MUHAMMAD ARIF Versus State

DR. RANA MUHAMMAD SHAMIM, J .---Appellant has preferred this appeal against the impugned judgment, dated 25-4-2006 passed by learned. Presiding Officer Special Court (Offences in Banks) Sindh at Karachi in Case No.149 of 2001, whereby he was convicted under section 409, P.P.C. and sentenced to undergo R.I. seven years and fine of Rs.3,61,800 and in default of payment of fine to further undergo S.I. for 21 months.

2. Brief facts of the case as given in the F.I.R. are as under:--

"That the accused was posted as the Cashier at UBL, Hyderabad Colony Branch, Karachi and has embezzled and fraudulently and dishonestly misappropriated an amount of Rs.948,587 which has so far been detected. The facts and details of the acts of embezzlement fraud and forgery committed by the accused are given (i) That the act of the embezzlement and fraud committed by the accused was detected when a customer approached the branch with an overdue utility bill (Gas) which showed the amount of previous bills as arrears. The customer also produced the previous bill in original. Bearing the Received Cash Stamp of the bank and it was signed by the accused although he was not authorized to do so. The amount collected in lieu of the payment of bill was not accounted in the bank's books. (ii) A few other customers also visited the branch and narrated the same incidents and four persons have so far lodged an official claim in writing copies of the claims are annexed as annexure-A. That the accused has confessed his crime and has arranged the pay back of the amounts aggregating to Rs.767,686 to the branch, he had undertaken to pay back the balance embezzled amount of Rs.180,900 in the 1st week of November, 2001 but has failed to do so. Any other details and assistance relating to the matter shall be provided as and when needed and required. All other facts and information will be stated in the statement under section 161, Cr.P.C. In view of the above, you are requested to take cognizance of the offence as prescribed under sections of P.P.C. and all other relevant sections of law appropriate to the circumstances of this case and proceed in accordance with law against the accused after the F.I.R. Further all' information will be provided as and when desired by your office."

3. On submission of challan the appellant was supplied copies under section 161, Cr.P.C. charge was framed on 1-2-2002 to which he pleaded not guilty and thus the case was put for regular trial. During the trial the prosecution, in order to prove its case, examined the following witnesses:--

(1) P.W.1, Sheikh Qamar Ahmed (Exh.4) who produced complaint (Exh.4/A).

(2) P.W.2, Waqar Haider Junaidi (Exh.5) who produced original Gas Bill (Exh.5/A) and other documents (Exhs.5/B to 5/P).

(3) P.W.3, Muhammad Shakeel (Exh.7) who produced Original Electricity Bill (Exh.7/A).

(4) P.W.4, Ghulam Sarwar (Exh.8) who has produced memo. of arrest! personal search of accused (Exh.8/A).

(5) P.W.5, Hameedullah (Exh.11) who has produced F.I.R. and other documents (Exh.11/A to 11/D) and copies of statements under section 161, Cr.P.C. (Exh.12).

(6) P.W.6, Shah Adeel (Exh.13) who produced seizure memo. and other documents (Exhs.13-A to 13-F).

(7) P.W.7, Muhammad Umar (Exh.14 who produced photocopy of duplicate electricity bill (Exh.14-A).

(8) P.W.8, Munir Ahmed Shah (Exh.17) who produced his report, dated 8-7-2002 (Exh.17-A).

4. The prosecution had also given up three witnesses vide statements (Exh.6, 10 and 16) and closed its side vide statement (Exh.18).

5. Thereafter, the statement of accused was recorded (Exh.20) in which he termed himself to be innocent and pleaded that Manager Waqar Ahmed Junaidi has implicated him to save his skin. He also examined himself on oath wherein he stated that in utility department with him the other officer was Muhammad Jalal and rubber stamp of "Utility Bills receipt amount" was with that officer. The system in the Bank is that of double entry and double signature, and he was not authorized to sign any debit or any credit vouchers or cash vouchers nor bill tally role. He produced 11 certified copies of vouchers along with details (Exh.20/A-7 to Exh.20/A-17) which have been produced against him to show that the same do not bear his signature nor were sent to any expert opinion. He also produced 13 bill tally roles and deposed that it bears his signature. The manager has falsely deposed that he has returned the amount of Rs.7,67,868 and he had produced four credit vouchers and all the same vouchers total shows as Rs.4,25,183.

