P L D 1954 Lahore 210 (PLP)

Kamal Din P. W., who had been cross‑examined before and after the charge, was recalled as a witness by the accused, and a copy of his statement to the police was applied for but not supplied on the ground that the copy of a witness's statement to the police can be given to the accused only when the witness is called for the prosecution, Held, that the witness did not cease to be a witness for the prosecution when he was called for further examination in defence any more than when he was called by the accused for further cross‑examination after the charge. Section 256, Cr. P. C. enables the accused to recall prosecution witnesses for further cross‑examination and section 257, Cr. P. C., enables the accused, after he has entered upon his defence, to call upon the Magistrate to issue process for compelling the attendance of any witness for the purpose of examination or cross‑examination. The proviso to the section is that when the accused has cross‑examined or had the opportunity of cross‑examining any witness after the charge, the attendance of such witness shall not be compelled under this section unless the Magistrate is satisfied that it is necessary for the purpose. Witnesses for defence are called under section 257, Cr. P. C. and this section includes prosecution as well as other witnesses. Therefore a copy of Kamal Din's statement should have been supplied to the accused. If the accused is not given the copy of a witness's police statement then the statement on which he was sought to be contradicted by his police statement should be excluded from consideration. A I R 1936 Bom. 154 distinguished. Kh. Abdur Rahim, for Akhtar Ali, Appellant. Jamil Husain Rizvi, for Muhammad Saeed Appellant. Fatal‑ud‑Din ,Joshua, for the Advocate‑General, for Respondent. MUHAMMAD JAN, J.‑Muhammad Saeed son of Muhammad Husain, resident of Shahdara, Lahore, was tried on charges under sections 420 and 471 P. P. C. and Akhtar Ali son of Babu Allah Ditta, resident of Mcleod Road, Lahore, was tried for abetting Muhammad Saeed and was tried on the same charges read with section 114 P. P. C. Muhammad Saeed was convicted under sections 420 and 471 P. P. C. He was sentenced to five years' rigorous imprisonment on each count and a fine of Rs. 5,

700. Akhtar Ali was convicted under sections 420 and 471 read with section 114 P. P. C. He was also sentenced to five years' rigorous imprisonment on each count and a fine of Rs. 12,

300. It has not been made clear in the judgment whether the sentences of fine were on one or both the charges. Muhammad Saeed has filed an appeal through Mr. Jamil Husain Rizvi and Akhtar Ali through Kh. Abdur Rahim. Both appeals being intimately connected will be disposed of by this order. The prosecution case is as follows. A firm known as Chaudhri Brothers Limited. Government Contractors. Lahore, had an account in the Central Co‑operative Bank, Lahore. It was operated upon by Ch. Fazal Elahi and Ch. Abdul Ghani, who are brothers. They were supplied with a cheque book, Exhibit P. A. On 20th December 1949 it was brought to the notice of Ch. Fazal Elahi that cheque No. 352934, Exhibit P. N., was missing with its counterfoil from the cheque book. Ch. Fazal Elahi is said to have informed the Central Co‑operative Bank by a letter, of which Exhibit P. J., dated 20th December 1949 is a carbon copy ; the receipt of that letter was not admitted by the Bank. On 6th January 1950, Ch. Fazal Elahi sent a clerk of his firm, named Muhammad Sarwar, to the Bank with the pass‑book to have it posted up‑to‑date. He delivered the pass‑book to Muhammad Ibrahim, Senior Accountant of the Bank, who told Muhammad Sarwar to call for it in the afternoon. When Muhammad Sarwar went there in the afternoon he was told that the pass‑book was lost and he should come and take its duplicate on the next day. Muhammad Srawar went on the next day, 7th January 1950, and brought the duplicate pass‑book which on being examined was found to contain a debit entry of Rs. 18,

