REHMAT SHER Versus STATE

Charge against accused Rehmat Sher is that on 15‑11‑1978 while posted as cashier in UBL Taunsa Sharif Branch, he embezzled a sum of Rs.2,200 received in the branch from one Muhammad Saeed holder of A/c No. 190 and handed over to the accused cashier for being credited in the account of the said account‑holder.

2. The details of the said charge are that Kh. Qizal Arslan, the then Manager, received an amount of Rs.2,200 for being credited in the S.B.. A/c No.190 in the name of Saeed Ahmad. He entered the same in pay in slip and Receiving Cashier's Book, gave the receipt portion of the said pay in slip sheet duly signed by him to Muhammad Saeed and handed over the said sum alongwith the Cashier's Book and voucher portion of the said pay‑in‑slip sheet to accused Rehmat Sher but later when on the same day one Abdur Rauf visited the branch to purchase a demand draft for Rs.2,200 and demand draft application form alongwith cash was handed over to the accused cashier, the latter (the accused) effaced the entries pertaining to receipt of Rs.2,200 to the credit of A/c No.190 from page 77 of the Receiving Cashier's Book by using ink remover and in their place inserted entries regarding details of demand draft. He destroyed the voucher portion of the pay in slip sheet and consequently, the amount of Rs.2,200 was not credited to the A/c No. 190 and was misappropriated by him.

3. It is also alleged that accused Rehmat Sher had on 27‑11‑1978 confessed before Kh. Qizal Arslan, Manager and Zafarullah Khan Second Officer that he had misappropriated the said sum of Rs.2,200. He is also alleged to have deposited the said sum in the branch on the same day to make up the shortfall in the funds of the bank.

4. At the time when this case was received in this Court for trial, charge stood already framed against the accused for offence under section 409, P.P.C. In all 9 witnesses were examined by the prosecution in this case. In the challan there was indication that papers had once been sent to the handwriting expert for comparison and report. However, the information which came from police of P.S. Taunsa Sharif was that papers received from the expert were not being traced. Later, however, they produced a photo copy of letter dated 28‑7‑1983 from Forensic Science Laboratory, Lahore showing that laboratory had returned the material and had asked for further specimens and routine signatures and writing for a proper comparison. On 8‑9‑1986, statement of Muhammad Sadiq, SI was recorded. He stated that at the time when the said letter dated 28‑7‑1983 exhibited as Exh. PA was received, the then officers of the P. S. Taunsa Sharif had not taken any action to provide any further material required by the handwriting expert and returned the suspected document (Receiving Cashier's Register) to the bank. Learned Special Prosecutor sought further time for the said exercise to be completed. However, I declined to give any further time and closed the prosecution evidence as per my interim order dated 8‑9‑1986. Statement of accused under section 342, Cr.P.C. was recorded on 21‑9‑1986. The accused produced two witnesses in his defence. These two witnesses were originally prosecution witnesses, being the attesting witnesses of memo whereby documents were taken into possession by the police from the bank but had been given up by the P.P. on 20‑4‑1985 on the ground that they had been won over.

