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Petitioner: ABDUL HAQUE VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Muhammad Roshan Essani, Muhammad Mujeebullah Siddiqui Title: ABDUL HAQUE vs THE STATE Case No.: Criminal Appeals Nos.214 and 220 of 2001 Date of Judgment:2002-07-18 Reported As: 2002 P Cr. L J 2048 Result: Appeals dismissed
JUDGMENT
JUDGMENT ' 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
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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
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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
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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
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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
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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
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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…
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