000. The amount was shown to have been drawn by the lost cheque No. 352934 which was dated 20th December 1949 and purported to have been drawn by Ch. Fazal Elahi in favour of Muhammad Sarwar. It bore a signature purporting to be that of Ch. Fazal Elahi on the face of it and an endorsement on its back that the amount should be paid to Muhammad Sarwar whose signature on the back of the cheque purported to have been attested by Ch. Fazal Elahi. The cheque is Exhibit P. N. It was presented to Kamal Din, Head Cashier, Central Co‑operative Bank, Lahore, by a person who has been identified by Kamal Din (P. W. 5) as Muhammad Saeed appellant. He was accompanied by Akhtar Ali appellant who was known to Kamal Din and who said that Muhammad Saeed appellant was the payee Muhammad Sarwar. The cheque was then passed on to Muhammad Ibrahim, Senior Accountant of the Central Co‑operative Bank, who asked Muhammad Saeed to sign the cheque in his presence. Muhammad Saeed, who has been identified by Muhammad Ibrahim (P. W. 6), signed his name as Muhammad Sarwar. Akhtar Ali appellant, who was known to Muhammad Ibrahim, declared that Muhammad Saeed was Muhammad Sarwar, an employee of the firm Chaudhry Brothers Limited, and that Akhtar Ali, who was also an employee of that firm, bad come with Muhammad Sarwar to receive payment. As the cheque was payable to bearer and the signature of the endorsee, Muhammad Sarwar, purported to have been attested by the drawer, Ch. Fazal Elahi, the Accountant did not consider it necessary to take any further precautions or to ask Akhtar Ali to sign the cheque as an identifier. The sum of Rs. 18,000 was paid to the appellants who then went to the State Bank of Pakistan and changed the money into one hundred rupee currency notes. Then Akhtar Ali paid Rs. 5,700 to Muhammad Saeed and kept the balance for himself. A few days later, i.e. on 29th December 1949, Muhammad Saeed deposited Rs.5,000 in his current account with the Shahdara Branch of the Co‑operative Bank. According to Muhammad Tufail (P. W. 3), Accountant of this branch of the Bank, Muhammad Saeed bad a credit balance of Re. 1 in the Bank on that day. Akhtar Ali appellant paid Rs. 370 to Mistri Muhammad Din (P. W. 8) on account of certain purchases made from him in the beginning of January. On. 18th January 1950 he took the police to the shop of Mistri Muhammad Din who produced the money paid to him by Akhtar Ali. This recovery was made by Fazal Ahmad Sub‑Inspector (P. W. 20) in the presence of Nur Din (P. W. 16) and Ch. Fazal Elahi (P. W. 1). The relevant recovery memo is Exhibit P.R. On the same day the police recovered a sum of Rs. 6,200 on information given by Akhtar Ali appellant from the possession of his mother. The recovery memo is Exhibit P. S., which was prepared by Fazal Ahmad Sub‑Inspector and attested by Ch. Fazal Elahi (P. W. 1) and Muhammad Rafiq (P. W. 14). Akhtar Ali owed a sum of Rs. 100 to Manzur Elahi (P. W. 4) which he repaid towards the end of December 1949. Akhtar Ali gave information about Manzur Ealhi and he banded over to the police the sum of Rs. 100 paid to him by Akhtar Ali appellant on 18th January 1950 vide Exhibit P. T. On 11th January 1950 Akhtar Ali appellant paid Rs. 100 to Muhammad Shafi (P. W. 7) which was returned by him to the police vide Exhibit P. U. On 19th January 1950 Sayyed Ejaz Husain Pleader (P. W. 15) produced Rs. 200 which, he said, had been paid to him by Akhtar Ali appellant. Asghar Ali (P. W. 9), brother‑in‑law of Akhtar Ali appellant, deposed that Akhtar Ali had given him Rs. 500 on 23rd December 1949, i.e. three days after the withdrawal of the money from the Bank and Rs. 3,000 on 4th January 1950. He produced Rs. 1,100 out of this money and handed it over to the police on 27th January 1950 in the presence of Mukhtar Beg (P. W. 13). Thus within a month of the encashment of the cheque Akhtar Ali disbursed no less than Rs. 10,470 and Muhammad Saeed deposited Rs. 5,000 in his current account about a week after the encashment. On 1st February 1950 both the appellants made confessions before Mr. Aziz‑ul‑Haq Masood, Magistrate First Class, Lahore. These statements were made one after the other and are marked Exhs. P. D. D. and P. E. E. Akhtar Ali in his statement, Exh. P. D. D. confessed that he had stolen the cheque in question and after getting it filled by Khurshid Ahmad Butt he and Muhammad Saeed appellants had cashed it from the Central Co‑operative Bank and then changed the money into one hundred rupee notes out of which he gave Rs. 5,700 to Muhammad Saeed appellant. He said he was a clerk in the office of Chaudhri Brothers Limited