2004 PLP 1580 (YLR)

10. We have heard the Advocate for the appellant, D.A.‑G. and with their assistance perused the record of this case very carefully.

11. The learned Advocate for the appellant has stated that the evidence of P.W.1 complainant Allah Obahyo is hearsay evidence which cannot be relied upon, except the production of documents; that the documents Exh.4/C, D, G, H, I, K, N, M and O, bear the signatures of account‑holders and from those documents it cannot be said that the appellant has committed any forgery or prepared those documents; that P.W.1 in the cross examination admitted the above position. He has further stated that from the evidence available on the record, no offence has been made out against the appellant as such he requested for his acquittal.

12. On the other hand D.A.‑G. has stated that P.W.1 was the Manager of the Bank who had received some documents from his predecessor and from those documents he gave his evidence as such his evidence is admissible; that the appellant has refunded the entire misappropriated amount which is enough to prove the guilt of the appellant; that all the allegations leveled in the complaint have been fully supported and corroborated by oral and documentary evidence coupled with the evidence of Handwriting Expert which shows the involvement of the appellant with the commission of this crime.

13. We have given due consideration to the arguments and find that the prosecution have leveled six allegations which are mentioned in the complaint. In order to prove, those allegations oral and documentary evidence were led by the prosecution. On all the allegations, the P.W.1 given his evidence, as such, before giving any finding on each allegation, it will be expedient in the interest of justice to examine the statement of P. W. 1 so as to see which part of his statement is admissible in evidence and which part of his evidence is not admissible in evidence because the appellant has challenged the major portion of his evidence to be inadmissible on the ground of being hearsay.

14. We have examined the evidence of P. W.1 and find that he took over the charge of National Bank of Pakistan, Jhimpir Branch, on 18‑9‑1993 from the Muhammad Ramzan, his predecessor. Manager Muhammad Ramzan handed over few documents to him with information that fraud and misappropriation were committed in connection with those documents. After 28 days, of the posting of the P.W.1, on 16‑10‑1993, Zonal Head asked him to take those documents to their Law Officer for preparing a complaint. He took those documents to the Law Officer, who prepared a complaint. Thereafter, the P.W.1 pat his signature on the said complaint and sent it to F.I.A. authorities for registration of a case. He produced the complaint and relevant documents as Exhs.4/A to 4/O. While producing those documents he gave some further statements, be stating that he came to know certain pacts which he had deposed in the evidence. The said evidence pertains to conversations between the account‑holders and the appellant or some other persons. The said conversations were not held in his presence as he was not posted there. It is pertinent to point out that P.W.1 Allah Obahyo was not present when the alleged fraud was committed or the amounts were allegedly misappropriated or any amount was allegedly deposited by the appellant or the appellant or any of the account‑holders put any signature on any document in the presence which he had produced. In fact he was not present at the relevant time, as he took over the charge, much after the incident. As such the evidence which he gave in the Court was neither heard by him not saw anything nor perceived nor he was expert in the field of handwriting, therefore, his evidence with regard to the said facts is not coming within the ambit of oral evidence as defined in Article 71 of Qanun‑e‑Shahadat Order which reads as under:‑‑ "71 Oral evidence must be direct.‑‑‑Oral evidence must, in all cases whatever be direct, that is to say:‑‑ it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; if it refers to a fact which could be perceived by any other senses or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence the person who holds that opinion on those grounds: Provided that the opinions of experts pressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treaties if the author is dead, or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable: Provided further that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection: Provided further that, if a witness is dead, or cannot be found or has become incapable of giving evidence, or his attendance cannot be procured without an amount of delay or expense which under the circumstances of the case the Court regards as unreasonable, a party shall have the right to produce Shahadaala‑al‑Shahadah by which a witness can appoint two witnesses to depose on his behalf, except in the case of Hudood."

