P L D 1962 (W (PLP)

QADEERUDDIN AHMAD, J.‑The Additional Advocate‑General of West Pakistan and Ex‑Officio Public Prosecutor, Karachi, has preferred this appeal with the previous sanction of the Government of West Pakistan against the acquittal of Muhammad Hayat by the First Additional Sessions Judge, Hyderabad.

2. The facts leading to this appeal, according to the prosecu tion are that on the 30th of April 1958 Rs. 60 were received at the Liaquat Bazar Branch of the Bahawalpur Bank and a draft for that amount in favour of S. Ghazanfar Ali, on the Hyderabad Branch of the Bank was delivered to Saidur Rehman. An intima tion that the draft was issued was sent by ordinary post by the Liaquat Bazar Branch to the Hyderabad Branch, which was received there on the 2nd of May 1958. The intimation, as received, there which is Exh. 6, was a draft for Rs. 61,000 had been issued Saidur Rahman appeared at the Hyderabad Branch on the 3rd of May, 1958, in the morning at about 9‑30 a. m., and presented a draft for Rs. 61,000 for cashing ft on the basis of an endorsement purporting to have been made by S. Gnazanfar Ali. The Manager of that Branch became suspicious, and making a telephonic call to the Karachi Branch, discovered that a draft for Rs.60 only had been issued. He intimated the Cantonment Police Station, Hyderabad over the telephone, of the false draft that was presented for being cashed, and after some time, Aziz Ahmad A. S. I. called at the Bank, though according to him, he had gone there because of a suspicion entertained by him regarding the visit of Saidur Rahman to Hyderabad on the basis of secret information. Saidur Rehman was arrested in the Bank, and the draft was recovered from him on a personal search, vide mashirnama, Exh. 16, because it had not yet been cashed. Aziz Ahmad, A. S. I. lodged the F. I. R. Exh. 22, at 3‑30 p. m. The investigation was taken over from him by Ausif Ali, P. I., C. I. A., Hyderabad, who came to Karachi along with Saidur Rahman. On the 4th of May 1958, according to the Manager of the Bank, he met the Manager at‑ his residence, and according to himself he went to the Branch of the Bank and met the Manager and other officers of the Bank.

3. Muhammad Hayat was a clerk at the Karachi Branch of the Bank, whose duty was to prepare drafts and vouchers, and to make entries in respect of telegraphic drafts and transfers. According to the Manager of the Branch, P. W. 1, Muhammad Hayat, had prepared the draft in question, which Is Exh.

4. After it was prepared by him, it was signed by Iqbal Ahmad Khan, Accountant and Siddiq Khan, Supervisor of the Branch, P. W.

4. It was prepared on an application, Exh. 6 made by Saidur Rahman. The intimation that a draft had been issued by the Bank, was sent by post by the despatchers of the Branch. There is no information at all as to who were the despatchers.

4. After the Manager of the Karachi Branch received a telephonic call from Hyderabad on the 3rd of May 1958, he according to himself, tried to contact Muhammad Hayat who had left the Bank with the leave of the Manager himself. The Manager has stated that the following day, i.e. the 4th of May, 1958, was a Sunday, with an implied suggestion that Muhammad Hayat could not, therefore, be contacted on that date. On the 5th of May, 1958, Muhammad Hayat appears to have attended the Bank as usual, whereupon the Manager, Iqbal Ahmad, Accountant, and Siddiq Khan, Supervisor, appear to have discussed the situation with him as well as, according to the Manager, "had threatened him" in such manner as they thought fit. As a result, Muhammad Hayat gave a statement in writing. It is Exh. 8, and is signed by Iqbal Ahmad Khan and Ihtashan Ali, Sub‑Accountant as witnesses.

5. In the earlier part of this written statement, Muhammad Hayat has stated that he was instigated by Saidur Rahman to play the fraud on the Bank and that he had himself made alterations in the draft in pencil, which were afterwards written over in ink by Saidur Rahman. He has explained the device by which the amount of Rs. 60 was converted into the amount of Rs. 61,

000. The statement shows that it had been closed with a request to the Manager to pardon him and to allow him to resign from his post, and signed with the usual decorum of the words: "Yours obediently, Muhammad Hayat, Junior Clerk Remittances." After that, two paragraphs were added, 9n which the presence of the Manager, Iqbal Ahmad Khan, and Ihtashan Ali, Sub‑Accountant, at the time of writing the statement is admitted, together with a declaration that the statement had been written without any pressure, Additionally, there is a declaration in It that no other employee of the Bank was associated In the fraud. The written statement, which is Exh. 8, was handed over to Ausif Ali, P. I., vide mashirnama, Exh. 24, who arrested Muhammad Hayat.

