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Petitioner: THE STATE VS Respondent: MUHAMMAD NAEEM QURESHI
Court Name: Special Court Judge(s): Ghazanfar Ali Gondal Title: THE STATE vs MUHAMMAD NAEEM QURESHI Case No.: Case No,62 of 1984 Date of Judgment:1986-06-28 Reported As: 1986 MLD 2792 Result: Accused convicted/sentenced
JUDGMENT
JUDGMENT ' Accused Naeem Qureshi was posted as Senior Head Cashier in National Bank of Pakistan, Town Hall Branch, Lahore, in 1977. According to the prosecution story, on 14-2-1977 the Audit Team of the National Bank of Pakistan, consisting of Malik Muhammad Ikram and Nasir-ud-Din Bhatti, visited the said branch for its audit. They appeared there a little before 9 a.m. It is stated that they wanted to first check the correctness of the cash available in the late receipt cash safe lying in the banking hall of the said branch. It contained the amount deposited on Sunday, the 13th February, 1977, by Lahore Municipal. Corporation, Lahore, recovered by it as Octroi tax on the said holiday. However, Mr. Muhammad Naeem Qureshi, who had one of the two keys of the said safe with him did not turn up although Mr. Saeed-ul-Zafar, Staff Officer, who had along with accused Muhammad Naeem Qureshi received the cash on Sunday, the 13th of February, 1977, and had with him the other key of the safe was available. The said safe could be opened jointly by accused Muhammad Naeem Qureshi and Saeed-ul-Zafar, Staff Officer. Since it was not possible to open the safe without the key with accused Muhammad Naeem Qureshi, Farhat Hussain, Godown Keeper, was deputed to go to the house of Muhammad Naeem Qureshi to fetch him. However, accused Muhammad Naeem Qureshi did not turn up. For that reason the duplicate keys of the said branch which were in safe custody in National Bank of Pakistan Dina Nath Branch, lahore, were obtained through Saghir Haider, Assistant Manager of the Town Hall Branch, who went to the said branch and got the said keys. The said safe was opened with the said duplicate keys and a shortage of Rs,15,000 was discovered on counting the cash in the said safe. On enquiry by Auditors, Muhammad Naeem Qureshi who had turned up at about 2-30 p.m. Confessed that he had given the said amount unauthorized to one of the officials of the Lahore Municipal Corporation and he could fetch the said
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sum within no time from him. He was asked to bring the said sum upon which Muhammad Naeem Qureshi left the branch and after a few moments brought the said sum of Rs,15,000 and made good the said loss in the cash of the bank. 2. It is stated that the Auditors next wanted to check the cash of 12-2-1977 in the main safe lying in the caged room. Accused Muhammad Naeem Qureshi had one key each of the lock of the caged room and of the safe lying inside the said caged room and the other key of the lock of the caged room which the said safe was with joint custodian Mr. Murtaza Khan, Staff Officer. The caged room as well as the safe were opened by the accused himself with his own key and that of the said joint custodian and on detailed counting, finally, a sum of Rs,1,60,000 was found to be short in the cash available in the said safe. It was found that the modus operandi adopted by Muhammad Naeem Qureshi was that in order to dodge the joint custodian of the said cash Mr. Muhammad Murtaza, Staff Officer, accused Muhammad Naeem Qureshi had put one packet of hundred currency notes of Rs, fifty denomination on each side of each of the five bundles of currency notes of that denomination and in between them instead of 8 packets of hundred currency notes of Rs, fifty denomination, he had placed 8 packets of hundred currency notes of Rs,10 denomination in each of the said five bundles, resulting in a shortage of said sum of Rs,1,60,000. It is also stated that Muhammad Naeem Qureshi accused confessed before the Auditors and the others that he had done so in order to defraud the bank of the said sum of Rs,1,60,000 and he had given this amount to one of- his relatives, Mr. Badar Qureshi, who was dealing in the export of carpets, etc. Muhammad Naeem Qureshi then sought apology from the Auditors as well as from others and made fervent appeal that he may be given chance to make good the shortage detected by the Auditors. He also submitted that he had dishonest intention to misappropriate the money belonging to the bank and had converted it to his own use with the intention of cheating the bank and deriving illegal benefit of the said amount. 3. Third allegation against accused Muhammad Naeem Qureshi, as indicated in the F.I.R. And later found in investigation is that he misappropriated a sum of Rs,59,172.36 from the Lahore Municipal Corporation Salaries Account which had been detected by the Auditors on detailed checking of cash and record. 