MUHAMMAD TUFAIL BHATTI Versus THE STATE
1. ABDUR RASOOL AGHA, J.-- By this common judgment we propose to dispose of the above two appeals as the same are directed against common judgment dated 14-3-1987 passed by the learned Presiding Officer, Special Court (Offences in Banks), Karachi in Case No. 290 of 1984 convicting the appellant Muhammad Tufail Bhatti for offence under section 468, P.P.C. and sentencing him to imprisonment till rising of the Court and line of Rs.10,000 or in default to undergo R.I. for three months more. Also similar sentence was imposed on him for the offence under section 471, P.P.C. Appellant Noor Muhammad was also convicted under the same judgment under section 468 to imprisonment till rising of the Court and fine of Rs.10,000 and in default to undergo R.I. for three months more. He was also imposed similar sentence for offence under section 477-A, P.P.C. The appellants feeling aggrieved by the above judgment have filed the present appeals.
2. The brief facts leading to the filing of the above appeals are that two appellants who were working as Accountant and Assistant respectively in the Bank in the were charged with the allegations that they unlawfully withdrew from branch an amount of Rs.66,000 from the current Account No. 1375 of Rais Allah Bux Magsi on the basis of unauthorised debit voucher and misappropriated the amount unlawfully falsifying the books of account of the branch and dishonestly used the same as genuine debit voucher which was forged document, thus having committed offences under sections 408, 468, 471 and 477-A, P.P.C. The case against the appellants was initiated on a private complaint filed by Vice-President of the Allied Bank namely, Mr. Amir Haider Zaidi. It may be mentioned that the: Allied Bank is said to be the successor bank of the Australasia Bank.
3. Prosecution version, as unfolded in the complaint, is that on 28-7-1971 an amount of Rs.66,000 was unlawfully withdrawn by the two appellants and the absconding accused Sabir Ali Abbasi from the current account of Rais Allah Bux Magsi for which the appellants did not have any authorisation nor it was within the knowledge of Rais Allah Bux Magsi, the account-holder. The withdrawal was effected through a debit voucher which was alleged to have been prepared by the accused Noor Muhammad and signed by both the appellants. According to the complaint, the payment on the voucher was made by Ahmed Mian Shaikh, the Cashier of the bank but Cashier Abdul Majeed has testified that payment was made by him to Sabir Ali, the then Manager of the Bran. h and the absconding accused in the instant case. The account holder Rais Allah Bux Magis as it appears from the record, had number of complaints against the Bank. Accordingly he had filed Civil Suit No. 78 of 1975 in the Court of Senior Civil Judge, Hyderabad which was subsequently transferred to the High Court in which he putforth a claim of Rs.30,29,241.14 against the Bank and this amount includes the sum of Rs.66,000 which is the subject-matter of the instant case. The complaint was filed on 16-8-1975 in the Court of Additional District Magistrate, Hyderabad who had issued process against the appellants on 21-8-1975 after recording the statement of the complainant and after promulgation of Ordinance IX of 1984 the case was transferred to the Special Court (Offences in Banks), Karachi. Before the case was received by the Special Court, Sabir Ali accused had jumped his bail and became fugitive to law, thus absconding since 7-5-1975.
4. The formal charge to the following effect was drawn up on 11-2-1985:
5. "CHARGE.
6. I, Justice (Rtd.) Zulfikar Ali C. Valliani, Presiding Officer, Special Court of Sind (Banks) Karachi, constituted under Ordinance IX of 1984, do hereby charge you accused (i) Noor Muhammad son of Ghulam Muhammad Awan, (ii) Muhammad Tufail son of Muhammad Siddique Bhatti and (iii) Sabir Ali Abbasi (absconding) as follows:--
7. That you while employed as Officer/Attorney/Agent/servant of the complainant's Bank formerly known as Australasia Bank Limited and after nationalization known as Allied Bank of Pakistan Limited, in collusion with each other and in furtherance of the common intention, being entrusted with and/or having dominion over the Bank's property and Funds in violation of the direction of law applicable in this regard and the legal contract governing such trust, on or about 28th July, 1971 with dishonest intention unauthorisedly and unlawfully withdrew an amount of Rs.66,000 from the Current Account No. 1375 of Rais Allah Bux Magsi maintained at Market Road Branch of the Allied Bank of Pakistan Limited; where you were employed, by passing the debit cash voucher which was prepared and signed by you accused Noor Muhammad Awan as Accountant and you accused Muhammad Tufail signed the same as Manager, without any mandate or authority from the Account Holder for such withdrawal and unlawfully misappropriated the said amount yourself in collusion, collaboration and conspiracy with each other, as the said Debit Cash Voucher does not bear the signature of the Account Holder authorising or acknowledging to have received the said amount under the said voucher.