15. Thus the evidence of P.W.1 is inadmissible in evidence except the production of documents from Exh.4/A to Exh.4/O.

16. Keeping in view the above position of the evidence of P.W.1 now we will examine each allegation mentioned in the complaint or F.I.R. The allegation No. 1 is as under:‑‑ "One Mr. Muhammad Ismail holding PLS Account No.255 had handed over to Mr. Muhammad Rafiq Baloch a Bearer Cheque No.14872625, dated 1‑1‑1993 for an amount of Rs.20,000 with instructions to deposit the said amount in Small Finance Account No.92/3 of Dr. Ghulam Hussain Behrani. However, after drawing cash on 6‑1‑1993 of Rs.20,000 against the said cheque he instead of depositing in the account of Dr. Ghulam Hussain misappropriated it and converted it to his own use. That subsequently when the misappropriation as detected, he deposited an amount of Rs.20,500, the misappropriated amount on 10‑3‑1993 in Small Finance Account of Dr. Ghulam Hussain Behrani. "

17. In order to prove this allegation, the prosecution relied upon the evidence of P.W.1, P. W.2 Muhammad Ismail, account holder and P.W.5 Dr. Ghulam Hussain.

18. P.W.4 Ali Bux produced a Cheque bearing No.14872625 of Rs.20,000 as Exh.4/C. P.W.2 Muhammad Ismail stated in his deposition that on 1‑1‑1993 he handed over a cheque of Rs.20,000 to the appellant to deposit the same in the account of Dr. Ghulam Hussain as he had obtained a loan from the latter. P.W. Dr. Ghulam Hussain in his deposition stated that P.W.2 informed him that he had deposited Rs.20,000 through a cheque in his account but he did not tell him through whom the cheque was deposited and further informed him that the Bank Manager had assured him that he would adjust the balance of loan outstanding against him. P. W.2 gave him a receipt which he produced as Exh.8/A. This receipt shows that an amount of Rs.20,500 was deposited in the account of Dr. Ghulam Hussain by means of cash on 10‑3‑1993. But it does not show as to who had deposited the said cash.

19. From the above statement it is clear that P.W.2 did not state that the appellant had not deposited the amount of Rs.20,000 in the account of Dr. Ghulam Hussain nor P.W. Dr. Ghulam Hussain deposed that the said amount was not deposited in his account. The best piece of evidence on this point would have been the statement of account of account‑holder Dr. Ghulam Hussain but the said piece of evidence has been withheld by the prosecution. The cheque Exh.4/C was a bearer cheque and was not issued in the name of a particular person but it was mentioned in the first column: of the cheque "Pay self" and there are two signatures on the reverse of the said cheque which belong to the account‑holder. There is no allegation that the said signatures were forged or did not belong to P.W.2. In such situation the Bank was required to encash the cheque by delivering the cash to its recipient. It is also pointed out that it has not been alleged that Exh.8/A which is a deposit slip produced by P.W.5 was deposited by the appellant nor the document was shown to Handwriting Expert to prove that the writing appearing on the Exhibit 8/A belongs to the appellant. P.W.2 in the cross‑examination produced a written statement duly signed by him as Exh.5/A, and further stated that the said statement bears his signature. In the said statement it has been mentioned that he had no grievances against the appellant. However, he has further stated in cross‑examination that he put a signature on a Blank paper under the instructions of a Store Keeper Khalid Ali Baloch. There is no evidence to show that the amount was withdrawn by the appellant and he misappropriated the same. Thus the evidence available on record on the above allegation is not sufficient to prove the same.

20. The second and third allegations of the prosecution as mentioned in the complaint are as under‑‑ "Mr. Muhammad Rafiq fraudu lently issued a Cheque Book bearing Serial Nos.12790001 to 12790010 on 17‑12‑1992 in the Account No.937 of Mr. Ali Akbar on the basis of forged signatures of the said account‑holder. Out of the said cheque book he issued Cheque No.12790001 on 26‑1‑1993 and by forged signatures of account‑holder, Mr. Ali Akbar, he withdrew an amount‑ of Rs.20,000 which he fraudulently mis appropriated. On 16‑2‑1993, Mr. Muhammad Rafiq also drew another Cheque No.12790004, dated 16‑2‑1993 out of cheque hook obtained by him fraudulently against account of Mr. Ali Akbar and by forging the signatures of the account‑holder withdrew an amount of Rs.20,000 which he deposited in the Account No.255/2 of Mr. Muhammad Ismail."

21. In order to prove these allegations the prosecution relied upon the evidence of P.Ws. 1, 2, 3, 8 and 9 and documents Exhs.4/E to 4/G produced by P. W.1.

