' The facts of the prosecution case as can be gathered from the challan and the documents attached thereto are that accused Riaz-ud-Din Jauhar and Anwar Adil, the acquitted accused, were Assistants in National Bank of Pakistan, Model Branch, Karachi. Riaz-ud-Din Jauhar, accused, stole two demand draft books; one containing 100 blank draft forms, from No, 15002801 to 15002900 and the other also containing the same number of draft forms from 1553901 to 15004000, some draft advice and fan-fold forms and took those to his own home at Karachi. Thereafter, he filled in seven demand draft forms, dated 12-2-1981, purporting to have been issued by National Press Trust Building Branch' N.B.P., Karachi to different branches of N.B.P. At Lahore for different sums of money in his favour as payee or his order after making on them signatures in red ink of S. All Mujtaba Rizvi, the then Accountant and Feroze Shah Khan the then Manager of said Branch of N.B.P., Karachi in his own hand. He also prepared seven advices and seven fan-folds, all dated 12-2-1981, relevant to said seven demand drafts in his own hand. He made siguatures of said two officers on said documents also in his own hand. On 16th February, 1981 he presented demand draft No, 15003906, Exh.P.W.1/1 for a sum of Rs,3,000 shown to have been issued by N.P.T. Building Branch, N.B.P., Karachi to the Manager, N.B.P. Samanabad Branch, Lahore. The said demand draft shows two signatures of Riaz-ud-Din Jauhar on its back and these were verified by Tasnim M. Saleem, Proprietor of Libas Markaz, Samanabad, , Lahore, an account holder of said branch of the bank and on the basis of said verification he got the said demand draft encashed and received a sum of Rs,3,000 on 16-2- 1981. Thereafter, he took demand draft No, 15003911, Exh. P.W. 3/13, for a sum of Rs,1,25,000 shown to have been issued by N.P.T. Building Branch, N.B.P., Karachi to Manager N.B.P., McLeod Road Branch, Lahore, payable to him or his order and presented it in Muslim Commercial Bank Ltd. Railway Road Branch, Lahore, for collection. The accused had made endorsement on the back of this draft, under his signature, that it should be paid to M/s. Bhutta Trade Impex, whose proprietor had, in his own turn, made an endorsement, under his own signature, that it should be credited to their account No, 449 with the said bank. The M.C.B., Railway Road, Lahore sent this cheque for collection to N.B.P.
McLeod Road Branch, Lahore. The Manage'r N.B.P. McLeod Road Branch, Lahore, however, found that check signal on the demand draft was incorrect. He, therefore, by means of a telegram dated 17-2- 1981 (Copy Exh. P.W. 3/11) informed Milba Trust Karachi of the incorrectness of the said signal on the said demand draft and sought advice telegraphically. He returned the demand draft to M.C.B, Railway Road Branch, Lahore with an objection slip dated 17-2-1981 Exh.P.W. 3/15 with an objection that disbursement guarantee is required for payment. It appears that the said demand draft was again sent for collection. In the meantime, Milba Trust Karachi in its reply telegram dated 18-2-1981 to N.B.P., McLeod Road Branch, Lahore informed that the said draft had not been issued by N.P.T.
Building Branch of N.B.P., Karachi and payment should be stopped. Accordingly, the Manager N.B.P., McLeod Road Branch, Lahore informed the Manager of M.C.B., Railway Road Branch, Lahore that demand draft was fake and forged and again returned the said draft with a fresh objection slip, dated 19-2-1981, Exh. P.W. 3/16, asking for disbursement guarantee over again. On the same day, however, Riaz-ud-Din Jauhar, accused, appeared in M.C.B. Railway Road Branch, Lahore and produced cheque No, 955870, dated 16-2-1981, Exh. P.W. 3/14, issued by Bhutta Trade Impex for a sum of Rs, 1,25,000 in favour of accused Riaz-ud-Din Jauhar. Riaz-ud-Din Jauhar made his signature on the back of this cheque and presented it for encashment in the hope that the demand draft deposited by him in the account of Bhutta Trade Impex would have been encashed by this time. On this the Manager Railway Road Branch of M.C.B. Contacted the Manager N.B.P.
McLeod Road Branch, Lahore, and informed him of arrival and presence in the bank of the accused to get cash. P.W. 11 Azmatullah Khan, the Manager McLeod Road Branch of N.B.P., Lahore then made a written complaint, Exh.P.W. 11/1, dated 19-2-1981 to the S.H.O., P.S. Naulakha giving the above facts and further stating that on receipt of telegram from Karachi, he had infromed the Manager M.C.B.
Railway Road, Lahore that draft No, 15003911 was bogus, fabricated and fake and he should keep a watch on the payee of the said draft, namely, Riaz-ud-Din Jauhar. It was further stated in this complaint that the said Manager of M.C.B. Had just informed him that the said payee Riaz-ud-Din Jauhar was sitting in the branch and was waiting for the payment of the amount of draft to him. On the basis of the said complaint, F.1.R. No, 44/81, Exh.P.W.12/1, for offences under sections 409, 420, 468 and 471, P.P.C. Was registered in Police Station Naulakha on 19-2-1981. Bashir Ahmad S.I., proceeded to M.C.B., Railway Road, Lahore and apprehended the accused, Riaz-ud-Din Jauhar in the said branch of the M.C.B. On personal search of the accused in the presence of P.W. 11 Azmatullah, Manager N.B.P., McLeod Road Branch, Lahore and P.W. 3 Muhammad Saleem Manager (Operation)
N.B.P., Zonal Office, Lahore, he recovered from the pocket of the accused Riaz-ud-Din Jauhar demand draft No, 15003915, dated 12-2-1981 for Rs,90,000 puporting to have been issued by N.P.T.
Building Branch, N.B.P., Karachi to Ichhra Branch of N.B.P., Lahore Exh.P.W.3/3 and demand draft No, 15003918, dated 12-2-1981, for a sum of Rs,1,10,000 purporting to have been issued by N.P.T. Building Branch of N.B.P., Karachi, to N.B.P. Data Darbar Zaildar Road, Lahore Exh.P.W.3/4 and draft advice and fan-fold dated 12-2-1981 relating to the latter draft, respectively Exh.P.W.3/5 and Exh.P.W.3/6 and demand draft No, 15003905, dated 12-2-1981 for a sum of Rs,2,500 purporting to have been issued by N.P.T. Building Branch of N.B.P., Karachi to N.B.P. Chauburji Branch, Lahore in favour of Riaz ud-Din Jauhar as payee Exh.P.W.3/7 and its relevant draft advice P.W. 3/8 and its connected fan- fold Exh.P.W.3/9. All these documents were taken into possession by the Investigating Officer by virtue of memo. P.W. 3/10. On the same day P.W. 11 Azmatullah Khan, Manager produced before the said Investigating Officer a photo copy of demand draft No, 15003911, dated 12-2-1981 Exh.P.W.3/1 which he had got prepared for record in his branch of the N.B.P. This was taken into possession by the said Investigating Officer on the said date vide memo. Exh.P.W.3/2 in the presence of P.W. 5 Fahim Butt, Manager, M.C.B., Railway Road, Lahore and P.W. 3 Malik Muhammad Saleem. On 21-2- 1981 P.W. 5 Fahim Butt, Manager M.C.B. Produced before the said Investigating Officer the original demand draft No, 15003911, dated 12-2--1981 for a sum of Rs,1,25,000 Exh.P.W.3/13, objection slips dated 17-2-1981 and 19-2-1981 by the National Bank of Pakistan, McLeod Road' Branch Exh.P.W.15-16 as well as cheque No, 955870, dated 16-2-1981 from Bhutta Trade Impex, in favour of Riaz-ud-Din Jauhar, accused for a sum of Rs,1,25,000 Exh.P.W.3/14 and an objection slip prepared by M.C.B.
Railway Road, Lahore purporting to return the said cheque to the presenter with the endorsement 'Refer to the drawer' Exh.P.W.3/17. The said Investigating Officer took these documents into possession vide memo. Exh.P.W.3/18 on the same day in the presence of P.W. 11 Azmatullah and P.W.
3 Malik Muhammad Saleem. On 21-2-1981 P.W. 11 Azmatullah Khan, Manager, N.B.P. McLeod Road Branch, Lahore, produced before the said Investigating Officer photostat copy of telegram sent by him to Milba Trust, Karachi Exh.P.W.3/11 and photo copy of receipt of the telegram, the reply telegram from Milba Trust, Karachi stating that the said demand draft had not been issued by N.P.T.
Building Branch of N.B.P., Karachi, and payment should be stopped, and draft advice of said demand draft for the said sum of Rs,1,25,000 Exh.P.W.8/1 and its relevant fan-fold Exh.P.W.8/2. Bashir Ahmad, Investigating Officer took these five documents into possession vide memo. Exh.P.W.3/12 in the presence of P.W. 5, Fahim Butt and P.W. 3 Malik Muhammad Saleem. The accused Riaz-ud-Din Juahar led the Investigating Officer to Samanabad Branch of N.B.P. Where P.W. 4 Khuda Yar, Accountant produced before him draft No, 15003906, dated 12-2-1981 Exh.P.W.1/1 issued by N.P.T.
Building Branch, National Bank of Pakistan, Karachi for Rs,3,000 in favour of Riaz-ud-Din Jauhar payee, which had been encashed on 16-2-1981, from that branch on the basis of verification of signature of Riaz-ud-Din Jauhar by Tasneem M. Saleem proprietor of Libas Markaz, an account holder of the said branch of the bank holding Account No, 146 there and draft advice relating to the said draft Exh.P.W.1/2 fan-fold relating to the same draft Exh.P.W.1/3 and specimen signature card of said Tasneem M. Saleem Exh.P.W.1/4. The Investigating Officer took these documents into possession vide memo. Exh.P.W.1/5 in the presence of P.W. 1 Zahid Mahmood, Head Cashier, Samanabad Branch of N.B.P. On 22-2-1981. The accused Riaz-ud-Din Jauhar while in police custody made a disclosure that he had kept the sum of Rs,3,000 which he had got by encashment of the said demand draft on 16-2-1981 from N.B.P., Samanabad Branch, Lahore in an attache-case in the house of his friend, Mirza Mahmood Beg resident of Rahat Park, Samanabad, Lahore and led the police party to the said house and brought out the said sum of Rs,3,000 after opening the said attache-case and produced it before the Investigating Officer in the presence of P.W. 4 Khuda Yar.