8. And further you accused Muhammad Tufail Bhatti in furtherance of said common intention made the corresponding entries of cash debit of Rs.66,000 in the ledger No. 1 on folio No. 212 of the account-holder Rais Allah Bakhsh Magsi, showing `transfer' and authenticated the entry by putting your initials thereon in exercise of your duty as Manager and thus committed forgery of valuable security/document, and wilfully falsified and forged the Books of account of the Bank, which were in your possession and in furtherance of common intention fraudulently and dishonestly used as genuine the aforesaid document which you knew to be the forged document.
9. You accused have therefore committed offences punishable ,finder sections 408, 468, 471, 477-A read with section 34, P.P.C. within my cognizance and I hereby direct that you be tried by this Court on the above charges.
10. Karachi.
11. Dated 11-2-1985.
12. Sd/-
13. (Z. C. Valliani)
14. Presiding Officer
15. Special Court of Sind (Banks) at Karachi."
16. Prosecution in support of its case examined three witnesses: (1) Amir Haider Zaidi, A.V.P. and Zonal Chief of the Allied Bank of Pakistan Exh. 2. (2) Rais Allah Bux, holder of Account No. 1375 of the Market Branch of the Bank Exh. 3 and (3) Abdul Majeed, Cashier of the Branch at the relevant time Exh.
4. Complainant has produced his complaint Exh. 2/A, the copy of plaint in the suit filed against the Bank by Rais Allah Bux Magsi alongwith annexures Exh. 2/B, the debit voucher of the amount involved in the case Exh. 2/F, Photostat copy of current account, ledger of Rais Allah Bux Magsi Exh. 2/D, the letter of appointment of appellant Muhammad Tufail in the Australasia Bank. Cashier Abdul Majeed has produced the long book of the branch containing entries dated 28-7-1971 showing the payment of the disputed amount etc. Exh. 4/A.
17. Both the appellants in their statements under section 342, Cr.P.C. admitted to have signed the disputed debit voucher Exh. 2/F for Rs.66,000. Appellant Noor Muhammad further admitted his signature on the entries dated 28-7-1971 in the long book as `Manager' (Exh. 4/A-1). However, he asserted that he did not have power of attorney and was a mere clerk. He further contended that he had put the signature in the entries and signed the vouchers at the instance of the Sabir Ali Abbasi. Likewise appellant Muhammad Tufail admitted his signature Exh. 2/F under the direction of the Manager and further claimed that at the relevant time he was a probationer, in the Bank and did not have even the appointment order. He denied the initials against the debit entries of Rs.66,000 in the Ledger account of account-holder Rais Allah Bux Magsi. It was at his request that the attendance register of the branch for the period from 1-1-1973 was sent for for the purpose of comparison of the initials of this appellant on the said entries and the learned Presiding Officer observed that the comparison supported the claim of the appellant that the initials marked 2/D-A were not his.
