' In this case complaint dated 19-2-1975 Ex PF which became the basis of FIR EX PF/1 for offences under sections 420, 379, 468 and 471 PPC was lodged by PW 5 S.M.Rafique, Deputy Director Pakistan Population Planning Council, Islamabad with the SHO P.S., Islamabad. It reads as below:- ' "I am to state that the Manager, Allied Bank Ltd. City Branch, Rawalpindi rang me up today at about 200 hrs and enquired about the correctness of cheque No,H/18-08563 dated 7-2-1975 for Rs,43,600 on the National Bank of Pakistan, Sectt Branch, Islamabad issued by the Population Planning Council of Pakistan, Islamabad, in favour of M/s. S.M. Hussain & Co. On checking the Cheque Book it was found that the counterfoil of said cheque indicates an amount of Rs,350 issued in favour of State Bank of Pakistan which is marked as CANCELLED. I stopped the payment and rushed to the said Bank. It was revealed that some one has forged the signatures of cheque signatories. It was further revealed that the same party has already drawn an amount of Rs,32,540 against a cheque No: H/18-085673. The counterfoil of this cheque is blank and marked as CANCELLED.
' On 15-9-1975, incomplete challan was submitted against accused Aftab Ali Khan and Muhammad Sabir Hussain. On 9-3-1977, complete challan was submitted against the said two accused. At first the trial of the accused was held in the court of Magistrate. The learned Magistrate by his judgment dated 28-9-1981 convicted both the accused and sentenced them to various terms of imprisonment. In appeal, however, conviction and sentence of the accused persons were set aside on the ground that Aftab Ali was an employee of the Pakistan Population Planning Council and his case was triable by the Special Judge (Central) and not by a Magistrate. Thereafter the case went before the Special Judge (Central), Rawalpindi for fresh trial. Learned Special Judge (Central), Rawalpindi framed joint charge against the accused on 27-1-1983 for offence under sections 409, 420, 468 and 471 PPC and offence under section 5 of Prevention of Corruption Act, 1947. Prosecution produced nine witnesses in the court of Special Judge (Central) and gave up Munawar Hussain as unnecessary. Thereafter, statement of the accused under section 342 Cr.P.C. Was recorded. The accused denied all the incriminating evidence produced against them and stated that case against them had been made due to wrong investigation and that they were innocent. They declined to produce any defence.
3. At this stage, on the promulgation with effect from 23rd of February, 1984 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 (IX of 1984) providing for transfer of cases of scheduled offences to this Court, this case was sent to this Court by virtue of order dated 4-9-1984 of the Special Judge (Central), Rawalpindi. I heard arguments in the case, but instead of announcing judgment in the case I by my detailed order dated 6-5-1985 resummoned prosecution witnesses. PW.9 Iqbal A. Sheikh and PW 6 Sh.Muhammad Din, handwriting expert. I also summoned SHO Police Station Abpara, Islamabad directing him to produce the rubber stamp. For S.M. Hussain & Co. And other articles (including brief case, leather purse and a sum of Rs,1,592) and number of documents said to have been recovered from the accused Muhammad Sabir as per memo Ex.PW 8/A which constituted case property in this case. In consequence, PW 9 Iqbal A. Sheikh reappeared on 10-6-1985. PW 6 Sh.Muhammad Din reappeared on 14-9-1985 and conceded that he had misunderstood the letter of SSP and had not, on that account, compared the writing signature, appearing as S.M.Hussain on the account opening form and specimen signature cards and five cheques issued 'on behalf of S.M.Hussain and Co. With the specimen writing/signature made by accused Muhammad Sabir who was suspected to have done all that. He was accordingly ordered to make the necessary comparison. He was also directed to make comparison of writing on deposit receipts dated 18-2-1975 and 6-2-1975 respectively marked as Ex PW 9/T and Ex PW 9/S and produce the report. The said handwriting expert accordingly submitted the report. He reappeared as resummoned prosecution witness and proved his new report Ex PW 9/W.
Muhammad Akhtar D.S.P., Abpara, Islamabad, who had made enquiry to trace out the missing articles and documents which constituted case property in this case appeared as CW 1 on 12-2- 1986. Muhammad Zaman Inspector, SHO, PS Abpara, Islamabad, appeared as CW 1 on the same date. Since fresh incriminating evidence had come on record against accused Muhammad Sabir, supplementary statement of the said accused under section 342 Cr.P.C. Was recorded on 22-6- 1986. He denied the said evidence but stated that he would produce defence. Accordingly 7-7-1986 was fixed for production of defence evidence by the said accused. However, he did not get any witness summoned nor brought any along with him. Furthermore, he gave no explanation as to why he had neither brought any witness nor got any witness summoned. His defence evidence was accordingly closed on 7-7-1986.
4. I have heard the arguments of Special Prosecutor Syed Niaz Ali Shah as well as of Ch.Muhammad Abdul Wahid Advocate, counsel on behalf of the two accused, I have also minutely perused the record of the case. I will first take up the prosecution case against accused Aftab All Khan. In evidence Syed Muhammad Rafique PW 5 stated that on 19-2-1975 when he was working as Deputy Director Audit & Accounts, Population Planning Council, Islamabad, he received a telephonic call from Manager Allied Bank, Rawalpindi who enquired from him if cheque No,H/18 085731 Ex PH dated 17-2-1975 (actually 15-2-1975) for a sum of Rs,43,620 was genuine and on that he checked the record and did not find the entry of any such cheque nor its sanction. He took counterfoil Ex P.3 of the said cheque in cheque book Ex.P 2 from the custody of the accused Aftab Ali and found that the amount written on it was Rs,350 and cheque was issued in the name of the State Bank of Pakistan and word 'Cancelled' was also written thereon. He telephonically asked the Manager of the said-bank to stop the payment and then went to the bank and saw the cheque. It was forged and bore his forged signature as well as that of Abdul Hakim co-signatory. He further stated that at that time it also came to his notice that earlier a forged cheque bearing No,H/18 085673 for a sum of Rs,32,540 Ex PG had been encashed and its counterfoil Ex PG/1 in the cheque book Ex P 1 bore only the word 'Cancelled' written thereon without any other entry thereon. He accordingly filed a complaint dated 19-2-1975 Ex PF with the police which bore his signature, upon which the formal FIR Ex PF/1 was recorded in the police station on the same day. Value of this portion of statement of this witness apart from its giving the course of events leading to the registration of the case and initiation of investigation, is, that accused Aftab Ail had the custody of the cheque books and it is from him that cheque books had been taken by PW 5 Syed Muhammad Rafiq. Further facts elicited from the said witness in cross-examination prove that Aftab Ali was a cheque writer in the office of Deputy Directo Audit and Accounts Population Planning Council, Islamabad who used to prepare the cheques and had also in his possession one of the tw keys of the Almirah in which cheque books were kept by Superintendent of the said office.
