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Petitioner: THE STATE VS Respondent: KHAN MUHAMMAD
1986 P Cr. L J 2112
[Special Court of Offences in Banks]
Before Ghazanfar Ali Gondal, J
THE STATE‑‑Complainant
Versus
KHAN MUHAMMAD‑‑Accused
Case No. 5 of 1984, decided on 31st November, 1985.
(a) Penal Code (XLV of 1860)‑‑--
--‑‑‑S. 420/468/471/477‑A‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑Specimen signatures/handwriting Identity of‑‑Accused admitting his specimen signatures/handwriting‑‑Police official having obtained such specimens in presence of Magistrate, deposing so‑‑Accused admitting police official having obtained specimens‑‑Magistrate in whose presence specimens were taken, not produced‑‑Necessity of producing Magistrate as witness, held, was obviated by circumstances and identity of such specimens stood established.
(b) Penal Code (XLV of 1860)
‑‑---S. 420/468/471/477‑A‑‑Prevention of Corruption Act (II of 1947), S.5 (2)‑‑Evidence as to identity of handwriting‑‑Appreciation of‑‑Seven bogus entries allegedly made by accused in ledger cards‑‑Two entries made by type machine while remaining five handwritten‑‑Witness stating entries being made by accused without showing his ability to identify handwriting of accused‑‑Witness not questioned as to factum of accused being responsible for typed entries nor cross‑examined challenging correctness of his evidence regarding handwritten entries‑‑Accused, held, might be deemed to have accepted correctness of statement of witness and admitted entries on ledger cards being in his handwriting‑ When witness stated that accused made false entries, he meant to say that he identified writing of bogus ledger card entries to be in handwriting of accused ‑and by implication of his statement, he was acquainted with handwriting of accused in circumstances.
Muhammad Sadiq Javeed v. The State P L D 1969 (W.P.) Pesh. 12 and Sailendra Nath Halder v. The‑State P L D 1970 Dacca 690 ref.
(c) Penal Code (XLV of 1860)‑‑--
‑‑‑S. 420/468/471/477‑A‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑Non‑production of natural witnesses‑‑Effect of----Ledger clerk and his officer having custody of ledger cards‑‑Best direct evidence in case, being in position to identify handwriting of accused not produced by prosecution‑‑Clerk and Officer subordinate to accused who were under day to day obligation of accused, held, could not be considered to constitute best evidence in case‑‑Prosecution was, therefore, under no obligation to produce such persons as evidence.
(d) Penal Code (XLV of 1860)‑‑---
‑‑‑S. 420/468/471/477‑A‑‑Prevention of Corruption Act (II of 3947), S.5 (2)‑‑Falsification of account‑-Seven credit entries in Ledger Cards found fake‑‑No deposit vouchers available in bank record‑‑No entry in receiving cashiers book‑‑No amount pertaining to said entries put in bank account‑‑Five entries found in hand of accused‑‑Accused, held, responsible for falsification of account punishable under S.477‑A, P.P.C.
(e) Penal Code (XLV of 1860)‑‑--
‑‑‑S. 420/468/471/477‑A‑‑Prevention of Corruption Act (II of 1947), S.5(2) En-cashing of cheques‑‑Whether offence‑‑Cheques found to be signed and issued by genuine account holder‑‑Accused receiving sums of said cheques from bank‑‑Accused signing on back of cheques to acknowledge receipt of money‑‑Accused bona fide bearer thereof‑ Accused, held, did not commit any offence merely because he had received money on said cheques.
(f) Penal Code (XLV of 1860)‑‑--
‑‑‑S. 420/468/471/477‑A‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑Forged cheques.‑‑Withdrawal of amount Two cheques written and signed by accused purporting to be issued by account holder‑ Amount already falsely credited to said account, fraudulently withdrawn by accused‑‑Signatures on cheques compared by Court and found different from those of account holder‑‑Cheque book taken unauthorizedly by accused‑‑Accused, held, committed offence punishable under S.467, P.P.C. by preparing cheques and forging signatures of account holder thereon.
