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Petitioner: SHAUKAT ALI VS Respondent: THE STATE
Court Name: Special Court Judge(s): Ghazanfar Ali Gondal Title: SHAUKAT ALI vs THE STATE Case No.: Criminal Miscellaneous No,768'of 1985 Case No,144 of 1984 Date of Judgment:1985-06-16 Reported As: 1986 MLD 2161 Result: Accused acquitted.
JUDGMENT
JUDGMENT Facts of the prosecution case as appear from the F.I.R. As wel as the police report under section 173, Cr.P.C. Are that accused Shaukat Ali was employed as Cashier in the U.B.L. Brandreth Road Branch Lahore. He entered into conspiracy with co-accused Gulzar Ahmad t deprive the bank of sum of money and in pursuance of the sam Gulzar Ahmad, first of all, opened Saving Bank account No,1553 on 16th May, 1970, on a false address and in his false name as Abra Ahmad. He was identified by accused Shaukat All who introduced him as genuine person on the account opening from Exh.P.A. He made an initial deposit of Rs,5,000. On 17th May, 1970, he deposited anothe sum of Rs,3,300. He withdrew a sum of Rs,100 by means of chequ No,SEM 733241 Exh.PE on 18th May, 1970. It is further alleged that Shaukat All got a blank cheque No,SBM 733242 Exh.PB from co-accused Gulzar Ahmad and himself filled the cheque for a sum of Rs,8,200 and gave it to the token clerk and when the cheque came to him, h inserted digit '0' in between digits '8' and '2' changing the sum o Rs,8,200 into Rs,80,200 and also added letter 'Y' in the end of th word eight so as to make the sum of eight thousand, two hundred read as 'eighty thousand two hundred and on that from withdrew the said amount of Rs,80,200 and thus took out from the bank and misappropriated the excess sum of Rs,72,000. 2. Complaint Exh.P.C., dated 21st May, 1970 addressed to D.S.P. (C.I.A), was made by Ch. Abdul Latif, the then 'Manager of the said branch in which it was given that the relevant cheque for Rs,8,200 had passed through various stages/books with the same amount but in the evening when all the vouchers were being checked, it was revealed that the cheque had been altered to show the amount as 80,200 and the said sum had been changed in all other relevant books also. It was stated in the F.I.R. That Shaukat Ali, when enquired, confirmed that Rs,80,200 and not Rs,8,200 were
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paid out by him. It was further alleged that on further inquiry it appeared that changes in records were fraudulently effected by accused Shaukat All who had admitted the same but had pointed to another person, Akram by name, who had received money. On the basis of this complaint Exh. P.C., formal F.I.R. Exh. P.C./1 was registered at P.S. Naulakha, Lahore, on the order of D.S.P. (C.I.A) and the investigation was entrusted to Zafar Ahmad Sh. S.I. C.I.A., Lahore. 3. On 21st May, 1970, P.W. 1 Abdul Latif, Manager produced P.W. 9 Zafar Ahmad Shah, S.1., the investigating officer, the account opening form Exh. P.A., Cheque No,SBM 733242, dated 20th May, 1970 purporting to be for a sum of Rs,80,200, Exh. P.B. And the specimen signature card of Abrar Ahmad Exh. P.D. And Cheque No,SBM 733241, dated 18th May, 1970, Exh. P.E., which were taken into possession by the said Investigating Officer by virtue of memo. Exh. P.F. On the same day, on the pointation of accused Shaukat Ali, the investigating officer was led to the residential room of accused Shaukat Ali from where the accused Shaukat AU after digging earth from underneath the floor of his room brought out a polythene bag containing a packet of 100 currency notes of Rs,500 each and 31 separate currency notes of Rs,500 each and 31 separate currency notes of the same denomination which are exhibited on record as Exh. P.10/1 to 131. This recovery of sum of Rs,65,500 was made in the presence of Muhammad Hassan P.W. 10, Razaullah Khan (not produced) and Muhammad Pervaiz Iqbal P.W.3. The said police officer took the said currency notes into possession vide memo. Exh. P.O. On 2nd May, 1970, P.W.1 Ch. Abdul Latif, the Manager produced before the said investigating officer nine currency notes P1 to P9 of Rs,500 denomination each which had been produced before him by accused Gulzar Ahmad and the investigating officer took them into possession vide memo. Exh. P.G. On 30th May, 1970, Zafar Ahmad Shah, investigating officer filed an application Exh. P.W.9/A in the Court of Magistrate for permission to get the specimen writing/ signature of the two accused in his presence. This application was allowed the same day and specimens were taken. It further appears that said investigating officer had got the said specimens alongwith the questioned documents sent to the private handwriting expert Hafeez Ullah Butt through Manager, U.B.L. Brandreth Road Branch, Lahore. Hafeez Ullah Butt submitted report, dated 31st May, 1970 which is mark 'A' in which he opined that body writing of Cheque No,SBM 733242 for a sum of Rs,8,200/80,200 corresponded with the specimen writing of accused Shaukat Ali and that the writing of the digits 80,200 in the token book was