1987 PLP r (PCRLJ)

(c) Criminal Procedure Code (V of 1898)‑‑ ‑‑‑S. 497‑‑Infirmity, meaning and Concept‑‑Old age‑‑Whether infirmity‑‑Accused aged 70 years doing business at large scale‑‑No tentative proof of age or infirmity available on record‑‑Bail declined‑ Infirmity, held, would mean impairment of bodily strength or extreme weakness or langour of disabling nature‑‑Concept of infirmity totally different from mere old age, which was also not even tantatively proved. Muhammad Latif Khan Khosa for Petitioners. Nazir Ahmad Ghazi, P.P. for the State. The facts of the case are that on 16‑6‑1981 one Haji Qadir Bakhsh opened an account in U.B.L., Sadar Bazar Branch D.G. Khan with an initial deposit of Rs.

100. He did not get any cheque book issued in his favour. On 17‑6‑1981 he deposited Rs. 1,00,000 in the said account and thereafter left for Saudi Arabia in connection with his employment there.

2. The allegation against the accused petitioner Allah Ditta, father‑in‑law of said Qadir Bakhsh and accused petitioner Musa Khan who was real brother of said Allah Ditta is that on 9‑4‑1983 they went to UBL, Sadar Bazar Branch D. G. Khan where they, with the active collaboration of Saif Ullah officer Grade III of the said Branch, got the photograph of the said illiterate account‑holder temporarily removed and replaced by photo of Musa Khan who posed as Qadir Bakhsh and got a cheque book 255201 to 255225 issued in his favour and on the basis of cheque No.255201 issued from the said cheque book withdrew on the same day the said sum of Rs.1,00,000 in his assumed name as Qadir Bakhsh. Out of the said amount so withdrawn, a sum of Rs.30,000 was taken by Musa Khan and with the remaining sum of Rs.70,000 Allah Ditta purchased three Cumulative Deposit Certificates (henceforth to be described as C . D . C s . respectively for sums of Rs .50 , 000, Rs .10 , 000 and Rs.10,000 on the same day namely 9‑4‑1983 and later on 23‑4‑1983, got said three C.D.Cs. encashed, received the said sum of Rs.70,000 from the branch and misappropriated the same. In 1985, when Qadir Bakhsh the real account‑holder was sent a copy of statement of account, he came to Pakistan on 9‑12‑1985 and gave notice to the bank on 11‑12‑1985 to the effect that sum of Rs.1,00,000 had been withdrawn from his account fraudulently on the basis of a cheque from a cheque book which had never been issued to him as he was not in Pakistan as shown from his passport on 9‑4‑1983, the date of issuance of the cheque book. As a result of the same complaint was filed on 19‑12‑1985 by Javed Iqbal, A.V.P., U.B.L., D.G. Khan, on the basis of which F . I . R . No .86.85 was registered.

3. According to the Investigating Officer besides the said complaint by Mr.Javed Iqbal Cheema, who got registered the F.I.R. after due verification of facts and record by him and the statements of Mukhtar Chandio, Cashier and Sh. Muhammad Sarwer, Officer Grade‑II before the police to the effect that on 9‑4‑1983 Allah Ditta who had account in the branch and was well‑known to employees of the bank had visited the branch alongwith another person, there is further circumstance of the receipt of a report from the finger print expert that the thumb‑impression affixed on obverse side of the cheque No.255201 as drawer and thumb impression on its reverse side as beneficiary recipient of the said sum of Rs.1,00,000 was of accused Musa Khan.

4. The plea of the learned counsel for accused‑petitioner Musa Khan is that there is delay of more than 21 years in lodging the F.I.R in this case. He further submits that Musa Khan had never been named by the witnesses who appeared before the police and no identification parade had been held. Now, as far the first objection, the present case is one of documentary evidence and not of mere oral narration of facts which a narrator of the incident may change according to his convenience in order of falsely implicate an innocent person. I am not, therefore, impressed by the said ground advanced by the learned counsel for accused Musa Khan. As far his second point, it is no doubt true that the two witnesses who appeared before the police did not name Musa Khan and only stated that there was one other person who was then accompanying Allah Ditta, whom they fully recognized, but the report of the finger print expert to the effect that the thumb‑impression on the obverse and reverse side of the cheque whereby the said sum was withdrawn from the branch was of accused Musa Khan prima facie clinches the matter and fixes the identity of the other person accompanying Allah Ditta as Musa Khan. Furthermore, lack of identification parade for identification of Musa Khan is fully made upon by the said report of the finger print expert. Science of identification of finger prints is now recognized as regular science and opinions given on its basis are considered to be conclusive. Prima facie, therefore, accused Musa Khan cheated the bank when after misrepresenting to the bank officers that he was Qadir Bakhsh he got a cheque book issued on the basis of replaced photographs affixed his thumb impression on the said cheque posing himself to be Qadir Bakhsh, got the said cheque passed and encashed. He did so not only fraudulently but also dishonestly as he is stated to have revived a sum of Rs.30,000 out of the sum so fraudulently withdrawn by him. In my view, therefore, at this stage on the present evidence available with the police, there is reasonable ground to believe that the accused Musa Khan committed offence under sections 419, 420 and 403, P.P.C. There is definite prohibition laid down in subsection (6) of section 5 of Offences in Respect of Banks (Special Courts) Ordinance, 1984 against grant of bail to such persons. Accused Musa Khan cannot, therefore, be granted bail in this case.

