PLJ 1991 Cr.C (Karachi) 491 (DB)
Present: IMAM ALI G. KAZI AND ALLAHDINO MEMON, JJ RAHIMUDDIN-Appellant
versus
THE STATE-Respondent i
Criminal
Appeal No.186 of 1990, dismissed on 16.7.1991.
(ii Pakistan Penal Code, 1860 (XLV of 1860)-
—S.409--Criminal breach of trust—Offence of—Conviction for—Challenge to- Held: It has conclusively been proved beyond any reasonable doubt that appellant had in fact misappropriated an amount of Rs.85000/- that was entrusted to him to be credited in account of complainant-Appeal dismissed ' but sentence modified. [P.494JC
(ii) Pakistan Penal Code, 1860 (XLV of I860)--
—S.409-Criminal breach of trust-Offence of-Conviction for-Challenge to- , Word "banker" has not been used in Section 409 PPC in purely technical sense--Any person who discharges functions of a banker by way of his normal ! business, will be treated as a "banker" for purposes of said section-Held: Appellant as a Manager of branch of National Bank was carrying on business of a "banker" and was liable to be convicted under Section 409 PPC. [P.493JA
(iii) Qanun-e-Shahadat, 1984 (PO 10 of 1984)--
—Art.59-Criminal breach of trust-Offence
of-Conviction for-Challenge to~Whether PW1 was not skilled handwriting expert and his evidence
was to be ]
excluded-Question of-Article 59 of
Qanun-e-Shahadat requires that opinion
: in respect of
identity of handwriting of a person can be given by a person especially
"skilled" in such subject-Evidence indicates that PW1 had examined 900 suspect documents, received training in
institutions at Karachi, Peshawar and Lahore, and had given evidence as an
expert before various courts-Held: PW1 can very well be said to be especially
"skilled" in subject and evidence ' given by him will be taken to be relevant. [Pp.493&494]B
Mr. Dewan Bashir Ahmad Klian, Advocate for Appellant.
Mr. Muhammad Zubair Qureshi, Advocate for State.
Date of hearing: 16.7.1991.
judgment
Imam Ali G. Kazi, J.—The appellant Rahimuddin who was the Manager of • National Bank of Pakistan, Bohrapir Branch, Karachi, has been convicted under Section 409 PPC by the Presiding Officer, Special Court (Offences in Banks) at , Karachi, by his judgment passed on 6.12.1990 and sentenced to suffer rigorous ( imprisonment for 7 years and to pay of fine of Rs.200,000/- or in default of such payment to further suffer R.I. for 6 months. Out of the amount of fine whenrealised an amount of Rs.85,000/- has been ordered to be paid to the bank to cover the losses suffered by it. The appellant was accused of having misappropriated various amounts relating to three accounts of that Branch but the present conviction relates to Account No.9053 which was operated by one Muhammad Ibrahim. It is against this judgment that the present appeal has been filed.The case of the prosecution briefly stated is that one Muhammad Ibrahim had opened an account with Bohrapir Branch of National Bank of Pakistan at Karachi, bearing Account No.9053. The Account Holder had obtained a loan from the said bank and he had made certain payments towards the loan. The Account Holder had sent an amount of Rs.85,000/- through Qazi Imdad Hussain, Advocate to be deposited in his loan account. The wife of Qazi Imdad Hussain had earlier offered herself to be the surety for the payment of amount of loan advanced to Muhammad Ibrahim. The appellant received the amount of Rs.85,000/- from Qazi Imdad Hussain, Advocate on behalf of Muhammad Ibrahim and issued a counter-foil of pay-in-slip under his signature (Ex.2/B-2). Such an entry of receipt of amount of Rs.85,000/- was not kept by him in the other record of the Bank. Similarly on two' other occasions certain other amounts were deposited but entries were not made in the other record of the Bank.