6. On the 6th of May, 1958, Ausif Ali, P. I., returned to Hyderabad with Muhammad Hayat and on the 7th of May 1958, produced him before the Second Extra Joint Sub Judge and F. C. Magistrate, Hyderabad for making a confession. In the con fession, which is Exh. 29, Muhammad Hayat has stated that Saidur Rahman was his relative, and lived in his parent's house, that he had himself by chance one day conceived the method by which the amount of Rs. 60 could be changed into Rs. 61 thousand, and had informed the members of his family of it. Changes were made in the draft, according to him, by Saidur Rahman, and he (Muhammad Hayat) had advised him to open an account in some bank for realising its amount but Saidur Rahman had indiscreetly gone to the Hyderabad Branch himself for collecting its proceeds, which had aroused suspicion, and resulted in his arrest. He has pleaded in the confession that he should be forgiven for the mistake, as he was a student, and as it was his first offence.

7. Both Saidur Rahman and Muhammad Hayat were challaned at Hyderabad after the completion of the investigations. Saidur Rahman was found guilty under section 474, Pakistan Penal Code, and sentenced to rigorous imprisonment for five years, and Muhammad Hayat was acquitted. The reasons for acquitting him have been given by the learned Additional Sessions Judge, as follows:‑ (i) The prosecution had taken for granted from the beginning that Muhammad Hayat had committed the forgery. (ii) The officers of the Bank, namely, the Manager of the Karachi Branch, Yasin Khan, P. W. 1, Ihtashan Ali, P. W. 2, who was the Sub‑Accountant at the relevant time, Kikabhai, Cashier of the Branch, P. W. 3, and Muhammad Siddiq, Supervisor of the Branch, P. W. 4, who have stated that the forgery was in the hand of Muhammad Hayat were not hand writing experts and could not give reliable opinion. No hand writing expert was produced to prove that forgery had been made by Muhammad Hayat. (iii) There was no direct evidence that Muhammad Hayat had made the forgery, and the person who lastly handled the forged intimation Exh. 6 was a despatcher of the Bank but the prosecution had abstained from giving any information regarding the despatchers of the Bank. (iv) The language of the written statement confession of Muhammad Hayat Exh. 8 was not that of a man of his educa tion, who is merely a Matriculate. Moreover, the addition of two paragraphs after the statement was closed Indicated that dictation was given to him. (v) The confession made before the Magistrate, Exh. 29, was belated and did not, in the circumstances of the case appear to be voluntary. The assessors had found him to be not‑guilty and the A. P. P. had not pressed the case against him.

8. The learned Additional Advocate‑General has argued that the extra‑judicial confession made by Muhammad Hayat in writing, Exh. 8 disclosed a convincing ‑method by which the forgery was made and that therefore it is trustworthy. Moreover it is obvious that the original draft, Exh. 4, as well as the intimation sent to Hyderabad, Exh. 6, were prepared from the beginning with the intention of making the figures and words. alterable, which intention was later carried out. The complicity of Muhammad Hayat, therefore, in the forgery is patently clear from these circumstances. It is further obvious to the naked eye that there is a striking similarity between the original handwriting and the alterations and additions made in Exhs. 4 and 6 which had made it unnecessary that a handwriting expert should be produced. Moreover, bankers who have trained eye for judging handwriting have implicated him. The judicial confession, Exh. 29, made by Muhammad Hayat was not belated, according to counsel in the circumstances of the case and that it was immaterial if a request was made in it to be forgiven as he had done in his written statement (Exh. 8) before. These requests do not suggest that any threats were administered or false hopes were given. They merely disclose his own apprehensions.

