AKHTAR ZAMAN MALGHANI, J.--- The judgment dated 4-12-2001, rendered by Accountability Court No, II, Quetta in reference No,29 of 2001 has been assailed in the instant appeal, whereby; the appellant was found guilty under section 10 read with sections 11 & 12 of the National Accountability Ordinance, 1999 and sentenced to five years R.I.
With fine of Rs,1,56,36,856. Assets/properties of the appellant were also forfeited as set off against the amount of fine and in case of non-recovery/non-payment of amount/fine appellant was directed to further undergo two years' R.I. The appellant was also disqualified for 10 years to hold any public office or contest election and was not allowed to apply for or allow any financial facility in from of loan or advance from any bank or financial institution for a period of 10 years.
2. Briefly stated, facts of the case are that Chairman NAB filed a reference under sections 18(g) and 24 against the appellant and co-accused Pervaiz Zaki wherein it was alleged that the appellant while posted as Senior Accounts Officer, Revenue Office PTCL, Quetta and co-accused Pervaiz Zaki as cashier, withdrew an amount of Rs,1,06,71,000 during the period from July, 1992 to June, 1999 for payment towards fare of vehicles hired for the purpose of disconnecting telephones, however; on investigation and enquiry it was revealed that the registration numbers of the vehicles which were shown to have been hired and to which owners payment was made, were to be of trucks, tractors, scooters etc. It was further alleged that the appellant and co-accused Pervaiz Zaki drew Rs,17,04,140 in the name of Masoom and Company, Quetta for supply of furniture but in fact furniture of only Rs,100,000 was purchased and the remaining amount misappropriated. According to the reference appellant and co-accused also drew Rs,7,24,800 by showing purchase of Digital Computer, Rs,26,83,715 for payment to Butt and Company, Quetta and Nabi Enterprises, Quetta and Rs,3,99,046 in the name of Classic Business Net Work, Quetta on fake receipts and misappropriated the same. Similarly Rs,53,193 were drawn in the name of Universal Equipment Quetta on fake receipts.
3. At the commencement of trial charge under section 9 (iii) and (iv) punishable under section 10 read with sections 11 & 12 of NAB Ordinance, 1999 was read over to the appellant and co-accused, to which they pleaded not guilty. Thereafter prosecution produced 15 witnesses in support of accusation. The appellant denied all the incriminating pieces of evidence during his examination under section 342 Cr.P.C. He also filed written statement in his defence besides giving statement on oath as provided under section 340(2) Cr.P.C. Wherein he claimed innocence and alleged that the record was re-placed by co-accused Pervaiz Zaki in order to prevent Investigating Officer from tracing out the original parties from whom the alleged supply was received to conceal kick-backs received by co-accused Pervaiz Zaki.
4. The appellant also produced five witnesses in his defence. The learned Accountability Court after evaluating the evidence on record, considering the plea of appellant and co-accused and hearing the arguments of the parties found the appellant guilty and sentenced him as mentioned above.
5. We have heard the learned counsel for the appellant as well as learned ADPG. The learned counsel for the appellant made following submissions:-
(i) According to rules the appellant cannot incur expenditure without sanction of G.M. The prosecution failed to bring on record any evidence suggesting that the expenditure as shown in the cash registers and vouchers were sanctioned by the G.M.
(ii) There was no evidence that the cheques were en cashed by the appellant or he had received the cash.
(iii) It was a case of no evidence and prosecution has miserably failed to prove misappropriation or embezzlement by the appellant.
(iv) The trial Court has wrongly relied upon the confessional statement of co-accused which was recorded after a considerable delay and by pressurizing him. Under such circumstances the same was inadmissible against the appellant.
(v) Even otherwise the confessional statement of co-accused is neither a substantive piece of evidence against the appellant nor conviction could be based on its strength.
(vi) The appellant was only Drawing and Disbursing Officer and there was no evidence on record that the amount was received by the appellant. According to the SRO the appellant was empowered for drawing an amount of Rs,1000 only in respect of contingent bill, therefore, allegation of the prosecution that he withdrew lacs of rupees are not correct.
(vii) The case was registered and investigation was carried out after the transfer of appellant from the post of Senior Accounts Officer and all the vouchers/receipts produced in evidence were fake and fabricated and did not bear signatures of the appellant which has also been proved by the evidence of D.W.I Zaka A. Malik Handwriting Expert of well repute who has confirmed that the disputed vouchers/bills receipts etc. Did not bear signatures of the appellant.
(viii) The Investigating Officer has admitted that the amount was drawn through cheques signed by the appellant and P.W.1 Muhammad Rafiq but surprisingly only appellant was involved in the case and Muhammad Rafiq was let off without any reason.
(ix) The prosecution referred the signatures of comparison to the expert but withheld the report with mala fide as same was against the prosecution. Therefore, adverse inference has to be drawn against the prosecution.
(x) The best evidence available to the prosecution was stock register showing receipt of the Furniture and computer etc. But it was not produced by the prosecution calling for adverse inference.
(xi) There are several vouchers which bear no signature and substantiate the plea of the appellant that fake record was prepared later on and original record available in the office was destroyed.
(xii) The Investigating Officer was directed to investigate into the allegations of corruption or corrupt practices. He investigated the same as one case as is evident from the fact that the remand of the appellant as well as of the co-accused was in one case and thereafter they were sent to judicial lock-up but three references were sent to the Court in clear violation of section 403 Cr.P.C., and Article 13 of the Constitution of Pakistan. The substance of all the three references was not only identical but the same, therefore, second and third reference was not competent. To reinforce his submission the learned counsel referred to the judgments reported in PLD 2002 SC 572, PLD 2003 SC 891, and 2002 SCMR 93.
(xiii) It was a fit case for exercising powers under section 397, Cr.P.C.
(xiv) The perusal of reference signed by Chairman NAB shows that he has not applied his mind before sending reference to the Accountability Court No, II. No material or evidence was placed before him and the reference was signed by him in mechanical manner. In support of his contention the learned counsel placed reliance on the judgments reported in PLD 1976 S.0 6 and PLD 1977 Karachi 636.
6. In support of his contentions the learned counsel also referred to judgments reported in PLD 1963 Lahore page 411, PLD 1982 SC (AJ&K) 89, 1968 PCr.L.J 1177, 1989 CLC page 2287, PLD 1995 SC page 381 and 393, PLD 2003 SC page 704, PLD 1991 SC page 898, PLD 1991 F.S.0 page 53, 1982 SCMR page 321, PLJ 1999 SC 264 and AIR 1999 SC page 2640.
7. On the other hand learned D.P.G. Urged that delay simplicitor is not sufficient to discard confessional statement of the co-accused which is otherwise found voluntarily and true, corroborated by the fake and forged vouchers, bills etc. Taken into possession during investigation from the office. He further contended that the appellant has not denied that the bills and vouchers produced during trial were forged and fake, according to his plea the same were substituted by co-accused Pervaiz Zaki in other to save his skin but he failed to produce any evidence to substantiate his claim. According to learned D.P.G the amount misappropriated was drawn in the names of different firms and companies which on investigation were found non-existing and in this regard prosecution produced evidence of the persons who went to trace out these firms but could not find any. As regards report of D.W.1 Handwriting Expert, the learned D.P.G. Urged with vehemence that the same was procured by the appellant in order to absolve himself of the charge and no reliance could be placed on such report which having been furnished without any reason. The learned D.P.G. In support of his contentions relied on the judgments reported in 1999 SCMR page 2203, 1992 PCr.L.J. 1304 and 2000 PCr.L.J page 865.