4. The charge framed against the accused in the Court of Special Judge (Central) was for offence under section, 409, P.P.C. And section 5 of the Prevention of Corruption. Act, 1947, in respect of a consolidated sum of Rs,2,19,172.36. It appears that this consolidated sum was taken from Letter No,THL/dated 3-3-1979, available on the challan file, on which the Manager of National Bank of Pakistan Town Hall Branch had on enquiry by the S.H.O. P.S. Old Anarkali informed him in writing that the defalcation made by the accused consisted of a cash of Rs,1,60,000 and a sum of Rs,59,172.36 out of L.M.C. Salary Disbursement Account and the total amount of defalcation was Rs,2,19,172.36. 5. The prosecution produced eight witnesses in this case. Muhammad Afzal who was then employed in National Bank of Pakistan Dina Nath Branch, Lahore, produced and proved as Exh.P.W.1/1 a copy of the Safe Deposit Register for the period from 24-2-1975 to 31-1-1985, showing an entry of withdrawal of the sealed wooden box containing the duplicate keys of the Town Hall Branch, on 14-2-1977, by Saghir Haider, Assistant Manager of United Bank Limited Town Hall Branch, Lahore, who had initialled the entry of the said withdrawal in the said register. P.W.2 Anwar-ul- Islam, Area Manager/Manager of the Branch and P.W.3 Muhammad Ikram, Senior Auditor, deposed as eye-witnesses of the checking, etc. Their evidence relates to the basic merits of the case. P.W.4 Nasir-ud-Din Butt, Auditor, was given up by the Prosecutor after his name and address had been written for recording of his statement, P.W.5 Muhammad Siddique Khan is a witness of production of documents from the record of the branch as enumerated and described in seizure memo. Exh.P.W.5/1. Muhammad Ijaz Head Cashier appeared as P.W.6 and stated that he had produced before the police 40 suspense vouchers, P.W. 6/1, 6/40, through which he had made the payment of
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salaries, etc. To the staff of the Corporation, the amount of which, came to Rs,59,172.36. P.W.7 Muhammad Aslam A.S.I. Is a formal witness who recorded formal F.I.R. Exh.P.W. 7/1, on the basis of complaint, Exh.P.W.2/1, filed by P.W.2 Anwar-ul-Islam. P.W.8 Nazir Ahmad Sub-Inspector Police Station Old Anarkali, Lahore, stated that he had only partly investigated this case because after a few days, the investigation was transferred to Muhammad Sharif A.S.I. However, Muhammad Sharif A.S.I. Was found to have died and on evidence to that effect having been recorded, Kh. Saeed-ul- Zafar, Special Prosecutor, closed the prosecution evidence. 6. Thereafter, statement of the accused was recorded on 18-6-1985. After that, on the application of the Special Prosecutor, under section 540, Cr.P.C., Saghir Haider and other witnesses were summoned to prove the three written confessional statements of accused Muhammad Naeem Qureshi, and other documents which were on the record of the case and had been taken into possession by the police by virtue of memo. Exh.P.W.5/1. After statement of Saghir Haider had been recorded as C .W.1, the Special Prosecutor made a statement that after the statement of the said witness as C.W.1, he did not think that other witnesses should be examined, as, in his opinion they were now unnecessary. After statement/evidence of Saghir Haider, supplementary statement of accused Muhammad Naeem Qureshi was recorded on 22-9-1985. Thereafter, the accused produced six witnesses in his defence and on their conclusion, closed his defence evidence 7. Although the charge against the accused was for a consolidated sum of Rs,2,19,172.36 as permitted by section 222 (2) of the Criminal Procedure Code, I propose to take up each one of the three allegations against the accused separately, in the light of the evidence available on the record in regard to each one of them. 8. As regards the first allegation of criminal breach of trust by the accused of the sum of Rs,15,000, P.W.2 Anwar-ul-Islam and P.W.3 Malik Muhammad Ikram supported fully the story given above. The objection that Anwar-ul-Islam had stated that the duplicate keys could be withdrawn from the Dina Nath Branch on the joint authority of the authorised officers and, therefore, Saghir Haider had illegally withdrawn the said keys from the said branch is of no material consequence because the, said withdrawal of keys by the said Assistant Manager in that manner was at the most an irregularity which did not vitiate the result of the counting made by the Auditors in solemn proceedings taken in the presence of Anwar-ul-Islam, Manager of the Bank, and other officers and staff of the branch. There is a litle bit of discrepancy between the statements of P.W.2, Anwar-ul- Islam and P.W.3 Malik Muhammad Ikram in respect of presence of the accused at the time of final counting of the cash brought out from the late receipt cash safe lying in the banking hall of the branch. Anwar-ul-Islam stated that though accused Muhammad Naeem Qureshi was not present when the said safe was opened and cash was counted, he had arrived in the branch and was present when the cash was counted for the second time and a shortfall of Rs,15,000 was detected. As against that, P.W.3 Malik Muhammad Ikram stated that accused arrived after