6. The learned trial Court in the light of material produced before him framed the following points for determination:--

(1) Whether P.W.3 Muhammad Shakil handed over the amount of Rs.3,41,600 along with electricity bill to the accused who put his signature and affixed the stamp of "received cash stamp" and did not account for in the concern account in the banks book and misappropriated the amount?

(2) Whether P.W.7 Muhammad Umar handed over the amount of Rs.100,100 along with electricity bill to the accused who put his signature and affixed the stamp of "received cash stamp" and did not account for in the concerned account in the banks book and misappropriated the amount?

(3) Whether present accused after receiving of amount of Utility Bills put stamp of "received cash stamp" and is signature, though he was not authorized to do so and did not account for in the concerned account in the Bank books?

(4) Whether present accused Muhammad Arif while posted as cashier, UBL Hyderabad Colony Branch, Karachi, and as such public servant while performing duty of collection of payments of utility bills from general public received cash against utility bills amounting to Rs.948,586 under his signature and banks "received cash stamp" and hand over customer portion to the customer and misappropriated the amount without account for in the concern account in the bank's books?

(5) Whether present accused confessed his crime and has arranged the pay back of amounts aggregating to Rs.7,67,686 to the branch and undertaken to pay back the balance embezzled amount of Rs.180,900?

(6) What offence if any committed by accused?

6. Learned trial Court after hearing the parties and perusing the material available on record found the appellant guilty and convicted him as stated above, hence this appeal.

7. Mr. Abdul Razzak, learned counsel for the appellant, has contended that appellant is innocent and has falsely been implicated by the manager of the branch. He further contended that there is check and balance system in each bank/branch and a single person i.e. cashier alone cannot commit such embezzlement; that the learned trial Court has come to the conclusion that the accused has not mentioned the receiving amount of some utility bills on the scroll register which finding is contrary to law as the original register of Tally Roll or Scroll Register and so also bill of arrears, which shows misappropriation, were never produced in Court: that the learned trial Court has not followed the essential requirement of Article 39 of Qanun-e-Shahadat while relying on the statement of P.W. 1 who has admitted the suggestion of defence that accused confessed the commission of embezzlment and had undertaken for payback or return the embezzled amount; that the learned trial Court has failed to consider the fact that there is enmity between the appellant and complainant; that learned trial Court has failed to consider that the rubber stamps of "Received Cash" is used at General Cash Counter and "Utility Bill Cash Received" is used at the counter of utility bills department and so also that the stamp/seal of Received Cash Counter is of red ink whereas other stamp used as utility bill's counter contains blue ink; that neither the disputed rubber stamp nor the list of Bank staff was seized; that P.W.2 has stated that he never made the staff's duty list but the same was produced by P.W.5 which bears signature of P.W.2; that the learned trial Court has failed to consider that P.Ws.5 and 6 have admitted that'd neither they seized Key Issuing Register nor the same was provided by the complainant to them; that the prosecution has sent only three bills to hand writing expert while remaining were not sent; that the learned trial Court has failed to consider the fact that the appellant was not the incharge of rubber stamp "Received Cash" as such the prosecution case is not proved against the appellant; that P.W.5 has admitted that no documentary proof as to embezzlement of Rs.767,686 was provided to him by the complainant; that the total amount of the vouchers produced by complainant is Rs.425,183 while the total amount embezzled is Rs.767,686 which makes the prosecution case doubtful; that the prosecution case is doubtful in view of the fact that according to the complainant the payment of refund on voucher of Rs.20,000 was made on 27-11-2001 at 1300 PST and according to P.W.5 on the same day at 0900 PST the appellant was arrested from the bank; that P.W.7, P.W.8 and P.W.9 have admitted in their deposition that duty of the appellant was on utility bill's counter and he has no concern with the counter of General Cash which admission disproves the case of the prosecution; that P.W.3 and P.W.4 have admitted that they made the payment of the electricity bills through cheques; that P.W.5 and P.W.6 have stated in their deposition that( cassette of close circuit video films was seized but the same was not produced before the Court; that P.W.5 Inspector Hameedullah had already been declared hostile hence his evidence may not be considered. Learned counsel for the appellant has finally contended that in the light of above submissions it is clear that the learned trial Court has failed to consider the evidence available on record and thus the impugned judgment is liable to be set aside and the appellant may be acquitted.