8. Before dilating upon the respective contentions of the parties learned counsel we deem it expedient to reproduce brief resume of the evidence produced during trial. P.W.1 Muhammad Rafiq Kakar, Senior Accounts Officer deposed that on 2-11-2000 he received a letter from NAB Authorities for handing over the record to Investigating Officer. In pursuance whereof co-accused Perviaz Zaki handed over the record to Manzoor Ahmed I.0 vide seizure memo. Exh.P/1-A signed by him. He also. Produced the relevant record as Exh.P/1-A-1 to Exh.P/1-A-451. In cross-examination he denied the suggestion that the record was taken away by the NAB Authorities much earlier than shown in the recovery memos. He also denied the suggestion that the record was seized when the appellant and co-accused were already in custody. P.W.2 Muhammad Farooq Malik Manager Muslim Commercial Bank, Jinnah Road Quetta deposited that on 25-7- 2000, he was posted as Manager Muslim Commercial Bank and on the said date "statement of account" pertaining to Masood and Company was provided to the NAB Authorities. He produced statement of account as Exh.P/2-A-I. P.W.3 Abdul Wahab produced Form "F" along with Computer Prints to the NAB Authority exhibited in the Court as Exh.P/3-A-I to Exh.P/3-A-480. P.W.4 Victor George deposed that NAB Authorities through letter dated 30-7-2001 asked for furnishing particulars of certain vehicles, registration number whereof were provided and on checking it was found that the said registration numbers did not belong to their record which was communicated to the NAB Authorities through letter Exh. P/4-A. P.W.5 Syed Muiaffar Hussain Shah ETO deposed that on demand of NAB Authorities he prepared list of vehicles and forms "F" as Exh.P/5-A-I to Exh.P/5-A-15. P.W.6 Ghulam Raza ETO, Khuzdar also provided forms "F" of vehicles to NAB Authorities produced in the Court as Exh.
P/6-A-1 to Exh.P/6-A-13. P.W.7 Nadeem Mashi is witness to recovery memo. Exh.P/1-A through which vouchers Exh.P/1-A-1 to Exh.P/1-A-451 were taken into possession which according to him were produced by co-accused Pervaiz Zaki to the Investigating Officer on 2-11-2000. P.W.8 Ulfat Hussain deposed that on 27-7-2001 he was posted as ETO, Lasbela at Hub and on the same day he received a fax from NAB Authorities asking for particulars of the vehicles mentioned in the said fax whereupon he prepared forms "F" from the record and sent to the NAB Authorities. He produced those forms as Exh.P/8-A-1 to Exh.
P/8-A-27. P.W. 9 Masoom Ahmed deposed that in the year 1992 he was doing business of Furniture at Quary Road in the name and style of Masoom Ahmed and Company. He supplied furniture to the PTCL and bills were prepared on the basis whereof cheques of Rs,5,00,000, Rs,2,00,000 and Rs,2,80,000 were issued to him. He further deposed that he had only supplied furniture worth Rs,1,00,000 whereas remaining amount was taken back in cash from him. In cross examination he denied the suggestion that he also received cross cheque of Rs,7,00,000 which was deposited in his account on 23-2-1994. He further stated in cross-examination that after withdrawal of the amount the same was paid to PTCL through Pervaiz Zaki explaining that the amount was returned in cash because no supply was made against the same and the appellant Ishfaq Khalid told him that the amount would be paid to him after supply is received as he could not trust him. P.W.10 Haji Ahmed Khan, Senior Clerk, High Court of Balochistan produced photo stat of confessional statement of co-accused consisting of three pages as Exh.P/10-A which according to his statement was correct as per record Exh.P/10-A-1. P.W.11 Syed Shabahat Ali Shah, District Revenue Officer, Quetta deposed that on 12-2-2001 he was working as Magistrate Ist Class/E.A.C-IV, Quetta and on the said date Manzoor Ahmed Investigating Officer produced co- accused Pervaiz Zaki for recording his statement under section 164 Cr.P.C. He further deposed that after introducing himself and providing time for reflection as well as observing formalities, he recorded the statement of co-accused and thereafter transferred him to Judicial custody. He produced the statement as Exh.P/10-A-1 in the Court. In cross-examination he admitted that at the time of recording confessional statement of co-accused he did not call appellant Ishfaq Khalid, explaining that co-accused gave statement as accused in the case and not as a witness, therefore, he did not call appellant at the time of recording statement. He denied suggestion that co-accused informed him about torture. He also denied the suggestion that at the time of recording confessional statement Investigating Officer was present. P.W.12 Nasir Ali deposed that in the year 1996/1997 he was doing business in the name and style of Digital Computer. He further deposed that payment was made to him through cheque by co-accused Pervaiz Zaki for the Computers purchased from his firm by Farooq and Zabit, Employees of PTCL. According to his statement he was called by Manzoor Ahmed Investigating Officer in NAB Office and confronted him with 37 vouchers issued for an amount of Rs,7,59,000 but those vouchers were neither in his handwriting nor were signed by him. He further stated that no amount was received by him against those vouchers. In cross-examination he stated that he was sole proprietor of his business. Further stated that his firm was doing business which PTCL from the years 1995 to 1997.
According to him he received amount of Rs,3 to 4 lacs during such dealing. He further stated in cross-examination that it was in his knowledge that Farooq and Zabit were under direct subordination of the appellant Ishfaq Khalid.
He also admitted that all the cheques issued to him were signed by the appellant. P.W.13 Abdul Aziz deposed that on 17-4-2001 he was handed over notices in the name of Electric Store at Prince Road, Quetta for service and of another shop situated at Shahra-e-Iqbal, Quetta but he found some other persons doing business therein whereupon he made report on the back of the notices which he produced as Exh.P/13-A and Exh.P/13-B. P.W. 14 Muhammad Shareef produced "statement of account" pertaining to Account No,5500-6 of Accounts Officer PTCL, Quetta as Exh.P/14-A-1 to Exh.P/14-A-72. P.W.15 Manzoor Ahmed was entrusted with the investigation of the case. He deposed that during investigation he seized vouchers and record from accused Pervaiz Zaki through seizure memo. Exh.P/1-A. He further deposed that during search for the companies the names whereof were mentioned in the vouchers, he was unable to trace out those companies. In cross-examination he admitted that the record was produced by co-accused Pervaiz Zaki.
9. The appellant in his statement on oath stated that he was D.D.O for Nushki and Loralai from 1992 to mid of 1994 and from December, 1998 to July, 1999 for the whole province. He further deposed that all the cheques were issued under the joint signatures of appellant and Muhammad Rafiq Kakar whereas amount was drawn by the Cashier. He further stated that all the equipments/articles were factually purchased as per vouchers. According to him the original vouchers were destroyed to prevent the Investigating Officer to contact the original parties from whom cashier received kick back and commission and the vouchers produced in the Court were forged one. He further deposed that vehicles were hired from bazaar and Shereen Khan Peon used to contact the vehicle owners and after accomplishment of the job the payments were made by the Cashier in cash. He further stated that the bills were signed by Accounts Officer and Divisional Accounts Officer before finally signed by him. According to his statement each year Audit was carried out. During his posting in Quetta his performance was appreciated and he was granted reward in this regard. He denied his signatures on the bills, vouchers produced in prosecution evidence. He also denied to have moved any application for bargaining to the NAB Authorities. According to him the said application was filed by his counsel on his own.