the said cash had been taken out of the late receipt cash safe and had been found to be short by a sum of Rs,15,000. However, both the witnesses are at one on the question that at the final counting, accused was presen, and deficiency of Rs,15,000 was found in the said cash. Furthermore, it is proved on their evidence that accused. Muhammad Naeem Qureshi accepted the said shortfall and had stated that he had given the said sum as Qarz-e-Hasna (refundable loan) to one of the employees of the Corporation and had actually fetched back the said sum within a few moments.. The deficiency of the said amount of Rs,15,000 the making up of the said deficiency by the accused, therefore, stand proved on record. The question, therefore, now is whether the accused had committed criminal breach of trust in withdrawing the said sum of Rs,15,000, from the safe and in giving it to the said employee of the Corporation. It was held in Muhammad Yaqoob v. The State PLD 1969 Lah. 548 that in a case where there is a counter-version by the accused, it is often of greatest importance for an accused go be able to show what his own version was which he had put forward at the
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earliest possible opportunity. In that case, the first plea the accused before the Investigating Officer was taken into consideration. I may deduce from this that the first plea of the accused which he had taken before the Investigating Officer should be considered. In that case, first plea before the police was considered but in the present case matter was yet before the Auditors and members of the staff of Town Hall Branch who had asked the accused in respect of the said deficiency in the cash received from the Lahore Municipal Corporation on account of Octroi collection on 13-2-1977 and he had stated that he had given the sum of Rs,15,000 which constituted the said deficiency to an employee of the Lahore Municipal Corporation. It is in the statement of P W. Malik Muhammad Ikram, Senior Auditor, that the accused had stated that he had given it to the said employee of the Lahore Municipa Corporation as Qarz-e-Hasna. This statement of the accused before P.W.2 and P.W.3, which constituted his first explanation of the sail incriminating circumstance, is of great importance to the accused and must be considered. There is a reasonable possibility of this plea o the accused being true as the Town Hall Branch was created in order to cater to the needs of the Lahore Municipal Corporation and naturall the employees including the officers of Lahore Municipal Corporation must be assumed to command great influence in the said branch and the. Accused cannot be considered to have any mens rea when in the circumstances, in which he was placed in the said branch, he had given this sum for a temporary period to the said employee of the Lahore Municipal Corporation, the parent institution, for which the branch had been created. Furthermore, if the accused had given this sum as Qarz-e-Hasna, as stated by him in his first statement before the Auditor, then obviously he was not to get any benefit out of it. Presumably this refundable loan was for a night or/and a day only. Therefore, on account of shortness of the time for which this sum was' given, the accused was not going to inflict any loss on the bank. Section 405, P.P.C. Which defines criminal breach of trust shows that dishonestly misappropriating or wilfully suffering any other person to dishonestly misappropriate an amount entrusted to a person is a necessary ingredient of criminal breach of trust. Section 24 of P.P.C. Which defines word "dishonestly" says that whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another is said to do that "dishonestly". In my opinion, in giving this sum to an employee or officer of the Lahore Municipal Corporation a Qarz-e-Hasna, accused Muhammad Naeem Qureshi had neither intended to cause any wrongful gain to himself nor any wrongful loss to the bank as the sum was a refundable loan which was liable to be returned and that also within a very short time. And then the accused made us the said deficiency almost immediately on being pointed out the existence of the shortage of Rs,15,000 in the cash. Since there is a reasonable possibility of the said statement of the accused, before the Auditors, being true, I think that it is doubtful that he committed the offence o criminal breach of trust in respect of the said sum of Rs,15,000. 9. I may also mention in this behalf that in the charge framed against the accused for offence under section 409, P.P.C. In respect of consolidated sum of Rs,2,19,172.36 the said sum of Rs,15,000 had not been included and only other two sums of Rs,1,60,000 and Rs,59,172.36, totalling Rs, 2,19,172,36 had been put in it. There was thus no charge in respect of criminal breach of trust of said sum of Rs,15,000 and, therefore, the accused had no notice of any charge for defalcation of the said sum. He cannot, therefore, be convicted and sentenced for criminal breach of trust of the said sum of Rs,15,000 as serious prejudice would be caused to him resulting in miscarriage of justice in the absence of charge for the said sum. For that reason too accused cannot be said to have committed offence of criminal breach of trust in respect of said sum, of Rs,15,000. 10. As regards the shortage of a sum of Rs,1,60,000 found in the cash of the main safe lying in the caged room, P.W.2 Anwar-ul-Haq and P.W.3 Malik Muhammad Ikram, both stated that at about 2- 30 p.m. When the said safe was to be opened, the accused had arrived and the said cage and the said safe lying therein were opened by accused Muhammad Naeem Qureshi by one key each of the caged room and the safe available with him and another key of the same with Muhamma