5. Out of the said 9 prosecution witnesses P.W.5 Azhar Ali Siddiqi is the informant in this case who filed the complaint application dated 12‑7‑1982, original Exh. P.W.5/1 and carbon copy Exh. P.W.1/1 in the P.S. Taunsa Sharif for registration of a case against the accused. He was Group Incharge in Zonal Office, Muzaffargarh on 12‑7‑1982 and got direction to lodge FIR and after eliciting the facts from the branch and after looking into the record, he recited the relevant facts in the said complaint which was signed by him. P.W.1 Rasool Bakhsh, Head constable recorded the formal F.I.R. Exh. P.W.1/2 on 10‑11‑1982 on the basis of the said complaint. Qazi Hamad‑ud‑Din who was Manager of the said branch on 5‑12‑1982 is a witness of production of bank documents before Investigating Officer, Muhammad Allah Yar, S.I., Police Station Taunsa Sharif. He deposed that he produced before the said police officer original deposit receipt dated 27‑11‑1978 whereby a sum of Rs.2,200 was deposited in S.B. Account No.190 of Saeed Ahmad Exh. P.W.4/1, Deposit receipt dated 15‑11‑1978 whereby a sum of Rs.2,200 was received for deposit in Account No. 190 of said Saeed Ahmad Exh. P.W.3/1, demand draft No.501270/1 dated 15‑11‑1978 in favour of Aftab Industries purchased by Rauf Ahmad as P. W.4/2, Photo copy of page 77 of Receiving Cashier's Book Exh. P. W.4/3 and photo copy of page 87 of Receiving Cashier's Book, dated 27‑11‑1978 Exh. P.W.4/4. All these documents were taken into possession by said Police Officer by virtue of memo. Exh. P.W.4/5, dated 5‑12‑1978. Muhammad Allah Yar, S.I., P.S. Taunsa Sharif appeared as P.W.8 and deposed in respect of his investigation including the factum of his having taken into possession of above‑said documents. P.W.6 Muhammad Nasim Khakwani who was Group Incharge of U.B.L. Zonal Office, Muzaffargarh on 15‑11‑1978 deposed that on report of Manager U . B. L. , Taunsa Sharif Branch against accused Rehmat Sher he had been appointed as enquiry officer by the Zonal Chief and that he had made an enquiry on 20‑2‑1979 and on the basis of the bank record scrutinized by him and the statement of witnesses who appeared before him, he came to the conclusion that the accused was guilty of misconduct and had misappropriated the sum of Rs.2,200 and that he had submitted a report to the Zonal Chief on the basis of which the accused had been dismissed from service of UBL. P.W.2 Ghazi Khan who was posted as gunman on 15‑11‑1978 deposed that a fraud of Rs. 2, 200 had been committed in the branch and Kh. Qizal Arsalan had made an enquiry and had detected the commission of forgery by the accused. He further deposed that the Manager Kh. Qizal Arsalan had asked the accused to deposit the said sum of Rs.2,200 in the branch to make up the shortfall in the funds of the bank and the accused complied with the request and deposited the said sum and as a result of enquiry made, accused was relieved of his duties in the bank and he is no more in service of the Bank. Depositions of remaining witnesses, P.W.3 Muhammad Saeed, account‑holder, who was declared hostile witness, P.W.7 Kh. Qizal Arsalan, Manager, UBL Taunsa Sharif, P.W.9 Muhammad Zafarullah Khan, Second Officer in the said branch are in respect of the essential merits of the case.

6. Kh. Qizal Arsalan who was Manager on 15‑11‑1978 appeared as P.W.7 and deposed that Muhammad Saeed holder of Account No. 190 had given to him Rs.2, 200 for deposit in his account and he had issued deposit receipt Exh. P.W.3/1 in his own hand and under his own signature and had also made entry of receipt of same in Receiving Cashier's Book at Sr. No.8 on page 77 (photo copy Exh. P.W.4/3). He further stated that he also made voucher (constituent part of the pay in slip) and handed over the said deposit voucher alongwith a sum of Rs.2,200 and the Receiving Cashier's Book to the accused and also informed him that he had made entry of receipt of this sum in the Receiving Cashier's Book. He also stated that another party Rauf Ahmad by name had come on that day to the branch for getting a demand draft, for a sum of Rs.2,200 prepared from the bank in the name of Aftab Industries and said Rauf Ahmad got application for issuance of demand draft Exh. P.W.4/2 filled in by him (the witness) and according to routine he took application Exh. P.W.4/2 and went to give said sum of money to the accused for issuance of demand draft and the accused received a sum of Rs.2,200 wrote the sum of 2,200 within cash receipt stamp affixed by him in token of his having received the said sum and made his signature. He (the said witness) identified writing and signature of the accused on the said document. According to the said witness the accused had then handed over application Exh. P.W.4/2 to him on which he had issued demand draft. The said witness further deposed that after some days he found that entry of receipt of Rs.2,200 from Muhammad Saeed holder of Account No. 190 at Sr. No.8 of page 77 of Receiving Cashier's Book relating to 15‑11‑1978 had been effaced with ink remover and instead of Account No. 190 DD had been written over it and instead of words Saeed Ahmad in column No.3 now the words written were Head Office Accounts, Jhang Sadar and in the column meant for commission on the demand draft, which was originally blank, sum of Rs.1,30 was written. The said witness further deposed that the accused was absent on that day from the branch and on getting information that the accused was available in Taunsa Sharif Bazar, he contacted him and asked him as to why he had made the said interpolations in the record on which accused asked for forgiveness and also promised to bring and deposit in the bank a sum of Rs.2,200 and that the accused had come to the branch on 27‑11‑1978 with the said sum of Rs.2,200 and had deposited the same in the branch vide voucher, dated 27‑11‑1978 Exh. P.W.4/1 which was written by the accused in his own handwriting in his presence. He also stated that the accused made entry at Sr. No.5 on page 87 of the Receiving Cashier's Book in respect of receipt of the said sum in his own handwriting. This witness was subjected to gruelling cross‑examination but nothing substantial in favour of the accused could be elicited from him by the learned counsel for the accused. This witness also proved the circumstance of his having received a sum of Rs.2, 200 from Muhammad Saeed holder of Account No. 190, having prepared and signed receipt portion and voucher portion of pay in slip sheet, given the deposit receipt Exh. P.W.3/1 to Muhammad Saeed and having made an entry of the said sum at serial No.8 on page 77 of the Receiving Cashier's Book and then having handed the said sum, the deposit voucher and the said register to the accused and having also informed the accused that he had made the entry of the same in Receiving Cashier's Book. At the time when the evidence of this witness was recorded I had noted that the original writing against Sr. No.8 on the said page in the original register had been effaced with the ink remover and over it new words DD in column No.2 H.O. Accounts, Jhang Sadar under column No.3 had been written, the previous writing had not been completely obliterated and digit '9' of Account No. 190 was still visible underneath in between two Ds DD (Demand draft) and '0' of 190 (Account number) was also visible which clearly showed that there had been an attempt to afface the earlier entries by an ink remover or by some other chemical, and over it fresh entry had been made. This witness also proved that the said fresh entry was in hand of the accused.