5. The factum of presentation and seizure by the police cheque No,H/18 085731 dated 15-2-1975 Ex PH for a sum of Rs,43,620 issued by the Pakistan Population Planning Council, Islamabad in favour o S.M. Hussain & Co. Has been proved by Iqbal A.Sheikh, Manager of Allied Bank City Street Branch, Rawalpindi as PW 9. The defence counsel did not challenge the evidence of production by the said witness of this document from the record of his branch before the police and, therefore, the defence must be deemed to have accepted the said evidence of production of this document by the said Manager. The other witness of the said memo Ex PW 8/D is Syed Akhlaq 'Hussain, deceased, the investigating officer, whose signatures have been proved by PW 8 Raja Nasir Nawaz, Inspector, FIA, Rawalpindi. Recovery of this document from the custody of the said bank I therefore, proved. Next item of evidence is the presentation and seizure by the Police on 6-3-1975 of cheque No,H/18-085673 dated 5-2-1975 Ex PG for a sum of Rs,32,540 shown to have been issued by Pakistan Population Planning Council, Islamabad, that has been proved by the statement of PW 7 Muhammad Aslam Rahi, the Manager of National Bank of Pakistan Central Secretariat Federal Capital Branch, Islamabad. The said cheque was taken into possession by deceased Akhlaq Hussain I 0 by virtue of memo Ex/PW 7/A. Signature of said Akhlaq Hussain on memo Ex PW 7/A was proved by PW 8 Raja Nasi Nawaz Inspector, FIA. The production by said witness Muhammad Aslam Rahi PW 7 of the said cheque before the investigating office has not been challenged by the defence in cross-examination of PW Aslam Rahi. It, therefore, stands established satisfactorily.
6. Next item of evidence to be considered is the oral evidence in regard to the identity of the writing on the body of the cheques Exs.PG and PH. The evidence in this regard has been furnished by PW 5 Syed Muhammad Rafiq who was Deputy Director (Audit and Accounts) Pakistan Population Planning Council, Islamabad, at the relevant time. Accused Aftab Ali was a cheque writer working under his control. Syed Muhammad Rafiq as PW 5 stated that he found Ex Ph cheque No,H/18 085731, dated 17-2-1975 (actually 15-2-1975) for Rs,43,620 to be forged document and it bore his as well as of Abdul Hakim's forged signatures. He also stated that earlier cheque bearing No,H/18 085673 Ex PG which had been encashed was also forged. He further stated that these cheques were in the handwriting of Aftab Ali accused whose handwriting he fully identified. It is true that his witness did not state in so many words the source of his knowledge the handwriting of accused Aftab Ali Khan but under section 47 of Evidence Act now section 61 of Qanoon-e-Shahadat 1984, as laid down in Shankar Rao Gangdhar v. Ramji Harijiwan I L R 28 Bombay 8, Mehanth Jagdish Dass and others v. The Emperor AIR 1938 Patna 497, Persa Ram and others v. Manmal and others AIR 1955 Rajasthan 186, Muhammad Sadiq Javeed v. The State PLD 1969 Pesh. 12 and as noted by me in the State v. Khan Muhammad 1986 P Cr.L J 2812, the position of law is that the witness may only state that a document is in the handwriting of a particular person and need not state in his deposition how he knows the said handwriting, as it is the duty of the opposite party to explore in cross-examination the source of his knowledge if he is dissatisfied with the testimony as it stands and if no such cross-examination is undertaken, the other party must be deemed to have accepted that witness's evidence of identification of handwriting/signature as correct. In the present case no cross-examination was conducted on PW 5 Syed Muhammad Rafiq contesting the capacity of the said witness to identify the writing of the accused in digits and words and controverting his evidence that the said two cheques were in the handwriting of the accused Aftab Ali Khan, who must therefore be deemed to have accepted that the said two cheques are in his handwriting. Even otherwise, the source of knowledge of the identity of the author of the writing on cheques is clearly inferable from facts and circumstances deposed to by this witness in his statement. According to him, the accused was employed as a cheque writer in his office and used to prepare cheques in his hand and according to the procedure of his office which he fully explained, after the said accused had prepared the cheques, the said cheques used to be submitted to him for signatures. It is clear, therefore, that the cheques prepared in the hand of accused Aftab Ali Khan used to be submitted to this witness habitually in the ordinary course of the business of his office. This source of knowledge falls within the ambit of explanation to section 47 (now section 61 of Qanoon-e-Shahadat, 1984) and qualifies the said officer to be a competent witness in that behalf. This witness had no enmity or towards the accused. His disinterestedness and impartiality were never questioned. The truth of his statement was not contested in any way in cross-examination. Even otherwise, the evidence of this witness inspires confidence and is accordingly entitled to credence and must be believed. Therefore, the factum of accused, Aftab Ali Khan having prepared the said two cheques in his own handwriting stands established on record.
7. The factum of recovery on 25-2-1975 on the pointation of accused Aftab Ali Khan of stamp of Assistant Director Pakistan Population Planning Council, Islamabad from the drawer of the table of the office of Muhammad Hakeem,' Assistant Director, Pakistan, Population Planning Council, Islamabad, has been proved by evidence of said Abdul Hakeem as PW 4. The said memo is also sighed by Syed Akhlaq Hussain, investigating officer, whose signature on the said memo Ex PE has been proved by Raja Nasir, Inspector in his statement as PW 8. The factum of the recovery on the pointation of accused Aftab Ali Khan of stamp Ex P5 of S.M.Rafiq Deputy Director Pakistan Planning Council Islamabad from the drawer of the table of the said Deputy Director has been proved by said S.M.Rafiq in his statement as PW 5. In cross-examination PW 5 S.M.Rafiq stated that it was correct that at the time of recovery several other members of the staff were present there but recovery memo was got attested by him and Bashir-ud-Din PW. This, however, would not detract from the credibility of the said witness as he was one of the senior officers of the department and the-police had done nothing wrong in getting the said memo attested from him rather than other persons from the members of his staff who could subsequently be subjected to and could be expected to succumb to outside pressure. In my opinion therefore, the factum of recovery of the said stamp at the instance of the accused also stands established on the record.
8. I have taken the impressions of the said two rubber stamps on a paper and have found on comparison that the said impressions correspond exactly with rubber stamp impressions on each of the two cheques Exs. PG and Ex PH. Obviously, therefore, these were the rubber stamps which were affixed on the said cheques. The fact that the said two rubber stamps of S.M.Rafiq Deputy Director and S. Abdul Hakeem Assistant Director of Pakistan Population. Planning Council Islamabad were recovered on the pointation of the accused Aftab Ali Khan shows that the said accused had taken hold of said rubber stamps from the office of Deputy Director and Assistant.
