1. T. H. KHAN, J.--This appeal is at the instance of the sole appellant Sirajuddowla who has been convicted under sections 467, 471 and 420 of the Pakistan Penal Code and has been sentenced to suffer rigorous imprisonment for five years. Another person named Rafiqul Amin was tried along with the appellant under sections 471 and 420/109 of the Pakistan Penal Code, who was, however, acquitted the learned Assistant Sessions Judge, Dacca.
2. The prosecution ease may briefly be stated as follows That on the 15th March 1962 P. W. 1 Mr. Hatizul Islam, the then Manager of the Eastern Mercantile Bank Ltd., Jinnah Avenue Branch, came to know that a fraud was committed in respect of an amount of Rs. 21,000 from the Current Account of Ruthna Tea Estate bearing No. 325. The proprietor of the Ruthna Tea Estate, Mr. Fazlur Rahmart was the Operator of the said account and his son Mr. Jameelur Rahman and their Manager P. W. 6 Mr. Abdul Jabbar used to draw, money front the bank.The cheque books bearing serial Nos. 134501- -134550 and 141951--142000 were issued in favour of the Ruthna Tea Estate after making due entries in the cheque book register maintained by the bank, but a bearer cheque, bearing serial No. 147931 of the said Bank dated 13-3-1962, for a sum of Rs. 21,000, in favour of Fazal Bhai & Company, Exh. 1, purported to have been signed by the said proprietor of the Ruthna Tea Estate Mr: Fazlur Rahman was presented to the bank on 14-3-62 by a man of medium size, medium complexion, wearing goggles, aged about 22/23 years and the money was received by him putting his signature as 'A. Mia' on the back of the questioned cheque, although the cheque series to which the said cheque belonged was not at all issued to the Ruthna Tea Estate. The Accountant, Rafiqul Amin (since acquitted) had passed the questioned cheque for payment. P. W. 6 Mr. Abdul Jabbar, Manager of the Ruthna Tea Estate came to know about the endashtnent of the questioned cheque ors that very day, i.e. On 14-3-62. On being told by Mr. Abdul Jabbar about the cocashment of the said cheque from the account of the Ruthna Tea Estate, Mr. Fazlur Rahman personally went to the Bank and disclosed that the questioned cheque was a forged one. He also submitted a letter denying that lie had ever issued that cheque or that it belonged to the series issued to him. At this, the then Manager of the Eastern Mercantile Bank Ltd., namely, P. W. 1 Hafizul Islam verified papers and heard the Head Cashier Mr. Majibur Rahman and Assistant Cashier Mr. G. N. Ahmad Ali Khan and others and submitted a written report to the Ramna Police Station on 15th March 1962 intimating that a forgery of Rs. 21,000 appeared to have been committed with respect to one of the Bank's customer's Current Account. On the same day the Officer-in-Charge, Ramna Police Station endorsed the said report to Sub-Inspector M. Shafiuddin (P. W. 18) who went to the bank the next day, i.e. On 16-3-62. P. W. 1 Hafizul Islam then filed a written first information report Exh.
8. On receipt of the first information report S. I. M. Shafiuddin took up investigation on the same day and arrested two of the bank employees, namely, P. W. 13 Shamsuddin and one Zeaul Huda on 17-3-62. The police searched the house of Shamsuddin, but before the house of Zeaul Huda could be searched, Sub-inspector M. Shafiuddin had to make over the charge of investigation of the case on 21-3-62 to another Sub-Inspector of Police, namely, P. W. 19 Mohammad Hossain, under an order of the Superintendent of Police, Dacca, P. W. 19 Mohammad Hossain having gone to the bank examined some persons of the Bank and some relevant papers, but he too had to make over the charge of investigation of the case on 26-3-62 to Inspector Makbul Hossain (since deceased). In course of the investigation made by Inspector Makbul Hossain certain information was received about the commission of the offence by the appellant Sirajuddowla, and accordingly, search warrants were obtained for searching the house of accused Sirajuddowla and Zeaul Huda. P. W. 10 Aminul Huq Biswa s, the then Inspector attached to the Bureau of Anti-Corruption searched the house of accused Serajuddowla alias Seraj Mia, son of Majibul Huq, resident of 147, R. K. Mission Road, Dacca and seized various items of properties including one Radio set and a bicycle which Serajuddowla purchased im--mediately after the occurrence. The relevant cash memos. Show--ing those purchases were also seized from the said house including the photograph of accused Serajuddowla. The coun--terfoil (carbon copy) of the cash memos. Were also seized from the General Radio Service on 18-7-62 along with the peon book of the radio licence, maintained by that shop, showing the collection of two radio licences by accused Serajuddowla on 30-4-62 and then cash memos showing purchase of two bicycles were also seized. Thereafter a Test Identification Parade of the accused Serajuddowla was held by a Magistrate, P. W. 5, on 9-8-62 and thereafter the specimen writings of Shamsuddin and Zeaul Huda and others along with those accused Serajud--dowla were sent .To the Handwriting Expert for his opinion, with a forwarding letter dated 10th August 1962, Exh.