and worked on the same table as the Accountant. The cheque book of the firm used to be lying on the table and he stole one cheque from it. He then consulted Muhammad Saeed regarding the withdrawal of money from the Bank and he said that he would consult a friend of his, named Khurshid Butt. Accordingly Muhammad Saeed consulted Khurshid Butt in Akhtar Ali's presence. He at first declined to help but on being (offered?) a share in the money he made the entries in the cheque. After that Akhtar Ali and Muhammad Saeed went to the Bank and Muhammad Saeed presented the cheque at the counter. Akhtar Ali waited in the Manager's room. The Manager passed the cheque and Akhtar Ali informed Muhammad Saeed who then received payment of Rs. 18,000 from the cashier. Then they went to the State Bank and had the money changed into one hundred rupee currency notes. Akhtar Ali paid Muhammad Saeed Rs. 5,700 as his share out of which Rs. 200 was to be paid to Khurshid Butt. Out of his own share Akhtar Ali paid Rs. 500 to his brother‑in‑law, who is a film producer, and again paid him Rs. 3,000 for investment. His brother‑in‑law did not know that he had obtained the money by fraud. After that he deposited Rs. 6,200 with his mother saying that it belonged to a friend of his and paid Rs. 370 to Mistri Muhammad Din whom he owed that amount. He also paid Rs. 125 to a tailor and lent Rs. 100 to Shafi shopkeeper. He returned Rs. 200 to Ijaz which he had borrowed from him and also bought some clothes. Muhammad Saeed stated in his confession that Akhtar Ali gave him the cheque for being cashed. He said he did not know how to draw the money. Khurshid Butt then filled in the cheque for them and Akhtar Ali and he took the cheque to the Bank. Akhtar Ali took the money and bad it changed in another Bank. He paid him Rs. 5,700 but he did not know that the money was obtained fraudulently nor did he know that the cheque was forged. He deposited Rs. 5,000 in the Shahdara Branch of the Bank and spent the rust in buying clothes and defraying other expenses. The statement of Muhammad Saeed that he did not know that the money was obtai6ed by fraud or that the cheque was forged is obviously untrue in view of his statement that he was shown a cheque by Akhtar Ali who suggested that they should draw money on that cheque and that as he did not know how to draw money on a cheque Khurshid Butt forged the cheque, in his presence. The statement of Akhtar Ali is self‑incriminating and ft tars Muhammad Saeed with the same brush as himself. It can be taken into consideration not only against Akhtar Ali but against Muhammad Saeed also ; and similarly the statement of Muhammad Saeed can be taken into consideration against him as well as Akhtar Ali. On 6th October 1950 Muhammad Saeed made an application Exh. P. F., in the trial Court saying that out of the money which he had received as his share he had deposited Rs. 5,000 in the Shahdara Branch of the Central Co‑operative Bank Limited in his Savings Bank Account, that the money was still lying in that account and the Bank may be directed to pay that money, i.e. Rs. 5,000, direct to the complainant in the case. On the next day, Muhammad Saeed made a statement on oath before the trial Magistrate that he had no objection to the amount shown to his credit in the pass‑book which was in Court being paid by the Central Co‑operative Bank Shahdara to Ch. Fazal Elahi complainant. In accordance with this statement, the Court passed an order that the money should be paid to Ch. Fazal Elahi complainant. This is not only a very strong corroboration of Muhammad Saeed's confession, Exh. P. E, E., but is itself a confession of his guilt. The confessions, Exhs. P. D. D. and P. E. E. were recorded by Mr. Aziz‑ul‑Haq Masood, Magistrate First Class, on 1st February 1950. He has deposed that he recorded the statements of Akhtar Ali and Muhammad Saeed after asking the police to withdraw from the room and after having the handcuffs of the accused removed. They were examined one after the other and whilst one was being examined the other remained outside. He first examined Akhtar Ali and put him the questions marked Exh. P. D. D./1. After questioning him, he gave Akhtar Ali time to think over the matter and then after satisfying himself that he wanted to make a confession voluntarily