1. ' SAJJAD ALI SHAH, J.-- This appeal is directed against the judgment dated 12-12-1987 of learned Presiding Officer, Special Court (Offences in Banks) Karachi, whereby appellant named above, has been convicted for offence under section 471, P.P.C. And sentenced to R.I. For 12 months and fine of Rs,24,000 or in default R.I. For 6 months. By the same impugned judgment in the same proceedings appellant has been acquitted of offences under sections 380, 420 and 468, P.P.C.
2. ' Briefly stated the relevant facts giving rise to this appeal are that appellant worked as messenger in Allied Bank, Keamari Branch, Karachi. It is the case of the prosecution that appellant obtained cheque book of Account No, SB-273, issued five forged cheques and withdrew total amount of Rs, 11,950 from 1-11-1984 to 6-1-1985. Account-holder Mr. Muhammad Mahmood Ahmed had died on 28-1-1984 when fraud was detected. All staff members were interrogated and appellant confessed having withdrawn the amount mentioned above by issuing cheques forging the signatures of deceased account-holder. Appellant repaid to the bank Rs,11,952 which were misappropriated.
3. Manager of the bank branch lodged complaint at the police station, after which investigation was commenced and relevant documents were collected.
4. ' In the trial Court prosecution examined 9 witnesses in support of its case. P.W.1 is Razauddin Ahmed, Manager of the branch, who is complainant in the case. He has stated the facts and produced documents Exhs.2/A to Exh.2/L. P.W.2 Nusrat Ali, Accountant deposed that he had issued cheque book, which was taken away by Noor Muhammad P.W.3 Abdul Hamid is gunman in whose presence appellant confessed his guilt. P.W. 4 Amir Hyder Rizvi partly investigated the case and collected some documents.P.W.5 Maqsood Ahmed is son of deceased account-holder and testified that his father died on 28-1-1984 and after obtaining succession certificate from the Court he approached the Manager of the branch who informed him that money had already been withdrawn and there was no money left in the account. PW.6 is Jahanzeb, Cashier in whose presence appellant admitted misappropriation and gave it in writing P.W.7 is Muhammad Nawaz who has presented challan in the Court. P.W.8 is Allah Dita Baloach who partly investigated the case and arrested the appellant. P.W.9 Ali Anwer Chandio also partly investigated the case.
5. ' In the trial Court in his statement under section 342, Cr.P.C. Appellant denied prosecution's allegations including reimbursement to the bank of the amount misappropriated and confession.
6. ' Regional Manager, City Zone of Allied Bank was examined as Court-witness. He stated about the facts of the case and in his presence appellant gave confession in writing. Appellant examined Razauddin as D.W.1, who produced peon book of Keamari Branch. Appellant examined his mother Mst. Sharifan Bibi as D.W.2 who deposed that bank people compelled her son to give confession in writing and no money was taken from her house by her son for reimbursement to the bank.
7. ' We have heard at length Mr. Dewan Bashir Ahmed, Advocate for appellant and Mr. Hazratji for State. It was submitted on behalf of the appellant that P.W.5 Maqsood Ahmed son of deceased account-holder stated in his evidence that he had made an application with request to close the account of his father for the reason that he had expired and that application was not brought on the record from which an adverse inference can be drawn that some other officer was involved and the appellant was made scapegoat. Contention is untenable for the reason that Maqsood Ahmed was cross-examined on behalf of the appellant and no such question was put to him as to what were the contents of that application and whether any other officer was involved. No such plea has been taken by the appellant in his 342, Cr.P.C. Statement or in his defence. It was then contended on behalf of the appellant that no evidence was produced by the prosecution to show how appellant was identified as culprit. In this regard record shows that P.W.1 Razauddin Ahmed stated that after Maqsood Ahmed approached him he checked the record and found the cheques having been encashed and then he made enquiries into the matter, suspected appellant after having examined writing of application for issuance of cheque book Exh.2/D. Appellant made confession in writing in presence of several witnesses. P.W.3 Abdul Hamid Gunman also deposed that appellant made confession in writing Exh.2/I in his presence. He also stated that appellant went home and brought money which he paid to the bank for the amount misappropriated by him.
8. Similar statement is made by P.W.6 Jahan Zeb, Accountant. Then there is statement of Akhtar Ali Khan, Regional Manager who rushed to the spot and conducted inquiry in which appellant admitted his guilt and reimbursed the amount misappropriated by him. There is nothing adverse in the cross-examination of these witnesses to show that they were motivated to implicate appellant falsely. In their evidence there appears no animus against appellant nor it is alleged.