43. Accused Serajuddowla deliberately avoided giving his specimen writing in normal hand; he gave a completely disguised and distorted. Writing. Mr. Fazlur Rahman and the Manager, Mr. Abdul Jabbar were also examined on 13-8-62 and charge--sheet was submitted by the Investigation Officer Mr. Abdul Jalil Khan on 12th February 1963 against the three accused. This was followed by a preliminary enquiry by a Competent Magistrate who sent up the present appellant and another, namely, Accountant Rafiqul Amin to face their trial before the Ses--sions Court. The learned Magistrate, however, discharged accused Zeaul Huda under section 209/1 of the Criminal Procedure Code, on the view that no prima facie case was made out against him.
3. Before the Sessions Court the appellant was charged under sections 467, 471 and 420 of the Pakistan Penal Code. The appellant pleaded not guilty to the charges levelled against him. His further defence as can be gathered from the trend of cross-examination of the prosecution witnesses and the written statement submitted by him at the time of examination under section 342 of the Criminal Procedure Code, was that he had been falsely implicated in this case by the Investigating Officer Mr. Makbul Hossain because of the enmity that existed between Makhul Hossain and his father Majibut Haq.
4. The trial was held with the aid of three assessors of whom one found the appellant guilty of the charges and the other two assessors found him not guilty to the charges brought against him.
5. Besides proving a large number of documents, the prosecu--tion produced 22 witnesses of whom two were tendered. The prosecution also put in the evidence of three witnesses, namely, A. F. M.
6. Idris, Atshed Ali and Mr. Fazlur Rahman, under section 33 of the Evidence Act.
7. Before us Mr. Abdus Salam Khan, the learned Advocate, appeared on behalf of the appellant. He has taken us through evidence on records and the judgment pronounced by the learned Assistant Sessions Judge. Dacca, and has pressed the following points :-
(1) That the prosecution has failed to establish that the appellant was the author of the forgery and accordingly his conviction under section 476 of the Pakistan Penal Code was not tenable in law.
8. The learned Advocate however, did not at all challenge the fact that the cheque in question on, Exh.
9. I was a forged one.
(2) That the identity of the appellant as the person who had fraudulently and dishonestly used the cheque in question as genuine and who had presented the same and received payment of the amount on 14-3-62, was not established beyond reasonable doubt.
(3) That the learned Assistant Sessions Judge was wrong in convicting the appellant relying upon the circumstances referred to in the judgment.
(4) That the learned Assistant Sessions Judge wrongly admit--ted the evidence of the three persons under section 33 of the Evidence Act.
10. Taking up the first point for consideration we want to observe that although the factum of forgery of the cheque in question is not in dispute, yet for a further comprehension of the facts of the case, we consider it necessary to discuss the relevant evidence on the point and how the factum of forgery came to be detected. The evidence on the point will Also throw light upon the other points urged by the learned Advocate for the appellant inasmuch as the points are to a great extent, interdependent. We, therefore, wish to discuss the evidence in detail to some extent. On this point evidence has been furnished by P. W. 1 Mr. Hatizul Islam, the then Manager of the Eastern Mercantile Bank Ltd., Jinnah Avenue; P. W. 6 Mr. Abdul Jabbar, Manager of the Ruthna Tea Estate at the relevant time; P. V4. 7 Mr. Mujihar Raman, Head Cashier of the said branch of the Eastern Mercantile Bank Ltd., P. W. 13 Shamsuddin, the Statement Clerk of the said branch of the bank; P. W. 17 G. N.
11. Ahmed Ali Khan, Assistant Cashier of the said branch; Y. W. 18 S. 1. M. Shafiuddin who was attached to the Ramna Police Station at the relevant time and P. W. 19 S. I. Mohammad Hossain who was attached to the Detective Branch. Dacca at the relevant time and also by Mr. Fazlur Rahman whose evidence has been put in under section 33 of the Evidence Act.
12. It is not at all in dispute that the Ruthna had an account bearing No. 32:5 in the Eastern Bank Ltd., Jinnah Avenue Branch, Dacca ; that Mr. Rahman was the Operator of the said account and cheque books bearing serial Nos, 134501-134550 and 142000 were issued in favour of the Ruthna Tea Estate fact is evidence, from page 798 of the ledger book No. 2, marked Exh. 4 in the case. The cheque books have also been duly entered in this ledger book and the cheque book register marked Exh. 5.