(g) Penal Code (XLV of 1860)‑‑--
‑--‑‑S. 420/468/471/477‑A‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑Forged cheques submitted in bank for encashment‑‑Accused, held, used forged cheques as genuine, knowing them to be forged and thus, committed offence punishable under S.471, P.P.C.
(h) Penal Code (XLV of 1860)‑‑--
‑‑‑S. 420/467/468/471/477‑A‑‑Prevention of Corruption Act (II of 1947), S.5(2) Dishonest and fraudulent inducement‑‑Forged cheques submitted in bank by accused‑‑Cheques encashed‑‑Accused, held, dishonestly and fraudulently induced bank to make payment to him and thus committed offence punishable under 5.420, P.P. C.
(i) Penal Code (XLV of 1860)‑‑--
‑‑‑S. 420/468/471/477‑A‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑Public servant‑‑Pecuniary advantage by illegal means‑‑Bank Officer a public servant‑‑Accused, public servant, misappropriating amount of bank and thus drawing pecuniary advantage by illegal means by abusing his official position, held, committed offence under S.5 of Prevention of Corruption Act.
Sardar Nazar Hussain Dogar, Special Prosecutor for the State.
Kh. Muhammad Farooq for the Accused.
JUDGMENT
The charge against Khan Muhammad, accused, is that while working as officer incharge of C.D. and S.B. department of Habib Bank Ltd. Main Market Gulberg Branch, Lahore, he had made following bogus credit entries in the ledger cards of Saving Bank Account No. 11354 of one Muhammad Iqbal of the total value of Rs.49,150:‑‑
Date Amount 02‑12‑1978 Rs. 9,500 04‑12‑1978 Rs. 7,500 12‑12‑1978 Rs. 3,900 14‑12‑1978 Rs. 8,750 16‑12‑1978 Rs. 3,500 13‑01‑1979 Rs. 7,000 15‑03‑1979 Rs.9,000 ‑‑‑‑‑‑‑‑‑‑‑‑‑ Total: Rs.49,150 ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑
The next allegation is that the accused and said Muhammad Iqbal had withdrawn the said amounts by bogus cheques as detailed below: ‑‑
Cheque No. &
Dated
Paid on
Amount
207117
14‑12‑1978
16‑12‑1978
Rs.1,10,000
(This amount is included in it the bogus credit entries of Rs.29,650 made by Khan Muhammad on 2‑12‑1978, 4‑12‑1978, 12‑12‑78 & 14‑12‑78).
207118
24‑12‑1978
28‑12‑1978
Rs.5,000
(These withdrawals, included the rest of the amount entered by bogus credit entries.
906022
27‑02‑1979
27‑02‑1979
Rs.7,000
322841
05‑05‑1979
05‑05‑1979.
Rs.5,000
322844
07‑05‑1979
08‑05‑1979
Rs.4,000
It is also alleged that the demand draft for Rs.1,10,000 in, favour of said Muhammad Iqbal was issued against the above Cheque No. 207117, dated 14‑12-1978 and the rest of the cheques were encashed by accused Khan Muhammad' himself of which Cheque No. 322841 and 322844 were not only written by him but also signed by him as account‑holder. Another allegation is that these two cheques had been taken from the cheque book bearing Nos. 322841 to 322850 which was obtained by accused Khan Muhammad himself from the bank without any authority from the said account‑holder. The final allegation is that the accused Khan Muhammad had thus dishonestly and fraudulently, by resort to forgery and cheating, deprived the bank of said sum of Rs.49,150 and misappropriated the same while acting as a public servant. In the complaint letter, dated 14‑7‑1979, Exh. P.W.1/1, on the basis of which formal F.I.R. Exh. P.W.2/1 was recorded by P.W.2 Muhammad Sarwar, Head Constable, on 15‑7‑1979, Iqbal Beg Mirza, Manager of the said Branch, had described that Muhammad Iqbal account‑holder was in league with Khan Muhammad accused but the police challaned accused Khan Muhammad only and cited Muhammad Iqbal as a prosecution witness.
