and to pay a fine of Rs,5,00,000 by each of the appellants for each of the two offences and in default in payment of fine to under go R.I. For one year more each, for each time. The learned trial Court further directed that, iffine is paid by the appellants an amount of Rs,2,50,000 shall be paid to the bank/complainant as compensation. The two substantive punishments were directed to run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended.
2. Briefly stated that prosecution case is that, Mr. Muhammad Azam Bachani, the then Manager National Bank of Pakistan, Market Branch Hyderabad, filed a written complaint with the F.I.R. That one account holder of his branch, namely Haji Muhammad Abid Chohan, having Account No,644-8 made a complaint on 14-9-1992 that, he had deposited an amount of Rs,2,50,000 in cash, in his above account through a Pay-in-slip. The counter-foil whereof was returned to him duly signed by appellants Mumtaz Ali Mangi and Abdul Haq, the then Manager and Head Cashier respectively of the said branch of the bank. The endorsement of "cash receipt" was stamped in token of having received the amount in cash. He further alleged in his complaint that he issued two cheques drawn on the said account but the cheques were dishonoured for want of balance money in the said account. On receiving the complaint, Mr. M. Azam Bachani, the then Manager, verified the relevant record and found that, the said amount of Rs,2,50,000 received by appellants Mumtaz Ali Mangi and Abdul Haq was not credited in Account No,644-8. The amount was misappropriated by the two appellants in collusion with each other.
3. On the basis of written complaint from Mr. M. Azam Bachani, an F.I.R. Was registered being Crime No,28 of 1992. After usual investigation, the two appellants were challaned to face trial.
4. Both the appellants pleaded not guilty to the charge.
5. The prosecution in support of its case and in order to establish the charge, examined 5 witnesses namely P.W.1, Muhammad Azam Bachani, Exh.5, P.W.2, Haji Muhammad Abid, Exh.6, P.W.3, Bashir Ahmed Durrani, Exh.8, P.W.4, Abdul Hameed Pathan, Exh.9 and P.W.5, Munir Ahmed Shah, Exh.10.
6. Both the appellants/convicts were examined under section 342, Cr.P.C. Exhs.12 and 13 respectively.
7. Both the appellants examined themselves on oath as defence witnesses under section 340(2), Cr.P.C. Exhs.14 and 15 respectively. D.Ws; Ashfaq Ahmed Qureshi, Exh.16 and Muhammad Akhtar Baloch, Exh.17 were examined-in-defence.
8. The learned trial Court framed the following points for determination:--- "(1) Whether the accused Mumtaz Ali Mangi and accused Abdul Haq Shaikh were posted as Manager and head Cashier in the Liberty Market Branch, N.B.P., Hyderabad and were Public Servants on 14-9-1992?
(2) Whether the said accused persons Mumtaz Ali Mangi, the then Manager and Abdul Haque Shaikh the then Head Cashier of the said Branch of the N.B.P. Hyderabad, received an amount of Rs,2,50,000 through Pay-in-slip Exh.5/C under their signatures and cash received stamps of the Bank on 14-9-1992?
(3) Whether the said amount of Rs,2,50,000 so entrusted to them the said two accused persons, on the said date through the said Payin-slip Exh.5/C by the account-holder for credit in his Account No,644-8, was not credited in the said account and not deposited with Bank and was not entered in the Books of the bank and in the account on 14-9-1992?
(4) Whether the above accused persons as Public Servant have misappropriated the said amount of Rs,2,50,000 and falsified the bank books/record and committed the offence of criminal breach of trust, misappropriation and falsification of account/record.
(5) What offence, if any, by the two accused persons or any of the two, has been committed?"
9. The learned trial Court decided points Nos.1 to 4 in affirmative and thereafter held that both the appellants committed the offences punishable under sections 409/477-A, P.P.C. Read with section 5(2) of the Prevention of Corruption, Act, 1947 and sentenced as narrated above.
10. The appellants feeling aggrieved have preferred the present appeals.
11. We have, heard Messrs, Moula Bux Bhatti and Muhammad Ilyas Khan, learned Advocates for the appellants and Mr. Khursheed A. Hashmi, learned Dy. A.G. For the State.
