THE STATE Versus AIJAZ AHMAD SHEIKH
1. Accused Aijaz Ahmed Shaikh, who in June, 1981 was working in the Remittance Department of the Hotel Intercontinental Branch of United Bank Limited as 3rd Officer, has been tried on the following charge framed by- my learned predecessor:--
2. "That in June 1981 you were working as an Officer in the Intercontinental Branch of United Bank Limited when in collusion and abetment of accused Ashfaq Ali you knowingly and or having reason to believe that the signatures of the officers were forged on demand draft No. ADDF-118278/6, dated 1st June, 1981, which was allegedly issued for Rs.1,42,000 by Jamil Chowk Samundri Branch of U.B.L. on Intercontinental Branch of U . B . L. at Karachi, verified the said signatures as genuine and thus abetted co-accused Ashfaq Ali to deceitfully collect the proceeds of the said forged demand draft, by using it as genuine and committed criminal misappropriation of the said amount and therefore you have committed offences punishable under sections 403/420 and 471, P.P.C. read with section 109, P.P.C. within my cognizance."
3. The prosecution version shortly stated is that in June 1981 a credit advice, Exh. 4/B was received in the Hotel Intercontinental Branch, purporting to be issued by the Jamil Chowk Samundri Branch of U.B.L. regarding alleged issuance of Demand Draft No. 118278/6, favouring Ashfaq Ali, for a sum of Rs.1,42,000. In accordance with the normal practice of the bank, in order to test the genuineness this credit advice, secret test was carried out by two officers of the branch, namely Miss Parveen Fatima Abro and Mr. Athar and on the basis of their report, another two officers of the branch, namely Shafiq Alam Farooqi and Khurshid Raza had responded to the said credit advice. it may be pointed out that subsequent to the test, on 13th June, 1985, the demand draft Exh. 4/A, in respect of which the credit advice Exh. 4/R had been earlier received, was presented at the Hotel Intercontinental Branch for encashment by a person claiming to be Ashfaq Ali, the payee of the demand draft. As the payee was not known to any officer of the branch or any account holder of the Branch, his signature is said to have been verified by another person who, was allegedly known to accused Aijaz Ahmad, who thereupon verified the signature of the payee. Accused also verified the signatures of the drawers of the demand draft, namely the alleged officers of the Jamil Chowk Samundri Branch. Almost four years later, P.W. Younus Habib, an officer of the Reconciliation Department of U.B.L. at Head Office, discovered that the entry of Rs.1,42,000 in respect of demand draft issued by the Jamil Chowk Samundri Branch and paid by the Hotel Intercontinental Branch was outstanding. Accordingly, he sent a T.P message to the Jamil Chowk Samundri Branch from where he got T.P. Exh. 9/A to the effect that no such demand draft had been issued by the Branch and that the said branch during the year 1981 had issued only two demand drafts, one for Rs.18,000 and the other for Rs.6,000, both in favour of one Muhammad Riaz. In view of this information from the Jamil Chowk Samundri Branch, a written complaint, dated 22-4-1985, Exh. 4/E, was lodged by the then Manager of the Hotel Intercontinental Branch, Syed Fakhr-e-Alam, with the F.I.A. Upon completion of the investigation, which included obtaining the report of the Hand Writing Expert in regard to identify of the writing on the credit advice, Exh. 4/B, and the author of the person signing "ASHFAQ ALI" on the reverse of the demand draft, Exh. 4/A, the case was ultimately challaned before this Court on 12-12-1986.
