1992MLD551 (PLP)

MUHAMMAD ASLAM ARAIN, J.‑‑‑The appellant was tried by the Special Court (Offences in Banks) Karachi, for offences under sections 408, 468, 471, P.P.C. By judgment, dated 1‑4‑1991, the appellant has been convicted for offences under sections 468 and 408, P.P.C. and sentenced to suffer R.I. for 4 years on each count and to pay fine of Rs.One lac under each count or in default of payment of fine, to undergo R.I. for 6 months more on each count. Substantive sentence of imprisonment to run concurrently while the sentences in default of payment of fine to run consecutively. This appeal is directed against the said conviction and sentence.

2. The facts in brief are that one Ishaque Ismail Dyer had Savings Account No.13710 in M.C.B. Main Branch, Karachi. The account‑holder mostly resided at London and his son Yousuf Dyer used (o look after his Bank accounts. On 22‑4‑1982, Yousuf Dyer went to the Bank and contacted Muhammad Sharful Haq, the Controller in the Branch, and enquired about the balance in his father's account. Yousuf Dyer was directed to contact Ghulam Mohiuddin, another officer of the Bank, who maintained the Saving Account. On being shown the balance sheet, Yousuf Dyer noticed that a sum of Rs.73,000 was short. This fact was brought to the notice of Muhammad Naeem, Vice‑President of the Bank, who held enquiry and later discovered that the appellant being Incharge of the Saving Department was responsible for withdrawing Rs.73,000 from the account of Ishaque Ism" Dyer through various cheques.

3. Muhammad Naeem then called the appellant and enquired about the embezzlement. The appellant admitted having withdrawn the said amount but promised to deposit the same with the Bank within 3 or 4 days. Since the appellant did not keep his promise, Muhammad Naeem directed Sharful Haq, an Officer of the Bank to lodge report with police. Accordingly a complaint, drafted by Sharful Haq, was sent on 27‑4‑1982 to S.H.O. Kharadar P.S. for investigation. At the relevant time the appellant was serving in the M.C.B. a: Officer Grade‑II and was Incharge of Savings Bank Account Department of the Branch. On the basis of the written complaint by Sharful Haq, F.I.R No.75/1982 was registered on 28‑4‑1982 under section 420, 468, P.P.C.

4. Investigation was carried on for nearly 4 years and challan was prepared in January, 1986, but submitted in Court in July, 1990 i.e. after about 8 years of the F.I.R.

5. Charge was framed against appellant on 13‑8‑1990 under sections 408., 468 and 471, P.P.C., to which the appellant pleaded not guilty.

6. The prosecution examined as many as 13 witnesses, most of whom were Bank officials. Handwriting Expert and the Police Officers who conducted the investigation were also examined. It is relevant to advert to the prosecution evidence.

7. Ghulam Irfani P.W.1 was Manager, U.B.L. Hydri Market Branch, Karachi, between January, 1979 and February, 1984. He deposed that one Malik Muhammad Hussain was an account‑holder of the branch having account No.776. Three cheques of Rs.15,000 dated 17‑11‑1981, Rs.5,000 dated 7‑4‑1981 and Rs.5,000 dated 13‑5‑1981 in favour of Malik Muhammad Hussain were received and were meant for clearance from M.C.B. These cheques were purportedly issued by Ishaque Ismail Dyer and the amount of all the 3 cheques after clearance was credited in the account of Malik Muhammad Hussain.

8. Muhammad Naeem P.W.2, Vice‑President of M.C.B., was in 1982 Assistant Vice‑President in Main Branch of M.C.B. Karachi. On 21‑4‑1982, Mr. Sharful Haq informed him that the son of an account‑holder had complained that the balance shown in the ledger of his father's account was short by Rs.73,

000. The Zonal Chief, M.C.B. was informed about the shortage and as a result of enquiry held in the matter, appellant was found responsible for wrongful withdrawal of Rs.73,000 through various cheques. It is in the evidence of this witness that one Imtiaz had come to him later and stared that he was sent by appellant with a message that the amount embezzled by him would be deposited within 3 or 4 days. Even appellant approached him and had promised to pay the amount but on his failure to do so the report was lodged. This piece of evidence seems to have been relied upon by the prosecution as extra‑judicial confession of the‑accused.

