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Petitioner: RIAZUDDIN JAUHAR VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Ghazanfar Ali Gondal Title: RIAZUDDIN JAUHAR vs THE STATE Case No.: Case No. 61 of 1984 Date of Judgment:1985-02-26 Reported As: 1985 P Cr. L J 1849 Result: Accused convicted.
JUDGMENT
JUDGMENT ' The facts of the prosecution case as can be gathered from the challan and the documents attached thereto are that accused Riaz-ud-Din Jauhar and Anwar Adil, the acquitted accused, were Assistants in National Bank of Pakistan, Model Branch, Karachi. Riaz-ud-Din Jauhar, accused, stole two demand draft books; one containing 100 blank draft forms, from No, 15002801 to 15002900 and the other also containing the same number of draft forms from 1553901 to 15004000, some draft advice and fan-fold forms and took those to his own home at Karachi. Thereafter, he filled in seven demand draft forms, dated 12-2-1981, purporting to have been issued by National Press Trust Building Branch' N.B.P., Karachi to different branches of N.B.P. At Lahore for different sums of money in his favour as payee or his order after making on them signatures in red ink of S. All Mujtaba Rizvi, the then Accountant and Feroze Shah Khan the then Manager of said Branch of N.B.P., Karachi in his own hand. He also prepared seven advices and seven fan-folds, all dated 12-2-1981, relevant to said seven demand drafts in his own hand. He made siguatures of said two officers on said documents also in his own hand. On 16th February, 1981 he presented demand draft No, 15003906, Exh.P.W.1/1 for a sum of Rs,3,000 shown to have been issued by N.P.T. Building Branch, N.B.P., Karachi to the Manager, N.B.P. Samanabad Branch, Lahore. The said demand draft shows two signatures of Riaz-ud-Din Jauhar on its back and these were verified by Tasnim M. Saleem, Proprietor of Libas Markaz, Samanabad, , Lahore, an account holder of said branch of the bank and on the basis of said verification he got the said demand draft encashed and received a sum of Rs,3,000 on 16-2- 1981. Thereafter, he took demand draft No, 15003911, Exh. P.W. 3/13, for a sum of Rs,1,25,000 shown to have been issued by N.P.T. Building Branch, N.B.P., Karachi to Manager N.B.P., McLeod Road Branch, Lahore, payable to him or his order and presented it in Muslim Commercial Bank Ltd. Railway Road
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Branch, Lahore, for collection. The accused had made endorsement on the back of this draft, under his signature, that it should be paid to M/s. Bhutta Trade Impex, whose proprietor had, in his own turn, made an endorsement, under his own signature, that it should be credited to their account No, 449 with the said bank. The M.C.B., Railway Road, Lahore sent this cheque for collection to N.B.P. McLeod Road Branch, Lahore. The Manage'r N.B.P. McLeod Road Branch, Lahore, however, found that check signal on the demand draft was incorrect. He, therefore, by means of a telegram dated 17-2- 1981 (Copy Exh. P.W. 3/11) informed Milba Trust Karachi of the incorrectness of the said signal on the said demand draft and sought advice telegraphically. He returned the demand draft to M.C.B, Railway Road Branch, Lahore with an objection slip dated 17-2-1981 Exh.P.W. 3/15 with an objection that disbursement guarantee is required for payment. It appears that the said demand draft was again sent for collection. In the meantime, Milba Trust Karachi in its reply telegram dated 18-2-1981 to N.B.P., McLeod Road Branch, Lahore informed that the said draft had not been issued by N.P.T. Building Branch of N.B.P., Karachi and payment should be stopped. Accordingly, the Manager N.B.P., McLeod Road Branch, Lahore informed the Manager of M.C.B., Railway Road Branch, Lahore that demand draft was fake and forged and again returned the said draft with a fresh objection slip, dated 19-2-1981, Exh. P.W. 3/16, asking for disbursement guarantee over again. On the same day, however, Riaz-ud-Din Jauhar, accused, appeared in M.C.B. Railway