1986 P Cr (PLP)

(3) Whether accused Hamid Ali Khan transferred to Account No. 148 of Messrs Alay Textiles, Rs.20,000 from S.B. Account No.S‑49 of Mrs. Shakila Majid on 28‑7‑1969, Rs.31,000 from Account No. M‑69 from S.B. Account No.C‑9 of Lal Din on 10‑10‑1969 and another account of Rs.16,000 from S.B: Account No. C‑9 of Lal Din on 12‑11‑1969 and Rs.20,000 from S.B. Account No. H‑24 of Dr. Haroon Rashid on 1‑11‑1969? (4) Whether holder of Account Nos. S‑49; M‑69; C‑9 and H‑24 had authorised accused Hamid Ali Khan orally or in writing to transfer from their accounts any amount to Account No. 148 of Messrs Alay Textiles? (5) Whether accused Hamid Ali Khan as Manager, S.P.I.T. Branch of National Bank of Pakistan granted overdraft loan of Rs.3,01,788.82 to co‑accused Musharaf Ali Proprietor Messrs Alay Textiles unauthorisedly by abusing his official position? (6) Whether accused Hamid Ali Khan as Manager S.P.I.T. Branch of S.B.P. Karachi falsified book of account of his branch? (7) Whether accused Hamid Ali Khan as Manager of said branch unauthorisedly granted a loan of Rs.22,984.35 to Manzil Trading Corporation by abusing his official position as a public servant? (8) Whether accused Musharaf Ali, Proprietor Messrs Alay Textile got from co accused Hamid Ali Khan unauthorised loan to the tune of Rs.3,01,788.82? (9) Whether accused Musharaf Ali abetted commission of the offence under sections 468 and 477‑A of P.P.C. by co‑accused Hamid Ali Khan? (10) Whether accused Qamarul Islam sponsored six cheques of his closed accounts and allowed use of said cheques by cc‑accused Hamid Ali Khan for crediting account of co‑accused Musharaf Ali? (11) What offences if any, have been committed by the accused? Point No. 1 was decided in affirmative. Point No. 2 was decided in negative. Points Nos. 4 and 5 were decided in negative. Point No. 6 was decided in the affirmative. Point No. 7 was left undecided. Point No. 8 was decided in the negative. As regards point No. 9 it was decided that Musharaf Ali abetted commissions of the offence punishable under section 477‑A but not under section 468 of P.P. C. On such findings the appellants were convicted.

5. In order to bring home the charge the prosecution examined complainant Syed Mujtaba Hussain Zaidi and P.Ws. Mrs. Syedda Shehnaz, Abid Ali, Lal Din, Tariq Jamil, Abdul Shakoor, Muhammad Akbar and Riasat Ali Mirza. The Court also examined Muhammad Zamir Khan and Muhammad Maqsood Khan, the Investigating officers.

6. I have heard Messrs Azizullah K. Shaikh and Abdullah Chandio for the appellants and Mr. Imam Bux Shaikh for the State and Mr. Shakir Ali for the National Bank of Pakistan. Point No. 5 as framed by the learned Special Judge is most vital and this point was decided against the prosecution. It was observed by the Court, while referring to the evidence and particularly to suit filed by the National Bank of Pakistan against accused Musharaf Ali for the recovery of Rs.3,13,059.63 (Exh.69/18), that National Bank of Pakistan has averred in the plaint that cash credit limit to the extent of Rs.2,00,000 was granted to accused Musharaf Ali and he utilised the same by 22‑12‑1969 after pledging his stock of bandage cloth with the bank as security and after executing Cash Credit Agreement. It was further stated by the said bank in the plaint that on 18‑12‑1969 accused Musharaf Ali was allowed overdraft facility in his Account No. M‑