12. The learned Advocates for the appellants have taken us through the entire evidence available on record.
13. P.W.1, Muhammad Azam Bachani, has stated that, he took over charge as Manager Liberty Market Branch, Hyderabad on 11-10-1992 from Mr. Abdul Sami Memon, who had taken over charge from appellant Mumtaz Ali Mangi who was placed under suspension. On taking over charge he came across an application submitted by P.W.2, M. Abid Chohan, which he had submitted on 16-9- 1992 to his predecessor. He has produced the application Exh.5-A. He has deposed that, he sent the application to Zonal Office, alongwith the statement of account showing that no such amount of Rs,2,50,000 was credited as alleged in the application. He has produced the statement of account Exh.5-B, he has further stated that, P.W. Haji Abid Chohan, appeared in person before him and produced Pay-in-slip Exh.5-C. This witness has stated that Payin-slip, Exh.5-C is the counter-foil of the Pay-in-slip/depositing slip through which the amount of Rs,2,50,000 was deposited by P.W.2 and it bears signatures of the appellants Mumtaz Ali Mangi and Abdul Haq, the then Manger and Head Cashier respectively. He has further stated that, he was conversant with the signatures of the two appellants as he had opportunity to have seen the signatures from the record, from time to time. According to him, he then checked the Cashier Receipt Book and found that, there was no entry of the above amount on 14-9-1992. He has produced the Cashier Receipt Book, dated 14-9- 1992, as Exh.5-D. He has further stated that, he checked Bank Cash Scroll, dated 14-9-1992 and there was no entry of this amount. He has produced the Bank Cash Scroll, Exh.5-E. He then made complaint to the F.I.A. Which he has produced as Exh.5-F. He identified the appellants in Court. In cross-examination to the Advocate for appellant Abdul Haque, he stated that Exh.5-A is not the first application. He denied the suggestion that, the application was got prepared from the account holder. He denied the suggestion that signature of appellant Abdul Haque, head Cashier is not on the counter-foil of the Pay-in-slip. He stated that, the figure of Rs,2,50,000 written on the counter- foil of the Pay-in-slip is in the hand writingof accused Abdul Haque. He further denied the suggestion that, at the time of preparation of Pay-in-slip, appellant Abdul Haque, was under suspension. He has explained that, the appellant Abdul Haque was suspended and released in the after-noon on 14-9-1992 after dosing of the bank accounts. He has shown his ignorance about the suggestion that, appellant Abdul Haque was falsely implicated because of dispute with the Manager. The counter-foil of the Pay-in-slip Exh.5-C, is in Pink colour. The witness has conceded that, for cash deposit the Pay-in-slip of green colour is used while for deposit through cheque the Pay-in-slip of Pink colour is used. He has denied the suggestion that, the twq appellants were released on their suspension on 13-9-1992. He has conceded that, the suspension order was issued by Zonal Office on 13-9-1992 but it was received in branch on 14-9-1992, and therefore, they were released on 14-9-1992. He has denied the suggestion that, at 9-00 a.m. On 14-9-1992 Abdul Sarni was the Manager of the branch. He was confronted with photostat copy of application submitted by the complainant P.W. Abid Chohan, dated 16-9-1992 Exh.5-G, (in the deposition the date is wrongly mentioned as 14-9-1992), he conceded that the contentions of complaint in Exhs.5-G and 5-A were different. At the request of learned counsel for appellant Mumtaz Ali Mangi, he produced entries, dated 29-9-1992 in Short Credit Register Exh.5-H. He has further stated that, an interpolation has been made in the Short Credit Register and a Cheque allegedly issued by P.W.2, Abid Chohan, on Allied Bank of Pakistan Ltd., in the sum of Rs,2,50,000 has been entered while the Pay-in-slip in this case is, dated 14-9-1992. He has produced copy of Despatch Register, dated 19-9-1992 Exh.5-I, and has stated an entry had been interpolated in this document at the instance of appellant.
