1986 PLP 2161 (MLD)

5. The prosecution produced in the first instance 9 witnesses. The learned Magistrate trying the accused thereafter closed the prosecution evidence. The statements of the accused were recorded by the Magistrate on 26th January, 1981. In that, both the accused denied the allegations of having obtained dishonestly and fraudulently by forgery the sum of Rs.72,000 in collusion with each other. They did not claim also the amounts said to have been recovered from them. Shaukat Ali further stated that as he was Secretary of Branch Employees Union and on account of it, the Manager was inimical towards him and it was for that reason that he had made this false case against him. Gulzar Ahmad, accused, stated that Abdul Latif Manager U.B.L. used to come to him in connection with the repair of his vehicle, on account of which he got his account opened and he himself had attested his account opening form and later on, relations between them had become strained, on account of which he had made, this false case against him. They stated that they were innocent and would produce defence evidence.

6. Shaukat Ali produced two witnesses in his‑ defence, namely Muhammad Farooq as D.W. 1 and Muhammad Shamim Khan as D.W. 2 who testified to the good character of accused Shaukat Ali. Similarly Gulzar Ahmad produced D.W.3 Muhammad Khalil and D.W.4 Muhammad Usman to prove the good character of the said accused. The defence evidence was closed on 22nd February, 1981.

7. In the meantime, the revision filed by the bank against the orders of the Magistrate closing the prosecution evidence without having taken evidence of certain witnesses, came up for hearing and it was accepted as part as per dated that 1st November, 1982 of the Additional Sessions Judge, Lahore, who directed that statement of Muhammad Hasan be recorded as P.W. and the secondary evidence to prove the report of Hafeez Ullah Butt handwriting expert who had by that time expired be also taken. Accordingly statement of Muhammad Hasan was recorded as P.W.10 and A.G. Pasha as P.W.11. The latter proved the signature of Hafeez Ullah Butt deceased on the report mark 'A' submitted by him.

8. At this stage, on account of promulgation with effect from 23rd February, 1984 of Offences in Respect of Banks (Special Courts) Ordinance of 1984), this case which stood transferred to this Court by virtue of subsection (3) of section 4 thereof, was sent to this Court and was fixed for fresh statements of the accused under section 32, Cr.P.C. The learned counsel for the accused, however, vociferously argued that there was no evidence on record incriminating the accused and, therefore, there was nothing to be put to the accused to seek their explanation. They later filed applications under section 249‑A/265‑K, Cr.P.C. for acquittal of the accused. Accordingly, I have heard argument of Mr. Jan‑e‑Alam, Advocate counsel for accused Gulzar Ahmad and Syed Niaz Ali Shah, Special Prosecutor for the State.

9. Evidence adduced in this case against the accused can be divided into following distinct categories:‑ (i) Evidence of P.W.5 Attaullah, Token Clerk, P.W. 4 Muhammad Riaz, Ledger Clerk, P.W.6 Javed Mansoor, Officer and P.W.1 Abdul Latif, Manager regarding the details of the occurrence and interpolation in bank record. (ii) Evidence in introduction by Shaukat Ali accused of Gulzar Ahmad accused as Abrar Ahmad for opening a false account and impersonation by Gulzar Ahmhd as Abrar Ahmad. (iii) Evidence of identification of interpolated digit 'O' and letter 'Y' in bank record by prosecution witnesses. (iv) Evidence in respect of identification of the same by the hand‑writing expert. (v) Evidence in respect of recovery of sum of Rs.65,000 (including a packet Exh.PN of hundred notes of Rs.500 denomination each) from the residential room of accused Shaukat Ali. (vi) Evidence in regard to voluntary, presentation by accused Gulzar Ahmad of a sum of Rs.45,000 to P.W.1 Abdul Latif and presentation by P.W.1 Abdul Latif of the said sum to and seizure by War Ahmad Shah, S.I., of the said sum.

