1989 PLP 666 (MLD)

However, accused Ali Anwar Soomro has produced number of documents alongwith his statement as Annexure `A' to Annexure `N' and Annexure `1' to Annexure `16'. The learned trial Judge while taking into consideration the evidence produced by the prosecution and defence convicted the above appellants as described above, while co‑accused were acquitted. The present appeal is directed against the said judgment of conviction. I have heard Mr. A.Q. Halepota, learned counsel appearing for the appellants, Mr. Akhlaque Ahmed Siddiqui, learned Advocate appearing for the State, and have also gone through R&P of the case. It has been contended by Mr. A.Q. Halepota, learned counsel appearing for the appellants that the learned Special Judge had failed to consider the documents produced by appellant which had prejudiced the case of the appellant and has occasioned miscarriage of justice. That in view of the fact that the appellants were acquitted of the charges under sections 468/34, P.P.C. and 471, P.P.C. and the co‑accused Manzoor Alam against whom reports were made by them were also acquitted, the learned Special Judge had erred in convicting the' appellants. It was further contended that prosecution had failed to prove that the appellants were responsible for misappropriation and even there was no evidence that they had encashed the cheques in question and, therefore, the learned. Special Judge had erred in convicting the appellants. In support of his contentions, the learned counsel appearing for the appellant has relied upon P L D 1969 Lah. 548 and 1968 P Cr. L J

358. Mr. Akhlaque Ahmed Siddiqui, learned counsel appearing for the State has contended that in view of the fact that the appellants had not denied their signatures on the cheque Exh.5, they were rightly convicted. Aziz Ahmed P.W.1 has deposed that he was working as Cashier in National Bank of Pakistan Commercial Area, Latifabad Branch, since 6‑12‑1978. He used to sit at the counter to receive payment and to make payment to the account‑holders. On 16‑5‑1979, he received a cheque duly passed by the Manager, and after getting the signature of the person who had presented the cheque. He had made the payment to him after affixing the stamp and his signature on the cheque. He has produced the cheque as Exh.5 Token No.2882 was presented by the bearer of the cheque, it was a bearer cheque. On 20‑10‑1979, he received another cheque duly signed by Manager for an amount of Rs.22,400 bearing token No.2884 and he made payment to the bearer of the cheque after affixing the stamp and his initial. He has produced the cheque as Exh.6. In case of bearer cheque, they make payment to the person who produced the cheque before them. In cross‑examination, he has deposed that he could not say if the cheques produced by him in Court were presented at the counter by Allahdino. There are two signatures on cheque Exh.6, and one signature on the back of cheque Exh.5. However, any cross‑cheque is presented the word `bearer' is scored off on the cheque and order is allowed to remain on it which suggest that it is a cross cheque. In Exh.6, before the Court, word `bearer' is scored off. He knew Manzoor Alam who is working as Cashier U.S.C. In case cheque is being drawn by a Government servant on official account, they do not obtain his identification to make payment to him, as they generally come for payment and are known to them. Muhammad Ishaq P.W.2 has deposed that he was working as distant m N.B.P. Commercial Area Branch, Latifabad. Hyderabad, since last four years. His duty at the Bank was to give token to a person, who presents cheque at the counter and obtain his signatures on the back of the cheque. Cheques Exhs. 5 and 6 were presented before him on 16‑5‑1979 and 22‑10‑1979 respectively and he obtained the signatures of the holder of the cheques on the back and gave token to the bearer P.W. Aziz used to make payment of the cheque. Tanveer Hashmi, P.W.11, has deposed that from 1979 till 1980 he was Manager, National Bank of Pakistan, Commercial Area Branch, Latifabad, Hyderabad. Ali Anwar Soomro Divisional Manager and Allahdino Assistant Accounts Officer U.S.C. had opened joint Account No.U‑2/526, in the said Bank on 10‑1‑1979. The account opening form Exh.19‑A in Case No. 114/1980 was the same and its photostat copy has been produced by him as Exh.62. It bears the signatures of the said two account‑holders. Original card bearing specimen signatures of the above account‑holders has been produced as Exh.19‑C m Case No.114 of 1980, and he has produced attested photostat copy of the same as Exh.63. It bears his signature as well. Original cheque Exh.5, dated 16‑5‑1979 drawn on the said bank for Rs.20,000 in favour of Manzoor Alam bears the signatures of the above two account‑holders. It also bears the endorsement of the then Accountant Habibur Rehman. Accused in Court were the same. He has also produced the entry bearing No.2 from the cash book showing that the said cheque Exh.5 was encashed. In cross‑examination, he has deposed that one Manzoor Alam used to usually come in the Bank to receive cash on behalf of the U.S.C. paid out of the said official account. The said Manzoor Alam was well‑known to him as he used to come in the Bank for the said purpose. He will