1. ' ABDUL RASOOL AGHA, J.--This appeal is directed against the judgment dated 25-8-1988 passed by the Presiding Officer Special Court (Offences in Banks) Karachi, hereinafter referred to as Presiding Officer, in case No, 33 of 1987 acquitting co-accused Aijaz Ahmad, Imdad Ali and Khaliq- Dino and convicting the appellant under sections 380, 471 and 477-A P.P.C., accordingly sentencing him to (a) R.I. For one year under section 380 (b) R.I. For one year under section 471 and also to pay a fine of Rs, 10,000 in default of payment of fine to suffer further R.I. For four months and (c). R.I. For one year under section 477-A P.P.C. It is further directed that three substantive sentences shall run concurrently while the sentence in default of payment of fine was to run after expiry of the substantive sentences. The appellant being aggrieved by the above judgment has filed the present appeal. The brief facts leading to the filing of above appeal are that P.W.1 Abdul Sattar Sodagar who was the Manager of Market Area Branch of National Bank of Pakistan addressed a written complaint to the Assistant Director Banking Circle F.I.A., Karachi on 5-7-1987 which reads as under:-- "The above named employee who is posted as an Assistant in Market Area Branch of this Bank and is assigned duty at the receipt counter. During his posting in this branch he by fraudulent means misappropriated an amount of Rs, 4,800 in the following manner.-- 'there are two accounts one bearing number PIS-4615 in the name of Miss Easther and another account number PLS-5133 in the name of Sohrab s/o Tayyab. Miss Easther gave a requisition slip number 08142611 to 08142620 dated 4-8-1986 for issue of fresh Cheque Book containing 10 cheques.
2. This requisition slip was handed over by the account-holder to Mr. Aijaz Ahmed Bukhari, Officer Grade-II, who was the Incharge of Security documents on 4-4-1987. Mr. Aijaz Ahmed Bukhari issued cheque hook number 04622261-270 containing 10 cheques. However, above that entry cheque book number 04622251-260 already stood issued to the same account-holder and that entry is in the hand writing of Mr. Kando. Incidentally, it may be pointed out that on the same date the first entry is on page No,10 of cheque book issue Register and second entry on succeeding page viz page No,11 is the above entry in the handwriting of Mr. Kando. In the requisition slip the number of cheque book issued is that which was issued by Mr. Aijaz Ahmad Bukhari, whereas the cheque book issued by Mr. Kando does not find mention in the requisition slip in question. As per normal procedure the custodian of the Security Documents, in the opening hours of the Bank, takes out some quantity of cheques hooks out of the strong room and keeps the same at his table drawer for convenience.
3. ' It appears that Mr. Kando slipped away one of the cheque books and entered the same in the cheque book issue Register and pocketed it. During that period the employees were taking out demonstrations against the bank management as such the officers were shouldering the entire burden of the banking, without assistance of the lower staff as such the entry made by Mr. Kando appears to have slipped the eye of the concerned officer.
4. ' This is also clear from the fact that although in all 26 cheque books have been issued against page 11 of the Cheque Book issue Register yet the authentication by the officer concerned is only against 22 entries.
5. ' In that situation Mr. Kando succeeded in keeping this entry.
6. ' On the Cheque Book No, 04622251-260, which was fraudulently issued and then retained by Mr. Kando as per his own admission, he did not write the account number of the account-holder on every cheque to whom the said cheque book was issued as is required under the rules. Taking advantage of this fact he issued 3 cheques bearing No, 04622251, 04622253 and 04622255 on 04- 04-87, 19-04-87 and 01.06.87 respectively in account of one Mr. Sohrab s/o Tayyah by writing the account number of that person in the blank space for writing the account number. Since he was in charge of the counter in question he issued the tokens and by misrepresenting to the officers that he knew the account-holder who had personally come to receive the cash, got all the three cheques passed from the passing- officers, First two cheques have been passed by Mr. Imdad Ali Jafery, Officer Grade-III and 3rd one by Mr. Khalique Dino M.Latifi, Officer Grade-II.
