MUHAMMAD KHAN Versus STATE
AHMED ALI U. QURESHI, J. ‑‑This criminal appeal is directed against the Judgment of learned Presiding Officer, Special Court, (Offences in Banks), Karachi, dated 20‑3‑1988, whereby the appellant was acquitted of the charge under section 477‑A, P.P.C., but was convicted under section 408, P.P.C. and sentenced to undergo R.I. for three months and to pay fine of Rs.30,000 or in default of payment whereof, to further undergo R.I. for three months.
2. The brief facts of the prosecution case are, that from 1982 to 15‑2‑1985, the appellant was working as Agricultural Credit Officer, Matiari Branch of U.B.L. and was entrusted with processing of applications for grant of agricultural loans and with receiving the repayment of the loans. On 3‑3‑1985, P.W. Qamar Din, after taking over the charge as Manager of Matiari Branch, inspected the agricultural loan register. He found lot of cuttings and over-writings therein. When he made enquiries from the appellant, the appellant admitted to have got fake loans sanctioned and to have misappropriated the amounts of loan and also to have made false and wrong entries in the loan ledger register. The appellant is alleged to have misappropriated total amount of Rs.60,255 in respect of ten fake and bogus loans. Such complaint was lodged by Mr. Qamar Din with F I A Police on 14‑7‑1985. Mr. Iqbal Ahmed, Inspector, F I A Police, registered the F I R and after usual investigation, submitted three challans against the appellant arising out of the same complaints which have, been numbered as Case Nos. 23, 23/A and 23/B of 1986. This appeal pertains to the convictions of the appellant in case No.23/B of 1986.
3. The appellant has pleaded not guilty to the charge under sections 477‑A and 408, P.P.C. In his statement under section 342, Cr.P.C. he admits to have processed the loans applications in question and to have got the loans sanctioned but states, that the persons, making applications, had received the loans. He denies to have misappropriated any amount. He, however, admits, that the entries in the agricultural register bearing Exhs. No.5/C‑1 to 5/C‑10 are in his handwriting. He also admits to have received the cheque Exh.5/D‑1 from Fayyaz Fertilizer Agency, but states, that after withdrawing the amount from bank, he had delivered the same to Fayyaz Agency. He admits to have made written confession Exh.5/E‑1.
4. The prosecution in support of their case have examined Nisar Ahmed Mohammad Yaqoob, Nuruddin, Qamar Din, Gul Mohammad and to Investigating Officers Iqbal Ahmed Mughal and Sher Muhammad and Court witness Fayyazuddin.
5. P.W. Muhammad Yaqoob is one of the persons, in whose name loan was sactioned. He has stated that neither he signed the loan application Exh.2/A‑2, nor had taken any agricultural loan. He also produced Exh. 2/A‑1 which is reply to the notice received from Matiari Branch in which he denied to have taken any loan. He however, admits, that the identity card attached to the loan application is his and he had given the same to the appellant. P.W. Nisar Ahmed is brother of Mohammad Yaqoob, who had signed the loan application as guarantor. He admits his signature on this application, but states, that no loan had been granted to his brother.
6. P.W. Nuruddin is owner of a fertilizer agency at Matiari. He states to have received pay order from the appellant for total amount of Rs.60,285 for supply of fertilizer to the loanees, but he had no fertilizer in stock. He states to have paid the entire amount of pay order to the appellant. He has produced 7 entries from Roznamcha Exh.4/ C‑ I to Exh.4 C‑7. Court witness Fayyaz is the proprietor of Fayyaz Fertilizer Agency. He has deposed, that he had received the pay‑order Exh. 4/A‑1 for the supply of fertilizer to loanee but was unable to recollect if he supplied the fertilizer or paid the amount in cash. He states to have issued the cheque for Rs.30,000, which he had given to one Zamindar who probably might have given it to the appellant.
7. P.W. Gul Muhammad was Manager of Matiari Branch of bank from 3‑6 -1981 to 3‑11‑1984. He states, that the appellant was agricultural officer and that the agricultural loans were disbursed through pay orders made in favour of fertilizer agencies who were required to supply the fertilizer to the loanees. P.W. Qamar Din is the complainant, who after taking over the charge on 3‑3‑1985 detected the misappropriation by the appellant, and thereafter lodged F I R with F I A Police. He states, that the appellant gave written confession which he produced as Exh.5/E. He states that the appellant also reimbursed the bank full amount of Rs.1,71,500, which he had embezzled including the amount in question.
