' RAHMAT HUSSAIN JAFFERI, J.--- On 14-12-1995 the Special Court (Offences in Banks) Sindh at Karachi convicted the appellant Muhammad Younis Habib under section 409, P.P.C. But acquitted co-accused Muhammad Saleem Sattar in Special Case No,29 of 1994.
2. During the course of arguments, advanced by the Advocate for the appellant, standing counsel, after going through the evidence and impugned judgment, we find it necessary to examine the case of acquitted accused Muhammad Saleem as it appears that the trial Court did not appreciate the evidence available on the record against the acquitted accused Muhammad Saleem on the principles laid down by the superior Courts.
3. The facts of the case as disclosed in the F.I.R. Are as under:-- "Received a written complaint bearing No,MBL/1/94, dated 17-4-1994 from A. Hameed Akhtar, EVP, M.B.L. Karachi under letter dated 17-4-1994 Mr. Kalim-ur-Rehman, Chief Executive Mehran Bank Limited, Karachi duly endorsed by Deputy Director, F.I.A. I&As, Karachi. The contents of the complaint are reproduced as under:-- ' To ' Mr. Wasim Ahmed, Deputy Director, Federal Investigation Agency, Karachi.
' Subject: Misappropriation of Funds from Account of Mr. S. Muhammad Hamad Rizavi and the Borrowings of Messrs Expo International (Private) Limited.
' During the course of scrutiny of Account No,8745-56 opened by Muhammad Hamad Rizavi with Mehran Bank Limited on 2nd March, 1992, it was revealed that huge amount of money was deposited in his account by way of following remittances. His account was introduced by EXPO International (Private) Limited 1 US$ 96,634.20 Remittance received on 3rd March, 1992 from Doha. Bank Limited favoring Hamad Rizavi.
2 US$ 139,705.00 Remittance received on 25th March, 1992 from Overseas Express favoring Hamad Rizavi.
3 US$ 44,280.00 Remittance received on 31st March, 1992 favoring Ahmed Ashraf Amount was transferred on 8th April, 1992 Account of Hamad Rizavi.
4 US$ 150,00.00 Remittance of US$ 237,900 received favoring Ayub Younus from which US$ 150,000 was transferred in account of Hamad Rizavi.
5 US$ 1,00,000.00 Remittance of US$ 299,980 received favoring Abdul Razzak from National Westminister Bank originating M. Bashir from which US$ 1,00,000 was transferred to account of Hamad Rizavi.
6 US$ 1,00,000.00 Remittance of US$ 1,00,000 received favoring Hamad Rizavi.
7 US$ 99,980.00 Remittance received on 5th May, 1993 favoring Hamad Rizavi.
8 US$ 99,980 US$ 830,579.20Remittance received on 9th May, 1993 favoring Hamad Rizavi.
' Subsequently, on the instruction of Mr. Omer Hayat an amount of US$ 8,30,000 in account of Hamad Rizavi was placed under lien as security for extending the credit facility to Expo International (Private) Limited. The facilities were sanctioned to Messrs Expo by Mr. Younus Habib in his capacity as the Chief Operating Officer of Mehran Bank Limited, who later on got it ratified by the Central Credit Committee. The facility extended is as below:-- Export Preshipment 26 million 28-3-1992 Post shipment 50 million 28-3-1992 Running Finance 1 million 22-4-1992 Letter of Guarantee 10 million 22-4-1992 ' The Foreign currency deposit receipts were issued against remittances received from various foreign banks in the account of Mr. Hamad Rizavi.
' However, with the liability of Messrs Expo International (Private) Limited being operated by Mr. Omer Hayat signatory/Director of Messrs. Expo International (Private) Limited. Bank's record revealed that out of the total amount of TDR for US$ 830,600 and amount of US$ 7.30,600 have been encashed and credited to the account of Hamad Rizavi as per his letter of request dated 22nd July, 1992 and the authority to withdrew the lien on the above deposit have been given by Mr. Younus Habib, lien was therefore, waived by Mr. Younus Habib under his own initials without adjustment of liabilities in the account of Expo International (Private) Limited. The foreign currency amount of TDRs were credited in the foreign currency account No,8745-56 of Hamad Rizavi.
' Bank records show that the foreign currency TDRs of US$ 730,600 out of US$ 830,000 were credited to the account of Hamad Rizavi on 23rd July, 1992 were utilized for issuance of DBCs by debiting its Account without customer's authority on the instruction of Mr. Omer Hayat and Mr. Younus Habib, which were delivered to Mr. Saleem Sattar under his initial on the issuing register as per practice in the Bank. Mr. Manzar Qayyum a Senior Officer of the Bank, holding the charge of securities personally delivered the F.C. TDRs to Mr. Younus Ffabib and made entry into the securities register.