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Murtaza Khan, joint custodian of the cash lying in the said safe and the deficiency of a sum of Rs,1,60,000 had been found in the cash( lying in the said safe. Therefore, that matter appears to be established on the basis of their oral evidence. Learned counsel for the accuse has, however, brought to my attention certain portions of the statement of P.W.2 Anwar-ul-Islam to contend that the said witness was no present at the time of checking by the Auditors and as such his statement was hearsay evidence but I am not inclined to accept this argument of learned counsel for the accused. Anwar-ul-Islam had stated in the beginning of complaint, Exh.P.W.2/1, that he was the Area Manager of the six branches, including the Town Hall Branch of which he was the Manager. It cannot, therefore, be contemplated that he was not present on 14-2-1977, when the Auditors had visited the branch for the purpose of checking of the record and cash of his own branch. Furthermore, in the cash balance book, a clear note in English language' in green ink is written by Anwar-ul-Islam, duly signed by him, that the checking had been done in his presence on 14-2-1977. That also negates argument of learned counsel that the said witness was no present at the time when the checking of the branch took place. The factum of presence of the witness at the time of checking was never contested in cross-examination of that witness and, therefore, the accused must be deemed to have accepted then that he was present in the branch on that day. Learned counsel for the accused has next contended that in the F.I.R. It had been clearly written that in respect of the said cash of 12-2-1977, lying in the main safe, Murtaza Khan was the joint custodian and had also one key of the safe with him but neither any investigation had been held at any stage nor any determination had been made that Murtaza Khan had not taken away the said sum of Rs,1,60,000 from the said safe and, therefore, the accused cannot be held responsible for the said shortage of Rs,1,60,000. It is difficult to accept this plea of learned counsel of the accused. The fact that Murtaza Khan, joint custodian, was not responsible for the shortage of Rs,1,60,000 in the main safe is established from the very circumstance of his presence in the said branch on that day. It was the accused who was absent therefrom without any reasonable cause. Bona fides of Murtaza Khan stood established from the proved circumstance of his being ready with his own key to open the cage and the safe and his being thus prepared to face the auditors which gave inkling into the state of his mind that he had no consciousness in his mind of his having committed any crime or of his having fraudulently and dishonestly taken away any sum of money from the said safe. Furthermore, it is clear that the Auditors and Anwar-ul-Islam before referring the matter to the police had come to the conclusion, after due cogitation, that accused was responsible for the said deficiency as it had been clearly tatted by Anwar-ul-Islam, Manager, in the complaint made by him which became the basis of the F.I.R. That the accused in order to dodge the joint custodian, Muhammad Murtaza, put the packets of notes of Rs,5 enomination on both sides of bundles and in between them place packets of notes of Rs,10 denomination and thus brought about shortagf a sum of Rs,1,60,000 in the cash of the main safe. In his evidence as P.W.2 he deposed to the same effect and his said evidence remaine lunshattered in cross-examination. That circumstance, therefore, stands established. Now it is well-known that the consolidated cash in th safe is normally counted on the basis of bundles of 100 currency notes of hundred rupees denomination, amounting to Rs,10,000 bundles of 100 currency notes of Rs,50 denomination, amounting to. Rs,5,000 and bundles of 100 currency notes of Rs,10 denomination, amounting to Rs,1,000. Subsequent to the opening of the cash in the bank with the help of the joint custodian, if during the course of business operations throughout the day the Senior Head Cashier puts packets of lesser denomination in between the packets of notes of higher denomination, in making up a bundle or bundles, the joint custodian who does not deal with the cash during the day and has to attend to the consolidated cash at the closing hours only and then also he does not normally count and scrutinize each and every note and counts the final cash on the basis of the bundles only, can hardly know the 'deficiency and can get easily deceived as he has to depend upon the Head