Account Holder Muhammad Ibrahim came to know that the amount of Rs.85,000/- sent through Qazi Imdad Hussain, Advocate to the Bank for crediting in his loan account was in fact not credited in his account. He, therefore, filed a complamt in writing to the Regional Head of the Bank of 22.5.1989 (Ex.3/A). This complaint was forwarded to Mr.Maqbool Butt (P.W.3) for investigation. Mr.Maqbool Butt after a detailed enquiry reported to his superior MrAthar Hussain that he did not find any entry showing the credit of Rs,85,000/- in the books of accounts inspite of having signed the counterfoil of pay-in-slip (Ex.2/B-2). MrAthar Hussain then directed that a complaint be registered with Federal Investigation Agency. Complaint was then made and the Federal Investigation Agency registered the case on 31.5.1989. After usual investigation Federal Investigation Agency put up a challan for trial of the appellant under Section 409 and 477-A PPC in the Special Court (Offences in Banks) at Karachi.
The prosecution in support of their case examined Muhammad Ibrahim (P.W.5, the Account Holder), Qazi Imdad Hussain, Advocate (P.W.6, who had. deposited amount of Rs.85,000/- towards the loan account of Muhammad Ibrahim and obtained counter-foil of the pay-in-slip duly signed by the appellant), Muhammad Maqbool Butt, the Vice President of the National Bank of Pakistan (P.W.3, who had conducted the enquiry under orders of MrAthar Hussain and lodged the report), MrAthar Hussain, Vice President of the Inspecting Department of the National Bank of Pakistan (P.W.2, who had endorsed the complaint of Muhammad Ibrahim to Mr.Maqbool Butt), Moula Dad Khan, Handwriting Expert) (P.W.I, who had examined the relevant documents in thecase), Mohsin Rafiq (P.W4) Head Cashier of the Branch, Sami Ahmad (P.W.7) working as Assistant in that Branch, Abdul Salam Arif (P.W.8) Inspector working in the National Bank of Pakistan, Nazneen Naz Ansari (P.W.9) the Additional City Magistrate (South) Karachi, who had obtained specimen handwriting of y appellant and attested the same for being referred to Handwriting Expert and r Mushirs and Investigating Officers. In addition to above witnesses prosecution j also examined certain other witnesses in respect of misappropriation of certain ^ other accounts by the appellant but such witnesses are not relevant for the ^ purpose of this appeal.The appellant in his statement generally denied all the allegations of the : prosecution. He neither examined himself on oath nor led any defence.On the basis of oral and documentary evidence produced by the prosecutionthe appellant has been convicted and sentenced as abovee Mr.Dewan Bashir Ahmed, Advocate for the appellant in support of this ^appeal mainly contended that the appellant was not a "Banker" but was an n employee of a Bank and he could not have been convicted under Section 409 PPC. , He consequently contended that he ought to have been tried for offence under Section 408 PPC. He further contended that the evidence of the Handwriting , Expert cannot be treated as evidence in the case as the Handwriting Expert examined in the case is not an expert witness in terms of Article 59 of the Qanun-e-Shahadat. He relied on a case of Syed All Nawaz Gardazei v. LlCol.
Muhammad Yousuf published in PLD
1963 Supreme Court 51.e
Mr.Muhammad Zubair Qureshi, Advocate appearing for the State supportedthe
judgment and the sentence as according to him conviction has been based on , reliable
and cogent evidence.The word "Banker" has not been used in Section
409 PPC in purely technical n sense.
Any person who discharges the functions of a banker by way of his normal business will be treated as a "Banker"
for the purposes of the said section. A
j Manager of a Bank is expected tg carry on the business of a
banker and therefore in a case where such a
person commits an offence of criminal breach of trust it >
, will come under mischief of Section 409 PPC. In the present case
admittedly the A appellant as a
Manager of the Bohrapir Branch of National Bank of
We have carefully gone through the evidence recorded in the case and found from the evidence of several witnesses examined by the prosecution that it had conclusively proved beyond any reasonable doubt that the appellant had in fact misappropriated an amount of Rs.85,000/- that was entrusted to him by witness Qazi Imdad Hussain, Advocate on behalf of Account Holder Muhammad Ibrahim to be credited in the account of latter for the adjustment of the loan advanced to C him by the Bank. No other point was raised by the learned counsel for the appellant and in view of above we had found no force in this appeal and by our short order passed on 16.7.1991 had dismissed the appeal with a modification in the sentence to the extent that instead of payment of fine of Rs.200,000/-, the appellant shall pay a fine of Rs.170,000/- (one lac seventy thousand) being double the amount of the amount misappropriated by him and in default of payment thereof further suffer R.I. for 4 months instead of 6 months.
(MBC) (Approved for reporting) Appeal dismissed.