9. Muhammad Sharaful Haq, P.W.3 was Controller in the main branch of M.C,B. in April, 1982. It is he who had drafted the complaint at the instance of the Senior Vice‑President Aijaz Hussain Shah and sent to police. He produced in Court various cheques through which the amount from the account of Ishaque Ismail Dyer was withdrawn.

10. Muhammad Ikram P.W.4 was an Assistant in the main branch of M.C.B. in April, 1981. His evidence is that on 18‑2‑1981 a requisition slip for issuance of a cheque book was received by him duly verified by the appellant Tausif Ali Khan. He prepared a cheque 'book 'bearing the series 681611 to 620 which pertained to account No.13710 of Ishaque Ismail Dyer. The requisition slip was in the name of Malik Aziz Ahmed Khan, not known to the witness, but was identified by appellant, on whose direction the cheque book was delivered to said Malik Aziz Ahmed Khan. An entry regarding delivery of the cheque book was made in the cheque book register and the name of the appellant was allegedly entered in the last column of the register because at his instance the cheque book was delivered. This entry is however scored off. Photocopy of the relevant page of cheque, book register with scored off entry has been produced.

11. Imtiaz Ahmed P.W.5 was Assistant Clerk in M.C.B., Main branch. His evidence is that on 22‑4‑1982, appellant came to his house and took him to Ghulam Mohiuddin who was working in the Savings Department under the appellant. There was some talk between appellant and Ghulam Mohiuddin but, as Imtiaz Ahmed was standing at some distance, he could not know the details of the talk. HP deposed that on enquiry as to what was the matter, appellant disclosed that Muhammad Naeem had contacted him in connection with an embezzlement in some account. On the next day when he reached the bank he learnt that there was defalcation in some account to the tune of Rs.73,000.

12. Fazal Hussain, P.W.6 was examined to find out the whereabouts of Malik Muhammad Hussain but with no success.

13. Sharafat Hussain Zaidi, P.W.7, Muhammad Yousuf Mujahid P.W.8 and Muhammad Farooque Qureshi, P.W.9 were police officials who investigated the case, obtained the bank record and submitted challan. P.W. Mujahid had obtained specimen handwriting and signatures of appellant for comparison with the admitted signatures and handwriting of Ishaque Ismail Dyer.

14. Ghulam Mohiuddin P.W.10 worked in M.C.B., Main branch in April, 1991, as an officer Grade‑II in the Savings Department. He worked under appellant at the relevant time when the cheques in dispute were passed and encashed. Some of the cheques were passed by him, while some cheques were received from U.B.L. for clearance and were drawn in favour of Malik Muhammad Hussain. A cheque being Exhibit 2/A2 was passed by him on the direction of appellant who had himself compared the signatures of Ishaque Ismail Dyer with his signature on S.S. Card. It is also in his evidence that on 19‑11‑1981 appellant had met with an accident and did not attend office for several days. On 21‑11‑1981, Ghulam Mohiuddin officiated for appellant as incharge of Savings Department.

15. Iqbal Ahmed P.W.11 was a cashier in the Main branch of M.C.B. He used to receive cheques from the Savings Department for encashment. Two cheques Exhibits 41‑B‑2 and 4/B‑5, dated 17‑3‑1981 and 6‑8‑1981 passed by' appellant were received by him for encashment and the payment was made through tokens.

16. Shaikh Muhammad Deen P.W.13 is the Handwriting Expert. He examined the handwriting and signatures of account‑holder Ishaque Ismail Dyer and compared it with the specimen handwriting and signatures of appellant Tausif Ali Khan.

17. The statement of appellant under section 342, Cr.P.C. was recorded and he denied the allegations against him. He denied to have directed P.W. Muhammad Ikram for issuing a cheque book to Malik Aziz Ahmed Khan. The appellant also denied to have admitted before P.W. Muhammad Naeem that he had embezzled the amount and that he would refund the same.