identical with the specimen writing of accused Shaukat All and the overwritten digits read as Rs,80,200 in the register showing balance were also identical with the specimen handwriting of accused Shaukat Ali. So far as Gulzar Ahmad is concerned his report was that signature as Abrar Ahmad on the obverse and reverse sides of the Cheque SBM 733242, dated 20th May, 1970 were identical with the specimen signature of Gulzar Ahmad as Abrar Ahmad. On 2nd June, 1970, Abdul Latif Manager, produced photo stat of ledger sheet of the account in the name of Abrar Ahmad. As Exh. P.1 (also Exh. P.H.), photo stat of paying cashier's book Exh. P.2) (also Exh. P.L.) showing the original entry of sum of Rs,80,200 and photo stat of token book, dated 20th May, 1970 Exh. P.3. (also Exh. P.K.) also showing an entry of Rs,80,200 for the said Cheque. These documents were taken into possession by the I.O. By virtue of memo Exh. P.M. In the presence of Muhammad Pervaiz Iqbal. Abdul Latif, Manager and Pervaiz Iqbal signed the said memo. On 24th June, 1970, Razaullah Khan, Officer Grade-II of Brandreth Road, Branch, Lahore produced before the investigating officer, the letter, dated 13th October, 1965 Exh. P.Q/1 appointing Shaukat Ali as a peon and letter, dated 14th February, 1966 Exh. P.Q/2 promoting him as a cashier and letter, dated 3rd June, 1968 Exh. P.Q/3 transferring the said accused Shaukat All to Brandreth Road Branch permanently. These documents were taken into possession by the investigating officer by virtue of memo. Exh. P.Q. Javed Mansoor and Raze Ullah Khan signed this memo. As attesting witnesses. Thereafter, the accused were challaned to stand their trial before a Court of law.
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4. Trial against the two accused started in this case in the Court of a learned Magistrate who framed charge against the accused on 10th January, 1976 for offences under sections 468, 471, 408 and 420, P.P.C. For having made alterations in the amount of the Cheque in the Brandreth Road Branch of U.B.L. And having fraudulently and dishonestly withdrawn through forgery a sum of Rs,72,000 from the said branch of the bank. So far as charge against Shaukat Ali is concerned it specifically states that he did so while he was employee of the bank. 5. The prosecution produced in the first instance 9 witnesses. The learned Magistrate trying the accused thereafter closed the prosecution evidence. The statements of the accused were recorded by the Magistrate on 26th January, 1981. In that, both the accused denied the allegations of having obtained dishonestly and fraudulently by forgery the sum of Rs,72,000 in collusion with each other. They did not claim also the amounts said to have been recovered from them. Shaukat Ali further stated that as he was Secretary of Branch Employees Union and on account of it, the Manager was inimical towards him and it was for that reason that he had made this false case against him. Gulzar Ahmed, accused, stated that Abdul Latif Manager U.B.L. Used to come to him in connection with the repair of his vehicle, on account of which he got his account opened and he himself had attested his account opening form and later on, relations between them had become strained, on account of which he had made this false case against him. They stated that they were innocent and would produce defence evidence. 6. Shaukat Ali produced two witnesses in his defence, namely Muhammad Farooq as D.W. 1 and Muhammad Shamim Khan as D.W. 2 who testified to the good character of accused Shaukat Ali. Similarly Gulzar Ahmad produced D.W.3 Muhammad Khalil and D.W.4 Muhammad Osman to prove the good character of the said accused. The defence evidence was closed on 22nd February, 1981. 7. In the meantime, the revision filed by the bank against the orders of the Magistrate closing the prosecution evidence without having taken evidence of certain witnesses, came up for hearing and it was accepted in part as per dated that 1st November, 1982 of the Additional Sessions Judge, Lahore, who directed that statement of Muhammad Hasan be recorded as P.W. And the secondary evidence to prove the report of Elafee Ullah Butt handwriting expert who had by that time expired be also taken. Accordingly statement of Muhammad Hasan was recorded as P.W.10 and A.G. Pasha as P.W.11. The latter proved the signature of Hafeez Ullah Butt deceased on the report mark 'A' submitted by him. 8. At this stage, on account of promulgation with effect from 23rd February, 1984 of Offences in Respect of Banks (Special Courts) Ordinance, 1984 (IX of 1984), this case which stood transferred to this Court by virtue of subsection, (3) of section 4 thereof, was sent to this Court and was fixed for fresh statements of the accused under section 342, Cr. P..C. The learned counsel for the accused, however, vociferously- argued that there was no evidence on record incriminating the accused and, therefore, there was nothing to be put to the accused to seek their explanation. -They later filed applications under section 249-A/265-K, Cr.P.C. For acquittal of the accused. Accordingly, I have heard argument of Mr. Jan-e-Alam, Advocate counsel for accused Gulzar Ahmad and Syed Niaz Ali Shah, Special Prosecutor for the State. 