The said sum consisted of 30 currency notes of one hundred rupees each. Apart from that, draft No, 15003919, dated 12-2-1981, for a sum of Rs,1,05,000, shown to have been issued by N.P.T. Building Branch of N.B.P., Karachi to N.B.P. Krishan Nagar Branch, Lahore, in favour of Riaz-ud-Din Jauhar, payee, Exh.P.W.4/1 and its relevant draft advice P.W. 4/3 and fan-fold P.W. 4/5, and demand draft No, 15002851, dated 12-2-1981 alleged to have been issued by National Press Trust Building Branch of National Bank of Pakistan, Karachi to Badami Bagh Branch of National Bank of Pakistan, Lahore for a sum of Rs,1,20,000 in favour of accused Riaz-ud-Din Jauhar payee Exh.P.W.4/2 and relevant draft advice of the said draft P.W. 4/4 and its connected fan-fold Exh.P.W.4/6 were also recovered from the said attache-case. The Investigating Officer took the said money and the said documents into possession vide memo. Exh.P.W.4/7 in the presence of Khuda Yar P.W.
4. The Investigating Officer, thereafter proceeded to Karachi alongwith accused Riaz-ud-Din Jauhar. The said accused had made disclosure that he had concealed the said bank demand draft books and two stamps of Model Branch, N.B.P., Karachi in his house and that he could get them recovered and accordingly led the police party to his residential quarter, namely, House No, 5, Street No, 14, Block No, H/2, Nazimabad, Karachi and got recovered the said two draft books Exh.P.W.7/1 and Exh.P.W.7/2 (out of one, four blank demand draft forms were missing and out of the other 9 blank draft forms were missing, including the seven drafts which are subject-matter of present case) and two stamps, one of Feroze Shah Khan, Staff Officer and the other of N.P.T.
Building Branch, Karachi and seven blank forms of draft advices and 7 blank forms of fan-folds. The Investigating Officer took these into possession, vide memo. Exh.P.W.13/1. The Investigating Officer arrested at Karachi co-accused Anwar Adil, since acquitted. When the said Investigating Officer had returned to Lahore P.W.6 Abdul Basit, Manager, N.B.P., Ichhra Branch, Lahore, produced before him, on 1-3-1981, one draft advice in respect of draft No, 15003915, dated 12-2-1981 for a sum of Rs,90,000, allegedly issued by N.P.T. Building Branch N.B.P., Karachi in favour of N.B.P., Ichhra Exh.P.W.2/1 and its connected fan-fold Exh.P.W.2/2. The Investigating Officer took these two documents into possession vide Memo. P.W. 2/3 in the presence of Muhammad Khalid P.W.
2.
2. The IInvestigating Officer had taken the specimen writing of the accused in the words and figures as given on some of the recovered documents. He also made him make specimen signatures of Feroze Shah Khan and S. Ali Mujtaba in red ink. These were got prepared by the Investigating Officer before a Magistrate on sheets Exh.C.W.1/1 to C.W. 1/3. He also took the specimen signatures and writing of S. All Mujtaba P.W. 9 on sheets P.W.9/1 to P.W. 9/3 before a Magistrate. He also took the specimen signatures of Feroze Shah Khan P.W. 8 on sheets P.Ws.8/3 to 5, later also exhibited as Exhs.C.W.2/1 to 3. He also took certain writings of the co-accused Anwar Adil since acquitted before a Magistrate. He sent all these documents alongwith the questioned documents to the Forensic Science Laboratory, Crimes Branch, Lahore for opinion of the handwriting expert. The opinion, dated 1-10-1981 Exh.C.W.2/4, signed by Muhammad Sarwar Examiner of questioned documents and by section incharge, in token of his having found the said opinion to be correct in his counter- examination and checking was received. It was to the effect that the questioned signatures of S. Ali Mujtaba and Feroze Shah Khan on all the seven demand drafts and the seven draft advices and all the seven fan-folds were forged when compared with signature of S. Ali Mujtaba, and Feroze Shah Khan, respectively on sheets Exhs.P.W.9/1 to 3 and Exhs.P.W.8/3 to 5 also exhibited as C.W. 2/1 to 3 but were similar in characteristics with the specimen English signatures of said two persons made by accused Riaz-ud-Din Jauhar on specimen sheets Exhs.C.W.1/1 to 3. It was further to the effect that writing on all the seven demand drafts, all the seven draft advices and all the seven fan-folds were similar to specimen English writings on specimen sheets Exhs.C.W.1/1 to 3 made by accused Riaz-ud-Din Jauhar.
3. The trial of the case started in the predecessor Court of Special Judge (Central), who framed charge against the accused Riaz-ud-Din Jauhar and co-accused Anwar Adil on 20-9-1981. The first charge was in respect of theft by them of the draft books, advice forms fan-fold forms and two rubber stamps from N.P.T. Building Branch, N.B.P., Karachi punishable under section 380, P.P.C. The second charge was in respect of forgery of all the seven drafts by the two accused, intending that the aforesaid drafts shall be used for the purpose of cheating and in consequence, commission by them of offence under section 468, P.P.C. The third charge was in respect of use by them in connivance with each others, of the forged draft No, 15003906 for Rs,3,000 Exh.P.W.1/1 and No, 15003911 for Rs,1,25,000 Exh.P.W.3/13 as genuine and thereby commission of offence under section 471, P.P.C. The fourth and fifth charges were respectively for offences under section 420, P.P.C. And under section 5 of Prevention of Corruption Act, 1947. The offences under sections 380, P.P.C., 420, P.P.C. And section 5 of Prevention of Corruption Act, 1947 are not scheduled offences as defined in section 2(d) of Offences in Respect of Banks (Special Courts) Ordinance, 1984 (IX of 1984) and are not triable by this Court. Therefore, neither any evidence in regard to said offence shall be given hereunder nor any comments would be made whether the accused had committed the offences in question or not.
4. Before the case was transferred to this Court, statements of 14 witnesses had been recorded in the Court of Special Judge (Central) and the prosecution evidence had been closed and now only statement of accused under section 342, Cr.P.C. Was to be recorded. However, on perusal of the statements of prosecution witnesses and other record, to find out the incriminating evidence against the two accused which was to be put to them, some difficulty was encountered as regards co-accused Anwar Adil. I had accordingly asked the Special Prosecutor as well as the learned counsel for the accused to argue as to whether any incriminating evidence was available against accused Anwar Adil and after hearing the Special Prosecutor as well as the learned counsel for Anwar Adil I came to the conclusion that there was no evidence against Anwar Adil to enable me to record his statement under section 342, Cr.P.C. And as such there was no probability of his being convicted for the scheduled offences namely offences under sections 468 and 471, P.P.C.
Accordingly, under section 249-A/265-K, Cr.P.C. I by my order dated 3-10-1984 acquitted him of the charge for the two scheduled offences. Thereafter, the statement of the accused Riaz-ud-Din Jauhar was recorded by me on 13-10-1984. He denied the correctness of all the incriminating evidence which had come on record against hitn and had been put to him. He did not claim the amount of Rs,3,000 as his own and stated that the P Ws. Deposing against him were all bank employees and they had supported the bank case. On the question as to why this case had been made against him he replied that actually this fraud was committed by bank officers themselves and he had been made scapegoat. He, however, stated that he would produce no defence.
Thereafter, the arguments were heard. After further arguments of the Special Prosecutor and the learned counsel for the accused in regard to the case, especially, explanation to section 47 of Evidence Act, 1872, had been concluded, I by my detailed order, dated 31-10-1984 held that it was essential for the just decision of this case to resummon one witness and summon certain other witnesses. I accordingly resummoned Qalb-e-Abbas P.W. 10 as prayed for by learned counsel for the accused and summoned Muhammad Sarwar examiner of questioned documents and Magistrates before whom the specimens of the handwritings/signatures of accused Riaz-ud-Din Jauhar and Feroze Shah Khan and S. Ali Mujtaba Rizvi were taken. Thereafter, Khalid Bashir Tarar, Magistrate was examined as C.W. 1, Muhammad Sarwar handwriting expert as C.W. 2, Qalb-e- Abbas as C.W. 3, and Abdul Haq, Magistrate as C.W.
4. After hearing the arguments in the case again, I, by my order, dated 19-1-1985, resummoned Bashir Ahmad Investigating Officer, who had already appeared as P.W. 14 as in my opinion it was necessary to do so for just decision of the case. The statement of the said resummoned witness was recorded on 28-1-1985. After this I again examined the accused under section 342, Cr.P.C. On 26-2-1985 to get his explanation for the fresh evidence which had now come on record and appeared to incriminate him. He denied that signatures and writing on the demand draft and other documents were in his hand. He denied that any document written or signed by him, in due course of banking business, passed through the hands of Qalb-e-Abbas P.W.
10. He admitted that his specimen writings and signatures were taken before the Magistrates but alleged that the report of handwriting expert was wrong, baseless and unreliable. He also stated that he had not forged any writing or signature. He also said that bank officers who had made statements against him had tried to save their own skin and reiterated that he had been made a scapegoat. He, however, declined to produce any defence even after the said additional evidence had come on record against him.
5. I would not proceed to find out whether the prosecution story as given in the opening part of this judgment has been made out in evidence on record or not. The said evidence can be classified into following distinct categories:-
(i) Evidence in respect of recovery of two draft books containing blank draft forms other documents and two stamps from the house of accused at Karachi.
(ii) Evidence regarding attempt of the accused to get encashed demand draft Exh.P.W.3/13, for Rs,1,25,000 and recovery by police of the same and other relevant documents in that regard.
(iii) Evidence in respect of recovery of demand drafts Exh.P.W.3/13, P.W. 3/4, P.W. 3/7 and other documents relating to latter two drafts on 19-2-1981 on personal search of accused.
(iv) Evidence of recovery from Samanabad Branch of N.B.P. Lahore of the encashed demand draft Exh.P.W.1/1, for a sum of Rs,3,000, its connected draft advice Exh.P.W.1/2 and fan-fold Exh.P.W.1/3.
(v) Recoveries on pointation of the accused of demand drafts Exh.P.W.4/1, Exh.P,.W.4/2 and other connected documents Exh.P.W.4/3, Exh.P.W.4/5, Exh.P.W.4/4 and Exh.P.W.4/6 from the attache-case kept by the accused in the house of his acquaintance, situated in Rahat Park, Lahore.
(vi) Evidence of Feroze Shah Khan and Ali Mujtaba, stating that signature on the seven bank drafts were not theirs and had been forged by someone.
(vii) Evidence of identity of specimens of writings of the accused and of signatures of S. All Mujtaba Rizvi and Feroze Shah Khan obtained by the Investigating Officer.
(viii) The evidence of the handwriting expert in respect of correspondence of the writing on the demand drafts with the specimen writing of the accused, obtained by the Investigating Officer in the presence of the Magistrates.