7. The learned counsel for the accused has attacked the veracity of this witness on the ground that he was actuated by enmity towards the accused. I have considered this point. The said witness had denied the suggestion that the involvement in this case of the accused was on account of differences of the accused with him in connection with the giving of overdrafts by the witness in violation of law and practice of banking. The learned counsel for the accused pointed out to me that P.W.9 Muhammad Zafarullah had stated towards the end of his cross-examination that after 15‑11‑1978 when the accused was sick and wanted to get leave, there was a lot of argument between him and the Manager who did not want to give him any leave. It may, however, be seen that this witness had at the same time, clearly denied the suggestion that this case was a false one and had been fabricated by Kh. Qizal Arslan, Manager, in order to get the accused removed from bank service. He also stated that there was no bad blood between Kh. Qizal Arslan and accused earlier and, therefore, admission of this witness that there was a lot of argument between the accused and the Manager was an ordinary incident of relationship between P.W.7 Khawaja Qizal Arslan the Manager, and the accused his subordinate. Argument in a matter does not even amount to altercation to give Manager Qizal Arsalan any cause to make a false case against the accused. In this connection, I have to refer the statement in cross‑examination of P.W.6 Muhammad Aslam Khakwani that accused had stated before his during inquiry that Kh. Qizal Arslan had personal enmity with him but he (the accused) had not been able to prove the same. P.W.8 Muhammad Allah Yar, S.I., I.O. stated that it never came to his notice that there was any ill‑will on the part of the Manager, Qizal Arslan towards the accused and the accused never informed him during the investigation that Manager Kh. Qizal Arslan was inimically disposed towards him. The accused had stated in his statement under section 342, Cr.P.C. that Kh. Qisal Arslan had personal enmity towards him because he used to issue temporary overdrafts to the businessmen of the area and he was opposed to that. He produced two witnesses in his defence namely Haji Muhammad Ramzan D.W.1 and Ghulam Muhammad D.W.2 to prove enmity of Kh. Qizal Arslan towards him. D.W.1 Haji Muhammad Ramzan only stated that there used to be quarrel between accused and Kh. Qizal Arslan in the branch in connection with his dealings with customers and giving and taking of the cash in the branch and apart from that there was no enmity by Qizal Arslan towards the accused and there was no ill‑will on any other ground. D.W.2 Ghulam Muhammad stated in his examination‑in‑chief that accused had always dispute with Kh. Qizal Arslan. However, he conceded in cross‑examination that he had no account in the branch to have the occasion to note that there used to be dispute between the two. This witness stated that he did not know as to what was the basis of enmity and that the only thing he knew was that they were always found quarrelling with each other. I am not inclined to believe that accused was always quarrelling with the Manager, because if there is quarrel and there is valid reason (short of an illegality) for a subordinate to quarrel with the Manager, the higher authorities of the bank usually transfer either the Manager or the subordinate. In any way in my view the mere fact that they were quarrelling with each other which does not even amount to exchange of bitter words did not furnish a motive to Qizal Arslan to make a false case against the accused. Mere quarrel cannot induce a Manager to' make a false case against his subordinate. The statements of these two defence witnesses are, therefore, of no avail to the accused. The principle of discarding of oral testimony of witnesses in the interest of safe administration of justice is dependent for its application on it having been proved that the witness was actuated by malice or enmity. No such malice or enmity has been proved in this case. Furthermore, the said principle cannot be applied to the testimony of a witness which is supported by documentary evidence providing patent and uncontrovertible facts which form the guidelines in the case. Such documentary evidence is available in the present case. The statement of Kh. Qizal Arslan is corroborated by the deposit receipt Exh . P . W. 3 / 1 which he issued on 15‑11‑1978 to Muhammad Saeed and continued existence of some portion of the effaced entry at serial No.8 on page 77 of Receiving Cashier's Book which conclusively proves the truth of the oral testimony of said witness that he had made entry of receipt of Rs.2,200 from Muhammad Saeed on 15‑11‑1978 at Sr. No.8 of the said register. Statement of Kh. Qizal Arslan that accused had deposited the said sum of Rs.2,200 on 27‑11‑1978 is also supported by the deposit voucher Exh.P.W.4/1 and entry of receipt of said sum in Exh.P.W.4/3 page 87 of Receiving Cashier's Book for 27‑11‑1978. Statement of this witness, therefore, corroborated as it is by the said documentary evidence, is liable to be believed and there is no reason to discard the testimony of this witness. Even otherwise statements of the said witness inspires confidence. It has, therefore, got to be believed.