Road Branch, Lahore and produced cheque No, 955870, dated 16-2-1981, Exh. P.W. 3/14, issued by Bhutta Trade Impex for a sum of Rs, 1,25,000 in favour of accused Riaz-ud-Din Jauhar. Riaz-ud-Din Jauhar made his signature on the back of this cheque and presented it for encashment in the hope that the demand draft deposited by him in the account of Bhutta Trade Impex would have been encashed by this time. On this the Manager Railway Road Branch of M.C.B. Contacted the Manager N.B.P. McLeod Road Branch, Lahore, and informed him of arrival and presence in the bank of the accused to get cash. P.W. 11 Azmatullah Khan, the Manager McLeod Road Branch of N.B.P., Lahore then made a written complaint, Exh.P.W. 11/1, dated 19-2-1981 to the S.H.O., P.S. Naulakha giving the above facts and further stating that on receipt of telegram from Karachi, he had infromed the Manager M.C.B. Railway Road, Lahore that draft No, 15003911 was bogus, fabricated and fake and he should keep a watch on the payee of the said draft, namely, Riaz-ud-Din Jauhar. It was further stated in this complaint that the said Manager of M.C.B. Had just informed him that the said payee Riaz-ud-Din Jauhar was sitting in the branch and was waiting for the payment of the amount of draft to him. On the basis of the said complaint, F.1.R. No, 44/81, Exh.P.W.12/1, for offences under sections 409, 420, 468 and 471, P.P.C. Was registered in Police Station Naulakha on 19-2-1981. Bashir Ahmad S.I., proceeded to M.C.B., Railway Road, Lahore and apprehended the accused, Riaz-ud-Din Jauhar in the said branch of the M.C.B. On personal search of the accused in the presence of P.W. 11 Azmatullah, Manager N.B.P., McLeod Road Branch, Lahore and P.W. 3 Muhammad Saleem Manager (Operation) N.B.P., Zonal Office, Lahore, he recovered from the pocket of the accused Riaz-ud-Din Jauhar demand draft No, 15003915, dated 12-2-1981 for Rs,90,000 puporting to have been issued by N.P.T. Building Branch, N.B.P., Karachi to Ichhra Branch of N.B.P., Lahore Exh.P.W.3/3 and demand draft No, 15003918, dated 12-2-1981, for a sum of Rs,1,10,000 purporting to have been issued by N.P.T. Building Branch of N.B.P., Karachi, to N.B.P. Data Darbar Zaildar Road, Lahore Exh.P.W.3/4 and draft advice and fan-fold dated 12-2-1981 relating to the latter draft, respectively Exh.P.W.3/5 and Exh.P.W.3/6 and demand draft No, 15003905, dated 12-2-1981 for a sum of Rs,2,500 purporting to have been issued by N.P.T. Building Branch of N.B.P., Karachi to N.B.P. Chauburji Branch, Lahore in favour of Riaz ud-Din Jauhar as payee Exh.P.W.3/7 and its relevant draft advice P.W. 3/8 and its connected fan- fold Exh.P.W.3/9. All these documents were taken into possession by the Investigating Officer by virtue of memo. P.W. 3/10. On the same day P.W. 11 Azmatullah Khan, Manager produced before the said Investigating Officer a photo copy of demand draft No, 15003911, dated 12-2-1981 Exh.P.W.3/1 which he had got prepared for record in his branch of the N.B.P. This was taken into possession by
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the said Investigating Officer on the said date vide memo. Exh.P.W.3/2 in the presence of P.W. 5 Fahim Butt, Manager, M.C.B., Railway Road, Lahore and P.W. 3 Malik Muhammad Saleem. On 21-2- 1981 P.W. 5 Fahim Butt, Manager M.C.B. Produced before the said Investigating Officer the original demand draft No, 15003911, dated 12-2--1981 for a sum of Rs,1,25,000 Exh.P.W.3/13, objection slips dated 17-2-1981 and 19-2-1981 by the National Bank of Pakistan, McLeod Road' Branch Exh.P.W.15-16 as well as cheque No, 955870, dated 16-2-1981 from Bhutta Trade Impex, in favour of Riaz-ud-Din Jauhar, accused for a sum of Rs,1,25,000 Exh.P.W.3/14 and an objection slip prepared by M.C.B. Railway Road, Lahore purporting to return the said cheque to the presenter with the endorsement 'Refer to the drawer' Exh.P.W.3/17. The said Investigating Officer took these documents into possession vide memo. Exh.P.W.3/18 on the same day in the presence of P.W. 11 Azmatullah