be able to identify the signatures of said Manzoor Alan. The cheque Exh.5 also bears the signatures of said Manzoor Alam. It has always been the main concern of the Banks to make payment to authentic person particular]), when the amount involved is quite big. It was impossible that in this particular case, the amount of cheque Exh.5 was handed over by the Bank to anyone else than the said Manzoor Alam. Aman Khan P.W.3 has deposed that he was posted as Assistant Accounts Officer U.S.C. Hyderabad in February, 1980. Ali Anwar Somro was posted as Divisional Manager U.S.C., Hyderabad but he did not know Allahdino accused. Accused Shoukat Ali was posted as Assistant Salesman in the Ware House and Masood Akhtar was Supervisor and Ware House Incharge U.S.C. at Hyderabad. When he took over charge in the accounts section from the accused were posted in the account section. The accounts of 1978‑79 were not completed and the account books were not properly maintained. Khurshid Muhammad Managing T)irector had, therefore, directed him to complete the account books. There was account of U.S.C. in National Bank of Pakistan Latifabad, Hyderabad, bearing No.526, opened with Rs.1,00,

000. Accused Ali Anwar and Allahdmo were operating the said account. On the transfer of Allahdino Syed Vakeel Ahmed was operating the said account. No cash book was maintained by anyone. Ali Anwar Soomro had given him the file of the relevant documents pertaining to the amount given by Piaro Goth Sugar Mills and he maintained the cash book accordingly. He has produced the Book as Exh.10. He had shown the credit of Rs.1,00,000 on 10th January, 1979, and thereafter, there had been withdrawal upto 10‑10‑1979. He had entered all the vouchers of withdrawal given to him by accused Ali Anwar Soomro. In the file vouchers pertaining to the withdrawal of Rs.32,000 being Messrs Marketing Services Limited, Hyderabad, which was given to him in the file of Ali Anwar Soomro has been produced as Exh.12. The two supporting documents of this amount were also in the file which he has produced as Exhs.12 and

13. In cross‑examination he has stated that as Assistant Officer, if purchase order or goods receipt notes are presented he would not sign the payment voucher unless the bill is also attached with the documents. If all the three documents were produced then ledger is to be looked into whether the goods were actually supplied and if the same were mentioned then it would be signed. It is the responsibility of the Ware House Incharge to see whether goods mentioned in the goods receipt notes and bills have been received by him. Whenever any cheque is issued it is mentioned in payment voucher as to who had received the same. In the payment voucher Exh.11, it has not been mentioned as to who has received the same. Whenever any cheque is issued to a person his name is mentioned in the counterfoil and his signature is obtained on the same. Allahdino Chawro had left the charge on 15th July, 1979, the cheque Exh.6 for Rs.22,500 is not signed by accused Afahdino Chawro and was issued after his transfer. Goods receipt note Exh.22 bears signatures of accused Masood Akhtar. He did not know if accused Ali Anwar Soornro, had made reports against Ibrar Ahmed, Sardar Ahmed and Manzoor Alam. He did not know if accused Ali Anwar Soomro had exchanged harsh words with Brig. Khurshid Ahmed, Managing Director. He had received the letter, written by Ali Anwar Soomro to Managing Director Services Limited and copy was endorsed to him which he has produced as Exh.23. Abba Ali P.W.4 has deposed that he has been working as Manager in Marketing Services Limited Hyderabad for the last seven years. They had been supplying articles to U.S.C. In February, 1979, he had supplied different items/articles to U.S.C. purchasing and had given such credit memo. alongwith articles supplied to the said agency Exh.12 is the bill prepared by him which is in his handwriting and bears his signature. The credit memo. Exh.12 before the Court was dated 27‑2‑1979 but the same has been tampered with and written 27‑4‑1979. The item Serial No.3 amounted to Rs.8,001 which has been tampered with and made as amounting to Rs.6,001, at item No.6, the value of item is Rs.1,600.20 which has been converted into Rs.1,460.20, at item No.7 value was shown to be Rs.7,772 which has been converted into Rs.4,

700. The grand total shown in the original in credit memo was Rs.35,379.60 which has been converted into Rs.33,207.60. The total of credit memo. was Rs.34,672.02 which has been converted into Rs.32,5W.02. His signature on the credit memo. and seal was intact. In cross‑examination he has deposed that they used to supply articles to U.S.C. on receipt of purchase order, from U.S.C. signed by Divisional Manager. They also used to supply articles to U.S.C. on the order of any other officer. He had not received any order signed by any other officer of U.S.C. except the Divisional Manager or the Accountant of U.S.C. They did not write purchase order number on the credit memo. He did not know the name of the person who used to bring purchase order signed by any officer of U.S.C. None of the accused present in Court used to bring purchase order for supply of the articles. He was not able to identify the signature of Divisional Manager