he proceeded to record the statement, Exh. P. D. D. It was read out to Akhtar Ali, he admitted it to be correct and signed it. After that the Magistrate signed the certificate, Exh. P: D. D./2, showing that he bad explained to Akhtar Ali that he was under no obligation to make a confession and that if he did so the confession may be used as evidence against him and that he believed that Akhtar Ali had made the statement voluntarily. The same procedure was observed by the witness in recording the statement of Muhammad Saeed, Exh. P. E. E. The questions put to him are marked Exh. P. E. E./1 and the certificate is marked Exh. P. E E./2. According to the witness the statement of Akhtar Ali was completed at 5‑50 p.m. and then the statement of Muhammad Saeed was recorded. The witness was not asked whether the statement was recorded in Court or in his house nor was he asked why were the statements recorded after Court hours. These points do not appear to have been raised even in the trial Court. The judgment, at least, is silent on them. The learned counsel for the appellants have not been able to show that there is any statutory bar to confessions being recorded after Court hours. Ordinarily it is desirable that such confessions should be recorded by Magistrates during Court hours but in certain cases it may be necessary to depart from this general rule. The necessity for doing so in this case has neither been shown by the prosecution nor challenged by the accused and I cannot hold that the confessions are inadmissible merely because they were recorded after the usual working hours. The other objection to the confessions is that the accused were kept in police custody after their confessions till the next day. Mr. Aziz‑ul‑Haq Masood, Magistrate, has deposed that after completing the confes sions he ordered that the accused should be sent to judicial lock up. Fazal Ahmad Sub‑Inspector (P. W. 20) has deposed that they could not be sent there as it had become too late for them to be admitted to the jail. It may be noted here that an applica tion for bail was made on behalf of the accused on the same day as the confessions were recorded. The report of the police on that application is that all the property had been recovered from the accused and they may be sent to the judicial lock‑up‑ Mr. Ghulam Husain, Magistrate First Class, to whom the application was made, passed an order on the same day, i.e. 1st February 1950, that both the accused may be released on bail on furnishing security in the sum of Rs. 3,000 each. This order was presumably passed during Court hours before the confessions were recorded. The reason for their not being out of police custody when they made their confessions must, therefore, be attributed to the inability of the accused to find sureties on that date. It is apparent that the police were not anxious to keep them in their custody before or after the making of the confessions. On the next day, i.e. 2nd February 1950, the accused furnished security and were released on bail. If the confessions had been made owing to coercion of the police, the accused were at liberty to make this known to the Magistrate who had recorded their confessions or some other authority from the day after the confessions when they were released on bail. They did not do so for two long years after which they made applications in the Court of the trial Magistrate, on 1st February 1952, that the case against them was false, that Ch. Fazal Elahi (P. W. 1) was a man of influence, that Ch. Sikandar Hayat D. S. P., who had been transferred to Lyallpur but was formerly stationed at Lahore, was married to the sister of Ch. Fazal Elahi and that he had persuaded them during one of his visits to the police post to make confessions before a Magistrate on the assurance that he would then get them off by dint of his influence and that on this assurance they had made the confessions which should not be used as evidence against them. Akhtar Ali added in his application that Ch. Sikandar Hayat had asked them to confess in the presence of the investigat ing police officer. The investigating police officer, Ch. Fazal Ahmad (P. W. 20). was questioned on the subject. He said he did not know whether Ch. Fazal Elahi was related to Ch. Sikandar Hayat D. S. P. He had never taken the