' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.--- This appeal under section 410, Cr.P.C. Read with section 10 of the Offences in respect of Banks (Special Courts) Ordinance, 1984 is directed against the judgment, dated 12-4-1994 by the Special Court (Offences in Banks), Sindh at Karachi, in Case No,2 of 1993, convicting the appellant under section 408, P.P.C. And awarding sentence of two years' rigorous imprisonment and fine of Rs,25,000 or in default of payment of fine to undergo further rigorous imprisonment for six months and also convicting appellant under section 5(2) of Prevention of Corruption Act, 1947, sentencing him to rigorous imprisonment for two years. The learned trial Court further ordered that if fine is recovered then an amount of Rs,10,000 be paid to the concerned bank as provided under section 6(4) of the Ordinance IX of 1984. The sentences were directed to run concurrently and benefit of section 382-B was extended.
2. The relevant facts are that in the year 1991 the appellant was working as Cashier in the National Bank of Pakistan, Kashmore Branch, District Jacobabad. Mr. Habibullah Baloch, Manager of the Kashmor Branch of the National Bank of Pakistan (hereinafter referred to as said Branch) lodged an F.I.R. Stating that on 1-8-1990 a fraud was detected in the said branch and the appellant Liaquat Ali as well as two others were found to have stolen and misappropriated an amount of Rs,1,00,000. An F.I.R. Was recorded in this behalf on 28-1-1991. It was further stated in the F.I.R. That one customer of the bank namely, Hazoor Bux deposited Rs, One lac on 10-6-1991 with the appellant/accused for crediting the same in his Account No,44. The appellant received the deposit and issued pay-in-slip after affixing the seal of the branch and his signature but this amount was not credited in the account of customer Hazoor Bux and was misappropriated. It was further stated in the F.I.R. That on 26-6-1991 another account-holder namely, Naseer Ahmed deposited Rs,7,000 with the appellant for crediting his PLS Account No,2962 for which pay-in-slip was issued by .The appellant but the amount was not credited in the account of the account-holder and was misappropriated by the appellant. The F.I.R. Further contained that one Mehrab deposited Rs,29,000 with the accused and the said amount was also not credited in his account and was misappropriated. According to F.I.R. a total sum of Rs,1,36,000 was misappropriated by the appellant Liaquat Ali.
3. On 11-1-1993 the appellant/accused was arrested and after completion of investigation challan was submitted in Court.
4. On 14-6-1993 the trial Court framed the charges, which read as follows:-- ". That you being cashier in Kashmore Branch of National Bank of Pakistan during the year. 1991, received Rs,1,00,000, R.7,000, Rs,29,000 and Rs,10,000 from Hazoor Bux, Nasir Ahmed, Mehrab Ali and Rasool Bux respectively for being credited in their a'-counts and issued deposit slips under your signatures but did not credit the amounts in their accounts and misappropriated the same and thereby you committed an offence punishable under section 408, P.P.C. And within my cognizance.
' And further you being a public servant as cashier in National Bank of Pakistan, Branch at Kashmore committed criminal misconduct by misappropriating the various amounts deposited by the account-holders in the Kashmore Branch of National Bank of Pakistan and thereby committed an offence punishable under section 5(2) of Prevention of Corruption Act, 1947 and within my cognizance."
5. The prosecution examined six witnesses as follows:- ' P.W.1 Habibullah Exh.3, P.W.2 Rasool Bux Exh.4, P.W.3 Noor Ahmed Memon Exh.5, P.W.4 Rahim Dad Exh.6, P.W.5 Muhammad Bux Exh.7 and Bashir A. Shaikh, Investigating Officer Exh.8.
6. The appellant was examined under section 342, Cr.P.C. Wherein he denied all the prosecution allegations. The appellant/accused examined himself on oath under section 340(2), Cr.P.C.
7. The learned trial Court framed the following points for determination:--
(1) Whether a sum of Rs,1,36,000 in total was entrusted/deposited with the accused by the four customers as mentioned in the F.I.R.?
(2) Whether the abovesaid amount was not credited in the respective accounts of the customers and whether it was misappropriated by the accused?
(3) What offence, if any, accused has committed?
8. The learned trial Court decided Point No,1 partly in affirmative and partly in negative and while deciding Point No,2 held that an amount of Rs,10,000 was entrusted by P.W.2 namely Rasool Bux which was not credited in his account and was misappropriated by the accused/appellant and ultimately convicted the appellant and awarded the sentences as narrated in the opening part of this judgment.
9. Being aggrieved with the conviction and sentence the appellant has preferred this appeal assailing the conviction and sentence.