4. The prosecution, in support of their case have examined in all; eleven witnesses. They are (1) Syed Fakhr-e-Alam, who was manager of the Hotel Intercontinental Branch from February/March, 1985 and who had after making some enquiries made the written complaint to the F.I.A., (2) Muhammad Masood, Manager of the Jamil Chowk Samundri Branch of U . B .L. , who has denied that he had signed the demand drafts Exh. 4/A and stated that his alleged signature thereon is a forgery; (3) Matloob Hussain, another officer of the Jamil Chowk Samundri Branch, who has similarly denied that he had signed the demand draft Exh.4/A and asserted that his alleged signature thereon is a forgery; (4) Abdul Rashid Ansari, Manager in the West Wharf Branch of U.B.L. in 1985, who has produced demand draft bearing No. ADDF/118278/3 (being the same number as of the demand draft Exh. 4/A except for the last number written in ink showing the serial number of the draft issued from the branch) in support of the prosecution version that the demand draft, Exh. 4/A, is a forgery; (5) Abdullah Soomar, cashier at the Hotel Intercontinental Branch of U.B.L. in June, 1981, who has made payment on the demand draft, Exh. 4-A, to Ashfaq Ali on the identification of the accused; (6) Younus Habib, an officer in Reconciliation Department of U.B.L. at Head Office, who had discovered the fraud in 1985; (7) Shafiq Alam Farooqi, officer in charge of handling payment on demand drafts at the Hotel Intercontinental Branch of U.B.L. from 1979 to 1980 and supervisor of the accused at the time that the demand draft, Exh. 4/A, was presented for encashment; (8) Muhammad Nawaz, an officer of the F.I.A. who had registered the F.I.R. in this case on 24-4-1985 on the written complaint of Manager Syed Fakhr-e-Alam; (9) Miss Parveen Fatima Abro, an officer of the U.B.L. who had carried out the secret partial test on the demand draft Exh. 4/A; (10) F.I.A. Inspector Abu Bakar Bhatti, who had investigated and challaned the case; and (il) Muhammad Kishwar Kayani, handwriting expert, who has testified that the writing on the credit advice, Exh. 4/B, and the signature of Ashfaq Ali on the reverse of the demand draft Exh. 4/A are similar to the handwriting and signature of the accused. In addition, three witnesses have been examined as Court Witnesses while two witnesses have been examined on behalf of the defence. The three court-witnesses are (1) Muhammad Athar Khan, who was an officer of the Intercontinental Branch and who had independently with Miss Parveen Abro carried out the secret test on the credit advice, Exh. 4/A, which tallied with the test carried out by Miss Parveen Fatima Abro; (2) Farooq Ansari, who was Assistant Vice President and Manager in the Hotel Intercontinental Branch it June 1981 and by whom the demand draft has been cancelled by putting his second signature and who had got the secret test on the credit advice Exh. 4/R carried out by P.W. Miss Parveen Abro and C.W. Muhammad Athar Khan; and (3) Shakeel Ahmed, who is said to have signed on the reverse of the demand draft, Exh. 4/A identifying the payee, Ashfaq Ali, and on whose signature the accused is said to have signed as identifying the payee. The two defence witnesses examined are (1) Athar Hameed, who was working as Senior Vice President in the Head Office of the United Bank Limited and who has given evidence regarding the procedure at the issuing branch for issuance of demand draft as also the procedure at the receiving branch when the demand draft is received; and (2) Shakeel Ahmed, who had already been examined as Court witness. This witness although while giving evidence as Court witness, has denied that he had taken Ashfaq Ali to the Hotel Intercontinental Branch or that he had identified signature of Ashfaq Ali, in his evidence as defence witness has stated that though he is not definite but it is possible that he may have taken Ashfaq Ali to the Hotel Intercontinental Branch where the accused was working and has further stated that he thinks that the signature on the reverse of the demand draft, Exh. 4/A, identifying the signature of payee Ashfaq Ali is his, and that he had identified Ashfaq Ali on the basis of the National Identity Card produced by the latter.
5. The accused, in his statement recorded under section 342, Cr.P.C., has admitted that he was working at the relevant time as Grade 3 Officer in the Hotel Intercontinental Branch, that on the basis of Shakeel Ahmed identifying Ashfaq Ali he had identified the latter's signature on the reverse of demand draft Exh. 4/A and that he had also identified the signatures of the drawers of the demand draft, Exh. 4/A (officers of the Jamil Chowk Samundri Branch) by putting his signature under their signatures on the face of the demand draft Exh. 4/A. He has however denied that he abetted Ashfaq Ali in encashing the forged demand draft, Exh. 4/A, or that the writing on the credit advice, Exh. 4/B, is his or the signature of Ashfaq Ali on the reverse of the demand draft, Exh. 4/ A , is in his hand. According to him he did not know Ashfaq Ali prior to his introduction by Shakeel Ahmed and that he had no hand either in the forgery of the demand draft or in the misappropriation of the amount of the draft and that he has simply verified the signature of Shakeel Ahmed.