22. P.W.1 produced an application sent by account‑holder Ali Akbar for issuance of Cheque Book as Exh.4/E and two Cheques bearing Nos.12790003 and 12790004 as Exhs.4/F and 4/G for an amount of Rs.20,000 each. P.W.3 Asghar Ali who was Cashier in the National Bank of Pakistan, Jhimpir Branch, stated that on 17‑2‑1993, at 8‑00 a.m. he saw Scroll Register, Cash Book and some vouchers lying in the Scroll Register on the table of the appellant. On examination, he found one cheque of 20,000 of a customer Ali Akbar. After arrival of appellant, he asked him about non‑passing and certification of the cheque then the appellant signed the cheque in his presence, therefore, he got suspicion and started searching for Ali Akbar but he did not state that he met with Ali Akbar and informed him anything. Then he informed the matter to Zonal Office P.W.8 Shoukat Ali Khan, who was Handwriting Expert, deposed that he had compared handwriting of Exh.4/E with the specimen writing and signature of appellant appearing on Exhs.12/A‑1 to 12/A‑27 and found that the signature and writing on Exh.4/E were similar in characteristics with the signature of specimen handwriting of the appellant. The evidence‑of P.W.9 Mirza Masood Alain who was Investigating Officer of this case reveals that he had obtained the specimen writing and signature of the appellant in presence of a Magistrate, which are Exhs.12/A‑1 to 12/A‑27.

23. It is pertinent to point out that account‑holder Ali Akbar has not been examined by the trial Court on the ground that he was seriously ill of heart disease and was not in a position to move. In that connection the Court examined the process server Anwar Ali but no opportunity was given to the appellant to cross‑examine him, as such, his statement cannot be termed as legal evidence; therefore, it cannot be relied upon. Thus there was no legal material before the trial Court to form an opinion that the P. W. Ali Akbar was seriously sick. However, if the witness was not able to move because of his ailment then his statement could have been recorded on commission but the prosecution did not request the Court for issuance of commission to record the statement of Ali Akbar. Adequate and alternative mode of recording the statement of Ali Akbar was available with the prosecution but they did not avail the said opportunity so as to support the allegation but it appears that the prosecution instead of availing the said opportunity, chose to give up the P.W. Ali Akbar. This has adversely affected the case of tire prosecution: It was Ali Akbar who was alleged to have been cheated and his amount was misappropriated, therefore, he was the proper person to give the evidence in order to involve the appellant with the commission of this crime. As such, the best piece of evidence on the above point was the evidence of P.W. Ali Akbar but the same was withheld, by the prosecution for the reasons best known to them. It is well settled principle of law that if a best piece of evidence is available with the prosecution but the same has been withheld, then it is presumed that the prosecution have some sinister motive behind it for withholding the said piece of evidence. Even otherwise, a presumption under Article 129(g) of Qanun‑e‑Shahadat Order can fairly be drawn that had the P.W. Ali Akbar been examined, or his statement would have been recorded, then he would have not supported the prosecution case or that his evidence was not favourable to the prosecution.

24. No doubt, Handwriting Expert deposed that there was similarity in between the writing of Exh.4/E and writing of appellant. Be that as it may, the cheque book issued under the said letter was found to be with the account‑holder, as he had issued cheques Exhs.4/F and 4/G. It has also been noticed that signatures on Exhs.4/F and 4/G which are the cheques of Rs.20,000 each, have not been alleged that the same were not signed by account‑holder Ali Akbar. At the reverse of both cheques the signatures of Ali Akbar are available. There is no evidence to show that the appellant had misappropriated any amount of P.W. Ali Akbar. Thus the prosecution have also failed to prove these allegations.

25. The fourth allegation of the prosecution is as under:‑ "Mr. Muhammad Ismail had given to Mr. Muhammad Rafiq an amount of Rs.2,700 in cash on 16‑2‑1993 with the, instructions to deposit it in the Small Finance Account of Dr. Ghulam Hussain Behrani. Mr. Muhammad Rafiq also informed, Mr. Muhammad Ismail that an amount of Rs.2070 had accrued in latest of accounts as a profit, whereupon Mr. Muhammad Ismail gave him a blank cheque duly signed and, also with signatures on its reverse instructing Mr. Muhammad Rafiq that both the amounts viz. Rs.2700 and 2070 be also deposited in the Small Finance Account of Dr. Ghulam Hussain Behrani. However, Mr. Muhammad Rafiq taking disadvantage of the blank cheque passed on to him by Mr. Muhammad Ismail inserted an amount of Rs.22,070 and withdrew the amount on 16‑2‑1993, which he misappropri ated and converted it to his own use. And on the same date he deposited only an amount of Rs.4,270 in the Small Finance Account of Dr. Ghulam Hussain Behrani as a token money."

