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Criminal Appeal No. 167 of 1986, decided on 11th February, 1987.

‑‑‑Ss. 408, 468 & 471‑‑Criminal breach of trust‑‑Accused a bank employee charged for withdrawing a certain sum from account of customer/account‑holders by forging their signatures on cheques which were got issued through requisition slips on behalf of account‑holders‑ Only evidence against accused was his extra‑judicial confession made before account‑holders and no direct evidence existing to connect accused with commission of crime of forgery or using forged documents as genuine‑‑Report of Handwriting Expert produced by Investigating Officer was inadmissible in evidence inasmuch as Handwriting Expert was not examined in Court‑‑Evidence of extra‑judicial confession was discrepent, unreliable and without material corroboration so as to form basis of conviction‑‑Statements of prosecution witnesses that accused had admitted his guilt before them contradictory and none of witnesses giving actual words used by accused‑‑Conviction and sentence set aside in circumstances.

P L D 1954 FC 335 and Nazar Ali v. The State 1968 P Cr. L J 632 rel.

Muhammad Ilyas Khan for Appellant.

Rashid Nizamani for the State.

Date of hearing: 11th February, 1987.

.‑‑The appellant being aggrieved with the judgment, dated 31‑8‑1986 of the learned Presiding Officer Special Court (Offences in Banks) Karachi, whereby he convicted the appellant for an offence under section 408, P.P.C., for committing criminal breach of trust in respect of Rs.11,000 and sentenced him to suffer R.I. for two years and to pay fine of Rs.22,000 and in default of payment of fine to suffer further R.I. for six months. He has been further convicted under section 468, P.P.C. for forging the signatures of the three account‑holders on four cheques as well as requisition slip, and sentenced to suffer R.I. for 4 years. The appellant has been further convicted under section 471 for having used false cheques as genuine, and has been sentenced to suffer R.I. for one year and to pay fine of Rs.1,000 and in default to suffer further R.I. for three months. The substantive sentences awarded to the appellant were ordered to run concurrently. The appellant was also given benefit of provisions of section 382‑B, Cr.P.C. The appeal was heard and disposed of by a short order, dated 12‑2‑1987. The following are the reasons in support of the same.

The prosecution case in brief was that in the year 1985, the appellant was working as Cashier in Khaiber Branch of United Bank Limited and misappropriated a total amount of Rs.11,000 from the accounts of P.W. Abdul Wahid, Jamaluddin and Abdul Majeed by means of forge cheques and committed forgeries. The appellant was charged under section 408/468/471 and 477‑A, P.P.C. to which he did not plead guilty. The defence of the appellant was one of the denial. The prosecution has examined Abdul Wahid P.W.1 Jamaluddin P.W.2, Abdul Majeed P.W.3 and Qazi Muzaffar Ali P.W. 4, and Sher Muhammad Shah, Investigating Officer, P.W.5.

After close of prosecution side, the appellant was examined under section 342, Cr.P.C. in which he denied the allegations made against him. His further plea was that he was implicated by P.W.4, Qazi Muzaffar Ali, in order to save his own skin, the appellant has also examined one Khan Muhammad in his defence.

The learned trial Judge acquitted the appellant in respect of charge under section 477‑A but has convicted him under section 408 for committing criminal breach of trust in respect of Rs.11,000 and under sections 468 and 471, P.P.C. for forging the signatures of three account holders in question and for using the same forged cheques and requisition slip as genuine.