(ix) The evidence of Qalb-e-Abbas in regard to said identity of the handwriting of Riaz-ud-Din Jauhar on the said demand drafts and other documents.
' EVIDENCE IN RESPECT OF RECOVERY OF TWO BLANK DRAFTS AND TWO STAMPS
6. In this connection only two witnesses appeared. Abdul Rahman constable appeared as P.W. 13 while Bashir Ahmad A.S.I. As P.W.14. Bashir Ahmad A.S.I., P.W. 14, who was Investigating Officer and had gone to Karachi in connection with the investigation of this case, deposed in his statement that the accused got recovered on 24-2-1981 two draft books/Exhs. P.W.7/1 and P.W. 7/2 and two stamps Exhs.P.1 and Exh.P.2 from his house situated in Karachi which were taken into possession by him vide memo. Exh.P.W.13/1. No cross-examination was conducted on the said witness challenging the said recovery at the instance of the accused. The defence, therefore, shall be deemed to have accepted this part of the evidence of the said witness as correct on factual plane. Furthermore, this witness has been corroborated in regard to recovery of two draft books by Abdur Rahman constable who accompanied him to Karachi and appeared as P.W.
13. He had stated that the said accused Riaz-ud-Din Jauhar had in custody led to the recovery of two draft books P.W. 7/1 and P.W. 7/2 which were taken into possession by the said Investigating Officer vide memo. P.W.13/1. He stated that four drafts were missing from one book and nine were missing from the other book. It is true that in cross-examination, he could neither give the correct number of the house of the accused from which the recovery was made nor could tell the name of colony where the house of accused Riaz-ud-Din Jauhar was situated but he gave correct number of the block of the colony and was also able to tell correctly the police station in which said house was situated. On further cross-examination, he stated that accused himself had asked his brothers to bring the two draft books which were lying in a box in the house proving the availability of said blank draft books in the house of the accused at Karachi but no suggestion was given to the said witness that the story of recovery of blank draft books was false and the accused did not lead to the recovery of the said two draft books. It is, therefore, established that the said two blank draft books were recovered from the house of the accused at Karachi. I have seen the said two draft books. First one Exh.P.W.7/1 was supposed to contain blank draft forms from 15002801 to 15002900.
However, four drafts forms are missing from it and draft No, 15002851 is one which had been taken out of this book and used in the present case. The other draft book which is P.W.7/2 was also supposed to contain 100 blank draft forms, from 15003901 to 15004000, out of which nine forms are missing including forms Nos. 15003905, 15003906, 15003911 15003915, 15003918 and 15003919 which are the numbers of other drafts used in the present case. Therefore, the prosecution story of recovery of two blank draft books Exh.P.W.7/1 and P.W. 7/2 (from which seven draft forms used in the present case are missing) and two stamps P.1 and P.2 from the house of the accused, at his pointation, stands proved on record.
' EVIDENCE REGARDING ATTEMPT OF THE ACCUSED TO GET ENCASHED DEMAND DRAFT P.W.3/13 AND RECOVERY BY POLICE OF RELEVANT DOCUMENTS
7. P.W. 5 Fahim-ud-Din Butt stated that Riaz-ud-Din Jauhar accused had brought draft P.W. 3/13 for Rs, 1,25,000 for deposit in the account of Bhutta Trade Impex and it was deposited in the said account. I have seen the said draft. On the back of it, there is an endorsement purporting to be in the hand of the accused "Please pay this amount to M/s. Bhutta Trade Impex" under the singature of Riaz-ud-Din Jauhar, accused. Thereafter, there is an endorsemet by Bhutta Trade Impex "Please credit it to our account No, 449 with you". P.W. 5 Fahim-ud-Din Butt also stated that the said draft which had been drawn on the N.B.P. McLeod Road Branch, Lahore with Riaz-ud-Din Jauhar described therein as the payee had been returned by N.B.P. McLeod Road Branch, Lahore with the objection "disbursement guarantee required". I have seen two objection slips Exh.P.W.3/15, dated 17- 2-1981 and Exh.P.W.3/16 dated 19-2-1981. Both show that the draft in question had been returned by Manager N.B.P., McLeod Road Branch, Lahore to M.C.B., Railway Road Branch, Lahore for want of disbursement guarantee. This witness further stated that two days after the presentation of the draft the accused came again to his branch with a cheque dated 16-2-1981 for a sum of Rs, 1,25,000 from Bhutta Trade Impex in his favour as payee. I have seen this cheque. This is Exh.P.W.3/14. On the back of this cheque there appears the signature of Riaz-ud-Din Jauhar. This witness further stated that before the accused came for withdrawal of the said sum by a cheque, he had come to know that the draft was bogus and, therefore, the accused was apprehended on the spot and handed over to the police. He also deposed that he had produced before the police on 21-2-1981 the said original draft P.W. 3/13, cheque P.W. 3/14, objection slips of McLeod Road Branch of N.B.P. Exh.P.W.
3/15 and Exh.P.W.3/16 and objection slip Exh.P.W.3/17 prepared by Railway Road' Branch of M.C.B.
Returning the cheque to the presenter with the objection "Refer to the drawer" which documents had been taken into possession by police as per memo. Exh.P.W.3/18. The evidence of this witness is duly supported by the above said documentary evidence. The defence counsel could not make the identity of the presenter of the said draft as doubtful as P.W.
5. Fahim-ud-Din Butt, stated in cross-examination, that he had seen the accused Riaz-ud-Din Jauhar when he brought the draft in question for deposit. Thus, presentation by the accused of the demand draft in the Railway Road Branch of the M.C.B., for realisation, has been proved to the hilt.
The learned counsel had cross-examined P.W. 5 Fahim-ud-Din Butt to show that it was Bhutta Trade Impex who had produced the said demand draft in the bank. However, he could not get anything from the said witness in that regard. As already stated in cross-examination the said witness had clearly stated that he had seen accused Riaz-ud-Din Jauhar when he had brought the draft for deposit. The mere fact that there was further endorsement by the endorsee on a demand draft that the value of the draft should be deposited in his account would not mean that the said second endorsee was bound to and had come personally to deposit the said draft. It is common knowledge that when a man is not identifiable in a particular branch of a bank, he takes the support of an account holder of the said branch and asks him to permit him to deposit draft in his account for encashment and pay him money and the account holders who are known to such a person allow such transactions, keeping in view the difficulties which a person having no account in the bank has to meet with. It is to be presumed, therefore, that the accused had on the basis of his acquaintance with the owners of Bhutta Trade Impex requested them to get the demand draft deposited in the account of their firm and they had accepted on the basis of their previous acquaintance with the accused the genuineness of the draft and allowed it to be deposited in their account on or about 16-2-1981, and had issued him a cheque for Rs, 1,25,000 so that in that way he (accused) might get the amount of draft after its collection from N.B.P. McLeod Road Branch, Lahore. Therefore, from the mere fact that Bhutta Trade Impex had accepted the request of accused Riaz-ud-Din Jauhar for giving him facility of depositing the said demand draft in their account, it cannot be said that Bhutta Trade Impex had deposited the said draft in the bank or was responsible for trying to defraud the bank of the said money. Fahim-ud-Din Butt who was dealing with the matter as Manager M.C.B., Railway Road Branch, where the draft was deposited, was the best person to know credentials of the Bhutta Trade Impex. He had categorically stated that according to him and according to the investigation .Made by the Investigating Officer, Bhutta Trade Impex was wholly innocent. They proved to them their bona fides when on information being conveyed to them by Fahim-ud-Din Butt that the draft deposited in their account was bogus, they co-operated with him by telling him that they had issued cheque for Rs, 1,25,000 and that when Riaz-ud-Din Jauhar would come to collect the said sum he should be apprehended at that time. In my opinion, therefore, it is not proved that it was Bhutta Trade Impex who had presented the said draft in the Railway Road' Branch of the bank and the original statement of P.W. 5 that it was accused who had presented this draft in his branch of the M.C.B. And whom he himself had seen then, remains unshattered. Even otherwise, it is highly probable for the accused to have presented this draft in the M.C.B. Railway Road Branch as he was the payee of the draft and was naturally most interested in early realization of the amount of the said draft. In any way, the defence did not cross-examine this witness in regard to the identity of the person who had presented cheque P.W.
3/14 although in examination-in-chief the said witness had clearly stated that two days after presentation of said draft, accused had come for withdrawal of money and had brought the cheque Exh.P.W.3/14. The fact that the accused came with the said cheque for withdrawal of the amount of the said demand draft corroborates the circumstance of presentation by him of the said demand draft in the bank and its use as a genuine document. The statement of this witness is corroborated in all material aspects by the statement of P.W.
11. Azmatullah, the then Manager of N.B.P. McLeod Road Branch, Lahore, who had stated that on scrutiny of draft P.W. 3/13 which had been received in his branch from M.C.B. Railway Road Branch, he had found code number to be suspicious and on receipt of reply telegram from the branch of N.B.P. Which had allegedly issued the said draft to the effect that they had not issued the said draft, he had returned the draft with objection slip P.W. 3/15 and P.W. 3/16 and had informed the Manager that draft was bogus and payment should not be made and watch should be kept for the accused person and that on 19-2-1981 Manager Fahim-ud-Din Butt of M.C.B. Railway Road Branch had informed him that accused Riaz-ud-Din Jauhar had come to the branch for receiving payment and was sitting there, upon which he had gone to said branch, seen Riaz-ud-Din Jauhar sitting there and had thereafter made complaint Exh.P.W.11/1 in Naulakha Police Station and thereupon after registration of the F.I.R. Exh.P.W.12/1, Bashir Ahmad S.I. Had proceeded to the M.C.B Railway Road Branch where accused Riaz-ud-Din Jauhar was apprehended by said police officer. This witness also produced before police photo copy of draft No, 15003911 Exh.P.W.3/1 which was taken into possession by Investigating Officer as per recovery memo. Exh.P.W.3/2 signed by him. He also produced before him photo copy of telegram Exh.P.W.3/11 which was taken into possession by Investigating Officer vide memo. Exh.P.W.3/12, signed by him. He also deposed that P.W. 5 Fahim- ud-Din Butt, Manager, produced before the Investigating Officer original/draft P.W. 3/13, objection slips Exh.P.W.3/15, and Exh.P.W.3/16, which were taken into possession by the Investigating Officer vide memo. Exh.P.W.3/18. The portion of statement of this witness that Fahim-ud-Din Butt had informed him that accused Riaz-ud-Din Jauhar had come to receive the payment and was sitting in the bank, when seen in the context of totality of statement of this witness, clearly showed that Fahim-ud-Din Butt fully recognized accused Riaz-ud-Din Jauhar who had originally presented the said draft and corroborated the statement of Fahim-ud-Din Butt that he had seen the accused when he originally presented the said draft for collection from the N.B.P. McLeod Road Branch, Lahore. Therefore, the fact that the accused had attempted to use the draft as a genuine document stands proved beyond any shadow of doubt.