6. I have heard the arguments of Mr. Usman Ghani Rashid, the learned counsel for the accused, and also of the learned prosecutor. Mr. Usman Ghani Rashid at first only argued on the point that the accused had innocently verified the identity of Ashfaq Ali, payee of the demand draft Exh. 4/A, on the basis of the signature of Shakeel Ahmed, who was his friend and he was not at all aware of the fact that the demand draft was forged or not. He has further submitted that the payment on the demand draft was made after it was properly cancelled by two officers of the Hotel intercontinental Branch, including the then manager of the branch, on the basis of the secret test carried out by other two officers of the branch, P.W. Miss Parveen Abro and C.W. Muhammad Athar. The learned counsel also relied upon the evidence of Shakeel Ahmed given as defence witness where he has admitted that he thinks that the signature verifying the Signature of Ashfaq Ali on the demand draft, Exh. 4/A is his. Mr. Usman Ghani Rashid was given further opportunity of addressing arguments on the point of the signature of the accused on the face of the demand draft, Exh. 4/A, verifying the signatures of the drawers of the demand draft. The learned counsel in this behalf submitted that the accused was required by his officer, Shafiq Alam Farooqi, to verify the signatures of the drawers by comparing them with the signatures on the specimen signature book supplied to the Hotel Intercontinental Branch and he in good faith, believing that he signatures on the draft were of the officers of the Jamil Chowk Samundri Branch, had verified their signatures by putting his signature under their signature.
7. The learned prosecutor, on the other hand, strongly contended that the prosecution have established their case against the accused beyond reasonable doubt. He relied upon the following pieces of evidence in support of his contention:--
(1) Evidence of P.Ws. Muhammad Masood and Matloob Hussain of Jamil Chowk Samundri Branch who have denied that the signature on the demand draft Exh. 4/A are theirs.
(2) Production by P.W. Abdul Rashid Ansari of the original demand draft bearing No. ADDF/118278/2, dated 2-5-1977, issued by the West Wharf Branch Karachi for Peshawar Cantonment Branch.
(3) Comparison of the signatures on the draft, Exh. 4/A, and advice Exh. 4/B, with the signatures of P.Ws. Masood and Matloob Hussain showing such disparity between the signatures that no reasonable person could say that the two sets of signatures are of the same person.
(4) That the cancellation of the demand draft by the Manager Athar Ansari and Shafiq Alam was on the basis of the verification of the signature on the demand draft by the accused who has signed at the foot of the signatures of the drawers.
(5) That the payment by the cashier on the demand draft was made on the basis of the signature of the accused verifying the identity of the payee.
(6) That according to the handwriting expert not only the body of the writing on credit advice, Exh. 4/B, but also the signature of Ashfaq Ali on the demand draft, .Exh. 4/A, tallies with the writing of accused Aijaz Ahmed.
(7) That the form and size of the credit advice, Exh.. 4/A, is different from the form and size which was used in 1981 when it was received by the Hotel Intercontinental Branch.
(8) That Shakeel Ahmed's evidence regarding his verifying the signature of Ashfaq Ali cannot be relied upon in view of his earlier evidence that he had never gone to see the accused at Hotel Intercontinental Branch.
8. The points which arise for determination in this case are:--
(a) Whether the credit advice, Exh.4/B, and demand draft, Exh. 4/A, are forged?
(2) Whether payment on the forged demand draft was made by Hotel Intercontinental Branch to Ashfaq Ali?
(3) Whether the accused verified the signatures of Ashfaq Al i and also of the drawers of the demand draft , Exh. 4/A?
(4) Whether the accused verified the said signature knowing or having reason to believe that signatures of the drawers on the demand draft Exh. 4/ A were forged and in fact the demand draft Exh. 4/A was a forged document?
(5) Whether the accused abetted Ashfaq Ali in using a forged document and dishonestly obtaining an amount of Rs.1,42,000 from the Hotel Intercontinental Branch on the basis of such forged document?
9. My finding on the above points and the reasons therefor are as under:--
10. On the first three points there appears to be no controversy. I have already referred to the evidence of P.Ws Masood (the then Manager of the Jamil Chowk Samundri Branch) and P.W. Matloob Hussain (the then officer at the Jamil Chowk Samundri Branch), who have strongly denied that the signatures on the demand draft Exh. 4/A are theirs and have further stated that the demand draft in question had never been issued from, their branch. They are strongly supported by two other pieces of evidence. The first is production by P.W. Abdul Rashid Ansari. Manager of the West Wharf Branch, of the demand draft Exh. 7/B which bears identical number as of the demand draft, Exh. 4/A. The demand draft Exh. 7/B. was issued on 3-5-1977 in favour of M/s Zafreen Enterprises Peshawar. He has also produced photostat copy of the counter foil of the said demand draft, Exh. 7/A, which bears the same printed number as the demand draft. The second piece of evidence in support of this point is the fact that the last number, which is written in hand on the demand draft Exh. 4/A, is number 6, whereas according to the evidence of Manager Masood and the T D Message, Exh. 9/A, sent by the Jamil Chowk Samundri Branch, only two demand drafts, both in favour of Muhammad Riaz, were issued in the whole of vear 1985. It is thus clear that the demand draft, Exh. 4/A, which shows that it was the 6th demand draft sent in that year, could not have been issued from the Jamil Chowk Samundri Branch and is clearly a forged document. Similar is the case of the credit advice, Exh. 4/B, regarding which both Muhammad Masood and Matloob Hussain have testified that the signatures thereon are forged and such advice was never sent from the Jamil Chowk Samundri Branch.