13. The questioned cheque. Exh. 1, which is a bearer cheque, bears No. 147931 dated 13th March 1962 for an amount of Rs. 21,000 drawn in favour of Fazal Bhai Company, on the account if the said Ruthna Tea Estate. This cheque, Exh. 1, belongs to a cheque series which was not at all issued to the Operator of the account standing in the name of the Ruthna Tea Estate. P. W. 6 Mr. Abdul Jabbar, the Manager of the Ruthna Tea Estate, who had been to the bank on the same date, i.e. On 14-3- 1962, after the alleged transaction, for encashment (of another cheque, found to his utter surprise that the questioned cheque was issued without his knowledge. Next day he brought this fact to the notice of Mr. Fazlur Rahman the joint proprietor of the Ruthna Tea Estate, who along with Mr. Abdul Jabbar and others went to the bank and disclosed that the questioned cheque was not issued by him; that the series to which the questioned cheque belonged were not issued in favour of the Ruthna Tea Estate and he accordingly submitted a written report to that effect. Thus it came to light that a big forgery had been committed. Mr. Fazlur Rahman, whose evidence has been put in under section 33 of the Evidence Act, on the ground of serious ill health, informed the Manager in writing that he did not issue the questioned cheque. This letter has been marked as Exh. 2 in this ease and the signature of Mr. Fazlur Rahman has been marked as Exh. 2 (1). It is stated by him that he is a joint proprietor of the Ruthna Tea Estate and has got an account in the Eastern Mercantile Bank, Jinnah Avenue Branch, bearing No. 325 and that he was the Operator of that account. He gave his specimen signature in Court, Exhs. 10 (2) and 10 (3). He also stated that his son Jameelur Rahman and P. W. 6 Abdul Jabbar used to draw the money from the bank on his behalf. On 15-3-62 when he went to the bank, P. W. 13 Shamsuddin enquired from him whether he had issued any cheque for Rs. 21,000. He answered in the negative. He then met the Manager of the Bank and he was shown two signatures, Exhs. 9 (1) and 9 (2) by the Manager and he replied that those were not his signatures and that they were forged signatures. In his deposition he further stated that the Assistant Cashier of the Bank, who, in fact paid the money to the person who took payment, told him that one dark complexioned young man of slim figure received the payment. He also stated that the rubber stamp in Exh. 9 was not the rubber stamp, which, he used for Ruthna Tea Estate. He identified the genuine rubber stamp which he used for his firm. Then P. W. I Mr. Hafizul Islam called the witness as well as P. W. 7 Majibur Rahman, Head Cashier, P. W: 17 G. N. Ahmed Ali Khan, Rafiqul Amin, Accountant and others in his chamber.
14. P. W. 1 in his evidence stated that the Accountant Rafiqul Amin informed him at about 19-30 a. m.
15. On 15-3-62 about the forgery of the cheque Exh. 1 and that he suspected the genuineness of the signature of Mr. Fazlur Rahman on that cheque. He stated that Mr.! Fazlur Rahman and his Manager Abdul Jabbar came to the Bank and submitted a letter of denial Exh. 2, and after comparison of the specimen signatures in the card, Exh. 3 the questioned cheque of Mr. Fazlur Rahman appearing in Exh. 5, was found to be a forged one. He also stated that certain over writings and interpola--tion were noticed in the third entry of the cheque series in the ledger books as well is on the date of issue in the cheque book. The cheque book series commencing from 147926---147950 was found missing an I the fact of missing was noted at the end of the Cheque B ok Register, Exh. 5 (1). He further stated that tie then sent for the Cashier Mr. Mujibar Rahman, Assistant Cashier G. . Ahmed Ali Khan, Ledger-keeper Mr. Sakhawat Hossain and P W.
13. Shamsuddin who had issued the token for the questioned cheque With reference to the Cheque Book Register Exh. 5, it was detected that cheque book containing the cheques bearing serial numbers from 147926-14.7950 was missing which was noted at page 50 of the said Register. From that register it became evident that this cheque book was never issued to any party and that the missing thereof was detect d only on 15- 3-62; the missing note was done by P. W. 1 himself. He also stated that the last cheque series that was issued to Ruthna Tea Estate was entered in the Register Ex . 5, at page 125 thereof and the delivery of the cheque book was taken by P. W. 6 Mr. A. Jabbar, putting his signature thereon. Exh. 5 (2). He further stated that the cash -d cheques were shown in the folio debit vouchers and the statement of accounts; that the debit vouchers are kept in the steel trunk inside the strong room under the care and custody of the Accountant. He called for the debit vouchers of the Ruthna Tea Estate, verified the same and found that one voucher of Ruthna Tea Estate for Rs. 16,556, dated 3rd March 1962, was missing, but a torn portion 'thereof was found stitched up with the folio. He stated that he then submitted a report to the Ramna Police, Exh. 2 on 15th March 1962. He further stated that P. W. 18 S. I. Shafiuddin came to the Bank the next day and that he submitted a written first information report, Exh. 8 with his signature Exh. 8 (1) thereon. He stated that there was a token register maintained in the bank, Exh.