3. They trial in this case started in the Court of Special Judge (Central). He framed charge against the accused for offences under sections 477‑A, 468, 471, 420, P.P.C. and for offence under section 5 of Prevention of Corruption Act, 1947.
4. The accused pleaded not guilty and claimed trial. In all five witnesses were examined in this case on behalf of the prosecution. The account‑holder Muhammad Iqbal was given up as having been won over. In his statement, under section 342, Cr.P.C., the accused denied the correctness of the incriminating evidence available against him on record which had been put to him and attributed his implication in this case to enmity towards him of his higher officers. He stated that he would not produce any defence evidence. That also meant that he would not appear as a witness in his own defence in exercise of the option available to him under subsection (2) of section 340, Cr.P.C. as it stood before its amendment in 1985. The said amendment through substitution of subsection (2) of section 340, Cr.P.C., by virtue of Federal Act XII of 1985, made it incumbent upon the Court to record the statement of accused on oath as witness in his own defence. Since, however, the case of the accused related to a period prior to the said amendment, the question arose whether the said amendment law could be applied to his case and whether in the circumstances the accused should be compelled to make statement under section 340, Cr.P.C. as a witness in his own defence or not. On this point arguments were heard and by a detailed order, passed by me on 12‑6‑1985, I held that the option to appear or not as a witness in his own defence, available to an accused under subsection (2) of section 340, Cr.P.C., as it stood before its amendment was a substantive right available to an accused person at that time and, therefore, the new law promulgated subsequently was not operative with retrospective effect and did not apply to the pending cases. I, therefore, did not compel the accused to come in the witness‑box, to appear as a witness in his own defence to disprove the charges levelled against him.
5. I have heard the arguments of the learned counsel for the parties and have ,thoroughly gone through the record of this case.
6. I now proceed to consider the evidence in the case. First, in order of preference is the evidence in respect of filing of the complaint with the police and registration of formal F.I.R. That evidence is furnished by P.W.1 Iqbal Beg Mirza and P.W. 2 Muhammad Sarwar. P.W.1 Iqbal Beg was Manager of Habib Bank Ltd., Main Market Gulberg Branch, Lahore on 14‑7‑1979. He made a complaint, dated 14‑7‑1979, Exh. P.W.1/1, for registration of the case in the P.S. Gulberg, Lahore. The details of the allegations made in the said complaint are already given in para. 1 above. On the basis of the said complaint, P.W. 2 Muhammad Sarwar who was Moharrar H.C. in P.S. Main Market, Gulberg, recorded on 15‑7‑1979 formal F.I.R. Exh. P.W. 2/1. This part of to evidence of the said two witnesses has not been controverted and, therefore, these matters stand proved on the record.
7. Next is the evidence in respect of production of the documents on 15‑7‑1979 and taking of the same into possession by the Investigating Officer. This was furnished by P.W. 1 Iqbal Beg Mirza, P.W. 4 Pervaiz A. Sheikh and P.W. 5 Abdul Ghafoor A.S.I. P.W. 1 Iqbal Beg Mirza stated that during investigation he produced 5 cheques Exh. P.W. 1/2, P.W.1/3, P.W. 1/4 and Cheque No._207118 Exh. P.W.1/5 and Cheque No. 609022, Exh. P.W.1/6, and ledger card, Exh. P.W.1/7, and ledger card, P.W.1/8 which were taken into possession by the Investigating Officer, vide memo. Exh. P.W.1/9. The same is the evidence of P.W. 4 Pervaiz A. Sheikh and P.W. 5 Abdul Ghafoor A.S.I., Investigating Officer. That matter also, therefore, stands proved.
