1. SYED HAIDER ALI PIRZADA, J.-----Both the appellants above-named have been convicted for offence under section 403/109, P.P.C. And have been sentenced to undergo R.I. For one year each and to pay a fine of Rs.1,00,000 each and in default of payment of fine, try under, further R.I. For six months by the learned Presiding Officer of Specie Court of Sind (Banks), Karachi, vide judgment dated 30-1-1986. Both the appellants were tried alongwith other co-accused Mirza Muhammad. Ali son of Yousuf Hussain (absconder in absentia). Last named co-accuser was convicted under sections 403 and 471, P.P.C. And sentenced to suffer R.I. For two years on both counts and he was also ordered to pay a fine of Rs.16,00,000 and in default of payment of fine, to suffer further R.I. For six months. On 13-3-1986 after hearing the learner counsel appearing in this appeal and scrutinizing the record we had accepted the appeal and set aside the conviction and sentence of both the appellants and consequently acquitted them by a short order for reasons to be recorded later which follow now:-- Briefly the facts of this prosecution case are that on the basis of a letter dated 29th October, 1981 signed by M. Khurshid Alam Assistant Vice-President, United Bank Ltd., addressed to the Director, F.I.A. (Bank Circle), Karachi, a F.I.R. Was lodged on 3-11-1981 wherein it was stated that on 29-10-1981 Manager, U.B.L. Al-Hayat Building Branch, Karachi, informed that two demand drafts for a total sum of Rs.7.76 lacs, the proceeds of which were collected from Hot Intercontinental Branch, Karachi and credited in Account No.905 of one Iftikhar Hussain Shah, were suspected to be not genuine tin the basis of this information an. Enquiry was conducted from Hotel Intercontinental Branch, who in turn contacted the issuing Branch i.e. Chichawatni Railway Road Branch and received the information that no such demand drafts were issued by them. It was further alleged the enquiries were further made in the matter revealed that on 15-7-198 one Syed Iftikhar Hussain Shah opened a current account at HA, AI-Hayat Building Branch. M.A. Jinnah Road, Karachi, which was introduced by Karim Buksh Jan of Messrs Karim Carpets. It was further stated in the letter that on 26-7-1981 Syed Iftikhar Hussain Shah deposited demand draft bearing No.617386 dated 28-7-1981 for Rs.3,76,000 in the said account and it was marked 'payees account' purported to have been issued by U.B.L. , Chichawatni Railway Road Branch and drawn on Hotel Intercontinental Branch, Karachi. The proceeds were collected by Al-Hayat Building Branch and were credited in the said account from where the said Syed Iftikhar subsequently withdrew a sum of Rs.3.73,000 by two cheques. It was further stated that on 6-10-1981 the said Syed Iftikhar again deposited in his account another payees account' demand draft bearing No. 877539/520, dated 17-9-1981 for Rs.4,00,000, purported to have been issued by U.B.L. Chichawatni Branch and drawn on Hotel Intercontinental Branch, Karachi and similarly U.B.L., A1-Hayat Building Branch, Karachi collected the amount from Hotel Intercontinental Branch, Karachi and credited in the account of Iftikhar Shah. The said Iftikhar Shah withdrew a sum of Rs.3,98,000 by way of three cheques on different dates and in this manner a total amount of Rs.7,71,000 was fraudulently withdrawn by accused Iftikhar Shah and Karim Buksh Jan. On the basis of this, a F.I.R. Was lodged and investigation was carried out during which Mirza Muhammad Ali was arrested who was identified as the same Syed Iftikhar Hussain Shah who had impersonated as. Mirza Muhammad Ali and during the course of investigation Karim Buksh died and, therefore, the F.I.A., submitted interim challan against Mirza Muhammad Ali who later absconded. Subsequently a final challan was submitted on 5-3-1985 in the Special Court (Banks)
2. Karachi. On the basis of which on 6-11-1985 charge was framed against him for offences under sections 468, 471 and 406, P.P.C.