Director and had used them for forging the said cheques. The recovery of said two stamps at the instance of the accused is highly corroborative of forgery of said two cheques by the accused Aftab Ali Khan, Accused Aftab Ali Khan executed the said cheques in, his own hand in order that fraud may be committed with the bank which was maintaining the account of Pakistan Population Planning Council, Islamabad. He did so with the intention of causing it to be believed that the two cheques had been prepared by the authority of Syed Muhammad Rafiq, Deputy Director Pakistan Population Planning Council, Islamabad and had been signed by the said Deputy Director and Abdul Hakim,Assistant Director by whom the said cheques were not signed and by whose authority the said cheques had not been prepared. He thus committed the offence of forgery as defined in section 463 PPC read with clause firstly of section 464 PPC. These cheques were valuable securities as defined in section 30 PPC and at any rate were documents which gave authority to their holders to receive the sums for which they were drawn. In forging the said two cheques, the accused is thus proved to have committed offence under section 467 PPC. There is evidence on record of production before police of counterfoils o said two cheques and their forgery in the hand of the accused. That evidence has been furnished by the statement of PW 1 Muhamma. Bashir Awan, Magistrate, PW 5 S.M.Rafique Deputy Director, PW 3 Bashir-ud-Din, Assistant Director and PW 6 Sh.Muhammad Din handwriting expert. Now from all that evidence, in my opinion what is meant to be shown is that accused wanted by the alleged forgery, to cheat the officers of Pakistan.
Population Planning Council, Islamabad so that they should not come to know of forgery of cheques committed by him. It was not meant to cheat the bank. In my opinion, therefore, the offence under section 468 PPC which is sought to be proved against accused Aftab Ali Khan on the basis of that evidence is not triable by this Court which can try only scheduled offences as define.
In section 2(d) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984. I have already held in Mushtaq Hussain Shah v. The State 1986 P Cr.L J 567 that an offence in respect of the bank or in connection with the businesses of the bank is an offence which hits or is likely to hit a bank or the business of the bank financially or otherwise. I also held therein that the word 'connection' in xpression 'in connection with' occurring in said section 2(d) meant direct connection like cause and effect and not a remote connection. Since the alleged offence of forgery of the counterfoil was not meant to cheat the bank but only officers of the Pakistan Population Planning' Council, Islamabad and the bank was not hit or likely to be hit directly as a result of the said acts of accused Aftab Ali Khan the offence under section 468, PPC in relation to said counterfoil, is not an offence in respect of a bank or in connection with the business of a bank is not a scheduled offence and is and as such not triable by this Court.
9. Accused Aftab Ali Khan has also been charged for offences under sections 420, 409 PPC and section 5 of Prevention of Corruption Act, 1947 but evidence and consideration as regards the said offences are inextricably mixed up with the prosecution case against accused Muhammad Sabir Hussain and shall be dealt with after case of the said accused has been considered. I would, therefore, now proceed to deal with prosecution case against accused Muhammad Sabir Hussain.
Main witness against accused Sabir Hussain is PW 9 Iqbal A.Sheikh who was posted as Manager Allied Bank New Street Branch, Rawalpindi in the year 1975. He deposed that in February, 1975 an account had been opened in his branch in the name of S.M.Hussain & Co. In which cheques drawn on State Bank of Pakistan and NBP were being deposited and that was a small account but cheques being deposited therein were of large amounts and after deposit of cheques funds were being withdrawn in a couple of days, which created doubt in his mind and when last cheque was deposited and the person who had opened the account came to withdraw money on the cheque, he called him in his office and sought explanation from him. According to him accused Sabir Hussain present in the Court was the said person. He further stated that on enquiry he became more doubtful and rang up Director Population Planning Department, whose cheques were normally deposited in this account and on that he (the Director) told him that the cheques were not genuine and the person who had brought the cheques for deposit in the account should be detained. This statement of PW9 as regards his enquiry from Pakistan Population Planning Council, Islamabad on telephone and its reply that said cheque was a fake one and the request made to him to stop the payment was corroborated by Syed Muhammad Rafiq, Deputy Director Pakistan Population Planning Council, Islamabad in his statement as PW 5. The corroborating testimony could, however, consist of only such evidence as had happened with or before the said witness and would naturally not consist of facts which happened before he arrived in said branch of ABL. In that respect Iqbal A.Sheikh was the witness. His statement that accused Muhammad Sabir Hussain was the person who had opened account No,1423 in the name of S.M.Hussain & Co. And had been depositing cheques of Pakistan Population Planning Council, Islamabad drawn on State Bank of Pakistan and had been withdrawing sums from the said account after deposit of said cheques was not contested G seriously in cross-examination. There was absolutely no suggestion that the accused had not opened and operated the said account and the statement to that effect was false and result of some misapprehension or wrong identification. There was even no suggestion that the said account had been opened and was, being operated by anyone else. The only thing elicited in cross-examination was that it was probably one Shahid Rashid who had introduced the account holder S.M.Hussain at the time of opening the account. Ch.Muhammad Abdul Wahid, learned counsel for the accused has submitted that non-production of said Shahid Rashid who according to him was the best witness to prove the identity of the actual person, who had opened that said account on his introduction, was fatal to the prosecution case that accused was that person. I am afraid, I cannot accept that contention. The Manager of the branch who sees a person opening an account and has the occasion to see on every such day on which he comes to operate the account, also constitutes an equally good witness. As a matter of fact he was a better witness than said Shahid Rashid as he can be said to have seen the accused on more occasions than Shahid Rashid who introduced him in the first instance. Therefore, the non-production of "said Shahid Rashid is of no consequence. PW9 Iqbal A. Sheikh is shown to have no malice against the accused. His evidence does not conflict with the other features of the case form which the guidelines in this case. His evidence is, therefore, entitled to credence. It thus stands proved beyond any shadow of doubt that account No,1423 was opened by accused Muhammad Sabir Hussain in his feigned name S.M.Hussain as proprietor of fake concern S.M.Hussain and Co. In ABL City Street Branch Rawalpindi and it was accused Sabir Hussain who deposited forged cheques PG and PH of Pakistan Population Planning Council, Islamabad in the said account and had been withdrawing money collected on the basis of said cheques. From the said branch by presenting checques of S.M.Hussain & Co. The last of said cheques being cheque No,CDF/1 626230, dated 19-2-1975 Ex.PW 9/D for a sum of Rs,34,000 which is cancelled in token of its having been passed as fit for payment but does not show actual payment made thereon.
10. The next item of evidence to be considered in regard to accused Sabir Hussain is in respect of recovery from his brief case of the following (among other) articles/documents:-
(i) Leather purse of brown colour containing a sum of about Rs,1,592 consisting of fifteen currency notes of rupees hundred denomination each and nine currency notes of rupees ten H denomination each and two notes of rupees one denomination each.