9. The token No. 79 was issued in respect of the questioned cheque. The Cashier's records and Payment Register, Exh. 10 showed that the payment of Rs. 21,000 was made against token No. 79. The relevant page of Exh. 10 is 46, marked Exh. 10 (1). With reference to the Attendance Register, Exh. II, of the relevant day, P. W. I proved that the Accountant Rafiqul Amin, Head Cashier Mujibur Rahman, Assistant Head Cashier G. N. Ahmed Ali Khan, Statement Clerk: Shamsuddin and Ledger Clerk Sakhawat Hossain were present on 14th March 1962. He further stated that the bank was cheated in respect of the said amount of Rs. 21,000, and the bank had to pay the entire amount to the party concerned. According to him, the keys of the. Strong room were under the custody and control of the Accountant Rafiqul Amin.
16. P. W. 18 S. 1. Shafiuddin who was attached to the Ramna Police Station at the relevant ! Time, proved the endorsement of the Officer a Charge, Ramna, Exh. 7 (1) on Exh.
2. The Officer-in-Charge, Ramna, asked him to ascertain whether the case reported by the Manager was a cognizable one or not. In compliance with this requisition he went to the bank and after some interrogation obtained a written complaint from P. W. 1, Exh.
8. He reported, that the case was a cognizable-one and his report-has been marked Exh. 7 (3). He took up investiga--tion of the case and interrogated some of the witnesses, but he had to make over the charge of investigation of the case on 28-3-62 under order of the I Superintendent of Police, Dacca. He, however, arrested two employees of the bank, namely, P. W. 13 Shamsuddin and Zeaul Huda on 17-3-62. On l 6-3-62 while he was examining the bank papers he detected the missing of certain debit you hers and the torn portion there--of, Exh.
17. This witness has admitted in his cross-examina--tion that he kept no note of his investigation.
17. He has also stated that he examined the Manager on 16-3-62 and also searched the house of Shamsuddin. But before he could search the house of Zeaul Huda, he had to make over the charge of investigation of the case. Thereafter P. W. 19 S. I. Mohammad Hossain, who was attached to the Detective Branch--- Dacca took up investigation an 21-3-62 under order of the Superintendent of Police, Dacca; that on 22-3-62 he went to the bank and examined the Manager Mr. Hafizul Islam and the questioned cheque, Exh. I the debit voucher, Exh.
6. He also stated that he examined Mr. G.
18. N. Ahmad Ali Khan. Thereafter on 26-3-62 he too made over the charge of investiga--tion of the case to Inspector Makbul Hossain. In course of the investigation he had examined the complainant and the employees of the bank, namely, Mr. Mujibur Rahman, G. N. Ahmed Ali Khan, Sakhawat Hossain and some others, in order to ascertain the facts of the case.
19. P. W. 7 Mr. Mujibur Rahman, the Head Cashier of the bank proved that Ruthna Tea Estate had a current account with the aforesaid branch of the bank and Mr. Fazlur Rahman used to operate the same; that on 14-3-62 at about 11 a. m. Or so, Mr. Abul Jabbar, Manager of Ruthna Tea Estate came to that branch of the bank with a cheque and asked for notes of hundred rupees denomination.
20. The Payment Cashier Ahmed Ali Khan told him that such notes were not available inasmuch as hundred-rupee notes were exhausted in making payment of the cheque for Rs. 21,000, to Ruthna Tea Estate. He further stated that at this the Manager Mr. Abdul Jabbar expressed his surprise and wanted to see the cheque as he thought it was issued without his knowledge. P. W. 7 further stated that on 15-3-1962, P. W. 6 Abdul Jabbar and Mr. Fazlur Rahman came and saw the Accountant and then went to the office of the Manager at about 10 or 10-30 a. m. And he denied the signature on the questioned cheque to be his own. He also corroborated that the. Manager called in the Assistant Cashier, the Accountant and P. W. 13 Shamsuddin.
