1988 P Cr (PLP)

AJMAL MIAN, J.-- This appeal is directed against the judgment, dated 11-7-1987 passed by the learned Presiding Officer, Special Court (Offences in Banks), Karachi, in Case No. 13 of 1986 convicting the appellant under sections 403, 420 and 471, P.P.C. read with section 109, P.P.C. awarding him sentence of 3 months' R.I. in respect of each of the above offences and imposing a fine of Rs.50,000 under section 471 read with section 109, P . P . C . In default of the payment of fine, the appellant was to suffer further R.I. for 3 months. It was also ordered that the substantive sentences of 3 months awarded to the appellant under the above sections were to run concurrently while the sentence in default of payment of fine was to run consecutively. The appellant being aggrieved by the above judgment has filed the present appeal.

2. The brief facts leading to the filing of the above appeal are that the Vice-President, Syed Fakhr-e-Alam, of Messrs United Bank Limited, who was posted as the Manager of the said Bank at Intercontinental Branch, Karachi by his letter, dated 22-4-1985 Exh.4/E addressed to the Deputy Director, Federal Investigation Agency, lodged a report in respect of received payment of forged demand draft bearing No. ADDF 118278/6, dated 1-6-1981 for a sum of Rs.1,42,000 in favour of one Ashfaq Ali purportedly issued from United Bank Limited, Jamil Chowk, Samundri Branch, District Faisalabad encashed on 24-6-1981 by said Ashfaq Ali on the verification of the signatures of the officers by the appellant and also on identification of said Ashfaq Ali. After the investigation, the case was initiated in the aforesaid Court. The appellant was charged on 2-7-1986 in the following terms:- "I, Justice (Rtd.) Zulfikarali C. Valiani, Presiding Officer, Special Court (Offences in Banks) Karachi constituted under Ordinance IX of 1984, do hereby charge you accused (i) Aijaz Ahmed Shaikh son of Mohammad Ismail Shaikh as follows:- That in June 1981, you were working as an Officer in the Intercontinental Branch of United Bank Limited when in collusion and abetment of accused' Ashfaq Ali you knowingly and or having reason to believe that the signatures of the officers were forged on demand draft No. ADDF 118278/6, dated 1st June, 1981, which was allegedly issued for Rs.1,42,000 by Jamil Chowk, Samundri Branch of U.B.L. on Intercontinental Branch of U.B.L. at Karachi, verified the said signatures as genuine and thus abetted co-accused Ashfaq Ali to deceitfully collect the proceeds of the said forged demand draft, by using it as genuine and committed criminal misappropriation of the said amount and, therefore, you have committed offences punishable under sections 403/420 and 471, P.P.C. read with section 109, P.P,.C. within my cognizance. And, therefore, I hereby direct that both the accused be tried by this Court. (Sd.) (Z.C. Valiani) Presiding officer, Special Court (Offences in Banks), Karachi. Accused pleaded not guilty to the above charge which was read over to him in open Court. (Sd.) (Z.C. Valiani) Presiding Officer, Special Court (Offences in Banks), Karachi."