9. ' It was next argued on behalf of the appellant that confession in writing of the appellant is not a statement recorded under section 164, Cr.P.C. But is a statement recorded before person of authority as such as contemplated under Article 37 of Qanun-e-Shahadat, it can be disbelieved on the ground of inducement, threat or promise. In support of the proposition reference was made to two reported cases, which are distinguishable and do not apply to the facts of this case. In Pehlwan and others v. State PLD 1975 Kar. 84 it was held that extra-judicial confession was evidence of weakest kind and the Courts always insist upon knowing precise words of confession. In the evidence witness could not say which of four appellants told him that they had committed murder of Ismail. In the case of Muhammad Aslam and others v. State 1983 P Cr. L J 844, it was held that extra-judicial confession of accused being in direct conflict with extra-judicial confession of co- accused was liable to be excluded. In the instant case confession was made before C.W. No,1 Akhter Ali Khan who is Regional Manager of the Bank. According to his evidence, he suspected appellant and during questioning in presence of several witnesses appellant admitted his guilt when his handwriting in the application Exh.2/D for issue of cheque book was shown to him. In this context evidence of PW.1 Razauddin Ahmed, who is Manager of the branch, is that when he examined the writing on Exh.2/D, he came to the conclusion that it was writing of appellant Arshad Mahmood with which he was familiar. This witness produced two other applications in the handwriting of appellant Exh.2/H and Exh.2/H-1. After making comparative study of handwriting in these applications he sent for the appellant who admitted his guilt of having made application Exh.2/D with forged signature of account- holder and then obtaining the cheque book and encashing five cheques, in consequence of which he had withdrawn the amounts. Evidence of Akhter Ali Khan and Razauddin Ahmed is consistent that appellant admitted his guilt in presence of several witnesses, gave confession in writing and reimbursed the amount. C.W.1 Akhter All Khan stated in his evidence that they had not given any threat, inducement or promise to the appellant but he had told the appellant that if he refunded the amount it was possible that the same could be taken into consideration for dealing with him leniently. This was done after appellant already wrote out his confession. C.W.1 Akhter All Khan was not cross-examined on the point that assurance made above was given to the appellant before he wrote out the confession. Similarly Razauddin Ahmed was Manager of the branch and the appellant was working directly under him and his statement is similar to that of C.W.1 Akhter All Khan but no such question was put to Razauddin with regard to the promise. Razauddin has stated in the cross-examination that no threat, inducement or promise was given to the appellant and he had voluntarily given confession Exh.2/I. In his statement under section 342, Cr.P.C. When question was put to him with regard to his written confession Exh.2/I, appellant in answer admitted having signed the said confession but stated that same was written by him under duress. He did not say anything about promise made to him.
10. Appellant was asked further in his 342, Cr.P.C. Statement to say anything or add anything to what had already been stated by him, he did not do so and examined his mother Sharifan Bibi. She stated that she was asked by her son to come to the bank and when she came there saw some people sitting there asking her son to write confession and he wrote the confession. Thereafter people in the bank told her to go away and she went away. In the cross-examination she stated that she was employed in Clifton and went there in the morning at 8-00 a.m. And returned at 2-00 p.m., while her son worked in the bank in Keamari. From the appraisal of evidence we are satisfied that the case against the appellant stands proved. Appellant is a messenger in the branch of the bank and none from other Officers and persons working in the same branch and for that matter even Akhter Ali Khan has any motive for falsely implicating the appellant. Appellant also has not suggested any enmity to these witnesses in their cross-examination. Appellant has admitted his guilt in writing and he has reimbursed amount misappropriated by him. Appellant has not stated any plausible reason in his 342, Cr.P.C. Statement or in his defence plea for his false involvement in the case.
11. ' It was submitted on behalf of the appellant that statement of appellant was not recorded in the trial Court on oath as contemplated under section 340(2), Cr.P.C. It was further argued that as per provision of law mentioned above it was mandatory for the trial Court to have recorded statement on oath of accused in the trial Court and the non-compliance would amount to illegality which cannot be cured under section 537, Cr.P.C. At this stage it would be pertinent to point out that prior to the latest amendment, section 340(2), Cr.P.C. Contemplated that any person accused of an offence shall be a competent witness for the defence and may give evidence on oath in disproof of the charges or allegations made against him. One prerequisite in the proviso was that he shall not be called as a witness except on his own request. Intention was very clear that it was mandatory for the Court to ask question to the accused whether he wanted to give evidence on oath in his defence and at the same time it was optional for the accused whether to give evidence or not. If he refused to give evidence or declined, then there was no compulsion on him. Then amendment came on 21-2-1985 by which section 340(2), Cr.P.C. Was substituted by Code of Criminal Procedure (Amendment) Ordinance XII of 1985. Now after amendment section 340(2), Cr.P.C. Contemplates that an accused person shall, if he does not plead guilty, give evidence on oath in disproof of charges or allegations made against him. Prerequisite in the proviso as was available before amendment to the effect that accused shall not be called as a witness except on his own request is omitted and is conspicuous by its absence after amendment. It is contended that now after amendment in section 340(2), Cr.P.C. It is mandatory for the Court to examine the accused on oath and mandatory for the accused to be so examined without any option available to him to wriggle out of it. Question now arises as to what will be the consequence, if the trial Court has not examined accused on oath. On this point there is conflict in the case-law as to what will happen if there is noncompliance of section 340(2), Cr.P.C. As it now stands. It would be worthwhile to mention here that Article 13(b) of the Constitution of the Islamic Republic of Pakistan provides that no person shall, when accused of an offence, be compelled to be a witness against himself. Now we examine the case-law on this point in view of legal position.
12. ' In the case of Muhammad Siddique and another v. State PLD 1983 FSC 173 section 340(2), Cr.P.C.
13. Came under consideration vis-a-vis Article 13 of the Constitution and it was held that accused was a competent witness for defence but option lay with him to depose on oath as a witness or not.
14. This was so decided for the reason that section 340(2), Cr.P.C. Provided option to the accused and the latest amendment came subsequently in that provision in 1985. With regard to the Article 13 of the Constitution it was observed by the Federal Shariat Court that it was well-recognized principle of Islamic Criminal Jurisprudence that no one can be compelled to be a witness against himself and in that particular case under consideration before the Federal Shari at Court the question of compulsion did not arise because accused in that case had himself requested in writing to be allowed to appear as his own witness in his defence and the trial Court had turned down his request. It was further observed that in such circumstances Article 13 of the Constitution would not come in the way as accused wanted to exercise the right which was conferred upon him under section 340(2), Cr.P.C.
15. ' In the case of Mst. Sultan Zari v. State 1986 P Cr. L J 1723 Federal Shariat Court held in the judgment dated 6-6-1985 that the duty of the Court ended if question is put specifically whether accused wanted to produce evidence in defence and the accused did not say that he or she intended to give evidence on oath then the accused failed to assert the right to be examined on oath. Article 13 of the Constitution is not noticed in this judgment.