D.W.1 Zaka A. Malik Handwriting Expert deposed that he examined the questioned signatures of accused Ishafq Khalid on the payment vouchers marked as Exh.P/1-A-1 to Exh.P/1-A-451 and Exh.P/7-A-1 to Exh.P/7-A-864 by comparing the same with the specimen and admitted routine signatures of accused Ishfaq Khalid and in his opinion all the questioned signatures were not executed by the accused Ishafaq Khalid. In this regard the produced his report as Exh.D/1-A in the Court. In cross-examination he admitted that the questioned as well as admitted documents were not sent to him by the Court. He also admitted that Exh.D/1-A-3 was not original. He further admitted that the original record of the Court was not examined by him. He also admitted the suggestion that when a person is guilty and his signatures are obtained, he tried to make different signature. He also admitted that in the instant case he was engaged by the accused and fee was paid by him. To Court question he admitted that Exh.D/1-A-1 and Exh.D/1-A-3 were apparently dissimilar to the nacked eye. D.W. 2 Abdullah Jan, Record-Keeper DCO Officer Quetta produced letter dated 29-3-2001 as Exh.D/2-A in the Court. D.W.3 Muhammad Jameel produced ACRs of the appellant for the years 1993 to 1997 as Exh.D/3-A-1 to Exh.D/3-A-6. D.W.4 Rafiq Kakar produced two letters dated 22nd August, 1995 and 18-11-1998 as Exh.D/4-A and Exh.D/4-B. D.W.S. Fida Hussain produced copy of monthly "Teli-general News" for the month of August, 1994 as Exh.D/5.
10. We have carefully considered the contentions put forth by the parties' learned counsel in the light of above discussed evidence as well as impugned judgment. Before going into the merits of the case, we; would like to deal with the arguments of the learned counsel regarding double jeopardy being a question of paramount importance.
It may be seen that section 403 Cr.P.0 is based on the ancient maxim nemo debts vexari (a person cannot be tried a second time for an offence which is involved in the offence with which he was previously charged).. The same principle is prevailing in autrefois acquit autrefois convict. Before this section can be invoked the following conditions have to be satisfied:-
(i) the accused has already been tried for the offence charged against;
(ii) the trial was held by a Court of competent jurisdiction and,
(iii) there was a judgment or order of acquittal or conviction.
11. Rule against the autrefois acquit finds place in section 403 (1) Cr.P.0 and the counterpart of the said rule "autrefois convict" has received recognition in the Constitutional guarantee embodied in Article-13(a), Constitution of Pakistan, 1973.
12. In order to get benefit of section 403, Cr.P.0 or provisions of Article-13 of the Constitution it is necessary for an accused person to establish that he has been tried by a Court of competent jurisdiction for an offence and was convicted or acquitted of the offence and the said conviction or acquittal remains in force and the second trial is again for the same offence or on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236 or for which he might have been convicted under section 237, Cr.P.C. Here distinction is required to be drawn between "same facts" and "similar facts". The protection clearly does not extend to those offences which are completely distinct or those which arise out of facts not at all alleged at the previous trial. In case of criminal breach of trust where allegations of misappropriation against accused are not in respect of any single amount but relating to different specific amounts received by him on different dates from different persons, each one of these alleged acts of misappropriation is a distinct and independent offence, that is why the legislature conscious of such fact introduced section 222(2) in Criminal Procedure Code which provides that when accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to have been committed without specifying particular items or exact dates and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234 Cr.P.C. Provided that the time included between the first and the last of such dates shall not exceed one year. This section as well as section 234, Cr.P.0 are exception to the general provisions of section 233 Cr.P.0 providing that for every distinct offence of which any person is accused, there shall be a separate charge and every such charge shall be tried separately. It may also be further observed that section 234 Cr.P.0 also contains similar provision namely if a person is accused of more offences than one of the same kind committed within a period of one year, he can be charged with and tired at one trial provided the number of such offences is not more than three. Thus, while there is limitation of maximum three offences which can be combined under section 234, Cr.P.C, there is no such limitation with regard to offence of criminal breach of trust in view of subsection (2) of section of 222. Therefore, if a person is charged with having committed several offences of criminal breach of trust within a period of one year those can be combined at one trial.
13. However; the question arises as to whether non-compliance of sections 222 and 234 Cr.P.0 would render the trial illegal. The answer is certainly in "no" provided that no prejudice has been caused to the accused person because these sections are exception to the general rule embodied in section 233, Cr.P.0 which is clear enough and a joint trial in these provisions by no means compulsory. The provisions of sections 234 to 239, Cr.P.0 are merely enabling provisions and do not make it incumbent upon the criminal Courts to hold a joint trial of each offence in view of curing provisions contained in section 537, Cr.P.C. The legislature never intended that the errors committed in stating either the offences or particulars required to be stated in the charge or omission in that behalf be treated as material unless the accused was in fact misled by such errors or omissions and further it also occasioned a failure of justice.
14. In the judgment reported in PLD 1969 Supreme Court 158 it was held that sections: 234,235,236 and 239 Cr.P.0 are merely enabling provisions and do not make it incumbent upon the Court to hold a joint trial in every case. It would be instructive to reproduce the relevant observations:-- "Under the Code of Criminal Procedure the rule laid down in section 233 is that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in sections 234, 235, 236 and 239, Cr.P.C. These sections are the exceptions to the general rule.
The general rule is clear enough. A joint trial under these provisions, by no means compulsory. Nor can it be said that if several accused persons charged for committing the same offence in the course of the same transaction are tried separately then the trial will, irrespective of any question of prejudice, be illegal. The provision of sections 234, 239, Cr.P.C., are merely enabling provisions and do not make it incumbent upon the criminal Courts to hold a joint trial in every case. Notwithstanding these provisions, a joint trial may not be held if it bewilders or prejudices. a particular accused. If this be the position under the procedure prescribed for an ordinary criminal trial, can there be any serious objection to the cases of accused persons being spilt up for the purposes of trial under the Criminal law (Amendment) Act, 1963? Did the latter intend to lay down any different rule? I think not."
15. In another judgment reported in 1980 SCMR 402 where accused was acquitted by the trial Court mainly on the ground that by separating the cases into seventeen trials, the provisions of sections 222(2) and 234 Cr.P.C. Had been contravened and the accused had suffered prejudice, the High Court on State appeal set aside the judgment aid remanded the case by observing that no prejudice was caused to the accused by not following the provisions of sections 222(2) and 234 Cr.P.C. On appeal the Hon'ble apex Court held as under:- "... ... ...Thus while there is a limitation of maximum three offences/items which can be combined under section 234, there is no such limitation with regard to offence of criminal breach of trust provided for in subsection (2) of section
222. Therefore, subject to the other conditions, if a person is charged with having committed several offences of criminal breach of trust, within a period of one year, they can all be combined into one charge. But the provision being only an enabling one, it will not be necessary to do so in all the cases; because the general rule in this behalf is, as provided in section 233, Cr.P.C., that for every distinct offence there shall be a separate charge and the same shall be tried separately except of course, when the Code itself permits otherwise. This provision is based on a salutary principle that when each charge is tried separately, there is much less apprehension of prejudice to the accused as compared to a trial wherein several offences are combined together. In the present case, it appears that the provisions contained in section 233, Cr.P.C. Were followed and the enabling provisions contained in section 222(2), Cr.P.C. And/or section 234, Cr.P.C. Were not made use of. We agree with the learned counsel for the State that in the circumstances of the case, if the learned trial Court thought, of course, before the pronouncement of the judgment as provided in section 227, Cr.P.C. That combination of the charges would help the accused in facilitating his defence, he could have altered the charges and proceeded accordingly, as provided in section 228, Cr.P.C. And the sections next following. He could not have made the so-called defect as the ground for acquitting the accused.