26. On this allegation the prosecution have relied upon the evidence of P.Ws.1, 2, 3 and document Exh.4/D.

27. P.W.1 produced a cheque of Rs.22070 dated 16‑2‑1993. P.W. Muhammad Ismail stated that during the month of February, 1993, he gave Rs.2700 to the appellant at the Railway Station to deposit it in the account of Dr. Ghulam Hussain. Subsequently, he asked for deposit receipt but the appellant replied that he had forgotten to bring the same from his house and he would give it to him on a latter date. His statement further reveals that on 7‑3‑1993 he was sitting in a shop at Jhimpir where Cashier P.W.3 Asghar Ali came and inquired from him as to whether few days back he had withdrawn Rs.22,700 from his account, to which, he replied in negative. In the cross‑examination he produced the statement duly signed by him which shows that he issued a cheque of Rs.22700 with directions to the appellant that Rs.4270 be deposited in the account of Ghulam Hussain and he received the remaining amount of Rs.18,

430. The statement of P.W.3 reveals that on 17‑2‑1993, he found a cheque of Rs.20,000 of customer Ali Akbar and a credit slip of Account No.255 of Rs.20,000 in favour of Muhammad Ismail. On 7‑3‑1993, he contacted P.W. Muhammad Ismail and informed him about the said transaction which took place on 16‑2‑1993.

28. From the evidence of Muhammad Ismail it is clear that he did not state anything that a cash of Rs.22,700 was withdrawn from his account through a cheque but he informed the P.W.3 that he did not withdraw the said amount from his account. P.W.3 did not state that he inquired from P.W.2 Muhammad Ismail that an amount of Rs.22,700 was withdrawn by him from his account but he informed him about the issuance of the cheque of Rs.20,000 and not of Rs.22,700 as alleged. The best piece of evidence on this point would have been the statement of account holder Dr. Muhammad Ismail but the said evidence has not been produced in the evidence to prove the above allegation. Thus, the prosecution have failed to prove the above allegation.

29. Allegation No.5 is as under:‑‑ "After detection Mr. Muhammad Rafiq Baluch volunteered to recoup all the defalcations and deposited the entire amount viz. Rs.65,303.14 so misappropriated to Bank. He also arranged with account‑holders and in consequences whereof the account holder, Mr. Ali Akbar authenticated the relevant documents viz. the application for issue of cheque book, signature on cheque book issued register, 2 cheques each of Rs.20,000 by putting his genuine signatures thereon. So also he obtained letter of satisfaction from both the account‑holders namely Messrs Muhammad Ismail and Ali Akbar. However, the amounts in deceased account of Allahdino and profit of Qasim Faqir have been kept in Sundry Deposit Account."

30. On this allegation there is no evidence led by the prosecution to prove that Rs.65,303/444 were deposited by the appellant or any evidence has been led to prove the remaining facts of the allegation. Thus the prosecution have failed to prove this allegation.

31. Allegation No.6 is as under:‑‑ "There was a PLS Account No.351 of one Allahdino son of Nawab in which a credit balance of Rs.3,464.84 was lying. It became inoperative as the account‑holder had expired on 1‑10‑1982, as per the certificate issued by the Dalomite Project Pak, Steel Mills, Jhimpir, where the said account holder was an employee. Mr. Rafiq Baluch fraudulently prepared an application on 23‑12‑1992 with forged L.T.I. of the, account‑holder containing a request, since he was an old person, the balance lying in his account be transferred to PLS Account No.275 of one Ali Bux son of Wahid Bux his relative. In violation of the rules, he transferred the said amount accordingly. Whereupon Mr. Ali Bux withdrew an amount of Rs.3500 against a Cheque No.14862999, dated 24‑12‑1992 which includes above amount also transferred. Thus Mr. Rafiq Baluch in complicity with the said account‑holder, Mr. Ali Bux misappropriated the said amount of Rs.3,464.84.

32. In order to prove the above allegation the prosecution relied upon the evidence of P.Ws.1, 4 and 8 and documents Exhs.4/H to 4/M.