3. The appellant pleaded not guilty to the charge. The prosecution in support of the case examined P.W.1 Syed Fakhr-e-Alam, Exh.4, the Assistant Vice-President and the Manager of the Intercontinental Branch of Messrs United Bank Limited at the relevant time, who had lodged the above complaint Exh.4/E, who produced Exhs.4/A 4/B, 4/C, 4/D, 4/E and 4/F; P.W.2 Mohammad Masood, Exh.5, the Manager at the relevant time of Messrs United Bank Limited, Jamil Chowk, Samundri Branch, District Faisalabad; P.W.3 Matloob Hussain, Exh.6 an Officer of Messrs United Bank Limited, Jamil Chowk, Samundri Branch, District Faisalabad, the above two witnesses have denied the signatures on Exh.4/A, the forged draft, and also on Exh.4/B, the advice note in respect of Exh.4/ A and also produced their specimen signatures Exhs.5/A and 6/A; P.W.4 Abdul Rashid Ansari, Exh.7, an Officer of the Bank in West Wharf Branch, who produced counterfoil Exh.7/ A to show that the forged draft was from the draft book issued to the West Wharf Branch of U.B.L. in the year 1977 and also produced the original draft Exh.7/B which was issued by the West Wharf Branch for the sum of Rs.5,844.80 in favour of Messrs Zafreen Enterprises Limited Peshawar; P.W.5 Abdullah Soomar, Exh.8, who was working as the Cashier in the above Branch and who made payment against Exh.4/A as it was passed for payment by P.Ws. Shafiq Alam Farooqi and Mohammad Farooq Ansari on the identification of the appellant, he also identified the appellant's signature on Exh.4/A, P.W.6 ' Younus Habib, Exh.9, who was working in the reconciliation department of U.B.L. at the Head Office and when he discovered that entry of Rs.1,42,000 in respect of Exh.4/A was not reconciled, he made enquiries and thereafter reported the matter to the bank authorities after discovering the above fraud; P.W.7 Shafiq Alam Farooqi, Exh.10, an officer posted at U.B.L. Branch, who was handling the payments on demand drafts and who also dealt with Exh.4/A; P.W.8 Mohammad Nawaz, Exh.11, an Inspector in the Commercial Bank Circle, who received the complaint Exh.4/E and seized the original documents from the bank and recorded the statements of Ghulam Soomar, Syed Fakhr-e-Alam Zaidi, Athar Khan, Shafiq Alam Farooqi and others, and produced Exh.11/A, the F.I.R. and Exh.111A-1, the seizure memo.; P.W.9 Parveen Fatima, Exh.12, one of the officers posted at the above Branch who carried out the secret test on the code number of Exh.4/B; P.W.10 Abu Bakar Bhatti, Exh.13, F.I.A. Inspector, who took over the investigation and submitted the challan and produced a number of documents Exhs.13/A, 13/B, 13/C and 13/D; C.W.1 Mohammad Athar Khan, Exh.14, an officer Grade-I, attached to the Branch concerned who also carried out secret test on the code number of Exh.41B; C.W.2 Mohammad Farooq Ansari, Exh.15, Assistant Vice-President and Manager of the Branch concerned at the relevant time, who described the procedure of encashmcnt of a bank draft and also stated as to how Exh.4/A was encashed and who authorised the payment; P.W.13, Mohammad Kishwar Kayani, a Handwriting Expert, attached to F.I.A., who has inter alia deposed that Exh.4/B advice note was in fact written in the handwriting of the appellant. He also deposed as to the non genuineness of signatures on Exhs.4/A and 4/B; P.W.14, Shakil Ahmed, Exh.17, a salesman in cars dealings on whose alleged identification of Ashfaq Ali's signature, the appellant had identified the latter for payment against Exh .4/ A . The appellant examined D .W .1 Athar Hamid, a Senior Vice-President in the Head Office of U.B.L., who described the procedure for encashing a bank draft and also the procedure as to the testing of secret code number of an advice note. procedure Shakeel Ahmed, Exh.Nil, who was already examined as P.W.14 was also examined as defence witness.

4. The appellant in his 342, Cr.P.C. statement has denied the factum of having committed the above offences. 5(a). In support of the above submission, Mr. Usman Ghani Rashid, learned counsel for the appellant, has vehemently urged that the prosecution has failed to prove the case against the appellant inasmuch as no link between the appellant and the main accused Ashfaq Ali who had encashed Exh.41A has been proved. 5(b). On the other hand Mr. S. Murtaza Hussain, learned counsel for the State, has vehemently contended that the prosecution has been able to prove the case beyond reasonable doubt and, therefore, the conviction has been properly recorded. 6(a). Mr. Usman Ghani Rashid, learned counsel for the appellant, in furtherance of his above submission, has referred to the statements of the above witnesses particularly of P.W.9 Parveen Fatima and P.W.11 Mohammad Athar Khan, who had carried out secret testing on the advice note Exh.4/B and who found that the result of the testing tallied with the code number and upon whose report, the bank draft EXh.4/A was encashed by P.W.5 Abdullah Soomar on authorization by P.W.12 Mohammad Farooq Ansari. It has been further urged by him that if the above first two officers would not have given their reports in the affirmative, the draft could not have been encashed. He has also submitted that there is no evidence on record to indicate that the appellant had received any share from the above amount of bank draft. In furtherance of his above submission, he has referred to the case of Naseebullah Khan and another v. The State reported in P L D 1986 Kar. 417, in which a Division Bench of this Court while allowing an appeal against the conviction of the Special Court (Offences in Banks) held that in a case in which the accused was not named in the F.I.R., he could not have been convicted for misappropriation of the bank money or for abetment without having cogent evidence to show link between the accused or any conspiracy between them to misappropriate the money. The conviction was set aside. 6(b). On the other hand Mr. Murtaza Hussain, learned counsel for the State, has given the citation of the following cases:- (i) The State v. Abu Raza, P L D 1959 SC 309, wherein the Hon'ble Supreme Court while allowing an acquittal appeal in respect of misappropriation, has observed as follows:- "While on the evidence it cannot be said that the ultimate intention of the respondent was to misappropriate the whole amount, the evidence contains clear indications that some improper motive underlay the deal and the irregularities with which it was accompanied. In a case like this it is not, and has never been understood to be, the duty of the prosecution to prove by evidence that the money received by the accused was actually converted to his own use; it is sufficient if the Government was deprived of the use of the money for an unexplained period, it being presumed in such a case that the accused had applied this money to his personal needs." (ii) Additional Advocate-General, West Pakistan and ex officio Public Prosecutor, Karachi v. Tahir Beg P L D 1965 (W.P.) Kar.