The High Court was fully justified in correcting the error."
' Likewise in the judgment reported in AIR 1962 SC page 1153 it was held that where a charge under section 406, P.P.C. Said to have been committed by the accused persons in pursuance of a criminal conspiracy was in respect of gross sum embezzled within the period between 6-3-1949 and 30-6-1950 the charge contravene the proviso to section 222(2), Cr.P.C. But the defect does not cause prejudice to the accused and does not vitiate the trial as the charge could have been split up into two charges with respect to period from 6-3-1949 to 5-3-1950 and from 6-3- 1950 to 30-6-1950 and the two charges could be tried together at one trial' in view of the provisions of section 235 Cr.P.C. It was also held that each item of property of which an accused is alleged to have committed breach of trust constitute one distinct offence and that in general it would be necessary to have as many trials as there be distinct offences of criminal breach of trust committed by the accused but section 222 provides that when the accused is charged with criminal breach of trust the charge may be with respect to the gross sum embezzled within a period of one year and that the charge so framed shall be deemed to be charge of one offence within the meaning of section 234, Cr.P.C.
16. In the instant case three references were submitted before the Accountability Court detail whereof is given herein below: Ref. No, Appeal No, Charges Date of Decision Sentence Impr. Fine, Deflt.
5. 13/2001 Purchase of Generator Rs,33,500 Purchase of POL Rs ,48,49,946 Total Rs,49,33,44626-3-2001 (Ashfay Khalid) 4 Yrs. Rs, 40,00 ,000, 1 Yr. (Pervaiz Zaki), 2 yr .
Rs,10,00,000 6 mt.
17. 17 57/2001 58/2001Purchase of Stationary, Furniture, Printing Computer Rs,2,98,49,00010-7-2001 (Ashfaq Khalid) 5 years Rs,2,70,00,000 2 Yr. (Pervaiz Zaki). 2 yrs. Rs,3,00,000 1 Yr.
29. 81/2001 (Ashfaq Khalid)
82/2001(Pervaiz Zaki).Hiring of Transport Rs, 1,06 ,71,000 Purchase of Digital Computer Rs, 7,24,800.
Purchase of Furniture Rs, 17,04,1404-7-2001 (Ashfaq Khalid) 5 Years. Rs, 1,56,36,856 2 yrs. (Pervaiz Zaki) 2 Yrs. Rs, 5,00,000
17. It may be seen that in the instant case the accused were charged for committing several acts of criminal breach of trust and misappropriation during the period from July, 1992 to July, 1999. The learned trial Court while framing charge has not kept in view the provisions contained in sections 222(2) and 234, Cr.P.C. As the charges go beyond the period of one year. However, as no arguments were advanced either before. The Accountability Court or before us to the extent that appellant was prejudiced or misled by non-compliance of the above provisions, we; are of the view that on this score in absence of any prejudice to the accused neither the trial could be held illegal nor conviction can be set aside in presence of curing provisions contained in sections 227 and 537, Cr.P.C.
18. As already observed section 403, Cr.P.C. Is attracted only in the cases where the second trial is for the same offence or for a separate offence based on the same facts and is not strictly attracted in the instant case as the subject-matter of reference No,5 i,e, purchase of POL was entirely different based on different facts. Similarly reference No,17 was based on the allegations that the appellant and co-accused Pervaiz Zaki misappropriated Rs,2,98,49,000 by showing purchase of stationery, furniture, printing computers on the basis of fake and forged vouchers/bills etc. whereas reference No,29 was in respect of misappropriation of amounts shown to have been used for hiring transport, purchase of digital computers, purchase of furniture and other items. It may be further observed that the amounts alleged to have been misappropriated and subject-matter of reference No,29 were not included in reference No,17 and were shown to have been paid to different persons other than those who were shown to have received the amounts in reference No,17. As already observed each act of misappropriation or breach of trust constitutes a distinct and separate offence and is a complete act in itself, therefore, allegations of identical nature and based on similar facts would not amount to a second trial for the same offences or on the same facts.
19. The learned counsel also laid much stress on the provisions of section 235, Cr.P.C. And according to him as the offence allegedly committed was one series of acts so connected together as to form the same transaction, as such; the appellant should have been tried at one trial. The question whether the mere existence of a common purpose can itself be enough to constitute a series of acts into one transaction came up for decision before the Madras High Court in Choragudi Venkatadri v. Emperor ILR 33 Madras 502 wherein Mr. Justice Abdul Rahim observe as follows:-- "As regards community of purpose I think it would be going too far to lay down that the mere existence of some general purpose or design such as making money at the expense of the public is sufficient to make all acts done with that object in view part of the same transaction. If that were so, the results would be startling; for instance, supposing it is alleged that A for the sake of gain has for the last ten years been committing a particular form of depredation on the public viz. House-breaking and theft, in accordance with one consistent systematic plan, it is hardly conceivable that he could be tried at one trial for all the burglaries which the committed within the ten years. The purpose in view must be something particular and definite such as where a man with the object of misappropriating a particular sum of money or of cheating a particular individual of a certain amount falsifies books of account or forges a number of documents. In the present case not only is the common purpose alleged too general and vague but there cannot be said to be any continuity of action between one act of misappropriation and another. Each act of misappropriation was a complete act in itself and the original design to make money was accomplished so far as the particular sum of money was concerned when the misappropriation took place."
20. In the judgment reported in ILR 1960 Bombay page 502 (Shahpurjee, Sorabjee v. Emperor) Broomfield Judge while dealing with this question made the following observation:-- " 'it seems, therefore, that the main test really be continuity of action. We have to consider what that expression means. It cannot mean, I think merely doing the same thing or similar things continuously or repeatedly for a recurring series of similar transactions is not according to the ordinary use for language, the same transaction continuity of action in the contest must, in my opinion, mean this; the following up of some initial act through all its consequences and incidents until the series of acts or group of connected acts comes to an end, either by attainment of the object or by being put an end to or abandoned. If any of those things happens the whole process is begun over again, it is not the same transaction but a new one, in spite of the fact that the same general purpose may continue'."
21. In another judgment reported in PLD 1950 Lahore page 288 (Atta Muhammad Khan Alvi and others v. Crown) after examining a number of authorities in this connection it was observed as under: -- "An analysis of these cases would show that the offences, the question of whose being parts of the same transaction was involved in them, were related to each other by a causal connection, and such connection seems to be absolutely necessary if two offences are to be treated as having been committed in the course of the same transaction. In such case the offence may be the cause and the other the effect or one may be the occasion for the commission of the other. But while such casual connection is a sine qua non for the constitution of a single transaction, the converse of the proposition need not necessarily be true, and though two facts may be connected together as "cause and effect, they may nevertheless constitute two transactions, a joint charge respecting which may be wholly inadmissible."