7. ' It appears that due to rush of work and absence of the subordinate staff from the Branch, Mr. Kando was able to get these cheques passed from these officers without required verification.
8. ' The cash of these cheques was also received by him as per version of the cashier and even in the case of cheque number 04622251 he has kept entry in the Chashier's register in his own writing.
9. ' On 6-6-1987 Mr. Sohrab approached the Branch with request that he wanted to close his account and withdraw the balance from it. On that date Mr. Kando was absent from the branch and the account holder protested against withdrawal of Rs, 4,800.
10. ' When the record was verified it was found that the said 3 cheques were not issued from the cheque book given to the said account-holder and also that one of the three cheques was missing, whereas the two cheques bearing No, 04622253 and 04622255 which were available in the Branch did not bear signatures of the account-holder who signed in the vernacular whereas the said cheqeus bore the signatures in English.
11. ' The account-holder was requested to come after some days so that in the meanwhile enquiry might be conducted.
12. ' Mr. Kando came on 7th June, 1987 and on enquiry he gave evasing replies and ultimately on 10-6- 1987 he made his clean breast, produced the original cheque book containing the 5 unissued cheques in which the column provided for account number is left blank and also deposited the defalcated amount of Rs, 4800. He also confessed his guilt in writing. He however could not explain for the two missing cheques from the chequ book and for the cheque number 04622251 for Rs, 2,000 against which he had received the cash but for its missing from the Branch record he expressed before me that he had slipped it out from the record and had kept it somewhere but he did not remember. The two cheques which are available on the record are also written by Mr. Kando.
13. ' Mr. Kando has thus committed forgery with the record in order to misappropriate the amount of Rs, 4,800 out of the account of Mr. Sohrab which he subsequently deposited against the pay-in-slip dated 10-6-1987 under his own signature.
14. ' It is therefore requested that a case of forgery and original misappropriation coupled with breach of trust may he registered against him and he may be challaned in the Court of Law."
15. ' The written report was incorporated as F.I.R. Which is produced on record as Ex.7-A. In nut shell the case of the prosecution is that one Sohrab had opened PLS Account No, 5133 at the Market Branch of National Bank of Pakistan in July, 1985 and on 6-6-1987 account-holder Sohrab kited the branch asking to close his account which was accordingly checked and during the checking it transpired that the balance in his account was short by Rs, 4,800 and the said amount had been withdrawn through three cheques issued from the book issued to him. Further checking was conducted and it transpired that the cheque book from which three cheques in question were in fact issued in the name of another account-holder Miss Easther John who was issued a cheque book of different series also on the said date. Since the two cheque books issued to Miss Easther John were in the hand of appellant Kando working as Assistant in the said Branch and dealing with issuing of cheques books; the Manager of the Bank Abdul Sattar Sodagar made enquiries during which the appellant made written statement addressed to the Manager signed by him on 10-6-1987 which is Ex.2/K on record whereby the appellant admitted having withdrawn the money from the bank on the basis of three cheques in question and on the same date the appellant not only repaid and reimbursed all amount of Rs, 4,800 alleged to have been misappropriated by him and he has further stated to have returned the cheque books from which the three cheques in question were issued by him. The Manager of the Bank Abdul Sattar Sodagar on obtaining of approval from his Zonal Chief lodged the FIR and the case was investigated by the Inspector Abdul Hameed P.W. No, 6 and Inspector Ali Athar Khan P.W. No,4. During the investigation the Investigating Officer seized the documents under Memo of Seizure Ex.2/S and on 23rd, 24th and 29th November, 1987 got specimen writing and signature of appellant Kando recorded before the Magistrate MRs, Farhat Rashid. The specimen writing and signatures were produced by the witness during the trial and ultimately on the collected evidence the appellant was challaned for trial. Charges were framed against the appellant and the co-accused which reads as follows:-- "I, Justice (Retd.) Z.A. Channa, Presiding Officer, Special Court (Offences in Banks) Karachi, hereby charge you accused: (1) Kando s/o Din Mohammad, (2) Aijaz Ahmad s/o Khurshid Bukhari, (3)