21. P. W. 17 G. N. Ahmad Ali, the Assistant Cashier of the Bank had proved the relevant entry in the Payment Register Ex.h. 10 (2) ; that the payment in question was made against Token No. 79 that he called all the token holders by token number but no body responded at his first and second calls; that the holder of the questioned token who appeared after his third tall, was a man of `medium complexion' and medium size and wore. Black goggles and his body was slimly built. He inquired of the man about the denomination of the notes he wanted to take and asked him to put another signature on the back of the questioned cheque and the man accordingly put his second signature reading as "A. Mia" in his presence, Exh. 1 (6). This witness further corroborated that some time after the questioned payment, the Manager of Ruthna Tea Estate came to the bank for encashing another cheque and that he wanted notes of hundred-rupee denomination whereupon the witness disclosed about the payment made on the questioned cheque and the fact that the notes of hundred-rupee denomination were almost exhausted due to that. The Manager saw the cheque and wanted to inquire from Mr. Fazlur Rahman about the same and then they came on the next day and said that the cheque in question was a forged one. He also corroborated that he was called in the chamber of the Manager where he gave descrip--tion of the man aged about 20/22 years of `medium com--plexion' and medium height with white shirt and black goggles on and the possibility of his recognition of the man who had signed his name as "A. Mia" in his presence. He also stated about the photo demonstration where he identified the photograph Exh. 1, bearing his signature and his subsequent identifica--tion of the accused in the Court Hajat before the Magistrate and also identified the accused in Court at the trial. There is no criticism against this witness and there is hardly any--thing to discard his testimony as given in this case.
22. P. W. 13 testified that on 14-3-62, during the temporaryabsence of Matiur Rahman, the Token Clerk, he acted as the . Token Clerk, under the verbal direction of the Accountant and issued the Token No. 79 in question. He also testified that the relevant entry, in the Token Book was to his hand, Exh.
23. 9(1) and the endorsement Exh. 79(1) on the ques--tioned cheque was in his own hand and bore his signature. He has corroborated that on 15-3-62 he was called by the Manager in his chamber in presence of the Accountant, the Head Cashier Mr. Mujibur Rahman, the proprietor of the Ruthna Tea Estate Mr. Fazlur Rahman and others; that he was told by the Manager P. W. 1 Mr. Hafizul Islam that the token issued with respect to the cheque in question was a forged one; that the debit vouchers file was examined by the Manager acid the margin portion of a cheque was found torn.
24. He also admitted that he was arrested along with Zeaul Huda in connec--tion with the case and coming out on bail he learnt that his service was terminated.
25. P. W. 19 S. I. Mohammad Hossain 11 that on 22-3-62 he went to the Bank and examined the Manager Mr. Hafizul Islam; that he saw the questioned cheque Exh. 1, the Debit Voucher Exh. 6 and found that the debit voucher for Rs. 16,556, was missing from the file and the portion, Exh. 17 was found therein.
26. He also found that the cheque bear--ing No. 141957 was missing. He also examined P.W. 17 G. N.
27. Ahmed Ali Khan and corroborated him that the latter gave the description of the man who had received the payment of Rs. 21,000, and also mentioned about the possibility of his identification of the man.
28. From the evidence discussed above it is clear that the cheque Exh. 1 was a forged cheque. Now the question for determination is whether the prosecution has succeeded in proving that the appellant Serajuddowla had, in fact, forged the cheque in question. From the relevant evidence as discussed above, we find it difficult to conclude that the appellan Serajuddowla is the person, who in fact forged the cheque. We may also mention that the Handwriting Expert P. W. 1 could not express any opinion ai~ the accused gave highly distorted specimen writings. On this point, therefore, we accep A the contention of the learned Advocate for the appellant that the prosecution had not succeeded in identifying the appellant to be the author of the forgery. Therefore, we accordingly, set aside the conviction of the appellant under section 467 of the Pakistan Penal Code.
29. The next important question in, this appeal is whether the identity of the accused-appellant Serajuddowla has been established beyond any reasonable doubt as the person who had fraudulently arid dishonestly used the cheque in question as genuine by presenting the same on the 14th March 1962 which he knew or had reason to believe at the time of presentation to be a forged one.
30. We want to preface the discussion of this question with the observation that we shall only briefly refer here to the evidence of the relevant witnesses pertaining to the question of identification of the accused-appellant. It may be recalled that P. W. 1 Hafizul Islam stated that he came to know on 15-3-62 about the description of the man who was said to have received the payment of Rs. 21,000, for the questioned cheque from the employees of the Bank. He, however, did not mention anything about his knowledge or about the description of the culprit. As regards the demonstration of photographs it was brought out from him during cross-examination that it was held in his office room in his presence, but the proceedings thereof was not recorded. About a dozen photographs were placed on display and two Police Officers were present there and that the identifying witnesses were Mr. Mujibur Rahman and Mr. G. N. Ahmed Ali Khan. This witness explained that by the term `Medium build', he understood a man of 5 feet 6 inches tall. P. W. 6 Abdul Jabbar stated that the Head Cashier and the Assistant Cashier reported that a young man of medium height of 22 or 23 years, wearing goggles presented the cheque and received the payment. Mr. Fazlur Rahman (evidence put In under section 33 of the Evidence Art) stated that the Assistant of the Bank who had made the payment told him that one black and slim young man received the payment. In cross-examination he reiterated almost the same thing and stated that some employees of the Bank were present when he met the Manager of the said Bank. He, however, stated that he, was not in a position to say who they were. P. W. 7 Mr. Mujibur Rahman, testified that the Assistant Cashier Mr. G. N. Ahmed Ali Khan, gave the description of the man who had received the payment of the cheque by saying that the man was a man of medium height and complexion, aged about 22 or 23 years and was wearing goggles. His further evidence is that he himself saw a man of the same description on the previous day inside the Bank sitting on a Bench meant for the customers. He also testified that a demonstra--tion of photos was held by the Inspector of Police P. W. 19 in the chamber of the Manager of the Bank and about 10 or 12 photos were placed on display and he identified the photo, Exh. 1, and the signature of the witness, on the back of the photo, Photo Exh. 18.
