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Petitioner: THE STATE VS Respondent: RANK FAZAL QADEER
1986 P Cr. L J 2133
[Special Court of Offences in Banks]
Before Ghazanfar Ali Gondal, J
THE STATE‑‑Applicant
Versus
Rank FAZAL QADEER‑‑Respondent
Case No.187 of 1984, decided on 30th April, 1986.
(a) Penal Code (XLV of 1860)‑‑--
‑‑‑S. 204/409/464/46714681471‑‑Forgery Destruction of documents‑‑Two Inter‑branch‑credit advices received at Bank‑‑Amount of said advices lying in sundry account as being unclaimed‑‑Accused being aware of circumstances, managed to reverse said entries and transferred said amount from sundry account to short term deposit account in favour of 'M' for seven days‑‑Accused preparing bogus short term deposit receipt and debit cash voucher‑‑Entries in transfer book made on basis of vouchers‑‑None of transfer vouchers available in Bank nor in their accounts Department‑‑Said documents not supposed to be in exclusive custody of accused‑‑No offence of forgery in relation to certain documents, held, could be said to have been proved in absence of such documents as forgery is invariably relatable to documents‑‑Charge of offence under S. 204. P.P.C would also not be sustainable is circumstances.
(b) Penal Code (XLV of 1860) -
‑‑Ss. 464‑‑Forgery‑‑Short term deposit receipt and debit cast voucher‑‑Duty of accused to prepare such voucher‑‑Accused presenter these documents to Manager for signatures‑‑No allegation of an, misrepresentation by accused‑‑No allegation of practising deception to conceal contents of document‑‑Mere preparation of documents by accused, held, would not prove forgery unless shown that accused made false representation to signing authority or played deception in order to conceal contents of said document.
(c) Penal Code (XLV of 1860)‑‑--
‑‑S. 204/409/464/467/468/471‑‑Handwriting Expert's opinion‑‑Apprecia tion of‑‑Signatures on short term deposit receipt and debit cash voucher forged by accused‑‑Handwriting Expert giving number of similarities and reasons for his final opinion‑‑Another expert produced by defence‑ Reasons given by prosecution witness side tracked by defence witness, correctness or otherwise of reasons given by prosecution witness, not challenged in cross‑examination‑‑Impartiality in forming opinion also not challenged‑‑No motive to falsely implicate accused‑‑Defence witness paid by accused to give opinion and his opinion only it general terms‑‑Court making its own comparison of relevant ,documents, came to conclusion that reasons given by prosecution witness were correct and his opinion was therefore, held, unexceptionable in circumstances.‑‑[Evidence].
(d) Penal Code (XLV of 1860)‑‑--
‑‑‑S. 204/409/467/468/471‑‑Forgery‑‑ Valuable security‑‑Accused attesting signatures of beneficiary on reverse of STDR and cash debit voucher‑ Representing to Bank that beneficiary was genuine and known to him‑ Beneficiary not produced before Police nor in Court‑‑Beneficiary, a fictitious person‑‑Accused not explaining this incriminating evidence‑ Handwriting Expert finding attesting signatures in hand of accused‑ Making of false signatures of fictitious person on back of said documents, held, would amount to making false document and committing forgery of valuable security punishable under S: 467, P.P.C.
(e) Penal Code (XLV of 1860)‑‑---
‑‑‑S. 204/409/464/467/468/471‑‑Misappropriation‑‑Criminal breach of trust‑‑Accused, a public servant‑‑Amount of STDR and cash debit voucher found to have been received by accused‑‑Amount received fraudulently by deception‑‑Wrongful loss caused to Bank‑‑Said sum brought to his own use and misappropriated‑‑Accused being a public servant having dominion over Bank funds fraudulently and dishonestly receiving amount, held, committed criminal breach of trust liable to be punished under S. 409, P.P.C.
(f) Penal Code (XLV of 1860)‑‑---
‑‑S. 204/409/467/468/471‑‑Handwriting, identification of‑‑Entry of name of accused on documents in hand of cashier‑‑Cashier not produced‑‑Manager of Bank stating that said entry was in hand of cashier‑‑Intrinsic evidence that Manager could identify handwriting of cashier, visualised‑ Witness not stating that he could identify handwriting‑‑In absence of any cross‑examination regarding capacity of witness to identify, evidence of identification of handwriting, held, would be deemed to be correct and unexceptionable.
