MUHAMMAD HUSSAIN Versus THE STATE
AJMAL MIAN, J.- - This appeal is directed against the judgment, dated 9-1-1988 passed by the learned Presiding Officer, Special Court (Offences in Banks), Karachi in Case No. 97 of 1985 convicting the present appellant for the offence under section 420, P.P.C. and sentencing him to suffer R.I. for six months and also imposing on him a fine of Rs. one lac and in default of payment of fine to undergo R.I. for 18 months.
2. The brief facts leading to the filing of the above appeal are that on 14-12-1980 the appellant approached the Manager of Messrs United Bank Limited, Tariq Road Branch, hereinafter referred to as the Branch, for issuance of a pay order in favour of one Mohammad, Nawaz which was issued against cash payment on the above date (Exh.4/A). However, on 28-12-1980 the appellant made an application to the Manager of the Branch Exh.4/C alleging therein that he had lost the pay order and requesting him to take all necessary measures. He filed another application on the same date Exh.4/D requesting for issuing of a duplicate, which was issued against an Indemnity Bond executed by the appellant Exh.4/E. It seems that on the following day i.e. 29-12-1980 the appellant addressed another application to the Manager of the Branch, enclosing therewith the duplicate pay order and requesting that the same be cancelled and he be paid cash amount of Rs.2,50,000. Upon the receipt of the above application, the above duplicate pay order was cancelled and the appellant was paid through five short term Fixed deposit Receipts of Rs.50,000' each Exhs.A/1 to A/5, which receipts were encashed by the appellant. It appears that Mohammad Nawaz deposited the original pay order in his account in Messrs Habib Bank Limited Nursery Branch which was presented for encashment to the Branch but the same was refused on the plea that the original was lost through Exh.7/B. It seems that Mohammad Nawaz sent a telex, dated 14-4-1981 Exh.4/1 from London addressed to the Manager of the Branch asking him to clear immediately payment of Pay Order No. 026222 for Rs.2,50,000 issued by the bank in his favour on 14-12-1980, failing which action would be taken. It further seems that the appellant, his brother Ismail Hussain Sheikh and nephew Abdul Saeed Shaikh through their Advocate, Mr. Aziz Malik sent a notice, dated 12-6-1981 to the Manager of the Branch stating therein that the pay order had been lost and none was entitled to have it encashed under any circumstances. However, it seems that the Manager of the branch remitted the amount of the pay order to the Manager Habib Bank Limited Nursery Branch through his letter, dated 15-6-1981 Exh.4/K but at the same time it was also conveyed that Mohammad Nawaz was a non-resident. Thereafter, the Vice-President of U.B.L. through his letter, dated 22-6-1981 Exh.4/L addressed to the Deputy Director, Federal Investigation Agency (Commercial Banks) Circle, Qamar House, M.A. Jinnah Road, Karachi, forwarded a complaint, dated 26-6-1981 Exh.4/L-1 signed by the Manager of the Branch against the appellant. The above case was investigated by P.W. Syed Masood Ali, Inspector F.I.A. , who submitted the challan in the Court of Magistrate First Class and S.D.M. Harbour, Karachi who framed the following charge:-
"That you, on or about the 14th day of December, 1980 got pay order bearing No. PQ-Q-1/0226222, dated 14-2-1980 for Rs.2,50,000 from U.B.L. Tariq Road Branch in favour of one Mohammad Nawaz. Subsequently you gave in writing on 28-12-1980 to the Manager of the said branch that original pay order has been lost and got duplicate pay order No.PQ-Q-1/1026242 which was issued to you on execution of Indemnity Bond and the same was subsequently got cancelled by you and got back your amount of Rs.2,50,000. The original pay order given by you to Mohammad Nawaz was presented by Mohammad Nawaz and the same was cleared and the amount was credited in the account of Mohammad Nawaz."
The appellant pleaded not guilty. After the enforcement of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 (Ordinance No. .IX of 1984), the case was transferred to the Special Court (Offences in Banks), Karachi.
3. The prosecution in support of the case examined P.W.1 Khawaja Khairuddin, who had introduced Mohammad Nawaz to Messrs Habib Bank Ltd., Nursery Branch for opening an account, P.W.2 Abdul Aleem Khan, an Officer working in Nursery Branch who opened the account of Mohammad Nawaz upon introduction by P.W.1, P.W.3 Raja 'Arshad Mahmood, the Manager of the Branch who issued the above pay order, received the appellant's aforesaid applications, issued duplicate pay order and cancelled the same and refunded the amount of Rs.2,50,000 to the appellant against the execution of the aforesaid Indemnity Bond, P.W.4 Farooq ,Bashir Malik, another officer of the U.B.L. in the Branch who had also dealt with the above pay order and also with the appellant, P.W.5 Rashid Usman, an Officer working in the Nursery Branch of Messrs U.B.L. who had deposed about the opening of Account No. 4263 in the Nursery. Branch of the U.B.L. in the name of Mohammad Nawaz on introduction of Khawaja Khairuddin through account opening form Exh.2/A on 8-4-1981, about the deposit of original pay order on 9-4-1981 bearing No. 026222 for Rs.2,50,000 drawn on U.B.L. Tariq Road Branch and about its encashment, and P.W.7 Syed Masood Ali, Inspector F.I.A. who proved the receipt of complaint and registration of F.I.R. as Exh.8/A.