8. On the other hand, Mr. Badar Alam, learned Deputy Attorney-General appearing for the State, has vehemently opposed the contentions of learned counsel for the appellant. He has supported the impugned judgment passed by learned trial Court. In support of his stand he contended that admittedly the appellant is cashier and posted at the utility counter and as per bank procedure the utility bills are the responsibility of the cashier hence he is the only person liable for embezzlement in the utility head; that there is admission on the part of the appellant as to adjustment as well as the back payment. The learned D.A.G. referred the question asked on behalf of appellant to P.W. Shaikh Qamar Ahmed, Bank Manager and his reply during cross-examination hereunder quoted:--

....It is correct to suggest that accused had undertaken to pay back the balance embezzled Rs.1,80,900 in the first week of November, 2000. It is also correctly suggested that the accused had confessed his crime and has arranged the pay back of amounts aggregating to Rs.7,67,686 to the branch....

Learned D.A.-G. has also contended that the signature of the appellant is not disputed; that the signatures on utility bills were found to be of the appellant by the Handwriting Expert who has also stated so in his deposition on oath. He contended that these admitted facts are sufficient to establish the charge against the appellant as such the impugned judgment does not suffer from any illegality, irregularity or non-reading and misreading of evidence, hence the appeal is liable to be dismissed.

10. We have heard both the learned counsel for the appellant and as well as of learned State counsel and with their assistance have gone through the evidence available on record.

11. The plea of the appellant that since it is admitted by the complainant in his deposition that the manager physically checked the cash and tallied the figure of the cash with the figures shown in the scroll and then put his signature, the question of embezzlement by the appellant alone does not arise, has no force. The case of the prosecution is that the appellant has not shown the amount received by him towards electricity charges hence the manager has no concern with the amount or receipt not mentioned by the cashier after receiving the sums in the scroll of the day, which fact has also come in the evidence of the complainant. Even otherwise, it is very easy to understand that if the cashier keeps the amount in his pocket and do not show the bill, amount of which he has kept in his pocket, nobody else can unearth such embezzlement except the person who has deposited the amount and has the other portion of the bill with receiving stamp. P.W. Muhammad Shakeel, who is private witness, has specifically stated in his deposition that he paid the amount to the appellant who after receiving the amount put his signature and rubber stamp and returned the other portion of bill to him as receipt. The said amount is admittedly not shown to have been deposited in the head of utility charges in bank record. The appellant has failed to state as to why this witness has deposed against him. No mala fide or enmity is pleaded against him. The plea of the appellant that the witnesses who were given up by the prosecution were not ready to give false statement is not substantiated as the appellant could not produce any witness in his defence. Merely pleading that no one dares to depose against the superior is not a cogent explanation in view of the fact that the prosecution has examined 8 witnesses in support of his case. Furthermore, from the perusal of the memo. of appeal it appears that in ground 17 thereof it is stated "That, according to the deposition of P.W.7 Majid Ali, P.W.8 Ikhlaq Ahmed and P.W.9 Nazeer Akhter that the duty of appellant was remained at utility, bill's counter and appellant was not concerned with the counter of General Cash." It is pathetic to note that the appellant has tried to misguide this Court as these persons were not examined by the learned trial Court as they were given up. As regards the plea that the video cassette has not been seized from which it could be proved that who was receiving the utility bills, we agree with the finding of the learned trial Court that the appellant may have moved the Court to seize the video and call the same in Court. Furthermore, the appellant has not put to the witnesses, who have specifically alleged the appellant to have received the amount and put his signatures and rubber stamp, any sugges tion that the amounts of disputed bills have not been paid to the appellant or they have paid the amount to the general cashier.

