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Petitioner: THE STATE VS Respondent: AFTAB ALI KHAN and others
Court Name: Lahore High Court Judge(s): Ghazanfar Ali Gondal Title: THE STATE vs AFTAB ALI KHAN and others Case No.: Case No,212 of 1984 Date of Judgment:1986-10-27 Reported As: 1987 MLD 1810 Result: Convicted
JUDGMENT
JUDGMENT ' In this case complaint dated 19-2-1975 Ex PF which became the basis of FIR EX PF/1 for offences under sections 420, 379, 468 and 471 PPC was lodged by PW 5 S.M.Rafique, Deputy Director Pakistan Population Planning Council, Islamabad with the SHO P.S., Islamabad. It reads as below:- ' "I am to state that the Manager, Allied Bank Ltd. City Branch, Rawalpindi rang me up today at about 200 hrs and enquired about the correctness of cheque No,H/18-08563 dated 7-2-1975 for Rs,43,600 on the National Bank of Pakistan, Sectt Branch, Islamabad issued by the Population Planning Council of Pakistan, Islamabad, in favour of M/s. S.M. Hussain & Co. On checking the Cheque Book it was found that the counterfoil of said cheque indicates an amount of Rs,350 issued in favour of State Bank of Pakistan which is marked as CANCELLED. I stopped the payment and rushed to the said Bank. It was revealed that some one has forged the signatures of cheque signatories. It was further revealed that the same party has already drawn an amount of Rs,32,540 against a cheque No: H/18-085673. The counterfoil of this cheque is blank and marked as CANCELLED. ' On 15-9-1975, incomplete challan was submitted against accused Aftab Ali Khan and Muhammad Sabir Hussain. On 9-3-1977, complete challan was submitted against the said two accused. At first the trial of the accused was held in the court of Magistrate. The learned Magistrate by his judgment dated 28-9-1981 convicted both the accused and sentenced them to various terms of imprisonment. In appeal, however, conviction and sentence of the accused persons were set aside on the ground that Aftab Ali was an employee of the Pakistan Population Planning Council and his case was triable by the Special Judge (Central) and not by a Magistrate. Thereafter the case went before the Special Judge (Central), Rawalpindi for fresh trial. Learned Special Judge (Central),
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Rawalpindi framed joint charge against the accused on 27-1-1983 for offence under sections 409, 420, 468 and 471 PPC and offence under section 5 of Prevention of Corruption Act, 1947. Prosecution produced nine witnesses in the court of Special Judge (Central) and gave up Munawar Hussain as unnecessary. Thereafter, statement of the accused under section 342 Cr.P.C. Was recorded. The accused denied all the incriminating evidence produced against them and stated that case against them had been made due to wrong investigation and that they were innocent. They declined to produce any defence. 3. At this stage, on the promulgation with effect from 23rd of February, 1984 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 (IX of 1984) providing for transfer of cases of scheduled offences to this Court, this case was sent to this Court by virtue of order dated 4-9-1984 of the Special Judge (Central), Rawalpindi. I heard arguments in the case, but instead of announcing judgment in the case I by my detailed order dated 6-5-1985 resummoned prosecution witnesses. PW.9 Iqbal A. Sheikh and PW 6 Sh.Muhammad Din, handwriting expert. I also summoned SHO Police Station Abpara, Islamabad directing him to produce the rubber stamp. For S.M. Hussain & Co. And other articles (including brief case, leather purse and a sum of Rs,1,592) and number of documents said to have been recovered from the accused Muhammad Sabir as per memo Ex.PW 8/A which constituted case property in this case. In consequence, PW 9 Iqbal A. Sheikh reappeared on 10-6-1985. PW 6 Sh.Muhammad Din reappeared on 14-9-1985 and conceded that he had misunderstood the letter of SSP and had not, on that account, compared the writing signature, appearing as S.M.Hussain on the account opening form and specimen signature cards and five cheques issued 'on behalf of S.M.Hussain and Co. With the specimen writing/signature made by accused Muhammad Sabir who was suspected to have done all that. He was accordingly ordered to make the necessary comparison. He was also directed to make comparison of writing on deposit receipts dated 18-2-1975 and 6-2-1975 respectively marked as Ex PW 9/T and Ex PW 9/S and produce the report. The said handwriting expert accordingly submitted the report. He reappeared as resummoned prosecution witness and proved his new report Ex PW 9/W. Muhammad Akhtar D.S.P., Abpara, Islamabad, who had made enquiry to trace out the missing articles and documents which constituted case property in this case appeared as CW 1 on 12-2- 1986. Muhammad Zaman Inspector, SHO, PS Abpara, Islamabad, appeared as CW 1 on the same date. Since fresh incriminating evidence had come on record against accused Muhammad Sabir, supplementary statement of the said accused under section 342 Cr.P.C. Was recorded on 22-6- 1986. He denied the said evidence but stated that he would produce defence. Accordingly 7-7-1986 was fixed for production of defence evidence by the said accused. However, he did not get any witness summoned nor brought any along with him. Furthermore, he gave no explanation as to why he had neither brought any witness nor got any witness summoned. His defence evidence was accordingly closed on 7-7-1986. 