14. It was further stated that in his Current, Mutual and Open Account No. 148 accused Musharaf Ali received various amounts during the period 29‑3‑1968 to 17‑9‑1970 and that as a result of such transactions a sum of Rs.3,01,788.82 was due and payable by accused Musharaf Ali to the National Bank of Pakistan on 19‑11‑1969. Photo copy Exh.69/1 of a letter, dated 19‑12‑1969 shows that Regional Office had sanctioned advance of Rupees two lacs to Messrs Alay Textiles and in consequence Messrs Alay Textiles executed Demand Pronote Exh.69/3 (photo copy) in favour of the said bank. After discussing the evidence the trial Judge has observed that all this evidence shows that accused Hamid Ali is not liable if National Bank of Pakistan granted overdraft facility to the tune of Rs.3,02,000 on 19‑11‑1969. In fact this was the major charge against appellant Hamid Ali that he in complicity with accused Musharaf Ali had granted overdraft facility to Musharaf Ali and in order to help him not only falsified the account but also transferred the amounts from the, accounts of various account holders without their permission and consent. If it is the case of the prosecution itself that accused Musharaf Ali had been granted overdraft facility and in fact he had pledged the cloth as a security then the case of the prosecution on the said charge cannot be established. As regards points Nos. 3 and 4, though the account‑holders, who have been examined at the trial have denied that they had consented to the transfer of their amounts to the account of co‑accused Musharaf Ali but accused Hamid Ali has denied this fact. He has stated that the amounts were‑transferred with the consent of the account‑holders. In support of such contention the accused has examined D.W.3 Shabbir Hussain, handwriting expert, who corroborated the statement of the accused and came to the conclusion that the signatures on the debit vouchers bear the signatures of the same person. who had put her signatures on the account opening form. The evidence of the handwriting expert was discarded on the ground that it was an afterthought and he has not given sound and convincing reasons in support of his opinion. It was further observed that the High Court in 1975 PCr.LJ 1151 had observed that evidence of Handwriting Expert is to be taken with caution and cannot be implicitly relied upon. The prosecution has not cared to examine any handwriting expert to show that the confirmation slips Exhs.11‑A, 12‑A and 13‑A do not bear the signatures of the account‑holders. P.W. Muhammad Roshan has stated that these slips were prepared subsequently by him at the instance of accused Hamid Ali but if he had prepared these slips then he himself is an accomplice and his statement cannot be implicitly relied upon. He did not inform the higher authorities about the preparation of the slips by him, at IA the instance of the accused. The business of the bank runs through the confidence, therefore, every employee of the bank had to be careful so that this confidence of the account‑holders should not be shaken. As such the statement of this witness cannot be accepted unless corroborated by any other piece of evidence, which is none in the present case. There are words against words. If the bank had authorised the appellant Musharaf Ali to avail the benefit of overdraft facilities and the trial Judge has also come to the same conclusion then the preparation of false accounts does not appeal to reason. The main allegations against the appellants have not been established. The statement of the expert produced by the appellant may not be accepted but the appellant Hamid Ali has categorically stated that the account‑holders had signed the slips and he had verified it from their specimen signatures kept in the bank, therefore, all conceivable benefits had to be given to the accused in such circumstances. It is also to be noted that a civil suit had been filed for the recovery of the amount but no allegation of fraud etc. had been made. The learned trial Judge had observed that it was not necessary in a civil suit to make such allegations. This may be so but a statement of fact alleged by one party and denied by other party has to be proved. The plaint in the civil suit is a document which can be referred to in the criminal 'trial to show that what was the stand of the plaintiff in that suit. In fact the bare perusal of the plaint would show that the allegations made in the prosecution case by the witness appeared on behalf of the bank are against the contents of the plaint itself. The decree in the civil suit has been passed against accused Musharaf Ali. Accused Hamid Ali had produced letters Exhs. 11‑A, 12‑A, 13‑A and 14‑A purporting to have been addressed to him by Dr. Haroon Rashid, Lal Din and Mrs. Shakeela Majeed authorising him to transfer various amounts from their accounts. Thug, a plea has been raised by the appellant and if the case of the prosecution is placed in juxta position with the case of the appellant then the benefit of these letters has to be given to the appellants as there is nothing to rebut the same. Then. the reverse entries of equal amounts have been made and thus, no loss had occasioned to the account‑holders. Keeping in view the finding of the learned trial Judge on issue No. 5 and issue No. 8 the findings on issues Nos. 3 and 4 in view of the facts and circumstances are to be recorded against the prosecutions. As regards the falsity of accounts it is the case of the appellant Hamid Ali that he had received six cheques deposited by accused Musharaf Ali and the amount was credited in the account of Messrs Alay Textiles but when the cheques were returned unpaid accused Hamid Ali made reverse entries in the account of Messrs Alay Textiles. On point No. 9 it has been held by the trial Judge that Debit Voucher No. 8 had been forged and so also the signatures on confirmation letters Exhs. 12‑A and 13‑A but there is no evidence to show as to who was author of this forgery. Prosecution did not examine any handwriting expert to show if the forged signatures were made by accused Hamid Ali or Musharaf Ali or anybody else. It was, therefore, held that accused Hamid Ali is not proved to have committed the offence of forgery and accused Musharaf Ali is not proved to have abetted the commission of the offence of forgery by accused Hamid Ali Khan. In spite of this finding it was held that accused Musharaf Ali had abetted the offence under section 477‑A , P.P.C. Point No. 10 was also decided in the affirmative. The appellant Qamarul Islam had not admitted that he had issued three cheques in favour of Messrs Alay Textiles after 4‑12‑1969. According to him all the unused cheques were returned by him to the bank on the date of closing the account. He denied that: he allowed such cheques to be used by accused Musharaf and Hamid Ali for the purpose of defrauding the National Bank of Pakistan. It was observed that these cheques were supposed to be in, possession of accused Qamarul Islam and he has not explained as to how he parted with the said cheques. Accused Qamarul Islam has not explained anything about these cheques. In fact accused Musharaf has also denied that he had presented the three cheques for encashment. The learned trial Judge held the appellant guilty on the ground that these cheques were supposed to be in possession of accused Qamarul Islam and he has not explained as to how he parted with these cheques. The appellant has stated that he had delivered the unused cheques back to the Bank and the explanation of the appellant had not been taken into consideration. P.W. Tariq Jamil has stated that whenever account is closed the bank takes all the unused cheques. But the bank would not insist for unused cheques if another account‑holder gives indemnity that unused cheques would not be misused. It has not been established that the cheques were allowed to be used by the appellant Qamarul Islam, therefore, he cannot be held guilty for the offence. The irregularity pointed out by P.W. Abid Ali about these cheques is that Hamid Ali should have credited the amount of said cheques in account of Alay Textiles after getting clearance of the same but unless it is established that these cheques were either issued by the cheque holders the irregularity allegedly committed by the appellant Hamid Ali cannot be taken into consideration because there is no evidence that the cheques had been issued by accused Qamarul Islam or presented by accused Musharaf Ali. The learned trial Judge has held the appellant guilty on suspicion and presumptions which cannot be done under the law. The number of the cheques have not been mentioned. The date of the despatch is also not mentioned Exhs. 15,16,17 and 18 are transfer of Rs.40,000 each. Exh. 15 is dated 15‑11‑1969, Fxh.16 is, dated 18‑11‑1969, Exh.17 is dated 11‑11‑1969 and Exh.18 is dated 5‑11‑1969. The transfer vouchers Exh. 21 is dated 31‑10‑1969, Exh.22 is, dated 5‑11‑1969, Exh.23 is dated 10‑11‑1969, Exh.24 is dated 5‑11‑1969, Exh.25 is dated 30‑10‑1969 and Exh.26 is dated 6‑11‑1969, but it has not been established by the prosecution that Exhs. 21 to 26 relate to Exhs. 15 to