14. P.W.2, complainant Haji Abid Chohan, has stated that, he is maintaining Account No,644-8 with ,National Bank of Pakistan, Liberty Market Branch, Hyderabad, since 1989. On 14-9-1992 at about 11- 00 a.m., he deposited an amount of Rs,2,50,000 in cash in his above account with appellant Mumtaz Ali Mangi, who was Manager in the Bank. The cash amount was handed over to appellant Mumtaz Ali Mangi, who filled-in the Pay-in-slip in his own handwriting, signed it and affixed the seal. Thereafter, appellant Abdul Haque, who was Cashier, counted the notes and he also signed the Pay-in-slip. He has stated that, Exh.5-C is the counter-foil of the Pay-in-slip and bears signatures of both the appellants. He has further stated that, on 14-9-1992, he issued two cheques in the sum of Rs,1,00,000 and Rs,1,50,000, which were dishonoured. On 16-9-1992 he went to the bank where another Manger was sitting. He came to know that, appellant Mumtaz Ali Mangi was suspended. He brought all the facts in the notice of Manager and showed him the original counter- foil of Pay-in-slip. He then submitted an application Exh.5-G to the Manager. He has stated that, subsequently, he submitted another application in the name of Branch Manager, National Bank of Pakistan, Liberty Market Branch Hyderabad, Exh.5-A. He has admitted his signatures on the applications. He subsequently, clarified that, on 16-9-1992 no Manager was working in the branch and one Auditor was available who was apprised of the fact and the first application Exh.5-G was presented to the Auditor. According to him, on 8-11-1992 Sub-Inspector Muhammad Saeed of F.I.A came to him and secured the Pay-in-slip under seizure memo., Exh.6-A. His statement was recorded by the F.I.A. And he identified both the appellants. He has denied the suggestion that, the amount of Rs,2,50,000 was deposited by him through cheque and not in cash. He has denied the suggestion made by the learned counsel for appellant Abdul Haque that, the appellant Abdul Haque has been falsely implicated at the instance of bank management. In cross-examination to the Advocate for the appellant Mumtaz Ali Mangi, he has stated that, in his first application he has not narrated the fact that the amount was handed over to appellant Mumtaz Ali Mangi and he filled the Pay-in-slip and appellant Abdul Haque counted the notes because, it was not a detailed application. He has further stated that, the Manager asked him to give the detailed application, therefore, in the second application he has narrated the entire details. He has denied the suggestion that, the second application was dictated to him by the new Manager Abdul Sami, who was inimical to appellant Mumtaz Ali Mangi. He has stated that, he is not aware that, for depositing cash in N.B.P.' a green colour Pay-in-slip is used. According to him, the appellant used to cooperate with him and therefore, he went to the appellant Mumtaz Ali Mangi and gave him the amount. He has denied the suggestion that the counter-foil of Pay-in-slip Exh.5-C, has been sealed subsequently by the new Manager Abdul Sami.
15. P.W.3, Bashir Ahmed Durrani, the then Manager A.B.L. Kotri Branch, has stated that he was posted at Kotri, in between 14-7-1992 to 30-1-1994. He has stated that Cheque No,19017479 was never presented for collection in his branch (in the Short Credit Register Exh.5-H, this cheque has been shown to have been drawn on ABL, which entry according to P.W.1, has been subsequently interpolated at the instance of appellants). This witness has not been cross-examined by learned counsel for appellant Abdul Haque and in cross-examination to the counsel for appellant Mumtaz Ali Mangi, he has stated that the cheque bearing No,19017479 was directed not to be paid.
16. P.W.4, Inspector Abdul Hameed Pathan, the Investigating Officer, has stated that on 3-11-1992 he received investigation papers. The F.I.R. Was recorded by S.I. Muhammad Saeed, which he has produced as Exh.9-A. He has stated that he recorded statements of P.Ws. M. Azam Bachani, Haji Muhammad Abid Chohan, Muhammad Anas Siddiqui and Bashir Ahmed Durrani. He produced the seizure memo. Exh.6-A through which the bank record was seized. He has stated that, he referred the Pay-in-slip, the handwriting, signatures and seal on the Pay-in-slip alongwith specimen handwriting, signature and seal to the Handwriting Expert. He has produced specimen handwriting of accused Mumtaz Ali Mangi, Exhs.9/B-1 to B-24 and Specimen Rubber Stamp as Exh.9-C.
17. P.W.5. Munir Ahmed Shah, Handwriting Expert/Inspector Technical Wing F.I.A. Islamabad, has stated that, he examined the questioned documents in this case. He has stated that the rubber stamp on Exh.5-C, is similar to the specimen rubber stamp sent to him for examination. He has further stated that he compared the specimen writing and signatures Exhs.9/B-1 to 9/B-12 and routine signatures and writing Exhs.10-B, 10-C and 10-D, they were similar to the characteristics with the corresponding specimen and routine writing and signatures. (Exhs.9/B-1 to 9-B-12 are bearing specimen handwriting and signatures of appellant Mumtaz Ali Mangi, taken in presence of a Magistrate. Exhs.10-A to 10-D are the Pay-in-slips hearing signatures of the two appellants made in the ordinary course. Exh.10-E (7 sheets) bearing handwriting and signature of appellant Abdul Haque). This witness was not cross-examined at all.