8In this connection the statement of the accused under section 342, Cr. P.C. That he had been arrested from the house of his uncle in Anarkali is of no avail to him as neither any question to that effect had been asked from the said two witnesses nor from the Investigating Officer, P.W.
14. The plea is, therefore, clearly an afterthought and has to be rejected. Further, plea of the accused, in his statement under section 342, Cr.P.C., that P.Ws. Who have deposed against him are all bank employees and they have supported the bank case, also does not appear to be of any consequence, as witnesses cannot be discarded on the sole ground that they are employees of the banks in which occurrence had taken place. Rather in my view, such witnesses are the most natural witnesses and in the absence of any enmity or ill-will towards the accused, their evidence cannot be disbelived. In the present case, no or enmity of the said bank employees has been suggested in cross-examination or even alleged in the two statements of the'accused under section 342, Cr.P.C. There is, therefore, nothing to detract from the credibility of said witnesses and from the proof afforded by them of the circumstance that it was the accused who had originally presented draft P.W. 3/13 for payment after collection and later presented the cheque for payment of the amount of draft and had been arrested in the bank immediately thereafter.
' RECOVERIES FROM THE PERSONAL SEARCH OF THE ACCUSED ON 19-2-1981.
9 ' When the accused had been apprehended in the bank and handed over to the police, the search of his person was made and from his pocket,demand draft No, 15003915, dated 12-2-1981, Exh.P.W.3/3, for Rs,90,000 issued by N.P.T. Building Branch, N.B.P., Karachi to Manager N.B.P., Ichhra Branch, Lahore, in favour of Riaz-ud-Din Jauhar payee, and demand draft No, 15003918, dated 12-2- 1981 Exh.P.W.3/4 for Rs,1,10,000 issued by N.B.P., N.P.T. Building Branch, Karachi to Manager N.B.P. Data Darbar Branch, Lahore in favour of Riaz-ud-Din Jauhar payee, and demand draft No, 15003905, dated 12-2-1981 Exh.P.W.3/7 for a sum of Rs,2,500 issued by N.P.T. Building Branch, N.B.P., Karachi to Manager N.B.P. Chauburji Branch, Lahore in favour of Riaz-ud-Din Jauhar payee and draft advice and fan-folds relevant to the latter two drafts P.W. 3/5-6 and P.W. 3/8-9 were recovered. This is proved by the evidence of P.W. 11 Azmat Ullah, Manager, N.B.P., McLeod Road Branch, Lahore who stated in his evidence that when the accused had been apprehended in the M.C.B., Railway Road, Branch, Lahore, police carried out his personal search, whereupon three drafts Exh.P.W.3/3 P.W. 3/4 and P.W. 3/7 and their connected documents P.W. 3/5-6 and P.W. 3/8-9 were recovered which were taken into possession by Investigating Officer vide memo. P.W. 3/10. The other witness is P.W. 3 who stated in his examination-in-chief that said three drafts with said advices and fan-folds were recovered from the person of accused Riaz-ud-Din Jauhar and these were taken into possession vide memo. Exh.P.W.3/10. This witness had been recovery of many documents and was not sure whether all the recoveries including the recovery of other documents had taken place in the bank or in the police station. He attributed this to expiry of a long time since the said recoveries. However, that portion of his evidence does not detract. From the afficacy of his statement that the above said documents were recovered from the custody of the accused. Investigating Officer P.W. 14 had also stated that when he went to the M.C.B. Railway Road Branch, Lahore and had apprehended Riaz-ud-Din Jauhar there, he had on the search of his person recovered three drafts P.W. 3/3 P.W.
3/4 and P.W. 3/7 which were taken into possession vide recovery memo. P.W.3/10 alongwith other documents. This part of the evidence of this witness was not challenged in the cross-examination.
The defence could not elicit anything further from this witness in cross-examination, as he stated that except photo copy of the draft, all other documents were recovered in that branch (M.C.B.
Railway Road Branch) from the H person of the accused. It, therefore, stands established that three drafts P.W. 3/3, P.W. 3/4 and P.W.3/7, respectively for sums of Rs,90,000, Rs,1,10,000 and Rs,2,500 alongwith their relevant draft advices and fan-folds had seen recovered by the police on 19-2-1981 from the person of the accused.
' RECOVERY OF DOCUMENTS FROM THE SAMANABAD BRANCH OF N.B.P., LAHORE ON 21-2-1981 10 Evidence in this respect consists of statements of Zahid Mahmood P.W. 1 as well as Investigating Officer Bashir Ahmad P.W.
14. Zahid Mahmood appeared as P.W.1 and stated that on 21-2-1981 Khuda Yar Cheema, Accountant N.B.P., Samanabad Branch, Lahore produced before police draft Exh.P.W.1/1 (for a sum of Rs,3,000 which had been encashed on 16-2-1981) its connected draft advice Exh.P.W.1/2 and fan- fold Exh.P.W.1/3 as well as specimen signature card of Tasnim M. Saleem of Libas Markiz, Samanabad P.W. 1/4 which were taken into possession by police vide recovery memo. Exh.P.W.1/5 which he attested. No cross-examination was conducted on this witness. Evidence of this witness shall, therefore, be deemed to have been accepted by the defence as correct. P.W.14 Bashir Ahmad S.I., Investigating Officer stated in his examination-in-chief that Riaz-ud-Din Jauhar took him to N.B.P., Samanabad Branch where Khuda Yar Accountant produced draft for Rs, ,000 Exh.P.W.1/1 which he took into possession vide memo. Lxh.P.W.5/1 (actually Exh.P.W.1/15) alongwith connected papers. There was no cross-examination on this witness too in regard to actual recovery of said documents. However, on a question by defence counsel, the said witness stated that though he did not know the name of the road where Samanabad Branch of N.B.P. Is situated and though he had gone there only once, he could take the learned defence counsel to that branch. The matter was not persued further by the defence counsel to show that the said police officer could not locate said branch of the bank. The said answer is, therefore, sufficient to show that the said police officer went to Samanabad Branch of the bank and his evidence in respect of recovery of these documents is correct. It may be stated in this connection that it is true that Khuda Yar Cheema who was said to have actually presented these documents has not deposed in his statement that he had presented these documents to the Investigating Officer but it appears that the Prosecuting Inspector had missed getting his statement recorded in that regard and the defence counsel too had not asked him that he had not presented any document to the Investigating Officer. In any way omission on the part of the said witness to make a statement in that connection is not of any consequence when other two witnesses have deposed to that effect and it is hardly conceivable that recovery of said documents would have been foisted in the case falsely to incriminate the accused who belonged to Karachi and had nothing to do with the said witnesses who are not shown to have had any enmity whatsoever with him. In my opinion, therefore, the recovery of this demand draft No, 15003906, dated 12-2-1981 Exh.P.W.1/1 and its connected papers, namely draft advice Exh.P.W.1/2, fan-fold Exh.P.W.1/3, specimen signature card Exh.P.W.1/4 from N.B.P. Samanbad Branch, Lahore also stands proved beyond any shadow of doubt.
11. I have seen the said demand draft P.W. 1/1. It is for a sum of Rs,3,000. It shows itself to have been encashed on 16-2-1981. Furthermore, on its reverse, the signatures appear to be that of Riaz-ud-Din Jauhar payee which had been verified by Tasnim M. Saleem of Libas Markiz. It is pertinent to point out that P.W.4 Khuda Yar who was Accountant of Samanabad Branch has stated in cross- examination that the police had brought Riaz-ud-Din Jahar in the bank before noon time and that he had known the accused when he got the draft of Rs,3,000 encashed from his branch. This part of evidence of the said witness shows that accused Riaz-ud--Din Jauhar had come to N.B.P.
Samanabad Branch on 16-2-1981 and had presented the draft P.W. 1/1 and got it encashed on the basis of verification of his signature by Tasnim M. Saleem an account holder of the said branch.
The said proved circumstance supports the recovery from the said branch of N.B.P. Of the demand draft as well as its relevant draft advice and fan-fold, which must have come to the branch earlier to the presentation of the said demand draft.
' RECOVERY OF SUM OF Rs,3,000 AND DEMAND DRAFTS AND OTHER DOCUMENTS FROM ATTACHE-CASE
12. Khuda Yar as P.W. 4 deposed that on 22-2-1981, the accused led the police party to the house of Mirza Mahmood Beg, his acquaintance, in Rahat Park, Samanabad, Lahore and got recovered from a box the sum of Rs,3,000. According to him the said sum consisted of thirty 100-rupee currency notes. He also stated that the accused also got recovered two drafts P.W. 4/1 and P.W. 4/2, respectively for sums of Rs,1,05,00 and Rs,1,20,000 alongwith their advices and fan-folds Exh.P.W.4/3 and 5 and P.W. 4/4 and 6 which the police took into possession vide memo. Exh.P.W.4/7. In cross- examination of this witness, there was hardly any substantial question challenging the factum of said recovery of the said sum of Rs,3,000 and the said documents. So far as the recovery of sum of Rs,3,000 is concerned, two questions were asked. One of them was meant to find out if the accused had any other sum of money with him at that time to which reply of the witness was that he could not say/did not remember that accused had more money. This answer did not make his statement unreliable as there is nothing on record to show that accused had any other sum of money then with him. P.W. 14 Bashir Ahmad, A.S.-I. Stated that on 23-2-1981 a sum of Rs,3,000 was recovered from the house of the accused at Lahore which was also taken into possession vide memo.
Exh.P.W.7/7. Thus the recovery of a sum of Rs,3,000 in shape of thirty 100-rupee currency notes, stands proved to the hilt. So far as the recovery of two drafts and their connected documents are concerned, it is true that the police officer has not stated anything in this regard. However, P.W.4 Khuda Yar has deposed to that effect: There is nothing in cross-examination of this witness to make his testimony unreliable. Td a question put to him in cross-examination, this witness had categorically stated that it was incorrect that if Riaz-ud-Din Jauhar had not been made accused in this case, the responsibility in regard to the said sum of Rs, 3,000 would have been his. There is nothing on record to show that in making the said payment on demand draft Exh.P.W.1/1, P.W. 4 Khuda Yar Accountant had committed any irregularity or had been guilty of any chicanery. It is not on record that the check signal on this demand draft of a sum of Rs, 3,000 drawn on N.B.P., Samanabad was wrong. The payment had been made after the signature of the payee Riaz-ud- Din Jauhar had been verified by Tasnim M. Saleem an account holder of said branch of the N.B.P..