10. We have heard Mr. Nooruddin Sarki, learned counsel for the appellant. Nobody was present on behalf of the State.
11. It has been contended by Mr. Nooruddin Sarki, learned counsel for the appellant, that, there are material contradictions in the prosecution evidence and that the prosecution has not been able to prove its case against the appellant beyond reasonable doubts According to Mr. Sarki, the appellant has been convicted on mere presumptions and conjectures, therefore, the appellant is entitled to be acquitted at least by extending the benefit of doubt. He has further contended that the learned trial Judge has accepted the prosecution version as gospels truth and has not given any weight to the defence evidence. He has next contended that there is no direct evidence to establish that the appellant himself misappropriated an amount of Rs,10,000 and that the appellant/accused denied his initials on the pay-in-slip and the learned trial Judge has not given any positive finding in this regard. It is emphatically argued that the disputed document ought to have been referred to the Handwriting Expert for conclusive findings which was not done, and therefore, the conviction and sentences are liable to be set aside.
12. We have carefully considered the contentions raised by Mr. Nooruddin Sarki. We have perused the material available on record. As the learned trial Court has convicted the appellant on one count only namely, receiving of Rs,10,000 deposited by P.W. Rasool Bux and noncredit thereof in his account and misappropriation of the same, therefore, we will confine our consideration to the evidence in this regard only. The alleged deposits by the other account-holders, the receipt thereof by the appellant and non-credit of the said amounts in the account of the respective account- holders have been held by the learned trial Court as not proved, therefore, we need not to consider the evidence in that behalf.
13. P.W.2 Rasool Bux, Exh.4 has stated that he had account in Kashmore Branch of National Bank of Pakistan. On 25-5-1991, he deposited Rs,10,000 in the said branch. This amount was paid to accused Liaquat Ali who was at the relevant counter of the branch. The account was accepted by accused Liaquat Ali who signed pay-in-slip and issued the same to him, which he has produced as Exh.4-A.
He has further stated that the accused Liaquat Ali present in Court was the same. He has deposed that subsequently he enquired from the Branch Manager about the balance in his account and then discovered that the amount of Rs,10,000 was not credited in his account. He then contacted the Manager and showed him pay-in-slip Exh.4-A. The Manager confirmed that the amount of Rs,10,000 has not been credited in his ledger and he should make an application, whereupon, he submitted the application Exh.4-B. Although P.W. Rasool Bux specifically stated in his examination- in-chief that appellant Liaquat Ali had signed the pay-in-slip Exh.4-A, but in his cross-examination no question was put to him to the effect that the signature on the pay-in-slip Exh.4-A was not of the appellant Liaquat Ali. Likewise P.W.3 Noor Ahmed Memon, Ex-Manager of the Kashmore Branch of National Bank of Pakistan has stated that P.W. Rasool Bux deposited Rs,10,000 vide pay-in-slip dated 25-5-1991 Exh.4-A. In cross-examination he has stated that he is familiar with the signature of Liaquat Ali which as he has worked under him. However, no suggestion was made to P.W. Noor Ahmed Memon that pay-in-slip Exh.4-A through which P.W. Rasool Bux deposited Rs,10,000 did not bear the signature of the appellant Liaquat Ali. P.W.4 Rahim Dad, who was posted as Officer/Cashier in the Kashmore Branch of National Bank of Pakistan in the year 1992, has stated that appellant Liaquat Ali Soomro was Cashier of Kashmore Branch and was Incharge of Cash Department. He has further stated Exh.4-A through which Rs,10,000 were deposited bears signatures of accused Liaquat Ali. A general question was asked to him in cross-examination that he was deposing falsely under the instructions of his Manager, which was denied, but no question was asked from him denying the signature of appellant Liaquat Ali on Exh.4-A.
14. In view of the fact that the prosecution witnesses have specifically stated that pay-in-slip Exh.4- A through which an amount of Rs,10,000 was deposited in the bank bears signatures of appellant Liaquat Ali and the said version has gone unchallenged, therefore, we do not find any force in the contentions that the pay-in-slip Exh.4-A was required to be sent to the Handwriting Expert for verification of the signature of appellant. After very careful examination of the evidence on record and the contentions raised by Mr. Nooruddin Sarki, we are not persuaded to agree with the submission of Mr. Nooruddin Sarki, that the prosecution failed to bring home the guilt to accused/appellant and the learned trial Court has based its finding on surmises and conjectures.
The learned trial Court has rightly appreciated the evidence and we do not find any infirmity in the finding of learned trial Court that the prosecution has successfully brought home the guilt to appellant and the fact that the amount of Rs,10,000 deposited by P.W. Rasool Bux was received by the appellant as Cashier of the National Bank of Pakistan, Kashmore Branch. It is admitted position that the said amount was not credited in the account of P.W.2 Rasool Bux. Thus, the finding of guilt by the learned trial Court, conviction and sentence is not open to any exception on merits.