16. ' In the case of Abdul Malik v. State PLD 1985 FSC 293, which was decided on 9th June 1985, Federal Shariat Court held that it was the duty of the accused to exercise this right by pleading before the Court that he intended to give evidence on oath. At the time of recording his statement under section 342, Cr.P.C. a specific question was put to him whether he would give evidence which was sufficient compliance. It was pointed out in the said judgment that latest amendment in section 340(2), Cr.P.C. Came into force on 21-2-1985 and trial had concluded on 19-2-1985 and in any case accused did not ask and apply to the Court that he intended to give evidence on oath. In spite of the opportunity if the accused does not choose to exercise his right under section 340(2), Cr.P.C. As amended by Ordinance XII of 1985, no irregularity shall be deemed to have been committed by the Court. In the said judgment there is no mention about Article 13 of the Constitution, may be for the reason that such question was not raised.
17. ' In the case of Rizwan v. State PLD 1986 Lah. 222, Qurban Sadiq Ikram, J. Has made a detailed analysis of section 340(2), Cr.P.C. Before and after amendment of 1985 and has considered the question whether amendment would apply with retrospective effect or not. At page 231 of the report in paragraph 7 the third and the last contention is mentioned which is to the effect that mandatory provisions of subsection (2) of section 340, Cr.P.C. Were not complied with by the trial Court. Learned Judge has discussed this point in sufficient detail with case-law and at page 236 of the report concluded as under:- "In my humble view the provisions of section 340(2), Cr.P.C. As amended by Ordinance XII of 1985 could not be given retrospective effect. In the amendment introduced by Law Reforms Ordinance the accused was given option to be or not to be a witness in his own defence. The occurrence in this case took place before the amendment of 1985. The trial against Rizwan petitioner was to be held according to the Code of Criminal Procedure as amended by the Law Reforms Ordinance which gave an option to the accused to be or not to be a witness in his own defence. The accused, if so desired could have appeared as witness to make statement on oath during the trial. It was not necessary for the Court to ask him a specific question if he wished to appear in his own defence or not. This view is supported by the judgment in Abdul Malik v. State PLD 1985 FSC 293."
18. So far Article 13 of the Constitution is concerned it was also held in the above-mentioned Lahore judgment that section 340(2), Cr.P.C. Was not ultra vires of Article 13(b) of the Constitution of Pakistan for the reason that subsection (2) of section 340, Cr.P.C. Does not compel the accused person to be a witness against himself but only makes an accused person to make statement on oath in disproof of charges or allegations against him.
19. ' In the case of Mst. Ameer Khatoon v. Faiz Muhammad and others 1986 SCMR 1182, Supreme Court of Pakistan vide order dated 9th February, 1986 has granted leave to appeal for consideration of the following questions:- "(i) That whether amended section 340(2), Cr.P.C. And Article 44 of the Qanun-e-Shahadat Order, 1984, have retrospective effect?
(ii) That whether the conflict of authority as appearing from the case law cited is reconcilable? And
(iii) That whether laws relied upon by the petitioner have changed a basic principle of criminal jurisprudence namely that the prosecution shall prove its case and the accused would not be burdened with the proof of his innocence in such a way that accused now be burdened with some responsibility to reach the truth regarding his guilt or innocence."
20. ' In the case of Saeedullah alias Bacha v. State 1938 P Cr. L J 19, it is held by Division Bench of Peshawar High Court vide judgment dated 27-10-1987 that duty of the Court was only to ask the accused if he would enter upon his defence and then leave it to him to elect to appear as a witness or not and no irregularity or illegality would be committed if the trial Judge did not record statement on oath if accused was given an opportunity and he declines to give statement on oath.
21. There is also abundant case-law in favour of proposition that after amendment of 1985, under section 340(2), Cr.P.C., it is mandatory for the Court to record statement of accused on oath in dispr000f of charges or allegations made against him and non-compliance is not an irregularity curable under section 537, Cr.P.C. Reference can be made to the case of Muhammad Qasim v.
22. State PLD 1986 Quetta 286. In Jan Muhammad v. State 1987 P Cr. L J 2302, it is held that such omission is an illegality not curable under section 537, Cr.P.C. Apart from these reported cases mentioned above there are unreported cases of our own High Court, which support the view that after amendment of 1985, under section 340(2), Cr.P.C. it is mandatory for the Court to record statement of accused on oath and non-compliance thereof would amount to the illegality which is not curable under section 537, Cr.P.C. Reference can be made to the judgments in the cases of Jan Muhammad v. State (Cr. Appeal No, 86 of 1985), in which the Division Bench to which the question was referred by learned single Judge answered the question in affirmative consistent with proposition stated above. The other judgment dated 28-1-1988 in the case of Noor Muhammad v.
23. State in Criminal Appeal No, 214 of 1987 is delivered by Division Bench of this Court, supporting the same view.
24. Having considered the case-law reported as well as unreported in support of both the views on the point at issue as stated above, I endorse the view taken by Qurban Sadiq Ikram, J. In the Lahore case of Rizwan v. State PLD 1986 Lah. 222, which is to the effect that amendment of 1985 to section 340(2), Cr.P.C. Would not apply with retrospective effect and in such case it was not necessary for the Court to ask a specific question if accused wished to appear in his own defence or not. My reasons for this view are as under:--
1. That section 340(2), Cr.P.C. As it now stands is not in conflict with Article 13(b) of the Constitution for the reason that the section 340(2), Cr.P.C. Does not contemplate and intend accused to be a witness against himself. On the other hand facility is given to the accused to appear as a witness for himself. In the said provision there is no element of compulsion that accused must depose against himself. If accused wants to confess his guilt, he could always do so under section 164, Cr.P.C. Or he could make admission in his statement under section 342, Cr.P.C. Regardless of amendment of 1985. Even now after the amendment if statement of accused is recorded on oath he could deny the prosecution allegation.