18. In his statement under section 342, Cr.P.C. Appellant Mumtaz Ali Mangi, admitted that he was Manager in the Libertry Market Branch of NBP, till forenoon of 14-9-1992. He denied to have received cash amount of Rs,2,50,000. From complainant Haji Muhammad Abid Chohan, but stated that he received a cheque of the said account holder for Rs,2,50,000 drawn on A.B.L. Kotri Branch. He admitted that the Handwriting Expert P.W.5 Munir Ahmed Shah gave opinion that the seal affixed on Pay-in-slip Exh.5-C, and the signature of the appellant thereon are similar to the specimen seal and signatures of the appellant. In reply to the question that he did not credit the amount of Rs,2,50,000 in the account of P.W. Abid Chohan, he stated that the amount was not credited, as it was not his duty to do so. He further stated that, the witnesses have deposed against him at the instance of bank management. He further stated that he received a cheque of Rs,2,50,000 No,19017479 dated 14-9-1992 through Pay-in-slip Exh.5-C, which was subject to clearance.
19. Appellant Abdul Haque in his statement under section 342, Cr.P.C. Has admitted that he was posted as Head Cashier in N.B.P. Liberty Market Branch Hyderabad. He has denied to have received a sum of Rs,2,50,000 from account holder Haji Muhammad Abid Chohan and to have signed and sealed the Pay-in-slip Exh.5-C, he has stated that the question of crediting the said amount in the account of M. Abid Chohan, does not arise as no such amount was received. He has also stated that the prosecution witnesses have deposed against him at the instance of bank management.
20. Appellant Mumtaz Ali Mangi, examined himself as defence witness under section 340(2), Cr.P.C.
Stating therein that he was posted as Manager Liberty Branch N.B.P., from March 1991 to 14-9-1992.
He received letter of suspension in forenoon of 14-9-1992 and handed over the charge to Abdul Sami Memon. He has stated that he was promoted as A.V.P. And subsequently, his promotion was cancelled, therefore, he filed Constitutional Petition in High Court. About the receiving of amount of Rs,2,50,000 from P.W. Abid Chohan, he stated as follows:-- " After receiving this cheque I issued a receipt to the said Abid Chouhan. I see Exh.5-C and say that it is same, correct and bears my signature and further say that it did not bear the stamp of NBP dated 14-9-1992 at that time, as I did not affix this stamp on it after receiving the cheque."
' He produced a blank Pay-in-slip, meant for cheque deposits Exh.14. He further stated that he received a cheque duly entered in a pink colour Pay-in-slip for deposit from Abid Chohan, account holder. He has further stated that, he affixed seal and signature on the pink colour Pay-in-slip and handed over the Pay-in-slip as well as cheque for Rs,2,50,000 to the Peon of the bank namely Yasin for handing over the same to the bank official Syed Fateh Shah, on the same day., He has stated that vide entry in Exh.5-H, the cheque was sent for clearance. He has further stated that the entry appears in Despatch Register Exh.5-1, dated 19-9-1992. He has stated that the complaint of account holder Abid Chohan contained in the application Exh.5-G is false. According to him, the complainant has incorrectly stated in his complaint that he deposited cash amount of Rs,2,50,000 under the signature and stamp of the Manager of the bank. He has further stated that the contents of second complaint Exh.5-A, dated 22-9-1992 stating therein that he deposited a cash of Rs,2,50,000 through Manager who filled-in the Pay-in-slip in his handwriting and handed over the cash to the cashier for counting and then after the signature, of cashier, the Manager affixed the stamp of receipt and handed over the counter-foil of the Pay-in-slip is incorrect. He has stated that the account holder never deposited any amount in cash in his account throughout but always deposited money through cheques. In cross-examination he, however, conceded that Pay-in-slip Exh.5-C, bears his signature and the figures and words written on the Pay-in-slip are in his hand.
'21. Appellant Abdul Haque, in his statement on oath under section 340(2), Cr.P.C. Stated that he was elected Finance Secretary of the Union. He has stated that the amount of Rs,2,50,000 was not received by him for depositing in the account of Abid Chohan and that he has been falsely implicated at the instance of the management. In cross-examination he conceded that, the stamp of "Cash Received" is always in the cash department with the cashier. He stated that, he was in cash department on 14-9-1992 till 10-00 a.m. He has further conceded that no time is mentioned in Pay-in-slip Exh.5-C.