accused to Ch. Sikandar Hayat and, so far as he remembered, Ch. Sikandar Hayat never came to him during the investigation of this case. Muhammad Rafiq (P. W. 14). a servant in the shop of one Chaudhri and a resident of Ram Gali appeared as a witness to the recovery of Rs. 6,200 and some new clothes from the house of Akhtar Ali appellant. The recovery memo. Exh. P. S. was signed by him. In his cross‑examination before the charge on 6th June 1951, he was asked nothing about the interview of Ch. Sikandar Hayat with the accused. He was, however, recalled for cross‑examination after some months and no question was put to him relating to the recovery but he was asked whether the accused were taken by the police to Ch. Sikandar Hayat D. S. P. He denied that but conceded that the D. S. P. had met the accused in the police station and had talked to them in his presence. In the first place the accused said that the D. S. P. had met them in the police post and Muhammad Rafiq said that he had met them in the police station, which is different place, and secondly the witness did not say when the D. S. P. met the accused and what business the witness had for being in the police station at that time. If there were any truth in the allegation of inducement by Ch. Sikandar Hayat the accused should have put him in the witness‑box and examined him on the point. They did not do so and their statement that Ch. Sikandar Hayat told them that he would get them off after they had confessed their guilt before a Magistrate was too absurd to be believed. Muhammad Saeed is a business man and Akhtar Ali is a clerk. They could not have believed such a ridiculous statement. It has not been proved that Ch Sikandar Hayat D. S. P. is related to Ch. Fazal Elahi (P. W. 1) and I reject the statement of the accused that they were induced by Ch. Sikandar Hayat to confess their guilt. In my opinion, the confessions of the accused were voluntarily made and are substantially true, except the statement of Muhammad Saeed that he did not know that the cheque was forged or that the money was drawn from the Bank by fraud. This portion can be ignored because his own statement shows that it is absolutely false. Furthermore, if a confession is partly inculpatory and partly exculpatory, the exculpatory part can be ignored if there is evidence to show that it is false. On being questioned by the trial Court under section 342, Cr. P. C., the accused repeated that their confessions were made under duress. I do not believe these statements and hold that the confessions were voluntary. But, as they have been retracted, it has to be seen whether they are corroborated in some material particulars or not. In my opinion, they have been amply corroborated by the evidence of recoveries. It was argued on behalf of Muhammad Saeed appellant that when Kamal Din P. W., who had been cross‑examined before and after the charge, was recalled as a witness by the accused, a copy of his statement to the police was applied for but not supplied on the ground that the copy of a witness's statement to the police can be given to the accused only when the witness is called for the prosecution. Reliance was placed by the trial Court on A I R 1936 Born. 154 where it was held that when a witness is called by the defence or by the Court his statement to the police cannot be used either by the prosecution or by, the defence. In my opinion, the learned trial Magistrate has been misled by this judgment. In that case the witness whose statement was applied for had not been called by the prosecution at all. In this case Kamal Din was examined by the prosecution and he did not . cease to be a witness for the prosecution when he was called for further examination in defence any more than when he was called by the accused for further cross‑examination after the charge. Section 256, Cr. P. C., enables the accused to recall prosecution witnesses for further cross‑examination and section

