1969 PLP 752 (SCMR)

SHAHABUDDIN, J.‑The appellant Ziauddin who was the Store Keeper of the Municipal Committee, Multan, was convicted under section 409, P. P. C. by the Special Judge, Multan, in six cases on charges that he misappropriated various sums of money entrusted to him. The High Court set aside the convictions and sentences in three of these cases and confirmed them in the other three cases to which these appeals relate. The main contention in view of which special leave to appeal was given in these cases was that the evidence in all the six cases was similar and the observations made in one of the judgments of acquittal apply equally to the eases in which the convictions and sentences were maintained; and the main contention advanced for the appellant before us was that the evidence on which the convictions were based did not establish that the appellant received the sums in question. On an examination of the evidence we find that both these conten tions are correct. The amounts in respect of which the appellant was charged with the offence of criminal breach of trust in the cases under appeal were respectively Rs. 764‑8‑0, Rs. 950 and Rs. 1943‑2‑

0. The direct evidence of the entrustment of these amounts to the appellant was only that of the cashier who drew the amounts from the bank. In addition to this, there was in all the three cases the evidence of the Assistant Accountant Muhammad Alam who said that the relevant entries and signatures in the accounts and documents were in the handwriting of the appellant. In the first of the Case No. 40/2 there was also the evidence of the Ex Secretary of the Municipal Committee that the writings referred to above were of the appellant. The rest of the evidence was to the effect that the accounts showed that the amounts in question were unaccounted for. The appellant pleaded in his defence that the amount in question were not received by him and the writings relied on by the prosecution were not his. A senior clerk in the That Development Authority who was examined as a defence witness deposed that he had known the handwriting of the appellant but that the writings or signatures in question were not his. The Resident Senior Auditor of the Municipality, another defence witness, stated that the Administrator had held the Secretary responsible in respect of the amounts and ordered that a civil suit be filed against him. The evidence of the Senior Auditor of the Local Fund Accounts who also was examined for the defence indicated that the accounts were not being regularly kept in this Municipality. Except for the fact that in the first case the Secretary was examined for the prosecution the evidence in all the three cases under appeal both for the prosecution as well as the defence was the same and it is therefore convenient to deal with these appeals in one judgment. It may be observed here that in the other three cases also the evidence was similar except that in one of them the direct evidence of entrustment was not available as the cashier was a co‑accused of the appellant and in another case the Ex‑Secretary was examined, but it does not appear from the judgment in that case that he gave evidence regarding the handwriting of the appellant. The learned Chief Justice of the High Court who dealt with the appeals in all the cases relied in the first case under appeal on the evidence of the Assistant Accountant Muhammad Alam and the Ex‑Secretary with regard to the writings and signatures alleged to be of the appellant. As regards the cashier's evidence who also proved the writings of the accused, it was not considered as sufficient by itself. In the second and the third cases the learned Chief Justice based his conclusion regarding the handwriting mainly on the evidence of Muhammad Alam which was regarded as corroborating that of the cashier and on the strength of that evidence he ignored the defence evidence. But the fact that the Ex‑Secretary could not, in the circumstances, disclosed in the evidence of D. W. 2, be regarded as a disinterested witness does not appear to have been considered. In fact no reference is made at all to that part of the evidence of D. W. 2 in the judgment. On the other hand, the discussion in the judgment of the evidence of the Ex‑Secretary gives the impression that she was regarded as a disinterested witness which he certainly was not in view of the fact that it was not denied before us that the suit was filed against him in respect of these very amounts. As far as the evidence of the Assistant Accountant is concerned the learned Chief Justice in his separate judgments in two of the three cases under appeal referred only to the version in the examination‑in‑chief. For instance, in the first case it is observed that "Muhammad Alam (P. W. 2), an Assistant Accountant in the Municipal Committee, Multan, however, gave positive evidence connecting the appellant with the receipt of the monies in question. He stated that the purchase and issue of articles from the store was the duty of the appellant. He further deposed that the receipts on the three vouchers were in the hand of the accused. He stregthened his evidence by reference to the official bills which shows that the appellant was