22. D.W. Ashfaq Ahmed Qureshi, retired Manager of the NBP, has stated that appellant Abdul Haque was Head-cashier during his posting as Manager. He has stated that green Pay-in-slip is used for cash deposit and pink Pay-in-slip is used for deposit of cheques and drafts. He has stated that the Cash Scroll Book is maintained by Accountant or Manager. It is prepared on the basis of cashier's receipt book and payment book prepared by cashier. In cross-examination he has stated that it is not an illegal receipt if any amount is received through pink colour Pay-in-slip.
23. D.W. Muhammad Akhtar Baloch, has not given any testimony having bearing on this case.
24. We have heard Mr. Moula Bux Bhatti, learned counsel for appellant Mumtaz Ali Mangi, Mr. Muhammad Ilyas Khan, learned counsel for appellant Abdul Haque and Mr. Khursheed A. Hashmi, and learned Dy.A.-G. For the State.
25. Mr. Moula Bux Bhatti, has contended that the charge framed by the trial Court is defective, and therefore, the impugned conviction and sentence is not sustainable in law. Elaborating his contention he has submitted that, the alleged deposit in the bank was made by P.W.2, Abid Chohan, through cheque and not in cash while the charge contains that the appellants received Rs,2,50,000 through Pay-in-slip from customer Abid Chohan. He further contended that, since the deposit was made through cheque, therefore, the charge should have contained the serial number of the cheque through which the deposit was made and the amount was allegedly misappropriated. Advancing his arguments further Mr. Bhatti, contended that, the Pay-in-slip Exh.5-C is of pink colour which is meant for deposit through cheque, and therefore, the allegation in the charge that the amount of Rs,2,50,000 was received by the appellant is defective and therefore, the impugned judgment is liable to be set aside. He submitted that the case be remanded to the trial Court for re-framing of the charge and de novo trial. He further contended that section 409, P.P.C., envisages wrongful loss and wrongful gain and the prosecution has failed to establish that the appellants acquired any wrongful gain, therefore, the impugned finding of the learned trial Court that mere non-credit of the amount establishes the offence punishable under section 409, P.P.C. Is not correct. He has contended that the dishonest intention which is a condition precedent to sustain conviction under section 409, P.P.C., is lacking in this case. He has next contended that in order to establish a charge for the offence punishable under section 477-A, P.P.C., the prosecution was required to establish falsification of account on the part of appellants, which the prosecution has failed to prove. He has next contended that the charge is ambiguous in respect of the commission of offence under section 477-A, P.P.C. And consequently, the conviction of the appellants on is count is also liable to be set aside.
26. He has next contended that, the investigation was conducted by the Sub-Inspector Muhammad Saeed, who was alive and in service of FIA, but he was not produced at trial. The F.I.R.
Exh.9-A and the specimen of handwriting and signatures were produced by Inspector Abdul Hameed Pathan, which according to learned counsel is an illegality:He has further submitted that, after suspension of appellant Mumtaz Ali Mangi, the charge was handed over to Mr. Abdul Sami, who received the complaint from P.W.2, M. Abid Chohan, who was not examined by the prosecution and therefore, the presumption under Article 129 of the Qanun-e-Shahadat Order, 1984 would be that the examination of Mr. Sami would have been unfavourable to the prosecution.
27. Referring to the evidence of P.W.1, M. Azam Bachani, he has submitted that, the pay-in-slip Exh.5-C, which is the most important document produced by the prosecution, is in pink colour which is used for deposits through cheques. He has next contended that the first complaint/application, dated 16-9-1992 Exh.5-G, which was submitted to the Auditor of the bank does not contain any details while the second application Exh.5-A, dated 22-9-1992 is a detailed application which has been managed by the successor Manager, Mr. Sami, at the instance of management. He has contended that the prosecution case is not beyond reasonable doubt and consequently the appellants are entitled to be acquitted by extending benefit of doubt to them.