10. I will now take up evidence of different categories one by one.

11. As for evidence in the first category I feel inclined to take up evidence of P.Ws. in the order in which a transaction of encashment of a Cheque takes place in the bank. First is statement of Ataullah, Token Clerk, who appeared as P.W.5. His statement is to the effect that on 20th May, 1970 accused Shaukat Ali had brought four cheques to him including Cheque No.233242 Exh. P.3. for entry in the token book and assignment of a token to the said cheques and that he had accordingly made entry in the token book Exh. P.K. at Sr. No.9 of a sum of Rs.8,200 for the relevant cheque and marked Token No. on the said cheque and returned it to him and that he had made the final total and the grand total on the sheet relating to 20th May, 1970 of the said token book but when after lunch he, had come back, he had found that figure of Rs.8,200 had been changed in the token book so as to read Rs.80,200 and that the said sum was not commensurate with the total already made on the said sheet Exh. P.K.(also Exh.P.3). Next is the statement of P.W.4, Muhammad Riaz, Ledger Clerk. He stated that Shaukat Ali accused had called upon him twice to finish speedily work of and send out the cheque of saving bank account for a sum of Rs.8,000 approximately as the party was pressing for immediate Payment and that he had accordingly posted the necessary entry in the ledger and informed him that he had made necessary entry in the ledger and now the cheque was lying for supervision. He further stated that thereafter he had asked officer incharge, Javed Mansoor, P.W.6, to make supervision of the cheque who had accordingly done the same `and sent the cheque to the Manager for further supervision. He further stated that when he made entry in the ledger, the sum written by him was Rs.8,000 but later on in the ledger Exh.P.H. (also EXh.P.1) he had found that the sum had been changed to Rs.80,

200. Javed Mansoor, Officer, P.W.6 stated that on being called by the ledger‑keeper he had gone to the ledger stand and found the cheque Exh.P.B for Rs.8,200 of the accused Gulzar Ahmad near the ledger. At that time balance in the ledger was 8,300 and he had accordingly made the necessary supervision and had after that come back to his seat and second supervision was done by Abdul Latif Manager. He also said that, thereafter, ledger‑keeper had sent specimen signature card of Abrar Ahmad to him to compare it with the signature on the cheque and he had found the signature to correspond with the signature on the specimen signature card and he had given the card and the cheque to Ayyub, another bank officer who had signed the said cheque as two officers were supposed to sign for passing the cheque and the cheque had accordingly been passed. Abdul Latif, the Manager had stated that he had done second supervision of cheque Exh. P.B. for Rs.8,200 on 25th May, 1970. These witnesses had given evidence relating to original sum recorded on the cheque to be Rs.8,200 and fraudulent withdrawal of a sum of Rs.80,200 having taken place by adding digit 'O' in between digit '8' and '2' in the figure 8,200 and by adding letter 'Y' after 'eight' in the sum written in words 'eight thousand and two hundred. Their evidence, therefore; does not pinpoint as to who was the person who had added the digit 'O' in between digit '8' and '2' in figure Rs.8,200 and the letter 'Y' at the end of word 'eight' in the sum 'eight' thousand) and two hundred' in words. It, therefore, is necessary to look into the other pieces of evidence on the record to find out the necessary proof of the same. One of the these is the alleged introduction by Shaukat Ali accused as Abrar Ahmad accused of Gulzar Ahmad. Evidence in this regard has been furnished by Abdul Latif P.W.1. He has stated that on 16th May, 1970; accused Shaukat Ali had brought before him the said accused whose name he had told him to be Abrar Ahmad and had introduced him (the said accused) to him as Abrar Ahmad. Shaukai. Ali had told him that he was a good party and that his account should be opened and, thereafter, Shaukat Ali had gone away and Abrar Ahmad had given (the Manager) a sum of Rs.5,000 and he (the Manager, had called for account opening form and pay‑in‑slip book and after filling in account opening form he had sent the said papers to Javed Manager, officer. What was sought to be proved by this witness was that accused Gulzar Ahmad had posed himself as Abrar Ahmad although he was actually Gulzar Ahmad as shown by the evidence of Sh. Ihsan Muhammad P.W.7, the Headmaster of Islamist High School, Khazana Gate Lahore, where accused Gulzar Ahmad had schooling and, therefore, the fraudulent withdrawal from the bank had taken place on the basis of cheque issued under the signature of Abrar Ahmad, Shaukat Ali was also party to the same. Another inference which is sought to be drawn is that accused Shaukat Ali had abetted accused Gulzar Ahmad in impersonating as Abrar Ahmad. It is, however, notable that in the account opening form there is column meant for the introduction and against the word 'introduced by', the bank official gives his name and signs in token of his having introduced a person in the bank for the purpose of opening an account but in Exh.P.A., the account opening form of Abrar Ahmad, against the words 'introduced by', there is signature of Manager himself in red ink and it is further written them through Mr. Shaukat Ali'. Such a way of introduction of an account holder in the bank may be permissible under the banking practice as stressed by the witnesses of the bank but it does not pin point the person who fraudulently introduced a fictitious person, Since the accused Shaukat Ali had not been made to sign the account opening form, in token of his having introduced the accused Gulzar Ahmad, I do not think that the mere presence of the words 'through Shaukat Ali' conclusively shows that accused Shaukat Ali had introduced the accused Gulzar Ahmad in the bank in a false name: No scheduled offence can therefore, be considered to have been committed by accused Shaukat Ali on that account.