(ii) Cheque book of account No,1423 of S.M.Hussain and Company containing unused cheques with rubber stamp 'For S.M.Hussain & Co' affixed on them and containing the following counterfoils: -
(a) counterfoil of cheque No,CDF/1 626226 issued for Rs,300.
(b) counterfoil of cheque No,CSF/1 626227 issued for Rs,25,000.
(c) Counterfoil of cheque No,CDF/1 626228 issued for Rs,6000
(d) Counterfoil of Cheque No,CDF/1 626229 issued for Rs, 85, 000.
(e) Counterfoil of cheque No,CDF/1 626230 issued for a sum of Rs,34,000.
(iii) Pay in slip book Ex. P9 of S.M.Hussain and Co. Including in it:-
(a) Counterfoil pay in slip dated 6-2-1975 known as deposit receipt or deposit slip Ex.PW9/5 of S.M.Hussain & Co. Ltd. With an entry of deposit of cheque No,08 5673 dated 5-2-1975 for a sum of Rs,32,540 in the account No,1423 of S.M.Hussain & Co.
(b) Counterfoil pay in slip date 18-2-1975 known as deposit receipt or deposit slip Ex.PW 9/T with an entry of a sum of Rs,43,620 in the account of S.M.Hussain & Co.
' (There is no stamp of cash receipt of this sum by the bank cashier showing that a cheque for the said sum had been deposited by virtue of said deposit receipt).
' Evidence in that regard was furnished by PW9 Iqbal A.Shaikh. It may be noted that Akhlaq Hussain, ASI, I.O. Who had recovered these articles/documents and taken them into possession had died by the time evidence was recorded in the Court of Special Judge (Central). Raja Muhammad Newaz Inspector, CIA, Islamabad appeared as PWB and stated that memo Ex.PW 8/A relating to said recovery was in the handwriting of said Akhlaq Hussain. PW9 Iqbal A.Sheikh who was the Manager of Allied Bank of Pakistan New Street Branch, Rawalpindi had by clear implication stated that when the accused had come to his branch to get the cheque encashed he had a brief case with him. He stated that in that brief case there was cash amounting to Rs,1,590 or Rs,1,592 and some articles which were handed over to police. He further stated that in the brief case there were certain cheque books of account, a few letters and cash memos and according to Urdu record, there were in the brief case, numerous cheques, Account Book, few letters and cash memos. He further stated that all these articles along with cash of Rs,1,590 were taken into possession by virtue of memo Ex.PW 8/A by the investigating officer and he attested the same. It is notable that the said witness had given details of the documents etc. , recovered from the brief case in a general manner and had not particularised the actual books recovered from the brief case of the accused either by specific name or by any exhibit marked on them. The perusal cf memo Ex.PW 8/A showed that there was pay-in-slip book with deposit slips which too had been taken into possession. He thus had not described with clarity all the documents recovered from the brief case. Accordingly as stated by me earlier, I resummoned the said witness as per my interim order dated 6-5-1985. The said witness reappeared on 10-6-1985 and stated that among the other articles recovered from the brief case, there was pay in slip book and loose deposit receipts and one of the desposit receipts Ex.PW 9/S was for a sum of Rs,32,540 by virtue of which cheque No,085673 dated 5-2-1975 was deposited in ABL New Street Branch, Rawalpindi and the other dated. 18-2-1975 Ex. PW 9/T was a sum of Rs,43,620 by virtue of which cheque for the said afno.Unt was deposited in ABL New Street Branch, Rawalpindi. There was no cross-examination contesting the correctness of above statement of the said witness. Accordingly recovery from the brief case of the accused of deposit receipts Ex.PW 9/S and Ex. PW 9/T stands proved.
11. It is true in this connection that the brief case which constituted the case property in this case was never produced in the Court and on that ground, the recovery of said documents which according to the prosecution were taken out of the said brief case, cannot, on cursory view be said to have been proved. However, in the present case, Muhammad Zaman Inspector SHO, PS Abpara appeared as CW/1 and by production of original register No,19 and Roznamcha of the year 1976 and submission of certified copy of entry No,5 in said register 19, dated nil, CW 2/1 and that of Rapat No,10 dated 2-2-1976 of said Roznamcha CW 2/3 proved that the said brief case along with the sum of Rs,1,592 and leather purse were delivered to the accused Muhammad Sabir Hussain under the order of the Resident Magistrate. I am conscious that the copy of the order of the Resident Magistrate should have been available against said entry but its absence from the said register, detected after 10 long years would not show that the said entry was fake. There is presumption of regularity of official acts and therefore, it must be presumed that the said entries had been made in the two registers regularly i.e, under the orders of the Resident Magistrate and not otherwise.
Further under section 35 of Evidence Act (now Article 49 of Qanoon-c-Shahadat 1984) the said entries in the said two official registers of the police department (stating that the said articles had been handed over to the accused Muhammad Sabir Hussain under the order of the Magistrate) made by Addl. Moharrir Head Constable who was a public servant, in discharge of his official duty, was itself a relevant fact and must be believed to be true. Unproved and uncorroborated plea put forward by the accused in his statement recorded in order sheet in 10-6-1985 to the effect that Akhla.q Hussain ASI, Investigating Officer never handed over these articles to him though he got his signature on a plane paper, and his plea in supplementary statement made under section 342 Cr.P.C. To the effect that police had made the said entries to suppress their own negligence cannot be believed. The accused Muhammad Sabir Hussain is thus proved to have received the said articles on Spurdari pending the trial. It was he who should have produced the same in the Court.
Consequently the non-production of said brief case in the Court does not detract from the correctness of the finding that the said documents were recovered from the brief case in possession of accused Muhammad Sabir Hussain.