25. ' There is apparent and noticeable difference in section 340(2), Cr.P.C. Before amendment of 1985 and after. Before amendment the said provisin contemplated that accused shall be a competent witness for his defence and it was optional for him to exercise that right or not. After amendment the position has become different for the reason that now it is mandatory for the Court to record statement of accused on oath and it is further mandatory for the accused to have such statement recorded on oath. The option previously available is no more available now. In such circumstances provision before the amendment was indisputably beneficial to the accused and created a right of valuable option in his favour; of which he is deprived after the amendment. It is held in the case of Adnan Afzal v. Captain Sher Afzal by the Supreme Court of Pakistan PLD 1969 SC 187 that amendment would not operate retrospectively if it touches the right in existence at the time of passing of legislation. In the instant case cheques were encased and amounts were misappropriated from 1-11-1984 to 6-1-1985 and amendment to Section 340(2) Cr. P C came into force on 21-2-1985 as such this case would be governed by the provision before the amendment.
26. Since it was optional for the accused at the relevant time to have his statement recorded on oath, no prejudice is caused to him if no such question was put to him specifically by the trial Court for the reason that he was asked in his 342, Cr.P.C. Statement, whether he wished to add anything to what he had already stated and whether he wished to lead any defence. Appellant in this case examined his mother as defence witness and did not say that he wanted to examine himself on oath. In the circumstances there is substantial compliance because amendment would not be applicable with retrospective effect in the instant case.
3. I am also of the view that amendment to Section 340(2) Cr. P C which has come into force on 21- 2-1985 would apply with full force to all the cases in which incidents have taken place after 21-2- 1985. The language used in the said provision after amendment makes it distinctly and abundantly clear that the intention is to make it mandatory for the trial Court to record evidence on oath of accused and at the same time it is mandatory for the accused also to have his statement so recorded on oath. Accused has no option but has to make statement on oath and it is upto him to say whatever he likes in that statement. If he wants to , he can defend himself on oath or in the other case he may simply say that he wants to adopt the statement as is given by him in 342, Cr.P.C. Statement. In the said provision word "shall" is used in such a way that no other meaning can be assigned to it except that the legislature has intended that it is mandatory for the trial Court to record the statement of accused on oath invariably in each case and also at the same time it is mandatory for the accused to have his statement on oath so recorded. Non-compliance with this mandatory provision is not curable under section 537, Cr.P.C.
4. Now the question arises as to when, where and how question is to be put by the trial Court to the accused with regard to his statement on oath. Sections 340 and 342, Cr.P.C. Are contained in Chapter XXIII of Criminal Procedure Code and statement under section 342, Cr.P.C. Is normally recorded after whole, prosecution case is brought on the record and then opportunity is given to the accused to explain circumstances and evidence against him in the prosecution case. That is the proper stage when accused could express his willingness to examine witnesses in defence. It is the duty of the prosecution to prove its case against the accused beyond any doubt and this burden remains unshifted on the prosecution regardless of the amendment under discussion. In my opinion that is the proper stage and after recording statement under section 342, Cr.P.C. At the end of that statement, the trial Court can administer oath to the accused and proceed to record his statement and ask him a question as to what he has to say on oath with regard to the prosecution case. After that accused can answer the question in whatever manner he likes.
27. ' For the facts and reasons mentioned above I uphold the impugned judgment in this case. So far the question of sentence is concerned the learned trial Judge has already awarded minimum possible sentence of one year for offence under section 471, P.P.C. Which is scheduled offence and such minimum limit of sentence of one year is prescribed in second schedule of the said Ordinance. So far the fine is concerned requirement specified in Section 6 of the relevant Ordinance is that the Special Court on conviction in offence in respect of specified amount shall impose fine not less than twice the said amount. In view of these statutory limitations no further indulgence can be made even on compassionate grounds. However appellant is entitled to the benefit under section 382-B, Cr.P.C., which he can take if he has remained in custody during the trial proceedings for any specific period.
28. ' In the result I dismiss the appeal.
29. ' SALEEM AKHTAR, J.-- I had the privilege to read the judgment proposed by my learned brother Sajjad Ali Shah, J. And with respect I express my inability to agree with it. The facts of the case have been stated by my learned brother and I need not repeat them. The appellant was tried for committing offence punishable under sections 380, 420, 468 and 471, P.P.C. The learned Tribunal held that except for the charge under section 471, P.P.C. That the appellant has used five cheques knowing or having reasons to believe that the said cheques were forged, and dishonestly obtained Rs,11,952 from the account of the deceased Muhammad Ahmed acquitted him in charges under section 380, 420 and 468, P.P.C. The learned Tribunal observed as follows: "There is, however, no tangible evidence whatsoever to establish that the accused stole the cheque book of the series 219951-219960, or that he forged the signatures, on the requisition slips Exh.2/D and 2/E, or the five cheques Exh.2/F to 2/F-5, or that he made any misrepresentation or committed any act of cheating. It has been admitted by Accountant Syed Nusrat Ali that he had issued the cheque bdok of the series 219951219960 on the application Exh.2/D, and the requisition slip, Exh.2/E, and that he had given the cheque book to the person who had brought the application Exh.2/D. No question of theft of cheque book thus arise. Similarly, there is no positive evidence to establish that the writing on the two applications for cheque book, Exhs.2/D and 2/E, or on the five cheques are of the accused or that the signatures on the said seven documents have been forged by the accused. No handwriting expert has been examined though S.I. Allah Ditta has admitted that he had obtained the specimen writing and signatures of the accused before a 1st Class Magistrate evidently for the purposes of comparison of the said writings and signatures with the writing and signatures on the applications, Exhs.2/D and 2/E, for cheque book and on the five cheques Exhs.2/F- 1 to 2/F-5. No witness has testified that the writing or signatures on the two applications for cheque books or the five cheques are of the accused. Similarly there is no evidence indicating that the accused had practiced any deception or made any misrepresentation to the bank and thereby cheated it."