18. Mr. S. Ansar Hussain, the learned Advocate for appellant has contended that there is no direct evidence of either forgery or breach of trust. Neither the account‑holder nor his son was examined before the trial Court though it is on record that at the initial stage during investigation, both of them were available. The prosecution should have at least arranged to get 164, Cr.P.C. statements of these 2 witnesses recorded and if during trial they could not be available, their such statements could have been used as substantive piece of evidence. It is also pointed out that two cheques for Rs.15,000 and Rs.5,000, were passed by Ghulam Mohiuddin, another bank officer. For these two cheques the appellant does not figure at any stage. Similarly the requisition slip for issuing a new cheque book was presented by Aziz Khan and not by appellant as is evident from evidence of P.W. Muhammad Akram. There is no evidence worth the name that either the 8 disputed cheques or the requisition slip was in the handwriting of appellant or managed by him except a few words in evidence of handwriting expert.

19. It is also pointed out that a cheque for Rs.15,000 dated 21‑11‑1981 (Exh.2/A) was passed by P.W. Ghulam Mohiuddin on 21‑11‑1981, when admittedly appellant was on leave as he had met with an accident. He passed the cheque Exh.2/A without comparing the drawer's signature with admitted signatures of account‑holder on S.S. Card as according to him the S.S. Card of the account‑holder was not traceable. The 3 cheques drawn in favour of Malik Muhammad Hussain (Exh.2/A, 2/A‑1 and 2/A‑2) were cross‑cheques. The amount of these cheques after clearance from M.C.B. was credited in the account of Malik Muhammad Hussain in U.B.L. It is nowhere in evidence that Malik Muhammad Hussain later on drew this amount from his account and. paid it to appellant. In these circumstances the appellant could not be held liable either for forgery or breach of trust. Reliance in support of this contention is placed on 1987 PCr.LJ 1969 Mitho Khan v. The State where accused, a bank employee, was charged for withdrawing certain amounts from the account of customer account‑holders by forging their signatures on cheques, which were got issued through requisition slips on behalf of the account‑holders. Only evidence against the accused was his extra judicial confession before account‑holders and no direct evidence existed to connect accused with commission of crime of forgery or using forged documents as genuine. The appeal was allowed and the convict acquitted. Reliance is next placed on 1970 PCr.LJ 308 Sirajullah v. The State where encashment of forged cheques from Bank was considered not conclusive to show accused's authorship of questioned cheque and the conviction was set aside. Reliance is also placed on 1985 PCr.LJ 979 Sain Das v. The State where, in a case under Prevention of Corruption Act (II of 1947), there was no direct evidence of forgery as no one saw accused preparing or signing cheques and the handwriting expert did not state that writing on cheques was in hands of accused. Conviction under section 468, P.P.C. was set aside.

20. The next contention of the learned Advocate is that forging of cheques by appellant is not proved by the evidence of handwriting expert P.W. Din Muhammad, whose evidence is scanty and inconclusive, because, on examination of all the disputed cheques and the signatures and handwriting of Ishaque Ismail Dyer and after their comparison with the specimen signatures and writing of appellant, he opined that only the body writing on one cheque (Exh.4/B‑5) was similar in characteristics with corresponding specimen writing of Tausif Ali. However, the handwriting expert has not given any reason for his such finding and mere opinion of handwriting expert without reasons therefore cannot form basis of holding that the appellant had withdrawn the cheque Exh. 4/5‑B. Reference in this behalf is made to PLD 1960 Dacca 897 Abdul Motalib v. The State wherein it was observed that evidence of handwriting expert, if it does not fail to give reasons in support of his opinion, was of little value.

21. It is also contended by the appellant's learned counsel that there being no evidence against appellant either of frogery, or breach of trust, the trial Court based its findings on conjectures, surmises and presumptions. The guilt of the accused could not be based merely on high probabilities that may be inferred from evidence. Reliance is placed on PLD 1970 SC 10 Muhammad Luqman v. The State where it was observed that conviction should rest surely and firmly on evidence adduced and clear inference that may be drawn therefrom. The guilt cannot be based merely on high probabilities that may be inferred from evidence in case. The appeal was however, dismissed with above observations.

22. The last contention of the learned Advocate is that the trial court believed extra judicial confession of appellant before P.Ws. Muhammad Naeem and Imtiaz but the evidence of these two witnesses does not conclusively prove that appellant made a confession because P.W. Imtiaz does not support the version of P.W. Muhammad Naeem.