12. The next circumstance as shown by statement of the Head Master Sh. Ihsan Muhammad P.W.7 and Abdul latif P.W.1 is that accused Gulzar Ahmad had posed as Abrar Ahmad. This fact, however, does not by itself show that the accused Abrar Ahmad had fraudulently withdrawn any money from the bank or committed forgery in the cheque and other bank record. As far his having impersonated as Abrar Ahmad, the facts if proved can make out an offence under section 419, P. P. C. only which is not triable by this Court.

13. It appears to me that the only circumstance which could establish the guilt of the accused is either direct evidence, in respect of accused Shaukat Ali having added the digit 'O' in the sum written on cheque Exh.P.B. and other bank record in figures and the letter 'Y' in the sum written on the said cheque in words and changed it into a sum of Rs.80,200 or the indirect evidence of identification of the said digit and said letter 'Y' to be in the handwriting of the accused or by persons knowing the handwriting of the accused or by a handwriting expert. The prosecution has not produced any direct evidence in respect of the accused having made the said addition in the said cheque and bank record. Nobody has appeared as an eye‑witness of the said circumstance. As a matter of fact evidence appears to show that it was not possible for the accused Shaukat Ali to do so at the time when every employee of the bank was working on his seat especially when as shown in evidence, anything being done on every seat in the bank was visible from the cabin of the Manager. It was possible for the accused to have made said additions in the said cheque as well as other bank record namely token book and the ledger book during interval when the clerical staff goes out for lunch. Muhammad Younus P.W.8 had, however, stated in cross‑examination that on that day accused Shaukat Ali himself had gone out of the branch of the bank for lunch during the interval. Therefore, on evidence on record, no occasion has been proved to have been afforded to the said accused to make the said interpolations. The prosecution has, for that reason, tried to prove from the statements of the persons who were alleged to be conversant with the handwriting of the accused, that the said interpolations in the cheque, the token book and the ledger are in the hand of the accused. I would, therefore, scrutinize said statements to find out if the said witnesses had been able to prove the same. Attaullah Khan, Token Clerk who appeared as P.W.5 stated that over writing on cheque Exh.P.B. was in the hand of accused Shaukat Ali in which he had turned '8' into '80' but in cross‑examination he was unable to support the averment of his. He had not stated the same before the police and was confronted with his police statement but was unable to explain this obvious contradiction. Furthermore, he was constrained to admit that if five or six employees of the bank write digit 'O' or '8', he could not differentiate between them and would not be able to say as to who was the author of each one of them. On question from defence counsel, the said witness stated that the writing contained inside the circle available ors page 69 of the file was in the hand of the accused Shaukat Ali although the said writing consisted of specimen writing of Gulzar Ahmad taken by the investigating officer before a learned Magistrate. It was, therefore, clear that his witness could not identify handwriting of Shaukat Ali, accused. Then comes the statement of Muhammad Riaz, ledger, keeper, who appeared as P.W.4. He also stated that over writing in the cheque Exh. P. B. was in the handwriting of accused as he identified his handwriting on the basis of his having worked with him. He, however, admitted in cross‑examination that if employees of the bank write the digit 'O' again and again, he would not be able to state as to who had written the same. He further stated that he could not state that the figure '80,200 had been written by which employee of the bank. These admissions of his show that he too was not in a position to identify the handwriting of accused Shaukat Ali. Similarly, Javed Mansoor, Officer P W.6 states that he had looked into the record and found that Shaukat Ali, who was working as cashier on the day of occurrence had made changes in the bank record and had turned eight thousand into eighty thousand. In cross-examination, however, he stated that he could not specifically state which employee of the bank had written the figure '5,000' in account opening form Exh.P.A. Towards the end of cross‑examination, he stated that if 4 or 5 persons write digit 'O'. he can identify them provided their full signatures or initial are there, otherwise it was difficult,. He further stated that it was a matter of change. He also observed that expert can give opinion in that matter and he cannot identify 'Y'. It is thus clear that this witness was also not in a position to identify that digit 'O' inserted in between '8' and '2' and the letter 'Y' added after word 'eight' had been made by accused Shaukat Ali.