30. ' The appellant has been convicted for offence under section 471, Pakistan Penal Code and sentenced to R.I. For one year and fine Rs,24,000 and in default of payment to undergo sentence of R.I. For six months. The charge in respect of which the appellant has been convicted is sought to be proved by oral admission of guilt, a written confession Exh.2/1 and that it was corroborated by the refund of the amount by the appellant to Akhter Ali Khan who deposited the same through a voucher.
31. ' I will first take the confession by the appellant in writing. The written confession which is stated to have been made by the appellant in writing is witnessed by P.W. Arshad Mahmood, Abdul Hameed Gumman and Jahanzeb Khan Cashier. It has been reproduced in the impugned judgment. P.W.1 Razauddin Ahmed has stated that he was familiar with the writing of the appellant and after examining the application for issuance of cheque book, he called for the accused and made inquiries in the presence of Mahir Raza, Abdul Hameed and Jahanzeb who admitted his guilt and asked for pardon. He further stated that the appellant admitted that he had written application for withdrawal of the cheque book and forged the signatures on cheques and of his own he wrote out the confession. So far the evidence regarding writing of application for issuance of cheques and forging signature on the cheques are concerned they have been disbelieved. P.W.1 claimed to be familiar with the writing of the appellant which he came to know by looking to his two applications produced during the trial. The appellant was not holding such a position where he was to write documents, prepare drafts or accounts books which P.W.1 had the occasion to see regularly and thus become familiar with his writing. On the basis of two applications he cannot claim to be familiar with the handwriting of the appellant. Therefore, the basis on which the appellant was called upon by P.W.1 has been rightly disbelieved by the trial Court. P.W. 1 does not speak of the presence of the Court witness Akhtar Ali Khan at the time when the appellant wrote the confession.
32. This witness (C.W.1) has stated that the Branch Manager i,e, P.W.1 told him about the defalcation of Mahmood Ahmed's account and further that he suspected the appellant. On receiving this telephone call he immediately rushed to the branch and questioned the appellant in the presence of P.W.1, Mahir Raza, Jahanzeb and Abdul Hameed Gunman. He then orally admitted to have committed the offence. He was then asked to refund the amount which he had misappropriated.
33. The appellant took Akhtar Ali Khan and Mahir Raza to his house and handed over Rs,11,952 to him.
34. They came back and deposited the money in the bank by voucher Exh.2/J. He has further stated that after the money was deposited he asked the appellant to put in writing what he had orally confessed. On this the appellant voluntarily in his presence and in the presence of P.W. Razauddin, Jahanzeb, Abdul Hameed Gunman and Mahir Raza wrote the confession Exh.2/I. From the statement of P.W.1 it seems that confession Exh.2/1 was written at the time when he was making inquiries but this is completely contradicted by the Akhtar Ali. Jahanzeb and Abdul Hameed state that in their presence the appellant wrote out the confession in the presence of Akhtar Ali Khan.
35. Therefore, except P.W.1 all the P.Ws. Who have signed the written confession as witness state that it was written in the presence of Akhtar Ali Khan, who has deposed that the appellant wrote the confession after he had recovered the amount from him and the same had been deposited by him (Akhtar Ali Khan) in the bank. The deposit slip Exh.2/J is dated 3-3-1985. The written confession is dated 2-3-1985. Therefore, according to his own statement the written confession could not have been made by the appellant on 2-3-1985. This makes the entire exercise of obtaining written confession and refund of amount contradictory and suspicous. An extra judicial confession must be proved by evidence of unimpeachable character free from contradictions and infirmities which may discredit its reliability. It must be invulnerable. Reference can be made to Rehazan v. State PLD 1960 Lah.
24. Conviction on an extra-judicial confession can be based if it is corroborated by evidence of unimpeachable nature. It should be proved to be voluntary and true. It is well-settled rule that unless the retracted confession is corroborated in material particulars, conviction cannot be based on its strength alone. See Puran v. State AIR 1953 SC 459. The Court must look to all the facts and circumstances to ascertain that the retracted confession is true. No hard and fast rule for determining the extent of such corroboration can be laid as it mostly depends on the facts of each case. The consensus, however, seems to be that the corroboration must be on material facts connecting the accused with the offence. Examining the written confession in the light of these principles it is clear that it has not been corroborated byl independent witnesses or unimpeachable evidence. Furthermore part of the confession viz. The obtaining of cheque book has not been believed. The refund of Rs,11,950 as discussed later has not been established by cogent and convincing evidence. Therefore, the entire evidence sought to corroborate the written confession is contradictory, infirm and not reliable.
36. ' Mr. Deeewan Bashir Ahmed the learned counsel for the appellant has contended that the confession was obtained from the appellant by intimidation and false promise. Akhtar Ali Khan admitted as follows: "We had not given any threat or inducement or promise to the accused, but I had told the accused that if he refunds the amount it is possible that the same could be taken into consideration for dealing with him leniently."
37. ' According to C.W.1 the confession in writing was made before him. He being a Regional Manager was a person with authority and had made promise to deal leniently. It has been contended that the promise was made by Akhtar Ali Khan. C.W. After the appellant had written the confression and further that this witness was not cross-examined on this aspect. I do not agree with this contention as Akhtar All Khan has nowhere stated he promised to deal leniently after the appellant had written the confession. From the above-quoted statement it is obvious that the promise was made before the alleged 'refund. And according to Akhtar Ali Khan the appellant wrote after he had refunded the amount and the same had been deposited in the bank. It, therefore, cannot be concluded that Akhtar Ali Khan made promise after the confession had been written by the appellant. From the evidence it is clear that promise was made before the confession was written and therefore, it cannot be relied upon. There are material contradictions and discrepancies which have neither been reconciled nor explained. It would be a mistake to hold that the written confession was voluntary as no question was put to P.W.1 with regard to the promise made to the appellant. The promise was made by Akhtar Ali Khan and not by Razauddin Ahmed (P.W.1). In any case in cross- examination he was asked and he denied that any threat, inducement or promise was made to the appellant. Merely because the appellant in his statement under section 342, Cr.P.C. Has stated that the confession was made under duress and no allegation has been made that any promise was made to him, the confession does not become admissible and reliable. In view of the discrepancies in the statement of P.Ws. And C.W. Their corroborative value is lost and no reliance can be placed on the written! Confession.
