1973 PLP 271 (SCMR)

HAMOODUR RAHMAN, C J.‑The petitioner who was at the relevant time a cashier grade II in the P. I. D. C. Sugar Mill at Sarai Naurang, Bannu District, was convicted under section 5 (2) of the Prevention of Corruption Act, 1947, by the Special Judge, (Provincial) and sentenced to 4 years' rigorous imprisonment as also a fine of Rs. 37,000 or in default further rigorous imprison ment for one year. Out of fine a sum of Rs. 36,549.08 has been ordered to be paid over to the Sugar Mill, Sarai Naurang. The case against the petitioner was that he posing himself to be Muhammad Iqbal, Contractor, got a current account opened in that name with the Habib Bank Ltd., Kohat, and then forged a Cheque bearing No. CAZ‑931017, dated 30‑6‑1967 for Rs. 36,549.08, purporting to be issued by the Sugar Mill, Sarai Naurang, in favour of Muhammad Iqbal, Contractor. He presented the cheque at Habib Bank Ltd., Kohat, for crediting the amount to his newly opened account No.

588. Thereafter, the petitioner posing as Muhammad Iqbal withdrew by two cheques dated 19‑7‑1967 and 27‑7‑1967 a total sum of Rs. 36,000 from the said account. The forgery was discovered by the Account Assistant of the Sugar Mills on the 25th of July 1967, while reconciling the account kept in the Mills with the account of the Mills with the Habib Bank Ltd., Sarai Naurang. No corresponding entry regarding the withdrawal of Rs. 36,549.08 was available in the account of the Mills. An enquiry was started and during the course of the enquiry it was revealed that the cheque for Rs.36,549.08 had been deposited by one, Muhammad Iqbal, with the Habib Bank Ltd., at Kohat and then the same Muhammad Iqbal had withdrawn a sum of Rs. 36,000 on two different dates, namely, 19‑7‑1967 and 27‑7‑1967. The second officer of the Habib Bank Ltd. at Kohat was brought to the Sugar Mills premises and shown the personal records of all the employees of the Mills containing their photographs. The second officer of the bank at once identified the petitioner's photograph to be of the person who had posed himself as Muhammad Iqbal. Thereafter, a case was registered under sec tion 409, P. P. C. and section 5(2) of the Prevention of Corruption Act, against the petitioner who was on leave for six days with effect from 24‑7‑1967. He should have reported for duty after the expiration of the leave but as he did not turn up he was suspended on 31st of July 1967. The petitioner remained absconding until 9‑9‑1967 when he moved the Sessions Judge for bail before arrest. During the course of investigation the petitioner was put up for test identification parade on two occasions. On the first occasion the Manager of the Habib Bank at Kohat identified him as Muhammad Iqbal, the person, who had opened the account in his bank and then withdrawn a sum of Rs. 36,000 from that account. In the second identification parade the second officer Iftikhar Ahmad also identified the petitioner as the same person. The documents, including the cheque alleged to have been forged, were sent for examination by the Forensic Expert Labora tories at Peshawar. The expert reported that the signatures of the Manager and the Accountant on the cheque were forged but he could not say as to who had forged their signatures. The documents were again sent to the Forensic Science Laboratory at Lahore. This time the report of the expert at Lahore was that some of the documents, including the cheque, had been prepared in the handwriting of the accused. Relying mainly on the evidence of the expert at Lahore, the Manager and the Second Officer, of the Habib Bank Ltd. at Kohat, the trial Court convicted the petitioner as aforesaid. On appeal the High Court did not attach any importance to the evidence of the expert from Lahore in view of the conflict in the opinions of the two experts and the fact that the expert from Peshawar did not appear for giving evidence, although called; but relying on the other evidence upheld the conviction of the petitioner. The petitioner now seeks special leave to appeal and it is contended on his behalf that since the expert evidence as to the writing on the alleged forged cheque had not been relied upon there was no evidence to prove that the cheque had been forged by the petitioner and, therefore, the charge of criminal mis appropriation must fail. We are unable to agree, because even if the forgery was not proved, it was proved that the petitioner had no business to take a cheque issued in favour of Muhammad Iqbal and to deposit the same in the account which he had opened with the Habib Bank Ltd. at Kohat posing himself to be Muhammad Iqbal and then withdraw Rs. 36,000 from that amount by two cheques drawn by himself. Assuming but not accepting that the cheque was drawn by the Sugar Mills in favour of Muhammad Iqbal, the petitioner clearly misappropriated the amount, which was payable to Muhammad Iqbal, after obtaining possession of the cheque and cashing it himself personating as Muhammad Iqbal. The other points raised as to the possibility of the petitioner being on the same day at Kohat and Sarai Naurang relate only to the appreciation of evidence which is not the function of this e Court except in very special circumstances. No such circumstances have been made out in the present case. The oral evidence on the record sufficiently brought home the essential facts and, therefore, no valid legal objection can be taken to the conviction of the petitioner on this evidence, particularly, in view of the fact that the petitioner has not been convicted for forgery but only convicted under section 5 (2) of the Prevention of Corruption Act, 1947. There is no substance in this petition which is, accordingly, dismissed. Leave ref used.