8. Next comes the evidence in respect of taking of samples of writing/ signatures of the accused P.W. 5 Abdul Ghafoor, Investigating Officer stated that he had taken the specimen signature and writing of the accused on sheets Exh: P.W.3/1 to Exh. P.W.3/45 in the presence of a Magistrate First Class, Lahore, and that all the documents were signed by the Magistrate who also got a seal affixed thereon in his presence. In cross‑examination, he stated that he had sent the said cheques, and two ledger cards and specimen signatures and writing of Khan Muhammad to the handwriting expert.
9. In order to prove the identity of the said specimen signatures and writings, it was necessary to record the statement of the Magistrate before whom the said specimens had been taken by the Investigating) Officer but the accused whose statement was recorded on 11‑12‑1984 by me on this question admitted that the said specimens of handwriting and signatures on the sheets Exhs. P.W. 3/1 to P.W. 3/45 were his and had been taken by A.S.I. Abdul Ghafoor, P.W.5, in the presence of a Magistrate First Class. This obviated the necessity of production of the Magistrate as witness in this case. Accordingly the identity of the said specimen signature and writing of the accused on specimen sheets Exhs.P.W.3/1 to Exh. P.W. 3/45 stands established on record.
10. The remaining evidence in this case relates to the essential merits of the prosecution case against the accused. It can conveniently be classified into the following five‑distinct categories:
(i) Evidence of P.W. 1 and P.W. 4 in respect of the said 7 credit entries in ledger card Exh. P.W. 1/7 and Exh. P.W. 1/8 of Saving Account No. 11354 of Muhammad Iqbal account‑holder being bogus and 5 out of these 7 bogus entries being in the handwriting of the accused.
(ii) Evidence of P.W. 3 Muhammad Sarwar handwriting expert in respect of identification of the signature of accused on the reverse of three cheques Exh. P.W.1/2, Exh. P.W.1/5 and Exh. P.W.1/6 to be in the hand of the accused.
(iii) Evidence of P.W.1 and P.W. 4 in respect of identification by them of body writing of two cheques No. 322891, Exh. P.W.1/3 and No. 322844, Exh. P.W. 1/4 and signature of drawer thereon reading as Muhammad Iqbal to be in the handwriting of the accused and corroborating the same evidence.
(iv) Evidence of P.W.3 Muhammad Sarwar. Handwriting Expert in respect of identification of signature on the back of cheque Exh. P.W. 1/4 to be of Khan Muhammad, accused showing that accused got the payment of sum of Rs.4,000 of the said cheque.
(v) Evidence of receipt of money by the accused on cheques P.W. 1/3 and P.W. 1/4.
11. The above categories of evidence comprise of two sets of transactions. The first set consisting of category No. (i) is in respect of seven bogus credit entries in ledger Card No. Exh. P.W. 1/7 and Exh. P.W. 1/8 of Saving Account No. 11354 and the second set comprising of remaining four categories relates to withdrawal of amounts out of the total amount so credited in the said account.
Evidence of P.W. 1 and P.W. 4 in respect of the said 7 credit entries in ledger card P.W. 117 and P.W. 118 of Saving Account No. 11354 of Muhammad Iqbal account‑holder being bogus and 5 out of these 7 bogus entries being in the handwriting of the accused.
12. P.W.1 Iqbal Beg Mirza, the Manager of Habib Bank Ltd., Main Market. Gulberg Branch, stated that Saving Account No. 11354, holder of which M. Iqbal was introduced by Khan Muhammad accused, was at first inoperative for over a year but became alive on 21‑8‑1978 and. thereafter accused Khan Muhammad made seven bogus credit entries, namely, entry, dated 2‑12‑1978 for Rs.9,500 entry, dated 4‑12‑1978 for Rs.7,500 entry. dated 12‑12‑1978 for Rs.3.900. entry, dated 14‑12‑1978 for Rs.8,750 entry, dated 16‑12‑1978 for Rs.3,500, entry dated 13‑1‑1979 for Rs.7,000 and entry dated 15‑3‑1979 for a sum of Rs.9.000, totalling Rs.49,150 in the ledger cards Exh. P.W.1/7 and Exh. P.W.1/8.