12. Ch.Muhammad Abdul Wahid, learned counsel Tor the accused, had challenged the said recovery on the ground that according to memo Ex.PW 8/A, the said recovery was made on 26-2- 1975 while Iqbal A.Sheikh as PW 9 had stated that when on 19-2--1975 after telephonic communication by PW5 S.M.Rafiq in reply to his call, officials of Population Planning Council and police came in his branch, the accused, Muhammad Sabir Hussain was handed over to the police along with brief case, leather purse with cash amounting to Rs,1,592 and documents etc. He has further pointed out to me that in application by police dated 27-2-1975 for grant of remand of person of accused Muhammad Sabir Hussain, the date of arrest of the said accused has been shown to he 26-2-1975. I have considered the point raised by him. It is absolutely correct that there is discrepancy between the import of Memo Ex.PW 8/A to the effect that said articles were taken into possession by the police on 26-2-1975 supported by the averment in the said remand application that accused was arrested on 26-2-1975 and the statement of PW 9 Iqbal A.Sheikh to the effect that he had handed over the accused along with said articles/documents recovered from his brief case to the police right on the day when accused Muhammad Sabir Hussain had come to his branch to get a cheque encashed. Therefore, it has to be determined as to which of the two versions is correct. On giving my anxious thought to the said matter I am inclined to hold that statement of PW9 lqbal A.Sheikh that accused was apprehended on 19-2-1975 along with a brief case out of which said articles/documents were recovered and he and the said articles/documents were handed over to the police is true and has to be accepted in this case and my reasons for this view are that lqbal A .Sheikh clearly stated in his statement that when the person who had opened the account had come to his branch to withdraw money on a cheque, he had called him in his office and accused Muhammad Sabir Hussain present in the Court was the same person and on inquiry from him he had become more doubtful and had rung up the Director Population Planning Department and they had told him that the cheques were not genuine and the person who had brought the cheques for deposit in his account should be detained and when the officials of the Population Planning 'Council along with the police had come in his office, accused Sabir Hussain had been handed over to the police along with a brief case with articles/documents contained in it which he was carrying along with him. This witness is categorical that accused Sabir Hussain was present at that time. It does not stand to reason that when the Manager had seriously doubted the genuineness of the cheques deposited in the account of a person who had come to withdraw money and on telephonic enquiry from ostensible drawer, had been informed that cheques were not genuine and the person who had deposited them should be detained, he or his staff would allow such person to escape from the' bank. Statement of Iqbal A.Sheikh, Manager, PW9 that the accused had come in the bank on that date is supported by another circumstance of almost decisive importance and that is that the cheque Ex PW 9/D for a sum of Rs,34,000 issued by S.M.Hussain and Co. Had been presented in ABL, New Street Branch on 19-2-1975, on which however no payment was made by the said bank. The effect of earlier statement dated 7-12-1983 of Iqbal A.Sheikh as PW9 was that accused had come with a cheque to draw money collected in the branch and credited in the account of S.M.Hussain & Co. On the basis of cheques of Pakistan Population Planing Council. In his later statement dated 10-6-1985 when resummoned, the sak witness stated that when accused Muhammad Sabir Hussain had come to his branch, the cheque which he had produced for encashment was Ex. PW 9/D for a sum of Rs,34,000 dated 18-2-1975 and that he had presented the said cheque and token No,6 had been allocated to him. I have looked into the said cheque. It bears the stamp of its having been presented in the bank and token No,6 having been allocated to it. The stamp bears the date as 19-2-1975. The statement of Iqbal A.Sheikh PW 9 that the accused had come to get the cheque encashed is thus supported by the said endorsement on the said cheque. The said cheque does not bear the stamp of cash having been paid thereafter and no payment was made on it. The circumstance that no payment was made on this cheque appears to support the statement of this witness that the accused had been taken hold of by the police on the same day. There is still another circumstance which supports the said evidence of PW 9. It is stated in the said memo Ex.PW 8/A dated 26-2-1975 that Iqbal A.Sheikh had produced before the police, brief case after getting the said brief case from the custody of accused Muhammad Sabir Hussain proprietor of S.M.Hussain & Co. And the key of the brief case had been separately recovered from the possession of said accused and on opening the brief case with the said key, articles/ documents had been recovered. It is, however, evident that Iqbal A.Sheikh could not have taken the said brief case from accused Muhammad Sabir Hussain on 26- 2-1975 because accused Muhammad Sabir Hussain is not shown in evidence to have come to the branch on 26-2-1975 and the said witness was not a police officer who could apprehend the accused on 26-2-1975 when he was at large along with the said brief case. The said witness was the Manager of A.B.L., New Street Branch, Rawalpindi and could have got hold of the accused and got brief case from him only on 19-2-1975, the day when accused Muhammad Sabir Hussain appeared there and presented the cheque. In these circumstances., the probability is that the accused Muhammad Sabir Hussain came to the said bank on 19-2-1975 to get payment of Rs,34,000 on cheque Ex PW 9/D and had been apprehended at that time along with the said brief case from which deposit receipt dated 6-2-1975 of cheque No,085673 dated 5-2-1975 for a sum of Rs,32,540 showing deposit of said cheque in current account No,1423 of S.M.Hussain and Co. Of ABL New Street Branch, Rawalpindi and a deposit receipt dated 18-2-1975 showing deposit of cheque for a sum of. Rs,43,620 in current account No,1423 of S.M.Hussain and Company had been recovered. Syed Akhlaq Hussain, ASI, the investigating officer appears to have put the date 26-2- 1975 on the memo. Ex.PW 8/A due to unknown reason of his own.
12-A.Learned counsel has however, further argued that complaint Ex PE filed by PW 5 S.M.Rafiq on 19-2-1976 did not state that accused Muhammad Sabir Hussain had been apprehended in the said bank premises and was then in the custody of police and therefore the statement of PW 9 Iqbal A.Sheikh as regards apprehension of the said accused and recovery from his brief case on 19-2- 1975 was not liable to be believed. I have read through the complaint Ex. PF lodged by PW 5 S.M.Rafiq Deputy Director Pakistan Population Planning Council, Islamabad on 19-2-1975. He clearly stated in the said complaint that on finding that the cheque of his department deposited in the said branch was not genuine, he stopped the payment and rushed to the bank. Now it is clear that payment on a cheque is stopped when presentor of the cheque is there to get the payment. The said complaint, therefore, did not negate the presence of accused Muhammad Sabir Hussain in ABL New Street Branch on 19-2-1975. If, therefore, S.M.Rafiq had not stated in the said complaint Ex.
PF that accused Muhammad Sabir Hussain had been apprehended in the branch and some articles/documents had been recovered from his possession, it was.Probably due to the fact that complainant who was a responsible officer wanted to remain confined to his own part of the story and leave the matter of report of Muhammad Sabir Hussain having been apprehended in the bank to Iqbal A .Sheikh before whom said apprehension and said recovery had been made. In the memo Ex PW 8/A S.M.Rafiq is not shown to be witness of said recovery. In the position in which he was placed, most probably he did not like to make a report in respect of matter of which he was not an eye-witness. In these circumstances, omission by complainant S.M.Rafiq to make mention of said circumstances does not falsify the deposition of Iqbal A.Sheikh that accused had been apprehended on that day along with brief case from which said articles/documents were recovered. The recovery of said two documents from the brief case of the accused Muhammad Sabir Hussain, therefore, stands proved beyond any shadow of doubt.