22. In the instant case by no stretch of imagination the alleged acts of misappropriation/criminal breach of trust committed by the appellant could be considered having been committed in same transaction for the simple reason that every amount drawn and misappropriated on the basis of each and every fake voucher would constitute a separate and complete offence in itself and cannot be said to be any continuity of action between one act of misappropriation and another as original design to make money was accomplished so far as the particular sum of money was concerned when the misappropriation took place.
23. In fact all the questions relating to section 403, Cr.P.C. Read with sections 222, 233 to 237, Cr.P.C. In respect of offence of criminal breach of trust were answered in PLD 1965 Lahore page 461 after surveying majority of the cases on the point and it was held that section 403, Cr.P.C. Has no application to a case where the subsequent offence for which the accused is being tried subsequently did not form part of the offence alleged at the previous trial nor is attracted to a case in which the subsequent offence is not, in any manner, connected with the facts alleged at the earlier trial. It was further held that protection contained in section 403, Cr.P.C. Extends to an offence for which a different charge from the one made against the accused at a previous trial might have been made on the same facts under section 236, Cr.P.C. And also in respect of an offence for which he might have been convicted at the previous trial under section 237, Cr.P.C., but the protection clearly does not extend to those offences which are completely distinct or those which arise out of facts not at all alleged at the previous trial. It was further held that where section 403, Cr.P.C. Does not apply in terms the principle embodied in this section may be properly invoked in order to meet the ends of justice. Further holding where a person has been tried of certain charges and acquitted, it would be clearly unjust and highly oppressive and amount to an abuse of process of the Court to permit his repeated prosecution in identical offence in respect of identical charges even though relating to different items. After considering the various judgments of Indian jurisdiction, in the above quoted judgment, it was further held that the subsequent trial on identical evidence and in respect of identical charges should not be allowed against those accused who have been acquitted by a competent Court in an earlier trial. However; the same principle cannot be invoked in the case of a person who has been convicted at a previous trial for the reason that the punishment awarded at the previous trial has no relation to the charges and offence which form the subject-matter of the subsequent trial and if there is evidence to warrant the conviction of the accused, then the ends of justice require that he should face the subsequent trial and receive the requisite punishment in respect of subsequent charges and offences.
24. It would not be out of context to mention here that in above referred case an FIR was lodged against the accused for forging 71 forged bills and 24 cases were made on the basis of same and one FIR and sent for trial to the Special Judge, Anti-Corruption, out of which in one case the accused was convicted and he challenged his trial in the remaining 23 cases on the principle of autrefois convict autrefois acquit.
25. Thus, the overall survey and rationale as can be gathered is that in case of criminal breach of trust misappropriation of every amount constitute a separate and distinct offence warranting separate trial, but the acts of misappropriation in any number committed during the space of one year could be tried jointly under section 222(2), Cr.P.0 section 403, Cr.P.C. Is not attracted in such cases, however; if the accused is acquitted in the previous trial, the protection contained in section 403, Cr.P.C.; though not strictly applicable, may be resorted to whereas; in case of conviction the accused can be tried subsequently for other acts of misappropriation/breach of trust.
26. Yet another difficulty which arises in the instant case is the trial of the accused in violation of section 222(2), Cr.P.0 by joining all the offences of misappropriation/breach of trust allegedly committed by the appellant during the period between 1992 to 1998 which obviously is beyond the period of one year. There is no explanation on the part of the prosecution for not including the amount, subject-matter of reference No,29 in the gross sum for which charge in reference No,17 was framed. Under such circumstances, though the separate trial for the amounts mentioned in charge in reference No,29 was not illegal nor on the basis thereof protection available under section 403, Cr.P.C. Could be availed by the appellant, yet it would be in the ends of justice to direct the substantive sentences of imprisonment awarded in both the references i,e, reference No,17 and reference 29, in case the convictions in both the appeals are maintained, to run concurrently by invoking provisions of section 397, Cr.P.C, particularly in view of addition of subsection (d) in section 17 vide Ordinance CXXXIII promulgated on 23-11-2002 providing that notwithstanding anything in section 234, Cr.P.C, a person accused of more offences than one of the same kind committed during the space of any number of years, may be charged and tried at one trial of any number of such offences.
27. Likewise section 71, P.P.C. Has no application to the instant case. As already observed, each embezzled item is a separate and distinct offence in itself and several acts of embezzlement cannot be said to be parts of an offence attracting the provisions of section 71, P.P.C.
28. Case-law referred by the learned counsel in support of his contention is distinguishable on facts. In the judgment reported in PLD 2003 SC 891 different pieces of land were given to different persons on lease for a period of 30 years for poultry, farming which was later on converted into industrial/commercial and residential lease of 99 years in relaxation of the existing policy. Though the leases were approved in the name of different persons but the proposal for grant of 26 leases of Government land was approved through a joint summary and it was held that all the beneficiaries would be responsible of committing the same offence arising out of the same transaction, whereas in the instant case every act of criminal breach of trust is a separate and complete transaction itself.
Similarly the judgment reported in PLD 2002 SC 572 is also of no help to the defence as in that case the accused was being tried for acquiring property by means of corruption and corrupt practices, on which charge based on the same facts he was previously acquitted.
29. Coming to the merits of the case, it may be seen that according to the prosecution allegations the appellant and co-accused Pervaiz Zaki withdrew Rs,1,56,36,856 on the basis of forged vouchers and thereafter misappropriated the same. Out of which Rs,1,06,71,000 were shown to have been drawn for the payment of fare charges of Toyota Hilux vehicles hired in connection with disconnection duties and remaining amount was shown to have been spent for purchase of different items, furniture etc. But in fact no such articles were purchased and the amount after withdrawal was misappropriated by the appellant. In order to prove first allegation prosecution produced vouchers and other relevant documents on the basis whereof amount was drawn towards the payment of charges to the vehicles' owners, stated to be hired for disconnection duties In order to show that these vouchers were forged, the prosecution has produced forms "F" through the statements of P.W.3 Abdul Wahab, P.W.4 Victor George, P.W.5 Syed Muzaffar Hussain Shah, P.W.6 Ghulam Raza and P: W.8 Ulfat Naseem. The perusal of vouchers Exh.P/7-A-1 to Exh.P/7-A-864 show that all the vehicles hired for disconnection duties were Toyota Hilux Double Cabin whereas forms "F" and Computer slips EXhs.P/3-A-1 to Exh. P/3-A-48, Exhs.P/5-A-1 to Exh.P/5-A-15, Exh.P/6-A-1 to Exh.P/6-g-13 and Exh.P/8-A-1 to Exh.P/8-A-27 reveal that the registration numbers mentioned in the vouchers as of Toyota Hilux were in fact of open Trucks, Motor Cycles, Motor car, Oil Tanker, Tractor, Jeep, Ambulance, Bus and Rickshaws. Even some numbers were not traceable in the official record of Excise and Taxation Office as is evident from the report Exh.P/4-A. Thus, it is evident that the above mentioned vouchers on the basis whereof the prosecution alleged withdrawal of amount, were forged documents. Even otherwise the appellant has also admitted these vouchers as forged, however; according to his stand the original vouchers were destroyed by Pervaiz Zaki and substituted by forged vouchers in order to conceal his misdeeds of having received commission and kick backs. Appellant has failed to produce any evidence to substantiate his stance. It does not appeal to reasons that co-accused would have replaced the original vouchers and prepared forged vouchers in such a short span of time. Moreover; admittedly these vouchers were taken into possession from the office of the Senior Accounts Officer in presence of witnesses and no suggestion was put to those witnesses that no such record was seized from the office. According to the statement of appellant the vehicles were hired through Shereen Peon but he was not produced to substantiate the plea. If we put prosecution and defence version in juxta position, the prosecution version is more plausible and convincing than that of defence. Similarly it has been shown that Rs,7,59,000 were paid to Digital Computer for purchase of Computer etc. But P.