or Accountant of U.S.C. of Hyderabad. He used to send the articles through his donkey cart driver but he did not know to whom the articles were delivered by him. Again stated that the articles were being delivered to the godown incharge. Accountant Ali Anwar Soomro had demanded duplicate copy of Exh.12, from him on telephone about 7/8 months thereafter. The accused had come in their office on 28th February, 1980 but he could not say if he had also brought letter Exh.23. Complainant Mr. R.S. Nazareth, P.WS, has supported the contents of his F.I.R. He has produced the order of termination of service of Masood kkhtar as Exh.29 and letter accepting resignation of Ali Anwar Soomro as Exh.30. In cross‑examination he has deposed that he was not posted at Hyderabad when this incident took place. But he was posted when fraud came to light. He had not conducted any departmental inquiry against the accused. He was not aware whether any other superior officer had conducted departmental inquiry against any of the accused. The counter‑foil of the cheque shows the purpose for which it was issued. The accounts officer is responsible for keeping the cheque books and is the custodian of the same. He could not say in whose custody the cheque book was at the time of this incident. He had not received any written order to take over charge from accused Ali Anwar Soomro. The accused did not hesitate when he handed over charge to him. When he took over the charge from him (Ali Anwar Soomro) the Accounts Officer was working independently and financial control was vested with Finance Director and administrative control was vested with Divisional Manager over the account section. Normally Accounts Officer prepares the cheque and signs it after its scrutiny, the same is sent for counter signature to the Divisional Manager. The post of Divisional Manager is also touring job. He had received a letter from Ali Anwar Soomro which has produced as Exh.32. He had sent reply of the same and reply has been produced as Exh.33. He did not remember if the accused had sent him another letter. However, a letter has been produced as Exh.34. I had issued a letter, dated 12‑12‑1981 to the accused giving him the details about the advance he had taken pertaining to his journey from Hyderabad to Quetta and back, which had not been deposited by him or adjusted. He has produced the letter as Exh.35. Abdul Latif P.W.6 has deposed that he was Salesman in U.S.C. and had worked with accused Shoukat Ali m Ware House for about 12 months. He was conversant with the signature and handwriting of Shoukat. Exh.22 before the Court appears to be m the handwriting of Shaukat as it resemble to his handwriting but he could not give definite opinion about it. In cross‑examination he has deposed that they are not concerned with the payment of any amount to any person while working in the Ware House. Hamid Saeed Islam A.C.M. P.W.7 has deposed that on 20‑7‑1980 he was working as A.C.M. SITE, at Hyderabad. On that day accused Shaukat was produced before him by Mr. Abdul Ghafoor Inspector F.IA., Hyderabad for recording his confession, he complied with necessary formalities and gave him necessary warnings and thereafter gave him two hours time for reflection. After the time for reflection was over he called the accused and asked him whether he was prepared to make confession to which he replied in affirmative. He then recorded his confession in English, a language which he was able to understand. He has produced the confession as Exh.39. The confession reads as under:‑ "I was Assistant Salesman in Utility Store Corporation at Hyderabad from 1978. On 14‑4‑1980 I resigned. I remained in the Ware House from 12‑6‑1978 to January, 1980. During this time Mr. Abdul Latif was other Assistant Salesman and Masood Akhtar was our Incharge. My duty was to supply goods to Stores and to purchase goods issue receipt notes and purchase orders as and when ordered by our Incharge. My Incharge Masood Akhtar gave me a credit memo of marketing service, Hyderabad in the name of our Corporation for the amount of Rs.32,500.02. My lncharge asked me to prepare G.R. of that amount showing those goods. I prepared such note and gave it to my Incharge who after signing the same sent it to account section for payment to the party through a cheque. I do not know whether any material as shown in G.R. Note and in the cash memo was received in the Store or not. It was the function of the Incharge to verify the receipt of the goods." Mr. Abdul Ghafoor Inspector F.IA., P.W.8 had registered the case and carried on investigation which has been mentioned in the earlier part of this judgment. Sheikh Muhammad Din Handwriting Expert had compared the handwriting and signatures of the accused with specimen signatures and handwriting. He has produced the letter regarding the amount to compare the documents as Exh.52. Muhammad Bux Assistant Mukhtiarkar P.W.10 has deposed that in the year 1980 he was working as Assistant Mukhtiarkar and T.C.M. at Hyderabad. Inspector F.IA. had produced Manzoor Alam, Ali Anwar Soomro, Allahdino and Abdul Rashid Sheikh and had obtained their specimen handwriting and signatures in his presence. After the close of the prosecution case the statements of the appellants and the co‑accused were