23. Mr. F.M. Jawaid, the learned Advocate for the Bank, contended that the new cheque book obtained under a requisition slip was issued to one Malik Aziz Ahmed Khan on verification of appellant and, therefore, in the last column of cheque‑book register, the name of appellant was written. Five bearer cheques and three cross‑cheques were utilized from this cheque book and none else but the appellant had managed the forgery because, but for the verification by appellant, new cheque book would not have been issued to Malik Aziz Ahmed. It is next contended that handwriting expert has categorically stated that all the cheques were forged and did not bear the signature of account‑holder. The appellant first managed to obtain a new cheque book and then utilized 8 cheques and the amount was drawn either through bearer cheques or cross‑cheques.

24. It is next argued that since P.Ws. Muhammad Sharaful Haque and lqbal Ahmed were not cross‑examined, the defence would be deemed to have admitted what they deposed against accused. Reliance in this respect is placed on PLD 1967 Kar. 233 Qasim and others v. State. It is also pointed out that the defence counsel, by giving suggestion to P.W. Muhammad Naeem in cross-examination that the appellant admitted his guilt under pressure of Muhammad Naeem and Aijaz Ali Shah, would be deemed to have given extra? judicial confession. It i5 also argued that the defence did not even give a suggestion to the witnesses that they were falsely deposing against the accused. As there was overwhelming ocular and documentary evidence on record, the conviction was rightly recorded and it needs no interference. Reliance is placed on 1989 PCr.LJ 363 Abdullah Larik v. State.

25. Mr. Jamil Ahmed, the learned Advocate for the State, adopted the arguments advanced by Mr. F.M. Jawaid and further contended that the statements of witnesses were not controverted in cross‑examination. As such, what the witnesses, deposed, will be deemed to be true and to have been admitted by appellant. He has also referred to PLD 1967 Kar. 233 Qassim and others v. The State.

26. Mr. S. Ansar Hussain, Advocate, also referred to 3 more judgments, in reply to the contentions of the counsel for the Bank for the State. These are (i) PLD 1953 FC 93 Safdar Ali v. The Crown; (ii) AIR 1958 Calcutta 25 Madhusudan Sen Gupta v. State of West Bengal and (iii) AIR 1953 Madras 418 D. Pandurangan and another v. The State. In (i) above, it was observed:‑‑‑ "If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might he true, it is dear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt:' In (ii) above it was observed:‑‑‑ "Ordinarily, it is proper to hold that the defence which the accused's counsel puts forward is not merely a lawyer's defence but is made on the basis of instructions received from the accused. It often happens that some defence taken by the accused in his statement under section 342 is rejected by the judge of facts, on the ground that when the prosecution witnesses were in the witness box, those suggestions were not made to the witnesses or suggestions that were made to the witnesses were inconsistent with the case now being made by the accused. If it be proper to hold that accused responsible for the suggestions made by his counsel on his behalf to the witnesses in cross‑examination, it cannot be at all proper not to give the accused the benefit of the suggestions made by his counsel to the witnesses." In (iii) above, it was observed:‑‑‑ "Prosecution not proving that book was printed at particular press, keeper of that press cannot be convicted on the mere evidence of the printed statement on the book as to where it was printed, for it raises no presumption under section 7, Press rind Registration of Books Act and is no evidence against him. Nor can he be convicted on admission in his statement under section 342, Cr.P.C."

27. We have heard the learned Advocates at length, gone through the, judgment impugned and the evidence on record and perused the case‑law. The charge against the appellant was of forgery for the purpose of cheating and breach of trust by clerk or servant. Forgery is defined in section 463 of P.P.C. as under: ‑‑ "Whoever makes any false document or part of a document, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."