W.12 Nasir Ali who was doing business in the name and style of Digital Computer disowned 37 vouchers on the basis of which the above mentioned amount was shown to have been paid to him which means the amount was drawn on the basis of forged vouchers and misappropriated. The appellant also admits these vouchers to be forged one. Likewise according to record Rs,3,99,046 were paid to Classic Business Net Work Quetta on the basis be Vouchers Exh.P/1-A-5 to Exh.P/1-A 38 and Rs,57,170 to Universal Equipment Qutta on the basis of vouchers Exh.P/1-A- 2 to Exh.P/1-A-4 but on enquiry both the above mentioned firms were found un-traceable and were not in existence. In this regard prosecution produced P.W.13 Abdul Aziz, according to whose report Exh.P/13-A and Exh.P/13- B these firms were not in existence at the address given in the notices which means these firms were fictitious and the amount drawn was misappropriated.
30. P.W.9 Masoom Ahmed has stated in his statement that though he was issued cheques of Rs,5,00,000, Rs,2,00,000 and Rs,2,80,000 but he had supplied furniture of only Rs,1,00,000 whereas remaining amount after encashment was received back by Pervaiz Zaki but his statement in this regard is not supported by any other evidence. Admittedly the vouchers on the basis whereof the amount was drawn have not been denied to be of his firm. Prosecution has not produced any evidence which could suggest that the furniture of only one lac was supplied and not of the amount drawn on the basis of these vouchers. Similarly amount of Rs,26,84,715 was drawn in the name of Butt and Company Quetta and Nabi Enterprises Quetta on the basis of vouchers Exh. P/1-A-95 to Exh.P/1-A-451. According to statement of P.W.15 Manzoor Ahmed owner of both the above mentioned firms was one and same who initially admitted the issuance of vouchers but failed to produce record in this regard and later admitted to have not supplied any article as per vouchers and same were obtained on the pretext that the purchase will be made subsequently and thereafter he disappeared. The appellant also admitted these vouchers as fake but according to his plea the original were replaced by these forged vouchers. The withdrawal of amount with regard to the articles having not been denied by the appellant but as already stated, according to him, all the payments were genuine and based on genuine vouchers which were destroyed by co-accused Pervaiz Zaki. It may be noticed that co-accused Pervaiz Zaki was mere a cashier and he has no concern with the purchase or acceptance of quotations or issuance of cheques, as such he was not in authority to have negotiated with the owners for commission and kickbacks. Moreover; the appellant has not produced any owner of the firm from whom, according to him, the equipment's/articles were purchased and payment was made. Had the payments made genuinely, then he could have easily produced some of the owners, to whOm payment was made, in his defence. The overwhelming documentary evidence produced during trial by the prosecution Cannot be lightly ignored merely on the bald allegations without any proof that the originals were destroyed. Additionally the above overwhelming documentary evidence and ocular statements of the witnesses are further corroborated by the confessional statement of co-accused produced as Exh.P/10-1, in which co-accused admitted to have prepared these forged vouchers on the direction of the appellant for which he was being paid extra amount monthly by the appellant in addition to 2% commission paid by the owner of the Printing Press who printed these vouchers. The learned counsel objected on the confessional statement of co-accused on the ground that same was recorded with delay, as such; was not admissible against the appellant as well as co-accused. It is suffice to observe that the delay simplicitor is not sufficient to discard a confessional statement which otherwise is found true and voluntary. P.W.10 Syed Shabahat Ali who recorded the statement of co-accused has categorically stated in his statement that the same was recorded after observing all the legal formalities and warning to the accused that same could be used against him as a piece of evidence. It may also be noted that under the NAB Ordinance the law permits the NAB Authorities to confine an accused person for 90 days, as such we find no illegality in recording the confessional statement within period of 90 days when the accused was in lawful custody. This Court in a case reported in PLD 1978 Quetta page 1 held that delay simplicitor is not enough to discard the confessional statement.
31. Likewise in the case reported in 2001 SCMR 505 while dealing with question of delay the Hon'ble apex Court held as under:-- "Appreciation of evidence.-Delayed confession---Delay in recording of confession by itself cannot render the confession nugatory if otherwise it is proved on record to have been made voluntarily." Moreover it would be worth to note that in other reference No,05/2001 co-accused admitted to have given confessional statement.
Similarly the contention of the learned counsel that the confessional statement of co-accused is not a substantive piece of evidence to base conviction of the appellant, has no force in the peculiar facts and circumstances of the present case. There is no cavil with the proposition that confession of accused should not be made sole basis for conviction of co-accused but in the instant case there is sufficient other evidence on record, as discussed above, corroborating confessional statement of the co-accused, therefore, in our considered view the same can be relied upon as a strong circumstance against the appellant as held in 1992 PCr.L.1 1304 reproduced herein below:-- It shall thus be seen that the confessional statement of appellant Noor Masih was not only amply corroborated by the recovery of stolen articles but being inculcator in nature it was made voluntarily and it disclosed the circumstances in a genuine manner. Since it was in collator it could lawfully and validly be used not only against the maker of it but also against the other appellants."
32. The appellant has denied his signatures on the vouchers produced during the prosecution evidence and in this regard he relies upon the opinion and statement of D.W.1 Zaka A. Malik. Here we may observe that after careful examination of the vouchers in dispute and the admitted signatures of the appellant we are not inclined to accept the opinion of D.W.1, reason whereof are given below in a separate paragraph.
33. So far report of Handwriting Expert is concerned, it may be observed that same is not infallible. The Hon'ble Supreme Court in the case-law reported in 1985 SCMR page 359 observed that the opinion of Handwriting Expert is not final word on the subject. Relevant observation is reproduced herein below: -- "Opinion of Handwriting Expert--Opinion of Handwriting Expert, of all kinds of evidence admitted in a Court, was the most unsatisfactory--Such evidence was so weak and decrepit as scarcely to deserve a place in system of jurisprudence--Courts not to base a finding merely on expert opinion--Conclusion based on mere comparison of handwriting must at best be indecisive and yield to positive evidence in case."
Likewise in the judgment reported in AIR 1947 Oudh page 180 their Lordships, have held that it would be dangerous to place implicit reliance on the opinion of Handwriting Expert. It would be advantageous to reproduce the relevant observations herein below: -- "The last witness to be considered in this connection is D.W.22. I wish to state at the outset that had the evidence of the Handwriting Expert in proof of these disputed documents stood alone, I would have had great hesitation in accepting it. Mr. Wasim has cited the opinion expressed in numerous authorities and text books in regard to the evidence of a Handwriting Expert. I am fully conscious of the fact that it is dangerous to place implicit reliance upon the evidence of such witnesses."
It has also been held in number of cases that an expert is unconsciously prejudiced in favour of the party calling him. Here we may refer to the judgment reported in PLD 1958 Lahore page 447.
"The opinion of a Handwriting Expert should be received with great caution ; however impartial an expert may be, he is likely to be unconsciously prejudiced in favour of the side that calls him. From the mere fact that an expert has said that a document was written by a certain person one will not be justified in arriving at the conclusion that the scribe was the person mentioned by the expert because before giving a finding to that effect the Court has to consider the entire evidence on the point."