4. I have heard the arguments of Special Prosecutor Syed Niaz Ali Shah as well as of Ch.Muhammad Abdul Wahid Advocate, counsel on behalf of the two accused, I have also minutely perused the record of the case. I will first take up the prosecution case against accused Aftab All Khan. In evidence Syed Muhammad Rafique PW 5 stated that on 19-2-1975 when he was working as Deputy Director Audit & Accounts, Population Planning Council, Islamabad, he received a telephonic call from Manager Allied Bank, Rawalpindi who enquired from him if cheque No,H/18 085731 Ex PH dated 17-2-1975 (actually 15-2-1975) for a sum of Rs,43,620 was genuine and on that he checked the record and did not find the entry of any such cheque nor its sanction. He took counterfoil Ex P.3 of the said cheque in cheque book Ex.P 2 from the custody of the accused Aftab Ali and found that the amount written on it was Rs,350 and cheque was issued in the name of the State Bank of Pakistan and word 'Cancelled' was also written thereon. He telephonically asked the Manager of the said-bank to stop the payment and then went to the bank and saw the cheque. It
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was forged and bore his forged signature as well as that of Abdul Hakim co-signatory. He further stated that at that time it also came to his notice that earlier a forged cheque bearing No,H/18 085673 for a sum of Rs,32,540 Ex PG had been encashed and its counterfoil Ex PG/1 in the cheque book Ex P 1 bore only the word 'Cancelled' written thereon without any other entry thereon. He accordingly filed a complaint dated 19-2-1975 Ex PF with the police which bore his signature, upon which the formal FIR Ex PF/1 was recorded in the police station on the same day. Value of this portion of statement of this witness apart from its giving the course of events leading to the registration of the case and initiation of investigation, is, that accused Aftab Ail had the custody of the cheque books and it is from him that cheque books had been taken by PW 5 Syed Muhammad Rafiq. Further facts elicited from the said witness in cross-examination prove that Aftab Ali was a cheque writer in the office of Deputy Directo Audit and Accounts Population Planning Council, Islamabad who used to prepare the cheques and had also in his possession one of the tw keys of the Almirah in which cheque books were kept by Superintendent of the said office. 5. The factum of presentation and seizure by the police cheque No,H/18 085731 dated 15-2-1975 Ex PH for a sum of Rs,43,620 issued by the Pakistan Population Planning Council, Islamabad in favour o S.M. Hussain & Co. Has been proved by Iqbal A.Sheikh, Manager of Allied Bank City Street Branch, Rawalpindi as PW 9. The defence counsel did not challenge the evidence of production by the said witness of this document from the record of his branch before the police and, therefore, the defence must be deemed to have accepted the said evidence of production of this document by the said Manager. The other witness of the said memo Ex PW 8/D is Syed Akhlaq 'Hussain, deceased, the investigating officer, whose signatures have been proved by PW 8 Raja Nasir Nawaz, Inspector, FIA, Rawalpindi. Recovery of this document from the custody of the said bank I therefore, proved. Next item of evidence is the presentation and seizure by the Police on 6-3-1975 of cheque No,H/18-085673 dated 5-2-1975 Ex PG for a sum of Rs,32,540 shown to have been issued by Pakistan Population Planning Council, Islamabad, that has been proved by the statement of PW 7 Muhammad Aslam Rahi, the Manager of National Bank of Pakistan Central Secretariat Federal Capital Branch, Islamabad. The said cheque was taken into possession by deceased Akhlaq Hussain I 0 by virtue of memo Ex/PW 7/A. Signature of said Akhlaq Hussain on memo Ex PW 7/A was proved by PW 8 Raja Nasi Nawaz Inspector, FIA. The production by said witness Muhammad Aslam Rahi PW 7 of the said cheque before the investigating office has not been challenged by the defence in cross-examination of PW Aslam Rahi. It, therefore, stands established satisfactorily. 