16. Imdad All s/o Imam Dino Jafery, and (4) Khaliq Dino Latifi S/o Qadar Bux as follows:- ' That from April 1987 to June 1987, you accused Kando was working as Assistant at the Market Road Branch, Hyderabad of N.B.P., you accused Eijaz Ahmad Bokhari and Khaliq Dino were working as Officers Garde II at the said Bank and you accused Imdad All was working as Officer Grade III at the said Bank; ' That you four accused hatched a plan to defraud the said Bank; ' That in pursuance of the said plan, you accused Kando managed to steal or otherwise dishonestly acquired with the assistance of your accused Ejaz Ahmad Bokhari a cheque book of the series 04622251 to 04622260; ' That out of the aforesaid cheque book, you accused Kando forged the signature of account- holder Sohrab s/o Tayab on three cheques bearing serial Nos. 04622251, 04622253 and 04622255; ' That you accused Imdad Ali passed cheques bearing Nos. 04622251 and 04622253, for Rs,2,000 each, knowing or having reasons to believe that the said cheques were forged and the cheques were not from the cheque book issued to the holder of account on which they were drawn; ' That you accused Khaliq Dino passed the cheque bearing serial No, 04622255 for Rs, 4,800, knowing or having reasons to believe that the said cheque was forged and was not from the cheque book issued to the holder of account on which it was drawn; ' That you accused Kando, on the basis of the above three forged cheques, dishonestly and fraudulently withdrew from the account of Sohrab S/o Tayab, holder of PLS Account No, 5133, a total amount of Rs,4,800; ' And you all accused hereby committed offences punishable under sections 380/477-A/468/471 PPC, read with section 109, PPC, and within the cognizance of this Court; ' And I hereby direct that you accused be tried by this Court on the said charges."
17. ' The prosecution in support of ifs case examined 5 prosecution witnesses besides the two Investigating Officers, Among the witnesses examined by the prosecution are the Manager Abdul Sattar Sodagar who has produced the relevant documents and fully supported the prosecution case. P.W.No,2 is Kifayatullah Shaikh who was working as a Cashier at the Market Road Branch of National Bank of Pakistan of Hyderabad. P.W. 3 who is handwritings expert who conducted the comparison of the writings and signatures of the appellant received by him compared the same with the questioned documents and produced the chart of comparison and his report which is placed on record as Exs.4/E and 4/C.
18. ' Miss Eashter John is examined as P.W.5, Gul Mohammad the Head Cashier of the Branch as P.W.7.
19. It may be mentioned here that the evidence of handwriting expert. P.W.3, Munir Ahamd Shah the Investigating Officer, Ali Athar Khan P.W.4. Miss Eashter John P.W.5 had gone unchallenged as they were not cross-examined by the appellant or his counsel. On conclusion of trial the appellant was examined under section 342 Cr.P.C. He admitted that he was working as Assistant at the Market Area Branch of National Bank of Pakistan at the relevant time. He also admitted that the specimen writing and signatures are his, however, he denied having deposited the amount. It is not disputed by the appellant that his specimen writing and signatures were taken in presence of Magistrate.
20. The learned Presiding Officer assessing the evidence on record and hearing the parties on the basis of evidence passed the impugned judgment in the appeal in the above terms. Mr.MA. Kazi the learned counsel has appeared on behalf of the appellant, he has not contested the conviction on merits, he has urged that in the present circumstances when the appellant has lost the service and repaid the amount said to have been misappropriated, also he having remained in custody for nearly nine months by now, he has prayed that leniency may be shown to him and the sentence already undergone may be passed. He has in his arguments also raised the plea that the appellant was not asked in the terms of section 340 clause (2) Cr.P.C. Question to examine himself on oath, therefore proceedings stood vitiated, that the State has gone unrepresented in this case as nobody appeared on behalf of the State.