9. On examining the evidence we find that Ausif Ali P. I. has stated that Muhammad Hayat was with the Manager when he went to the Bank at 10‑30 a.m. on the 5th of May 1958. The defence has suggested that two paragraphs were added to the written statement after Ausif Ali reached the Bank. However that may be, there can be no doubt that their purpose was to obtain two convenient certificates for the prosecution from Muhammad Hayat : firstly, that his statement was voluntary, and secondly, that nobody else of the Bank was Involved to the crime. The first part is wrong because the Manager has admitted that the bank officers had administered threats to him, and the second part is significant because no attempt was made by the prosecution to ascertain whether any other employee of the Bank could have committed the crime or not. Ausif Ali P. W. 10 has stated as follows:

"I think I examined the despatch cleric of Bahawalpur Bank but do not remember his name. After seeing the diary states I do not think that I examined any despatch clerk of the Bahawalpur Bank. Karachi. I could not find out who had despatched the advice to Hyderabad. I did not secure the despatch register." It is noteworthy that all the witnesses who were the employees of the Karachi Branch of the Bank, namely, Yasin Khan, P. W. 1, Ihtashan Ali, the Sub‑Accountant at the relevant time, P. W. 2, Kikabhai, Cashier, P. W. 3, and Muhammad Siddiq, Supervisor, P. W. 4, have expressed their inability to give the names of the despatchers who were working at the relevant time or of those of them who worked as such subsequently. Moreover there is no evidence whatsoever as to who was the officer in whose custody Exh. 6 was before it vas despatched. On the contrary, there is an admission of the Manager that Exh. 6, was sent to Hyderabad by the despatch section. The draft, Exh. 4, was not in the custody of 1M Muhammad Hayat because it had been delivered to Saidur Rahman.

10. In these circumstances, the proof of the case against Muhammad Hayat must depend on the availability of proof that the writing in which the forgery was made was his own and on the circumstance that the draft, Exh. 4 and the intimation sent to Hyderabad, Exh. 6, were apparently prepared by him in such a manner as to facilitate the forgery. Accepting the version of the prosecution that both documents were originally written by him we may state that the similarity between the original writings and the alterations and additions made in them subsequently is not a piece of evidence against the original writer because, as pointed out by the learned trial Judge, similarities must exist in all forgeries of this kind. They do not prove that the original writer had made them unless there is reliable evidence, whether direct or circumstantial, that he had himself made them or there is satis factory evidence that there are common characteristics of establish ed habit or of the movements of the arm or fingers.

11. In this case there is no direct evidence of forgery. Before considering the circumstantial evidence, we should note that the forgery consists of figures, and words written in block letters. Unless somebody usually writes in block letters, such letters do not well disclose characteristics because they are written with an effort. The Manager, Yasin Khan, P. W. 1, has stated that he knew "the capital letter writing and also the script of the accused", but no specimens of his previous writings written in capital letters have been produced. P.

1. Ausaf Ali, P. W. 10, has stated that a specimen of his handwriting was taken before the Magistrate who recorded Muhammad Hayat's confession. Moreover, there is an application, dated the 10th of October 1959, made to the Addi tional Sessions Judge for obtaining a specimen of his handwriting which was granted and specimen handwriting was taken. It is Exh. 20; but nobody has compared it with the disputed hand writing of Muhammad Hayat. At least there is no evidence on the record at all relating to such comparison. Muhammad Hayat had stated in his extra‑judicial confession, Exh. 8, that additions and alterations were made by him in pencil which were over written in ink by Saidur Rahman, but no attempt has been made to find out whether there was any tracing on the draft, Exh. 4, or the intimation sent to Hyderabad, Exh.

6. This could not be done by the officers of the bank, however well‑trained their eye may be identifying signatures, without the aid of a microscope or examination of the documents against extra‑strong light, or perhaps application of chemicals; but no thought has been given by the prosecution to this aspect.

12. In the absence of direct evidence of forgery, eliminating the importance of the similarities which exist in the writings, and in the absence of evidence to establish common characteristics, the circumstances on which only the prosecution could rely are that (i) the confessions, Exhs. 8 and 29, disclose that the original writings were designed to produce forgeries and that (ii) they appear to originally have had in them an inherent possibility of forgery. We should note here that possibilities of forgeries are to be distinguished from a design to create such possibilities. We have to see the design and not merely possibilities. The design is inferable directly from the confessions and indirectly from the spacing in and formation of figures and letters. We have therefore to examine firstly the reliability of the confessions and secondly the existence of a deliberate device in the original writings for making the forgery possible.