8. Learned counsel for the accused had laid great stress on the circumstance that the said two witnesses were originally prosecution witnesses and his argument is that the evidence of the said two witnesses should, therefore, be accepted in toto. It cannot, however, be ignored that the said two witnesses were only formal witnesses and production by the then Manager of the Branch of the bank record before the Investigating officer and their roll as prosecution witnesses did not extend beyond deposing that they had seen the then Manager handing over the said documents to the Investigating Officer. If, therefore, they deposed in respect of enmity of Kh. Qizal Arstan towards the accused no special importance can be given to the circumstance that they are prosecution witnesses appearing as defence witnesses and their evidence cannot be accepted in toto solely on that ground. Furthermore, formal witnesses are known to be frequently making false concessions in favour of the accused as regards essential facts and circumstances of the case of which they were not witnesses only in order to oblige the accused and the Courts have been giving little credence to their said concessions. In the present case, there is the additional circumstance of there being the statement of the Public Prosecutor that the said witnesses have been won over. In these circumstances taint stood attached to their names as witnesses who have been discarded and rejected by the very party on whose behalf they had once undertaken to appear. Therefore, whether the said witnesses appeared as prosecution witnesses and made obliging concessions in favour of the accused or they appeared as defence witnesses for the same purpose, their testimony continues to remain open to objection of being evidence of won‑over prosecution witnesses. Furthermore, as stated by P.W.6 Muhammad Nasim Khakwani and P.W.9 Muhammad Zafarullah and the said two D.Ws., the accused belongs to a rich family of landlords of Taunsa Sharif who are chiefs of their tribe and in the position in which the said two DWs of Taunsa Sharif stood placed in the said town they could not have failed to fall in line with the accused and give evidence which they have given to oblige the accused and his family. Little credence can, therefore, be given to the testimony of the said two witnesses on the ground that they were originally prosecution witnesses.

9. Thus none of the circumstances relied upon by the learned counsel for the accused is sufficient to have Kh. Qizal Arslan treated as an interested witness. The evidence of the said witness cannot, therefore, be ignored. Rather being Manager of the branch, he was natural witness of the said occurrence which had taken place in the branch and for that reason his evidence is entitled to credence. He must, therefore, be believed.

10. P.W.9 Muhammad Zafarullah was Second Officer in the same branch. He was on leave on 15‑11‑1978. The said witness stated that on 27‑11‑1978 Kh. Qizal Arslan showed him the sheet of Receiving Cashier's Book relating to 15‑11‑1978 and informed him that accused Rahmat Sher had defalcated a sum of Rs.2,200 from the bank. He further stated that on the said date Kh. Qizal Arslan had left him in the branch and had gone along with remaining staff to meet the accused who was stated to be in the Bazar. The same story had been related by Kh. Qizal Arslan. That portion of the story told by Kh. Qizal Arslan is, therefore, fully supported by this witness. This witness also proved overwritten entry made against Serial No. 8 of page 77 of the Receiving Cashier's Book to be in the hand of the accused. He also stated that something else was previously written in the space provided for the entry at serial No. 8 under column No.2. The said witness also proved that the accused had deposited a sum of Rs.2,200 in the branch on 27‑11‑1977 by means of credit voucher Exh. P.W.4/1. He identified the writing on the said voucher to be in the hand of the accused. That part of the story told by P.W.7 Kh. Qizal Arslan, therefore, is also supported by the statement of this witness.