38. ' So far oral confession is concerned it is based on the evidence of persons who are employees of the Bank. P.W.1 is the Manager of the Branch who should have been responsible for the defalcation in the account. He seems to have extracted out the confession orally as well as written as stated by him. Part of the statement of P.W.1 in respect of oral confession relating to obtaining the cheques, forging documents and signing cheques has not impressed the learned Tribunal and that part of the confession has not been accepted for valid reasons. Therefore, the second part of the evidence which is a corollary and direct result of the rejected testimony cannot be believed.
39. ' Oral confession can be proved by unimpeachable evidence of independent witnesses who must state substantially the words of oral confession' made by an accused. The witness produced by the prosecution cannot be termed as independent witnesses particularly P.Ws. 2, 3 and 6. Part of oral confession as stated by P.W.1 has not been accepted. He has stated that confession was made in presence of Mahir Raza, P.W.3 and P.W.6. P.W.1 does not name Akhtar Ali Khan (C.W.1) whereas he has stated that on receipt of telephone call he came and interrogated the appellant who confessed. There is, therefore, apparent contradiction. P.W.2 has made a general and sweeping statement that the appellant admitted his guilt before the staff. P.W.3 stated that the appellant admitted having withdrawn the amount from the account. He went home brought the said amount and delivered to C.W.1 in the office.
40. ' This later part is completely contradicted by the statement of C.W.1 who stated that he and Mahir Raza went to the appellants house who took out the money and gave to him. In the face of such a contradiction how can reliance be placed on his evidence. P.W.6 does not speak of oral confession.
41. C.W.1 has also made a general' statement that when the appellant was shown his handwriting he admitted the offence. This statement can hardly prove oral confession. This is the entire evidence of the prosecution to prove oral confession. The general statement by P.Ws. Contradictions and infirmities as pointed out tend to impair the value of the evidence and lead to its rejection.
42. ' A confession, oral of in writing must be taken and considered as a whole including the inculpatory as well as the exculpatory part. The Court is, however, competent to believe or disbelieve one part of the confessional statement and P disbelieve the other part provided there is other credible evidence in the case. Reference can be made to Sattar v. Emperor AIR 1945 Lah. 91 Nihal Sing v.
43. Emperor AIR 1940 Lah. 157 Emperor v. Namus AIR 1941 All.
44. 145.
45. ' Monir in the Law of Evidence (Edited by Shaikh Abdul Halim), Vol. 1 at page 205 observed as follows:- "The rule that a confession must either be accepted or rejected in its entirety applies only to those cases where there is no other evidence in the case, or where the other evidence is untrustworthy and the only material for decision is the confession."
46. In the present case except the retracted confession there is no other trustworthy evidence to prove the charges. If only confessional statement has to be relied upon then it has to be read in entirety and as a whole. The first part of this statement relating to obtaining the cheques and forging signature has not been believed. Therefore, the other part regarding withdrawal of the amount through those cheques cannot be believed. For these reasons no reliance can be placed on the confessional statement oral or in writing.
47. ' Now the other part of the evidence i,e, recovery is to be considered. Akhtar Ali Khan stated that he went with the appellant at his house alongwith Mahir Raza. The appellant took out the money from an Almirah in his house and handed it over to him which he delivered in the Bank and it was deposited. According to P.W.3 the appellant went home, brought the money misappropriated by him and delivered it to C.W.1 in the office. There is, therefore, material contradiction in the statement of both these witnesses. The recovery is claimed to have been made on 2nd March, 1985 and according to Akhtar Ali Khan (C.W.1) it was deposited in the Bank on the same date. This statement stands contradicted by the deposit voucher Exh.2/J which is dated 3-3-1985 and no explanation has been offered by the prosecution. Mahir Raza has been examined. The alleged refund by the appellant is suspicious and has not been proved. It is pertinent to note that according to prosecution the appellant had made confession on 2-3-1985 and refunded the amount but report to the police was made on 4-3-1985.
48. ' This delay has not been explained. It seems that after P.W.1 and C.W.1 had manoeuvred the deposit on 3-3-1985 the report was lodged the following day. IT ' The learned Tribunal has considered the statement of D.W. Sharifan Bibi mother of the appellant as a corroborative piece of evidence on the ground that in her presence the people at the bank asked the accused to write something whereupon the accused wrote out the confession.
49. ' D.W.2 is the mother of the appellant who is 70 years old. She seems to be a poor illiterate old woman. Merely because the appellant wrote something when his mother was present in the bank does not lead to the conclusion that the writing was made voluntarily free from intimidation and promises. Considering the age and the status of P.W.2 her presence at the time of writing the confession cannot, in my opinion improve the prosecution case and cannot be treated as a corroborative piece of evidence particularly when the appellant is stated to have written the confession at the behest of persons surrounding him and under duress. In fact it was not necessary for bank officers to have called her at the bank The entire prosecution evidence is silent as to how D.W.2 came to the bank. Her statement that she was called by someone from the bank who had come alone has not been challenged in cross-examination. Therefore, the fact that old mother of the appellant was called at the bank lends support to the contention that her presence was required, merely to pressurise, intimidate and embarrass the appellant, and coerce him to write the confession otherwise, the presence of an illiterate old lady of 70 years was not at all necessary.