13. We have pointed out above that the extra‑judicial con fession, Exh. 8 is not reliable. The confession made before the Magistrate, Exh. 29 has been retracted as induced by false promises. We are inclined to believe him in this respect and do not attach value to his judicial confession by itself. The admission of Muhammad Hayat that there was an intention from the beginning to make the writings capable of being forged could be corrobora ted satisfactorily if the prosecution could show that the possibilities of forgery did not exist in the usual writings of this type of Muhammad Hayat by producing specimens of his previous writings or by using the specimens taken in Court for this purpose. The omission of the prosecution to produce this evidence leaves a glaring loophole, the benefit of which should go to the accused.

14. Learned counsel for the State has argued that on the whole there is convincing direct evidence on the record that Muhammad Hayat was the original writer of the documents, Exhs. 4 and 6, which have been subsequently forged, and that further there is convincing circumstantial evidence that forgery could not be possible unless there was a scheme for writing the original documents in such a manner as to serve the purpose, because in normal circumstances, the conversion of the words "Sixty only" "Sixty one thousand only" is not practicable. Moreover, Muhammad Hayat was directly connected with Saidur Rahman because, according to his own judicial confession he was related to Saidur Rahman. These aspects of the evidence of the prosecu tion, according to counsel, have not been given due weight by the trial Court. Counsel suggested that a fresh appraisal of the evidence of the prosecution should be made by the High Court from this angle and minor points arising from the omissions of the prosecution should not be magnified if the circumstances con vince the judicial conscience that the accused is guilty. In such cases, according to him, the law of the country is no more as it was laid down in Sheo Swarup v. King Emperor (A I R 1934 P C 227 (2)) wherein their Lordships had observed that the High Court has full power to review at large the evidence upon which the order of acquittal is founded, but have enumerated the following considerations for guidance:‑ "But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as‑ (1) the views of the trial Judge as to the credibility of the witnesses ; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he had been acquitted at his trial ; (3) the right of the accused to the benefit of any doubt ; and (4) the slowness of an Appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." He said that it was a growingly wide experience of State counsel that shortcomings were found on close examination in the evidence of the prosecution which comes on the record in those cases in which trial Courts form an impression that an accused is not guilty. One of such shortcomings in the present case is that there is no evidence on the record apart from the retracted confession of the accused (Exh. 29) that he was related to Saidur Rahman. No question was put to him by the trial Court in this regard. This shortcoming, according to counsel was of a minor nature, though the relationship was of major consequence, because the accused had given convinc ing details of his association with Saidur Rahman in his written statement Exh. 8 and confession Exh.

29. The shortcoming is made up by considerations of doing justice because "complete justice" and not merely redressing injustice was now the paramount con sideration. In support of this contention, counsel relied on the judgment as Lalu v. The State (P L D 1959 S C (Pak.) 258).

15. We do not think that a different law from that stated by the Privy Council has been laid down for High Courts by their Lordships of the Supreme Court 9n this judgment. Apart from any other consideration, their emphasis on doing "complete justice" is based on the provisions of Article 163 of the late Constitution which is within their Lordships' exclusive power and jurisdiction. Moreover, counsel's suggestion that Privy Council bad prescribed limits on the `power' or `jurisdiction' of High Courts for reversing an order of acquittal is incorrect, because the Privy Council has stated in the above‑mentioned judgment as follows: "There is in their (Lordships') opinion no foundation for the view, apparently supported by the judgments of some Courts in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower Court has `obstinately blundered', or has `through incompetence, stupidity or perversity' reached such `distorted conclusions as to produce a positive miscarriage of justice', or has in some other way so conducted itself as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result."

16. The considerations enumerated by the Privy Council and reproduced above remain valid for us, but we may add that we are not feeling restrained by them in this case for arriving at our own conclusions, nor are we magnifying minor objections. The grievance of learned counsel for the State relating to the omissions found by him ifs the evidence of the prosecution in a type of cases cannot in propriety be redressed by disregarding them. Its proper re medy is that the Public Prosecutors should be attentive at the time of the original trials and make up deficiencies. In this case it is obvious that the general impression desired to be created by the reasoning of the Additional Advocate‑General is substantially dimmed by several weaknesses of the evidence of the prosecution and almost obscured by such serious omissions as to produce evidence of Muhammad Hayat's former writings and to use the specimens taken of his handwriting for corroborating the alleged existence of a design. His guilt has not been proved beyond a reasonable doubt. We do not find any satisfactory reason to disagree from the result arrived at by the learned Additional Sessions Judge.

17. The appeal is dismissed. Muhammad Hayat is on bail. His bail bond is cancelled. A. H. Appeal dismissed.