11. P. W.3 Muhammad Saeed, holder of account No. 190 in the year 1978 stated that he paid Rs.2,200 to Kh. Qizal Arslan for deposit in his account and that Kh. Qizal Arslan, Manager had given receipt Exh. P.W.3/1 showing a deposit of Rs.2,200 in his account. He also stated in cross‑examination that Kh. Qizal Arslan himself had filled in the papers regarding deposit of Rs.2,200, and that subsequently when he went to withdraw money from the branch, there on the inquiry of Manager he had produced the said receipt before him. Now when we peruse the receipt Exh. P.W.3/i it is clear therefrom that the said sum had been deposited on 15‑11‑1978. In my opinion, therefore, this portion of the statement of this witness fully supported the statement of Kh. Qizal Arslan that Muhammad Saeed had deposited Rs.2,200 in his account on 15‑11‑1978 and that Kh. Qizal Arslan had issued him a receipt and he had subsequently gone to the bank to withdraw the said sum. It is true that this witness was declared as hostile witness but the legal position is that evidence of hostile witness cannot be rejected outright and had to be given due consideration and can be used by either party to the extent it helps him.

12. I am conscious that the said witness had stated in cross-examination by the defence counsel that he had gone to deposit the said sum of Rs.2,200 on 27‑11‑1978. This date of deposit of the said sum is however, directly negated by the date given in incontrovertible piece of documentary evidence consisting of deposit receipt Exh. P.W.3/1 admittedly received by this witness from Kh. Qizal Arslan, which clearly shows that said sum had been deposited on 15‑11‑1978. The said witness had not stated that have come back to withdraw the said sum on the same day on which he had deposited it. He had instead stated that he had gone to bank subsequently when need arose to withdraw the sum. It is obvious therefore, that he had deposited the said sum on 15‑11‑1978. The evidence in regard to effacing of the previous entry on the page of Receiving Cashier's Register relating to 15‑11‑1978 cannot be set at naught on the ground that the said witness had made the said statement in his cross‑examination. The said portion of the statement of this witness does not, therefore, detract from the correctness of my finding that the statement of this witness also supports the prosecution case against the accused.

13. The factum of the accused having deposited a sum of Rs.2, 200 on 27‑11‑1978 was also proved by P.W.2 Ghazi Khan gun man of the branch when he appeared as P.W.2. The said witness stated that the Manager Kh. Qizal Arsalan asked the accused to deposit the sum of Rs.2,200 in the bank to make up the shortfall in the funds of the bank and that the accused complied with the same and deposited the said sum in the bank. Learned defence counsel did not contest the correctness of this portion of the testimony of this witness and, therefore, the accused must be deemed to have accepted that this portion of evidence of this witness was correct on factual plan.

14. P. W.4 Qazi Hamad‑ud‑Din was the Manager UBL Taunsa Sharif Branch on 5‑12‑1982. He deposed only that he had produced before the Investigating Officer the bank documents. Learned counsel for the accused, however, cross‑examined this witness to find out the identity of author of entries/initials/signatures on the said document. The said witness identified the overwritten entry against serial No. 8 at page 77 of Receiving Cashier's Register Exh. P.W.4/4, the body writing on deposit voucher, dated 27‑11‑1978 Exh.P.W.4/1 and entry, dated 27‑11‑1978 against Sr. No.4 of Receiving Cashier's Register Exh. P.W./3 h to be in the hand of the accused. The said portions of the statement of this witness fully support the story of the prosecution. Same is the case as regards statement made by P.W.6 Muhammad Naseem Khakwani in his cross‑examination. Answers received in cross‑examination of P.W.5 Azhar Ali Siddiqi are consistent with case of the prosecution and also support the prosecution story.

15. Plea of the accused in his defence and of learned counsel for the accused in arguments is that this case had been made against him (the accused) due to alleged inimical feelings of only one person namely Kh. Qizal Arsalan towards him (the accused). However, other witnesses of the prosecution too have given evidence against the accused. Learned counsel for the accused has not, in this context explained why the said other witnesses too had deposed against the accused. The said witnesses are not shown to have given evidence at the instance of Kh. Qazil Arsalan, Manager. Some of the witnesses were of equal and even higher status. There is no reason why the said witnesses of equal or superior status should have given evidence against the accused and contributed to the wrong ambition of Kh. Qizal Arsalan to have the accused dismissed from service and given shoulder to his wrong act in seeking to get a false case made against the accused. There was a suggestion to P.W.6 Naseem Khan Khakwani that he had not allowed the accused to give defence evidence in departmental inquiry held by him which was denied. There was, however, no suggestion that he did not allow the accused to produce evidence on account of his connection with Kh. Qizal Arsalan. Muhammad Naseem Khakwani was senior officer of the bank and was of the status of Zonal Chief. It is not shown why the witness of his status should support an ordinary Manager and make a false statement just to involve the accused, a petty official of the bank, when he had no enmity towards and no malice against him and had no ulterior motive of involving him in a false case. The other witnesses too were not shown to be bound to the chariot wheel of Rh. Qizal Arsalan and were, therefore, independent persons. There was no suggestion to the said other witnesses who were employees of the bank that the were giving false evidence on the instructions of or at the instance of Kh. Qizal Arsalan. It is obvious, therefore, that they gavel evidence of their own accord and not on account of any connection with Kh. Qizal Arsalan who happened to be the Manager of the Branch.