15. Mr. Nooruddin Sarki, next urged that the signature of appellant was not obtained by the learned trial Court on the statement under section 342, Cr.P.C., which defect is fatal to the prosecution case and consequently the conviction and sentence is not sustainable in law. In support of his contentions he has placed reliance on the following judgments:--
(1) 2000 MLD 595, (2) PLD 1994 Pesh. 279, (3) 1997 PCr.LJ 539, (4) 1985 PCr.LJ (Lahore) 469, (5)
Unreported D.B. Judgment of this Court in Criminal Appeals Nos.133 of 200Q, 134 of 2000 and Confirmation Case No,14 of 2000, dated 24-1-2001.
16. In the unreported judgment, dated 24-1-2001 the cases were remanded to the trial Court on the concession of learned A.A.-G. Because of the absence of signature of accused persons on the statement under section 342, Cr.P.C. In the case of Dadan alias Allandad v. The State 2000 MLD 595 a Division Bench of this Court held that, "failure to take signature or thumb-impression of accused on his statement under section 342 would be fatal to prosecution case and would render unsustainable conviction/sentence recorded by trial Court against accused". In this judgment, reliance has been placed on an earlier judgment of the Federal Shariat Court in the case of Mst.
Sultan Zari v. State 1986 PCr.LJ 1723, where in the same view was held by placing reliance on a single Bench judgment of the Lahore High Court in the case of Muhammad Inayat v. The State 1985 PCr.LJ 469, that the provision contained in section 364(2). Cr.P.C. Is mandatory in nature and the non-compliance is an illegality not curable by section 537, Cr . P . C .
17. Another Division Bench of this Court while sitting at Sukkur has examined this issue in depth and detail. One of us (Muhammad Mujeebullah Siddiqui) was, sitting in the D.B. And after detailed examination contrary view has been taken on the basis of judgments of Honourable Supreme Court of Pakistan and Full Bench decision of the Federal Shariat Court. The view expressed by the learned Single Judge of Lahore High Court in the case of Muhammad Inayat v. The State 1985 PCr.LJ 469 and in several other single Bench judgments of Lahore High Court stand overruled by a Special Division Bench of the Lahore High Court, constituted to examine this issue. Another Division Bench judgment of the Federal Shariat Court containing the same view as in the case of Mst. Sultan Zari v.
State 1986 PCr.LJ 1723, already stands overruled by Full Bench of the Federal Shariat Court. The earlier judgments in which it was held that absence of signature/thumbimpression of accused on the statement under section 342, Cr.P.C. Or absence of certificate under section 364 in the handwriting of the trial Judge, were fatal, stand overruled which was not brought to the notice of learned Division Bench of this Court, seized of the case Dadan alias Allandad v. State, (ibid), and the learned Division Bench which decided the Criminal Appeals Nos.133 and 134 of 2000 vide judgment, dated 24-1-2001. The Division Bench of this Court sitting at Sukkur has considered the issue in depth mild after a detailed survey of the entire case-law has held that the absence of signature of the accused on the statement under section 342, Cr.P.C. And absence of certificate under section 364(2), Cr.P.C. In the handwriting of the trial Judge is not ipso facto an illegality, thereby vitiating the entire proceedings or making the proceedings from the stage of the recording of the statement of accused onward unsustainable in law, necessitating remand of the case to the trial Court. On the contrary it is only an irregularity and the case is to be remanded back to the trial Court for fresh proceedings from the stage of B recording of statement of the accused, if an accused is able to show that the absence of the signature of accused on the statement under section 342, Cr.P.C. Or absence of certificate of the trial Judge in his own handwriting had caused any prejudice to the accused causing any injustice. If no prejudice has been caused to the accused and no miscarriage of justice is shown to have taken place the irregularity is curable and is not fatal to the conviction and sentence. Detailed reasons are contained in the judgment, dated 8-8-2001, in Criminal Appeal No,43 of 2000, Munir Ahmed v. The State.
18. For the foregoing reasons we are not persuaded to agree with the submission that the absence of signature of the appellant/accused on the statement under section 342, Cr.P.C. Is fatal to the prosecution case, as it has not been shown as to 'what prejudice has been caused to the accused.
19. Consequent to the above findings, it is held that the learned trial Court has rightly appreciated the evidence and has correctly convicted and sentenced the appellant to which no interference is required. The conviction and sentence awarded by the trial Court is hereby upheld and the appeal stands dismissed.
20. The appellant has already served out the sentence.