The said witness has thus taken due care and attention in making the said payment and could under no circumstance have been held responsible for the money thus fraudulently withdrawn by the accused. Furthermore, it cannot be said that this witness was faced with the necessity of implicating the accused in order to exculpate himself. It is common knowledge that fraudulent withdrawals of money on the basis of forged drafts take place during normal course of banking business but employees of the bank are not held responsible for the payment so made without any fault on their part. There is thus nothing to detract from the credibility of the said witness and therefore reliance has got to be placed on the statement of this single witness in regard to the recovery of said two demand drafts and their connected documents. In this connection, the proved circumstances of recovery of two draft books containing blank draft forms from the house of the accused at Karachi which did not contain 13 blank forms of demand drafts, including blank forms of demand drafts Nos. 15003919 and 15002851 cannot be ignored. The said circumstance strongly supports the recovery, from the box of the accused, of the said two drafts Exh.P.W.4/1 and Exh.P.W.4/2 at the instance of the accused.
13. The learned counsel for the accused has contended that the attache-case box out of which the accused got recovered the sum of Rs, 3,000 and documents was not in exclusive possession of the accused as no evidence has come that it was locked and the accused had opened the said block with key in his possession and, therefore, it was open and accessible to inmates of the house in which it was placed. I am afraid, I cannot accept this contention in the circumstances of this case.
The accused led to the recovery of the box lying in the house situated in Rahat Park, Samanabad, Lahore. This house was not known to the police officer or to Khuda Yar. The fact that the accused led the police to the said house, after making disclosure, itself tends to show that the box in which money and said documents were lying in the said house was in personal custody of the accused.
No question was asked from the witnesses who proved said recovery that box was lying unlocked and others had access to it. The mere fact that it has not come on record that his box was locked does not prove that it was unlocked. Mirza Mahmood Beg in whose house accused had placed his box had been described by the accused before police as his acquaintance. No person keeps his box unlocked in the house of his acquaintance at Lahore and even in the house of his relative when the said person himself belongs to and lives in Karachi and has come from there to Lahore for some business. It shall, therefore, have to be presumed that box was locked and things placed in it were in exclusive possession of the accused. In any way, no person could have put in the said box demand drafts etc. Of N.P.T. Building Branch of N.B.P., Karachi, purporting to have been filled in and completed by officers of said branch at Karachi as no evidence is on record that inmates of said house had anything to do with said branch of the bank at Karachi. Furthermore, since the two said drafts were out of the draft books which had been recovered from the house of the accused, it is not unreasonable to think that the accused had brought alongwith him from Karachi the said documents which had been recovered from his said box. The said documents and the said sum of Rs, 3,000 must, therefore, be considered to have been recovered from the exclusive custody of the accused. So far as the sum of Rs, 3,000 is concerned, that too cannot be expected to have been placed by the inmates of the house in the box of the accused who had come from Karachi. The said amount is thus also proved to have been recovered from the personal custody of the accused.
' EVIDENCE IN REGARD TO THE FORGERY OF SIGNATURES OF FEROZE SHAH KHAN P.W. AND ALI MUJTABA RIZVI P.W. 9 ON DEMAND DRAFTS AND THEIR CONNECTED DOCUMENTS
14. It would be noted that demand drafts of N.P.T. Building Branch, N.B.P., Karachi are shown to have been signed by two officers, one is Feroze Shah Khan and the other is All Mujtaba Rizvi. Feroze Shah Khan appeared in evidence as P.W. 8 and stated that he had seen all the drafts issued on 12-2-1981 alongwith their advices and fan-folds and bank draft No, 15003911 dated 12-2-1981 for a sum of Rs,1,25,000 Exh.P.W.3/13 originally shown in his statement as Exh.P.W.8/3 and wrongly corrected to read as P.W. 3/3), bank draft No, 15003906, dated 12-2-1981 for sum. Of Rs,3,000 Exh.P.W.1/1, bank draft No, 15003919, dated 12-2-1981 for a sum of Rs,1,05,000 Exh.P.W.4/1 bank draft No, 15002851, dated 12-2-1981 Exh.P.W.4/2 and bank draft No, 15003915, dated 12-2-1981, Exh.P.W.3/3 for a sum of Rs,90,000 bank draft No, 15003918, dated 12-2-1981 for a sum of Rs,1,10,000 P.W. 3/4 and bank draft No, 15003905, dated 12-2-1981 for a sum of Rs,2,500 Exh.P.W.3/7, are not signed by him and his signatures on all these drafts have been forged. He also said that he had not signed their connected draft advices and fan-folds too. He further stated that he had given his specimen signatures Exhs.P.W.8/3 to 5 to the police during investigation. The accused never challenged the statment of this witness in cross-examination. The whole of the statement of this witness has, therefore, boon proved to be correct.
15. All Mujtaba Rizvi who was shown to be the other signatory of demand drafts and other documents appeared as P.W. 9 and stated that the demand draft for sum of Rs,1,25,000 Exh.P.W.3/3 (Actually P.W. 3/13) and demand drafts Exh.P.W.1/1, Exh.P.W.4/1, Exh.P.W.4/2, Exh.P.W.3/3, Exh.P.W.3/4 and Exh.P.W.3/7 alongwith other connected draft advices Exh.P.W.8/3, Exh.P.W.2/1, Exh.P.W.3/5, P.W.1/2, P.W.4/3, P.W.4/4 and fan-folds Exh.P.W.8/2, Exh.P.W.2/2, Exh.P.W.3/6, Exh.P.W.3/9, Exh.P.W.1/3, Exh.P.W.4/5 and Exh.P.W.4/6 are not signed by him and his signatures have been forged on all of them. He also stated that he had given specimen signatures Exhs.P.W.9/1 to P.W. 9/3. The statement of this witness was also not subjected to any cross-examination. It is also, therefore, to be deemed to have been accepted by the defence as correct.
16. The statements of these two witnesses prove beyond any shadow of doubt that all the seven demand drafts alongwith their advices and fan-folds were forged.
' EVIDENCE OF IDENTITY OF SPECIMENS OF WRITING OF THE ACCUSED AND SIGNATUTES OF TWO BANK OFFICERS, OBTAINED BY THE INVESTIGATING OFFICER FROM THE ACCUSED AND SPECIMENS OF SIGNATURES OBTAINED BY THE INVESTIGATING OFFICER FROM S. ALI MUJTABA RIZVI AND FEFOZE SHAH KHAN.
17. Fefoze Shah Khan, P.W. 8, stated that he gave specimen signatures Exhs.P.W.8/3 to P.W.8/5 (later exhibited as C. W. 2/1 to C.W. 2/3 also) to the police during investigation. Similarly, P.W. 9 All Mujtaba Rizvi stated that specimen signatures Exhs.P.W.9/1 to 3 had been given by him. However, P.W. 14 Bashir Ahmad, Investigating Officer, in his original statement had only stated that the specimen signatures of the accused had been obtained by him and sent to the handwriting expert for comparison. He had not stated therein that he also took the specimen signatures of P.Ws. 8 and 9.
Furthermore, he had not specified and got exhibited the actual documents on which he had taken the writings and signatures from the accused. I had, therefore, by my order, dated 19-1-1985 re- summoned P.W. 14, under section 540, Cr.P.C. Bashir Ahmad, Investigating Officer, again appeared on 28-1-1985 and stated that he had on 28-2-1981, taken the specimens of the handwriting and signatures from Riaz-ud-Din Jauhar on three sheets Exh.C.W.1/1 to C.W. 1/3 in the presence of a Magistrate. He also stated that he had taken before a Magistrate specimen signatures of S. Ali Mujtaba Rizvi on sheets Exh.P.W.9/1 to Exh.P.W.9/3 and specimen of signatures of Feroze Shah Khan on sheets Exh.C.W.2/1 to 3 (earlier exhibited as Exhs.P.W.8/3 to Exh.P.W.8/5) Khalid Bashir, Magistrate appeared as C.W. 1 and stated that the said police officer had obtained writings and signatures of two persons from Riaz-ud-Din Jauhar, accused on Exhs.C.W.1/1 to C.W. 1/3 in his presence and that he had signed the said three sheets in token of his verification that these had been taken in his presence by the said police officer from Raiz-ud-Din Jauhar both in blue ink and red ink. Mr. Abdul Haq, Magistrate, appeared as C.W. 4 and stated that the said police officer had taken specimen signatures of S. All Mujtaba Rizvi, Officer Grade II, N.B.P., Karachi and Feroze Shah Khan Officer Grade II, N.B.P., respectively on Exhs.P.W.9/1 to P.W. 9/3 and Exhs.C.W.2/1 to Exh.C.W.2/3 (earlier exhibited as Exhs.P.W.8/3 to P.W.8/5) and had signed the same in token of his having attested the same. Thus, the Investigating Officer who fully knew the accused and the said two witnesses, established that he had taken the specimen writing of the accused and specimen signatures of said two witnesses from the accused as well as specimen signatures of said two witnesses from said two witnesses while the learned Magistrates established that the same had been taken by the Investigating Officer in their presence. The accused had also in his 2nd statement dated 26-2-1985, under section 342, Cr.P.C. Admitted that his writing had been obtained by the Investigating Officer in the presence of Magistrate. Thus, identity of specimen writing of accused Riaz-ud-Din Jauhar and specimen signatures of S. All Mujtaba and Feroze Shah Khan made by accused Riaz-ud-Din Jauhar, specimen signatures of S. All Mujtaba and Feroze Shah Khan made by said two witnesses on relevant sheets stand established beyond any shadow of doubt.