3. Prosecution examined six witnesses including these appellants on 6-11-1985. The learned Presiding Officer passed an order on the same day and made a note of observation to the effect that from the statement of appellants, P.W. Miss Parveen Fatima and also P.Ws. Saeed Ahmed Pervez and Zulfiqar Iqbal, it appeared that appellants Shah Alam Farooqi and Khurshid Raza were involved in commission of the offence as a result of which a huge amount of Rs.7,76,000 were paid by Hotel Intercontinental Branch on the basis of the forgery in demand drafts and as such they were arrested and made co-accused in the case and remanded to judicial custody. Subsequently they were enlarged on bail. The learned Presiding Officer further observed that all the P.Ws. Who were examined were bound down for next date of hearing so that these two appellants would cross- examine them if they so desired. P.W. No. 1 Aijaz Hussain Qazi A.C.M. No. IX, South Karachi had conducted identification test of Mirza Muhammad Ali. P.W.2 Zulfiqar Ali at the relevant time was working as second officer in G.T. Road Chichawatni Road Branch of U.B.L. And was incharge of issuing and signing drafts. He stated that the signatures on demand draft No. ABDF-877539/520 dated 17-9-1981 were forged. He also stated that Yaqoob Khan was not working at the relevant time, as such his signature was also forged one. He further stated that since the signatures were forged, as such Exh.3-A was a bogus draft. P.W.3 Saeed Ahmed Pervez was working as Second Officer in Railway Road Chichawatni Road Branch of U.B.L. And was incharge of signing drafts. He stated that the signatures on draft No. ADBF-617386, dated 20-7-1981 for Rs.3.76,000 had been forged including that of Manager Abdul Salam. He further stated that draft Exh.4-A was never issued by this Branch. P.W.S Mst. Parveen Fatima was also working in remittance department at Hotel Intercontinental Branch of U.B.L. She stated that she had verified signature of Abdul Salam on Exh.4-A but she did not verify the other signature on the draft as it was not tallied in the specimen signature and even the account given on power of attorney. P.W.7 Abdul Salam was working as a Manager, U.B.L. At Railway Road Branch at Chichawatni. He stated that his signature on Exh. 4-A was forged. P.W.8 Barkat Ali Qureshi was Manager, Al-Hayat Building Branch. Karachi. He stated that on 15-7-1981 Syed Iftikhar Hussain Shah opened an account. This account was introduced by Karim Buksh Jan who was a genuine account--holder. He also stated that demand drafts Exhs.3-A and 4-A were deposited for collection in account No.905 by Iftikhar Hussain Shah. The demand drafts were sent for collection and received the money and the account was credited. Iftikhar Hussain Shah withdrew the entire amount by five cheques. He identified Iftikhar Hussain Shah in jail and came to know that his real name was Mirza Muhammad Ali. P.W.9 Hassan Moosa was working as an-officer at Al-Hayat Building Branch of U.B.L. The demand drafts were deposited by account holder and he had withdrawn the proceeds. He stated that they came to know after the encashment of demand drafts that they were forged through Karim Buksh introducer and Manager lodged a report to Intercontinental Branch and as such Iftikhar Hussain Shah was arrested. He also stated that he picked him up in identification test. P.W.10 Abdul Rashid stated that he knew Syed Iftikhar Hussain Shah who had account No.905 in AI-Hayat Building Branch of U.B.L. He also picked him up in identification test held in Central Jail. P.W.11 Saleemuddin Malik who had incorporated the F.I.R. Stated that he recorded the statements of P. Ws.
4. The learned Presiding Officer, as stated above, convicted the appellants and the co-accused Syed Iftikhar Hussain Shah (absconding).
5. We have perused the record which shows that initially charge was framed on 6-11-1985 and upto that date Mirza Muhammad Ali was named as accused in the challan. He was absent. As such the learned Presiding Officer framed the charge in his absence and declared that he was to be presumed as having pleaded not guilty.
6. The learned Presiding Officer amended this charge on 20-11-1985 in which the number of accused persons have been increased from one Mirza Muhammad Ali to three including both the appellants. It appears from the record that the learned Presiding Officer for the first time on 6-11- 1985 came to suspect implication of both the appellants after he recorded depositions of five witnesses including the appellants.
7. It is pertinent to note that both the appellants who have been convicted and sentenced by the learned Presiding Officer were not named in the FIR or challan as accused persons but their names were mentioned as prosecution witnesses. During the trial they were joined as accused persons on suspicion of involvement in the case. It seems that the action of the learned Presiding Officer in joining these persons in the trial proceedings as co-accused purported to have been taken under section 351. Cr.P.C. This section empowers the Court to detain any person who attends a criminal Court for the purpose of enquiry into or trial of any offence of which the Court can have cognizance. Subsection (2) thereof provides that when the person is detained, after trial has commenced, proceedings in respect of such person shall be commenced afresh and the witnesses are to be re-hear. In the instant case the same was not done.