14. We now next turn to evidence of the handwriting expert. The police had through bank manager sent the disputed documents alongwith specimen writing of the accused to a private handwriting expert Hafeez Ullah Butt, who as stated above, had given report. He, however, died before his evidence could be recorded. His report was proved by getting proved his signature from a witness A.G. Pasha who appeared as P.W.11. However, in the said report the said expert Hafeez Ullah Butt did not state his reasons for the opinion he had given and had stated that he would give reasons at the time he appears in evidence in the Court. Since there are absolutely no reasons on record for the opinion by the expert, even the proved report of the said expert is of no consequence. Since it gives no reasons for the opinion given by the expert, no weight can be attached to the said report of the said expert.

15. I may also state that Zafar Ahmad Shah P.W. when he appeared as P.W.9, did not prove that the specimen taken by him were signed by the Magistrate before whom specimen were taken by him were taken nor he had cited the said Magistrate in the calendar of witnesses in this case. Naturally, therefore, said Magistrate did not appear in evidence in this case. Accordingly the identity of the specimen writing of the accused with which expert compared the questioned writings does not stand established. Therefore, even if Hafeez Ullah Butt, handwriting expert had been living and had appeared in evidence in the case, it would have been of little use.

16. As recorded by me in my order, dated 8‑4‑1985, I would have myself, in exercise of my powers under section 540, Cr.P.C., summoned the Magistrate before whom the specimen were taken and also summoned another expert to give reasons for the positive opinion he might have given but success of this exercise was dependent upon appearance of Zafar Ahmad Shah, S.I. again and upon his being traced out. He described himself as a retired S. I. when he gave evidence and showed his address only to be Krishan Nagar, Lahore. I tried to get Zafar Ahmad Shah in the Court again but the process server reported that he had not been able to trace out Zafar Ahmad in Krishan Nagar or elsewhere. Since in these circumstances the identity of the specimen writing/signature of the accused could not be established and it was impossible for me to proceed further, I gave up the idea of exercising my power under section 540, Cr.P.C. and have proceeded to look into the evidence as available on the record.

17. It is clear from the above resume of evidence that there is no adequate proof in respect of the identification of digit '0' inserted in between the digit '8' and '2' in the sum of Rs.8,200 and the letter 'Y' added after word 'eight in the sum originally given in words as 'Eight thousand and two hundred' in the relevant cheque.