28. Mr. M. Ilyas Khan, learned counsel for the appellant Abdul Hague, has submitted that appellant Abdul Hague was Secretary Finance of the Union and therefore, the management was bearing a grudge against him. He has supported the contention of Mr. Bhatti, learned counsel for appellant Mumtaz Ali Mangi, that the second application Exh.5-A, has been managed. In support of his contention he has contended that in the first application, dated 16-9-1992, Exh.5-G, names of the two appellants do not transpire while in the second application, dated 22-9-1992 Exh.5A names of both the appellants have been mentioned and minute details have been given. Mr. Ilyas Khan, has vehemently argued that Pay-in-slip Exh.5-C bears signatures of appellants Mumtaz Ali Mangi only who was Manager of the Bank on 14-9-1992 and does not bear signature of appellant Abdul Hague, who was the Head Cashier, at that time, therefore, there is no evidence on record to establish the liability of appellant Abdul Haque for non-credit of Rs,2,50,000 in the account of P.W. M. Abid Chohan Mr. Ilyas Khan, has thrown entire responsibility of the commission of offence alleged by the prosecution on appellant Mumtaz Ali Mangi and has submitted that appellant Abdul Hague has been incorrectly convicted. He has submitted that in fact that is no evidence against appellant Abdul Hague, and therefore, he is entitled to be acquitted as a matter of right.
29. On the other hand, Mr. Khursheed A. Hashmi, learned Dy.A.-G. Has fully supported the prosecution case as well as impugned conviction and sentence awarded to the two appellants.
Meeting the objections raised by the learned Advocates for the appellants, he has submitted that the charge is neither defective nor ambiguous. He has submitted that the learned counsel for the appellants have raised the plea of defective charge on the basis of self-assumed fact. He has maintained that, the appellants tried to wriggle out of the offence by clever and clandestine acts which further prove their guilty mind. According to the learned Dy.A.-G., the charge is to be framed on the basis of prosecution case. He has submitted that, every charge under the Criminal Procedure Code, is required to state the offence with which the accused is charged and so much of the definition of offence which gives the accused notice of the matter with which he is charged.
He has proceeded on to argue that the charge is required to contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom; or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. Under subsection (2) of section 222, Cr.P.C. When the accused is charged with the criminal breach of trust or dishonest misappropriation of money, it would be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates on which the offences 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. In support of his contention that the charge is to be framed on the basis of prosecution allegations, he has referred to section 265-D, Cr.P.C. Which provides that, after perusing the police report or, as the case may be, the complaint, and all other documents and statement filed by the prosecution, the Court is of the opinion that there is ground for proceeding with the trial of the accused it shall frame in writing a charge against the accused.
30. Mr. Hashmi has submitted that, the charge is to be framed on the basis of allegations and material produced by the prosecution and not on the basis of defence plea raised by the accused persons during the course of trial. He has further submitted that, it is the case of appellants that P.W. M. Abid Chohan, deposited the amount of Rs,2,50,000 through pay-in-slip Exh.5-C by a cheque. He has submitted that, the material on record falsifies the defence plea and it has been established up to the hilt that P.W. M. Abid Chohan, deposited Rs,2,50,000 in cash through payin- slip Exh.5-C. The learned Dy.A.-G. Has contended that, P.W.2, M. Abid Chohan, the most important witness and the account-holder has stated in clear terms that, he deposited an amount of Rs,2,50,000 in cash. He has stated so, in his application Exh.5-G, which was submitted on 16-9-1992 when he came to know about the fact that, the two cheques issued by him were dishonoured. This application was submitted immediately and it contains assertion that, the amount of Rs,2,50,000 was deposited by him in cash on 14-9-1992 and the cashier had stamped the Pay-in-slip after signature of the Manager. In his second detailed application, dated 22-9-1992, Exh.5-A, he has narrated that he took Rs,2,50,000 in cash in the N.B.P., Liberty Market Branch. He went to Manager, Mumtaz Ali Mangi, who filled in the pay-in-slip in his own hand and got the amount counted by Abdul Haque, Head Cashier. The Pay-in-slip then was sealed with stamp and was got signea by Abdul Haque. He has stated in so many words that both the appellants counted the amount and signed the Pay-in-slip. The learned Dy.A.-G., has submitted that, both the appellants contended that, the deposit was made through a cheque merely because the Pay-in-slip was of pink colour.