and P.W. 3 Malik Muhammad Saleem. On 21-2-1981 P.W. 11 Azmatullah Khan, Manager, N.B.P. McLeod Road Branch, Lahore, produced before the said Investigating Officer photostat copy of telegram sent by him to Milba Trust, Karachi Exh.P.W.3/11 and photo copy of receipt of the telegram, the reply telegram from Milba Trust, Karachi stating that the said demand draft had not been issued by N.P.T. Building Branch of N.B.P., Karachi, and payment should be stopped, and draft advice of said demand draft for the said sum of Rs,1,25,000 Exh.P.W.8/1 and its relevant fan-fold Exh.P.W.8/2. Bashir Ahmad, Investigating Officer took these five documents into possession vide memo. Exh.P.W.3/12 in the presence of P.W. 5, Fahim Butt and P.W. 3 Malik Muhammad Saleem. The accused Riaz-ud-Din Juahar led the Investigating Officer to Samanabad Branch of N.B.P. Where P.W. 4 Khuda Yar, Accountant produced before him draft No, 15003906, dated 12-2-1981 Exh.P.W.1/1 issued by N.P.T. Building Branch, National Bank of Pakistan, Karachi for Rs,3,000 in favour of Riaz-ud-Din Jauhar payee, which had been encashed on 16-2-1981, from that branch on the basis of verification of signature of Riaz-ud-Din Jauhar by Tasneem M. Saleem proprietor of Libas Markaz, an account holder of the said branch of the bank holding Account No, 146 there and draft advice relating to the said draft Exh.P.W.1/2 fan-fold relating to the same draft Exh.P.W.1/3 and specimen signature card of said Tasneem M. Saleem Exh.P.W.1/4. The Investigating Officer took these documents into possession vide memo. Exh.P.W.1/5 in the presence of P.W. 1 Zahid Mahmood, Head Cashier, Samanabad Branch of N.B.P. On 22-2-1981. The accused Riaz-ud-Din Jauhar while in police custody made a disclosure that he had kept the sum of Rs,3,000 which he had got by encashment of the said demand draft on 16-2-1981 from N.B.P., Samanabad Branch, Lahore in an attache-case in the house of his friend, Mirza Mahmood Beg resident of Rahat Park, Samanabad, Lahore and led the police party to the said house and brought out the said sum of Rs,3,000 after opening the said attache-case and produced it before the Investigating Officer in the presence of P.W. 4 Khuda Yar. The said sum consisted of 30 currency notes of one hundred rupees each. Apart from that, draft No, 15003919, dated 12-2-1981, for a sum of Rs,1,05,000, shown to have been issued by N.P.T. Building Branch of N.B.P., Karachi to N.B.P. Krishan Nagar Branch, Lahore, in favour of Riaz-ud-Din Jauhar, payee, Exh.P.W.4/1 and its relevant draft advice P.W. 4/3 and fan-fold P.W. 4/5, and demand draft No, 15002851, dated 12-2-1981 alleged to have been issued by National Press Trust Building Branch of National Bank of Pakistan, Karachi to Badami Bagh Branch of National Bank of Pakistan, Lahore for a sum of Rs,1,20,000 in favour of accused Riaz-ud-Din Jauhar payee Exh.P.W.4/2 and relevant draft advice of the said draft P.W. 4/4 and its connected fan-fold Exh.P.W.4/6 were also recovered from the said attache-case. The Investigating Officer took the said money and the said documents into possession vide memo. Exh.P.W.4/7 in the presence of Khuda Yar P.W. 4. The Investigating Officer, thereafter proceeded to Karachi alongwith accused Riaz-ud-Din Jauhar. The said accused had made disclosure that he had concealed the said bank demand draft books and two stamps of Model Branch, N.B.P., Karachi in his house and that he could get them recovered and accordingly led the police party to his residential quarter, namely, House No, 5, Street No, 14, Block No, H/2, Nazimabad, Karachi and got recovered the said two draft books