8. The main evidence against the appellant, that appears to have weighed with the learned trial Court is his confessional statement, which is Exh. 5/E‑1. The appellant in his statement under section 342, Cr. P.C. has admitted to have given this statement in writing in his own hand. He does not allege that he was compelled to give this statement in writing. P.W. Qamar Din has denied the suggestion in cross‑examination, that the appellant gave the confession because he was detained for 8/9 days. It is not suggested as to by whom he was detained, nor has he alleged such detention in his statement under section 342 Cr. P.C. This statement Exh. 5/E‑1 is dated 15‑5‑1985, whereas F.I.R. Exh. 7/A was registered on 14‑7‑1985. Therefore, appellant could not have been detained by the Investigating Officer. No such question has been suggested to the investigating officer. No witness has been examined by the appellant to prove his alleged detention. Under the circumstances we are inclined to agree with the learned trial Court, that this confessional statement was voluntarily given by the appellant. In this statement he has given names of 17 loanees in whose names he had received the amounts of the agricultural loans. He has also given the amounts as well as the date against each of the loans. He states to have himself repaid the loans of jour persons, whose names are also given in this confession and the dates and the challan numbers under which amounts were deposited. He has also stated, that he had deposited the money in three khatas by tampering with khatas of agricultural loans of the bank, whereas these khatas were still to be paid. He has also admitted in his confession, that after opening total agricultural loan account, he himself received its amount and instead of giving it to the parties, he brought the same amount in his use. He bound himself to return the total amount of Rs. 1,71,500. He further stated therein, that since all the amounts had been misappropriated he was responsible to return the same to the bank and he would do so otherwise the bank had right to take legal action. Admittedly, the appellant reimbursed the bank to the tune of Rs. 1,71,500 including the amount of the present case, as well as of the other cases. P.W. Qamar Din has stated, that after making confessional statement the appellant had repaid to the bank under five different vouchers of different dates a total amount of Rs. 1,71,500. This statement of his is not challenged in the cross‑examination nor is it suggested, that the appellant was compelled or forced to pay this amount to the bank. P.W. Qamar Dm has produced the consolidated list in respect of the misappropriations committed by the appellant, which are covered by the three cases against the appellant, including the instant case. This list is numbered as Exh. 5/G‑1, which shows the total amount as Rs. 1,71,500. P.W. Qamar Din has further stated, that s he had checked the record of loans which were sanctioned and found, that during the period of 1983, there were 10 bogus loans sanctioned as proposed by the appellant, who had pocketed amount of the loans. He has produced list of these 10 loans as Exh.5/A. He has also produced corresponding entries in the agricultural loan register as Exhs.5/C‑1 to 5/1 10, which were in hand‑writing of the appellant and were initialled by him. He has further stated, that during the checking of these bogus applications he found that some pay‑orders for supply of fertilizer had been issued in the name of Fayyaz Brothers, but no fertilizer was supplied to the concerned parties and instead the fertilizer agency issued a bearer cheque. It may be pointed, that the appellant in his statement under section 342, Cr.P.C. has admitted, that he received a cheque of Rs.20,000 from Fayyaz Agency and to have encashed the same, but he states, that he delivered the amount to Fayyaz Agency. Fayyazuddin owner of this agency has been examined as Court‑ witness. He states to lave received the pay‑orders. In the cross‑examination by the learned State counsel, he admitted, that he issued the cheque Exh.5/D‑1 in the sum of Rs.30,000 and had given the same to some Zamindar, whom fertilizer was to be supplied but as he had no fertilizer he had given the cheque. He states, that it was possible, that the Zamindar might have handed over the cheque to accused Muhammad Khan. As already pointed the appellant admits to have back to received and encashed the cheque but states, that he paid the amount Fayyazuddin. However, no such question has been suggested to Fayyazuddin.
9. P.W. Qamar Din has further stated, that nine pay orders were issued in favour of Nuruddin Fertilizer Agency. P.W. Nuruddin of Nuruddin Fertilizer has been examined. He states, that he had received nine pay orders Exhs.4/A‑2 to 4/A‑10, which were brought to him by the appellant Muhammad Khan, but he had no fertilizer by that time and that he had not supplied any fertilizer to the parties concerned but paid the entire amount of ten pay orders amounting to Rs.50,205 to the appellant. He states to have made total payment of Rs.1,50,000 in respect of pay orders pertaining to the instant case and to the other cases to the appellant. It was suggested in the cross‑examination, that he was arrested by the F.I.A. police implying thereby that he was, therefore, implicating the appellant but no such question was suggested in the cross‑examination of the two Investigating Officers examined by the prosecution.
10. The evidence on record clearly shows, that the appellant had made bogus entries in the loan register, that he had encashed the cheque of Rs.30,000 given to him by Fayyaz Agency. It is also proved from the record that no cash was paid to the loanees but such pay orders were issued in the name of Fertilizer Agencies for supply of fertilizer to the loanees. The evidence of the owners of two fertilizer agencies namely Nuruddin and Fayyaz shows, that they had not given fertilizer to any person but had encashed the pay orders. Nuruddin states to have made cash payment to the appellant, whereas Fayyazuddin states to have issued bearer' cheque in the sum of Rs.30,000. Though he states to have given it to some Zamindar, but the appellant has admitted to have encashed it. His averment, that he paid back this amount to Fayyazuddin is belied by the fact, that even this suggestion was not made to Fayyazuddin, who appears to have been obliging the appellant in his statement. The evidence of two witnesses P.W. Yaqoob and Nisar gets support from confessional statement of appellant himself Exh.5/E‑1, which has been discussed above. The prosecution case further gets support from the fact, that the appellant himself reimbursed Rs.1,71,500 to the bank which fact is not denied by the appellant nor has he explained as to why he made this payment to the bank. He has examined one of the loanees D.W. Abdul Majeed, who states to have taken loan of Rs.1,647 in the year 1984, and that his father Abdul Rehman has taken loan of Rs.4,340 but they had not repaid the amount. It may be pointed, that the name of this witness does not appear in the confessional statement Exh.5/E‑1 or in list of loanees Exh.5/A. Therefore, his evidence does not have much evidentiary value.
11. Considering all the facts discussed above, we are inclined to agree with the learned trial Court that the prosecution has been able to prove the guilt of the appellant. Mr. Faiz Muhammad Soomro, learned counsel for the appellant has prayed, that mercy may be shown to the appellant, who has undergone the tribulation of the prosecution for the last three years and has lost job without any prospects of getting any other job, and that he had also made good loss to the bank. In view of the above facts, we take lenient view and reduce the substantive sentence from three months to two months and also reduce sentence in default of payment of fine from three months to two months. We also order, that the benefit of section 382‑B, Cr.P.C. be extended to the appellant. With this modification, the appeal of the appellant, is dismissed.
M.Y.H./M‑618/K Appeal dismissed.