31. His further evidence is that he identified the accused in the Test Identification Parade held by the Magistrate P. W. 5 in the Court Hajat. He also correctly identified the accused before the committing Court as well as the trial Court. In cross-examination, on the question of photo identification in the office room of the Manager, the witness stated that he "did not tell time or date of T. I. Parade of photos that this is the photograph of the person who had cashed the money after presenting the cheque and took the money sitting before me". On the question of identification of the accused in the Test Identification Parade held by the Magistrate, the witness stated in his cross-examina--tion, "I did not tell the Magistrate at the time of T. I. Parade held, before him that I saw the accused on' the date of the occurrence." There is hardly any material discrepancy in his testimony and there is nothing against him on records to discard his evidence. We accordingly accept him as a witness of truth.
32. We have discussed the evidence of P. W. 17 G. N. Ahmad Ali Khan in detail in connection with the first point. The relevant portion of his evidence hearing upon the point under discussion is that he gave the description of the culprit and also stated about the possibility of his recognition of the culprit at 'the earliest opportunity while he was called to the Manager's office. Besides this, he also stated about the photo display where he identified the photograph, Exh. 1, which bore his signature. He subsequently identified the accused in the Test Identification Parade at the Court Hajat, held by P.
33. W. 5, and also before the Courts. He is the man who had obtained the signature of the person who had taken the pay--ment putting his signature on the back of the questioned cheque as "A. Mia".
34. He gave description of the man on the following day and also indicated the possibility of his identifica--tion. He also made it clear that by medium height he under--stood a man of about 5 feet 6 inches high like that of the accused. The discrepancies that have been pointed out to us from the evidence of this witness as regards the stature, complexion and the outfit of the accused are, in our opinion, of no consequence in the facts and circumstances of this case. It is common experience that it is difficult to recollect the looks of a person to the same extent. There is nothing to discard his testimony and we, therefore, accept his evidence as being true.
35. In this context we may next take up for discussion the evidence of P. W. 13 Shamsuddin who stated that on 15-3-62 after being called to the Manager's office where among others present were the Accountant of the Bank and Mr. Fazlur Rahman. He was told by the Manager that the token No. 79 issued by him as the Token Clerk in respect of the allegedly forged cheque, that he told the Manager on his asking that he would be in a position to recognise the man to whom he had issued the Token. He further stated that the cheque was presented by the accused between 10 and 11 a. m.
36. And that Zeaul Huda had asked him to expedite the passing of the cheque through Mr. Sakhawat Hossain, the Ledger-keeper, and he accordingly forwarded the cheque to Mr. Sakhawat Hossain and told him about the request of Mr. Zeaul Huda. Furthermore, he went on to state that he had seen the accused Serajuddowla talking to Zeaul Huda and that the accused was dressed in a white shirt and trousers and had a pair of goggles in his hand. P. W. 13 Shamsuddin also admitted that he was arrest--ed along with Mr. Zeaul Huda as a suspect and had come out on bail only to learn that his service was terminated. Thereafter, sending his family away, he took shelter at a house in R. K. Mission Road provided by Mr. Zeaul Huda. A few days later, probably in the month of June he had happened to see Zeaul Huda talking to the person, to whom he had issued the token, that is, the accused Serajuddowla. On becoming suspicious, he informed the Police Inspector Mr. Makbul Hossain. In cross-examination the witness stated that he had seen the accused talking to Zeaul Huda after the 19th April. On further cross-examination he firmly reiterat--ed that he had also seen the accused Sirajuddowala at the bank counter before he was arrested. He gave the description of the accused to the Interrogating Sub-Inspector. Of Police, P. W. 18 Shafiuddin. He also denied the suggestion that he had falsely implicated the accused Sirajuddowla at the instance of Police Inspector Makbul Hossain and had got himself released. P. W. 13 is corroborated by P. W.