6. Next item of evidence to be considered is the oral evidence in regard to the identity of the writing on the body of the cheques Exs.PG and PH. The evidence in this regard has been furnished by PW 5 Syed Muhammad Rafiq who was Deputy Director (Audit and Accounts) Pakistan Population Planning Council, Islamabad, at the relevant time. Accused Aftab Ali was a cheque writer working under his control. Syed Muhammad Rafiq as PW 5 stated that he found Ex Ph cheque No,H/18 085731, dated 17-2-1975 (actually 15-2-1975) for Rs,43,620 to be forged document and it bore his as well as of Abdul Hakim's forged signatures. He also stated that earlier cheque bearing No,H/18 085673 Ex PG which had been encashed was also forged. He further stated that these cheques were in the handwriting of Aftab Ali accused whose handwriting he fully identified. It is true that his witness did not state in so many words the source of his knowledge the handwriting of accused Aftab Ali Khan but under section 47 of Evidence Act now section 61 of Qanoon-e-Shahadat 1984, as laid down in Shankar Rao Gangdhar v. Ramji Harijiwan I L R 28 Bombay 8, Mehanth Jagdish Dass and others v. The Emperor AIR 1938 Patna 497, Persa Ram and others v. Manmal and others AIR 1955 Rajasthan 186, Muhammad Sadiq Javeed v. The State PLD 1969 Pesh. 12 and as noted by me in the State v. Khan Muhammad 1986 P Cr.L J 2812, the position of law is that the witness may only state that a document is in the handwriting of a particular person and need not state in his deposition how he knows the said handwriting, as it is the duty of the opposite party to explore in
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cross-examination the source of his knowledge if he is dissatisfied with the testimony as it stands and if no such cross-examination is undertaken, the other party must be deemed to have accepted that witness's evidence of identification of handwriting/signature as correct. In the present case no cross-examination was conducted on PW 5 Syed Muhammad Rafiq contesting the capacity of the said witness to identify the writing of the accused in digits and words and controverting his evidence that the said two cheques were in the handwriting of the accused Aftab Ali Khan, who must therefore be deemed to have accepted that the said two cheques are in his handwriting. Even otherwise, the source of knowledge of the identity of the author of the writing on cheques is clearly inferable from facts and circumstances deposed to by this witness in his statement. According to him, the accused was employed as a cheque writer in his office and used to prepare cheques in his hand and according to the procedure of his office which he fully explained, after the said accused had prepared the cheques, the said cheques used to be submitted to him for signatures. It is clear, therefore, that the cheques prepared in the hand of accused Aftab Ali Khan used to be submitted to this witness habitually in the ordinary course of the business of his office. This source of knowledge falls within the ambit of explanation to section 47 (now section 61 of Qanoon-e-Shahadat, 1984) and qualifies the said officer to be a competent witness in that behalf. This witness had no enmity or towards the accused. His disinterestedness and impartiality were never questioned. The truth of his statement was not contested in any way in cross-examination. Even otherwise, the evidence of this witness inspires confidence and is accordingly entitled to credence and must be believed. Therefore, the factum of accused, Aftab Ali Khan having prepared the said two cheques in his own handwriting stands established on record. 7. The factum of recovery on 25-2-1975 on the pointation of accused Aftab Ali Khan of stamp of Assistant Director Pakistan Population Planning Council, Islamabad from the drawer of the table of the office of Muhammad Hakeem,' Assistant Director, Pakistan, Population Planning Council, Islamabad, has been proved by evidence of said Abdul Hakeem as PW 4. The said memo is also sighed by Syed Akhlaq Hussain, investigating officer, whose signature on the said memo Ex PE has been proved by Raja Nasir, Inspector in his statement as PW 8. The factum of the recovery on the pointation of accused Aftab Ali Khan of stamp Ex P5 of S.M.Rafiq Deputy Director Pakistan Planning Council Islamabad from the drawer of the table of the said Deputy Director has been proved by said S.M.Rafiq in his statement as PW 5. In cross-examination PW 5 S.M.Rafiq stated that it was correct that at the time of recovery several other members of the staff were present there but recovery memo was got attested by him and Bashir-ud-Din PW. This, however, would not detract from the credibility of the said witness as he was one of the senior officers of the department and the-police had done nothing wrong in getting the said memo attested from him rather than other persons from the members of his staff who could subsequently be subjected to and could be expected to succumb to outside pressure. In my opinion therefore, the factum of recovery of the said stamp at the instance of the accused also stands established on the record. 8. I have taken the impressions of the said two rubber stamps on a paper and have found on comparison that the said impressions correspond exactly with rubber stamp impressions on each of the two cheques Exs. PG and Ex PH. Obviously, therefore, these were the rubber stamps which were affixed on the said cheques. The fact that the said two rubber stamps of S.M.Rafiq Deputy Director and S. Abdul Hakeem Assistant Director of Pakistan Population. Planning Council Islamabad were recovered on the pointation of the accused Aftab Ali Khan shows that the said accused had taken hold of said rubber stamps from the office of Deputy Director and Assistant. Director and had used them for forging the said cheques. The recovery of said two stamps at the instance of the accused is highly corroborative of forgery of said two cheques by the accused Aftab Ali Khan, Accused Aftab Ali Khan executed the said cheques in, his own hand in order that fraud may be committed with the bank which was maintaining the account of Pakistan Population