P.W. Abdul Wahid has stated in his deposition that he had S.B. Account bearing No. 277 in Khaiber Branch of United Bank Limited. In May 1985 when he received the pass book of his account he noticed withdrawal of Rs.8,500 by two cheques which were not from the cheque book issued to him, and consequently he went to the Bank and informed the Manager bout this position. The Manager showed him a requisition slip, dated 18‑4‑1985 alleged to have been made by him on the basis of which cheque book bearing Nos. 969861 to 969870 was alleged to have been issued to him, and from this cheque book two cheques one for Rs.6,500, dated 17‑4‑1985, and the other for Rs.2,000, dated 27th April, 1985 were encashed from his account. He told the Manager that neither requisition slip bears his signature nor he had received the cheque in question, nor the two cheques were issued by him. He has produced the requisition slip as Ex.2.B and the two cheques in question as Ex.2/C and C‑1. In view of his denial, the appellant was called by the Manager and in his presence the appellant admitted his guilt, and stated that he had moved the requisition application in question and issued two cheques. In cross‑examination he has stated that the appellant gave extra‑judicial confession in writing in bank premises and there were other officers of the Bank whose names were not known to him. He has further stated that whenever he went to withdraw the money by cheque his signature is verified by Bank Officer i.e. by Manager. He showed his ignorance whether appellant has been falsely implicated in this case by the bank or that fraud was committed by the Manager.

P.W. Jamaluddin has deposed that he had Account No. 628 in Khaibar Branch of United Bank Limited. On 9‑4‑1984 he had gone to Khaibar Branch of United Bank Limited to withdraw Rs.4,000 which he did. He got the cheque in question written by the present appellant who was cashier in the said Bank. A week later, he came to know that some mischief was played in his account, and therefore, he went to the bank and on verification of his account he came to know that a sum of Rs.2,000 were short in his account which was withdrawn by a cheque No. 969832, dated 9‑4‑1985, although he had not issued the said cheque. He produced his specimen signature as Exh.3‑A. He also produced the cheque in question as Exh.3‑B. He further stated that signature in green alleged to be his signature on the front of the cheque and signature in Urdu in green on the reverse of Exh.3‑B are not his signatures. That appellant Mitho had met him after withdrawal of this amount Exh.3‑B from his account and had admitted before him that he forged his signature and had withdrawn Rs.2,000 from his account. In cross‑examination, he has stated that the appellant had admitted his guilt in his presence but he cannot say that it was admitted in writing. That when the appellant admitted his guilt, his nephew was present with him. Again stated that not his nephew but Manager of Bank alongwith some staff were present and it had happened in Bank premises. To a suggestion that whether this fraud was committed by Qazi Muzaffar Ali, the Manager of the Branch and the appellant had been falsely implicated, the witness stated that; he was not present at the time when the fraud was committed.

P.W. Abdul Majeed has deposed that he had Account No. 485 in Khaibar Branch of United Bank Limited and had withdrawn Rs.1,200 on 9th May, 1985, from the said account. That he had got the said cheque written by appellant Mitho. However, he left the cheque book with the appellant on 9th May, 1985, as he went away to Hyderabad. When he came back from Hyderabad, he was called by Qazi Muzaffar Ali, Manager of the said Branch and inquired from him whether he had also withdrawn Rs.500 on 9th May, 1985. On seeing the said cheque he replied in negative and also denied the signature on the cheque. He further informed Qazi Muzaffar Ali that he had left cheque with the appellant Mitho on which appellant Mitho was called in his presence who admitted that he had withdrawn Rs.500 from his account by forging his signature, removing the said cheque from the cheque book left by Abdul Majeed with him. This witness has produced the cheque as Exh.4/A. His specimen signature is produced as Exh.4‑B, and statement of account as Exh.4/C. He has further stated that Bank reimbursed him the above amount.

P.W. Qazi Muzaffar Ali has deposed that in February 1985 he was working as Manager of Khaiber Branch of United Bank Limited where the appellant was working as cashier since 1‑4‑1985. He has supported the evidence given by P.W. Abdul Wahid, Jamaluddin and Abdul Majeed. He has further deposed that the appellant had admitted his guilt in presence of Account‑Holders and repaid the amount. He has further stated that appellant worked with him for over a month as such he was familiar with his signature and hence he identified the same. According to him, the signatures on the reverse of Exh.4‑A were that of the appellant. He conveyed the above information to the Zonal Office, and under their direction he lodged the complaint with the Police which was produced as Exh.5‑A. In cross‑examination he has stated that appellant has been working as temporary cashier under him. He admitted that the cheque books were in his custody in locker. The specimen signatures of account holders were checked by him on the cheques presented in the branch. The cheque books were issued either by him or by the cashier Muhammad Eidan and not by the appellant. He has further admitted that cheque books could only be issued to the account‑holders. He denied the suggestion that he committed these frauds and involved the appellant falsely or that on 17th May, 1985 he borrowed total amount of Rs.11,000 from Khan Muhammad and Haji Khaiber and repaid the same to account‑holders. He also stated that it was incorrect to say that appellant did not admit his guilt in his presence and in the presence of the account‑holders. He further went on to say that the appellant had admitted his guilt in presence of account‑holders at the Bank premises at 3‑00 p.m.

