Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: THE STATE VS Respondent: MUHAMMAD SIDDIQUE
1986 P Cr. L J 2078
[Special Court of Offences in Banks]
Before Ghazanfar Ali Gondal, J
THE STATE‑‑Complainant
Versus
MUHAMMAD SIDDIQUE and 3 others‑‑Respondents
Case No.261 of 1984, decided on 29th October, 1985.
(a) Penal Cafe (XLV of 1888)‑--
‑‑‑Ss. 409/109 & 467/468/471/201‑‑Prevention of Corruption Act (II of 1947), S. 5 (2)‑‑Secondary evidence‑‑Carbon office copies, use of as‑ District Accounts Office preparing drawing schedule in triplicate‑ Drawing schedule showing bills passed by D.A.O. on Government account‑‑Original drawing schedule normally sent to bank‑‑Bank obliged to make payments only for bills entered in drawing schedule‑‑Original drawing schedule misplaced‑‑Drawing schedule register containing carbon copies of drawing schedule as office copies, held, was rightly brought on record as secondary evidence. ‑‑[Evidence].
(b) Penal Code (XLV of 1860)‑------
‑‑‑Ss. 409/109 & 467/468/471/201‑‑Prevention of Corruption Act (II of 1947). S.5 (2)‑‑Unauthorised payments on Government account‑‑Seven bills purporting to be passed by District Accounts Office for payment on Government account, allegedly paid by accused, unauthorisedly‑ District Accounts Office preparing drawing schedule in triplicate, slowing bills passed by District Accounts office for payment on Government account‑‑Original drawing schedule sent to bank‑‑Bank obliged only to make payments against bills appearing in drawing schedule‑‑No entries in drawing schedule about authorization of said bills by District Accounts Office‑‑Payment of bills admitted by accused‑‑Entries in Government debit scroll showing payment of said bills‑‑Plea of accused that drawing schedule was not received in bank, found negated by evidence on record‑‑Since none of seven bills appeared in drawing schedule, payments against them shown in Government debit scroll, held, were unauthorised and fictitious‑‑Accused having dominion over bank a‑mount, made fictitious payments and thereby misappropriated bank money and committed criminal breach of trust.
Syed Ali Bepari v. Nibaran Mollah and others P L D 1962 S C 502: Abdul Majid v. Superintendent and Remembrancer Legal Affairs, Government of East Pakistan P L D 1964 S C 422 and State v. Manzoor Ahmad P L D 1966 S C 664 ref.
(c) Penal Code (XLV of 1860)‑‑-
‑‑‑Ss. 409/109 & 467/468/471/201‑‑Prevention of Corruption Act (II of 1947). S. 5 (2)‑‑Forgery‑‑Falsification of account‑‑No Government bills prepared or presented for payment‑‑Only fictitious entries of payment in Government debit scroll made‑‑Offence of forgery, held, was not committed in respect of Government bills which never ex s d. Making false entries in Government debit scroll, however, would fall under falsification of accounts, punishable under S. 477‑A, P.P.C.
(d) Prevention of Corruption Act (II of 1947)‑---
‑‑‑S. 5(2)‑‑Abusing official position‑‑Accused bank employees made fictitious entries and falsified bank accounts‑‑Accused, held, had drawn pecuniary advantage by abusing official position and were, therefore, convicted under S. 5(2), Prevention of Corruption Act.
Kh. Saeed‑uz‑Zafar, Special Prosecutor for the State.
Saleem Mahmood Chan for Respondents.
JUDGMENT
In this case, complaint dated 11‑10‑1975 Exh P.W.6/A‑4 was made by the District Accounts Officer, Gujranwala to the S.P. Gujranwala in respect of payment made by the bank from the Government account without said payments having been authorized by him. It was stated in this complaint that it had been noticed that in the account relating to 2‑5‑1975, payments of sums of Rs.4,950, Rs.1,000, Rs.10,700, Rs.6.000, Rs.115, Rs.7,513 and Rs.4,935 totalling Rs.35,213 had been made by National Bank of Pakistan, Civil Lines Branch, Gujranwala without any authority from his office. It was further stated in this complaint that despite best efforts, the bank had failed to intimate authority for payment from his office i.e. token No and date, scroll No and date and name of the department. In the end, it was requested that necessary arrangements be made to investigate the case as ordered by Deputy Commissioner, Gujranwala.