18. There is another circumstance in the case which is said to incriminate the accused. That is one of the alleged recovery of a sum of Rs.65,500 from the residential room of Shaukat. Ali. Three witnesses had appeared to prove the same. The first is Muhammad Pervaiz Iqbal P. W.3 who was Manager of U.B.L., Allama Iqbal Road Branch, Lahore at the relevant time and had come to U.B.L. Brandreth Road Branch to assist the Manager during the investigation of the case. The second is P.W.9 Zafar Ahmad Shah and the third is Muhammad Hasan who appeared as P.W.10.

19. So far as Muhammad Hasan is concerned Zafar Ahmad Shah when he appeared as P.W.9 clearly excluded his presence at the spot when he admitted in his cross‑examination that except Razaullah and Pervaiz Iqbal there was no other witness from public present at the time of the said recovery. Even otherwise, from his evidence it appears that Muhammad Hasan never accompanied the police party. He stated in his statement that he had gone to Brandreth Road Branch of U.B.L. in order to get copy of statement of his account from Brandreth Road Branch, where he had already opened an account. In cross‑examination, however, he stated that his business was on the Hall Road and he opened an account at Brandreth Road Branch of U.B.L. as it was a commercial place. To me it appears very strange that a dealer of hard‑ware having his business on the Hall Road should open his account in a branch of U.B.L. at so far off a place as Brandreth Road when a branch of U. B. L. was available at Hall Road also. He has not explained what extra benefit was available to him in opening account at Brandreth Road. The very circumstance of the 'said witness having opened an account in the said branch appears to be doubtful. In any way, this witness does not appear to know any details of incident regarding recovery. He stated that it was 21‑5‑1977 when recovery had taken place from the residential room of accused Shaukat Ali. When he was asked on which date the Eid festival fell in 1970, he stated that he did not know. 'He also did not remember when his second child was born. He stated in examination‑in‑chief that the investigating officer and the accused alongwith others had gone to the residential room of Shaukat Ali accused in a taxi but he could not state which of the said persons had taken seats in the taxi and who was sitting in the front seat and who were sitting in the back seats. He also did not know at which time they reached the place where the room of the accused Shaukat Ali was situated. He stated that he had no knowledge whether the accused was in hand‑cuffs when they started for recovery and further stated that he did not remember whether the accused was or was not in hand‑cuffs when he reached the residential quarter of accused Shaukat Ali. He also did not remember how many rooms were there. He also did not know whether the police had called anybody. He further stated that he did not know wherefrom the key had come with which the room of accused Shaukat Ali had been opened. Furthermore, he stated that he did not know what type of look it was. He also did not know at what time he was free from the place of recovery. I am, therefore, no inclined to accept the statement of this witness as it appears that h was not present at the time when the investigating officer is said to have gone to residential room of accused Shaukat Ali, for recovery. Now only two witnesses are left namely Pervaiz Iqbal and Zafar Ahmad Shah. There is, however, glaring contradiction amongst them on many points. The first of those is that Zafar Ahmad Shah stated 'that he alongwith accused Shaukat Ali had reached the place of recovery at 5.00 p. m. on that day. He elaborated that when he went to the ban on that day, Shaukat Ali accused was not present and that, therefore, he was called who came to the bank after 3 hours at about 4 O' Clock and, thereafter, it was at 5 p.m. that the said accused had led them to his place for recovery. He had reiterated in cross‑examination that when accused Shaukat Ali was taken to his residential room for recovery, the office hours had already come to an end. As against that, Pervaiz Iqbal had as P.W.3 stated that the accused had been taken to his residential room at 11.00 a.m. on 21‑5‑1970 and that they had reached the place of residence of accused at 11.15 a.m. Furthermore, Zafar Ahmad Shah had stated that at the time accused Shaukat Ali was no in hand‑cuffs while' Muhammad Pervaiz Iqbal had stated that the accused was in hand‑cuffs. Furthermore, Zafar Ahmad Shah, S.I., investigating officer stated that the residential room of the accused was locked and the accused had brought out the key from his own pocket and opened the lock of his room. As against that Pervaiz Iqbal stated that the accused had taken the key from the cornice; of a room and opened the lock with his own hands although he was in hand‑cuffs. These discrepancies are indeed very grave and have created in my min serious doubt whether at all recovery of said sum of money had taken place.