' EVIDENCE OF HANDWRITING EXPERT
18. Muhammad Sarwar, handwriting expert, appeared as C.W. 2 and stated that seven demand drafts and connected documents, namely draft advices and fan-folds were received in the office of the Forensic Science Laboratory, Lahore alongwith three sheets C.Ws.1/1 to 3 containing specimen writing of Riaz-ud-Din Jauhar in blue ink and signature of two persons shown to have been made by the accused in red ink of the said three sheets alongwith three other sheets Exhs.C.W.2/1 to 3 (previously Exhs.P.W.8/3 to 5) containing specimen signature of Feroze Shah Khan and three more sheets Exhs.P.W.9/1 to 3 containing specimen signatures of S. All Mujtaba and on comparison he had found that signatures of All Mujtaba Rizvi and Feroze Shah Khan on the said seven demand drafts did not tally with the genuine specimen signatures of the said two persons provided to him on sheets Exhs. C.W.2/1 to 3 and Exhs.P.W.9/1 to 3 and that these were forged but they tallied with the specimen signatures of All Mujtaba Rizvi and Feroze Shah Khan shown to have been made by the accused Riaz-ud-Din Jauhar on sheets C.Ws.1/1 to 3. He further stated that he found that the signatures of Feroze Shah Khan and S. Ali Mujtaba on draft advices, fan-folds, mentioned above, also did not tally with the specimen signatures of Feroze Shah Khan and S. Ali Mujtaba as available, respectively on specimen sheets Exhs.C.W.2/1 to 3 and P.W. 9/1 to 3 but they tallied with the specimen signatures of Feroze Shah Khan and S, Ali Mujtaba Rizvi shown to have been made by the accused on sheets C.W. 1/1 to 3. He further stated that the writings on all the above documents were found by him to tally with the writing of the accused Riaz-ud-Din Jauhar made by him on documents C.Ws.1/1 to 3. In cross-examination he stated that he had not attached enlargements of the necessary writing/signatures, specimen or questioned, alongwith the report and had not given any ground for his opinion in the report. He, however, stated that the report was counter-examined and checked by the superior officers Qamar Ahmad Bhatti and Director, Forensic Science Laboratory and that they had also signed the said report in token of their having counter-examined and checked it for correctness and that this checking was to exclude the possibility of any mistake.
19. Learned counsel for the accused, Pir S.A. Rashid, has contended that the statement of this witness is absolutely of no avail and cannot be accepted as he has produced no photographic enlargements nor has given any reasons for the opinion given by him. I have given my anxious thought to the question raised by the learned counsel. Section 45 of the Evidence Act, 1872 (now section 59 of Qanoon-e-Shahadat Order 1984) makes the opinion of an expert only a relevant fact in evidence. It does not, however, state as to what would be the evidentiary value of such an opinion. After giving a good deal of thought to this question, I have come to the conclusion that weight to be attached to opinion of an expert duly proved in evidence depends upon the cogency of reasons given by the expert for the opinion, he has given and if no reason is given, no weight can be attached to his said opinion. It has been so held in a number of cases. Behram Sheriar Irani v.
Emperor AIR 1944 Born. 321, Mumtaj-ud-Din v. The State PLD 1958 Dacca 1 and Sanity Kumar Roy v.
Chairman Jesoor Municipality PLD 1971 Dacca 5 are some of the cases in point. In Yaqoob Shah v.
The State PLD 1975 Pesh. 205 it was held that opinion of the expert in order to prevail with the Court must be backed by reasons and opinion not backed by reasons is valueless. Again in All Haider'v.
The State 1981 P Cr. L J 97 Leh. (D.B.), it was held that report submitted by the expert merely stating his opinion and unsupported by any reasons cannot satisfy the conscience of the Court where guilt or innocence of the accused turns almost entirely on its analysis and Court can refuse to place any reliance on such opinion. I have also held in some cases that acceptance of report of a handwriting expert who has given no reasons either in his report or in his statement before the Court for, the opinion held by him, amounts to delegation to him of judicial functions of the Court and this cannot be allowed. I reiterate above opinion of mine and further hold that acceptance of such a report tantamounts to investing the handwriting expert with the attributes of a Judge which must be decried. I, therefore, decline to place any reliance on the evidence of the said expert. It is true, that the said expert has deposed in his statement and it also appears from face of his report that his said report was checked by Qamar Ahmad Bhatti, section incharge and signed by him in token of his having found the said report to be correct and thus there is a reasonable guarantee of the correctness of the said report but even two or more experts can commit a mistake and under all circumstances the Court itself has to be satisfied in respect of the correctness of the said opinion as it is the Court which i. The Judge and final arbiter between the parties and not the hand writing expert. Therefore, notwithstanding counter-checking of the report of the handwriting expert by an officer superior to the said handwriting expert and notwithstanding his signatures on the said report in token of his having found it to be correct, I do not feel inclined to accept the statement of the said handwriting expert. I, therefore, discard his evidence.
' QUESTION: WHETHER EXCLUSION OF EVIDENCE OF HANDWRITING EXPERT, CONCLUDES THE MATTER?
20. This however, would not conclude the matter as apart from section 45 of the Evidence Act, there are other modes given in the Evidence Act to prove the identity of the questioned handwriting/ signatures. The matter of identification of handwriting and signatures is distinguishable from the identification of the fire-arms by the fire-arms experts or identification of poisonous or deleterious material by the Chemical analysts/examiners/public analysts all of whom have to make laboratory tests in scientific manner. In their cases, of course, the Court is not in a position to form any opinion unless apprised of the nature of details of the test undertaken by them and the result arrived at by them with reasons, therefor, because those are the only means available with the Court to find out the correctness of their opinion in cases and there is no other legally permissible mode available to the Court. But in the matter of identification of handwriting and signatures, there are other modes of comparison available to a Court as permitted in the Evidence Act, 1872 and one of them is identification under section 47 of the said Act (now section 61 of Qanoon-e-Shahadat Order, 1984) by a person acquainted with the handwriting/signature of a person whose handwritings or signatures is suspected and the other is identification by Court itself as permitted by section 73 of Evidence Act, 1872 (Section 84 of Qanoon-e-Shahadat Order, 1984) after the comparison of suspected writing/signature with admitted or proved writing/signature of the accused and if handwriting expert has given no reasons and his evidence had to be discarded on that account, the Court can make use of either of the two modes, both the two other modes. I would, therefore, first proceed to assess the evidentiary value of the evidence which has come on record in respect of the identification of the questioned writing/signatures on the disputed bank drafts and their connected documents by the mode made available under section 47 of the Evidence Act, 1872.
' EVIDENCE OF QALB-E-ABBAS P.W. 10 IN RESPECT OF IDENTIFICATION OF HANDWRITING OF THE ACCUSED.
21. Feroze Shah Khan P.W. 8 and All Mujtaba Rizvi, P.W. 9 had stated in their evidence that they do not know who had forged their signatures. However, in order to prove that the said demand drafts, draft advices and fan-folds had been prepared and signed in the hand of the accused, prosecution produced Qalb-e-Abbas as P.W.
10. The said witness stated that he was working as incharge, general banking in the Model Branch, National Bank of Pakistan, Karachi on 12-2-1981, that accused Riaz-ud-Din Jauhar had been working with him in that branch and that he could identify his writings. He stated that writings on the said seven demand drafts and their connected draft advices and fan-folds are in the hand of the accused. He further stated that on the back of draft Exh.P.W.3/3 (Actually P. W. 3/13) and draft Exh.P.W.1/1, marked as A,B and C are the signatures of Riaz-ud-Din Jauhar accused (On the back of draft No, 15003911, dated 12-2-1981 for a sum of Rs,1,75,000 Exh.P.W.3/13, signature of accused stands marked as 'C' while on the reverse of draft No, 15003906, dated 12-2-1981 for a sum of Rs,3,000 Exh.P.W.1/1 two signatures of the accused stand marked as A and B). In cross-examination this witness stated that the accused had not worked directly under him and that he had not brought any other document prepared by Riaz-ud-Din Jauhar to compare it with the disputed document to show definitely that the writing on the disputed documents are in the hand of the accused. On the oral request of the learned counsel for the accused this witness was resummoned. When the said witness reappeared, learned counsel was riot available throughout the day and towards closing hours I was compelled to record the statement of said witness who had come from Karachi as C.W.
3, mostly on the basis of the questions which the learned counsel had wanted to put to him. The said witness explained that although the accused was not directly under him but since he was working in the same branch, he could identify his writing and signatures. He also stated that he was overall incharge of the general banking and all vouchers passed by other officers finally come to him for checking. He also stated that accused was maintaining an account in the Model Branch in which he was empolyed. The said witness had brought voucher, dated 26-9-1981 passed by him by virute of which Riaz-ud-Din Jauhar had withdrawn a sum of Rs, 550 from his saving bank account.
The original debit voucher was seen and returned after ensuring that its photo copy was a true copy which was retained on record as Exh.C.W.3/1. This witness also stated that the original debit voucher is in the hand of and bears signature of the accused. He also stated that he could identify the signatures of the accused beacuse the specimen signatures of the accused are available in the bank. He further stated that in normal routine also debit vouchers of the accused passed by other officers come to him for checking and on that ground he could identify the handwriting of accused Riaz-ud-Din Jauhar. The analysis of statement of this witness shows that the mere fact that accused was not working directly under him in N.B.P. Model Branch, Karachi was of no consequence, as the said witness was overall incharge of general banking and all the vouchers passed by other officers including debit vouchers written and signed by the accused for withdrawal of the money from his saving bank account passed through him. Thus, in the ordinary course of business the documents written and signed by the accused Riaz-ud-Din Jauhar had been habitually submitted to this witness and thus he can be said to be acquainted with handwriting and signature of the accused within the meaning of explanation given under section 47 of Evidence Act, 1872. Moreover, this witness was working in the same branch in which accused was employed and can be expected to have seen the writing and signature of the accused a number of times. Over and above that, the witness had advantage of passing himsef a debit voucher of the accused which contained the writing and signatures of the accused. He must have seen the account opening form and specimen signature card of the accused maintained in the said branch for the saving bank account of the accused. The said two modes of acquaintance with the handwriting and signature of the accused also afford sufficient proof that this witness was in a position to identify the writing and signature of the accused, as in my opinion, the explanation to section 47 is not exhaustive of all modes of acquaintance with the handwriting and signature of a person and does not restrict the acquaintance to three modes enumerated therein. Thus, both under the explanation to section 47 of Evicence Act 1872 and otherwise it is proved beyond any shadow of doubt that this witness is fully acquainted with the handwriting and signature of the accused and his capacity to identify the handwriting and signature of the accused who is an account holder in his branch is not open to any doubt. It is notable that this witness has no enmity with the accused. None had even been suggested to him in cross-examination. For that reason identification by him of the signatures and writing of the accused is above board. The statement of this witness proves to the hilt that the writing and signatures on the face of seven demand drafts, their connected draft advices and fan-folds and signatures on the back of two drafts Exh.P.W.1/1 and Exh.P.W.3/13 are those of the accused.