13. Out of these 7 entries, namely, one, dated 2‑12‑1978 for a sum of Rs.9.500 and the second, dated 14‑12‑1978 for a sum of Rs.8.150 are machine entries but there was no cross‑examination questioning the factum of accused being responsible for these two false entries as well and. therefore, the accused must be deemed to have accepted that he had made these typed entries in the ledger card, Exh. P.W.1/7 with the type machine.
14. As for the remaining five handwritten entries also, there is absolutely no cross‑examination contesting the correctness of evidence of this witness that these five entries were in the handwriting of the accused and, therefore the accused must be deemed to have accepted the correctness of the said statement of this witness and admitted that the said five entries on ledger cards, Exh. P.W.1/7 and Exh. P.W.1/8 were in the handwriting of the accused.
15. The learned counsel for the accused has, however, criticised the statement of this witness on .the ground that in his statement, he did not state that he could identify the handwriting of the accused. It is, however, self‑apparent and on the face of it obvious that the statement of this witness was that he could identify the handwriting of the accused. who was his direct subordinate. When he said in his said statement that he accused made false entries in the ledger card Exh. P.W.1/7 and Exh. P.W.1/8 of Account No. 11354 of Muhammad Iqbal, he meant to say that he identified the writing in digits of bogus credit entries in the ledger cards to be in the handwriting of the accused. The said sentences spoken by this witness in his statement visualized and contemplated as a basic fact in them that he was capable of identifying the writing of the accused. It is also notable in that connection that on this aspect of the matter there again was no cross‑examination by the learned counsel for the accused. It must, therefore be assumed that the defence conceded that said implied part of the evidence of this witness was correct and it was admitted that the said witness had by implication stated that he could identify the writing of the accused. In my view, therefore, the mere fact that this witness had not in so many words stated that he identified the handwriting of the accused is of no adverse consequence in this case.
16. A similar question was raised in Mahanth Jagdish Das and others v. The Emperor A.I.R 1938 Pat. 497, wherein the P.W., a Headmaster, while giving evidence had merely stated that draft was in the handwriting of Damodar Narain without also stating that he knew the man's handwriting and an objection was taken that his evidence did not amount to proof of handwriting of the accused. It was, however, noted that learned Sessions Judge had pointed out that there was ample evidence to show that Headmaster was familiar with handwriting of Demodar Narain and when giving evidence, the Headmaster had actually proved that he acted as clerk to Damodar Narain on occasions. It was held by the Patna High Court that when the Headmaster stated that the document was in the handwriting of Damodar Narain that was evidence of fact and was not rendered inadmissible by the absence of mere statement I know the handwriting 'particularly when his evidence throughout indicated that he must have been acquainted with the handwriting of the Damodar Narain. Same is the position in the present case. P.W. 1 was the Manager of the branch of the bank while the accused was his direct subordinate and it is not difficult to visualize that the said witness had seen the accused written digits (and words and make his signatures) number of times within his view and at any rate, documents purporting to be written by the accused must have been usually submitted to him in the ordinary course of business of the bank to enable him to get fully acquainted with his handwriting. It is the normal incident of relationship between accused subordinate and the Manager, his immediate superior, that former should usually submit documents written and signed by him to the latter in ordinary course of business of the bank for the latter to authenticate them by appending his signature thereto or otherwise. No capital can, therefore, be made out of the mere circumstance that the said witness omitted to state in clear words that he could identify the writing/ signature of the accused.