20. Since I have disbelieved the recovery of the sum of Rs.65,500 from the residential room of the accused Shaukat Ali, I need not consider the question whether the alleged recovery was not made from exclusive possession of accused Shaukat Ali. I may also not discuss the credibility or otherwise of evidence in respect of identification of Exh. P.N, packet containing 500 currency notes of one hundred rupees denomination each of which was said to have been sent by P.W.2 Asghar Ishaq Dar, cashier of Zonal Office, with a slip allegedly signed by him.

21. Next comes the presentation by accused Gulzar Ahmad of sum of Rs.4,500 to P.W.1 Abdul Latif on 22‑5‑1970. Abdul Latif has stated as P.W.1 that when they were sitting in the cabin in the office on 22‑5‑1970, accused Gulzar Ahmad came to them and gave him a sum of Rs.4,500 stating that this amount had been given to him by Shaukat Ali accused in connection with the fraudulent withdrawal of the money from the bank and he, therefore, was returning this sum to the bank and that the said sum consisted of nine currency notes of the denomination of Rs.500 each. It is clear from the statement of Abdul Latif that apart from him, some other persons /officers were sitting with him when the said sum was said to have been given to him by accused Gulzar Ahmad but no other person has been produced by the prosecution in respect of presentation by accused Shaukat Ali of said sum to Abdul Latif. It is true that single witness can be considered sufficient to prove a fact provided he is of unimpeachable credibility but that is only if the said witness has alone seen the occurrence and no other witness had seen the same. In an occurrence seen by more than one person, both the said persons should be produced in evidence by the prosecution. Since there were more than one persons before whom accused Gulzar Ahmad had surrendered the sum of Rs. 4,500 the prosecution was duty bound to produce at least one another witness but none was produced. The prosecution has, thus failed to establish the said recovery also beyond any shadow of doubt. I, therefore, do not think that it has been duly proved that accused Gulzar Ahmad had surrendered Rs.4,500 to Abdul Latif, Manager.

22. The prosecution has thus failed to prove any case against the accused. No incriminating evidence is available to be put to the accused in their fresh statements under section 342, Cr.P.C. and there is no probability of their being convicted in this case even after recording their fresh statements under section 342, Cr.P. C./ and allowing the further opportunity to produce their defence. Therefore, in exercise of my powers under section 249‑A/265‑K, Cr.P.C., I acquit the two accused of scheduled offences under section 408, 468 and 471, P.P.C. They are on bail. Their bail bonds stand discharged.

23. The offence under section 420, P.P.C. with which too the two accused had been charged is not triable by this Court. The State may if so advised prosecute the two accused for the said offence in a competent Court of law.

24. Before I part with this judgment, there has to be an order in respect of disposal of property in this case. According to prosecution, a sum of Rs.65500 was recovered from the residential room of accused Shaukat Ali while a sum of Rs.4,500 was surrendered personally by accused Gulzar Ahmad to Abdul Latif, Manager of the Bank. The accused in their statements under section 342, Cr.P.C. denied withdrawal through forgery and deceit of a sum of Rs.72,000 from the said branch of the bank. They did not claim the sums of Rs.65500 and Rs.4,500 and denied that those belonged to them. U.B.L. Brandreth Branch holds the said sums in its possession. The said sums of Rs.65500 and Rs.4,500 clearly belong to the said branch of bank as the same had been taken away from the said branch. Therefore, under section 517 of Cr.P.C. I hold that U.B.L. Brandreth Road Branch Lahore is the owner of and is entitled to the custody of the said sums of money. The said branch holds the said sums in Supurdari. The said Supurdari shall stand discharged. S.A. Accused acquitted.