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Exh.P.W.7/1 and Exh.P.W.7/2 (out of one, four blank demand draft forms were missing and out of the other 9 blank draft forms were missing, including the seven drafts which are subject-matter of present case) and two stamps, one of Feroze Shah Khan, Staff Officer and the other of N.P.T. Building Branch, Karachi and seven blank forms of draft advices and 7 blank forms of fan-folds. The Investigating Officer took these into possession, vide memo. Exh.P.W.13/1. The Investigating Officer arrested at Karachi co-accused Anwar Adil, since acquitted. When the said Investigating Officer had returned to Lahore P.W.6 Abdul Basit, Manager, N.B.P., Ichhra Branch, Lahore, produced before him, on 1-3-1981, one draft advice in respect of draft No, 15003915, dated 12-2-1981 for a sum of Rs,90,000, allegedly issued by N.P.T. Building Branch N.B.P., Karachi in favour of N.B.P., Ichhra Exh.P.W.2/1 and its connected fan-fold Exh.P.W.2/2. The Investigating Officer took these two documents into possession vide Memo. P.W. 2/3 in the presence of Muhammad Khalid P.W. 2. 2. The IInvestigating Officer had taken the specimen writing of the accused in the words and figures as given on some of the recovered documents. He also made him make specimen signatures of Feroze Shah Khan and S. Ali Mujtaba in red ink. These were got prepared by the Investigating Officer before a Magistrate on sheets Exh.C.W.1/1 to C.W. 1/3. He also took the specimen signatures and writing of S. All Mujtaba P.W. 9 on sheets P.W.9/1 to P.W. 9/3 before a Magistrate. He also took the specimen signatures of Feroze Shah Khan P.W. 8 on sheets P.Ws.8/3 to 5, later also exhibited as Exhs.C.W.2/1 to 3. He also took certain writings of the co-accused Anwar Adil since acquitted before a Magistrate. He sent all these documents alongwith the questioned documents to the Forensic Science Laboratory, Crimes Branch, Lahore for opinion of the handwriting expert. The opinion, dated 1-10-1981 Exh.C.W.2/4, signed by Muhammad Sarwar Examiner of questioned documents and by section incharge, in token of his having found the said opinion to be correct in his counter- examination and checking was received. It was to the effect that the questioned signatures of S. Ali Mujtaba and Feroze Shah Khan on all the seven demand drafts and the seven draft advices and all the seven fan-folds were forged when compared with signature of S. Ali Mujtaba, and Feroze Shah Khan, respectively on sheets Exhs.P.W.9/1 to 3 and Exhs.P.W.8/3 to 5 also exhibited as C.W. 2/1 to 3 but were similar in characteristics with the specimen English signatures of said two persons made by accused Riaz-ud-Din Jauhar on specimen sheets Exhs.C.W.1/1 to 3. It was further to the effect that writing on all the seven demand drafts, all the seven draft advices and all the seven fan-folds were similar to specimen English writings on specimen sheets Exhs.C.W.1/1 to 3 made by accused Riaz-ud-Din Jauhar. 3. The trial of the case started in the predecessor Court of Special Judge (Central), who framed charge against the accused Riaz-ud-Din Jauhar and co-accused Anwar Adil on 20-9-1981. The first charge was in respect of theft by them of the draft books, advice forms fan-fold forms and two rubber stamps from N.P.T. Building Branch, N.B.P., Karachi punishable under section 380, P.P.C. The second charge was in respect of forgery of all the seven drafts by the two accused, intending that the aforesaid drafts shall be used for the purpose of cheating and in consequence, commission by them of offence under section 468, P.P.C. The third charge was in respect of use by them in connivance with each others, of the forged draft No, 15003906 for Rs,3,000 Exh.P.W.1/1 and No, 15003911 for Rs,1,25,000 Exh.P.W.3/13 as genuine and thereby commission of offence under section 471, P.P.C. The fourth and fifth charges were respectively for offences under section 420, P.P.C. And under section 5 of Prevention of Corruption Act, 1947. The offences under sections 380, P.P.C., 420, P.P.C. And section 5 of Prevention of Corruption Act, 1947 are not scheduled offences as defined in section 2(d) of Offences in Respect of Banks (Special Courts) Ordinance, 1984 (IX of 1984) and are not triable by this Court. Therefore, neither any evidence in regard to said offence shall be given hereunder nor any comments would be made whether the accused had committed the offences in question or not.
