P L D 1988 Karachi 539 (PLP)

AJMAL MIAN, J.‑‑ This appeal is directed against the judgment dated 31‑7‑1986 passed by the Presiding Officer, Special Court (Offences in Banks), Karachi, (hereinafter referred to as the Presiding Officer), in Case No.303 of 1984, acquitting co‑accused Suleman Ali Khan, Aman Ali Khan and S. Akthar Ali and convicting the present appellant under section 403, P.P.C. and sentencing him to suffer two years R.I. and to pay a fine of rupees two lacs and in default to suffer further R.I. for six months and also convicting co‑accused Ashfaq,Ahmed under section 403, P.P.C. read with section 109 F.P.C. and sentencing him to suffer R.I. for two years and to pay a fine of rupees two lacs and in default of payment of fine to suffer further R.I. for six months. 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 P.W.1 M. Ismail Ghanchi, the then Manager of M/s. Habib Bank Limited, Karimabad Branch, Federal 'B' Area Karachi, (hereinafter referred to as the Bank), addressed a complaint by his letter dated 19‑11=1984 to the Deputy Director Federal Investigation Agency (B.C.), Qatnar House, Karachi, Exh.2/K about the commission of fraud in respect of a cheque of Rs.95,500 issued by M/s. Taj Company Limited in the name of Wahida Taj drawn on M/s. National Bank of Pakistan, SITE Branch, Karachi. The above case was investigated by P.Ws. Muhammad Hashim Qureshi and S. Habib Ali, Inspectors F.I.A., in pursuance whereof the challan was submitted before the Presiding Officer, who first framed the charge on 8‑4‑1985 against the appellant and two other co‑accused namely Suleman Ali Khan and Aman Ali Khan but he again framed the charge. against the appellant and four other co‑accused. The above charge reads as follows‑.‑ "I, Justice (Rtd.) Zulfikar C. Valiani, Presiding Officer, Special Court (Banks), Karachi constituted under Ordinance IX of 1984, do hereby charge you accused (i) Muhammad Yousaf Zai, (ii) Suleman Ali Khan, (iii) Aman Ali Khan, (iv) Ashfaq Ahmed, and (v) Syed Akthar Ali as follows:‑ That on 3rd September, 1984 you accused Muhammad Yousuf Zai Ex‑employee of Taj and Company posing yourself as Rafiq Khan came to Karimabad Branch of H.B.L. alongwith a lady whom you identified as Wahida Taj and opened joint account No.1238 in your name as Rafiq Khan , and in the name of Wahida Taj with the initial deposit of Rs.500 and also deposited a Cheque of Rs.95,500 bearing No.A/22‑16604, dated 29th August, 1984 drawn on N.B.P. SITE Branch, Karachi in the name of Mat. Wahida Taj in the said account for clearance and. thereafter you withdrew the entire amount of Rs.95,500 from the said account by five (5) cheques and criminally mis appropriated the said amount to which you had no legal right with the active connivance and abetment of co‑accused Ashfaq Ahmed, Syed Akthar Ali, Suleman Ali Khan and Aman Ali Khan and thus committed offence punishable under section 403, P.P.C. read with section 109, P.P.C. within my cognizance. And, therefore, I hereby direct that you all the accused persons be tried by this Court on the aforesaid charge." The appellant and the other two co‑accused Suleman Ali Khan and Aman Ali Khan pleaded not guilty, whereas co‑accused Ashfaq Ahmed and Syed Akhtar Ali were not present and, therefore, on their behalf it was presumed that they had pleaded not guilty.