He has submitted that, the deposit of cash amount through pink Pay-in-slip is inconsequential as D.W. Ashfaq Ahmed Qureshi, a retired Bank Officer has clearly stated that, the receipt of amount in cash through pink Pay-inslip is not an illegality. He has further contended that, the filling in of Pay- in-slip of pink colour by the appellants Mumtaz Ali Mangi, the then Manager of the Bank in presence of appellant Abdul Hogue, Head Cashier knowing well that, the cash deposit was to be made through green Pay-in-slip demonstrate mens rea on the part of both the appellants. According to learned Dy.A.-G., it shows that since very beginning both the appellants had intention to misappropriate the amount. He has further submitted that interpolation made in the Short Credit Register, Exh.5-H, produced at the instance of appellants further shows that it was an attempt to give a twist to the facts. They have thus tried to falsify the facts. He has submitted that the Cheque No,19017479, which according to the appellants was deposited by Abid Chohan, in his account was drawn on A.B.L., Kotri Branch, but P.W.3, Bashir Ahmed Durrani, has stated that this cheque was never presented for collection in A.B.L., Kotri Branch,
31. Learned Dy.A.-G., has submitted that, from the unassailable testimony of P.W.2, M. Abid Chohan, who has no enmity whatsoever, with the appellants supported with the evidence of P.W.1, M. A zam Bachani and P.W.5, Munir Ahmed Shah, the Handwriting Expert, establishes beyond any doubt that, the amount of Rs,2,50,000 was deposited by P.W. Abid Chohan for credit in his Account No,644-8, but the said amount was not entered in the Cash Register, the Cash Scroll and was misappropriated by the two appellants. He has further submitted that, the dishonest intention of the appellants is apparent on record.
32. It is admitted fact that, the two appellants were the bankers on 14-9-1992, the P.W.2, Abid Chohan brought Rs,2,50,000 in cash for depositing in his Account No,644-8, the Pay-in-slip Exh.5-C was filled in by the Bank Manager himself, the amount was counted and checked by both the appellants. Both the appellants signed the Pay-in-slip, affixed the seal of the bank and thereafter, the said amount was neither entered into any register nor credited in the account of P.W.2 and was misappropriated by the two appellants. They thereby committed criminal breach of trust and the act of falsification of accounts. The. Learned Dy.A.-G., has submitted that, the filling in of Pay-in-slip Exh.5-C in the handwriting of appellant Mumtaz Ali Mangi, is admitted, and the Handwriting apert has given testimony that, the signature of appellant Mumtaz Ali Mangi, on Pay-in-slip Exh.5-C is similar to the specimen signatures Exhs.9/B-1 to 9/B-12 and the signatures of the two appellants on Exhs.10-A to 10-D are similar to the signatures of the two appellants on Exh.5-C.
33. He has pointed out that according to instruction 35 in Chapter I of the National Bank of Pakistan Book of Instructions, (revised and up dated, June, 1980) the counter-foils for credit paid in cash must be counter-signed by Supervising Officer over the head cashier's receipt. He has further pointed out that according to Instruction No,18 in Chapter II, under the caption, The Bank's System of Accounts, of the same Book of Instructions, the credit vouchers in respect of cash receipts on Bank account will be signed by the head cashier and sent to the Manager who will enter them in the Bank cash scroll, number them with their scroll numbers and sign them against the numbers in token of their having been so entered. He has, therefore, submitted that under the Book of Instructions of the N.B.P., the Manager and the head cashier are required to sign the Pay-in-slip. On 14-9-1992 the two appellants were Manager and Head Cashier and their signatures on the Pay-in- slip Exh.5-C and the non-credit of the amount in the account of P.W.2, M. Abid Chohan, establishes the prosecution case beyond any doubt.
34. We have very carefully considered the entire material available on record, the impugned judgment and the contentions raised by the learned Advocates before us.