16. The accused had stated in his statement under section 342, Cr.P.C. that the said witnesses had deposed against him because they were employees of the bank. It is not, however, possible for me to believe that said witnesses had given evidence against the accused merely because they were employees of the bank. When they accepted service in the bank, they did not surrender their independence, their belief, their faith and their good sense to authorities of the bank, nor the authorities of the bank are known to have made any such demand on them. They cannot be held to be inimical towards the accused merely because they were employees of the bank. They are rather natural witnesses. The said witnesses cannot be treated as interested witnesses merely because they were employees of the bank. Therefore, the plea of the accused that witnesses had deposed against him because they were employees of the bank is hardly of any consequence to the accused.

17. The entry against serial No. 8 on page 77 of Receiving Cashier's Register for 15‑11‑1978 clearly shows that there was a writing available underneath the fresh entry of issuance of demand draft in favour of Aftab Industries Jhang Sadar, Jhang at the instance of Rauf Ahmad. Kh. Qazil Arsalan, Manager had stated that the said entry was one which had been made by him in his own hand against serial No. 8 of said register and it was in respect of sum of Rs.2,200 having been received from Muhammad Saeed holder of Account No.190. The fact that digits '0' and '9' are still visible at page 77 of the original register shows that the statement of Kh. Qizal Arsalan is absolutely correct.

The fresh entries of the words Demand Draft, Head Office Account Jhang Sadar and commission 1‑30 have been proved by the statement of Kh. Qizal Arsalan to be in the hand of the accused which he identified. The accused himself in his statement under section 342, Cr.P.C. accepted the said entry to be in his handwriting. It is clear that when the accused made the said entry, remnants of an earlier entry which clearly appeared to have been effaced by an ink remover or some other chemical were available. If, therefore, the accused made the said new entry in spite of the same, he did it intentionally. Furthermore, he could not have made the fresh entry unless he himself had effaced the previous one. Apart from the Manager, he alone could make entries in Receiving Cashier's Register on 15‑11‑1978 as he was the cashier. If any other person had effaced the previous entry, the accused should have desisted from making the new entry and brought the matter to the notice of the Manager. That, however, was not done. That conclusively shows that the accused himself had effaced the said previous entry and had made fresh entry in its place. The result of this was that there was now only one entry of receipt of a sum of Rs.2, 200 on 15‑11‑1978 in the said register and one of the two sums of Rs.2,200 each which he had received on that day became surplus with him. He did not account for the said sum in the bank at the closing hour by depositing it in sundry account of the branch and obviously took it away with the dishonest intention to misappropriate it. He continued to keep this money with him and obviously misappropriated it.

18. It appears from the statement of P.W.7‑Kh. Qizal Arsalan that confession was made by the accused in respect of his having defalcated the sum of Rs.2,200 in Taunsa Sharif Bazar where Kh. Qizal Arsalan had gone to contact him on 27‑11‑1978. The said witness had stated that he contacted the accused in the Bazar and asked him as to why he had made the interpolations in the record of the bank upon which the accused had begged for forgiveness. There is no description of confession having been made at any other time too in the remaining portion of his testimony. He did not state that the accused had confessed his guilt and begged for forgiveness at the time when he came to the branch and deposited sum of Rs.2,200 on 27‑11‑1978. As against that P.W.9 Muhammad Zafarullah stated that the accused made confession when he visited the branch on 27‑11‑1978 and deposited sum of Rs.2,200 in the branch on the said date. This witness further stated that during the inquiry, the accused had made confession before him. In these circumstances in view of the serious discrepancy between the statements of the said two witnesses, I am not inclined to accept that the accused made any extra judicial confession in this case before any one of the prosecution witnesses.