Mian Israr‑ul‑Haq, Special Prosecutor and Nazir Ahmad Ghazi, Public Prosecutor.
Shahid Mahmood for Respondent.
JUDGMENT
The facts of the case are that a complaint, dated 24‑11‑1976. Exh.P.W.1/1. was made by the then Manager of UBL Katchery Bazar Lyallpurs against fans Fazal Qadeer. The relevant portion of Branch the said complaint reads as below: --
"An Inter Branch Credit Advice No. 6936511, dated 1‑8‑1974, for Rs.10,000 and another Inter Branch Credit Advice No.8093810, dated 16‑12‑1974 for Rs.15,000 being proceeds of OBC No.518 were received from Karachi. These credit advices were responded by our branch on 8-4‑1975 and 23‑10‑1975 respectively by crediting the amounts to the Sundry deposits Account, as, real beneficiaries were not traceable. Later on the aforesaid entries of Rs.10,000 and 15,000, totalling Rs.25,000, were managed to be reversed on 3‑1‑1976 from the sundry deposits account and transferred to the credit of one Muhammad Siddiq in short term deposit ‑by preparing bogus short term deposit receipt No.003729. dated 3‑1‑1976 for Rs.25,000 for seven days at the rate of 5% per annum interest in his favour. A debit cash voucher for Rs.58.21, in respect of accrued interest, was also fraudulently prepared on 20‑1‑1976. The amount of said short term deposit receipt of Rs.25,000 with amount of interest of Rs.58.21, so calculated, were withdrawn by Muhammad Siddiq on 20‑1‑1976. The amounts of the said Inter Branch Credit Advices were credited to the sundry deposit account of the branch vide credit vouchers dated 8‑4‑1975 and 23‑10‑1975 respectively. The transfer of the said amounts from the sundry deposit account to short term deposit account of M. Siddiq, preparation of short term deposit receipt and debit cash vouchers for interest r6ferred to above and encashment thereof are clearly intentional acts of fraud and forgeries, breach of trust and misappropriation of bank's money. Aforesaid credit vouchers, short term deposit receipt and debit cash voucher for interest, in the name of Muhammad Siddiq, have been prepared by Fazal Qadeer Rana, Clerk of Accounts Department of our branch, in his own handwriting. The payment of short term deposit receipt and debit cash voucher purportedly made on 20‑1‑1976 to Muhammad Siddiq, the beneficiary, were made on the identification and verification of the signature of the said beneficiary by said Fazal Qadeer Rana, who put his signatures on the reverse of the said documents. He is, therefore, directly involved in the commission of this fraud, etc.
2. In the report under section 173, Cr.P.C. it was submitted as below:--
"In investigation it has been found that from UBL I.I. Chundrigar Road Branch, IBCA No.6936511, dated 1‑8 1974 for a sum of Rs.10,000, and from UBL Preedy Street Branch Karachi. IBCA No.8093810, dated 16‑12‑1974, for a sum of Rs.15,000, had been received in UBL Katchery Bazar Branch, Lyallpur, and since beneficiary of the said two IBCAs could not be traced, these sums totalling Rs.25,000, were entered in the sundry deposits account of the branch. The transfer credit vouchers for respective sums of Rs.10,000 and Rs.15.000 are in the handwriting of Rana Fazal Qadeer a Clerk of the Accounts Department. Short term deposit receipt No. STD 003729, dated 3‑1-1976. for Rs.25.000. in favour of M Siddiq wag also in the handwriting of Rana Fazal Qadeer. On page 29 relating to date 3‑1‑1976 of the transfer book of the branch, a sum, of Rs.25.000 is shown to have been debited to the sundry account of the branch and the said amount, STDA is shown to have been prepared, which entry is in the hand of Haji Abdul Ghani a clerk, but the credit and debit vouchers of the said transfer entries are not traceable in the branch in respect of which Rana Fazal Qadeer had confessed having destroyed them and for that reason offence under section 204, P.P.C. has been added in this case. Later on presentment of the said short term deposit receipt on 20‑11‑1976, Rana Fazal Qadeer obtained the payment of said sum of Rs.25,000. Apart from that Rana Fazal Qadeer prepared cash debit voucher for the sum of Rs.58 21, for the interest which accrued on the said amount of the STDR and received the payment of the said amount of the interest also from the branch on the same day. The signatures on the reverse of the short term deposit receipt and its concerned debit cash voucher in respect of the said amount of the interest purporting to be of Muhammad Siddiq are in fact made by Rana Fazal Qadeer and attestation of the said signature (purporting to be of Muhammad Siddiq), has been also made by accused liana Fazal Qadeer with his own signatures. The said documents had been sent for comparison to the handwriting expert and the result received is in favour of the prosecution. Rana Fazal Qadeer had, during the period of his posting in the said branch, dishonestly and by abusing his powers, obtained the sum of Rs.25,000 and an amount of Rs.58.21 by deceit. In investigation accused Rana Fazal Qadeer had been found to be the true culprit in the case.