20. There is no proof about the receipt of the cheques. The number of the cheques have not been mentioned in these exhibits. There is nothing on the record that the cheques have been received in the Bank. Exhs. 25 and 26 deals with P.C.D. 8 of Ali Sons. Thus, there is no reliable evidence about the cheques which had been used against the principal accused. His statement was that as these cheques had been presented, therefore, he had forwarded them for collection. Only two account‑holders have been examined namely Syedda Shehnaz and Lal Din and they had denied that they had given any permission to accused Hamid Ali Khan to transfer certain amounts from their accounts. The learned trial Judge has stated that as to why there were reverse entries in the account of Messrs Alay Textiles on 18‑11‑1969 i.e. one day after the inspection of said branch by P.W. Abid Ali. These reverse entries show guilty conscience of accused Hamid Ali Khan. The mere presence of reverse entries does not lead to any inference against the accused. As stated above the prosecution has not examined any handwriting expert. On the other hand D. W. Shabbir Hussain has given his opinion in favour of accused and his evidence was discarded on the ground that he has not given sound and convincing reasons in support of his opinion but the Court itself has not given any finding as to why the evidence (opinion) of this witness be disbelieved, particularly when he has stated that there was similarity between the pen pressure and pen lift. The authority quoted by the learned trial Judge is in apt to the facts of the present case. The trial Court could have compared the disputed handwriting. The original documents filed by the National Bank of Pakistan, authority of Musharaf Ali Proprietor of Messrs Alay Textiles confirming all transfer entries from 29‑3‑1968 to 31‑3‑1969. These facts have not been considered by the trial Judge. Another feature of the case is that the report was lodged on 7‑8‑1970 but the investigation continued for pretty long time when P.W. Muhammad Zamir secured and seized certain documents on 8‑6‑1974 and thereafter the accused were put to trial. In the result the prosecution has failed to bring home the charge against the appellants. The appeals are accepted and the conviction and sentences recorded against the appellants are set aside. They are on bail and their bail bonds are discharged. S. G. D. Appeals allowed.