35. We, do not find any substance in the contention of Mr. Moula Bux Bhatti, learned counsel for the appellant Mumtaz Ali Mangi, that the charge is defective as the cheque number is not mentioned in the charge. The prosecution never alleged that P.W.2, Abid Chohan, deposited the amount through cheque and, therefore, the question of mentioning the cheque number in the charge never arose. There is no ambiguity in the charge and we are, in total agreement with the contention of learned Dy.A.-G. On the point of framing of the charge. A bare perusal of charge. A show that it does not suffer from any mistake, error or defect. All the requirements of law have been fulfilled in framing the charge and therefore, the contention of learned counsel for the appellant Mumtaz Ali Mangi, is hereby repelled. Non-examination of S.-I. Muhammad Saeed and Mr. Sami, the successor Manager of appellant Mumtaz Ali Mangi is also inconsequential. The prosecution case mainly depends on the testimony of P.W.2, Abid Chohan, who has fully supported the prosecution case and has established beyond doubt that, he deposited the amount of Rs,2,50,000 in cash through Pay-in-slip Exh.5-C and paid the amount to the two appellants who counted the same, affixed their signatures and the seal. Of the bank. The mere fact that an account-holder reposing confidence in the Bank Manager and Head Cashier requested to fill in the Pay-in-slip and the Manager taking advantage of the ignorance of account-holder filled in the pink Pay-in-slip instead of green pay- inslip will not make the prosecution case doubtful. On the other hand, it supports the prosecution case that the two appellants have intentionally misappropriated the amount of Rs,2,50,000 deposited in bank by P.W.2, Abid Chohan. From the very beginning they had the guilty intent and therefore, in the first instance they filled in the wrong Pay-in-slip and thereafter got an interpolation made in Short Credit Register. The interpolation is very much visible on the document Exh.5-H as after last entry at Serial No,354 a line was drawn and the total of all the entries was made. The Cheque No,19017479 has been written after that line at Serial No,355 and thereafter again a line has been drawn. The false entry has been established through the statement of P.W.3, Bashir Ahmed Durrani, Manager, A.B.L., Kotri Branch, who has stated in very clear terms that no such cheque was presented for collection in his branch. P.W.5, Munir Ahmed Shah, Handwriting Expert, has not been cross-examined. The main emphasis of Mr. Ilyas Khan, learned counsel for the accused Abdul Haq, was that the most important document produced by the prosecution i,e, Pay-in-slip Exh.5-C, is written in the hand of appellant Mumtaz Ali Mangi and is signed by him, therefore, he is solely responsible for the misappropriation of the amount. However, it was pointed out during the course of arguments to Mr. Ilyas Khan, that alongwith signature of appellant Mumtaz Ali Mangi, the signature of appellant Abdul Haq is also appearing on Exh.5-C, which is visible with the stamp of "cash received". He was further pointed out that Exhs.10-A, 10-B, 10-C and 10-D are the Pay-in-slips which have been filled in and received in ordinary course and on all these Pay-in-slips the signatures of accused Abdul Haque have been affixed at the same place and in the same manner alongwith the seal (Received Cash). The Handwriting Expert, P.W.5, Munir Ahmed Shah, stated that the signatures on Exh.5-C, were similar as on Exhs.10-A, 10-B, 10-C and 10-D. The testimony of the Handwriting Expert has gone unchallenged. After these facts were pointed out to Mr. Ilyas Khan, has was not able to pursue his arguments any further to the effect that entire liability of misappropriation of Rs,2,50,000 deposited by P.W.2, Abid. Chohan, is on appellant Mumtaz Ali Mangi and the appellant Abdul Haque was not associated in the commission of offence.
36. At this juncture, we would like to point out one fact that the appellants have taken plea that Pay-in-slip Exh.5-C, is meant for deposit through cheques and not through cash and, therefore, the amount of Rs,2,50,000 alleged by P.W.2, Abid Chohan to have been deposited in cash should not be believed. A perusal of Pay-in-slip Exhs.10-A, 10-B, 10-C and 10-D shows that all these four Pay-in- slips are meant for cheques and drafts etc., as clearly written on all these four documents in the same manner as written on Exh.5-C, but through all these four Payin-slips both the appellants have received deposits in cash. It shows that the appellants were not following the use of Pay-in-slips of pink and green colour for the deposit through cheques and cash, strictly. The Payin-slip Exh.5-C, bears Form No,109 (revised) and Pay-in-slip Exhs.10-A to 10-D are also in Form 109 (revised). This fact we have pointed out in addition to the statement of D.W.2, Ashfaq Ahmed Qureshi, a retired Officer, produced by the appellants to the effect that receiving of cash amount through pink Pay- in-slip is not an illegality.
37. For the foregoing reason, we are of the considered opinion that, the prosecution has fully brought home the guilt to the two appellants/ convicts and therefore, the learned trial Court has rightly decided the points for determinations Nos.1 to 4, in affirmative, to which no exception can be taken. The offences alleged against the appellants have been established by the prosecution up to the hilt and the learned trial Court has properly appreciated the evidence on record. The conviction and sentence awarded to the appellants do not suffer from any illegality or irregularity. No interference is, therefore, warranted on our part. The impugned judgment and the conviction and sentence awarded through it to the appellants is hereby upheld. Both the appeals are without substance, which stand dismissed accordingly.