3. The prosecution in support of the case examined P.W. 1 Muhammad Ismail Ghanchi (Exh.2), the Manager of the Bank who lodged the above report Exh.2/K. He produced account opening form as Exh.2/A and signatures thereon as ‑Exhs. A(2) and A(1), specimen signatures Exh.2/B, deposit slip of Rs.500 Exh.2/C, application for issuance of Cheque Book Exh.2/D, the slip for the deposit of the above cheque of Rs.95,500 Exh.2/E, photostat copy of the above cheque of Rs.95,500 Exh.2/F, guarantee letter signed by the appellant and alleged Mst. Wahida Taj Exh.2/G, cheques drawn by the appellant Exhs. 2/H, 2/H‑1; 2/H‑2, 2/H‑3 and 2/H‑4, M/s. Taj Company's letter dated 11‑11‑1984 addressed to the Bank Exh.2/J stating therein that above cheque Exh.2/F had been encashed fraudulently by some other Mst. Wahida Taj to whom the cheque was not issued and, therefore, they claimed reimbursement and the above report addressed by the above P.W.1 to the‑ Deputy Director F.I.A. Exh.2/K, P.W.2 Muhammad Farooq who was working as an officer in the Karimabad Branch of the Bank at the relevant time and in whose presence the appellant as Rafiq Khan and alleged hat. Wahida Taj had signed the account opening form and deposited inter alia the cheque Exh.2/F and withdrew the cheque amount through the above Exhs. 2/H to 2/H‑4, P.W.3 Tahir Hussain Rizvi (Exh.4), the Manager of National Bank of Pakistan, SITE Branch who cleared the cheque Exh.2/F upon receipt of the same from the Bank, P.W.4 Muhammad Akram Rathore (Exh.5) the Manager of M/s. Taj Company Limited, who produced the receipt of Rs.1,00,Q00 deposited by one Mst. Wahida Taj from Rawalpindi against receipt No.1805 with his Company for a period of three years, Exh.5/A, photostat copy of Identity Card of Mst. Wahida Taj Exh.5/B, Mst. Wahida Taj s letter dated 7‑8‑1984 requesting for refund of the amount of loan Exh.5/C, order of the Managing Director for the premature refund Exh.5/D, the cheque through which the above refund was effected Exh.2/F, letter of Mst. Wahida Taj from Rawalpindi stating therein that she had not received the amount Exh.5/C, M/s. Taj Company's letter dated 10‑111‑1984 to M/s National Bank of Pakistan SITE Branch for stopping th8 Osyment Exh.5/F, its reply Exh.5/G, M/s. Taj Company's letter to tNe Bank Exh.2/J etc., P.W.5 (Exh.6) Muhammad Hashim Qureshi, inspector F.I.A. who submitted charge‑sheet in respect of the case in the Court of Presiding Officer Ex.h.6/A, P.W.6 (Exh.7) Mrs. Yasmeen who introduced the appellant and alleged Mst. Wahida Taj to the Bank for opening the account, P.W.7(Exh.8) S. Habib Ali an Inspector in F.I.A. ;oho investigated the case and arrested accused Yousuf Zai, Suleman Ali Khan and Aman Ali Khan and got the identification ,eat of the accused by A.C.M. NO.VI1 at Karachi Exh.8/B. He also produced Mashirnama of seizure of documents Exh.8/C and Exh.8/D from the Bank and Taj Company Ltd., and P.W.8 (Exh.9) Mst. Wahida Taj wife of Taj Muhammad of Rawalpindi, whose cheque was intercepted and encashed. The learned Presiding Officer after hearing the parties on the basis of the above evidence passed the judgment under appeal in the above terms.

4. In support of the above appeal, Mr. Azizur Rehman learned counsel for the appellant has urged as follows: (i) That the identification test is not reliable. (ii)That when the charge was framed some of the accused were not present and, therefore, it vitiated the trial. (iii) That the specimen signatures of the appellant obtained by the Investigating Officer were not referred to handwriting expert and that it was not proved that factually the appellant had signed the account opening form or the cheques which were drawn (iv) That the prosecution failed to bring any material on record to establish the link between the appellant and co‑accused Ashfaq and the factum that the latter had handed over the cheque Exh.2/F to the appellant. (v) That the appellant was not asked in terms of section 340(2) Cr.P.C. to examine himself on oath and, therefore, the proceedings stood vitiated. On the other hand Mr. Murtaza Hussain, learned counsel for the State has vehemently submitted that the judgment of the learned Presiding Officer is in consonance with law and in consonance with evidence on record.