9. Evidence adduced in this case against the accused can be divided into following distinct categories:- (i) Evidence of P.W.5 Attaullah, Token Clerk, P.W. 4 Muhammad Riaz, Ledger Clerk, P.W.6 Javed Mansoor, Officer and P.W.1 Abdul Latif, Manager regarding the details of the occurrence and interpolation in bank record. (ii) Evidence in introduction by Shaukat Ali accused of Gulzar Ahmad accused as Abrar Ahmad for opening a false account and impersonation by Gulzar Ahmad as Abrar Ahmad. (iii) Evidence of identification of interpolated digit '0' and letter 'Y' in bank record by prosecution witnesses.
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(iv) Evidence in respect of identification of the same by the hand-writing expert. (v) Evidence in respect of recovery of sum of Rs,65,000 (including a packet Exh.PN of hundred notes of Rs,500 denomination each) from the residential room of accused Shaukat Ali. (vi) Evidence in regard to voluntary presentation by accused Gulzar Ahmad of a sum of Rs,45,000 to P.W.1 Abdul Latif and presentation by P.W.1 Abdul Latif of the said sum to and seizure by Zafar Ahmad Shah, S.1., of the said sum. 10. I will now take up evidence of different categories one by one. 11. As for evidence in the first category I feel inclined to take up evidence of P.Ws. In the order in which a transaction of encashment of a Cheque takes place in the bank. First is statement of Ataullah, Token Clerk, who appeared as P.W.S. His statement is to the effect that on 20th May, 1970 accused Shaukat Ali had brought four cheques to him including Cheque No,233242 Exh. P.3. For entry in the token book and assignment of a token to the said cheques and that he had accordingly made entry in the token book Exh. P.K. At Sr.No,9 of a sum -of Rs,8,200 for the relevant cheque and marked Token No, on the said cheque and returned it to him and that he had made the final total and the grand total on the sheet relating to 20th May, 1970 of the said token book but when after lunch he. Had come back, he had found that figure of Rs,8,200 had been changed in the token book so as to read Rs,80,200 and that the said sum was not commensurate with the total already made on the said sheet Exh. P.K.(also Exh.P.3). Next is the statement of P.W.4, Muhammad Riaz, Ledger Clerk. He stated that Shaukat All accused had called upon him twice to finish speedily work of and send out the cheque of saving bank account for a sum of Rs,8,000 approximately as the party was pressing for immediate payment and that he had accordingly posted the necessary entry in the ledger and informed him that he had made necessary entry in the ledger and now the cheque was lying for supervision. He further stated that thereafter he had asked officer incharge, Javed \Mansoor, P.W.6, to make supervision of the cheque who had accordingly done the same and sent the cheque to the Manager for further supervision. He further stated that when he made entry in the ledger, the sum written by him was Rs,8,000 but later on in the ledger Exh.P.H. (also Exh.P.1) h had found that the sum had been changed to Rs,80,200. Javed Mansoor Officer, P.W.6 stated that on being called by the ledger-keeper he has gone to the ledger stand and found the cheque Exh.P.B for Rs,8,20 of the accused Gulzar Ahmad near the ledger. At that time balance I the ledger was 8,300 and he had accordingly made the necessary supervision and had after that come back to his seat and second supervision was done by Abdul Latif Manager. He also said that thereafter, ledger-keeper had sent specimen signature card of Abra Ahmad to him to compare it with the signature on the cheque and h had found the signature to correspond with the signature on the specie signature card and he had given the card and the cheque to Ayyub another bank officer who had signed the said cheque as two officer were supposed to sign for passing the cheque and the cheque ha accordingly been passed. Abdul Latif, the Manager had stated that he had done second supervision of cheque Exh. P.B. For Rs,8,200 0 25th May, 1970. These witnesses had given evidence relating to origin sum recorded on the cheque to be Rs,8,200 and fraudulent withdraw of a sum of Rs,80,200 having taken place by adding digit '0' in betwee digit '8' and '2' in the figure 8,200 and by adding letter 'Y' after 'eight' in the sum written in words 'eight thousand and two hundred Their evidence, therefore, does not pinpoint as to who was the person who had added the digit 10' in between digit '8'and '2' in figure Rs,8,20 and the letter 'Y' at the end of word 'eight' in the sum 'eight' thousand and two hundred' in words. It, -therefore, is necessary to took into the other pieces of evidence on the record to find out the necessa proof of the same. One of the these is the alleged introduction Shaukat All accused as Abrar Ahmad accused of Gulzar Ahmad. Evidencing this regard has been furnished by Abdul Latif P.W.1. He has state that on 16th May, 1970; accused Shaukat Ali had brought before his the said accused whose name he had told him to be Abrar Ahmad an had introduced him (the said accused) to him as Abrar Ahmad. Shauk All had