18. So far as the signatures of the two appellants on the debit voucher Exh. 2/F are concerned, the same are not disputed by either of them. The two prosecution witnesses, the complainant Amir Haider Zaidi and Abdul Majeed Cashier being familiar with the handwritings and signatures of the two appellants have also testified that the voucher Exh. 2/F bears the signatures of both the appellants. On this point the witnesses are not subjected to cross-examination and in their statements under section 342, Cr. P.C. appellants have also admitted the signatures on the voucher. In the deposition P.W. Abdul Majeed has testified that voucher Exh. 2/F was brought and presented for payment by appellant Muhammad Tufail but. he declined to entertain the same or to make payment on the ground that the voucher did not bear the signature of the payee on its reverse which was a necessary requirement and he stated that appellant Muhammad Tufail went back and the absconding accused Sabir Ali Abbasi appeared before him and directed to make payment which he did and made payment to Sabir Ali Abbasi personally. In this view of the matter it has thus become clear that the payment of the amount was not made to either of the appellants but it was made to absconding accused Sabir. We feel inclined to be m agreement with the observations given by the learned Presiding Officer in the reasoning of the judgment that the two essential ingredients for the offence of criminal breach of trust i.e. entrustment of the property and dishonest conversion or misappropriation of the same in the instant case are prominently wanting and not borne-out from the record. Even according to P.W. Abdul Majeed appellant Muhammad Tufail was working as Accountant and Noor Muhammad was a clerk as appearing from appointment letter Exh. 2/E Muhammad Tufail was regularly appointed in tlic Dank under letter dated 26-1-1972. We also agree with the reasonings given out in the judgment that there is nothing on the record to show the entrustment of the amount involved to appellant Noor Muhammad whose appointment in the bank would not result in the entrustment of the bank's money by virtue of being a mere appointee. It is not shown in the evidence that Noor Muhammad has in any way handled with the cash or it remained in his custody and as has already come in the evidence that the amount of Rs.66,000 was not l made over to the two appellants and the evidence on record shows that the amount involved was made over to absconding accused Sabir, as such in absence of any evidence of conspiracy with absconding accused to defraud the bank or to misappropriate the funds, the offence under section 408, P.P.C. was not made out as rightly concluded by the learned Presiding Officer in his judgment. The debit voucher admittedly bears the signature of the two appellants which is not denied by the appellants too in their statements under section 342, Cr.P.C. and the debit voucher did not bear the signature of the account-holder on its reverse and the amount shown in the voucher was never paid to the account-holder Rais Allah Bux Magsi nor did he so depose to have authorised them for that purpose but it was paid to Sabir Ali, the absconding accused as testified by cashier Abdul Majeed and appellant Noor Muhammad being merely a clerk signed the voucher under designation as `Manager'. The fact of authorisation and the receipt of amount which is clearly denied by the account-holder. Rais Allah Bux Magsi, is therefore sufficient to establish the making of false documents in dishonest and fraudulent manner. From the circumstances and the evidence on record, improper motive underlying the preparation of documents and the irregularities with which it was prepared, we are of the view that the offence of preparing a false document was intended and on the strength of the document so prepared the amount of Rs.66,000 was withdrawn from the bank and debited to the account of Rais Allah Bux Magsi. In other words, both the appellants knew that the document would be used for the purpose other than bona fide and the basis on the strength of which they signed the document i.e. at the instance of Sabir Ali Abbasi is not convincing and we do not feel that by this explanation alone the appellants could be exonerated from the offence of forgery punishable under section 468, P.P.C. Appellant Muhammad Tufail not only put his signature on voucher Exh. 2/F but had also taken the voucher seeking payment from Cashier Abdul Majeed of the amount specified in the voucher which fact is not denied by the appellant himself, thus knowing the document to be not genuine and to be false document, his action comes within the four walls of section 471, P.P.C. So l also appellant Noor Muhammad having signed as `Manager' in the Long Book showing payment of Rs.66,000 to Account Holder, Rais Allah Bux Magsi Exh. 4/A and Exh. 4/A-1, has thus falsified the record which act is covered under section 477-A. P.P.C. On detailed assessment of the evidence and the documents produced in support of the charge and after hearing the learned counsel for the parties and going through the impugned judgment we do not find any reason to disturb the finding of the learned Presiding Officer.
19. Consequently, the present passed ,by the Presiding Officer is( maintained who has taken lenient view of the matter in the circumstances and C facts of the case. In the result, the two appeals, Criminal Appeals Nos. 56 and 621 of 1987 merit no consideration and hence are dismissed.
20. M.Y.H./M-544/K
21. Appeals dismissed.