257. Cr. P. C., enables the accused, after he has entered upon his defence, to call upon the Magistrate to issue process for compelling the attendance of any witness for the purpose of examination or cross‑examination. The proviso to the section is that when the accused has cross‑examined or had the opportunity of cross-examining any witness after the charge, the attendance of such witness shall not be compelled under this section unless the Magistrate is satisfied that it is necessary for the purpose Witnesses for defence are called under section 257, Cr. P. C., and this section includes prosecution as well as other witnesses. In my opinion a copy of Kamal Din's statement should have been supplied to Muhammad Saeed appellant. I asked the learned counsel for Muhammad Saeed to state what was the effect of the refusal to grant this copy. He has cited Gurditta Shah v. Emperor (104 I C 444.), Naga Yon v. Emperor (46 I C 406.), Maganlal Radhakishan v. Emperor (A I R 1946 Nag. 173 (181).) and Ghudo Ramadhar v. Emperor (A I R 1945 Nag. 143.) to support his contention that if the accused is not given the copy of a witness's police statement then the statement on which he was sought to be contradicted by his police statement should be excluded from consideration. The point on which Kamal Din was being questioned when his statement to the police was asked for was whether he knew Muhammad Saeed before he came to the Bank and posed as Muhammad Sarwar. The witness replied that he knew Muhammad Saeed accused before that but only by face and not by name. He further said that he had mentioned Muhammad Saeed's name in his police statement but did not remember on which date he had made the statement to the police. The point that was sought to be made by this cross‑examination was that if the witness knew Muhammad Saeed before 22nd December 1949 he should not have been deceived into believing that Muhammad Saeed was Muhammad Sarwar. The witness had said that he knew him by face and not by name : therefore, when he gave his name as Muhammad Sarwar on 22nd December 1949 the witness bad no reason to think he was impersonating. The case against the accused was registered on 16th January 1950, more than three weeks after the presentation of the cheque and the statement to the police under section 161, Cr. P. C., could have been made only after the registration of the case. Many of the recoveries had been made before this statement and Kamal Din P. W. must have come to know the name of Muhammad Saeed before his statement was recorded‑:by the police. The statement of Kamal Din that he had mentioned the name of Muhammad Saeed in his statement even if it were contradicted by his police statement or is excluded from con sideration would not help Muhammad Saeed at all. The reason for the delay in the registration of the case has been explained by Ch. Fazal Elahi (P. W. 1) who said that he came to know that Rs. 18,000 had been withdrawn from the Bank by presenta tion of the stolen cheque on 9th January 1950 and be immediately wrote a letter, Exh. P. L, to the Bank. The reply to this letter was received from the Bank on 16th January 1950 in which they denied responsibility for the loss of the money. The matter was reported to the police that very day and the case was registered. It was urged on behalf of Muhammad Saeed that the prosecution had not proved that the signatures of Muhammad Sarwar on the back of the cheque were in the handwriting of Muhammad Saeed and that M. A. Nomani (D. W. 8) has stated that the signatures did not appear to him to be in the handwriting of Muhammad Saeed. This is only a negative opinion. There is the direct evidence of Kamal Din and Muhammad Ibrahim P. Ws. that Muhammad Saeed signed the cheque in the name of Muhammad Sarwar in their presence and Akhtar Ali identified him as Muhammad Sarwar. I have no reason to disbelieve these witnesses and I am satisfied that it was Muhammad Saeed who singed the cheque as Muhammad Sarwar. It was contended by the learned counsel for both the appellants that the money recovered from the accused could have been their own, There is no, force in this contention in view of the statement made by the accused Exh. P. D. D. and Exh. P. E. E., which I believe to be true. I am satisfied from the evidence on record that the case for the prosecution has been satisfactorily established and the offence has been brought home to both the appellants. They have been rightly convicted and sentenced. The money recovered from various sources has been ordered to be paid to the Central Co operative Bank, Lahore. There is no force in these appeals and they are hereby dismissed. A.H. Appeals dismissed.