3. In all 11 witnesses were examined by the prosecution in this case. P.W.1 Ch. Abdul Majid, Inspector, F.I.A., at the relevant time, deposed that he had recorded F.I.R., Exh. P.W.1/2, on the basis of above complaint, Exh. P.W.1/1. Mian Faqir Muhammad, officer grade I of the said branch appeared as P.W.5 and stated that on 15‑12‑1976 he had produced before A.S.1. Abdur Rashid photo copies of the relevant documents (when the case had not yet been taken over for investigation by F.1.A. and was being investigated by the local police). Ahmad Hasan Laghari, P.W.4, and Muhammad Khalil, Constable, P.W.2, and Aqeel Ahmad Qureshi, S.I., F.I.A., P.W.11, are witnesses in respect of seizure by the police of the original documents in this case during investigation. P.W.4 Ahmad Hasan Laghari deposed that on 25‑7‑1979, he produced before P.W.11 Aqeel Ahmad Qureshi IBCA No.6936511, dated 1‑8-1974 for a sum of Rs.10,000, Exh. P.W.4/1, IBCA No.8093810, dated 16‑12‑1974, for Rs.15,000, Exh. P.W.4/2 credit voucher dated 8‑4‑1975, Exh.P.W.4/3, credit voucher dated 23‑10‑1975, Exh. P.W.4/4, STDR No.003729, dated 3‑1‑1976, in the name of M. Siddiq as beneficiary for the sum of Rs.25,000, Exh. P.W.4/5, debit cash voucher dated 20‑1‑1976, in the name of Muhammad Siddiq, for the interest amount of Rs.58.21 on the amount of the STDR, Exh.P.W.4/6, which were taken into possession by Aqeel Ahmad Qureshi by virtue of memo Exh.P.W.2/1. By virtue of the same memo the photo copies of certain. registers/books of the bank were taken into possession by the said investigating officer. The said documents, however, were duly proved in the Court on production of originals. They are copy of attendance register for January, 1978, showing the presence of the accused, both on 3‑1‑1976 and 20‑1‑1976 in the branch copy of page 23 of the STD issue register, showing the entries of the issuance of STDR for a sum of Rs.25,000 on 3‑1‑1976 and preparation of debit cash vouchers, dated 20‑1‑1976 for interest amount of Rs.58.21 on the said amount of the STDR, Exh.P.W.4/8; copy of page 13 of leave record register, showing that Rana Fazal Qadeer was not on leave either on 3‑‑1‑1976 or 20‑1‑1976, Exh.P.W.4/9; and copy of page 29 of the transfer book, showing entries of transfer of the sum of Rs.25,000 from the sundry deposit account to STD account, Exh.P.W.4/10. On the same day, Ahmad Hasan Laghari produced before the said investigating officer some documents which represented the routine signature and handwriting of the accused. Those are Cheque No. SR 979565, date 29‑1‑1977, Exh. P.W.4/7‑A; application on behalf of the accused for issuance of the loose cheque, Exh.P.W.4/8‑A; applications for the grant of privilege /pilgrimage leave, Exh. P.W.4/9‑A and Exh. P.W.4/10‑A. These documents were taken into possession by P.W.1 Aqeel Ahmad Qureshi by virtue of memo. Exh.P.W.2/2. P.W.2 Muhammad Khalil Constable as the attesting witness of both the said memos supported the prosecution in that regard.