37. Hafizul Islam who confirmed that Shamsuddin, that is, P. W. 13, told him at his chamber that he had handed over the token (No. 79) to a man of medium stature, of black complexion, aged about 22 or 24 years and that he would be able to recognise the man. P. W. 18 S. 1. Shafiuddin, who interrogated P. W. 13 on 16-3-62 also stated that P. W. Shamsuddin had told him that the man who presented the cheque was of small stature anti black complexion aged about 20 or 25 years. Hs also stated that the word "small" is not clearly visible in his diary. Before the Committing Court P. W. 18 stated that P.
38. W. 13 did not tell him that the man who had presented the cheque was of medium siz4 and medium complexion. P. W.13 identified the accused before the Courts. P. W. 15 Sakhawat Hossain also corroborated P. W. 13 that the latter told him in the office room of P. W. 1 that he would be able to recognise the man who had presented the cheque in question. In cross-examination, this witness stated that he stated to the police about the possibility of recogni--tion by Shamsuddin and Nizamuddin also known as G. N. Ahmed Ali Khan, of the man who had presented the cheque in question. There is no suggestion whatsoever against this witness from the side of the accused. We have carefully shifted the lenghty cross-examination of this witness, particularly on behalf of the accused, mainly directed to show that during the busy banking hours, it was not possible to see or recognise the accused either by P. W. 13 or P. Ws. 7 and 17. We have also taken into consideration the fact that he was arrested along with Zeaul Huda and that he was ultimately made a witness in this case. Having thus taken into considera--tion all the criticisms advanced against this witness, we feel convinced that he is a witness of truth and his entire evidence including the story of recognition of the accused as the man who presented the questioned cheque before him, have inspired confidence in us and we accordingly accept the same.
39. Before concluding the question of identification of the accused we must mention that the learned Advocate for the appellant has drawn our attention to an application dated 7th August 1962 from the records wherein it was alleged that the Test Identification Parade will include persons who had known the petitioner for several years, and who had lived as neighbours years who were otherwise interested against the petitioner in the case. In paragraph 3 of the said petition it was stated:- "That the accused-petitioner further remembers that when he came on the last occasion to the Court for having his specimen handwriting recorded, he was most unnecessarily detained in the Court premises by the I.O. For a long time and taken from one place to another; that the accused- petitioner recollects that during this time some of the persons likely to come as witnesses in the T. I.
40. Parade were found loitering in the Court premises and moving around the accused persons only to make a clear idea about the appearance and identity of the accused-petitioner."
41. In paragraph 4 it was alleged that the Anti-Corruption Police necessarily seized a photograph of the accused being No. 35 of the seizure list and the same was being freely used and was being shown to the local witnesses to the Test Identifica--tion Parade in order to help them memorise, the petitioner's identity.
42. We have considered the facts stated in this petition and we are of opinion that this application might have been submitted at the end of the day and the learned Magistrate, P. W. 5 might not have had any opportunity of seeing this petition either on the 7th August or before he held the T. I.
43. Parade on 8th August 1962. It is, therefore, wholly wrong to say that the learned Magistrate made glaringly incorrect statement contrary to records in his cross-examination when he stated, "I do not recollect if the suspect Serajuddowla filed a written objection before me." Then he says, "Nothing written was filed." This answer of the learned Magistrate was quite consistent with the circumstances pointed out above. The learned Magistrate also denied the defence suggestion that the suspect stated before him that a photograph of his was seized by the Police and shown to the witnesses for the purpose of identification. The learned Advocate representing the State submitted that the said petition was a mere contrivance and filed with the ulterior motive of creating doubt on the question of identification of the accused in the T. I. Parade which was vital for the prosecution. We think the submission of the learned Advocate for the State is not altogether devoid of substance We, therefore, find ourselves unable to attach much importance to this petition to discard the whole evidence relating to the Test Identification Parade and for that matter the evidence of P. Ws. 7 and 17 on the point of identification of the accused in Courts. We may mention is this connection thatno specific allegation against these two witnesses were made in the said petition. In this context it is relevant to refer to the evidence of P. W. 21 Mr. Abdul Jalil Khan, who took over charge of investigation of the case after the death of Inspector Makbul Hosain on 6-7-62. T. I.
44. Parade was held on 8-8-62. He stoutly denied the defence suggestion that a Photo of the accused was shown to the witnesses and that no regular T. I. Parade was held. He also denied the suggestion that the accused was shown to the witnesses before holding of the T. I. Parade. There is no suggestion of enmity, or ill-feeling of any kind whatsoever between the accused or his father with this witness w4o had very recently taken up the investigation of the case and had no special reason to be over jealous for securing conviction of the accused by adopting unfair means regarding T. I. Parade. We, therefore, do not find any substance in the allegations. Notwithstanding the lengthy cross-examination of this witness on behalf of the accused nothing substantial could be established against him to discredit his integrity or to discard any part of his evidence.
