2012 PLP 866 (CLD)

SALMAN HAMID, J.

Nasiruddin Shahab, son of late Shahabuddin Ahmed (Applicant), has preferred this Application under section 561-A, Criminal Procedure Code 1898 (Cr.P.C.) upon approval of F.I.R. No.203 of 2011 dated 27-5-2011 of Police Station Defence, Karachi, (F.I.R.) as 'B' Class by the IVth Judicial Magistrate, Karachi, South, (IV-JM) in terms of his Order dated 3-8-2011, (Impugned Order) on a report submitted by investigating officer under section 173, Cr.P.C., which F.I.R. was lodged by him, (Applicant) against Hassan Bilgrami, Muhammad Tausif, Masood Zuberi, Muhammad Faisal Shaikh, Muhammad Shafique Khan and Muhammad Farman, officials of Bank Islami Pakistan Limited (BIPL), and against Muhammad Shakil Memon, former Assistant Sub-Registrar, all collectively referred to as, (Accused) under sections 420, 468, 471 and 34 Pakistan Penal Code, 1860, (P.P.C.).

2. Occasion for lodging the F.I.R. by the applicant against the accused per its contents was that he, (Applicant) obtained financial facilities from BIPL of Rs.50 and Rs.20 millions in terms of Murabahah Facility Agreements both dated July, 2007 against proper security/collateral i.e. commercial building on Plot No.27/C, Rahat Lane No.3, Phase VI, DHA, Karachi (Building on Plot No.27/C). At such time, to show creditworthiness for availing financial facilities, applicant supplied photocopies of his various other Immovable Properties i.e. (1) Shop No.1 on Plot No.25, Rahat Lane 3, Phase-VI, DHA, Karachi (2) Flat Nos.1 and 2 on First Floor, Plot No.25-C, Rahat Lane 3, Phase-VI, DHA, Karachi (3) Shop No.2, Plot No.28-C, Rahat Lane 2, Phase VI, DHA, Karachi (4) Shop No.1, Plot No.28-C, Rahat Lane 2, Phase. VI DHA Karachi (5) Shop No.2, Plot No.25-C, Rahat Lane 3, Phase VI, DHA, Karachi (6) Shop No.3, Plot No.28-C, Rahat Lane 2, Phase VI, DHA, Karachi (7) Lower Ground Plot No.25-C, Rahat Lane 3; Phase VI, DHA, Karachi (8) Shop No.3, Plot No. 25-C, Rahat Lane 3, Phase VI, DHA, Karachi (9)) Shop No.5-C, Nishat Lane 3, Phase-VI, DHA, Karachi, (Immovable Properties) which were mentioned subsequently by BIPL in letter dated March 27, 2009, addressed to the Sub-Registrar I, Clifton Town, Karachi, (Letter) that such Immovable Properties were purchased by the applicant from BIPL's financial facilities and Declarations dated 24-7-2008 had been executed by him (Applicant) in favour of BIPL in respect thereof, therefore no registration of any deed(s) for transfer of Immovable Properties without issuance of NOC by BIPL be accepted. This Letter and mention of Declarations dated 24-7-2008 therein by BIPL/accused was incorrect and on the face was blatant criminal breach of trust inasmuch as the applicant never mortgaged or agreed to mortgage Immovable Properties, mentioned in the letter and that no declarations dated 24-7-2008, were ever signed and/or executed by him. This illegal act and criminal breach of trust came to fore when the applicant wanted to sell one of his Immovable Properties mentioned in the Letter i.e. Flat Nos.1 and 2, First Floor, Plot No.25/C Rahat Lane 3, Phase VI, DHA, Karachi, (Flat) and was informed that it, (Flat) cannot be sold without NOC of BIPL. When the applicant attempted to find out why BIPL/accused committed such illegality and criminal breach of trust and forgery he (Applicant) was threatened of dire consequences.

3. In this backdrop, it was argued by the learned counsel for the applicant that the investigating officer essentially based his report on the handwriting expert report which suggested that the signatures and the seal on the Declarations dated 24-7-2008, submitted by the applicant with BIPL were similar in nature but handwriting on such documents was of a different person and suggested that the F.I.R. be disposed of as 'B' Class on which IV-JM passed Impugned Order, mechanically, without appreciating that such handwriting report was contested and to prove forgery, additional expert report, highlighting dis-similarities of disputed stamp with admitted stamp was produced which was not looked into. It was also asserted that various Declarations dated 24-7-2008 upon which applicant's signatures were purportedly shown together with stamps of company were forged, which too were not appreciated by IV-JM and he (IV-JM) came to a wrong conclusion in approving the F.I.R. as 'B' Class, which means that the police can take action under section 182, P.P.C. against the applicant. It was then argued that the Impugned Order was illegal inasmuch as the accused were directly charged in the F.I.R. for commission of offence of forgery which forgery was corroborated by the applicant by producing agreements, together with production of expert evidence and therefore the complexity of the case in hands of the IV-JM could not have been determined by passing an administrative order where the trial otherwise was imperative. Learned counsel urged that it was also not appreciated by the IV-JM that there was a report from Faisal Bank Ltd., to the effect that the Immovable Property/Flat was in fact purchased in 2006 by the applicant i.e. prior in time to availing the financial facilities from BIPL and was mortgaged with it, (Faisal Bank Ltd), therefore question of purchase of Immovable Properties/Flat from financial facilities of 2007 does not arise. The investigating officer deliberately, did not mention this fact in his report as he was biased with the applicant in that it was requested by the applicant that the investigation be withdrawn from him as he had a tilt for BIPL/accused and/or he was won over by BIPL/accused. It was also not appreciated by IV-JM that since the forgery had been committed by the accused, section 409, P.P.C. had to be incorporated in the F.I.R. and/or in the challan. This was not acceded to. It was also asserted that there was no question of mortgaging the Immovable Properties/Flat, mentioned in the Letter, with BIPL inasmuch as altogether independent immovable property i.e. Building on Plot No.27/C was mortgaged by applicant towards security at the time of availing the financial facilities from BIPL and its (BIPL's) interest was fully secured.