8. It was not in dispute that Mirza Muhammad Ali was proceeded against under section 468/471/406, P.P.C. After the prosecution evidence against him had been recorded. The provisions of section 351(2), Cr.P.C. Code are mandatory, clear and specific. When the appellants were impleaded under sections 468/471 and 103, P.P.C. 34, P.P.C. And 109, P.P.C., the trial against them had to commence afresh and witnesses re-heard. Non-compliance with these provisions vitiated the trial. As the Ordinance has prescribed for procedure of trial of offences under the Ordinance. Hence the provisions of section 351(2). Cr.P.C. Would be attracted and section 5 (II) of the Ordinance does not override them. We hold that the trial of the appellants without compliance of section 351(2), Cr.P.C.
9. Was illegal and vitiated.
10. Section 5 (1) of the Ordinance empowers the Special Court to take cognizance of any schedule offence upon receiving a complaint of facts which constitute such offence or upon a report in writing of such facts made by any police officer. We are of the humble opinion that this Special Court has to act in accordance with the provisions of section 5 (1) of the Ordinance and the Special Court has not to follow or to act its accordance with the provisions of section 190, Cr.P.C. It appears that section 190, Cr.P.C. Provides three modes for taking cognizance of an offence, that is, clauses (a), (b) and (c). Section 5(1) of the Ordinance has provided only two of these modes, that is, (a) and (b) The legislature has deliberately omitted clause (c). It is therefore, clear that' the Special Court cannot take cognizance on its own information. In the instant case the two appellants were not named as accused in the challan submitted by the F.I.A. Nor there was a direct complaint in respect of them.
11. It would be observed from a reading of section 190(1), Cr.P.C. That only a District Magistrate or a Sub-Divisional Magistrate has statutory powers to take cognizance of an offence. In all other cases the Magistrate has to be especially empowered on this behalf.
12. It would be observed from a reading of section 5 (1) of the Ordinance that the Special Court has statutory powers to take cognizance of an offence only (a) upon a report in writing and (b) upon a report I in writing of such facts. In other words it cannot take cognizance upon information received from any person or upon his own knowledge or suspicion.
13. PLD 1953 FC 145. One of the Judges (Akram, J.) was of the view: "It is also well settled now that subordinate Magistrate to whom a case is transferred for disposal has the same powers in respect of its trial as are possessed by the Magistrate who transfers the case. But the majority view was to the contrary Mr. Shahabuddin, J. Held as follows:--- "The contention that once cognizance is taken of the offence section 190 does not apply to the case is based on the view --under that section cognizance is taken of the offence and the offender. This view no doubt finds support in some decision but I find myself unable to agree with it. Taking cognizance the offence, has not been defined in the Code and from the fact that the word offender is not mentioned in section 190, it de not follow that once cognizance of the offence is taken sect. 190 has no application when a person who was not an accused at the start has to be placed on trial."
14. Later his Lordship observed:- "There may be cases where when the offence is taken cognizance of it is not known who the offender is, and cognizance may taken of such cases in order to take action to find out offender, but when the offender is found section 190 has to kept in view in proceeding against him."
15. Mr. A.R. Cornelius. J. (as he then was) concurred with Mr. Shahabuddin, J. And after detailed discussion of the cases cited the parties held:-- "The type of cognizance relevant for the purposes of the present discussion is that which comes into play at the very commencement of a judicial proceeding. I can see no reason why, if the fir judicial step constituting commencement of proceedings against particular accused person, is taken in the course of pending proceedings against other person, that cannot be regarded initiation of the proceedings as against that particular person requiring to be performed, subject to the same conditions as apply to the ordinary case, under section 190, Cr.P.C Later his Lordship concluded this:-- "Procedural requirements of the criminal law are not mere, formalities. Underlying the rules of procedure is an all pervading care to ensure the liberty of the subject and the due dispensation of justice. Certain observations appearing in a number judgments cited during the argument in this case appear to me to be likely to defeat this purpose by undue enlargement of the powers of Magistrate on the basis of assumptions which are not well-founded in law. Some of these views may be interpreted as to enlarge the powers of a transferee Magistrate beyond those with which he is invested e.g. To take cognizance on his own information or suspicion, of an offence appearing in the course of a pending proceeding, although he is not empowered to take cognizance in this manner."