' DESIRABILITY OF COMPARAISON BY THE COURT
22. Notwithstanding that Qalb-e-Abbas has given evidence of identification and notwithstanding that said witness has no enmity or ill-will towards the accused, I feel inclined to check up things myself by the means available to me under section 73 of Evidence Act, 1872 to satisfy my judicial conscience, as Qalb-e-Abbas is one single witness. 'n this connection I am fully conscious that identification by the Court itself of the handwriting through comparison of questioned writing and signature with the proved or admitted sepecimen without assistance of And writing expert is fraught with danger--the danger of commission If mistake by the Court but that is perhaps where the Court depends solely upon the result of its own comparison while in the present case, ' the evidence of Qalb-e-Abbas is already there on record. Even otherwise, the possibility of commission of mistake should not restrain me from doing my duty in exercise of statutory powers vested in me by virtue of section 73 of Evidence Act, 1872 as the question is of satisfaction of the judicial conscience. The debt of justice has to be paid and the duty of comparison by the Court to make things sure has to be performed. The circumstance that the Court may make a mistake can only make me observe more care and attention in the said task and/or look up for corroboration of my view to further fortify my opinion but it cannot deter me from doing the duty put upon my shoulders in this case of determining through my own efforts whether it was the accused who had written the questioned documents in his own hand. I, therefore, proceed to compare the questioned writing/signatures with the admitted/ proved writing/signatures myself.
23. My comparison of the questioned writing on seven demand drafts and their advices and fan- folds with the proved specimens writing of the accused on sheets Exhs.C.W.1/1 to C.W.1/3 has revealed to me their complete correspondence with each other especially in the following particulars:
(1) The starting strokes of block letter 'R' of word 'Riaz' in the name Riaz-ud-Din Jauhar payee begins from above and comes down below and is thereafter retraced while going upwards.
(2) There is invariably a bigger clockwise loop as the ending stroke tz"y' and 'g' than the normal persons make. This is a distinct characteristic exclusive to the writer of specimen and questioned writing.
(3) While writing the letter 'd' in Riaz-ud-Din Jauhar and McLeod Road and thousand in the ending stroke, an anti-clock loop is invariably made on the upper side. This is also distinct characteristic of the writer.
(4) The capital letter 'J' is always written like 'J' without upper cross bar touching the lower part of the said word and not as
(5) The last letter 'r' in Jauhar is always written like 'r'.
(6) In the starting stroke in letter '0' in word one, the writer always makes an anti-clock-wise movement.
(7) Connecting stroke of letter '0' with the next letter especially 'n' in the word one is peculiar and distinctive in formation exclusive to the writer alone.
(8) Habit of the writer in putting letter 'e' separately in the word 'one' as an individual characteristic.
(9) The starting stroke in letter '1' in the work lee and the word 'only' starts from below goes up and then comes back invariably making a loop.
(10) Habit of the writer in writing letter 'e' separately from 'c' in lec.
(11) Placement/alignment of 'e' and 'c' in lee with reference to the letter '1' is invariably the same.
(12) Habit of starting the letter 't' in twenty from down below.
(13) Formation of 'h' with starting stroke starting from upwards and making round at the ending stroke.
(14) Making of loops in the middle stroke while writing the block letter 'L' in word 'Lahore'.
(15) The writer has the habit of putting cross bar at the top while writing the capital letter 'T' in word 'Thousand', NOT, N.P.T. Without the said bar being made to touch the lower diagonal line and of writing of the said capital letter 'T' always in this fashion and not in the other manner generally in use in the handwriting.
(16) The formation of block letter 'F' in 'Five' is peculiar and same everywhere. The said block letter is not written by the writer in any other way.
(17) The starting stroke of capital letter 'B' in word Badami Bagh and Branch starts from above and comes down and then the resultant writing is retracted in going upwards and thereafter on reaching the top, the said letter is completed on the right side with ending stroke making two rounds in anti-clockwise manner one below the other.
' Correspondence of the questioned writings with the proved specimen in above particulars is so clear and so striking that no doubt is left in my mind that the writing on the seven demand drafts is of the accused Riaz-ud-Din Jauhar.
24. I have also compared the signature of S. Ali Mujtaba made by said witness on specimen sheets Exh.P.W.9/1 to Exh.P.W.9/3 with his disputed signature as accountant of N.P.T. Building Branch N.B.P., Karachi on all the seven demand drafts and find that the latter does not tally with specimen signature of Ali Mujtaba. It is significant that the last letters 'taba' available in the genuine signature of S. Ali Mujtaba are conspicuous by their absence from disputed signatures on demand drafts.
However, on comparison with signature of S. Ali Mujtaba which accused had made before a Magistrate, on specimen sheets C.W. 1/1 to 3 I find that the questioned signatures of the said accountant on seven drafts tally exactly with the same. Furthermore, the digit !8' written in the year 1981 in the date given on seven demand drafts and in A-784 written in red ink under the red ink signature of S. Ali Mujtaba on all demand drafts and in 138 Ichhra and in check signal No, 980 in demand draft P.W. 3/3 is totally different in formation from the digit '8' written by S. Ali Mujtaba in A- 784 in red ink in specimen sheets Exhs.P.W.9/1 to P.W.9/3. In the latter, the starting stroke of the digit '8' at first make lower anti-clockwise loop and then goes up and turns to the right clockwise but loop made does not actually touch the initial point of the starting stroke but goes aside and is thicker at that place whereas on demand drafts, while making digit '8', the starting stroke first makes an upper anti-clockwise loop and then the middle stroke by which writer comes down to make the lower loop, makes a thicker writing and thereafter lower clockwise loop is made to complete the digit '8'. The same is the position in the specimen sheets Exhs.P.W.1/1 to 3 on which accused Riaz-ud-Din Jauhar has made digit '8' in figure '981', '1981' in blue ink and A-784 in red ink.
The manner of writing digit '8' in said demand drafts tallies exactly with that on the said specimen sheets. I am, therefore, convinced that the red ink signature of the accountant N.P.T. Building Branch of N.B.P.Purporting to be of A. Ali Mujtaba on demand draft and other documents and letters and digital figure A-789 are in the hands of the accused.
25. 1 have next compared the red ink signatures purporting to be of Feroze Shah Khan, Manager N.P.T. Building Branch, N.B.P., Karachi on all the seven demand drafts with specimen signatures of said person made by genuine Feroze Shah Khan on sheets Exhs.P.W.2/1 to 3 (Also P.Ws.8/3 to 5) and specimen signatures of the said person made by accused in red ink before the Magistrate on sheets Exh.C.W.1/1 to 3 and I find that red ink signatures of Feroze Shah Khan on all the seven drafts do not tally with genuine specimen signatures of Feroze Shah Khan as made by said witness on sheets Exh.C.W.2/1 to 3. The first letter in the genuine signature is invaribly tilted towards the right side while the one in signatures on the demand drafts and spceimens given by the accused are not tilted so much towads the right. The formation of first two letters in the said signatures in demand drafts is different from the formation of first two letters in genuine specimen signature of Feroze Shah Khan. The remaining portion of signature of Feroze Shah Khan made on the demand drafts and also of specimen signature of Feroze Shah Khan provided by the accused is totally different from remaining portion of the specimen signatures of genuine Feroze Shah Khan.
However, the questioned signatures of Feroze Shah Khan on demand drafts tally exactly with the specimen signatures, Feroze Shah Khan given by the accused in red ink on specimen sheets Exh.C.W.1/1 to C.W. 1/3. I, therefore, come to the conclusion that red ink signature on the seven drafts which purport to be of Feroze Shah Khan as Manager N.P.T. Building Branch N.B.P., Karachi are also in the handwriting of the accused.
26. The charge framed against the accused for the offence under section 468, P.P.C. Is in respect of demand drafts only but on comparison of the writing and signatures on draft advices and fan- folds with the specimens given by the accused, I find for the same reason as given in case of demand drafts that writing on all the draft advices and fan-folds in that of the accused and signatures appearing on said documents purporting to be of S. Ali Mujtaba Rizvi and Feroze Shah Khan are also in the hand writing of the accused. Thus on my personal scruting also, I find that the accused had forged these seven bank drafts as well as their relevant draft advices and fan-folds by making entries in the blank forms of demand drarfts, draft advices and fan-folds in his own hand and by making signatures of S. Ali Mujtaba and Feroze Shah Khan on them in his own hand.
' I have also compared the admitted signatures of the accused made by him in my presence on his two statements under section 342, Cr.P.C. And his proved signatures (two in number, one on the front and the other on the back) on the photostat copy of debit voucher dated 26-9-1981 Exh.C.W.3/1 whereby he withdrew a sum of Rs,550 from his account with the two signatures marked as 'A' and 'B' available on the back of demand draft Exh.P.W.1/1 and single signature on the back of demand draft Exh.P.W.3/13 and another single signature on the back of cheque Exh.P.W.3/14 and find that they exactly tally with each other. The latter are clearly, therefore, signatures of accused Riaz-ud-Din Jauhar. Furthermore, on comparison of signatures purporting to be of accused Riaz- ud-Din Jauhar on the back of draft advice Exh.P.W.3/5 and draft advice Exh.P.W.2/1 with the said proved signatures, I find that said signatures are also of the accused.
' OFFENCES COMMITTED
27. From the above discussion, it is clear that it had been proved that the two blank draft books (out of one of which blank demand draft form No, 15002851), was missing and out of the other six blank draft forms Nos. 15003905, 15003906, 15003911, 15003915, 15003918 and 15003919 were missing) were recovered from the house of the accused at Karachi on his pointation and these were the drafts which were forged/used by the accused and are exhibited in this case, respectively as Exhs.P.W.4/2, P.W.3/7, P.W.1/1, P.W.3/13, P.W.3/3, P.W.3/4 and P.W.4/1. It has further been proved that the accused had presented demand draft No, 15003911, dated 12-2-1981 Exh.P.W.3/13, for a sum of Rs,1,25,000 in the M.C.B., Railway Road Branch, Lahore, for collection from N.B.P., McLeod Road Branch, Lahore and subsequent payment of the proceeds to him. Recovery of demand draft No, 15003915, dated 12-2-1981 for a sum of Rs,90,000, Exh.P.W.3/3, and demand draft No, 15003918, dated 12-2-1981, for a sum of Rs,1,10,000 Exh.P.W.3/4, and demand draft No, 15003905, dated 12-2-1981, for a sum of Rs,2,500, Exh.P.W.3/7 on the personal search of the accused on 19-2-1981, has also been proved. Furthermore, from the Samanabad Branch of N.B.P., Lahore, demand draft No, 15003906, dated 12-2-1981 for a sum of Rs,3,000 Exh.P.W.1/1 which had been got encashed by the accused from the said branch of the bank also been proved to have been recovered. Finally, from the box attache-case kept by the accused in the house of his acquaintance Mirza Mahmood Beg, situated in Rahat Park, Samanabad, Lahore, demand draft No, 15001919, dated 12-2-1981 for a sum of Rs,1,05,000 Exh.P.W.4/1, and demand draft No, 15002851, dated 12-2-1981 for a sum of Rs,1,20,000 Exh.P.W.4/2 have been established to have been recovered. According to the evidence of Qalb-e- Abbas who appeared as P.W. 10 and also as C.W.3 and my own scrutiny, all the said drafts have been found to be forged by the accused alongwith the signatures of Feroze Shah Khan and Ali Mujtaba Rizvi. The supporting documents, namely draft advices and fan-folds have also been proved to have been forged by him which circumstance corroborates forgery of demand drafts by the accused. The original charge framed in respect of the forgery of the said demand drafts is one for offence under section 468, P.P.C. However, the demand drafts are not ordinary documents. They are valuable instruments which gave authority to the accused to receive money on their basis.