It was further held in the same judgment as under:- "The opinion of an expert is admissible but it cannot be considered to be infallible. There must be some circumstance or evidence whereby to test the accuracy of the statement of an expert." Their Lordships in the judgment reported in 1969 P. Cr. L. J page 259 while discussing the opinion of Handwriting Expert held as under:-- "The opinion of Handwriting Expert with regard to questioned writing and signature is not infallible but liable to error and it is a very weak kind of evidence. The opinion of Handwriting Expert does not conclusively prove forgery when it is to the effect that the questioned writing and signature are not those of the person whose writings and signatures they purport to be. It is, however, one of the modes of proof of handwriting and signature but its evidentiary value is slender."
34. The Hon'ble apex Court in the, judgment reported in 1968 SCMR page 1126 held that the evidence of a Handwriting Expert is neither only nor the best method of proving Handwriting or signature of a person. It is at the best only opinion evidence where other direct evidence of the nature adduced in the case is available, no illegality is committed by accepting direct evidence in preference to the Hand Writing Expert's opinion. Similar views were expressed by their Lordships in their judgment reported in AIR 1979 SC page 1011, reproduced herein below: -- In order to rely on the evidence of an Expert the Court must be fully satisfied that he is a truthful witness and also a reliable witness fully adept in the art of identification of handwriting in order to opine whether the alleged handwriting has been made by a particular person or not. Where the evidence of the expert has been disbelieved by the High Court on the most material points, it is wholly unsafe to base the conviction of the accused merely on the testimony of the expert."
35. We may observe that the Expert opinion is admissible only to aid the court in forming its opinion and in order to form its opinion the Court is competent to call for such opinion if it feels it necessary.
Likewise the Court can come to its own conclusion independently of the Expert opinion after taking into consideration the facts and circumstances of the particular case as observed in PLD 1966 Dacca Page 444.
Reproduced herein below:-- "A plain reading of the section will show that it is the Court which has to form the opinion. The opinion of an Expert is relevant but the duty of the Court is not thereby altogether abrogated. The Court in order to form its opinion may call upon the opinion of an Expert to aid the Court to come to its conclusion. Therefore, in a case, where the impressions are clear and the similarity or dissimilarity is obvious, we do not see why the Court cannot itself come to its own conclusion independently of an opinion of the Expert."
36. There are different nodes of proving handwriting provided under Qanun-e-Shahadat Order, 1984. The handwriting can be proved by the evidence' of a witness who is acquainted with handwriting of the person or by calling Expert's opinion or by comparison by the Court itself and where the Court comes to the conclusion different from that of Handwriting -Expert then its opinion would have preference over the opinion of the Expert. While dealing with the proposition the Hon'ble Judges in Sindh High Court held in the judgment reported in PLD 1968 Karachi page 875 as under:- "Therefore, in the ultimate analysis if on comparison the Court reaches a firm and definite conclusion with regard to a particular writings even though that conclusion is against the opinion of the Handwriting Expert such a conclusion can prevail."
37. In order to compare two different handwritings or signatures, Handwriting Expert is required to examine different characteristics of both the hand writings or signatures such as Pen hold, Pen pressure, slant, speed, sizing, alignment, spacing, line quality, tremors, Curves, connections, rhythm, moment in pulse, position in all letters, paper ink and writing instrument. Similarly before comparison the principle "like with the like" is to be observed. In other words the specimen for comparison must provide similar material for comparison. As far as possible while taking specimen writings similar paper Ink and writing instruments be provided to the person whose specimen writing are required. If disputed writings are in pencil, pencil specimen must be obtained. If they are in Ball Pen, Ball Pen writings must be obtained. "(Hardless's Disputed Documents, Handwriting, and Thumb print, identification" revised by T.J. Gajjar third Edition 1983 referred).
38. Furthermore; there are certain cases in which handwriting and signatures are disguised in order to deceive or misguide. Similarly some time the persons deliberately write illegibly or in an unusual manner so as to afford the signatories some plausible grounds for disclaiming them. In such a situation the document examiner if does not realize that he is dealing "=pith a disguised handwriting, there is danger that he may record dissimilarities which occurred as a result of disguised as indicating different authorship Mr. Willson R. Harrison M.Sc. Ph.D. In book "Suspect Document" second Edition 1966 published by "Sweet and Maxwell Limited, London" while dealing with disguised handwriting observed that failure to realize, that the document examiner is dealing V with a disguised handwriting may not only result in a serious miscarriage of justice, it may thwart the investigation by drawing the investigation away from a promising line of enquiry.
Keeping in view the above mentioned factors the Courts have always considered the report of Handwriting Expert, whether in favour of prosecution or, accused with care and caution keeping in view the facts and circumstances of each individual case. In the instant case we are not inclined to take into consideration the report by D.W.1 Zaka A.
Malik for the following reasons:--
(i) Admittedly the disputed documents were Photostat whereas according to D.W.1 he compared the same with original documents stated to be routine signatures of the accused and specimen signature obtained in presence of Superintendent Jail, therefore, it would not have been possible for the Expert to have given opinion with certainty because same does not fulfill the conditions of the principle "like with the like".
(ii) It is not indicative either from the statement of D.W.1 or from his report that he had also examined these documents from the angle of disguised signatures.
(iii) D.W.1 was examined before the Accountability Court on 15-102001 and the report produced by him in the Court Exh.D/A-1 is also of the same date. From the report or from his statement it is not clear as to when he received these documents and how many days he spent in examination. It may be noted that there were 1315 documents which by no stretch of imagination can be examined in a single day. D.W.1 has produced a few documents in the Court which are stated to have been compared with the admitted documents and not all the documents.
(iv) The careful examination of the disputed documents shows that Handwriting Expert was not provided with all the documents nor he has examined all questioned documents, otherwise he would have found similarity in characteristic of many documents such as Exh. P/7-A- 56, Ex. P/7-A-58 to 90, 252 to 279, 337 to 360.
(v) = D.W.1 has laid his opinion upon the curve appearing at the end of word "q" apparent in admitted signatures of the appellant which according to him was not found in the signatures present on disputed documents but after perusing the disputed documents it appears that D.W.I has not examined each and every document otherwise; the curve indicated by D.W.1 should have been noticed by him on number of disputed documents such as Exh.P/1-A- 238, Exhs.P/1-A-272, 273, 289, Exhs.P/7-A-416, 417, 507, 510, 542, 551, 556, 574, 575, 580, 582, 593, 608, 609, 613, 621, 622 and 647.
(vi) According to D.W. Zaka A. Malik he has compared the disputed documents with the routine signatures found on memorandum dated 28-3-1994, National I.D. Card of appellant, form-B and H for N.I.C., Motor Car Driving Licence, specimen signature on the cheques and six specimen signatures of Ishfaq Khalid obtained before the Superintendent, District Jail Quetta. The defence failed to produce Superintendent, District Jail, Quetta in whose presence allegedly the specimen signatures were obtained which creates doubt as to whether specimen signatures were taken in his presence or that the person whose specimen signatures were obtained was in fact the appellant and not of any other person. Similarly the other documents which allegedly contained routine signature of the appellant were not proved to be genuine documents as no person from the concerned department was produced to verify these documents.