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4. Before the case was transferred to this Court, statements of 14 witnesses had been recorded in the Court of Special Judge (Central) and the prosecution evidence had been closed and now only statement of accused under section 342, Cr.P.C. Was to be recorded. However, on perusal of the statements of prosecution witnesses and other record, to find out the incriminating evidence against the two accused which was to be put to them, some difficulty was encountered as regards co-accused Anwar Adil. I had accordingly asked the Special Prosecutor as well as the learned counsel for the accused to argue as to whether any incriminating evidence was available against accused Anwar Adil and after hearing the Special Prosecutor as well as the learned counsel for Anwar Adil I came to the conclusion that there was no evidence against Anwar Adil to enable me to record his statement under section 342, Cr.P.C. And as such there was no probability of his being convicted for the scheduled offences namely offences under sections 468 and 471, P.P.C. Accordingly, under section 249-A/265-K, Cr.P.C. I by my order dated 3-10-1984 acquitted him of the charge for the two scheduled offences. Thereafter, the statement of the accused Riaz-ud-Din Jauhar was recorded by me on 13-10-1984. He denied the correctness of all the incriminating evidence which had come on record against hitn and had been put to him. He did not claim the amount of Rs,3,000 as his own and stated that the P Ws. Deposing against him were all bank employees and they had supported the bank case. On the question as to why this case had been made against him he replied that actually this fraud was committed by bank officers themselves and he had been made scapegoat. He, however, stated that he would produce no defence. Thereafter, the arguments were heard. After further arguments of the Special Prosecutor and the learned counsel for the accused in regard to the case, especially, explanation to section 47 of Evidence Act, 1872, had been concluded, I by my detailed order, dated 31-10-1984 held that it was essential for the just decision of this case to resummon one witness and summon certain other witnesses. I accordingly resummoned Qalb-e-Abbas P.W. 10 as prayed for by learned counsel for the accused and summoned Muhammad Sarwar examiner of questioned documents and Magistrates before whom the specimens of the handwritings/signatures of accused Riaz-ud-Din Jauhar and Feroze Shah Khan and S. Ali Mujtaba Rizvi were taken. Thereafter, Khalid Bashir Tarar, Magistrate was examined as C.W. 1, Muhammad Sarwar handwriting expert as C.W. 2, Qalb-e- Abbas as C.W. 3, and Abdul Haq, Magistrate as C.W. 4. After hearing the arguments in the case again, I, by my order, dated 19-1-1985, resummoned Bashir Ahmad Investigating Officer, who had already appeared as P.W. 14 as in my opinion it was necessary to do so for just decision of the case. The statement of the said resummoned witness was recorded on 28-1-1985. After this I again examined the accused under section 342, Cr.P.C. On 26-2-1985 to get his explanation for the fresh evidence which had now come on record and appeared to incriminate him. He denied that signatures and writing on the demand draft and other documents were in his hand. He denied that any document written or signed by him, in due course of banking business, passed through the hands of Qalb-e-Abbas P.W. 10. He admitted that his specimen writings and signatures were taken before the Magistrates but alleged that the report of handwriting expert was wrong, baseless and unreliable. He also stated that he had not forged any writing or signature. He also said that bank officers who had made statements against him had tried to save their own skin and reiterated that he had been made a scapegoat. He, however, declined to produce any defence even after the said additional evidence had come on record against him. 5. I would not proceed to find out whether the prosecution story as given in the opening part of this judgment has been made out in evidence on record or not. The said evidence can be classified into following distinct categories:- (i) Evidence in respect of recovery of two draft books containing blank draft forms other documents and two stamps from the house of accused at Karachi.
