SAMIULLAH Versus State

SHAH JEHAN KHAN YOUSAFZAI, J.--- Through this single judgment, I propose to dispose of the instant bail petition (Cr.M. No. 57 of 2011) as well as the connected bail petition (Cr.M. No. 61 of 2011) as both of them are the outcome of one and the same F.I.R.

2. Samiullah accused-petitioner in the instant bail petition as well as Alam Khan accused-petitioner in the connected bail petition facing prosecution in case F.I.R. 33 dated 24-12-2010 under sections 409/ 419/ 420/ 468/ 471/ 477-A/ 120-B, P.P.C. read with sections 3/4 Anti-Money Laundry Act, 2010 registered at Police Station FIA/CBC, Peshawar were refused bail by the learned Presiding Officer, Special Court (Offences in Banks) Khyber Pukhtoon Khwa, Peshawar vide his order dated 7-1-2011. Now they have approached this Court for their release on bail.

3. The proceedings initiated on an application/complaint dated 20-9-2010 submitted to the Manager Habib Bank Ltd. Pabbi Branch by one Ishfaq Hussain' an Account Holder of Account No. 02357900059501 in the said Branch stating therein that on the said day he went to the said Branch and found that Rs.15,00,000 (Rupees fifteen lac) have been withdrawn from his account but he did not know anything about it. Neither he has signed the cheque nor came to the Bank for collecting the money as he was out of country. It is further alleged that before his departure from Pakistan he opened the account and the Bank authorities informed him that the Cheque Book will be given later on. Then his brother namely, Munsif Khan collected the cheque book from Mr. Alam Khan (HBL Employee) in a mosque of his village. He also found that the said cheque was also missing from the concerned Cheque Book. He requested the Manager of the Bank to take serious consideration in the matter to reverse the aforesaid amount on urgent basis:

4. On the basis of the above written application of Ishfaq Hussain Account Holder, Manager of the Habib Bank Limited written a letter to the Assistant Director Commercial Banks Circle, HA, Peshawar for registration of a case/F.I.R. against the culprit/culprits. The FIA authorities after conducting enquiry came to the conclusion that prima facie case against accused-petitioners Alam Khan Ex-Manager (Operations) and Samiullah Cashier Habib Bank Limited Pabbi Branch Nowshera is made out, therefore, after getting legal opinion and permission from the competent authority, the instant case against the aforementioned persons was registered under the above sections of law.

5. I have heard the learned counsel for the parties and have also gone through the record of the case with their able assistance.

6. It is an established fact that Ishfaq Hussain, who had opened Account No. 02357900059501 at Habib Bank Limited Pabbi Branch, Nowshera on 21-6-2010 where the petitioner Alam Khan was serving as Manager. (Operation) and Samiullah petitioner as Cashier. Cheque Book was not issued till 30-6-2010 when he left for Qatar which fact is established through his passport having an entry of exit from Pakistan and entry in Qatar. He returned to Pakistan on 16-9-2010 which fact is also corroborated through entry on his passport. Before going abroad, he instructed his brother, namely, Munsif Khan to get cheque book from Alam Khan accused-petitioner and the same was received by him at home and being a co- villager, he did not verify as to whether the cheque book was containing all cheques and even no receipt/signature was obtained from him. When Ishfaq Hussain, returned to his home, he visited the bank and on enquiry he was informed that Rs.15,00,000 has been drawn on 6-8-2010 through Cheque Np.8967277 while on the said date he was at Qatar and the amount was drawn through his fake signatures. The said cheuqe was found missing from the middle of cheque book. Samiullah Cashier had an authority to make payment to the customer upto Rs.50,000 and for exceeding amount, the Manager (Operation) is supposed to verify the payment of the cheque in question was found duly singed and supervised by him.

7. On the complaint of Ishfaq Hussain, an enquiry was conducted through FIA Specimen signature of Ishfaq Hussain, his brother Munsif Khan, Samiullah cashier and admitted signatures of the two petitioners and their signatures obtained before a Magistrate along with the cheque in question and handwriting of Alam Khan along with bank record of complainant's account, six cheques of the same day signed by Alam Khan and Samiullah each also two statements of Samiullah in order were sent for analysis through FIA Technical Wing Islamabad. On receipt of report whereby it was found that the cheque does not bear signature of Ishfaq Hussain customer of the Bank or his brother Munsif Khan and the signature of Ishfaq Hussain was found fake while the cheque was duly signed by Alam Khan Manager (Operation) and Samiullah Cashier petitioners. Prima facie both the petitioners are reasonably connected if with the commission of offence.

8. Learned counsel for the petitioner Alam Khan Manager (Operation) forcefully contended that mere Handwriting Expert opinion is not sufficient to declare a person as accused of the charge of forgery and placed reliance on 1985 SCMR 359 wherein Handwriting Expert opinion was held to be a weak and unsatisfactory evidence. The contention is not acceptable in the circumstances that in the cited judgment which was in respect of an election dispute, the Election Authority permitted both the controversial candidate to participate in election and Appellate Authority was directed to decide afresh and the appellate authority did not act on the remand order and only on the opinion of Handwriting Expert the findings were recorded. It was found that neither the parties were examined nor their witnesses nor formed an independent opinion of its own about document before it on which Expert's opinion was obtained or the statement on oath by the person whose signature on two candidates nomination paper was sub judice. The facts of the cited case are altogether different from the instant case as in the instant case not only the opinion of handwriting Expert, passport of complainant showing his entry and exit from Pakistan to Qatar and from Qatar to Pakistan. Rule regarding issuance of cheque book to the customer was also not followed by the petitioners. The petitioners have also been proceeded against departmentally and their services were suspended, therefore, on the strength of cited judgment, the petitioners are not deserving leniency. The learned counsel for Samiullah Cashier petitioner relied upon a judgment of PLD 1995 Supreme Court 34 whereby the offence not carrying punishment more than 10 years, the grant of bail to the accused shall be rule and refusal shall be an exception. On the strength of cited judgment no benefit could be extended to the petitioner Samiullah who was serving as Cashier and he committed mistrust and has violated the rules by making payment of a huge amount on a cheque issued through a forged signature, thus the offence is found one of moral turpitude and the petitioner does not deserve any leniency.

9. I found both the petitioners not deserving any leniency being reasonably charged with a heinous offence of mistrust, fraud, misrepresentation and against moral turpitude. Resultantly, both these bail petitions are dismissed.

H.B.T./145/P Bail refused.