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Planning Council, Islamabad. He did so with the intention of causing it to be believed that the two cheques had been prepared by the authority of Syed Muhammad Rafiq, Deputy Director Pakistan Population Planning Council, Islamabad and had been signed by the said Deputy Director and Abdul Hakim,Assistant Director by whom the said cheques were not signed and by whose authority the said cheques had not been prepared. He thus committed the offence of forgery as defined in section 463 PPC read with clause firstly of section 464 PPC. These cheques were valuable securities as defined in section 30 PPC and at any rate were documents which gave authority to their holders to receive the sums for which they were drawn. In forging the said two cheques, the accused is thus proved to have committed offence under section 467 PPC. There is evidence on record of production before police of counterfoils o said two cheques and their forgery in the hand of the accused. That evidence has been furnished by the statement of PW 1 Muhamma. Bashir Awan, Magistrate, PW 5 S.M.Rafique Deputy Director, PW 3 Bashir-ud-Din, Assistant Director and PW 6 Sh.Muhammad Din handwriting expert. Now from all that evidence, in my opinion what is meant to be shown is that accused wanted by the alleged forgery, to cheat the officers of Pakistan. Population Planning Council, Islamabad so that they should not come to know of forgery of cheques committed by him. It was not meant to cheat the bank. In my opinion, therefore, the offence under section 468 PPC which is sought to be proved against accused Aftab Ali Khan on the basis of that evidence is not triable by this Court which can try only scheduled offences as define. In section 2(d) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984. I have already held in Mushtaq Hussain Shah v. The State 1986 P Cr.L J 567 that an offence in respect of the bank or in connection with the businesses of the bank is an offence which hits or is likely to hit a bank or the business of the bank financially or otherwise. I also held therein that the word 'connection' in xpression 'in connection with' occurring in said section 2(d) meant direct connection like cause and effect and not a remote connection. Since the alleged offence of forgery of the counterfoil was not meant to cheat the bank but only officers of the Pakistan Population Planning' Council, Islamabad and the bank was not hit or likely to be hit directly as a result of the said acts of accused Aftab Ali Khan the offence under section 468, PPC in relation to said counterfoil, is not an offence in respect of a bank or in connection with the business of a bank is not a scheduled offence and is and as such not triable by this Court. 9. Accused Aftab Ali Khan has also been charged for offences under sections 420, 409 PPC and section 5 of Prevention of Corruption Act, 1947 but evidence and consideration as regards the said offences are inextricably mixed up with the prosecution case against accused Muhammad Sabir Hussain and shall be dealt with after case of the said accused has been considered. I would, therefore, now proceed to deal with prosecution case against accused Muhammad Sabir Hussain. Main witness against accused Sabir Hussain is PW 9 Iqbal A.Sheikh who was posted as Manager Allied Bank New Street Branch, Rawalpindi in the year 1975. He deposed that in February, 1975 an account had been opened in his branch in the name of S.M.Hussain & Co. In which cheques drawn on State Bank of Pakistan and NBP were being deposited and that was a small account but cheques being deposited therein were of large amounts and after deposit of cheques funds were being withdrawn in a couple of days, which created doubt in his mind and when last cheque was deposited and the person who had opened the account came to withdraw money on the cheque, he called him in his office and sought explanation from him. According to him accused Sabir Hussain present in the Court was the said person. He further stated that on enquiry he became more doubtful and rang up Director Population Planning Department, whose cheques were normally deposited in this account and on that he (the Director) told him that the cheques were not genuine and the person who had brought the cheques for deposit in the account should be detained. This statement of PW9 as regards his enquiry from Pakistan Population Planning Council, Islamabad on telephone and its reply that said cheque was a fake one and the request made to