21. Adverting to the above first submission we are not impressed by the arguments of the learned counsel for the appellant as the learned Presiding Officer while deciding the case has already shown sufficient leniency to the appellant and we do not find any ground to further extend leniency to him in the nature of allegation made against him as according to us there is overwhelming evidence produced by the prosecution against the appellant and the plea raised by him as explained in section 342 Cr.P.C. Statement. The plea of the appellant is not convincing much less warranting any interference with the finding of the trial Court.
22. ' As regards the second submission of Mr. M.A. Ashraf Kazi the learned counsel for the appellant, that the appellant was not asked in the terms of section 340(2) Cr.P.C. To examine himself on oath and therefore, the proceedings stood vitiated. It is sufficient to observe that we are not impressed by the arguments nor feel persuaded to hold that due to above infirmity the trial was vitiated. In support of this contention the learned counsel for the appellant failed to produce any case law in his support. However, we have given out anxious thoughts to the proposition and according to us the proposition is expressly answered in a recent D.B. Decision of this Court in the case of Muhammad Yousuf Zai v. The State reported in PLD 1988 Karachi p.539. It may be advantageous to reproduce the finding in the above referred case:-- ' We may observe that there are 2 or 3 other cases decided by Division Benches of this Court in which the view found favour with the learned Single Judge of the Lahore High Court in the case referred to hereinabove, was taken. However, the effect of Article 13 of the Constitution has not been considered in any of the decided cases. It may be advantageous to reproduce section 340(2)
23. Cr.P.C. And above Article 13 of the Constitution, which read as follows:- "Section 340(2).--Any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court shall, if he does not plead guilty, give evidence on oath in disproof of the charges or allegations made against him or any person charged or tried together with him at the same trial; ' Provided that he shall not be asked, and, if asked, shall not be required to answer, any question tending to show that he has committed or been convicted of any offence other than the offence with which he is charged or for which he is being tried, or is of bad character unless:-- ' the proof that he has committed or been convicted of such offence is admissible in evidence to show that he is guilty of the offence with which he is charged or for which he is being tried; or he has personally or by his pleader asked question of any witness for the prosecution with a view to establishing his own good character, or has given evidence of his good character; or
(iii) he has given evidence against any other person charged with or tried for the same offence."
24. ' Article 13 of the Constitution:
(a) "No person-- shall be prosecuted or punished for the same offence more than once; or
(b) shall, when accused of an offence, be compelled to be a witness against himself."
25. ' It may be observed that the above subsection (2) of section 340 Cr.P.C. Was substituted by Code of Criminal Procedure (Amendment) Ordinance (XII of 1985) Gazetted on 21-2-1985, which enjoins an accused to give evidence on oath in disproof of charges or allegations made against him if he does not plead guilty subject to the proviso and the conditions contained therein, whereas clause
(b) of above quoted Article 13 of the Constitution provides that no person shall, when accused of an offence, be compelled to be a witness against himself.
26. ' We may observe that if an accused person makes a statement on oath under section 340(2), Cr.P.C. He is to be cross-examined by the prosecution and in the cross-examination he is bound to ask him questions which may incriminate him in the commission of the offence, which will in fact amount to compelling him to be a witness against himself, which is prohibited by above clause (b) of Article 13 of the Constitution?
27. ' In this view of the observation we feel ourselves in agreement and hold that the infirmity pointed out by the learned counsel for the appellant is of no consequence. Reference may also be made to the case of Saeedullah alias Bachha v. The State reported in 1988 Pakistan Criminal Law Journal 19 Peshawar in which a Division Bench of Peshawar High Court held that under section 340(2) Cr.P.C.
28. The duty of the Court was only to ask the accused to enter upon his defence and then leave it to him to elect to appear as witness or not and no irregularity or illegality was committed by the trial Judge in not recording his statement on oath.
29. ' For the above discussion the factum that the appellant was not called upon by the learned Presiding Officer to make statement on oath in terms of section 340(2) Cr.P.C. Is of no consequence.
30. ' For the above discussion we do not find any merit in this appeal therefore, the appeal is dismissed.