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told him that he was a good party and that his account shou be opened and, thereafter, Shaukat Ali had gone away and Abr Ahmad had given (the Manager) a sum of Rs,5,000 and he (the Manage had called for account opening form and pay-in-slip book and aft filling in account opening form he had sent the said papers to Jave Manager, officer. What was sought to be proved by this witness w that accused Gulzar Ahmad had posed himself as Abrar Ahmad althoug he was actually Gulzar Ahmad as shown by the evidence of Sh. Ihs Muhammad P.W.7, the Headmaster of Islamia High School, Khazana Gat Lahore, where accused Gulzar Ahmad had schooling and, therefore, the fraudulent withdrawal from the bank had taken place on the base of cheque issued under the signature of Abrar Ahmad, Shaukat A was also party to the same. Another inference which is sought to drawn is that accused Shaukat Ali had abetted accused Gulzar Ahmed in impersonating as Abrar Ahmad. It is, however, notable that in t account opening form there is column meant for the introduction an against the word 'introduced by, the bank official gives his name a signs in token of his having introduced a person in the bank for to purpose of opening an account but in Exh.P.A., the account open form of Abrar Ahmad, against the words 'introduced by', there signature of Manager himself in red ink and it is further written the through Mr. Shaukat Ali'. Such a way of introduction of an account holder in the bank may be permissible under the banking practice stressed by the witnesses of the bank but it does not pin point the person who fraudulently introduced a fictitious person. Since the accused Shaukat Ali had not been made to sign the account opening form in token of his having introduced the accused Gulzar Ahmad, I do not think that the mere presence Of the words 'through Shaukat Ali' conclusively shows that accused Shaukat Ali had introduced the accused ulzar Ahmad in the bank in a false name. No scheduled offence earn, therefore, be considered to have been committed by accused Shaukat All on that account. 12. The next circumstance as shown by statement of the Head Maste Sh. Ihsan Muhammad P.W.7 and Abdul latif P.W.1 is that accused Gulzar Ahmad had posed as Abrar Ahmad. This fact, however, doe not by itself show that the accused Abrar Ahmad had fraudulentl withdrawn any money from the bank or committed forgery in the chequ and other bank record. As far his having impersonated as Abrar Ahmad, the facts if proved can make out an offence under section 419, P.P.C. Only which is not triable by this Court. 13. It appears to me that the only circumstance which could establish the guilt of the accused is either direct evidence, in respect of accused Shaukat Ali having added the digit '0' in the sum written on cheque Exh.P.B. And other bank record in figures and the letter 'Y' in the sum written on the said cheque in words and changed it into a sum of Rs,80,200 or the indirect evidence of identification of the said digit and said letter 'Y' to be in the handwriting of the accused or by ersons knowing the handwriting of the accused or by a handwriting expert. The prosecution has not produced any direct evidence in respect of the accused having made the said addition in the said cheque and bank record. Nobody has appeared as an eye-witness of the said circumstance. As a matter of fact evidence appears to show that it was not possible for the accused Shaukat Ali to do so at the time when every employee of the bank was working on his seat especially when as shown in evidence, anything being done on every seat in the bank was visible from the cabin of the Manager. It was possible for the accused to have made said additions in the said cheque as well as other bank record namely token book and the ledger book during interval when the clerical staff goes out for lunch. Muhammad Younus P.W.8 had, however, stated in cross-examination that on that day accused Shaukat Ali himself had gone out of the branch of the bank for lunch during the interval. Therefore, on evidence on record, no occasion has been proved to have been afforded to the said accused to make the said interpolations. The prosecution has, for that reason, tried to prove from the statements of the persons who were alleged to be conversant with the handwriting of the accused, that the said interpolations in the heque, the token book and the ledger are in the