(vii) The appellant in another case (reference No,5/2001) admitted his signature on Ex. P/1-B-1 but surprisingly that document was not sent for comparison to the Handwriting Expert, though containing signature similar to those on disputed vouchers.
(viii) Generally whenever specimen signature and handwriting of an accused 'person are taken in order to compare with the signatures and hand writing on the disputed documents, these are taken in three different speeds i,e, slow, normal and fast because admittedly the signature and handwriting do change during different speeds but in the instant case it is not indicative as to whether the admitted signatures/specimen ,signatures were of three different speeds or otherwise. D.W.1 himself observed that disputed signatures were in fast speed whereas routine and specimen signature were in slow speed.
(ix) The appellant has not asked the trial Court to send his admitted and disputed signatures for comparison to Handwriting expert but at his own selected D.W.1 for comparison and as already observed an Expert called by a party is unconsciously inclined in favour of that party.
(x) According to the opinion of D.W.1 the disputed signatures were skilled one which could not be expected from a person who executed less skilled specimen/routine signature. We are unable to believe that the appellant who was Senior Accounts Officer would execute less skilled signature.
39. Coming to the next contention of the learned counsel that the appellant was D.D.O with the power of sanctioning contingent bill to the extent of Rs,1,000 only, suffice to observe that in his statement the appellant had admitted withdrawal of amount under his signature along with signature of Muhammad Rafiq Kakar and purchase of the items as shown by the prosecution but his plea was that all the equipment's as per vouchers were purchased which were checked by the Accounts Officer Rafiq Kakar and were genuine. He further stated in his statement that all the vouchers for purchases were issued by the firms, however; the original were destroyed and vouchers produced in the Court were forged. In view of his such statement no benefit could be taken by the appellant by advancing the plea that he was D.D.O. With the power of drawing an amount of Rs,1,000 only in respect of contingent bill. Similarly as the amount, shown by the prosecution as misappropriated, having been admitted to have been withdrawn, there was no need to prove that the same was sanctioned by the competent authority as contended by the learned counsel. The withdrawal of amount and admission by the appellant show that the same was got sanctioned from the competent authority and the fact remains that same was withdrawn on the basis of forged vouchers/bills because, as already observed, the appellant failed to substantiate his plea that the original vouchers were destroyed and replaced.
40. So far contention of the learned counsel that the reference sent by Chairman NAB does not indicate application of mind, is concerned, we have perused the reference which shows that before signing the reference, Chairman NAB had gone through the evidence and the final report submitted by the Investigating Officer as is evident from paras. Nos.2 & 3 of Exh.P/15-B, showing application of mind by Chairman NAB.
41. As far as case-law referred by the learned Counsel for the appellant is concerned, it may be observed that in criminal cases each case has to be decided on its own peculiar facts and circumstances as the facts of two cases could not be similar. So for case-law reported in PLD 2003 SC 704 is concerned, the Hon'ble apex Court while dealing with admissibility or non-admissibility of confession has held that in criminal cases great responsibility rests upon the Courts to determine if the confession is voluntary and true or is lacking within scope of either term voluntary and true. It was further held that if a confession directly or indirectly is the result of inducement, threat or promise from a person in authority, it would be treated as not voluntary. The Hon'ble apex Court also observed that the question whether a confession is voluntary and true is a question of fact and is to be determined keeping in view the attending circumstances of each case. After going through the statement of P.W. Syed Shabahat Ali who recorded confession statement of co-accused and keeping in view the other' evidence on record we are satisfied that the confessional statement' was not result of any inducement, threat or promise nor any material has come on record either during prosecution evidence or from the side of the accused persons which could suggest that the confessional statement was not voluntary having been extracted by inducement, threat or promise.
42. In the judgment reported in PLD 1991 SC 898 their Lordships held that a confession of co-accused, even when admissible, was not evidence and could only be taken into consideration, but could not form the basis of conviction of the accused. It was further held that where confession of co-accused was not the only evidence in the case and conviction not based on it, contention that such confession was no evidence and should not have been treated as such was repelled. In the instant case, as discussed above, the conviction of the appellant was not based only: on the confession of co-accused but there was other documentary evidence available on record which was corroborated by the confession of the Co-accused Pervaiz Zaki.
43. In the judgment reported in AIR 1999 SC 2640 it was held that merely because a confession is recorded a day or so before police remand was to expire, does not make it in-Voluntary. It was further held that confession, made by accused voluntarily and validly is admissible against co-accused as substantive evidence. It was also held that as a rule of prudent caution it cannot be relied upon unless generally corroborated by other evidence on record.
44. In the judgment reported in PLJ 1999 SC 264 the Hon'ble Judges held that delay in recording of a confession if remaining unexplained and exhibiting an unconscious able state of affair, can be fatal to a retracted confession. It was further held that the precedents in criminal cases do not carry same persuasive value as precedents in other matter and each criminal case has to be decided on its own facts. In that case after taking into consideration the facts and circumstances of case their Lordships relied upon the confessional statement. In the instant case, as already observed that the co-accused Pervaiz Zaki was in lawful custody of the NAB Authorities and he made confession during that period and there was no evidence from which it could be safely inferred that he was either tortured or induced to make confession, as such; delay simplicitor is not sufficient to discard the confession, particularly when in other reference in which the confessional statement was recorded, the co-accused owned his confessional statement.
Likewise the judgment reported in 1982 SCMR page 321 is not applicable to the facts and circumstances of the instant case as in that case the accused remained in illegal custody of the police for six weeks, as such; the confession recorded was not considered whereas in the instant case admittedly the co-accused was in lawful custody of NAB Authorities and the said confession was recorded within the period of 90 days, the period for which NAB Authorities are legally empowered to keep an accused person in their custody after getting, remand from the Accountability Court.
45., The learned counsel also referred to, the judgment reported in PLD 1963 Lahore page 411, PLD 1982 SC(AJ&K) 89, PLD 1982 SC(AJ&K) 89, 1989 CLC page 2287 and PLD 1995 SC page 381 in order to show that the opinion of D,W.1 Zaka A. Malik was accepted invariably by the Courts. It is suffice to observe that in all these cases the Hon'ble Judges took into consideration the opinion of Zaka A. Malik which was in accord with other evidence, whereas in the instant case the opinion of Zaka A. Malik is not supported by any other evidence on record, rather for the reasons discussed earlier it' was liable to be A ignored. In the judgment reported in PLD 1995 SC 381, it was held that opinion of Handwriting Expert supported by reasons, deserves preference if, the opinion is in accord with the direct evidence whereas in the judgment reported in PLD 1982 SC(AJ&K) 89 as well as in PLD 1982 SC(AJ&K)
89. Their Lordships held that the question as to how much reliance Court would be entitled "to place on statement of an Expert depends on facts and circumstances of each case. It was further held that Expert's testimony need not be corroborated before it is acted upon, however; as a matter of prudence and abundant caution Courts generally insist upon some sort of corroboration.
46. In, the judgment reported in 1989 CLC page 2287 this. Court held that under Article 59 of Qanun-e-Shahadat, 1984 the Court can make fair comparison of the signatures for arriving at correct conclusion on the basis of available record. Upshot of the above discussion is that the appellant was rightly found guilty by the learned Accountability Court and we find no merits in the instant appeal which is dismissed accordingly. However; in light of what has been stated earlier, we, direct that the substantive sentences of imprisonment awarded in Reference No,17 and Reference No,29 to run concurrently. Appeal stands disposed of accordingly.