155. In the above case a Division Bench of the erstwhile High Court of West Pakistan at Karachi allowing an acquittal appeal of the State, observed as under:- "The statement of law made by the learned Judge in the opening part of this passage is, in our opinion, not well-founded. We do not agree that misappropriated, in fact, must be proved before a conviction for the offence of criminal breach of trust can take place. If in the circumstances of the case or by long lapse of time as it is the case here the prosecution is not able to trace the misappropriated property or to produce the evidence of the manner in which the misappropriation or conversion in fact took place, it cannot be said that the prosecution must fail even if there is other evidence which leads to the conclusion that the property which was entrusted to the accused or over which he had domain and which was found missing, was misappropriated by him." 7(a). From the above cited cases, it is evident that in the case relied upon by Mr. Usman Ghani Rashid, learned counsel for the appellant, the appellant was not even named in the F.I.R. and he was implicated at a subsequent stage. In that context, the learned Judges of the Division Bench made the above observation referred to hereinabove. In the present case admittedly the complaint was made inter alia against the present appellant and the part played by him was also clearly stated in the complaint which is the foundation of the charge reproduced hereinabove. The above case is, therefore, distinguishable. 7(b). The other two cases referred to hereinabove, indicate that the Court will have to view the facts of each case keeping in view the background of the case and the factum what better evidence the prosecution could have produced in the case. In the instant case, it is true that the bank draft Ex.4/A would not have been encashed unless the same would have been cleared by P.Ws. 9 and 11 Parveen Fatima and Mohammad Athar Khan by carrying out secret testing on Exh.4/B and advice note but at the same it cannot be denied that the bank draft would not have been encashed if the appellant would not have identified Ashfaq Ali and would not have reported that the signatures of the two bank officers on the above bank draft tallied with the genuine signatures on the record of the U.B.L. Inter continental Branch. It may again be pointed out that the appellant had not only identified Ashfaq Ali but also apparently deliberately reported that the signatures on the bank draft of the two officers were genuine. It may be observed that P.W.12 Mohammad Farooq Ansari had entrusted the work of verification of the two signatures on the bank draft to the appellant as a part of his duty. We have compared the two alleged signatures of the two bank officers on the bank draft in question with those admitted signatures Exhs.5/A and 6/A of P.Ws. 2 and 3 Mohammad Masood and Matlooq Hussain and we find that there are glaring differences and unless a person would have some ulterior motive, he would not have verified the correctness of the two signatures on the bank draft Exh.4/A. In our view, the learned trial Judge has rightly drawn an inference that the appellant was involved in the above encashment of the forged bank draft and thereby deprived the bank from a sum of Rs.1,42,

000. Though there is no direct evidence to the effect that the appellant had shared any portion of the above amount, but from the facts which are stated hereinabove, an inference can be drawn that he must have shared the above amount. The explanation of the appellant that he had identified Ashfaq Ali the payee, on the identification of P.W. Shakeel Ahmed, in our view, is patently false if it is to be viewed in context to the above factum that the appellant had apparently deliberately verified the signatures of the two officers on Exh.4/A, bank draft after comparing them with the genuine signatures Exhs.5/A and 6/A as genuine though apparently they are different. We are also inclined to hold that the appellant cannot rely upon the fact that the two officers P.Ws. 9 and 11 Parveen Fatima and Mohammad Athar Khan have given their report on the advice Exh.4/B in the affirmative after carrying out secret testing of the code number. The above factum cannot negate the part played by the appellant, there is no doubt that he has participated/abetted in the commission of the above offences.

8. We may also observe that according to the handwriting expert, P.W.13 Mohammad Kishwar Kayani, even the advice note about the bank draft Exh.4/B is in the handwriting of the appellant. The appellant's counsel had not cross-examined the above witnesses to challenge the correctness of the above statement. The appellant was also put a question about the above statement of the handwriting expert in his 342 statement. However, Mr. Usman Ghani Rashid, learned counsel for the appellant, has submitted that since this was not included in the charge, this factum cannot be relied upon. In our view, even if we were to exclude the above portion of the handwriting expert's statement, the other evidence on record referred to hereinabove is sufficient to maintain the conviction.

9. For the aforesaid reasons, the appeal is dismissed. M.Y.H./A-274/K Appeal dismissed.