5. Adverting. to the above first submission of Mr. Azizur Rehman Memon, learned counsel for the appellant that the identification test is not reliable, it may be observed that he has referred to the factum that P. W.6 :Mrs. Yasmeen was unable to identify the appellant in the identification test carried out by the learned A.C.M. VII on 3‑12‑1984. In this behalf it may be pointed out that P.W.6 Mrs. Yasmeen has given a cogent reason for not identifying the appellant, in her cross‑examination, namely, that she was unable to recognise the accused persons or any one of them as they had changed their 'Hulia' and that accused Yousuf Zai at the time of identification test was not wearing glasses and had removed his mustaches. Furthermore, in identification test P.W.2 Muhammad Farooq had identifed the appellant. There seems to be ample evidence on record to prove the factum that the appellant was the person who opened the above account in the Karimabad Branch of the Bank and had deposited the above, cheque Exh.2/F and had withdrawn the above amount through Exhs:2/h to 2/H‑

4. In this behalf reference may again be made to the evidence of P .W .1 M. Ismail Ghanchi the Manager of the branch concerned of the Bank, P.W.2 Muhammad Farooq and P.W.4 Muhammad Akram Rathore the Manager of Taj Company Ltd. in whose presence. and in the presence of P.W.1 the appellant made the extra judicial confession which factum has been even admitted by the appellant by putting a question in the cross‑examination to P.W.4 Muhammad Akram Rathore to the effect that the above extra‑judicial confession was extracted under coercion. We may observe that there is no legal requirement to the effect that there should be an identity test of an accused person. If the eye‑witnesses can identify the accused before the trial Court A that is enough. In the present case the appellant had visited the Karimabad Branch of the Bank not only at the time of opening of the` account but had also visited five times while withdrawing the amount of Exh.2/F through five cheques during the period from 5‑9‑1984 to 17‑9‑1984 whereas the identification parade was held on 3‑12‑1984 and the evidence of the above witness was recorded in December, 1985.

6. As regards the second submission of Mr. Azizur Rehman Memon learned counsel for the appellant that when the charge was framed inter alia accused Ashfaq was not present and, therefore, it vitiated the trial, it may be observed that he has referred to section 242, Cr.P.c. in support of his above submission, which provides that "when the accused appears or is brought before the Magistrate, a formal charge shall be framed relating to the offence of which he is accused and he shall be asked whether he admits that he has committed the offence with which he is charged." In our view, the appellant cannot raise the above plea as admittedly he was present when the charge was framed against him. If any of the accused was not present because of his absconsion, the trial against the appellant would not B be vitiated for the reason that one of the co‑accused, who was absconding, was not present.

7. Reverting to Mr. Azizur Rehman Memon's third submission that the specimen signatures of the appellant obtained by the Investigating, Officer were not referred to the handwriting expert and that it was not proved that factually the appellant had signed the account opening form or the cheques which were drawn, it may be observed that it would have been appropriate if the evidence of the expert on specimen signatures would have been brought on record, but in our view the factum that it was not done in the present case would not affect the result of the case. As observed hereinabove that there is ample evidence on record to prove the factum that the appellant was the person, who opened the account, deposited Exh.2/F and had withdrawn five cheques Exhs. 2/H to 2/H‑4 for the withdrawal of the amount,! the evidence of P.Ws.l, 2, and 4 may again be referred to. P.Ws. 1 and 2 have stated that the appellant .had signed the account opening form in their presence. P.W.2 has also stated that 'the above five cheques drawn were signed by the appellant in his presence.

8. Referring to Mr. Azizur Rehr)an Memon's submission. that the prosecution failed to bring any material on record to establish the link between the appellant and co‑accused Ashfaq and the factum that the latter had handed over the cheque Exh.2/F to the appellant, it may be observed that P.W.4 Muhammad Akram Rathore has deposed that he had entrusted the cheque to co‑accused Ashfaq for dispatching the same by post. .The factum that the cheque Exh.2/F was deposited by the appellant stood proved on the basis of the evidence referred to hereinabove. It has also come on record that the appellant was working in M/s. Taj Company Limited upto 1982 and,. therefore, it can reasonably be inferred that the appellant managed to obtain the cheque from co‑accused Ashfaq who was also an employee of Taj Company Limited.