2. On the basis of this complaint, F.I.R. No.147 Exh.P.W.6/A‑6 was registered on 22‑1‑1976 in P.S. City Gujranwala for offences under sections 409/109, 467/468, 471/201, P.P.C. In investigation on 20‑12‑1976 in the presence of Mukhtar Ahmad, Staff Officer, Qazi Saleem Akhtar, Assistant Manager, N.B.P., Civil Lines Branch, Gujranwala produced and I.O. Bashir Ahmad A.S.I. P.S. Model Town, Gujranwala, took into Possession, by virtue of memo of said date, carbon copy of payment scroll dated 2‑5‑1975 consisting of 41 pages and cashier's payment register from 29‑6‑1974 to 23‑6‑1975, having 1 to 200 printed page marking, on page 115 of which, there were entries from serial Nos. 47 to 53 of the payment of bills alleged to have been unauthorisedly paid. On 27‑6‑1977, Ch. Ali Ahmad, Accountant, District Accounts Office, Gujranwala and Muhammad Hanif A.S.I, P.S. Model Town, Gujranwala took into possession by virtue of memo of said date the original copy of scroll dated 2‑5‑1975 in which seven lost vouchers stood entered alongwith summary of the said vouchers and Letter No. Misc. GENISL: 580, dated 3‑9‑1975 from N.B.P. Civil Lines Gujranwala addressed to Accounts Officer Gujranwala. The accused Muhammad Siddiq, Clerk, Accounts Office, Gujranwala, Muhammad Asghar Butt, Supervisor, N.B.P. , Civil Lines, Gujranwala, Nazar Karim Bhatti, Officer of N.B.P. , Civil Lines, Gujranwala and Abbas Raza Cashier of the said branch of N.B.P. were challaned by the S.H.O., P.S. Model Town on 19‑11‑1977. This was an incomplete challan as it was stated in it that the samples of the writing of the accused and Mushtaq Ahmad Clerk had been sent for comparison to the handwriting expert, Lahore, and the result was awaited.
3. The Special. Judge (Central) before whom the trial of the accused started charged the four accused for offence under section 409, P.P.C. for having committed offence of criminal breach of trust as public servant of the said sums amounting in all to Rs.35,213 by showing its payment to fictitious persons and for offence under section 467, P.P.C. for having forged seven Government bills which are valuable securities worth Rs.35,213, entered the same in the Government scroll and for having made entries of their payments in cash register without recording any name or address in the same. He also charged them with offence under section 5 of Act II of 1947 for having drawn pecuniary advantage of Rs.35,213 from the said transaction.
4. In this case, 12 witnesses appeared. Hashmat Ali A.S.I. appeared as P.W.6 as a formal witness who recorded formal F.I.R. Exh.P.W.6/A‑6 on the basis of letter Exh.P.W.6/A‑4, which constituted the complaint in this case. So far as the production of documents on 27‑6‑1977 before Muhammad Hanif A.S.I. is concerned, Sardar Hasan Muhammad appeared as P.W.3, Muhammad Abdullah as P.W.4 and Muhammad Hanif A.S.I. appeared as P.W.11. They proved that Ch. Ali Muhammad Accountant, District Accounts Office, Gujranwala had presented and the said police officer had by virtue of memo. Exh.P.B taken into possession bank scroll Exh.P‑1 and its relevant summary Exh.P.2 and a letter, dated 3‑9‑1975 from N.B.P. Civil Lines Gujranwala addressed to Accounts Officer, Gujranwala Exh.P.19. The said letter was to the effect that the instructions to give particulars alongwith token No of District Accounts Office, as given on the payment scroll, are always followed by the bank but in case of seven bills, the token numbers had been missed through an oversight and that Payment Advice of District Accounts office had been misplaced on account of rush of work. Over and above that Muhammad Hanif A.S.I. stated that he had taken samples of the writing of the accused and one Muhammad Mushtaq, Clerk of the Civil Lines Branch N.B.P., before the Magistrate for comparison with the writing on bank scroll Exh.P.1. These specimens are P.3 to P.18. He also took the specimens of the signature of Muhammad Asghar Butt as P.W.11/1 to P.W.11/6. He stated that he had got those sent to the handwriting expert for comparison. These specimens and suspected document P.1 and P.2 were sent to the handwriting expert but were returned as per letter dated 26‑10‑1977 from the Director Forensic Science Laboratory in which further samples and particulars were called for. This letter which is on the record of this case shows a receipt stamp of office of the S.P., dated 27‑10‑1977 and the samples also bear the stamp of Forensic Science Laboratory, Lahore showing that the said samples had been to the office of Forensic Science Laboratory. It, however, appears that no action was taken to send further samples to the handwriting expert. It is also not understandable as to how the said suspected document alongwith the samples came on the record of this case without anything further having been done by the investigating agency or without complete challan having been filed. Therefore, these samples of the handwriting continue to remain on the file without any benefit to the prosecution.