12. The appellant in his statement has pleaded that he has unblemished career. He further pleaded that rubber stamp of utility bills received amount was with Muhammad Jalal who was also with him in the Utility Department. He has taken the plea that there are two counters for receiving the cash one is of general cash counter and the other is of utility bills counter and the amounts of disputed bills were deposited with general cash counter with which he has concern. However, the appellant has admitted in his statement on oath that 2 or 3 persons had filed complaint that the amount of their utility bills had not been credited to the concerned department which, in our humble view, is sufficient to prove that he used to receive the amount of utility bills and involved with the embezzlement as admittedly his duty was on utility bills counter. Had it not been so the appellant on coming to know about the complainant might have pursued the matter to clear his position. The inference can be drawn that the appellant after receiving the amount of utility bills used to put his signature and rubber stamp of "received cash" and not rubber stamp of "utility received cash" and then used to give the portion of the bill to the customer but destroy the portion of the bill of the Bank so that the same may not come on record and the appellant used to prepare the tally scroll of the day which used to be signed by officer. The appellant has admitted in cross-examination that Exhs. 11-B/1 to 11-B/5 bears his specimen signatures which were obtained before the Magistrate but has taken the plea that his signatures were obtained under some threat. Indeed in such an eventuality the appellant, who is an educated person, had to make a complaint to the Magistrate who was bound to put such note on the sheets, which was not done by the appellant. Even, the appellant has neither examined the Magistrate nor moved such application to examine him to prove his stand. The appellant has denied his signatures on Exhs.7/A, 13/C-1 and 13/C-2 (disputed bills) but two P.Ws. have fully implicated the appellant and to this no denial has been put up nor any suggestion that they have not made payment to the appellant on the contrary they specifically pointed out in their examination-in chief that the amount of utility bills were paid to the appellant who is present in the Court. Learned Trial Court in this regard has rightly found that:

"It is settled provision of law if specific portion of deposition was not challenged' and the said portion of the evidence being to be true and very rightly reliance has been placed by learned PP on 1996 PCr.LJ 2021, 2000 PCr.LJ 1607 and 1996 MLD 1286. In 1991 SCMR 2300 which is on point that witness not cross examined on a material part of his evidence effect, inference would be that truth of same was accepted by the other side. Similarly statement of witness which was material to the controversy of the case particularly stating his case when not challenged in cross-examination then such an unchallenged statement should be given full credit and usually accepted as true, unless displaced by reliable cogent and clear evidence. It is also established law that omission in the cross-examination of the witness on his specific point, such suggestion points, however, by the rebuttal by making suggestion and denying with the same evidence by opposing party it effect over all impression of evidence was not omission pointed out by the appellant would not amount acceptance of his plea."

13. 'The learned counsel for the appellant has not been able to rebut the above finding of the learned trial Court. On the contrary during the cross-examination of P.W. 1 Shaikh Qamar Ahmed, the Bank Manager, it was brought on record that the appellant has agreed to pay back the embezzled amount of Rs. 7,67,686. This c admission on the part of the appellant is enough to maintain conviction.

14. The prosecution in order to prove its case has also exhibited electricity bills (Exhs. 7/A, 13/C-1 & 13/C-2). The appellant has denied signatures on the said bills. However, neither from the statement of appellant on oath nor during the course of arguments learned counsel for the appellant has been able to state as to why two P.Ws. have specifically pointed out to the appellant to be the person who has received the cash of these bills. There might be some departmental intrigues between the appellant and his colleagues but private persons/outsiders have nothing to do with the same. In the present case two private persons have put their appearance in the witness box and deposed against the appellant.

