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Case No. 281 of 1985, decided on 15th January, 1986

-‑‑‑Ss. 241‑A, 242 a 243‑‑Penal Code (XLV of 1860), S. 471‑‑ Confession‑‑Plea of guilty‑‑Copies of statements of prosecution witnesses, supply of‑‑Provision contained in S. 241‑A, Cr.P.C. deals with a private, right intended for personal benefit of accused and does not infringe in any way any matter of public policy‑‑Provisions of S.241‑A, Cr.P.C. though mandatory yet do not restrain accused from foregoing his fight available to him under the provision‑‑Accused, held, was entitled waive this right of getting copies of statements to avoid delay in trial‑ Conviction of accused, therefore, was recorded on his confession and circumstantial evidence after framing charge, without supplying copies of statements as required under S. 241‑A, Cr.P.C. as requested by accused.

Vellayan Chettiar v. The Government of Province of Madras PLD 1947 P C 160; Bodi Venkataswami v. Adada Mahalakshmi A I R 1949 Mad. 747; Masood Hussain v. Muhammad Saeed Khan P L D 1965 Lah. 17 and Maxewell on Interpretation of Statutes, 11th Edn. p. 376 ref.

Nazir Ahmad Ghazi, P.P. and Ihsanullah Khan Lillah, Special Prosecutor for the State.

Accused in person.

Charge against accused Intizar Ali son of Inayat Ullah in this case arising out of F.I.R. No. 744/75, P.S. Misri Shah, Lahore is that on 1‑8‑1975 at about 9‑45 a.m. during banking hours, he presented on the counter of UBL Kachhupura Branch, Misri Shah. Lahore a forged cheque No.SO 57411, dated 1‑8‑1975 for a sum of Rs. 64,000 bearing the forged signature of account‑holder Ahmad Din Rehan as drawer and also the forged signatures of Sher Baz Khan and Agha Zaheer‑ud‑Din Salak as passing officers with the dishonest intention to draw the said sum from the C.D. Account No. 839 of said Ahmad Din Rehan from the U.B.L. Kachhupura Branch, Lahore and on suspicion having arisen in respect of genuineness of said cheque and his being accosted by the authorities of the bank, he fled away and could not be apprehended.

2. The accused has a number of cases against him. He is already convicted in a bank fraud/forgery case by a Military Court and has been sentenced by that Court inter alia to imprisonment for life. He had been telling me that he wants to make confession in the cases against him and had been requesting me that all the cases against him should be collected by this Court so that he may make confessions in them so that sentences passed by this Court may get exhausted during the period of the life imprisonment being served by him. As a result of his applications to that effect, number of challans against him had been summoned from relevant quarters and received in this Court including this case.