4. Sh. Abdur Rashid, Magistrate, appeared as P.W.3 and Aqeel Ahmad Qureshi appeared as P.W.11 and proved that the latter had on 12‑2‑1986 obtained specimen writing of the accused before learned Magistrate, which are Exh.P.W.3/2 to Exh.P.W.3/10, and specimens of signature of the said accused reading as M. Siddiq in the handwriting of the accused which are Exh. P.W.3/11 to P.W.3/19 and specimens of amounts in figure and words and of days as well as name of Muhammad Siddiq in the hand of the accused which are Exh. P.W. 3/20 to Exh.P.W.3/23. Sh. Muhammad Din, handwriting expert, of the FIA Islamabad appeared as P.W.6. He stated that the body writing of STDR, Exh. P.W.4/5. and debit cash voucher for Rs.58.21, Exh. P.W.4/6, was similar in characteristics to the said specimen of writing/ signature on the said specimen sheets. His statement was also to the effect that the signatures 'M. Siddiq' on the reverse of the STDR and the debit cash voucher, Exh. P.W. 4/5 and Exh.P.W.4/6, were similar in characteristics to the said specimens of handwriting of the accused. He produced his report as Exh.P.W.6/2 and comparative chart prepared by him, as Exh.P.W.6/1. The said expert stated that he had given detailed reasons for the above opinion which he had formed in the comparative chart, Exh. P.W.6 / 1, prepared by him. P. W .8 Siraj‑ul‑Haq deposed that the debit voucher of the sundry deposit account and credit voucher of STDR, entries of which were available at Sr. No.24 of page 29 of the transfer book, Exh.P.W.4/10, were not traceable in the record of the branch and despite his best efforts in that behalf he had not been able to find the same in the branch.
5. Faqir Muhammad, P.W.5, also proved that the credit vouchers, Exh.P.W.4/3 and P.W.4/4 are in the handwriting of Rana Fazal Qadeer which he identified. Mian Faqir Muhammad, P.W.5, is also witness of identification of handwriting of Fazal Qadeer Rana on STDR, Exh. P.W.4/5, and debit cash voucher, Exh.P.W.4/6. He also identified signature of accused on debit cash voucher against the words 'prepared by' and stated that the said signature was of accused Rana Fazal Qadeer. P.W.9 Malak Muhammad Aslam who was Executive Manager under whom P.W.7 Naveed Safdar was working as Acting Manager is a witness of identification of signatures of accused Rana Fazal Qadeer which he (the accused) appended on the back of the STDR and the cash debit voucher for attestation of the signatures 'M. Siddiq' which stood made on the reverse of said documents and of the signature of Naveed Safdar below the signature of Rana, Fazal Qadeer for attesting the signature of Rana Fazal Qadeer. P.W.7 Naveed Safdar is not only witness of identification of the handwriting of the accused on Exh. P.W.4/3, and P.W.4/4 but is also a witness in respect of merits of the case whose evidence shall be discussed later on at proper places. P.W.11 Aqeel Ahmad Qureshi, Investigating Officer apart from in respect of seizure by him of original documents as discussed earlier also deposed in respect of investigation made by him. Thereafter, prosecution evidence was closed. It is necessary here to state learned Special Prosecutor gave up as unnecessary Haji Abdul Ghani, who was alleged in the challan to have made entries in the transfer book in his own handwriting.