P.W. Sher Muhammad was working as Inspector F.I.A. at the relevant time. He has deposed that in November 1985, he was working as A.S.I. in Commercial Bank Circle, in F.I.A., in Karachi. He had incorporated F.I.R. of this case which he produced as Exh.6/A. He took over the investigation, arrested the appellant, and recorded the statements . of P.W. Qazi Muzaffar Ali, Abdul Majeed and Abdul Wahid and also seized the documents from the bank on 21‑11‑1985 vide seizure memo. Exh.6‑B. He took specimen writing and signature of the appellant before the 1st Class Magistrate and forwarded the same to Handwriting Expert. He had produced the Handwriting Expert's report as Exh.6‑C. On completion of investigation he challaned the appellant.

We have heard Mr. Muhammad Ilyas Khan, learned counsel for the appellant, and Mr. Rashid Nizamani, learned counsel for the State and have also gone through the evidence.

The only evidence against the present appellant is that of extra judicial confession made by him before the account‑holders Abdul Wahid, Jamaluddin, Abdul Majid and Manager Qazi Muzaffar Ali. There is no direct evidence to connect the appellant with committing forgery or using the forged documents as genuine. The Handwriting Expert's Report Exh. 6‑C produced by the Investigating Officer was inadmissible in evidence inasmuch as handwriting expert was not examined in the Court. So far as the evidence of extra‑judicial confession was concerned, it is discrepant, unreliable and could not form basis of conviction without material corroboration. P.W. Abdul Wahid stated in his cross‑examination that the appellant gave extra‑judicial confession in writing which was not the case of the prosecution nor any writing was produced in the Court. P.W. 2 Jamaluddin stated in his cross‑examination that the appellant admitted his guilt in his presence but he cannot say whether he admitted the same in writing. He further stated that when the appellant admitted his guilt his nephew was with him but again in the same breath stated that it was not in presence of his nephew but it was in the presence of the Manager of the Bank and the time was about 6‑00 p.m. So far P.W.4 Qazi Muzaffar Ali is concerned he has stated in respect of misappropriation from the Account of Abdul Wahid that the appellant had admitted his guilt. In respect of those cheques and further promised to repay the amount with a request that he may be executed and admitted his guilt in writing. In the same breath he again changed his stand and stated that the appellant did not admit his guilt in writing but repaid the amount in question. In respect of the account‑holders Jamaluddin the evidence of Mr. Qazi Muzaffar Ali, was that the appellant admitted his guilt regarding the forgery and withdrawal of Rs.2,000 by forging the signature of the account‑holders and that he repaid the amount. At the time when the appellant admitted his guilt besides account‑holders, Muhammad Eidan Cashier, and other bank employees were present. Similarly, in respect of misappropriation from the Account of Mr. Abdul Majeed he has stated that the appellant had admitted his guilt in his presence and that of the account‑holders. In cross‑examination he has stated that the appellant had admitted in presence of account‑holders at the bank premises at 3‑00 p.m. That none of the witness has given the actual words used by the appellant while making extra‑judicial confession before them. It has been held in PLD 1954 FC 335 observations at pages 356 and 357, the evidence of confession should disclose the actual words or substance of the extra judicial confession. This decision of the Federal Court has been followed in a case of Nazar Ali v. The State 1968 P Cr. L J 632 observations at page 637. Even their evidence regarding time and other particulars is discrepant. Moreover the alleged extra‑judicial confession is not corroborated by any other evidence.

In view of the above circumstances, we accept the appeal, set aside the conviction and sentences of the appellant and acquit him. The fine, if paid, is to be refunded to him.

M.Y.H./M‑72/K Appeal accepted.

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