19. However, the circumstances that the said sum of Rs.2, 200 had been deposited by the accused in the bank on 27‑11‑1986 by means of voucher Exh. P.W.4/3 (portion of pay in slip meant for the bank) which was written in the hand of the accused and the circumstance of entry of said refund at serial No. 4 on page 87, dated 27‑11‑1978 of Receiving Cashier's Book was also in the hand of the accused stand clearly fully proved which fully establish that the accused had earlier made defalcation of the said sum from the branch. There was no reason for the accused to have filled the said voucher and made entry in Receiving Cashier's book for 27‑11‑1978 in his own hand if he had not defalcated the said amount earlier and had not then the intention to reimburse the bank for the shortfall brought in the funds of the bank on that account. The accused has been proved to be absent from the bank on 27‑11‑1978. He was not working on that day in the bank and there was no reason for him to have made entry in the said voucher and on the said page of Receiving Cahier's Book for 27‑11‑1978 unless he meant to pay back the said sum to the bank on the ground that he had embezzled the same. Under these circumstances, it is established from this piece of evidence too that the accused had defalcated the sum of Rs.2, 200 which had been deposited in the branch by Muhammad Saeed holder of Account No. 190 on 15‑11‑1978 and had been handed over to the accused by Kh. Qizal Arsalan, who had originally received the same.

20. The upshot of the above discussion is that it stands conclusively proved from evidence on record of this case, that the accused committed on 15‑11‑1978 the offence of criminal breach of trust in regard to said sum of Rs.2,200.

21. The learned counsel for the accused has challenged the statements of P.W.7 Kh. Qizal Arsalan, P.W.9 Zafarullah, P.W.4 Qazi Hamad‑ud‑Din and P. W.6 Muhammad Nasim Khakwani in regard to identification by them of the handwriting of the accused on one or on all the three documents on the ground that no handwriting expert had been produced. In my opinion, however, the handwriting expert was not needed when evidence of the persons acquainted with the handwriting of the accused was available. It is established law that the evidence of handwriting expert in respect of identification by him of the handwriting and signature of a person is a weak type of evidence and is not liable to be believed without corroboration and that no conviction can be based upon the sole testimony of the handwriting expert. This is, however, not so in case of witnesses who are acquainted with the handwriting of a person on the basis of any one of three sources of acquaintance with the handwriting given in explanation to section 47 of the Evidence Act, 1872. Evidence of the persons acquainted with the handwriting of the persons has never been held to be weak type of evidence and has always been accepted as sufficient and valid evidence in that regard. The learned counsel for the accused had not challenged the testimony of the said witnesses in respect of identification by them of the handwriting of the accused on the said documents on the basis of source of their acquaintance with the said handwriting. The accused has, therefore, got to be assumed to have accepted the correctness of the statements of the said witnesses in regard to the identification by' them of the handwriting of the accused on the said documents. I, therefore, reject the contention of the learned counsel for the accused that the statements of said witnesses in regard to identification cannot be accepted on the ground that the handwriting expert had not been produced.

22. The learned counsel for the accused has next contended that the accused had been proved in the evidence on record to belong to a rich family of agriculturists and for that reason there was no reason for him to have made away with a paltry sum of Rs.2,200 from the bank and misappropriated the same. This argument, however, cannot be accepted in the present state of our society when dacoities are being committed by persons belonging to rich families. The Court cannot close its eye to the changed circumstances of the society. What was improbable previously has not become probable. Wealth now does not restrain its owner from committing defalcation of even partly sums of money. In this state of affairs, hard facts conclusively proved by evidence on record cannot be displaced by notion of improbability of the act born of old values of our society. I, therefore, reject this contention of learned counsel for the accused too.

23. The learned counsel for the accused has next submitted that the defalcation in question was a temporary defalcation as the accused had paid the said sum within the period of 12/13 days. I, however, do not think that this was a temporary defalcation. The accused had not deposited the said sum till the defalcation by him of the said sum had been detected and he had been asked to make up the same. It is then alone that he felt inclined to pay back the said sum on 27‑11‑1978. When he received the said sum on 15‑11‑1978, he obviously had no intention to reimburse the same to the bank after 12/13 days. His original intention was to make away with the said sum for all times to come and misappropriate the same. This is conclusively established by the circumstance of his having made entry of sum of Rs.2,200 for the demand draft after obliterating entry of the same sum as deposit in Account No. 190 of Muhammad Saeed. In my opinion, therefore, the point raised by the learned counsel has no substance.

24. Thus, none of the points raised by the learned counsel for the accused detract from the correctness of my finding that the accused had on 16‑11‑1978 committed offence of criminal breach of trust in regard to said sum of Rs.2,200.