5. So far as production of documents on 20‑12‑‑1976 before Bashir Ahmad, A.S.I. is concerned Qazi Saleem Akhtar appeared as P.W.1, Mukhtar Ahmad as P.W.5, A.S.I. Bashir Ahmad, I.O. as P.W.12. Qazi Saleem Akhtar, appeared as P. W.1 in the Court of Special Judge (Central) but as also shown by the interlocutory order dated 8‑12‑1981, his complete statement could not be recorded as record mentioned in the relevant seizure memo. Exh.P.C. and alleged to have been taken into possession were not available on the court file. The said record consisted of carbon copy of payment scroll dated 2‑5‑1975, consisting of 41 pages, and the cashier's payment register which as recorded in report under section 173, Cr.P.C. was meant to show that Abbas Raza Khan Cashier had not entered in the said record and in his said book the names and the addresses of the persons to whom he had male payments. After incomplete statement of said witness had been recorded, the prosecution got number of dates for production of the said record. The record was not produced even till the end of 1982 and learned Special Judge (Central) by his order dated 19‑12‑1982 refused to give any further time to the prosecution to produce the said record and proceeded to record the, remaining evidence in this case. Mukhtar Ahmad appeared as P.W.5 and stated that the record mentioned in Exh.P.C. was produced by P.W.1 Qazi Saleem Akhtar, Assistant Manager. In cross‑examination he accepted that the record mentioned in memo. Exh.P.C., payment book containing 200 pages, was missing from the file. Bashir Ahmad, I.O. appeared as P.W.12 to prove the presentation to him of said papers/ documents. However, by inadvertence he also stated that he took into possession debit scroll Exh.P.W.12/1 to Exh P.W.12/17 by virtue of seizure memo. Exh.P.W.12/18. His said statement, however, was not correct as regards Exh.P.W.12/1 to Exh.P.W.12/17, because according to the memo. he had taken into possession carbon copies of the payment scrolls while Exh.P.W.12/1 to Exh.P.W.2/17 were not the said scrolls. The document Exh.P.W.12/1 was the summary already marked as EXh.P.2 and had not been taken into possession by him while documents EXh.P.W.12/2 to Exh.P.W.12/17 were actually sample sheets of samples of handwriting of the accused and another person, taken on blank debit scrolls, had already been marked as Exh.P‑3 to P‑18 and had been wrongly marked over again as Exh.P.W.12/2 to Exh.P.W.12/17 on account of inadvertant mistake on the part of the Special Prosecutor. As a matter of fact it is clear from the interlocutory orders of the Court of Special Judge (Central) from 8‑12‑1981 to 19‑12‑1982 that the said Payment scrolls had been lost. This witness also stated that he also took into possession the Cashier's Payment Register from 29‑6‑1974 to 23‑6‑1975 but the same had been misplaced somewhere and at present it was not on the file. The result is that neither the carbon copies of the payment scroll for 2‑5‑1975 consisting of 41 pages nor Cashier's Payment Register from 29‑6‑1974 to 23‑6‑1975 is available on the file. The relevant page of the original debit scroll or payment scroll for 2‑5‑1975 was produced by the District Accounts Office and is on record and, therefore, the loss of carbon copy of the same has not affected the case materially but the loss of cashier's payment register has robbed the prosecution of the proof of the paying cashier, accused Abbas Raze Khan, not having entered the names and addresses of the payees to whom he made payments on the disputed seven bills.