16‑A. The next submission of the learned counsel for the accused to the validity of the said identification by P.W.1 Iqbal Beg Mirza is that he has not stated in so many words and has thus riot proved the source of his acquaintance with the handwriting/ signature of the accused within the ambit of the explanation to section 47 of Evidence Act, 1872 (now section 61 of Qanoon‑e‑Shahadat. 1984) and, therefore, his statement has not established legally his capacity to identify the handwriting of the accused. I have given my serious thought to this point too but am afraid 1 cannot accept the same. It is true that in the beginning in Re: Basrur Venkata Roy I L R 36 Mad. 159=14 I C 418 (Mad.) Sundara Ayyar, J. had remarked that when a witness had said that the documents were in appellant's handwriting without saying how he was acquainted with his handwriting, that was not legal evidence of knowledge of the handwriting of the accused, but thereafter this view underwent a change. The following cases show the contrary view which continues to hold the field so far:‑‑
In Shankar Rao Gangadhar v. Ramji Harijivan I L R 28 Born. 58 after considering the said view in the above‑said case, it was held that:----
"The correct statement of law is that a witness need not state in the first instance how he knows the handwriting since it is the duty of the opposite party to explore on cross‑examination the source of his knowledge, if he be dissatisfied with the testimony as it stands."
In this case in proof of a document, a witness simply stated that he was acquainted with the handwriting of the writer but he was not asked in the examination‑in‑chief any question which would elicit from him any of the several matters indicated in the explanation to section 47 of the Evidence Act, 1872. The witness was also not cross‑examined on the point on these facts on the basis of above dictum of law it was held that his evidence as to the handwriting ought to be accepted even though he had not stated in his evidence as to hour he claimed to be acquainted with the handwriting which he was examined to prove. Again in Mahanth Jagdish Dass and others v. The Emperor after making a reference to the above‑mentioned view of Sundara Ayyar. J. in Re: Basrur Venkata Roy it was observed by James, J:‑‑
"The more correct view if I may say so with due respect appears to me to be that expressed by Sir Lawrence Jenkins in Shankarrao Gangadhar v. Ramji Harjivan (28 Bombay 58) wherein he approved of the proposition that the witness need not say in the first instance how he knows the handwriting since it is the duty of the opposite party to explore on cross‑examination the source of his knowledge if he is not satisfied with the, testimony as it stands."
The said view was reiterated by Fazal Ali, J. in Shyam Partab Ram Missir v. Beni Narth Dubey and others A I R 1942 Pat. 449. In Pusaram and others v. Manmal and others A I R 1955 Raj. 186, a case from Indian Jurisdiction it was: observed as below:‑‑-
"Section 47 of the Evidence Act provides that the opinion of a person acquainted with the handwriting is a relevant fact and then follows the explanation which defines, what the words acquainted with the handwriting mean and considering the manner in Which section 47 is framed, it has been held by the Courts generally that it is enough for a witness to say in examination‑in- chief that he is acquainted with, the handwriting and that if it is desired to challenge that statement of his, he has to be cross‑examined on that statement to show that he could not be acquainted; with the handwriting in the circumstances of any, particular case. The English Law on the point stood thus summarised by Taylor on Evidence (Volume 2 Edn. 12, para. 1863, p. 1151. The witness need not state in the first instance how he knows the handwriting since it is the duty of the opposite party to explore on cross‑examination the source of his knowledge if he be dissatisfied with the testimony as it stands. The Indian Law of Evidence is based on the said English Law and there is nothing in section 47 of Evidence Act, 1872 which goes against the principle which has been accepted by the English Courts and following this principle the Indian High Court have also taken the same view."
Finally in a case of our own country titled as Muhammad Sadiq Javeed v. The State P L D 1969 (W.P.) Pesh. 12. Mr. Justice Muhammad Afzal Zullah a learned Judge of High Court of West Pakistan (as then his Lordship was) held as below:‑‑-
"When once a witness states in examination‑in‑chief that he is acquainted or familiar with the, handwriting of a person, the details as to how he is acquainted with, being a matter of Explanation to section 47, of the Evidence Act, is the duty of cross‑examiner to bring to light, if the competency of such a witness is questioned by the cross‑examiner and if no such cross‑examination is done it Will be assumed that the competency of the said witness was not challenged."
The learned counsel for the accused has, however, quoted Surendra Krishna Roy and another v. Mirza Muhammad Sayed Ali Mutawali and others A I R 1936 P C 15. In that case the question raised before their Lordships of the Privy Council was that Kabuliyat of 1892 said to have been…
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