Therefore, the offence which has been made out in respect of the forgery of the said documents by the accused is one under section 467, P.P.C. Although in the charge-sheet, the accused has been charged with the offence under section 468, P.P.C. For the forgery' of the said documents, under section 237, Cr.P.C., he can be convicted for the offence under section 467, P.P.C. For having forged the said demand drafts and I convict him accordingly.
28. So far as the transaction of N.B.P. Samanabad Branch is concerned, it has been proved by the statement of P.W. 4 Khuda Yar, accountnat of that branch of the bank, that the accused had presented demand draft No, 15003906, dated 12-2-1981 Exh.P.W.1/1 for a sum of Rs,3,000 for encashment and had obtained the said sum of Rs,3,000 as the said witness had in cross- examination stated that he had known the accused (before he led the police to the said branch of N.B.P.) when he had got the draft for Rs,3,000 encashed from his branch. The said demand draft Exh. P.W. 1/1 is proved to have been recovered from Samanabad Branch of N.B.P.. It is signed twice on its back by Riaz-ud-Din Jauhar in token of his having received the said cash payment. These signatures have been proved to be those of the accused Riaz-ud-Din Jauhar. It is, therefore, fully proved that the accused had obtained a sum of Rs,3,000 after presenting the said demand draft in the said bank. The matter is further supported by the recovery at the instance of the accused from the house of an acquaintance of his of a sum of Rs,3,000 which has already been held to be proved. Khuda Yar P.W.4 had, as recovery witness, stated that the said sum was in the form of 30 hundred-rupee currency notes which gives an impression that the said sum had been obtained from the bank otherwise it would not have been all in the shape of hundred rupee currency notes.
Khuda Yar had further stated in cross-examination that he was definite that the amount of Rs,3,000 recovered from the box attache-case of the accused was the same which accused had got from the bank fraudulently. This recovery of Rs,3,000 further corroborates the circumstance that the accused got Rs,3,000 from the bank on getting the demand draft Exh.P.W.1/1 encashed from the Samanabad Branch of the National Bank of Pakistan. This demand draft purports to have been signed by Feroze Shah Khan P.W. 8 and S.Ali Mujtaba Rizvi, P.W. 9 and both of them have stated that signatures on the said drafts are not theirs but are their forged signatures. The accused had, therefore, used the said forged demand draft Exh.P.W.1/1 as genuine and had got it encashed. At this stage it is necessary to consider the statement of accused under section 342, Cr.P.C. In regard to this transaction. In one of his two statements under section 342, Cr.P.C. He has stated that this fraud was committed by the bank officers themselves and he had been made scapegoat. Since the transaction at Samanabad is the only completed transaction in which accused had succeeded in withdrawing money, the said statement can be attributed to this transaction alone. It looks, however, inconceivable that P.W. 1 Zahid Mahmood, Senior Cashier and P.W. 4 Khuda Yar, Accountant of said branch of N.B.P. Had made fraudulent withdrawal, of the said sum themselves from their branch. The proved signatures of the accused on the back of the demand draft give lie to the said statement and show that it was the accused who had made fraudulent withdrawal of a sum of Rs,3,000 from the said branch of the bank. In his second statement under section 342, Cr.P,.C. The accused has stated that officers, who had made statements against him had tried to save their own skins and had made him a scapegoat. After the first statement under section 342, Cr.P.C. Was recorded, two Magistrates, a hand writing expert and Qalb-e-Abbas Officer of N.B.P., Model Branch, Karachi appeared as Court witnesses and the Investigating Officer appeared as resummoned witness and fresh examination of the accused under section 342, Cr.P.C. Was, therefore, confined now to the incriminating material made available in their statements alone. The only officer of the bank who had appeared as a witness after the first statement of the accused is Qalb-e-Abbas. It is not understandable how the said witness had tried to save his own skin and made the accused a scapegoat when his only evidence was of identification of writing of the accused on demand drafts. He belongs to Karachi and is not shown to have presented or got encashed any draft from any bank at Lahore. This statement of the accused is also, therefore, of no consequence and does not disprove or make doubtful the finding that the accused had used forged draft Exh.P.W.1/1 as genuine. The upshot of this discussion is that it is proved that in using the forged demand draft Exh.P.W.1/1 in Samanabad Branch of N.B.P., Lahore and in withdrawing on its basis a sum of Rs,3,000, the accused had committed offence under section 471, p.p.c, and I convict him accordingly.
29. As far the transaction at the Railway Road Branch of M.C.B., the accused had first deposited demand draft No, 15003911, dated 12-2-1981 Exh.P.W.3/13, in the said branch of the bank with an endorsement signed by him "Please pay the amount to M/s. Bhutta Trade Impex" and in its own turn Bhutta Trade Impex had made further endorsement on the back of this cheque "Please credit it to our Account No, 449". On 19-2-1981, accused had again come to said branch with cheque No, 955870,. Dated 16-2-1981 Exh.P.W.3/14 from Bhutta Trade Impex for a sum of Rs,1,25,000 in his own favour as payee and on the back of this cheque there appears a signature purporting to be of the accused as he was to receive the said sum from the bank. Finding has already been given that the said signature is of the accused. Even otherwise as already discussed, from the statement of Fahim-ud-Din Butt P.W. 3 and Azmat Ullah P.W. 11 it stands proved that accused himself had presented this demand draft for being encashed and that when he had later come to the branch for second time with the said cheque, he had been apprehended while he was still in the said branch of the bank waiting for the receipt of the said sum of money. He had thus made an abortive attempt to use the said forged demand draft as a genuine document and had thus committed an offence under section 471/511, P.P.C. I, therefore, convict him for this offence also.
' PUNISHMENT
30. The accused forged seven demand drafts, the total proceeds of which run into lacs of rupees.
He had tried to become rich overnight. He had never felt any compunction of soul in forging a large number of demand drafts with their supporting documents for encashment of said demand drafts.
Total sum of seven forged demand drafts comes to Rs,5,55,500. This sum is the lifetime saving of men of even higher status than the accused. In forging demand drafts for such a huge sum, the accused had wanted to have so much wealth as could not have been saved by him during his entire lifetime. For that reason he deserves maximum punishment of life imprisonment. It is true that he is a young man but it is notable that when at this stage of his life, this is the trend of his mind, there would be no bounds to his greed when he will have a number of problems to face during later part of his life. Furthermore, there is an element of ingratitude too on his part in his act of forging seven demand drafts, as by forging them, he had wanted to rob the very institution which was providing him sustenance and livelihood. He, therefore, deserves no leniency.
Furthermore, when the very officers of the banks instead of safeguarding the interest of the banks begin to make depradations on their funds, these public institutions cannot carry on and would crumble down. The crime in these bodies should be put down with iron hands. In my opinion, therefore, the accused deserves maximum punishment which should not only deter him from repeating any offence in the banks but should be deterrent for others also. The maximum punishment given in section 467, P.P.C. Is imprisonment for life. In this provision an amendment has been made by Ordinance IX of 1984 in which for the words "may extend to ten years" in the original section, the words "shall not be less than seven years nor more than 10 years" have been substituted. The words "not more than 10 years" appear on cursory reading to be inconsistent with life imprisonment and appear to repeal the sentence of life imprisonment. But on closer thinking, it is clear that these words do not abrogate the sentence of imprisonment for life. It appears to me that the law-making authority never meant to repeal the sentence of imprisonment for life in this provision as the said sentence was allowed to remain available in the said section. The law- making authority knew that imprisonment for life was also a penalty given in this section. If it was minded to repeal it, it would have made a clear provision to that effect. But that was not done.
Therefore, the clear intention of the law-making authority was to retain the sentence of imprisonment for life as the maximum sentence for offence under section 467, P.P.C. Reading the section in its entirety, it appears to me that the intention of the law-making authority was that maximum sentence should be imprisonment of life but if anything less than that in terms of number of years of imprisonment was to be awarded, that should not be less than seven years nor more than ten years. I, therefore, hold that the mere substitution of the words 'may extend to 10 years' with the words 'not more than ten years' therefore does not tantamount to repeal by implication of the sentence of imprisonment for life under section 467, Pakistan Penal Code. I would, therefore, sentence the accused to rigorous imprisonment for life for offence under section 467, P.P.C. As amended by Ordinance IX of 1984. As for the fine to be imposed under this offence it is given in subsection (3) of section 6 of Ordinance IX of 1984 that it shall be not less than twice the amount in respect of which the offence has been committed. The accused has been held to have forged seven demand drafts, the total amount of which, as already shown, comes to Rs,5,55,500.
Thus, the amount in respect of which the offence of forgery of seven demand drafts had been committed by the accused is Rs,5,55,500. The accused shall, therefore, in addition, pay fine of Rs,12,00,000 and in default of the payment of said fine, shall suffer further R.I. For five years.
31. As far offence under section 471, P.P.C. As amended by Ordinance IX of 1984, the accused is sentenced to R.I. For three years and a fine of Rs,6,000 and in default of the payment of fine he shall suffer further R.I. For nine months.
32. As regards offence under section 471/511, for attempting to get encashed demand draft Exh.P.W.3/13 for a sum of Rs,1,25,000 the accused is sentenced to R.I. For 11/2 years and a fine of Rs,3,00,000 and in default of payment of said fine, he shall undergo further R.I. For 4 months. All the sentences shall run concurrently. He shall be given benefit of section 382-B, Cr.P.C. For the period he remained in custody as an under-trial prisoner in this case.
33. I have convicted and sentenced the accused for scheduled offences only as defined in section 2(d) of Ordinance IX of 1984. For the other offences namely offence under section 380, P.P.C. And offence under section 5 of Act II of 1947 which are non-scheduled offences and are not tribal by this Court, the prosecution may, if so advised, proceed against the accused in a competent Court of law.
' Accused convicted.