13. Recovery from brief case of the accused and seizure by the police of cheque book of account No,1423 of S.M.Hussain & Co. By virtue of Memo Ex PW 8/A also stands proved. Evidence to that effect was given by PW 9 Iqbal A.Sheikh. It is true that the said cheque book is not exhibited but exhibiting of a document is not an absolute necessity as there is no provision in Criminal Procedure Code laying it down as a mandatory duty on the part of the Court to mark a document with an exhibit and marking is resorted to for the facility of the court to enable it to find out the document with dease. If therefore, the identity of a document is otherwise ascertainable, the omission to mark it in evidence as an exhibit cannot stand in the way of its being read in evidence. PW 9 Iqbal A.Sheikh had clearly stated that amongst the articles recovered from the brief- case of the accused there was cheque book. The memo Ex PW 8/A desibes the said cheque book in detail. The cheque book on record meets the said description and is the same cheque book as had been recovered from the brief case in possession of accused Muhammad Sabir Hussain.
14. Iqbal A.Sheikh also stated that he produced from the record of the bank before deceased Sayed Akhlaq Hussain ASI, Investigating Officer, Account opening form relating to A/c No,1423 of S.M.Hussain & Co. As Ex PW 9/A, two specimen signature cards of account No,1423 of S.M.Hussain & Co. Ex. PW 9/B and Ex.PW 9/C cheque No,CD/1-F 626230 dated 19-2-1975 for a sum of Rs,34,000, Ex PW 8/D, cheque No,CD/1-F 626229 dated 14-2-1975 for a sum of Rs,35,000 as Ex PW/E, cheque No,CD/1-F 626226 dated 4=2-1975 for a sum of Rs,300 as Ex PW 9/F, cheque No,CD/1-F 626226 dated 12-2-1975 for a sum of Rs,6,000 as Ex PW 9/G and cheque No,CD/1 F 626227, dated 7-2-1975 for a sum of Rs,25,000 as Ex PW 9/H. There was no contest on that score by the accused. Production of these documents by PLY 9 lqbal A.Sheikh also stands proved on record.
15. Next item of evidence to be considered is in respect of identification of the handwriting and signatures on the two deposit slips Ex. PW 9/S and Ex. PW 9/T whereby cheques Ex PG and Ex PH of Pakistan Population Planning Council were deposited in account No,1423 and on the account opening form Ex.PW 9/A specimen signatures cards Ex. PW/B and Ex. PW 9/C on the basis of which said account was opened in the name of S.M.Hussain & Co. And five cheques Ex PW 9/D to Ex. PW 9/H whereby different sums of money were withdrawn from A/c No,1423 in the name of S.M.Hussain & Co. This evidence is furnished by PW 6 Sh.Muhammad Din Handwriting Expert. However, before that evidence is considered, it must be ascertained that the identity of the author of the specimens taken by the police to provide material for comparison to the said handwriting expert, had been satisfactorily established. In that respect, Muzaffar Hussain, Magistrate, appeared as PW 2 and stated that Muhammad Sabir Hussain accused present in the court had been produced before him on 4-3-1975 and with his permission specimens of his handwriting were taken by the police on sheets Ex.PD 1 to Ex.PD 38 in his presence which he attested. There was no cross-examination by the defence counsel in respect of the identity of the accused Muhammad Sabir Hussain. The defence counsel did not even ask whether the said witness, Muzaffar Hussain Magistrate, knew Muhammad Sabir Hussain accused personally or had satisfied himself about his identity by getting his =identity card from him or not. The accused must, therefore, be deemed to have admitted that specimens taken before the said Magistrate were his. Accused Muhammad Sabir Hussain himself conceded in his supplementary statement under section 342 Cr.P.C. Recorded by me on 22-8-1986 that said specimens of writing on sheets Ex. PD/1 to Ex PD/38 were his. It is, therefore, proved that specimen writing/signatures on sheets.Ex.PD/1 to Ex.PD/38 were of the accused Muhammad Sabir Hussain.
16. Under my order passed on 14-9-1985 PW6 Sh.Muhammad Din Handwriting Expert compared the writing on deposit slips dated 6-12-1975 Ex.PW9/S and deposit slip dated 18-2-1976 Ex.PW9/T with the ,specimen writing of accused on sheets Ex.PD/1 to Ex.PD/38 and as required in PW6/A, the original letter dated 25-3-1975 of S.S.P.
' Rawalpindi, he compared the writing on account opening form Ex.PW8/T specimen signature cards Ex.PW9/B and Ex. PW6/C and five cheques Ex.PW9/D to Ex.PW9/H and submitted a positive report. In his statement made on 4-10-1985 he deposed that the questioned signatures S.M.Hussain and questioned writing on these documents were similar in writing characteristics with the specimen signatures and writing on specimen sheets Ex PW/1 to Ex. PD/38. He gave detailed reasons for these. He supported his testimony by producing comparative charts Ex. PW 6/A and PW 6/V and proved his report Ex.PW6/B. The cross-examination conducted was general in nature which elicited nothing substantial in favour of accused Muhammad Sabir Hussain and was not directed to contest the correctness of the reasons advanced by the expert for the opinion given by him. I have myself scrutinized the said reasons and find them to be absolutely correct. The supplementary statement of this witness has thus proved that the said documents are in the hand of and bear the signature of accused Muhammad Sabir Hussain in his provided name. S.M.Hussain.
The said statement of the expert is not solitary. As already shown PW9 Iqbal A.Sheikh had also stated in his testimony that it was the accused Muhammad Sabir Hussain who had opened account in the name of S.M.Hussain & Co. In his branch and Government cheques drawn. On State Bank of Pakistan were being deposited in this account and that this was a small account but cheques of large amounts were being deposited in it and after deposit in this account, funds were being withdrawn in a couple of days and after the last cheque was deposited, it was the accused who had come to withdraw the sum from this account. This statement is in full accord with the testimony of the handwriting expert and fully corroborates the said testimony of the handwriting expert, which must therefore be believed. The testimony of Iqbal A.Sheikh as PW9 and statement of PW6 Sh.Muhammad Din that writing/signatures on the account opening form and specimen signature card correspond with specimen writing of accused Muhammad Sabir Hussain prove that accused Muhammad Sabir Hussain had opened account No,1423 in his pretended name S.M.
Hussain as proprietor of a fake concern named S.M.Hussain & Co. The writing on deposit slip Ex.PW9/S shows that cheque No,085673 dated 5-2-1975 for a sum of Rs,32,540 was deposited in A/c No,1423 of S.M.Hussain & Co. The writing on deposit slip Ex.PW9/T ostensibly shows that a sum of Rs,43,620 was deposited in the said account on 18-2-1975 but since there is no rubber stamp of cash receipt affixed thereon along with other stamps, it was a cheque for the said sum which had been deposited in the said account. Cheque No,085673 dated 5-2-1975 for a sum of Rs,32,540 from Pakistan Population Planning Council in favour of S.M.Hussain & Co. Is on the record of this case as Ex PG. The cheque for a sum of Rs,43,620 is cheque No,08 5731 dated 15/17-2-1975 from Pakistan Population Planning Counsel, Islamabad in favour of S.M.Hussain & Co. Is also on record, as Ex.PH.