25. Being an employee of a banking company; accused was an employee of a corporation and as such was a public servant within the meaning of said words as given in the explanation to section 161, P.P.C. He, therefore, committed the offence of criminal breach of trust by a public servant which is punishable under section 409, P. P. C. Accordingly, I convict him of offence under section 409, P.P.C. In this case, for the purpose of determination of nature of sentence of imprisonment to be passed it is not the amount of money defalcated which matters. What is more important is the manner in which offence in question had been committed by the accused. He committed the offence by obliterating the previous entry made by the Manager in his own hand in Receiving Cashier's Book by using ink remover or some other chemical and replacing it with a new overwritten entry except for the original of a sum of Rs.2,200 which was allowed to remain as it was. This modus operandi of the accused is most dangerous for the banks and is likely to have most serious consequences for them if the accused is allowed to go with a small period of sentence. Such a situation calls for deterrent sentence. One of purpose of the special law namely Offences in Respect of Banks (Special Courts) Ordinance, 1984, I believe is to restore the shatered confidence of public in banks which are national institutions and that object can be achieved only by stern handling of the accused. In this case which has so ably been argued by learned Public Prosecutor Mr. Nazeer Ahmad Ghazi my attention has been drawn by him to section 382‑C Cr. P. C . in which it has been laid down that in passing a sentence on an accused person for any offence, a Court may take into consideration any scandalous or false and frivolous plea taken in defence by him or on his behalf. Learned Public Prosecutor has vociferously argued that all the pleas taken by the accused in his defence were false and frivolous and, therefore, the sentence of imprisonment to be passed on him should be more than the normal period of imprisonment imposed on such convicted person as had not taken any such pleas. I have considered the argument of learned P.P. Supported as it is by a provision of law, it is, in my opinion, liable to be given effect to. P.W.7 Kh. Qizal Arsalan was given a suggestion that departmental inquiry was held against him in Rojhan Branch in respect of embezzlement by him of any agricultural loan. He denied the correctness of the said suggestion and added that not even a letter was sent in respect of any such incident nor any charge was ever framed against him in that respect and the suggestion was totally false. Thus the said plea of the accused which pertained to credibility of this witness, was false. Again Kh. Qizal Arsalan had been given the suggestion that the accused had been involved by him falsely in this case on account of differences with him regarding giving of overdrafts by him in violation of law and practice of banking. His suggestion, however, was never proved in he defence. The plea on behalf of the accused that Kh. Qizal Arslan was inimically disposed towards him, as already shown, had also not been proved by the two DWs produced by the accused in defence. The inference which can be drawn from the said circumstance is that this suggestion was, false and frivolous and had been made only in order to insult or annoy the said witness. However, more serious than these was the suggestion given to P.W.5 Azhar Ali Siddiq that the entire forgery in the record had been made by Kh. Qizal Arsalan as he had grudge against accused and he had done all this in order to implicate the accused in this false case. The accused did not produce any evidence to show that the said suggestion was even justified. The inference which flows from this circumstance also is that this plea of the accused was a false and frivolous one. Again a suggestion was given to Zafarullah P.W.9 that this case was false one and had been made by Kh. Qizal Arsalan in order to get the accused removed from bank service. The accused in his statement under section 342, Cr.P.C. also stated that Kh. Qizal Arsalan, Manager had personal enmity towards him because he used to issue overdrafts to the businessmen of the area and he (accused) was opposed to that and that he (Kh. Qizal Arsalan) had compelled him (the accused) to make false entries in the record in his (accused's) hand in respect of receipt of Rs.25,000 though the cash for these credit entries had not been deposited in the branch and that Kh. Qizal Arsalan had given him two cheques for said sum of Rs.25,000 in support of said two entries but he (the accused) objected to that course as it was not cash on account of which Kh. Qizal Arsalan threatened him with dire consequences. This defence plea, however, was not put as a suggestion to any one of the witnesses. That shows that this plea too was false and had not even been concocted at the time the evidence of witnesses was recorded. It was not proved in defence evidence either. That also shows that this plea was frivolous. In my opinion, therefore, all the above pleas taken by the accused in his defence in this case were false and frivolous. Therefore, in the circumstances of this case, the accused should be given an exemplary punishment. If that is not done no bank Manager would like to detect a forgery in the branch made by his subordinates nor dare to get a case registered against him. I would, therefore, in determining the quantum of sentence take into consideration the false and frivolous pleas on behalf of the accused in his defence.

26. Taking into consideration all the facts and circumstances of this case, I sentence the accused under section 409, P.P.C. to rigorous imprisonment for a period of 2 years and a fine of Rs.5,000 and, in default of payment of the said fine to further R.I. for six months. I further direct that the accused shall not be entitled to benefit of section 382‑B, Cr. P. C. and shall be made to serve full term of imprisonment.

S. A. /1/L Accused convicted.