3. In the present case, Intizar Ali all alone is the accused person. Today when he appeared he stated that he wants this case to be decided today and he is prepared to make confession right today in this case. However, under section 241‑A, Cr.P.C. it is mandatory for the Court to furnish the accused certified copies of the police statements of the prosecution witnesses seven days ahead of the commencement of the trial. He, however, did not want to get these copies as he wished that trial of the case should not be delayed and should be proceeded with immediately. Accordingly his statement was recorded. He has stated that he doer not want to get copies nor he wants seven days time for the commencement of the trial. He has further stated that he wants to make a confession and wishes the Base to be decided and order for his conviction and sentence to be passed today. I have considered this request of the accused. The provision contained in section 241‑A, Cr.P.C. making it incumbent upon the Court to supply copies of the statements of the prosecution witnesses under section 161, Cr.P.C. to the accused person seven days in advance of the commencement of the trial is a provision meant for the benefit of the accused in his private capacity. In my opinion, this matter is not one of public policy which can restrain the accused from waiving his said right. The accused can, therefore, in his discretion forego his right and ask the Court to proceed with the trial of the case so that in the plea to be recorded after framing of the charge, he may confess his guilt. I am aware that section 241‑A requiring the Court to furnish the accused with the said skies is mandatory in nature but the mere fact that the said provision is so does not restrain the accused person from foregoing his said right. In this connection Vellayan Chettiar v. The Government of Province of Madras P L D 1947 P C 160 refers. In that case, their lordships of the Judicial Committee held that the notice required to be given under section 80, C.P.C. could be waived if the authority concerned thought it fit to waive it and observed that it was for his protection that notice was required and if in the particular case he did not require that protection and stated so he could lawfully waive his right. Again in case Bodi Venkata‑swami v. Adada Mahalakshmi A I R 1949 Mad. 747. Madras High Court held that notice could be waived and its provision could also be no bar. In case Masood Hussain v. Muhammad Saeed Khan P L D 1965 Lah. 17. Sardar Muhammad Iqbal, J. who later rose to be Chief Justice of Lahore High Court, Lahore, held that there appeared to him no inconsistency between the proposition that the provisions of a section are mandatory and must be enforced by the Court and that they may be waived by the authority for whose benefit they are provided. In this connection reference was made in that decision to Maxwell on Interpretation of Statutes, 11th Edition, at page 376 where it is said that everyone has a right to waive the advantage of law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy and where in an Act there is no express prohibition against contracting out of it, it is necessary to consider whether the Act is one which is intended to deal with private rights only or whether it is an Act which is intended as a matter of public policy to have a more extensive operation. The provision contained in section 241‑A, Cr.P.C. appears to me to deal with a private right intended for the personal benefit of an accused person only and does not infringe in any way any matter of public policy and, therefore, the accused is entitled to waive this right of his of getting copies of statements of P.Ws. under section 161, Cr.P.C. I have, therefore, as per my interim order of today allowed him to forego his said right and have accepted his, prayer for proceeding with the case.

4. I have framed charge against the accused Intizar Ali for offence under section 471, P.P.C. for his having dishonestly and fraudulently used the said forged cheque knowing to be forged.

5. On the basis of facts given in the opening portion of this judgment when the accused has been asked under section 242. Cr. P.C. whether he admits that he had committed the offence with which he has been charged, he has confessed that he had done so. He has stated that he pleads guilty to the charge and it is correct that on 1‑8‑1975 at about 9‑45 a.m. during banking hours he presented in the U.B.L. Kachhupura Branch Misri Shah, Lahore, the said forged cheque for a sum of 0s.64,000 with the intention of fradulently and dishonestly withdrawing the said sum from the account of Ahmad Din Rehan. He also admitted that when suspicion had arisen in respect of genuineness of said cheque and he was accosted by the Bank authorities, he fled away and could not be apprehended. This admitted conduct of the accused establishes that he knew at that time that the cheque was a forged instrument and he had presented the said cheque knowing that it was forged document. The accused Intizar Ali disclosed that the said cheque had been forged in his presence by Mian Jamshed Mahmood then the Manager of N.B.P. ,L.D.A. Branch, Lahore in his house. He explained that entire body writing the signature of account‑holder as drawer and signatures of two officers of the bank had all been forged by that person in his presence, whereafter he had given the said cheque to the bank for encashment. These facts also establish that the accused fully knew that it was a forged cheque. Thus, on the basis of the said confessional statement of the accused, it stands established to the hilt that the accused, Intizar Ali used the said forged cheque as genuine knowing the same to be forged and thus committed offence under section 471, P.P.C. Section 243, Cr.P.C. authorises me to convict the accused on the sole basis of his confession made in the Court. I, therefore, convict him of offence under section 471, P.P.C.

6. As for punishment, for offence under section 471, P.P.C: read with subsections (2) and (3) of section 6 of Offences, in Respect of Banks (Special Courts) Ordinance, 1984 (I.1 of 1984), 1 sentence him to two years R.I. and fine of Rs. 1,50.000 (rupees one lac and fifty thousand) and in default of, payment of said fine, he shall suffer further R.I. for 6 months.

M.A.K. Order accordingly.

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