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Cashier as the work of the bank proceeds on the basis of reliance placed by officers and officials of the bank on each other. This plea of learned counsel for the accused is also, therefore, of no avail. It is also notable that it was never the case of the accused during prosecution evidence, especially the evidence of P.W.2 Anwar-ul-Islam and P.W.3 Malik. Muhammad Ikram that Murtaza Khan, the joint custodian, was responsible for the said shortage. Even a suggestion was not given to that effect either to P.W.2 Anwar-ul-Islam, the Manager of the Bank, or P.W.3 Malik Muhammad Ikram, senior auditor. I, therefore, reject this contention of learned counsel for the accused which is just an afterthought. 11. The oral evidence of said two witnesses, P.W.2 Anwar-ul-Islam, Manager of Town Hall Branch and P.W.3 Malik Muhammad Ikram, Senior. Auditor to the effect that a deficiency of Rs,1,60,000 had been found in the said cash proves the said circumstance beyond any shadow of doubt. Their evidence also proves the artifice by means of which said deficiency had been kept covered from the view of the joint custodian Murtaza Khan. 12. Added to that is the circumstance of endorsement by said P.Ws. On page 100 of cash balance book, Exh.P.W.3/1, that a deficiency of Rs,1,60,000 had been found in the cash in the main safe. Learned counsel has, however, contended that Murtaza Khan, the joint custodian, who had been charge-sheeted in respect of the said deficiency, had in his reply, Exh.P,W.6/3, to the show-cause notice stated that the entire sum in the main cash had been found to be correct initially and it was later on, on counting of the said cash on 12-2-1977 by Muhammad ^Ijaz Khan, Senior Cashier, that the said cash was found deficient by a sum of Rs,1,60,000. Learned counsel has also brought to my notice that on Exh.P.W.3/1, page 100 of the cash balance book, word "verified" was written over the signature of the Senior Auditor and the factum of the deficiency of the said sum having been found was according to him added later. However, these were mere assertions made by Muhammad Murtaza to save his own skin. He was not put in as a defence witness to prove the said averments on factual plane. It may also be noted that he too accepted in his said reply that finally when counting was made by Head Cashier Muhammad Ijaz, deficiency of Rs,1,60,000 was found. Some of the assertions made by Muhammad Murtaza, in his reply, were put to P.W.3 Malik Muhammad Ikram in cross-examination but he denied them. But assumning without accepting that the said averments were correct, in my opinion, they do not help the accused as the artifice employed by accused Muhammad Naeem Qureshi of placing packets of currency notes of Rs,10 denominations in between two packets of notes of Rs,50 denomination, in five bundles, in order to conceal the deficiency from the eye of joint custodian Murtaza Khan could equally deceive the senior auditor and others initially and it was obvious that there was reason for the senior auditor also to get misled by the apparent tenor of the notes in each of the five bundles as it is quite consistent with the said artifice proved to have been adopted by the accused that the said deficiency had been found a bit later when note by note checking was made of bundles. I, therefore, reject this contention of counsel for the accused also. 12-A In consequence, on the basis of the oral evidence of said two P.Ws. As corroborated by endorsement on page 100 of cash balance book, Exh.P.W.3/1, I come to the conclusion that in between the two packets of currency notes of Rs,50 denomination, the accused had placed eight packets of Rs,10 denomination, in each of the five bundles of notes of Rs,50 denomination resulting in a deficiency of Rs,1,60,000 which sum had been taken away by the accused from the said safe. 12-B P.W.2 Anwar-ul-Islam stated in his statement that on enquiry by the auditors, accused Muhammad Naeem Qureshi had stated that he had given this amount to Badar Qureshi, one of his relatives, who was dealing in carpets business. There was no cross-examination by the counsel of the accused on this witness on this aspect of his evidence except that there was a suggestion that the present case had been got registered at the instance of Nasim Bhatti who had enmity with Badar Qureshi a relative of Muhammad Naeem Qureshi accused. This suggestion was denied. It is,
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however, notable that it was intrinsic in this suggestion that it was accepted on behalf of the accused that Badar Qureshi was related to him. There is nothing on…
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