4. In support of his contentions, learned counsel for the applicant belied upon Noor Muhammad v. The State (2005 SCMR 1958), to assert that no hard and fast rule could be laid down when it comes to giving weight to an expert's report where case otherwise was proved against accused by reliable, truthful and confidence inspiring evidence and the report of expert would lose its value under such circumstances. The case of Syed Muhammad Umer Shah v. Bashir Ahmed (2004 SCMR 1859) was cited to show that opinion of a handwriting expert is otherwise a weak piece of evidence and should not be allowed to prevail against strong circumstances and strong evidence, giving inference altogether to the contrary. The case of Anwar Ahmed v. Nafis Bano through legal heirs (2005 SCMR 152) was brought up to implore that evidence of handwriting expert is always considered to be a weak type of evidence and in presence of overwhelming evidence, oral, documentary as well as circumstantial, it would be futile to examine the expert and even if examined, it would not overweigh the available evidence. Ali Ahmed alias Ali Ahmed Mia v. The State (PLD 1962 SC 102) was put forward to show that despite handwriting identification, court is entitled to make independent comparison of handwriting.

5. Application was opposed and resisted by the learned APG appearing for the State as well as by learned counsel for the accused and BIPL. It was mentioned that IV-JM was not influenced by the report of the investigating officer at all and decided the case on its own, independently, and disposed of F.I.R. under 'B' Class. Learned counsel for the accused and BIPL argued that the applicant obtained financial facility of Rs.70 million against Immovable Properties and one of such Immovable Properties was the Flat which was attempted to be sold and therefore it was reported to the Registrar, Clifton Town, Karachi that third party interest may not be created therein and therefore the F.I.R. that was lodged by the applicant on the basis of Letter was not made out and it was rightly disposed of under 'B' Class by the IV-JM. It was prayed that the Application be dismissed.

6. I have heard the learned counsel and perused the record. One thing which is clear is that the applicant obtained financial facilities from BIPL in terms of Agreement dated July, 2007 to the extent of Rs.50 million, expiry date whereof in terms of clause 1.2 was one year from 21-7-2007 up to 16-7-2008. This Agreement was executed between Seam One Classic through its proprietor, the applicant and BIPL and to secure such loan, BIPL obtained collateral security, and mortgage was created on Building on Plot No.27/C which was other than Immovable Properties, mentioned in the Letter. Similarly, the other financial facility that was availed of by Seam One Classic through its proprietor, was of Rs.20 million in terms of Agreement dated 18-7-2007, expiry date whereof was one year i.e. ending on 16-7-2008 and again the immovable property which was mortgaged as security was other than Immovable Properties, mentioned in the letter i.e. Building on Plot No.27/C. Though it was mentioned by the applicant that photocopies of title documents of the Immovable Properties, mentioned in Letter were forwarded to show creditworthiness, such was not disputed from respondent's side. It is also a fact that Faisal Bank was applicant's creditor where Flat was mortgaged. It also came on record that the expert evidence that was obtained show that there were dissimilarities in handwriting and the report that was obtained by the applicant showed dissimilarities of the stamp and the signature. It is also clear from the Letter that BIPL mentioned therein that NOC be obtained in respect of the Immovable Properties but did not mention that such were mortgaged with BIPL shows that Letter was written with ulterior motives. It also came on record that there were some witnesses who were material but not examined by the investigating officer and that investigating officer also gave a wrong report to the extent that the Flat/Immovable Properties which were mentioned in the letter were not mortgaged with Faisal Bank. The IV-JM only got impressed by the handwriting opinion by asserting that it clearly depicted that there were no dissimilarities in signatures and stamp and therefore approved the report and disposed of F.I.R. under 'B' Class without appreciating the fact that there were other documents available on record to show that the applicant never mortgaged the Immovable Properties/Flat, mentioned in the Letter and the Declarations dated 24-7-2008 those were used by accused firstly had not been signed by the applicant as there was no occasion for the same inasmuch as the applicant never mortgaged the Immovable Properties/Flat, mentioned in the Letter and also because financial facilities of BIPL were covered by Building on Plot No.27/C i.e. another immovable property of the applicant, offered as a security and therefore such Declarations seemingly used against the applicant by the accused and apparently they committed criminal breach of trust by using the Declarations. Since there were other documents and also witnesses are to be examined further, it was not an open and shut case and required further probe which was possible only at trial and therefore the case had to be proceeded further. This having not been done. Impugned Order passed by the IV-JM was not legal and is therefore not sustainable which is hereby set aside and the case after F.I.R's. restoration is sent for trial. Application disposed of in terms of the above. M.W.A./N-5/K Application allowed.