6. Muhammad Sarwar District Accounts Officer appeared as P.W.2 in the Court of Special Judge (Central) and stated that he had brought the scroll register from 5‑4‑1975 to 2‑5‑1975, which he produced for the perusal of the Court and stated that according to his record payment made by the N.B.P. amounting to Rs.35,213 vide seven entries marked on debit scroll Exh.P.A. as Exh.P.A./1 had been made unauthorisedly as his office had not allowed the payment of the said amount. He, however, admitted in cross‑examination that the occurrence related to the period of Muhammad Abbas, his predecessor‑in‑office. Muhammad Abbas, who was posted as District Accounts Officer, Gujranwala on 1‑8‑1975, appeared as P.W.8 and Fazal Hussain who as District Accounts officer was transferred to Gujranwala in April, 1984 appeared as F.W.10. The crux of their evidence is that the procedure of their office is that the bills of the Government Departments are submitted in the Office of D.A.O., who issues token numbers to the presenters and makes entry of token numbers on the bills and after 2/3 days returns the passed bills to those presenters who surrender their tokens in the District Accounts Office to get the passed fills. They further stated that the number of the token is allowed to remain written on the bills and payment advice known as drawing schedule is prepared in triplicate in the office of .District Accounts Officer in respect of passed bills, original of which is sent to the bank and when the passed bills are presented by the representatives of Government Departments in the bank for payment, the bank has to make sure that the bill is included in the drawing schedule and without its entry in the said schedule, the bank is not authorised to make any payment and if a passed bill is presented B but there is no entry of same in the drawing schedule, then the bank has to refer the matter to the District Accounts Officer and is not to make payment until the bill is included in a drawing schedule. They also stated that after the payment is made, the debit scroll alongwith the vouchers on which payments have been made by the bank are sent to the Office of District Account Officer for preparation of monthly accounts of receipts and payments. Fazal Hussain P.W.10 had also stated that the drawing schedule is prepared in triplicate; the original copy goes to the bank, first carbon copy goes to the section in which bills are passed, while the second carbon copy is retained in the register. He produced the said register as Exh.P.W.10/1. It contained the carbon copies of the drawing schedules from 5‑4‑1975 to 2‑5‑1975 obviously including the relevant drawing schedule of 2‑5‑1975. He stated that he had not found the said seven entries entered in the drawing schedule of 2‑5‑1975 or any other schedules of earlier dates. He also stated that all the drawing schedules in the said register were genuine as they were signed by Muhammad Muslim, District Accounts Officer, who had died before he had taken over at Gujranwala.
7. Kanwar Munir, who was posted as Clerk in Civil Lines Branch, N.B.P., Gujranwala was examined as P.W.7. He stated that Muhammad Asghar Butt, Nazar Karim and Abbas Raze were respectively working as supervisor, officer and cashier on 2‑5‑1975. He also stated that he could not identify the handwriting on the debit scroll P.1 and could not say as to who had written them. He also stated that it was the duty of three employees of the bank on 2‑5‑1975 to prepare the Government debit scroll and one of them was accused Muhammad Asghar Butt but there were also one Wahab and Muhammad Mushtaq who is a P.W. in this case but had left for Germany. Another officer of the bank Mahboob Ali Shah appeared as P.W.9. He stated that the Government debit scroll is prepared in the bank and that the bills passed by the District Accounts Office, bearing signature of the District Accounts Officer' and embossed seal of District Accounts Office, Gujranwala, were presented in the bank, the clerk receiving the said bills makes entry of the same in the debit scroll and after he had made entries, he sends bills to the concerned officer who after verifying signature of D.A.O. on the bills and after verifying the entry of the bills in the drawing schedule passes the bills as fit for payment, and the persons who have tokens with them present their tokens to the cashier, signs the bills and get the amount of the bills from the cashier. He also stated that the clerk who is making the Government payment, thereafter, enters all the vouchers of the day in the Government Debit Scroll and totals the entire payment which is called summary and also balances the payments with the transfers and the cash actually paid and on the next day in the morning he sends the debit scroll alongwith the vouchers to the concerned bank officer who signs it in token of its correctness and sends it back to the said clerk. He further stated that thereafter the said clerk after entering the same in the register sends all the vouchers and the Government debit scroll to the District Accounts Office. He also stated that he could not identify the handwriting of anyone of the employees of the said branch who were working there in 1975. After the statement of said witness has been recorded, prosecution evidence was closed.
8. Thereafter statements of the accused under section 342, Cr.P.C. were recorded. The three accused who are employees of N.B.P., Civil Lines Branch Gujranwala, namely, Abbas Raze Khan, Supervisor, Nazar Karim Bhatti, officer and Muhammad Asghar Butt, paying cashier, admitted payments having been made as shown in the entries P.A/1 in Government debit scroll P.1 but denied that they had made the said payments unauthorisedly. They took the stand that drawing schedule had not been received and payments had been made in routine on seeing the signature of District Accounts Officer and the embossed seal of District Accounts Office authenticating the signatures of District Accounts Officer on the bills. They also raised the plea that vouchers (paid bills) had been sent to the office of District. Account Officer where those had been lost and that office had shifted the responsibility on to the shoulders of the bank employees. Abbas Raze Khan also stated that he was working as a paying cashier and had made payments on receiving token of Government bills. Accused Muhammad Siddiq denied that he had withdrawn the sum of Rs.35,213 alongwith other accused from the bank and stated that he had no concern with the employees of the N.B.P. He further said that he had merely pointed out to the District Accounts Officer that vouchers had not been received from the bank in the District Accounts Office and he had been hauled up only on that account. The accused stated that they would not produce any defence. They also stated that they would not even appear as witness in their own defence under, the option available to them under subsection (2) of section 340, Cr.P.C. as it stood before its amendment in 1985. Since the amendment made in 1985 in subsection (2) of section 340, Cr.P.C. making it incumbent for the Court to record statement of an accused person as a witness in his own defence took away the right of an accused person to exercise option to appear or not to appear as a witness in his own defence and this was a substantive right, I had held in my order, dated 12‑6‑1985 in State v. Khan Muhammad (Case No. 5 of 1984 of this Court) that the amended subsection (2) of section; 340, Cr.P.C. was not retrospective in effect and did not apple to pending cases. I, therefore, did not compel the accused to appear as witnesses in their own defence to disprove the charges and allegation made against them.