6. After the prosecution evidence had been closed statement of the accused under section 342, Cr.P.C. was recorded. He accepted having prepared in his own handwriting the two transfer vouchers crediting the sums of two IBCAs in the sundry account. He also accepted that he had knowledge of the circumstances in which the amount of Rs.25,000 was lying in the sundry account of the bank. He also admitted having prepared STDR and debit cash voucher, Exh.P.W.4/5 and Exh.P.W.4/6, in favour of M. Siddiq for respective sums of Rs.25,000 and Rs.58.21, but stated that he had done so under the instructions of Naveed Safdar, the Acting. Manager of the branch. He also conceded that he had verified the signature of M. Siddiq on the reverse of the STDR and cash debit voucher, Exh.P.W.4/5 and Exh.P.W.4/6, by appending his own signature thereto but stated that he had done so under the instructions of Naveed Safdar. He also accepted that Naveed Safdar, Acting Manager, had signed under his (accused's signature) on the back of the STDR and cash debit voucher, Exh.P.W.4/5, and Exh.P.W.4/6. He denied that he had himself received the sum of Rs.25,000 and a sum of Rs.58.21 on the basis of the STDR, Exh.P.W.4/5, and debit cash voucher, Exh.P.W.4/6 and misappropriated the same. He stated that he would produce defence evidence. Since I was and am still of the opinion that the amendment of subsection (2) of section 340, Cr.P.C., made in the year 1985, making it incumbent upon the Court to record statement of the accused on oath as a witness in his own defence to disprove the allegations and charges made against him was not retrospective in effect and did not apply to pending cases, I asked the accused if in exercise of the option available to him under subsection (2) of section 340, Cr.P.C. as it stood before its amendment in 1985, he would appear as a witness in his own defence, but the accused declined to appear as his own witness. In defence he produced Amir Nawaz Khan as D.W.1, who produced the original cash book and the original transfer book of the UBL Katchery Bazar Branch, Faisalabad. The accused also produced as D.W.2 Haji Abdul Ghani who was cited as a prosecution witness in the calendar of this case but had been given up as unnecessary. This witness proved that the entries of page 29 of the transfer book which he used to maintain were in his hand. He conceded that pages 29 and 30 of the transfer book did not bear either his signature or signature of any officer. The balance worked out on page 30 was not found signed by this witness. On being asked the question relating to the reason for that deficiency, the said witness stated that since some entries have to be made late in the working hours, sometimes the balance is not signed to enable the bank officer to make any further entry in the transfer book and on the next morning the balance is signed. He also stated that it appeared that the matter of signing of this page was missed. He also proved Exh .D.W.2 / 4 a copy of page 2 of cash book, relating to the transaction which took place on 3‑1‑1976 and stated that this cash book was maintained by the accused himself. After statements of D.Ws.1 and 2 had been concluded the accused closed his defence evidence. Thereafter arguments were heard. It then transpired that the incriminating circumstance arising out of the evidence of P.W.6 Muhammad Din Handwriting. Expert read with his report Exh.P.W.6/2 and his comparative chart, Exh.P.W.6/1, had not been put to the accused in his said statement under section 342, Cr.P.C. Accordingly supplementary statement of the accused was recorded. The accused stated that evidence of the handwriting expert as supplemented by the said two documents was incorrect as signatures written' as 'M. Siddiq' on the reverse of Exh.D.W.4/5 and 6 were noting his handwriting. He declined to appear as witness in his own defence but stated that he would produce defence in relation to the said fresh incriminating material which had now been put to him. In his said further defence, the accused produced D.W.3 A.G. Pasha, a private handwriting expert, who opined that the signatures reading as 'M. Siddiq` on the reverse of STDR, Exh.P.W.4/5 and debit cash voucher, Exh.P.W.4/6, were not similar in characteristics to the writing characteristics available in the said specimens of the handwriting of the‑accused.