recorded. Appellant Ali Anwar produced number of documents alongwith his statement. However, no evidence was led by the accused in their defence except that they examined themselves on oath. I have considered the contentions of the learned counsel. As far as the ocular evidence was concerned, the prosecution has failed to produce any witness who could say that the vouchers and other documents were prepared by the appellants. The evidence of Shaikh Muhammad Din Handwriting Expert shows that the signatures on cheque Exh.5 are in the hand of accused Ali Anwar and Allahdino marked Q.1/A and Q.1/B. But he has further stated that the signatures of accused Allahdino marked Q.3/B on payment voucher Exh.11 is forgery in relation to the specimen Exh.46 and therefore, this shows that Exh.11 was not signed by accused Allahdino. According to his opinion Exh.48 he was not able to say that the signatures marked Q.3/C initial of accused Ali Anwar on I voucher Exh.11 was in the hand of Ali Anwar. Likewise handwriting expert has not been able to give opinion regarding change of month written in figure '4' from figure `2' on purchase order as Exh.13 marked as Q.VIII was in the handwriting of any of the accused. According to P.W. Aman Khan as an Assistant Officer if purchase order or goods receipt note were presented he would not sign the payment voucher unless the bill is also attached with the documents. It was the duty of the Ware House Incharge to find whether goods mentioned in the Goods Receipt Note and the bills have been received by him. Whenever any cheque is issued it is mentioned in the payment voucher as to who has received the same. In the payment voucher Exh.11, it has not been mentioned as to who had received the same. Even in the counter‑foil the name of the person to whom cheque is issued is mentioned and his signature is obtained. The confession of accused Shoukat shows that he was giving credit memo. of marketing service Hyderabad in the name of their Corporation for the amount of Rs.32,500.02 by his Incharge Masood Akhtar. He had asked him to prepare goods receipt note of that amount showing those goods. He prepared such note and gave it to his Incharge who after signing the same sent it to account section for payment. The evidence of Mr. Tanveer Hashmi Bank Manager shows that Manzoor Alam used to usually come in the bank to receive cash on behalf of Utility Stores Corporation. Said Manzoor 'i Alam was well known to him. The cheque Exh.5 bears signature of said Manzoor Alam. It has always been the main concern of the Bank to make payment to the authentic person, particularly when the amount involved was quite big. It was impossible that in this particular case the amount of cheque Exh.5 was handed over by the Bank to some one else than the said Manzoor Alam. The documents produced by appellant Ali Anwar with his statement recorded under section 342, Cr.P.C. and the confession of co‑accused Shoukat clearly shows involvement of Manzoor Alam Senior Accounts Assistant. The Annexure `I' dated 11th April, 1978, 19th April, 1978, 29th April, 1978, 27th July, 1978, 19th August, 1978 and 16th September, 1976 from page 145 to 157 of the Paper Book clearly show the grievance of appellant Ali Anwar against Manzoor Alam and others. The other documents produced by him further explain his conduct and the explanation given by him could be probable. Merely because the appellants had signed the cheque Exh.5 does not prove that they had misappropriated the amount of cheque, though it may raise D some adverse presumption against them. The cheque might have been signed by them in a routine manner. In the case of Syed Mustafa Shah v. State 1968 P Cr. L J 358, it was observed that:‑ "The mere existence of an adverse presumption cannot be equated with the establishment of guilt, and the frank and the consistent attitude of the appellant coupled with position taken by him through out further renders the case against him doubtful." In the case of Sudhdeo Jha Uptal v. The State of Bihar P L D 1957 SC (India) 393, it was observed that: "The accused might have signed the documents placed before him by the subordinate staff as a matter of routine in accordance with practice obtaining in his office and unless it was shown that he acted fraudulently or dishonestly as defined in sections 24 and 25, P.P.C. the accused could not be convicted." In the case of Muhammad Yaqoob v. The State P L D 1969 Lah. 548 it was observed that:‑ U:nder section 25 of Evidence Act confession is not to be received or treated as evidence against the person making it, if it incriminates him, but if the accused himself wishes to reply on his statement which exculpates him, he cannot be deprived of the right to make use of such a statement. This section does not prevent the co‑accused to make use of confession of other person, if it exculpates him." In view of the above discussion and the legal position, I am of the clear view that the prosecution had faded to prove that the amount of cheque Exh.5 was misappropriated by the appellants and, therefore, while extending benefit of doubt, I allow this appeal, set aside the conviction and sentences of the appellants and they are acquitted of the charge. They are on bail and their bail bonds stand M.Y.H./A-493/K Appeal allowed.