33. P.W.1 produced the above mentioned documents in his evidence P. W .4 Ali Bux has been examined by the prosecution in support of the allegation. His evidence reveals that he had a Bank Account No.375 in National Bank of Pakistan Jhimpir Branch. The appellant asked him to give a blank cheque of his account so that a sum of Rs.3500 which had been credited by mistake in his account may be re credited in the account of deceased Allahdino. Accordingly he gave him a cheque duly signed by him on both sides. After seeing Exh.4/K, bearing No.14862699, he stated that it (cheque) bears his signature on both sides. In the cross‑examination he admitted that Allahdino was not his relative but one Allahdino Burfat was his relative who asked him to bring his money from his account, therefore, he asked the appellant to give him the said money for Allahdino Burfat and then the appellant took a cheque from him after giving an amount of Rs.3500. Then he took the money to, Allahdino Burfat but he found that Allahdino Burfat had expired. After few days thereafter, the appellant met him and told him that Rs.3500 were paid to him by mistake and asked him to return the amount. Accordingly, he returned Rs.3500 to the appellant and took back the cheque from him. The statement of P.W.8 who is Handwriting Expert has given opinion that Exh.4/1 had similarity with the writing of appellant.

34. From the statement of P.W.4 Ali Bux it is clear that he has not supported the above allegation in toto but gave a 1 wavering statement, which is not sufficient to be relied upon. But from his statement allegation has not been proved beyond any reasoanable doubt. However, we have gone through Exh.4/1 and found that it has a thumb‑impression by Allahdino and it is written in Sindhi. The P.W.8 deposed that the writing on the said Exhibit has similarity with the writing of Exhs.12/A‑1 to 12/A‑

27. A perusal of Exhs.12/A‑1 to 12/A‑27 show that none of these exhibits were written in Sindhi language but the writing of appellant is in Urdu language. Exhibit 4/1 is written in Sindhi which cannot be compared with Urdu writing. As such on this document opinion of the Handwriting Expert cannot be relied upon.

35. As regards Exh.4/L, it is a deposit slip for an amount of Rs.3464.84 of the account of Allahdino. According to Handwriting Expert, the writing of this exhibit has similarity with the writing of appellant appearing at Exhs.12/A‑1 to 12/A‑

27. This document shows that blank spaces of deposit slip were filled in by the appellant in English. It does not bear any signature of depositor. However, the account‑holder Allahdino apparently was an illiterate person as he used to put thumb impression. Thus, merely filling the blank spaces in the deposit slip does not prove any guilty conscious of the appellant. Something more is required to prove the allegation, but the same is missing.

36. The allegation is that Ali Bux withdrew an amount of Rs.3500 through a Cheque bearing No.14862999. The prosecution produced the cheque as Exh.4/K but its number is quite different from the alleged number of the cheque.

37. Allegation is that Allahdino is dead but no death certificate or any evidence has been produced in Court to prove the said L allegation. Thus the prosecution have failed to prove this allegation against the appellant beyond any reasonable doubt.

38. Allegation No.6 is as under:‑‑ "One Qasim Faqir son of Muhabbat has his TDRS deposited in the Branch, over which an amount of Rs.1,338.30 accrued as a profit upto 30‑6‑1992. In respect of this amount a Payment Order No.011399, dated 11‑8‑1992 was prepared and was lying in the branch. Since it was not collected by the beneficiary, Mr. Rafiq Baluch, taking its disadvantage passed it by forged signatures of one Muhammad Qasim Faqir and misappropriated the said amount, although Muhammad Qasim Faqir was not the beneficiary."

39. On this allegation the prosecution relied upon the evidence of P.W.1. He produced the relevant document. No other evidence has been led by the prosecution to prove this allegation. However, we have examined the documents Exhs.4/N to. 4/O and find that Exh.4/N is the term deposit receipt. On the back of the receipt the signature of Qasim Faqir is available. Exh.4/O is a Cheque of Rs.1338 issued by National Bank of Pakistan in favour of Qasim Faqir. The reverse of the cheque shows that signatures of Qasim Faqir are available. Apparently, the amount was received by Qasim Faqir From these two, documents it cannot be proved that the appellant had misappropriated any amount. Thus the prosecution have also failed to prove this allegation.

40. After considering the material available on the record, we are of the considered view that the prosecution have failed to prove the case against the appellant beyond reasonable doubt, therefore, the appellant is entitled for the benefit of doubt which is accordingly given to him. Consequently, the conviction and sentence awarded to the appellant under the impugned judgment are set aside. The appellant is acquitted and set at liberty. The appeal is allowed. N.H.Q./M‑22/K Appeal accepted.