Both have been found above to be forged documents. The testimony of PW6 Sh.Muhammad Din Handwriting Expert and the statement of PW9 proving recovery of pay-in-slip book including deposit. Slips Ex.PW9/S and Ex.PW9/T and his testimony that accused had been depositing cheques therein prove to the hilt that the accused Muhammad Sabir Hussain had deposited those forged cheques in account No,1423 and had used these cheques. The question however, is whether' accused Muhammad Sabir Hussain knew or had reason to believe that the said two cheques were forged. There is no direct evidence to show that accused Aftab Ali Khan had conspired with accused Muhammad Sabir Hussain and had delivered these forged cheques to the accused Muhammad Sabir Hussain informing him that these cheques were forged and should be got encashed by him and booty shared but it was observed in Abdul Majid v. Supdt. & Rememberancer of Legal Affairs PLD 1964 SC 422 that a court is advised to examine circumstances of criminal act and its result for the purpose of gauging natural probabilities. Again in The State v. Manzoor Ahmad PLD 1966 SC 664 it was held that even in case of the kind where there is no direct evidence to show as to what was the precise manner in which the crime had taken place, it was not sufficient to say that since there was no direct evidence to connect any one with the felonious act, the guilt cannot be fixed and that it is precisely in such cases that it is the duty of the court to examine the probabilities in the light of indirect evidence available in the case, the motive of crime and other surrounding circumstances proved on record. I would, therefore, scrutinise the circumstances of the case and see whether on their basis it can be said that accused Muhammad Sabir Hussain had knowledge or had reason to believe that the said cheques were forged. In this connection it is notable that it is not shown that S.M.Hussain & Co. Got any work from Pakistan Population Planning Counsel, Islamabad to entitle it to get any of the two cheques from the said department. Accused Muhammad Sabir Hussain did not show, much less prove, that he had any connection with Pakistan Population Planning Council, Islamabad and therefore he would not have got these cheques therefrom unless he was in collaboration with accused Aftab All Khan (who had intentionally and wilfully forged these cheques) the two had a common intention to deprive the said department of sums of money and receive the amounts of said cheques and then share them between themselves. Accused Muhammad Sabir Hussain must in these circumstances be presumed to have knowledge that these cheques were forged document-or at any rate had reason to believe that the said two cheques were forged documents. The said two cheques had no wings and could no have flown from the office of Pakistan Population Planning Council, Islamabad and fallen in the lap of accused Muhammad Sabir Hussain at Rawalpindi. It is only accused Aftab Ali Khan who could have given these cheques to accused Muhammad Sabir Hussain and if so, he must have told him (Muhammad Sabir Hussain) that the said cheques were forged. In these circumstances it is clear that accused Muhammad Sabir Hussain knew that said two cheques were forged documents. The said two cheques were from Pakistan Population Planning Council, Islamabad with which accused Muhammad Sabir Hussain had nothing to, do and were for huge sums, he, therefore, had, at any rat reasonable ground to believe that the said two cheques were forged L instruments. It is, therefore, proved that accused Muhammad Sabi Hussain had used these two forged cheques as genuine knowing them to be forged by depositing them in account No,1423 in his feigned name S.M.Hussain as proprietor of bogus concern S.M.Hussain & Co. He did so fraudulently and dishonestly so as to withdraw the same after collection of sums of said two cheques from the bank in which the account of Pakistan Population Planning Council, Islamabad was being maintained. He is thus proved to have committed offence unde section 471 PPC.
16. Delivery of property is a necessary ingredient of offence under section 420 PPC. This delivery must be proximate to deception and not remote and it should be direct consequence of deception and not an indirect one. The later cheque Ex PH does not appear from evidenc on record to have been encashed and there is no question of delivery of money for which it was drawn to the accused. However, as regards the earlier. Cheque Ex PG by depositing the said cheque in account No,1423, accused Muhammad Sabir Hussain had, no doubt cheate the bank and induced it to deliver money for which it was drawn to him but the sum of the said cheque was to be collected from th bank which was maintaining account of Pakistan Population Planning Council and thereafter credited in the said account and it wa thereafter only that suns so collected could be withdrawn by the said withdrawer by Cheque. I do not, therefore, think that accuse Muhammad Sabir Hussain is proved to have committed offence under section` 420 PPC.
17. As already stated, it has been proved on the basis of statements of PW9 Iqbal A.Sheikh and PW6 Sh.Muhammad Din Handwriting Expert, that account No,1423 had been opened by accused Muhammad Sabir Hussain by submitting account opening form Ex PW9/A written in his hand and bearing signature made by him as S.M.Hussain and specimen. Signature cards Ex PW 9/B and Ex P.W.9/C bearing signature made by him as S.M. Hussain. It has also been 'proved by their evidence that he issued five cheques Ex PW9/D to Ex PW9/H in his handwriting and bearing signature made by him in his feigned name S.M.Hussain as the drawer. In doing these acts, he committed the offence of forgery as defined in section 463 PPC read with following portion of clause firstly of section 464 PPC and following portion of explanation 2 to said section: ' A person is said to make a false document:- ' First--who dishonestly or fraudulently makes, signs, seals or executes document with the intention of causing it to be believed that such document was made, signed, sealed or executed by a person by whom he knows that it was not made, signed, sealed or executed.
' Explanation 2-The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person may amount to forgery: Accused, Muhammad Sabir Hussain had done all the above acts dishonestly and in order to cheat- the bank or commit fraud with it. Thus in executing the said account opening form and specimen signature card, the said accused committed offence under section 468 PPC while in making the said five cheques which were valuable securities, the accused Muhammad Sabir Hussain committed offence under section 467 PPC.
18. After collection on 8-2-1975 of the sum of Rs,32,540 on cheque Ex PG dated 5-2-197-5 accused Muhammad Sabir Hussain with drew a sum of Rs,6,000 on cheque Ex PW 9/G issued by him on 12- 2-1975 and a sum- of Rs,35,000 on cheque Ex PW9/E dated 14-2-1975 from the said account. After deposit of cheque Ex PH dated 15-2-1975 for a sum of Rs,43,620 the accused attempted to withdraw, a sum of Rs,34,000 by means of cheque Ex PW9/D from the said account but failed. Ex PW9/G and Ex PW9/E have been proved by the handwriting expert to be in the hand of accused Muhammad Sabir Hussain. The said statement of the expert has been corroborated by the statement of PW9 Iqbal A.Sheikh. It is also supported by the circumstance that the cheque book recovered from the brief case of accused Muhammad Sabir Hussain contains counterfoils of said two cheques. Accused Muhammad Sabir Hussain thus withdrew the entire sum of Rs,32,540 from the said account and he and co-accused Aftab Ali Khan in Collaboration with each other misappropriated the said sum o Rs,32,540. Accused Aftab Ali Khan as employee of Pakistan Population Planning Council and have been entrusted with the dominion over th funds of Pakistan Population Planning Council, Islamabad in his capacity as a cheque writer in the said Government office, he committed offence of criminal breach of trust as a servant of Government punishable u/s 408 PPC while accused Muhammad Sabir Hussain committed offence of criminal misappropriation u/s 403 PPC.