50. Was she called merely to witness the execution of confession by her son. The purpose to call her in the bank was to humiliate and embarrass the appellant and his mother.
51. ' The learned Tribunal has relied upon Exh.3-A-1 being an entry in the cheque book issue register regarding issuance on 7-11-1984 of the cheque book and Exhs.2/F-1 to 2/F-5 five cheques as corroborative evidence to prove the confession. Exh.3/A-1 proves that the cheque book was issued to one Noor Muhammad. There is no evidence to show that the appellant had signed as Noor Muhammad. The five cheques which were encashed do not bear the signature of deceased made by the appellant. Therefore, these documents do not connect the appellant with the crime.
52. ' A corroborative piece of evidence produced to prove a confession must directly connect the accused with the crime. Exh.3/A-1 and Exhs.2/F-1 to 2/F-5 do not connect the appellant with the crime. It, therefore, cannot corroborate the confessional statement. The impugned judgment therefore, cannot be upheld.
53. ' It has been contended that the learned Tribunal has not complied with the provision of section 340(2), Cr.P.C., and that it violates Art. 13(b) of the Constitution. My learned brother has dealt with these contentions at some length. In my view, as for the aforesaid reasons the appeal should be allowed, I do not wish to express my opinion on these issues and keep them open for decision in any other appropriate matter.
54. ' I, therefore, allow the appeal and set aside the conviction. The appellantty be set at liberty if not required in any other case.
55. ' The appeal is allowed.
56. ' AJMAL MIAN, C.J.-- Since there was a difference of opinion between my learned brothers Sajjad Ali Shah, J. And Salcem Akhtar, J, the then Chief Justice had referred the case to me for decision.
2. The facts leading to the filing of the above appeal have been succinctly stated by my two learned brothers in their separate opinions-However, it will suffice to observe that the appellant was working as a messenger in Messrs Allied Bank Keamari Branch (hereinafter referred to as the Branch). It was alleged that after the account-holder Muhammad Mahmood Ali, whose Acconnt No, was SB273, (hereinafter referred to as the deceased account-holder), had died on 28-1-1984 the appellant obtained cheque book on the basis of a forged application and thereafter forged five cheques and withdrew a sum of Rs,11,950 during the period from 1-11-1984 to 6-1-1985 on various dates the detail of which is as follows:- Date Cheque No.Amount.
57. 10-11-1984219951 Rs. 6,700 15-11-1984219952 Rs. 2,500 26-11-1984219954 Rs. 1,500 02-01-1985219955 Rs. 1,000 05-02-1985219956 Rs. 250 ' It was further alleged that when Maqsood Ahmad son of the deceased account-holder produced a succession certificate Exh.2/B, P.W.1 Razauddin Ahmad the Manager checked the ledger and found that the cheques had been withdrawn from the aforesaid account and encashed after the date of the death of the deceased account-holder. It was also alleged that above P.W.1 Razauddin Ahmad on the basis of his being conversant with the handwriting of the appellant suspected him of having committed the above forgeries, called him, whereupon he allegedly made extra-judicial confession, oral as well as written, before him and P.W.3 Abdul Hamid Gunman, P.W.6 Jahanzeb cashier and C.W.1 Akhtar Ali Khan, the Regional Manager, City Zone, Karachi. The appellant was charged under sections 380, 420, 468 and 471, P.P.C. In support of the above case prosecution examined nine witnesses. The Court examined two witnesses as Court-witnesses and the appellant examined two witnesses as defence witnesses. In his 342, Cr.P.C. Statement the appellant stated that he had been falsely implicated in the case and the confessional statement was obtained from him by force. The learned Presiding Officer Special Court (Offences in Banks) as regards the charges under sections 380, 420 and 468, P.P.C. Recorded the following finding: "There is, however, no tangible evidence whatsoever to establish that the accused stole the cheque book of the series 219951-219960, or that he forged the signatures, on the requisition slips Exhs.2/D and 2/E, or the five cheques Exh.2/F to 2/F-5, or that he made any misrepresentation or committed any act of cheating. It has been admitted by accountant Syed Nusrat All that he had issued the cheque book of the series 219951219960 on the application Exh.2/D, and the requisition slip, Exh.2/E, and that he had given the cheque book to the person who had brought the application Exh.2/D. No question of theft of cheque book thus arise. Similarly, there is no positive evidence to establish that the writing on the two applications for cheque book, Exhs.2/D and 2/E, or on the five cheques are of the accused or that the signatures on the said seven documents have been forged by the accused. No handwriting expert has been examined though S.I. Allah Ditta has admitted that he had obtained the specimen writing and signatures of the accused before a 1st Class Magistrate evidently for the purposes of comparison of the said writings and signatures with the writing and signatures on the applications, Exhs.2/D and 2/E, for cheque book and on the five cheques Exhs.2/F- 1 to 2/F-5. No witness has testified that the writings or signatures on the two applications for cheque hook or the five cheques are of the accused. Similarly there is no evidence indicating that the accused had practised any deception or made any misrepresentation to the Bank and thereby cheated it."
58. ' However, the appellant has been convicted for the offence under section 471, P.P.C. And has been awarded sentence of one year's RI and fine for Rs,24,000 in default to undergo sentence of six months' R.I. Being aggrieved by the above judgment, dated 12-12-1987 passed by the learned Presiding Officer, the appellant has filed the above appeal. When it was heard by a Division Bench, my learned brother Sajjad Ali Shah, J was of the view that the above retracted extra judicial confession coupled with the corroborative material on record was sufficient to sustain the judgment, whereas my learned brother Saleem Akhtar, J. Took the view that retracted extra-judicial confession in the instant case is not sufficient to maintain the conviction and sentence because of infirmities in the above extrajudicial confession.
