1985 P Cr (PLP)

Ch. Muhammad Ibrahim for Appellant. Sh. Ehsan Ahmad for the State. Date of hearing: 30th January, 1985. This Criminal Appeal arises from the judgment of learned Special Judge, Central Rawalpindi whereby he on 1‑12‑1984 convicted Sain Das appellant under section 409/468/471, P.P.C. and section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to five years' R.I, on each count and a fine of Rs.3,000 on each count in default whereof six months' R.I. The sentences were ordered to run conse cutively. It was also directed that the fine when realized a sum of Rs.8,000 be paid to Federal Government Urdu Medium School Sialkot, Cantt.

2. The appellant was posted as a Clerk in Federal Government Urdu Medium School Sialkot Cantt. The charge against him was that he alongwith Muhammad Khalid forged Cheque No.E‑27‑433155, withdrew Rs.8,000 and criminally misappropriated the same. He denied the charge and claimed to be tried.

3. To prove its case prosecution examined 10 witnesses. Nazir Ahmad Bajwa P.W.2 stated that on 15‑7‑1980 Sain Dass appellant produced cheque Exh. P.I. for Rs.8,000 before him and that he made payment accordingly. Salah‑ud‑Din P. W. 3 was Head Master of the School at the relevant time. He stated that on 19‑7‑1980 he found that cheque Exh. P.I. had been removed by some one. He wrote a letter to the Manager National Bank of Pakistan, Sialkot Cantt. that he should not make payment on this cheque. The witness stated that on 21‑7‑1980, the appellant told him that one Khalid had encashed the cheque whereupon he alongwith Sain Das approached the Bank Manager who summoned the concerned Clerk who stated that the appellant with another person had produced the cheque and got it encashed. The witness stated that the word "self" on the cheque was not written by him. He stated that he was not competent to issue a cheque for amount exceeding Rs.300. The witness prepared report Exh. P.B. and sent it to the Police for the registration of the case. Iqbal Hussain Clerk National Bank of Pakistan Sialkot Cantt. P.W.5 stated that on 10‑7‑1980, cheque Exh. P.I. was produced before him. On checking, the balance of account was found short and for that reason, he sent cheque to the incharge. The witness further stated that on the asking of the Incharge, Sain Das appellant told that cheque could not be encashed from current account. Ultimately the cheque was returned. On 15‑7‑1980 cheque Exh. P.I. was again produced before him. he checked all the formalities, made entries in the ledger and sent it to Muhammad Bashir Butt P.W. The witness stated that cheque P.I. also bears Account No.1418 which is the number of the current account. Muhammad Bashir Butt P.W.7 stated that the two accounts, one Current No.1418 and other Savings No.5288 of Federal Government Urdu Medium School, Sialkot used to be operated by the Principal and the Head Master respectively. On 10‑7‑1980 cheque Exh. P.I. of Account No.1418 was presented at the counter for payment and the Clerk concerned posted it in Current Account No.1418 and sent to him. When he checked Account `No.1418 he found balance was Rs.300 or 400 so he returned the cheque to the posting clerk for returning it to the person who had brought the same. On 15‑7‑1980 Cheque Exh. P.I. was again presented to the Posting Clerk who gave him (the witness) saying that the cheque was for Rs.8,000 while balance was Rs.300 or Rs.400 so he again checked the Account and found that the cheque was not from Account No.1418 and was of Account No.5288 so he asked the posting clerk as to who had presented the cheque. On this the posting clerk called Sain Das appellant who told him that in fact this, cheque was from Account No.5288 and inadvertantly Account No.1418 was mentioned, so, tie (the witness) changed the Account No. as 5288 arid crossed Account No.1418 and asked the posting clerk to post it. Thereafter the cheque was cashed. The witness further stated that two or three days thereafter the appellant produced Pass Book of Account No.5288 for making up todate entries and gave it to Nazir Ahmad Khan Inquiry Clerk. The appellant accompanied by the clerk came to him and told that the entries of withdrawal of Rs.8,000 was riot made in the Pass Book as this amount was not withdrawn and received by the School. The witness also stated that on 19‑7‑1980 letter from the School was received for stopping payment of cheque Exh. P.I. on the ground that it had been lost. Muhammad Bashir Qureshi handwriting expert P.W.8 stated that he examined questioned English Signature marked A/I, A/2 on both sides of cheque Exh. P.I. and compared the specimen signatures of Sala‑ud‑Din marked B/2 to B/4 L d his routine signatures C to C/2 and specimen signatures of appellant irked D to D/6. He found the signatures on cheque Exh. P1. were forged, The report of the witness is Exh. P.W.8/A. The rest of the evidence is more or less of formal nature.

4. When examined under section 342, Cr.P.C. the appellant denied all incriminating circumstances. He stated that the forgery was committed by the Bank Staff and not by him. In defence he did not produce any witness.

5. The learned counsel for the appellant contended that the prosecution has failed to prove its case beyond reasonable doubt; that there is no evidence of the forgery on the cheque by the appellant; that the prosecution witnesses are not reliable and that the forgery was probably committed by the Bank officials. Conversely the learned counsel for the State has supported the judgment of the trial Court.

6. I have considered the arguments advanced by the learned counsel for the parties with care. As far the conviction of the appellant under section 468, P.P.C., I feel inclined to agree with the learned counsel for the appellant. I find that there is no direct evidence of any forgery by the appellant. No one saw him preparing or signing the cheque Exh. P.I. The Handwriting expert has also not stated that the writing on the cheque was in the hands of the appellant. So far as his convictions under section 471/409, P.P.C. are concerned I find that there is direct evidence as detailed above to the effect that the appellant used the cheque by presenting the same to the Bank officials and got cash of RS.8,

000. P.Ws. 2, 3, 5 and 7 are quite independent witnesses. They have successfully, stood the test of cross‑examination. I do not see any inherent infirmity in their statements. From their statements, the commission of crimes punishable under section 471/409, P.P.C. stands proved beyond reasonable doubt. Instead of explaining the receipt of B Rs.8,000 from the Bank, the appellant rather denied the very factum of the presentation of the cheque and receipt of cash thereof. He has failed to rebut prosecution case and its evidence. For all these reasons, the submissions made by the learned counsel do not hold any water.

7. For what has been stated above, the conviction and sentence of the appellant under section 468, P.P.C. is set aside. The convictions recorded by the trial Court under section 471/409, P.P.C. and section 5(2) of the Prevention of Corruption Act, 1947 and sentences thereunder are maintained. It is however directed that the sentences awarded by the trial Court under section 4711409, P.P.C. and section 5(2) of the Prevention of Corruption Act, 1947 shall run concurrently. It is also directed that the fine when recovered, Rs.8,000 be paid to the Federal Government Urdu Medium School, Sialkot Cantt. With these modifications the appeal is dismissed. M.A.K. Order accordingly.