15. It is also pertinent to note that the prosecution has produced Bank portion of 43 previous bills which bear routine signatures of the appellant with stamp "Received Cash" to prove that the appellant used to put "Received Cash" stamp while receiving the bills amount and not the rubber stamp of "utility received cash". The appellant in denial to the same has produced utility bills which bear stamp of "utility bills collection received cash". This does not absolve the appellant from the charges of embezzlement in view of the fact that the handwriting expert has opined that all the 3 disputed bills in question bear the routine signature of appellant. The handwriting expert also opined routine signatures on 43 previous Bank portion of utility bills as similar in characteristic in nature as of the 3 disputed bills. During the course of arguments also learned trial Court has inquired the appellant about these 43 utility Bank portion having his routine signatures and rubber stamp of cash received to which he had no answer. The signature of appellant on these 43 Bank portion bills also belied the plea of appellant that on 3 disputed bills his signatures have been forged by Manager Waqar Junaidi, with whom he has bad terms, as these bills do not pertain to period of Manager Waqar Junaidi. Indeed from the above, inference can be drawn that for collection of utility bills both the same are used.

16. The appellant has also pleaded that the vouchers (Exhs.5/M to 5/P), whereby the appellant is alleged to have paid the disputed amount, do not bear his signature and that the total of these vouchers is Rs.425,183 while according to the complainant the appellant has paid Rs.667,686, and thus the evidence in this respect is not reliable which makes the prosecution case doubtful. This plea is not sustainable in law as the appellant has not disputed these four vouchers in cross-examination nor any suggestion was put to any witness.

17. As regards the plea that as the prosecution has failed to produce scroll register or tally register to prove the allegation against the appellant, we are in full agreement with the finding of the learned trial Court that no such suggestion was put to the manager when he was in witness box and so also that the appellant could have called and produced these registers which he failed to do. The plea that the payment was made through cheques is misconceived as nowhere the P.Ws. have stated that they have paid the amount .through cheques. They have specifically said that they paid the amount in cash and the disputed bills also prove the same.

18. We are also in agreement with the finding recorded by the learned trial Court that the law requires that if accused had a defence plea the same should have been up to the witnesses in cross-examination and then put up the same at the time of recording the statement under section 342, Cr.P.C. but it has not been done in the instant case. In the circumstances since the specific defence plea had not been taken by the appellant in his statement under section 342, Cr.P.C. the learned trial Court has rightly discarded the same to be not confidence-inspiring and afterthought.

19. In view of the above discussions in our humble view the prosecution has proved its case against the appellant beyond reasonable doubts on material particulars being the prosecution evidence was consistent, corroborative, direct, cogent, confidence-inspiring and not discrepant, creating dent in the prosecution case. The plea of the appellant that the Manager of the Bank has hatched conspiracy against him to involve in the false case and other Bank employees did not come forward to help the appellant as being subordinate to the Manager, is riot proved as the outsider/ private persons have specifically involved the appellant with the commission of the offence and so also the handwriting expert. Even the appellant has failed to speak a single word as to why the other P.Ws. deposed against him, merely saying that he has falsely been implicated is not sufficient to prove his innocence particularly in view of the fact that the prosecution evidence could not be shattered in the lengthy cross-examination. In the circumstances, the learned trial Court rightly appreciated the evidence on record and conviction was recorded against the appellant acting upon the material available with the learned trial Court by holding that the prosecution has succeeded to establish its case against the appellant.

16. In view of the above we are of the considered view that no illegality/irregularity, infirmity or mis-appreciation of evidence was found while convicting the appellant. Accordingly, instant appeal is dismissed and the conviction awarded to the appellant by learned trial Court is maintained.

Above are the reasons of our short order, dated 2-7-2008.

H.B.T./M-130/K Appeal dismissed.