28. Cheque book was obtained by one Malik Aziz Ahmad, through a requisition slip. It was prepared by P.W.5 Imtiaz Ahmed. Signature of the recipient of cheque book in last column of cheque book register is scored off. It is suggested by the prosecution that name of appellant was entered in the last column of register, as it was at his instance that P.W. Imtiaz Ahmed delivered the cheque book to Malik Aziz Ahmed. The last column is meant for the signature of `Customer'. In no case appellant's name could be mentioned as he was not the `Customer'. Either account‑holder's name, who was the customer of the Bank, or that of Malik Aziz Ahmed Khan, the recipient of cheque book, must have been mentioned and not of appellant. We doubt if P.W.5 Imtiaz Ahmed's evidence on this point is worthy of credit. Finding of fact cannot be based on presumption and conjectures. The opinion of handwriting expert with regard to the writing and signature on requisition slip is that it does not resemble specimen writings or signatures of appellant. We, therefore, hold that this piece of evidence goes against the prosecution and has to be resolved in favour of appellant.

29. The next comes the stage of utilizing 8 cheques out of the new cheque book. No one saw appellant using the cheques for drawing money from the account of Ishaque Ismail Dyer. Except one cheque (Exh.4/B‑5), for which handwriting expert P.W. Shaikh Muhammad Din has stated that the body writing on this cheque is similar in characteristics with corresponding specimen writing of Tausif Ali (appellant), all the rest of 7 cheques are admittedly neither in the handwriting of appellant nor signed by him. Another important. sentence in the examination‑in‑chief of this witness is, "Definite opinion could not be formed about the questioned signatures marked as A/1, to H/1, (corresponding to the exhibits marked on eight cheques referred to above) with respective specimen signatures on the sheets marked by me as CC‑2 (Exh.14/B), on technical grounds." It is, therefore, clear that all the 7 cheques are not forged by appellant and the opinion of expert with regard to only one? cheque is not conclusive proof of any forgery by appellant.

30. There is no complaint either by account‑holder or his son that the balance amount in the account is short by Rs.73,

000. At least an application should have been obtained from Yousuf Dyer and then the matter should have been enquired into. An institution like M.C.B. could not set the law into motion on oral complaint of a customer or his son. The officers of the Bank took no disciplinary action against appellant if their enquiry revealed that he was responsible for embezzlement. Some cheques were passed and encahsed without even comparing drawer's signatures with the singatures on S.S: Card. Cheques were passed and encashed even on the date when appellant was on leave. These all circumstances show that appellant was not liable for any forgery or breach of trust. We cannot subscribe to the findings of the trial Court which is based on presumptions.

31. There is another piece of evidence against appellant in the nature of his extra‑judicial confession which he allegedly made before P.Ws. Naeem and. Imtiaz. All that P.W. Muhammad Naeem deposed was "One Imtiaz had come to me later and told me that he was sent by Tausif Ali with the message that Tausif shall refund the amount within 3 or 4 days. Subsequently, Tausif Ali himself had come to me and promised to pay up the amount." P.W. Imtiaz Ahmed in his evidence does not corroborate above version of P.W. Muhammad Naeem. Even if what P.W. Naeem has stated, without of course corroboration; is believed to be true, then too, appellant's statement does not amount to his extra judicial confession. P.W. Muhammad Naeem never deposed that appellant admitted before him having embezzled Rs.73,000 from account of Ishaque Ismail Dyer by forging certain cheques and he would deposit the same within 3‑4 days. This, in our view, was neither extra‑judicial confession nor could be considered as such as to warrant appellant's conviction.

32. We have also considered the contentions of the learned Advocates for the Bank and State. They have contended that certain witnesses were not cross‑examined and facts deposed by them would be deemed to have been admitted by accused. They have also argued that certain suggestions in cross-examination are not consistent with statement of appellant under section 342, Cr.P.C. As such it would also amount to appellant having admitted his guilt. We are afraid we cannot agree with such contention. The prosecution had to prove its case beyond all reasonable doubt. Certain suggestions in cross-examination by defence cannot be read in isolation but have to be placed in juxtaposition with entire prosecution evidence, in order to arrive at a just conclusion.

33. For these reasons, we find that the case against appellant is not proved beyond reasonable doubt and the conviction and sentence cannot be sustained. We, therefore, while allowing the appeal, set aside the conviction and sentence, and direct his release, unless required in some other case. N.H.Q./T‑118/K????????????????????????????????????????????????????????????????????????????????? Appeal accpeted