11. It is also not disputed that payment on the demand draft, Exh. 4/A, was made. P.W. Abdullah Soomar, who was the paying cashier at the Hotel Intercontinental Branch of U.B.L. at the relevant time, has testified that he had made payment on the demand draft, Exh. 4/A, to Ashfaq Ali after the demand draft had been duly cancelled by two officers of the branch and the signature of the payee, Ashfaq Ali, had been identified by accused Aijaz Ahmad, whose signature was known to him. Similarly there is no controversy on the point that the signature on the face of the demand draft, Exh. 4/A, identifying the signature of the drawers, as also on the reverse of the demand draft identifying the payee, are of the accused. As many as three witnesses, namely P.Ws. Shafiq Alam Farooqi and cashier Abdullah Soomar as well as the action of the accused in verifying the signatures of the two drawers on the demand draft, Exh. 4/A, cannot simply be characterised as the mere negligence on the part of the accused in the performance of an important duty. In my view, the only conclusion which can be drawn in the circumstances is that the accused had reason to believe that the signatures on Exh. 4/A were forged. The accused, in view of the fact that he had also verified the signature of .the payee should have been extra circumspect and' the only conclusion that can be drawn in circumstances of the case and in view of the complete difference between the signatures appearing on the face of Exh. 4/A and the specimen signatures Exh. 5/A and 6/A is that the accused had reason to believe that the signatures on Exh. 4/A were forged and were not of the officers of the Jamil Chowk Samundri Branch. This conclusion finds further support from the evidence of the Hand Writing Expert who has opined that the writing on the advice Exh. 4/B, allegedly from the Jamil Chowk Samundri Branch to the Hotel Intercontinental Branch, which in fact is a forged document, is similar in every characteristic with the handwriting of the accused. The handwriting Expert Kishwar Kayani has specified the points of similarities in the enlarged photographs of the disputed and admitted writings, Exh. 16/A, and has stated that' there was no point of dis-similarity. The evidence of the handwriting expert thus lends support to the other evidence clearly indicating that the accused had reason to believe that the demand draft Exh. 4/A is a forged document.
12. By verifying the forged signatures of the drawers of demand draft, Exh. 4/A, the accused clearly aided and abetted, Ashfaq Ali, the payee of the demand draft whose signature was also verified by him by signing on the reverse of the demand draft, after the payee's signature had also been verified by D.W. Shakeel Ahmed and thereby allowed an amount of Rs.1,42,000 to be dishonestly and fraudulently drawn from the Hotel Intercontinental Branch and the said amount to be misappropriated.
13. For the reasons discussed by me above I hold the accused guilty of offences under section 403, 420 and 471, P.P.C. read with section 109, P.P.C. The offence was committed as far back as in the year 1981, much before the promulgation of Ordinance IX of 1984 whereby enhanced sentences were provided for offences committed in respect of banks, including provision made for imposing fines of not less than double the amount which was misappropriated or embezzled. Accordingly the provisions of the said Ordinance would not be applicable to the case of this accused. Keeping in view the long period that has elapsed since the commission of the offence for which the accused has been tried and the further fact that the main culprit is absconding and the probability is that he was the principal beneficiary of the fraud committed in this case as also the other circumstances of the case, including the fact that the accused is an educated person, I would impose on the accused in respect of each of the offences under sections 403, 420 and 471 read with 109 P.P.C. R.I. for 3 months. I would further impose a fine of Rs.50,000 on the accused in respect of the offence under sections '471 read with 109, P.P.C. In default of the payment of fine, accused will undergo further R.I. for 3 months. The substantive sentences of 3 months awarded to the accused under each of the offence under section 403, 420 and 471 read with 109, P.P.C. shall run concurrently while the sentence in default of payment of the fine under section 471 read with 109 shall run consecutively.
14. The accused is at present on bail. His bail is cancelled. He is remanded to judicial custody to serve out the sentences awarded to him by this judgment.
15. M. Y. H./17-SP. B. ????????????????????????????????????????????????????????????????????????????? Accused convicted.