9. I have heard arguments of learned counsel for the accused and learned Special Prosecutor twice I have also perused the record thoroughly.
10. From the statements of P.W.8 Abbas Khan and P.W.10 Fazal Hussain it stands established that all bills passed by the office of District Accounts Officer are entered in a drawing schedule (also called payment advice) which is sent to the bank to enable the bank to make payment to persons who present to the bank the Government bills bearing the signature of the District Accounts Officer in token of his having passed it as well as the embossed seal of the District Account Office authenticating the said signature. It also stands proved that the bank can make payments on a bill only if its entry is available in a drawing schedule sent by the District Accounts Officer to the bank. One of the pleas raised by the three accused belonging to N.B.P., namely, Muhammad Asghar Butt, Supervisor Nazar Karim Bhatti, Officer and Abbas Raza Khan paying cashier is that no drawing schedule was sent to the bank and payment was made by them from the bank funds on the basis of Government bills bearing the signature of District Accounts Officer as authenticated by the embossed seal of the said office available on them. The question therefore, is whether the drawing schedule of 2‑5‑1975 was sent to the said branch of the bank. It is however, notable in this connection that the stand of the Manager of Civil Lines Branch of the bank right from the beginning was that the drawing schedules including one on which payments on 2‑5‑19.75 were made had been received in the bank. Pointed reference in this connection is made to Exh.P.19, letter, dated 3‑9‑1975 from the Manager Civil Lines Branch, Gujranwala, to Accounts Officer, Gujranwala, in which it was stated that advice (drawing schedule) of the District Account Office, Gujranwala had been misplaced on account of overwhelming rush of work. This letter by the Manager specifically accepted the receipt of the drawing schedule in the bank. Again in Exh.P.W.6/A‑5 letter dated 5th of January, 1976 from the Manager N.B.P., Civil Lines Branch to the S.P. Gujranwala, a paragraph from earlier letter, dated 20‑8‑1975 of the bank was quoted and other reasons to explain the said payment were given but no stand was taken that drawing schedule had not been received in the bank and thus, the receipt in the bank of the drawing schedule was again accepted by him by implication. Furthermore, even in the document put in by the accused in their defence, the factum of drawing schedule having been received stands accepted. In Exh.D.C. letter, dated 12‑8‑1975 from District Accounts Officer to Manager of the branch, specific reference was made to daily advice (Drawing Schedule) having been sent by the District Accounts Office to the bank and in Exh.D.D. reply letter by the Manager, there is no denial of receipt of said drawing schedule by the bank. It is true that Fazal Hussain P.W.10 had stated. that signature for receipt by the bank of the drawing schedule was and is taken on a separate book which is named Dak Book but the Dak Book would have been produced before and taken into possession by the police if the bank had denied having received the drawing schedule for 2‑5‑1975. However, as the things stood at the time when investigation in the case was made and challan submitted, the Manager of the bank had already in his letter Exh.P.19 accepted that the said drawing schedule had been received in the bank. P.W.8 Muhammad Abbas. District Accounts Officer, who took over in Gujranwala on 1‑8‑1975, categorically denied the suggestion that the drawing schedules had not been despatched to the N.B.P. every day regularly. On this evidence, in my opinion the plea of the accused that no drawing schedule was received in the bank appears to be an afterthought and is not liable to be believed and indeed appears to be false in toto.
11. In this connection, I am conscious that P.W.8 Abbas Khan, District Accounts Officer, Gujranwala stated in his examination‑in‑chief that the drawing schedule sent by the District Accounts Office is not available on record but as deposed by P.W.10 Fazal Hussain, drawing schedule is made in triplicate and the original is sent to the bank and, therefore, the drawing schedule sent to the N.B.P., Civil Lines Branch was an original drawing schedule which according to Exh.P.19, the letter of the Manager, had been misplaced somewhere. In these circumstances, Exh.P.W.10/1 the drawing schedule register, containing the carbon…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.