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(ii) Evidence regarding attempt of the accused to get encashed demand draft Exh.P.W.3/13, for Rs,1,25,000 and recovery by police of the same and other relevant documents in that regard. (iii) Evidence in respect of recovery of demand drafts Exh.P.W.3/13, P.W. 3/4, P.W. 3/7 and other documents relating to latter two drafts on 19-2-1981 on personal search of accused. (iv) Evidence of recovery from Samanabad Branch of N.B.P. Lahore of the encashed demand draft Exh.P.W.1/1, for a sum of Rs,3,000, its connected draft advice Exh.P.W.1/2 and fan-fold Exh.P.W.1/3. (v) Recoveries on pointation of the accused of demand drafts Exh.P.W.4/1, Exh.P,.W.4/2 and other connected documents Exh.P.W.4/3, Exh.P.W.4/5, Exh.P.W.4/4 and Exh.P.W.4/6 from the attache-case kept by the accused in the house of his acquaintance, situated in Rahat Park, Lahore. (vi) Evidence of Feroze Shah Khan and Ali Mujtaba, stating that signature on the seven bank drafts were not theirs and had been forged by someone. (vii) Evidence of identity of specimens of writings of the accused and of signatures of S. All Mujtaba Rizvi and Feroze Shah Khan obtained by the Investigating Officer. (viii) The evidence of the handwriting expert in respect of correspondence of the writing on the demand drafts with the specimen writing of the accused, obtained by the Investigating Officer in the presence of the Magistrates. (ix) The evidence of Qalb-e-Abbas in regard to said identity of the handwriting of Riaz-ud-Din Jauhar on the said demand drafts and other documents. ' EVIDENCE IN RESPECT OF RECOVERY OF TWO BLANK DRAFTS AND TWO STAMPS 6. In this connection only two witnesses appeared. Abdul Rahman constable appeared as P.W. 13 while Bashir Ahmad A.S.I. As P.W.14. Bashir Ahmad A.S.I., P.W. 14, who was Investigating Officer and had gone to Karachi in connection with the investigation of this case, deposed in his statement that the accused got recovered on 24-2-1981 two draft books/Exhs. P.W.7/1 and P.W. 7/2 and two stamps Exhs.P.1 and Exh.P.2 from his house situated in Karachi which were taken into possession by him vide memo. Exh.P.W.13/1. No cross-examination was conducted on the said witness challenging the said recovery at the instance of the accused. The defence, therefore, shall be deemed to have accepted this part of the evidence of the said witness as correct on factual plane. Furthermore, this witness has been corroborated in regard to recovery of two draft books by Abdur Rahman constable who accompanied him to Karachi and appeared as P.W. 13. He had stated that the said accused Riaz-ud-Din Jauhar had in custody led to the recovery of two draft books P.W. 7/1 and P.W. 7/2 which were taken into possession by the said Investigating Officer vide memo. P.W.13/1. He stated that four drafts were missing from one book and nine were missing from the other book. It is true that in cross-examination, he could neither give the correct number of the house of the accused from which the recovery was made nor could tell the name of colony where the house of accused Riaz-ud-Din Jauhar was situated but he gave correct number of the block of the colony and was also able to tell correctly the police station in which said house was situated. On further cross-examination, he stated that accused himself had asked his brothers to bring the two draft books which were lying in a box in the house proving the availability of said blank draft books in the house of the accused at Karachi but no suggestion was given to the said witness that the story of recovery of blank draft books was false and the accused did not lead to the recovery of the said two draft books. It is, therefore, established that the said two blank draft books were recovered from the house of the accused at Karachi. I have seen the said two draft books. First one Exh.P.W.7/1 was supposed to contain blank draft forms from 15002801 to 15002900. However, four drafts forms are missing from it and draft No, 15002851 is one which had been taken out of this book and used in the present case. The other draft book which is P.W.7/2 was also supposed to contain 100 blank draft forms, from 15003901 to 15004000, out of which nine forms are missing including forms Nos. 15003905, 15003906, 15003911 15003915, 15003918 and 15003919 which are the numbers of other drafts used in the present case. Therefore, the prosecution story of
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recovery of two blank draft books Exh.P.W.7/1 and P.W. 7/2 (from which seven draft forms used in the present case are missing) and two stamps P.1 and P.2 from the house of the accused, at his pointation, stands proved on record. ' EVIDENCE REGARDING ATTEMPT OF THE ACCUSED TO GET ENCASHED DEMAND DRAFT…
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