1. ' RAHMAT HUSSAIN JAFFERI, J.---Brief facts giving rise to the present petition for grant of bail are that a fake Account No,8042-8 in the name of Ahmed Ali was opened when co-accused Azhar Hussain: Zuberi was the Branch ,Manager of National Bank of Pakistan, Massan Road Branch, Karachi. The introducer of the said account was Abid Saeed, who used to visit the petitioner in the Bank. It is alleged that the signature on the specimen card of Account No,8042-8 was that of Abid Saeed, who was running the account. It is further alleged that four Pay Order bearing Nos. (1) 141536, dated 14-7-1999 for Rs,723,050, (2) 141724, dated 17-7-1999 for. Rs,399,435, (3) 140421, dated 30-6-1999 for Rs,308,810 and (4) 140422, dated 30-6-1999 for Rs,308,689 were issued by Deutsche Bank in favour of Karachi Metropolitan Corporation and Excise and Taxation Officer, Port Qasim, which were deposited in the Account No,8042-8 through three deposit slips, which were allegedly prepared by the petitioner. The said pay orders were entered in clearance register. After clearance the amount was deposited in the said account. It is also alleged by the prosecution that the petitioner had received cash of two amounts, which were drawn from the said account through two cheques. The investigation was in progress when the Chairman Nab issued warrants for the arrest of the petitioner, therefore, the petitioner has filed the petition.
2. ' We have heard the advocate for the petitioner, DPGA for NAB and perused the record of this case very carefully.
3. ' The learned advocate for the petitioner has stated that there was no entrustment of the cash with the petitioners; that the .Petitioner is not a public servant within the meaning of section 21, P.P.C.; that no loss has been caused to the bank; that no specific clause of section 9(a) of NAB Ordinance, 1999 has been mentioned in the warrant; that the forged cheques were not sent to the Handwriting Expert; that the petitioner was exonerated in departmental inquiry and earlier investigation conducted by the FIA Authorities.
4. ' The learned DPGA has stated that the Pay Orders in favour of Excise and Taxation Officer, Port Qasim and Karachi Metropolitan Corporation were 'to. Be deposited in their accounts, but the said Pay Orders were deposited in the account of a fake person Ahmed Ali, which was being operated by the co-accused Abid Saeed; that the petitioner had filled in the Credit/Deposit Slips through which the Pay Orders were deposited in the said fake account; that the petitioner had received two amounts through cheques drawn from the said account; that the report of Handwriting Expert is in positive.
5. ' From the facts of the case, it is clear that four Pay Orders, which are available in the police file, were issued by Deutsche Bank in favour of Karachi Metropolitan Corporation and Excise and Taxation Officer, Port Qasim, Karachi. The said Pay Orders were required to have been deposited in the account of above mentioned departments, but the same have not been done. The said four Pay Orders were 'deposited in the Account No,8042-8 through Credit/Deposit slips, which were allegedly filled in by the petitioner. The said three Credit/Deposit Slips were sent to the handwriting expert, whose report is in positive, as such, at this stage it appears that the petitioner had some connection in depositing the said four Pay Orders in the above mentioned account. The petitioner is a bank employee, who had knowledge that the Pay Orders are to be deposited in the account in whose favour they were issued, but in spite of his knowledge, he filled in Credit/Deposit Slips so as to be deposited in the Account No,8042-8. One of the entries in clearance register was also maintained. y him as per handwriting expert's positive report with regard to the said entry.
6. Furthermore, the statement of P.W. Attaullah, who was Cash Incahrge, clearly shows that two amounts were received by the petitioner, which were drawn from the Account No,8042-8.
7. ' From the above facts, it is clear that there are reasonable grounds for believing that the petitioner is involved in the case, who is one of the accused along with other bank officials and private persons, therefore, he is not entitled to the concession of bail.
8. ' Before parting with the order, it is pointed out that the Investigating Officer Syed Rizwan Shah had recorded the statements of witnesses under section 161, Cr.P.C. In the second form and not in the first form. The perusal of the said statements reveals that he did not record the full statement of the witnesses as deposed to him by the witnesses, but he selected some portions 'of their statements and in a concise manner maintained such record, therefore, we found it necessary to clarify. The above position for the guidance of the police officers so that in future no illegality should be committed in recording such statements under section 161, Cr.P.C,.
9. ' In order to appreciate the point to give an example of the manner in which the statement was recorded. A portion of the statement is reproduced herewith:- "Today Mr. Atta Ullah son of Muhammad Jan appeared before the undersigned and stated that 'he had been working in banking service since 1984. He stated that while he was working in NBP Massan Road Branch, Karachi, he handed, over payments of following cheques of account No,8042-8 of Ahmed Ali maintained at NBP Massan Road Branch to the persons mentioned as under."
10. ' A similar point was considered in the case of Bommanaboyina Raxnaiah v. State of Andhra Pradesh AIR 1960 Andhra Pradesh 160 (D.B.) relevant part at page 163 reads as under:---, "Now S.161(3) of the Code of Criminal Procedure requires that the police-officer who reduces into writing any statement made to him in the course of an examination under that section 'shall make a separate record of the statement of each such person whose statement he records'. Such a statement, if duly proved, may be used by the accused and under the amended Code by the prosecution for the purposes specified in these words in the proviso to S.162 of the Criminal Procedure Code: ' When any witness is called for the prosecution in such enquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement may be used....To contradict such witness in the manner provided by S.145 of the Indian Evidence Act, 1872 (I of 1872) and when any part of such statement is so used, any part thereof may also be used in the pre-examination of such witness, but for the purpose only of explaining any matter referred to in his cross- examination."
11. ' Now under S.145 of the Evidence Act, 'a witness may be cross-examined as to previous statements made by him in writing or reduced into writing without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
12. ' The cross-examination contemplated under 5.145 of the evidence Act is with reference to previous statement of a witness contained in a record prepared by the witness himself or by another and the proviso to S.162 of the Criminal Procedure Code uses the words 'whose statement has been reduced into writing' and 'any part of his statement'. It seems to us that there is clear indication in the language of these sections that the writing should be describable as a statement of the witness himself and further that it should be as nearly as possible a complete record of what he has said.
13. The writing should therefore be a record in the first person of the whole of the account he gives. If the statement is not in the first person, it would be scarcely appropriate to call it the statement of the witness himself. If it is not taken down as a whole, then a contradiction by way of omission may be wrongly established because the omission may have been made in recording it or an apparent contradiction capable of explanation by reference of another part may be rendered incapable of such explanation because that other part of the statement has been omitted in reducing it into writing."
14. Thus, the police are required to record the statement under section 161, Cr.P.C. In the first person form and it should be as nearly as possible a complete record of what the witness has said. A copy of this order be sent to the Chairman, NAB for issuing directions to all the Investigating Officers to record the statements of the witnesses in the form of first person so as to meet the legal requirement of such statement.
15. ' The petition is dismissed.