9. As regards the last submission of Mr. Azizur Rehman Memon learned counsel for the appellant, that the appellant was not asked in terms of section 340(2) Cr.P.C. to examine himself on oath, and, therefore, the proceedings stood vitiated, it may be observed that in support of the above submission he has referred to the case of Faqir Hussain v. The State P L D 1985 Lah. 434, in which a learned Single Judge of the Lahore High Court while construing section 340(2), Cr.P.C. held that subsection (2) of section 340 confers a valuable right on an accused to give evidence in disproof of allegations and. as the accused in the above case was not given this opportunity, there was serious infirmity in the trial warranting ordering of retrial from the stage of the cross‑examination of the accused. It was also held in the above case that in case an accused refuses to make a statement on oath, an adverse inference can be drawn against him. On the other hand Mr. Murtaza Hussain, learned counsel .for the State has referred to the case of Saeedullah alias Bacha v. The State 1988 P Cr. L J 19 Pesh. in which a Division Bench of the Peshawar High Court held that under section 340(2) Cr.P.C. the duty of the Court was only to ask accused if he would enter upon his defence and then leave it to him to elect to appear as a witness or not and no irregularity or illegality was committed by the trial judge in not recording his statement on oath if he was given opportunity which he declined. We may observe that there are 2 or 3 other cases decided by Division Benches of this Court in which the view found favour with the learned Single Judge of the Lahore High Court in the case referred to hereinabove, was taken. .However, the effect of Article 13 of the Constitution has not been considered in any of the decided cases. It may be advantageous to reproduce section 340(2) Cr.P.C. and above Article 13 of the Constitution, which read as follows:‑ "Section 340(2).‑‑ Any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court shall, if he does not plead guilty, give evidence on oath in disproof of the charges or allegations made against him or any person charged or tried together with him at the same trial: Provided that he shall not be asked, and, if asked, shall not be required to answer, any question tending to snow that he has committed or been convicted of any offence other than the offence with which he is charged or for which he is being tried, or is of bad character unless:‑ (i) the proof that he has committed or been convicted of such offence is admissible in evidence to show that he is guilty 'of the offence with which he is charged or for which he is being tried; or ' he has personally or by his pleader asked question. of any witness for the prosecution with a view to establishing his own good character, or has given evidence of his good character; or (iii) he has given evidence against any other person charged with or tried for the same offence." Article 13 of the Constitution. "No person (a) shall be prosecuted or punished for the same offence more than once; or (b) shall, when accused of an offence, be compelled to be a witness against himself." It may be observed that the above subsection (2) of section 340, Cr.P.C. was substituted by Code of Criminal Procedure (Amendment) Ordinance (XII of 1985) Gazetted on 21‑2‑1985, which enjoins any accused person to give evidence on oath in disproof of charges or allegations made against him if he does not plead guilty subject to the proviso and the conditions contained therein, whereas clause (b) of above quoted Article 13 of the Constitution provides that no person shall, when accused of an offence, be compelled to be a witness against himself. We may observe that if an accused person makes a statement on oath under section 340(2), Cr.P.C. he is to be cross‑examined by the prosecutor and in the cross‑examination he is bound to ask him questions which may incriminate him in the commission of the offence, which will in fact amount to compelling him to be a witness against himself, which is prohibited by above clause (b) of Article 13 of the Constitution. It is, therefore, evident that the above section 340(2), Cr.P.C. is inconsistent with clause (b) of Article 13 of the Constitution. We are inclined to hold that in case of any inconsistency between a provision of a Statute and an Article of the Constitution, particularly relating to the Fundamental Rights, the latter shall prevail. In this view of the matter, the factum that the appellant was not called upon by the learned Presiding Officer to make statement on oath in terms of section 340(2), Cr.P.C. is of no consequence.

10. The appeal has no merits and, therefore, it is dismissed. These are the reasons in pursuance of a short order of even date. M.B.A./M‑538/K Appeal dismissed.