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hand of the accused. I would, therefore, scrutinize said statements to find out if the said witnesses had been able to prove the same. Attaullah Khan, Token Clerk who appeared as P.W.5 stated that over writing on cheque Exh.P.B. Was in the hand of accused Shaukat Ali in which he had turned '8' into '80' but in cross-examination he was unable to support the averment of his. He had not stated the same before the police and was confronted with his police statement but was unable to explain this obvious contradiction. Furthermore, he was constrained to admit that if five or six employees of the bank write digit '0' or '8', he could not differentiate between them and would not be able to say as to who was the author of each one of them. On question from defence counsel, the said witness stated that the writing contained inside the circle available on page 69 of the file was in the hand of the accused Shaukat Ali although the said writing consisted of specimen writing of Gulzar Ahmad taken by the investigating officer before a learned Magistrate. It was, therefore, clear that this witness could not identify handwriting of Shaukat Ali, accused. Then comes the statement of Muhammad Riaz, ledger, keeper, who appeared as P.W.4. He also stated that over writing in the cheque Exh.P.B. Was in the handwriting of accused as he identified his handwriting on the basis of his having worked with him. He, however, admitted in cross-examination that if employees of the bank write the digit '0' again and again, he would not be able to state as to who had written the same. He further stated that he could not state that the figure '80,200 had been written by which employee of the bank. These admissions of his show that he too was not in a position to identify the handwriting of accused Shaukat An. Similarly, Javed Mansoor, Officer P.W.6 states that he had looked into the record and found that Shaukat Ali, who was working as cashier on the day of occurrence had made changes in the bank record and had turned eight thousand into eighty thousand. In cross-examination, however, he stated that he could not specifically state which employee of the bank had written the figure '5,0001 in account opening form Exh.P.A. Towards the end of cross-examination, he stated that if 4 or 5 persons write digit '0', he can identify them provided their full signatures or initial are there, otherwise it was difficult. He further stated that it was a matter of change. He also abserved that expert can give opinion in that matter and he cannot identify 'Y'. It is thus clear that this witness was also not in a position to identify that digit '0' inserted in between '8' and '2' and the letter 'Y' added after word 'eight' had been made by accused Shaukat Ali. 14. We now next turn to evidence of the handwriting expert. The police had through bank manager sent the disputed documents alongwith specimen writing of the accused to a private handwriting expert Hafeez Ullah Butt, who as stated above, had given report. He, however, died before his evidence could be recorded. His report was proved by getting proved his signature from a witness A.G. Pasha who appeared as P.W.11. However, in the said report the said expert Hafeez Ullah Butt did not state his reasons for the opinion he had given and had stated that he would give reasons at the time he appears in evidence in the Court. Since there are obsolutely no reasons on record for the opinion by the expert, even the proved report of the said expert is of no consequence. Since it gives no reasons for the opinion given by the expert, no weight can be attached to the said report of the said expert. 15. I may also state that Zafar Ahmad Shah P.W. When he appeared as P.W.9, did not prove that the specimen taken by him were signed by the Magistrate before whom specimen were taken by him were taken nor he had cited the said Magistrate in the calendar of witnesses in this case. Naturally, therefore, said Magistrate did not appear in evidence in this case. Accordingly the identity of the specimen writing of the accused with which expert compared the questioned writings does not stand established. Therefore, even if Hafeez Ullah Butt, handwriting expert had been living and had appeared in evidence in the case, it would have been of little use. 16. . As recorded by me in my order, dated 8-4-1985, I would have myself, in exercise of my powers under section 540, Cr.P.C., summoned the Magistrate before whom the specimen were taken and
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also summoned another expert to give reasons for the positive opinion he might have given but success of this exercise was dependent upon appearance of Zafar Ahmad Shah, S.I. Again and upon his being traced out. He described himself as a retired S.I. When he gave evidence and showed his address only to be Krishan Nagar, Lahore. I tried to get Zafar Ahmad Shah in the Court again but the process server reported that he had not been able to trace out Zafar Ahmed in Krishan Nagar or elsewhere. Since in these circumstances the identity of the specimen writing/signature of the accused could not be established and it was impossible for me to proceed further, I gave up the idea of exercising my power under section 540, Cr.P.C. And have…
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