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him to stop the payment was corroborated by Syed Muhammad Rafiq, Deputy Director Pakistan Population Planning Council, Islamabad in his statement as PW 5. The corroborating testimony could, however, consist of only such evidence as had happened with or before the said witness and would naturally not consist of facts which happened before he arrived in said branch of ABL. In that respect Iqbal A.Sheikh was the witness. His statement that accused Muhammad Sabir Hussain was the person who had opened account No,1423 in the name of S.M.Hussain & Co. And had been depositing cheques of Pakistan Population Planning Council, Islamabad drawn on State Bank of Pakistan and had been withdrawing sums from the said account after deposit of said cheques was not contested G seriously in cross-examination. There was absolutely no suggestion that the accused had not opened and operated the said account and the statement to that effect was false and result of some misapprehension or wrong identification. There was even no suggestion that the said account had been opened and was, being operated by anyone else. The only thing elicited in cross-examination was that it was probably one Shahid Rashid who had introduced the account holder S.M.Hussain at the time of opening the account. Ch.Muhammad Abdul Wahid, learned counsel for the accused has submitted that non-production of said Shahid Rashid who according to him was the best witness to prove the identity of the actual person, who had opened that said account on his introduction, was fatal to the prosecution case that accused was that person. I am afraid, I cannot accept that contention. The Manager of the branch who sees a person opening an account and has the occasion to see on every such day on which he comes to operate the account, also constitutes an equally good witness. As a matter of fact he was a better witness than said Shahid Rashid as he can be said to have seen the accused on more occasions than Shahid Rashid who introduced him in the first instance. Therefore, the non-production of "said Shahid Rashid is of no consequence. PW9 Iqbal A. Sheikh is shown to have no malice against the accused. His evidence does not conflict with the other features of the case form which the guidelines in this case. His evidence is, therefore, entitled to credence. It thus stands proved beyond any shadow of doubt that account No,1423 was opened by accused Muhammad Sabir Hussain in his feigned name S.M.Hussain as proprietor of fake concern S.M.Hussain and Co. In ABL City Street Branch Rawalpindi and it was accused Sabir Hussain who deposited forged cheques PG and PH of Pakistan Population Planning Council, Islamabad in the said account and had been withdrawing money collected on the basis of said cheques. From the said branch by presenting checques of S.M.Hussain & Co. The last of said cheques being cheque No,CDF/1 626230, dated 19-2-1975 Ex.PW 9/D for a sum of Rs,34,000 which is cancelled in token of its having been passed as fit for payment but does not show actual payment made thereon. 10. The next item of evidence to be considered in regard to accused Sabir Hussain is in respect of recovery from his brief case of the following (among other) articles/documents:- (i) Leather purse of brown colour containing a sum of about Rs,1,592 consisting of fifteen currency notes of rupees hundred denomination each and nine currency notes of rupees ten H denomination each and two notes of rupees one denomination each. (ii) Cheque book of account No,1423 of S.M.Hussain and Company containing unused cheques with rubber stamp 'For S.M.Hussain & Co' affixed on them and containing the following counterfoils: - (a) counterfoil of cheque No,CDF/1 626226 issued for Rs,300. (b) counterfoil of cheque No,CSF/1 626227 issued for Rs,25,000. (c) Counterfoil of cheque No,CDF/1 626228 issued for Rs,6000 (d) Counterfoil of Cheque No,CDF/1 626229 issued for Rs, 85, 000. (e) Counterfoil of cheque No,CDF/1 626230 issued for a sum of Rs,34,000. (iii) Pay in slip book Ex. P9 of S.M.Hussain and Co. Including in it:- (a) Counterfoil pay in slip dated 6-2-1975 known as deposit
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receipt or deposit slip Ex.PW9/5 of S.M.Hussain & Co. Ltd. With an entry of deposit of cheque No,08 5673 dated 5-2-1975 for a sum of Rs,32,540 in the account No,1423 of S.M.Hussain & Co. (b) Counterfoil pay in slip date 18-2-1975 known as deposit receipt or deposit slip Ex.PW 9/T with an entry of a sum of Rs,43,620 in the account of S.M.Hussain & Co. ' (There is no stamp of cash receipt of this sum by the bank cashier showing that a cheque for the said sum had been deposited by virtue of said deposit receipt). ' Evidence in that regard was furnished by PW9 Iqbal A.Shaikh. It may be noted that Akhlaq Hussain, ASI, I.O. Who had recovered these articles/documents…
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