5. So far as accused petitioner Allah Ditta is concerned, evidence against him on the police record is that he is father‑in‑law of the account‑holder Qadir Bakhsh and real brother of Musa Khan, whom he had accompanied to the bank. Haji Allah Ditta in also account‑holder of the said bank as stated before me today by the Bank Manager on a question asked by me at the instance of learned counsel for the said accused. It, therefore, appears that the authorities in the bank fully recognized Allah Ditta who had accompanied Musa Khan. Accordingly it appears that Allah Ditta had identified Musa Khan as genuine Qadir Bakhsh when they approached the bank for the purpose of getting the said sum of Rs.1,00,000 withdrawn. It appears to be implicit in the very factum of him having accompanied accused Musa Khan to the branch that he represented to the bank that person accompanying him was Qadir Bakhsh, the real account‑holder. He prima facie did this fraudulently as Musa Khan was admittedly his real brother and not Qadir Bakhsh his son‑in‑law, the real account‑holder. Besides that, there is the further circumstance of this accused having purchased 3 C.D.Cs. on the same day after said cheque for Rs.1,00,000 had been got encashed by Muhammad Musa. The learned counsel for the accused has not argued that Allah Ditta had withdrawn sum of Rs.70,000 on that day from his own account in the said branch to purchase the said certificates. It appears, therefore that out of the booty, received a sum of Rs.70,000 and thus acted dishonestly in the matter. Furthermore, purchasing of the said C . D . Cs. was also prima facie an eyewash to hoodwink the bank authorities into the belief that nothing wrong was taking place as he got the said C.D.Cs. encashed after an extremely short span of about 14 days. In these circumstances on present evidence as available on police record there is reasonable ground to believe that this accused is also guilty of offence under sections 419, 420 and 403, P.P.C. He too, therefore, cannot be granted bail on account of embargo placed on the power of this Court in subsection (6) of section 5 of the said Ordinance against grant of bail to such accused persons.

6. In respect of accused petitioner Allah Ditta, learned counsel had next submitted that he is 70 years of age and is, therefore, an infirm person and for that reason he should be granted' bail under first proviso to subsection (1) of section 497, Cr.P.C. However, beside the fact that the learned counsel has not produced any proof of said age of the said accused, there is the further circumstance that it is now well‑established that the infirmity means impairment of bodily strength or extreme weakness or languor of a disabling nature and is a concept totally different from mere old age. A man of 70 years and even of 100 years can be quite healthy fit and even stout, fully able to perform his normal avocation while a man of only 50/60 years of age may be physically so weak that he may safely be called an infirm person. Alleged infirmity of the accused petitioner Allah Ditta was a circumstance which had to be this stage, tentatively established by the learned counsel for the accused but he has not produced even a certificate of pre‑arrest state of health of the said accused or record of the tonics prescribed to treat him debility so as to persuade me to the view that he is incapable of attending to duties required by his normal avocation or of performing routine functions of his life. As a matter of fact, the submission of the learned counsel as regards infirmity of the said accused stands directly negated by emphatic assertion on his part during his arguments that accused Allah Ditta is having lacs of rupees in the bank and is doing business on a huge scale (and that on that account it was wholly improbable for him to have purchased three C. D. Cs. from the same branch from which he alongwith his real brother Musa Khan has allegedly withdrawn Rs.1,00,000 fraudulently). If the said accused is still doing his business which is stated to be one on a large scale, there is no reason to hold him to be an infirm person merely on account of his being of the age of 70 years It is, I therefore, not established even tentatively to my satisfaction either that accused petitioner Allah Ditta is of age of 70 years or that he is an infirm person. He does not, therefore, deserve the concession of bail even under 1st proviso to subsection (1) of section 497, Cr.P.C.

7. For the foregoing reasons, I reject this bail application of the two accused persons. S. A. Bail refused.