19. The upshot of the above discussion is that accused Aftab Ali Khan has been proved to have committed offence under sections 467 and 408 PPC while accused Muhammad Sabir Hussain has been proved to have committed offence under sections 471, 468, 467 and 403 PPC. None of the two accused is proved to have committed offence under section 420 PPC Accordingly, I acquit both the accused of offence under section 420 PPC, but convict accused Aftab All Khan of scheduled offences under sections 467 and 408 PPC and accused Muhammad Sabir Hussain of offences under sections 471, 468, 467 and 403 PPC. By virtue of section 6(2) of Offences in Respect of Banks (Special Courts) Ordinance, 1984 modification was made in sentences to be imposed for offences punishable under sections 467 and 468 PPC. Section 6(2) prescribes minimum and maximum periods of sentences for the said offences. Similarly, modification made in offence under section 471 PPC which originally provided punishment in the same manner as if the accused had forged such document changed the sentence to imprisonment of either description for a term which shall not be less than one year nor more than three years. It was provided in sub-section (3) of section 6 of said Ordinance that where the Special Court found the offence to have been committed in respect of a specified amount, the amount of fine which the Special Court may pass shall not be less than twice the said amount, although in the sentences provided under the original sections, quantum of fine was within the discretion of the Court. I was at first of the view that these modified sentences applied even to pending cases of scheduled offences which stood transferred to this Court with effect from 23-2-4984 by virtue of sub-section (3) of section 4 of the said Ordinance because argument was sustainable that when the law-making authority had committed the pending cases to the judicial determination the Special Court which was the creation of Offences in Respect of Banks (Special Courts) Ordinance, 1984 and could not travel beyond the four corners of the said statute, it meant that the said enhance sentences prescribed in the said special law should apply to the said pending cases. However, with the revival of the 1973 Constitution and restoration of fundamental rights including fundamental right contained in Article No,12 which forbids the punishment of a person for an offence by a penalty greater than the penalty prescribed by law for that offence at the time the offence was committed, it is clear that sentences other than those which were prescribed at the time when offence was committed could not be imposed. In consequence, I have now come to the conclusion that section 6(2) and section 6(3) of the said Ordinance are not retrospective in effect and are not applicable to criminal acts which were committed before 23-2-1984, the date of promulgation. Of the said Ordinance. Offences in this case were committed in 1975. Therefore, enhanced sentences prescribed said Ordinance would not apply. Accordingly in sentencing the accused for the offences for which they have been convicted, I will take int consideration only the original sentences prescribed in original sections 468, 467 and 471 PPC.
20. I may also state in this connection that banks are national institutions and any offence regarding them should be dealt with, with an iron hand. Therefore, deterrent sentences should be given so as to deter the criminals from making further inroads into the said national institutions.
However, in assessing the quantum of sentence to be imposed, I would be guided by the principle that offender should be given the least punishment which will prevent repetition of the crime by him and will also deter others similarly placed from committing said offences. There appears to be no definite principle or rule to guide me in the assessment of quantum of sentence to be imposed on the accused. However, in Muhammad Sadiq Javeed v. The State PLD 1969 Pesh. 12 for the embezzlement of a sum of about 60,000 by the accused, a public servant, a sentence of 9 years' was held in the circumstances of that case to be excessive and was reduced to 6 years R.I. While fine of Rs,70,000 was held in the circumstances of the case to be in order and was maintained. This case affords to me an instance of judicial determination of the proper quantum of sentence which I may follow. I may also say that though under section 12 of Offences in Respect of Banks (Special Courts) Ordinance, 1984 Criminal Law Amendment Act, 1958 is neither applicable to nor binding on this Court but in my opinion, some of its provisions which appear to represent the policy of the legislative wing of the State in relation to the punishments to be awarded to the accused should have pursuasive effect and should be followed by this Court. Section 9 of Criminal Law Amendment Act 1958 lays down that fine to be imposed on any person charged with an offence triable under the said Act shall not be less than the gain found to have been derived by the accused by the commission of the offence, I would, therefore, in assessing the quantum of fine, be guided by the measure given by the legislature in the said provision of law which is already in the field and appears to be the only provision in the existing law which provides the measure of fine to he imposed on a convicted person.
20. It may be noted in this connection that the sums for which two cheques Ex PG and Ex PH were forged by accused Aftab Alf Khan are Rs,32,540 and Rs,43,620, the total of which 'comes to Rs,86,160. Similarly, total sum for acquisition of which accused Muhammad Sabir Hussain had used the said forged cheques as genuine knowing them, to be forged or having reason to believe that they were forged is the same sum of Rs,86,160. Furthermore, the actual sum which could be procured from the bank and was collectively misappropriated by the two accused is a sum of Rs,32,540 as held above. Therefore, while assessing measure of sentence of imprisonment and fine to be imposed in the light of above case-law or statutory provision of law, I will keep in mind these basic facts proved on record. In consequence, I sentence accused Aftab Ali Khan for offence under section 467 PPC to 8 years' R.I. And a fine of Rs,20,000 and in default of payment of the same to further R.I. For 21 years. For offence u/s 408 PPC, I sentence the said accused to R.I. For three years and fine of Rs,25,000 and in default of payment of the said fine to further. R.I. For 11 years. The sentences shall run concurrently.
' As for accused Muhammad Sabir Hussain I sentence him for offence under section, 471 PPC to R.I.
For eight years and to a fine of Rs,20,000 and in default of payment of said fine to further R.I. For 21 years, for offence under section 468 PPC I sentence the accused Muhammad Sabir Hussain to R.I.
For four years and fine for a sum of Rs,10,000 and in default of payment of the same to further R.I.
For 11 years, for offence under section 467 PPC I sentence him to R.I. For six years and a fine of Rs,20,000 and in default of payment of said fine to further R.I. For 2 years and for offence under section 403 PPC I sentence accused Muhammad Sabir Hussain to R.I. For 11 years and fine for a sum of Rs,25,000 and in default of payment of said fine to further R.I. For six months. The said sentence of the accused shall run concurrently.
' Both the accused shall be entitled to the benefit of section 382-B Cr.P. C. And period of their detention in jail as under-trial prisoners shall be deducted from their period of sentences and they shall be made to serve only the remaining sentences.
' Out of the fine if recovered a sum of Rs,40,000 shall be paid to the Pakistan Population Planning Council, Islamabad and remaining sum of the fine shall be confiscated to the State.
Convicted.