3. I have heard Mr. Dewan Bashir Ahmad, learned counsel for the appellant and Mr. Hazratji learned counsel for the State. It seems to be an admitted position that the conviction is solely based on retracted extra-judicial confession, the corroboration of which is sought by the evidence of P.W.1Razauddin Ahmad, the Manager of the Branch, P.W.3 Abdul Hamid Gunman,i P.W.6 Jehanzeb Cashier and C.W.1 Akhtar Ali Khan, Regional Manager.
59. ' The glaring fact in the instant case is that though the appellant was an employee working in the Branch but none of the witnesses produced by the prosecution has stated that the appellant had obtained the cheque book or had drawn any of the five cheques. If factually the appellant would have obtained the cheque book and would have drawn the above five cheques by forging the signature of the deceased account-holder, the above fact would have been knownto the Accountant and the Cashier. The prosecution has not even attempted to prove the handwriting of the appellant on Exhs.2/D and 2/E, that is, the application for issuing of a new cheque book on the plea that the previous was A lost and form`B' for issuing of the cheque book respectively. Because of the above glaring fact, the learned Presiding Officer has rightly held that there is nothing on record to connect the appellant either with the factum of obtaining of the cheque' book on forged application or drawing of five cheques on forged signature. Keeping in view the above fact if we examine the retracted extra-judicial confession, the same does not inspire confidence as to sustain conviction solely on the above basis. In the above retracted extra-judicial confession Exh.2/1, which has been reproduced by the learned Presiding Officer in the judgment under s appeal, the factums of obtaining the cheque book and forging the five cheques have been allegedly admitted by the appellant but this portion of the confession has not been believed by the learned Presiding Officer. According to C.W.1 Akhtar Ali Khan, on receipt of a telephonic message about the above defalcation he rushed to the branch accompanied by another officer Mahir Raza where he allegedly in presence of P.W.1 Razauddin, Mahir Raza, P.W. Jehanzeb Cashier and P.W.
60. Abdul Hamid Gunman, questioned the appellant whereupon the appellant first denied of having committed any offence but when was confronted with the handwriting, he allegedly admitted of having committed the offence and thereafter took the above C.W.1 and Mahir Raza to his house and from an Almirah, he took out full amount which he had misappropriated and handed over the same to him which amount was deposited through voucher Exh.2/J. The above witness goes on to say that he asked the appellant to put in writing what he had orally confessed, whereupon the appellant voluntarily in presence of Manager Razauddin, Jehanzeb, Mahir Ran and Gunman Abdul Hamid wrote out confession Exh.2/I. He has further stated that they had not given any threat, inducement or promise to the accused but he told the appellant that if he would refund the amount it was possible that the same could be taken into consideration for dealing with him leniently. The above version seems to be in conflict with the testimony of P.W.3 Abdul Hamid who has deposed that the appellant after admitting the fact of having withdrawn the amount from the account of the deceased account-holder through forged cheques went home and brought with him money which had been misappropriated by him. The appellant in his 342, Cr.P.C. Statement has denied the factum of having refunded the above amount.
61. ' I am inclined to hold that on the basis of the state of evidence on record, B B it is very much doubtful whether factually the appellant had refunded the above amount. The view which I am inclined to take is supported by the fact that the appellant had allegedly withdrawn a sum of Rs,6,700 on 10-11-1984, Rs,2,500 on 15-11-1984, Rs,1,500 on 26-11-1984, Rs,1,000 on 2-1-1985 and Rs,250 on 5-2-1985. It is highly improbable that he would not have spent any of the above amounts even after the lapse of nearly four months and would have kept the entire amount intact in Almirah in his house. The appellant was merely a messenger and, therefore, normally he would have spent at least some of the amount. There is also material discrepancy as to the time of making of the alleged confession. According to C.W.1 Akhtar Ali Khan, he after having received the amount from the appellant at his house deposited the same under voucher Exh.2/J and thereafter the appellant allegedly made the above extrajudicial confession in writing Exh.2/I, but the above documents show otherwise i,e, the alleged written confession was made on 2-3-1985, whereas the amount was deposited on 3-31985. There is also element of inducement on the part of C.W.1 Akhtar All Khan as he had promised the appellant to deal with him leniently if he was to refund the amount which fact is also corroborated by the contents of the alleged confession. It is true that in his 342, Cr.P.C.
62. Statement the appellant has stated that he had written the confession under duress and has not referred to the inducement but in my view the above omission on the part of the appellant is not fatal as an accused person is entitled to raise a plea at the stage of arguments on the basis of proved facts though he might have not raised-such plea in his 342, Cr.P.C. Statement.
63. ' Keeping in view the above discrepancies/infirmities, I am inclined to concur with the view found favour with my learned brother Saleem Akhtar, J. I may observe that it is a settled law that in a criminal case if two views are possible, one which favours an accused person is to be preferred.
4. I may also observe that my learned brother Sajjad Ali Shah, J. Has also dilated upon the effect of the Presiding Officer's omission to call upon the appellant to examine himself on oath under section 340(2), Cr.P.C. And also on the question, whether there is any conflict between Article 13 of the Constitution and the provisions of section 340(2), Cr.P.C. But my learned brother Saleem Akhtar, J. Has not dealt with the above points and has reserved his views thereon. It is, therfore, not necessary for me to dilate upon the same. However, it will suffice to observe that on the question, whether there is any conflict between Article 13 of the Constitution and the provisions of section 340(2), Cr.P.C. a Division Bench of this Court (to which I am a party, namely, in the case of Muhammad Yousuf Zai v. The State reported in PLD 1988 Kar. 539) a contrary view has been taken to the view found favour with my learned brother Sajjad All Shah, J.
5. For the aforesaid reasons, the appeal is allowed and the conviction and sentences are set aside.
64. The appellant shall be released forthwith, unless he is required in some other case.