connected with these transactions". But in his cross‑examination this witness had stated that the sums of money mentioned in his examination‑in- chief were withdrawn from the bank by the cashier and not by the accused, that in the signatures of the accused which were shown to him he was unable to make out the‑ letters and that during the investigation he was not put to the test of picking out the writings of the appellant from among the writings of several persons. These admissions are found in his evidence in all the cases under appeal but the learned Chief Justice while relying on the evidence of this witness as corroborating the testimony of the cashier and for ignoring the testimony of D. W. 1 has not referred to them in two of the judgments under appeal, although in his judgments in the cases in which the convictions of the appellant were set aside the evidence of this very witness was held as not sufficient in view of the testimony of D. W. 1 and in one of them in view of these admissions also. For instance in No. 37/2 where the prosecution examined the cashier who gave direct evidence of the entrustment of the amounts in question in that case as well as the Assistant Accountant Muhammad Alam, the learned Chief Justice after noticing the admissions made by the latter witness in the cross‑examination and also the evidence of D. W. 1 that the handwritings in question were not of the appellant went on to observe as follows :‑ "On a review of the whole evidence, I am not satisfied that this would be a fit case in which to record a conviction. It would be risky to accept the statement of Muhammad Alam (P. W. 6) contradicted as it is by the tesimony of Faqir Muhammad (D. W. 1) about the identity of the disputed writing with that of the accused. With regard to the actual payment of the money to the appellant, there is only the interested statement of the cashier who is himself a suspect in the case. It would not be therefore, safe to uphold the conviction of the appellant on this kind of evidence." It is true that the fact that the appellant was acquitted in the other three cases by itself is no ground for acquitting him in the cases under consideration also, but reference has been made to these cases to point out that in maintaining the convictions in the three cases under appeal important aspects of the evidence for the prosecution were not considered although on those very aspects it was considered unsafe to confirm the convictions in the other cases. Therefore though the conclusion in these cases rests purely on the appreciation of evidence we found it necessary to examine the evidence ourselves to see if the case for the prosecution had been proved beyond reasonable doubt. On such a scrutiny we are of opinion that the appellant should have been acquitted in these three cases also. As indicated already the convictions of the appellant rest mainly on the opinion expressed by witness Muhammad Alam that the writings relied on by the prosecution as proving receipt of the amounts were of the appellant. Apart from the fact that in cross‑examination he watered down his statement made in examination‑in‑chief, there was the definite evidence of D. W. 1 that the writings in dispute were not of the appellant. It was elicited in his cross‑examination that he was not a handwriting expert, but neither the Ex‑Secretary nor the Assistant Accountant Muhammad Alam was an expert. It was also elicited that D. W. 1 did not work with the appellant in the Municipal Office or some branch of it, but it cannot be said that those who do not work with the appellant in the same office cannot know his handwriting. Even outside the office hours D. W. 1 could have seen the appellant write. It was not suggested that this witness had any motive for deposing in favour of the appellant or was related to him. As for the Secretary's evidence, as pointed out above, it cannot be regarded as disinterested in view of the fact that his liability is to be decided in the suit. There was thus a conflict of opinion about the handwriting amongst laymen and no expert was called. Nor was there any admitted signature on record to enable the Court to compare the disputed signatures with it. It is remarkable in this connection that the Special Judge observed in Case No. 40, Criminal Appeal No. 60 that he had himself compared the accused's signatures appearing on the disputed receipt with his undisputed signatures, and he felt fully satisfied that the disputed receipts bore the accused's signatures. But it was conceded before us that there was no admitted signature on record. The signature of the appellant obtained in his statement at the trial is entirely different from the signatures which are alleged by the prosecution, to be his. It is quite likely that in signing his statement the accused deliberately changed his signatures, but the fact remains that there is no admitted signature In these circumstances, we consider it unsafe to hold that the case for the prosecution against the appellant has been proved beyond reasonable doubt. We therefore, set aside the convictions and sentences imposed on the appellant in the cases under appeal and acquit him. He is on bail his bail bond will be cancelled. Appeal accepted.