The appellant was examined under section 342, Cr.P.C. and he also filed a statement in writing in which he admitted obtaining of above pay order, filing of an application for a duplicate copy, getting the above duplicate cancelled upon execution of an Indemnity Bond but stated that the original was lost. He also examined D.W.1 his brother Ismail Hussain Shaikh, who produced copy of the plaint of Suit No. 719/81 filed by U.B.L. in the High Court of Sind against the appellant, his brother, his nephew and Mohammad Nawaz for recovery of Rs.2,57,670 Exh.D.W.-1/D, copy of plaint of the Suit No. 1444 of 1985 filed by the appellant, his brother and nephew in the Court of VIIth Civil Judge IInd Class Karachi (East) against Messrs U.B.L. its two Officials, Mohammad Nawaz and Khawaja Khairuddin for declaration and injunction.
The Court also examined two witnesses as Court witnesses; namely, C.W.1 Mirza Arshad Beg, a businessman who knew Mohammad Nawaz and whose address was mentioned in the account opening form Exh.2/A. He deposed that he had known Mohammad Nawaz in London but his address was given without his consent, and C.W.2 Masoodur Rehman an Officer of U.B.L., who filed the circular of the U.B.L. regarding cancellation of pay order Exh.12/A.
The learned Presiding Officer on the basis of the above ocular and documentary evidence recorded the conviction in the above terms. The appellant being aggrieved by the above judgment, has filed the present appeal.
4. In support of the above appeal, Mr. Azizullah K. Shaikh, learned counsel for the appellant has vehemently urged that the learned Presiding Officer has recorded conviction on the basis of the weaknesses of the appellant's defence instead of basing the conviction on the prosecution evidence, which was lacking in the present case.
On the other hand M.r. Hazratji learned counsel for the State has submitted that there is sufficient ocular and documentary evidence on record to prove the case against the appellant.
In furtherance of the above submission, Mr. Azizullah K. Shaikh learned counsel for the appellant has urged that in the absence of the testimony of Mohammad Nawaz, in whose favour the pay order was obtained by the appellant, the appellant could not have been convicted for the offence under section 420, P.P.C. and, therefore, the conviction cannot be sustained. He has also referred to the relevant portion of the judgment at page 138 of the paper book to indicate that the learned Presiding Officer has highlighted the alleged discrepancies in the defence version and convicted the appellant on the above basis. He has also referred to the following cases:
(i) Muhammad Luqman v. The State reported in P L D 1970 SC 10.
(ii) Muhammad Fazlur Karim v. The State and others reported in P L D 1964 SC 792.
(iii) Wali Muhammad v. The State reported in 1969 S C M R 612.
(iv) Hakim Ali and 4 others v. The State and another reported in 1971 S C M R 412.
(v) Chandoo alias Chand Mohammad v. The State reported in PLD 1985 Kar. 209, and
(vi) Sadiq v. The State reported in P L D 1967 SC 356. in support of his above submission that the prosecution has to prove the case to the hilt beyond reasonable doubt and any falsity in the defence version or discrepancy would not lend support t t e prosecution case and would not provide any corroboration.
5. There cannot be any cavil with the propositions Oil aw propounded by the superior Courts in the above cases. However, we are of the view that the ratio decidendi of the above cases is not applicable to the present case. It is an admitted position that the appellant obtained a duplicate pay order by making representation that he had lost the original and thereby he obtained the refund of the amount namely Rs.2,50,000 upon getting the duplicate cancelled. The drawee of the pay order, Mohammad Nawaz presented the original pay order for encashment which proves the factum that factually the appellant had negotiated the pay order and passed on either directly or indirectly to the person in whose favour it was obtained. In view of the above factual position the appellant was supposed to bring on record sufficient material to explain reasonably as to how the drawee got the pay order who was resident of London. Instead of bringing on record any plausible explanation, he has come out with the story that his brother wanted to purchase a crane from Mohammad Nawaz through a broker and for that purpose he requested him to obtain the pay order. The above version of the appellant is belied by the facts of the present case, inasmuch as, nothing has been brought on record to indicate that what was the make of the crane, what was the price agreed to, whether there was any correspondence exchanged or agreement concluded and in what connection the appellant's brothel needed the crane. The factum that the pay order was presented by the drawee, in our view, clearly proved the fact that the same was passed on to him and the pay order was not lost as was represented by the appellant to the bank. We are inclined to hold that mere fact that. Mohammad Nawaz was not examined does not damage the prosecution case. The factum that the pay order was passed on to Mohammad Nawaz is supported by the evidence of P.W. Khawaja Khairuddin. In our view, the learned Presiding Officer has recorded the finding as to the guilt in accordance with the evidence oh record and in consonance with law.
6. Then it was contended by Mr. Azizullah K. Sheikh that the appellant is a retired Government servant and is aged 67 years and that a suit has been filed by the bank for the recovery of the above amount and the appellant has already suffered considerably and, therefore, the sentence be reduced.
We are inclined to accept the above submission. We, therefore, reduce the substantive sentence to the period already undergone by the appellant but maintain the fine of Rs. one lac and in default of payment of fine to suffer R.I. for 18 months. With the above modification, the appeal is dismissed.
These are the reasons in pursuance of a short order of even date.
S.A./M-401/K Appeal dismissed.