45. Having thus taken into consideration the evidence on record and the facts and circumstances of the case probabilities and improbabilities suggested by the defence, we are of opinion that the prosecution has succeeded in establishing its case against the accused-appellant. We have no manner of doubt in our mind that the accused-appellant was the person who had fraudulently and dishonestly used the cheque in question as genuine knowing it to be a forged one and that he was the person who had presented the same and received the payment of the amount of Rs.
46. 21,000 on the 14th March 1962, and thereby cheated the Hank to the extent of the said amount.
47. We may next take up the third point urged by the learned Advocate for the appellant that the learned Assistant Sessions Judge was wrong in relying upon the circumstances disclosed in the case. In this connection we must point out at the outset that the legality * or otherwise of the different seizures made in connection with this case was not at all questionable. Moreover, no point was ever raised either before the trial Court or before us regarding the legal proof of the seized articles which were proved in this case. Therefore, we refrain. From repetition of the evidence. The main circumstances revealed in this case are that the accused and Zeaul Huda, an employee of the Bank, had purchased two Radio Sets for Rs. 1.627 including the licence fees from the shop of P.
48. W. 8 Mr. Mokbul Hossain Khan, against cash memos. And the accused himself took delivery of both the licences on 30-4-62 from the shop of P. W.
8. One of the said Radio Sets and a bicycle and the cash memo. Exh. 17 were seized along with many other articles. These purchases were made after the occurrence. Another circumstance is that the accused was produced not before Magistrate Mr. A. K. W. Karim P. W. 2 for obtaining his specimen writings and signature and writings the accused was reluctant to give the specimen writings but at last gave the same in an unusual and distorted manner after having spoilt as many as three pens, vide P. W. 21 although it transpired from the evidence of P. W. 9 Mr. H. Rashid, that the accused read up to Class VII in 1951 in the Graduates' H. E.
49. Sch. These circumstances cannot be overlooked, in the facts and circumstances of the case, in spite of the explanation given by the accused in his written statement submitted at the tune of examination under section 342 of the Criminal Procedure Code. There were other circumstances too, but as they were not put to the accused in his examination under section 342 of the Criminal Procedure Code, vie do not consider it necessary to refer to them. Moreover, we have not based our decision in this case solely on the circumstantial evidence.
50. The fourth point urged by the learned Advocate for the appellant that the learned Assistant Sessions Judge was wrong in admitting the evidence of three persons under section 33 of the Evidence Act has no force at all. The evidence furnished by P. W. 20 has, in our opinion, afforded justification for admitting the evidence of A. F. M. Idris and Mr. Arshadullah. But the effect of their evidence was nil and the accused was not prejudiced in any way inasmuch as A. F. M. Idris was declared hostile .End cross-examined by the prosecution before the Committing Court and we have not referred to his evidence. The substance of the evidence of .Mr. Arshadulla was not put to the accused in his examination under section 342 of the Criminal Procedure Code, and consequently we have not at all relied upon his evidence in arriving at our findings. Therefore, there was no question of prejudice. Mr. Fazlur Rahman's evidence was admitted under section 33 of the Evidence Act on the ground of illness. In our opinion this was rightly done. The most important part of the testimony of Mr. Fazlur Rahman comprises documentary evidence, which have been independently proven by several other witnesses. His oral evidence relates to what happened in the office room of the Manager on 153-1962 after he went to the Bank. This part of the evidence has also been proved by a number of witnesses which we have accepted. Therefore, in his case also, the defence was not at all prejudiced.
51. Lastly, the learned Advocate for the appellant has drawn our attention to the ordering portion of the judgment of the learned Assistant Sessions Judge, Dacca, which is in the following terms "That the accused Serajuddowla be held guilty under the charges and convicted and sentenced to suffer rigorous imprison--ment for a period of',5 (five) years."
52. His contention is that the learned Judge has not clearly stated the quantum of sentence he has passed under each section and, therefore, the case should be sent back on remand. We are unable to accept the contention of the learned Advocate for the appellant. This inadvertence can very well be rectified by this Court sitting in appeal and this is wholly covered by the provision of section 423 of the Criminal Procedure Code.
53. Having regard to the facts and circumstances of the case and the evidence on record, we find the accused guilty under sections 471 and 420 of the Pakistan Penal Code and we sentence him to suffer rigorous imprisonment for 3 (three) years under section 471 of the Pakistan Penal Code. We, however, do not pass any separate sentence for the offence under section 420 of the Pakistan Penal Code.
54. With this modification, the appeal is accordingly dismissed. The accused-appellant must surrender to his bail bond and serve out the sentence of imprisonment imposed on him.
55. SALAHUDDIN AHMED, J.- I agree.