16. It should be observed that in the case of Abdus Sattar Molls cases were issued against the appellant by the trying Magistrate hearing two witnesses and before the conclusion of the trial but in that case our Federal Court has led to observe that it was beyond, the jurisdiction of the transferee Magistrate. In the instant the evidence of five prosecution witnesses was recorded including appellants. We are of the view that there is no power given to the Special Court to take cognizance of the offence upon his own knowledge suspicion In this view of the matter, in our opinion, the learned Presiding Officer has no jurisdiction to detain and/or take cognizance the offence against the appellants.
17. The perusal of record shows that originally charge was framed under section 468/471/406, P.P.C.
18. But subsequently on 20-11-1985 this charge was reframed under sections 468/471 and 103, P.P.C., 34, P.P. C. 109, P.P.C. Against accused persons namely Mirza Muhammad Ali the above-named two appellants. Section 468, P.P.C. Provides that ever commits forgery, intending that the document forged shall be used for the purpose of cheating, shall be punished with imprisonment either description for a term which may extend to seven years, and shall also be liable to fine. It is pertinent to note that all the three used were acquitted for offence under section 468, P.P.C. Section P.P.C. Provides that whoever 'fraudulently or dishonestly uses as any document which he knows or has reason to believe to be a forget document, shall be punished in the same manner as if he had forget such document. Accused Mirza Muhammad Ali was convicted under or 471, P.P.C. Section 403, P.P.C. Provides that whoever dishonestly misappropriates or converts to his own use any movable property, shall be punished with imprisonment of either description for term which may extend to two years, or with fine, or with both. Accused Mirza Muhammad Ali was also convicted under section 403, P.P.C.
19. The learned Presiding Officer convicted the present two appellants offence under section 403, P.P.C.
20. Read with section 109, P.P.C. Already stated that section 403, P.P.C. Relates to dishonest misappropriation of movable property and there is no evidence available the record that both the appellants who are officers in the Hotel International Branch of U.B.L. Had misappropriated the money after the proceeds of those two demand drafts (Exhs. 3-A and 4-A) were credited in account No.605. It is pertinent to notice that the evidence available on record shows that accused Mirza Muhammad Ali withdrew the amount through cheques. In the absence of any positive and cogent evidence to connect both the appellants with misappropriation of money the learned Presiding Officer has observed in the impugned judgment that both the appellants abetted accused Muhammad Ali and cancelled both the demand drafts for payment in spite of the fact that on the face of it signature of the drawing officer on the demand draft did not tally with their specimen signature and which was duty of the appellants to check when the signatures of the drawing officers on Exhs.3-A and 4-A were not duly verified nor any other documents like Exhs. 5-A and 5-B were attached with Exhs. 3-A and 4-B, when these two officers 'cancelled these two instruments for payment. In the definition of section 403, P.P.C. There is no room for element of criminal negligence for recording conviction of abetment for offence of dishonest misappropriation of property for which positive evidence is required which must be sufficient to establish the charge beyond doubt. Section 109, P.P.C.I contemplates offence of abetment. The word "abetment" means an act or offence is said to be committed in consequence of abetment, where is committed in consequence of the instigation or in pursuance conspiracy or with aid which constitutes the abetment.
21. A perusal of the above definition would show-that abetment car be committed only when there is positive evidence of either instigation or conspiracy or intentional aid. If none of these three elements state above is available then abetment does not stand proved. In the instant ease merely the appellants did not tally the signatures of the drawing, officers on the two demand drafts with their specimen signatures which were available in the signature book, it is now enough unless there sufficient evidence available for proof of the fact that the appellants either instigated or conspired or intentionally aided dishonest misappropriation of the proceeds of the demand drafts Exhs.3-A ands 4-A.
22. Strict proof of abetment of dishonest misappropriation of money, cannot be presumed simply from the fact that the appellants did not tally the signatures of the drawing officers on the demand drafts with the specimen signatures which were available in the specimen signature book.
23. Mr. Abdul Sattar has fairly conceded that the evidence is not available on the record which connects them for dishonest misappropriation and which connects them for the offence of abetment.
24. We are of the opinion that the prosecution has not produce any evidence to show link between the appellants and Mirza Muhammad Ali or any conspiracy between them to misappropriate the proceeds o; these two demand drafts. There is also no evidence available on the, record to show that the appellants intentionally aided Mirza Muhammad Ali.
25. For the foregoing reasons we set aside the conviction and sentence of appellants and this appeal is allowed. Appellants be set free if the, are not wanted in any other case. The above are the reasons for order dated 11-3-1986.