7. It is clear from the statement of the accused, seen in the context of the allegations made and evidence produced in support of the same, that the accused had accepted a portion of the prosecution story on factual plane and the variations he had made give rise to the questions whether accused Fazal Qadeer was aware and conscious of the circum stance that cumulative sum of Rs.25,000 was lying in the sundry account as its beneficiaries had not been traced and whether in preparing, STDR Exh.P.W.4/5, and debit cash voucher, Exh.P.W.4/6, in his own handwriting, in the name of a fictitious person Muhammad Siddiq, he had committed the offence of forgery. Another question which arises is whether the accused had made the signatures of Muhammad Siddiq, the beneficiary of the STDR, dishonestly and fraudulently himself in his own handwriting on the back of Exh.P.W.4/5 and Exh.P.W.4/6, and whether attestation of the said signatures by him by appending his own signature to the said signatures of the alleged beneficiary was done by him voluntarily of his own accord and whether in doing so he had committed offence under section 467, P.P.C. in each case. Still another question which' arises is whether the accused had himself received the sums of Rs.25,000 and Rs.58.21 in connection with encashment of Exh.P.W.4/5 and Exh.P.W.4/6 dishonestly, fraudulently and misappropriated the said sums and had thus committed offence under section 409, P.P.C. It is in the background of these questions that I proceed to examine the evidence in this case.
8. The circumstance of knowledge of the accused that a sum of Rs.25,000 is lying in the sundry account of the branch on account of two, unclaimed IBCAs has been established on record by the proved and admitted circumstance of the two credit transfer vouchers, Exh.P.W.4/3 and Exh.P.W.4/4, being in the handwriting of the accused. Credit transfer voucher, dated 8‑4‑1975, transferring by way of credit a sum of Rs.10,000 of the relevant IBCA in sundry account of the branch is Exh.P.W.4/3 and credit transfer voucher, dated 23‑10‑1975, transferring a sum of Rs.15,000 of the said IBCA to the sundry account of the branch is Exh.P.W.4/4. P.W.5 Mian Faqir Muhammad, Acting Manager of the said branch from February, 1976 to October, 1977, and P.W.7 Syed Navid Safdar, Acting Manager in the said branch from July, 1975 to February, 1976, proved that the said two transfer vouchers, Exh.P.W.4/3 and Exh.P.W.4/4, were in the handwriting the accused, Rana Fazal Qadeer. Evidence of P.W.6 Sh. Muhammad, Din, Handwriting expert, who made the comparison of the writing on these credit transfer vouchers with the routine writing of the accused furnished by the bank to the I.O. and specimens of writing of the accused duly proved by the statement of P.W.3 Abdul Rashid, Magistrate, and P.W.11 Aqeel Ahmad Qureshi SI FIA stated that writing on credit transfer voucher, Exh.P.W.4/3 and Exh.P.W.4/4, were similar in characteristics to the corresponding specimens and
routine writings of the accused. The accused himself accepted in reply to question No.9 of his statement, under section 342, Cr.P.C. that the said two credit transfer vouchers, Exh.P.W.4/3 and Exh.P.W.4/4 by virtue of which the said sum of Rs.25,000 stood credited in the sundry account of the bank were filled in by him in his own handwriting. In reply to the direct question that it was in evidence that he was fully aware of the circumstances in which the said amount of Rs.25,000, on account of two IBCAs, Exh.P.W.4/1 and Exh.P.W.4/2, whose beneficiaries were untraced was lying in the sundry account of the said branch, he stated that it was correct. The matter of the accused being aware of the circumstances in which the said sum of 8125,000 was lying in the sundry account of the branch, therefore, stands proved on record.
8‑A. One of the allegations against the accused is that having been armed with the said knowledge, he managed to have reversed the said entries of Rs.10,000 and Rs.15,000, totalling Rs.25,000, on 3‑1‑1976 from sundry deposit account and transferred to the credit of one Muhammad Siddiq in short term deposit account, by preparing bogus short term deposit receipt No.003729, dated 3‑1‑1976, for Rs.25,000 for seven days, at the rate of Rs.5% per annum interest in his favour and debit cash voucher, dated 20‑1‑1976, for a sum of Rs.58.21, representing allegedly accrued interest on the said sum from 3‑1‑1976 to 20‑1‑1976. Exh.P.W.10/4 consists of page 29 of the transfer book, bearing at serial No.24 the entry of transfer of the said sum of Rs.25,000 from sundry account to STD account by debiting the said sum in sundry account and crediting it in the STD account. P.W.4 Ahmad Hasan Laghari conceded in his statement that the said entry was in the hand of a clerk and not the accused. According to the police report, the clerk who had made the said entry in his own hand was Haji Abdul Ghani but the said witness who was cited as P.W.…
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