' On that particular date i,e, 23rd July, 1992 DBCs of US$ 4.3 million were actually issued on account of various customers including Mr. Hamad Rizavi. Equivalent Pak Rupees of these DBCs were received by Mr. Saleem Sattar and credited to following accounts under the authority of his initials on the voucher. These accounts were owned by Mr. Younus Habib who is the real beneficiary of these accounts:-- 1 Account # 663-1Ms.Corporation Rs,45,752,000 2 Account # 9954-1Rasco Enterprises Rs,28,973,000 3 Account # 13501-1Farooq Brothers Rs,16,007,000 ' Mr. Youths Habib, Chief Operating Officer was authorized by Board of Directors through a registered power of attorney to carry on the business of Mehran Bank while Saleem Sattar was AVP/and Secretary Confidential to Mr. Younis Habib.
' Mr. Younis Habib, Omer Hayat and Saleem Sattar entered into criminal conspiracy to accomplish together a criminal act. M. Younus Habib in violation of banking procedures practices relating to securities against advance lifted the lien and discharged the surety and in active connivance and help of Saleem Sattar and misappropriated the amount, equivalent to US$ 730,600 including the other amounts from the sale proceeds of DBCs by depositing the same to his own accounts under initial of Saleem Sattar and thereby failed to discharge the trust reposed in them and thereby caused wilful loss to bank and dishonest gain for himself. Mr. Younus Habib along with Omer Hayat and Saleem Sattar misappropriated the aforesaid amount causing wrongful loss to the bank and wrongful gain to themselves and thereby committed offence.
' For and on behalf of Mehran Bank Limited (Sd.) A. Hameed Akhtar, Executive Vice-President Mehran Bank Ltd.
' The above contents disclosed the commission of offence punishable under sections 409/109, P.P.C. Hence, registered the case and investigation taken up by the undersigned.
(Jalal Khan), Inspector Incharge S.H.O. F.I.A. I & AS PP. Cell Karachi.
4. On M-8-1994 the trial Court framed the following charge:-- "I, Rasheed A. Razvi, Presiding Officer, Special Court (Offences in Banks) Sindh Karachi, hereby charge you accused:--
(1) Muhammad Younus Habib somof Abdul Habib.
(2) Muhammad Saleem son of Abdul Sattar as under:- ' That during the year 1992 you accused Muhammad Younus Habib while acting as Chief Operating Officer of the Mehran Bank Ltd. And you accused Muhammad Saleem Sattar while you were A.V.P./Secretary to accused Muhammad Younus Habib illegally and unauthorisedly in connivance with each other and with common intention lifted/waived and withdraw the lien on the credit facility extended to Messrs Expo International (Pvt.) Ltd. Amounting to US$ 7,30,600 equivalent to Pak Rs,1,83,59,978 in gross violation of the banking rules, regulations and was illegally credited in the Account No,8745-56 of Hamad Rizavi and on 23-7-1992 the same amount was illegally and unauthorisedly utilized for issuance of DBCs by debiting the said account without the customer's authority and in violation of Banking Rules and practice and thus, you both caused wrongful loss to the Bank and wrongful gain to yourselves and thereby committed offence under sections 409/ 477-A/109/34, P.P.C. Within the cognizance of this Court.
' And you both accused on 23rd July, 1992 after receiving sale proceeds of US$ 4.3 million equivalent to Pak Rupees 108.059 million credited the same in the accounts of Messrs M.S. Corporation (Account No,663-1) Rs,45,752,000 in Messrs Rasco Enterprises (Account No,9954-1)
Rs,28,973,000 and Farooq Brothers (Account No,13501-1 Rs,16,007,000) which accounts were owned, operated and managed by Younus Habib and thus you both caused wrongful loss to the Bank upto the extent of Pak. Rs,108.059 millions and wrongful gain to yourselves and thereby committed offence under sections 409/ 477-A/34, P.P.C. And within cognizance of this Court.
' And I hereby direct that you be tried by this Court for the aforesaid offences/charges."
5. In order to prove the case the prosecution examined 11 witnesses.
6. The learned Trial Judge after considering the evidence and hearing the parties' counsel convicted the appellant and acquitted the accused Muhammad Saleem under the impugned judgment. In the said judgment the learned trial Court framed the following points for determination:-- "(1) Whether the Account-holder Sayed Muhammad Hamad Rizavi entrusted to the dominion of the Mehran Bank Ltd. His foreign currency US$ Account No,8745-56 through Foreign Currency Remittances totalling US$ 8,30,600 out of which an amount of US$ 7,30,600 were transferred in Fixed Deposit/Term Deposit Receipts for three months?
(2) Whether Messrs Expo International (Pvt.) Ltd. Was extended facility of Export Refinance Loan by Mehran Bank Ltd. And against the said loan Term Deposit Receipts of US$ 7,30,600 from the account of Hamad Rizavi were kept under lien without the consent of Account holder Muhammad Hamad Rizavi with dishonest intention of misappropriation?
(3) Whether accused Younus Habib and Saleem Sattar in connivance with each other and with common intention lifted waived and withdrew the lien on credit facility of Messrs Expo International (Pvt.) Ltd. For amounting to US$ 7,30,600 equivalent to Pak Rs,1,83,59,978 and after breaking lien on Term Deposit Receipts of Hamad Rizavi on 23-7-1992 credited in his Account No,8745-56 and unauthorizedly utilized for issuance of D.B.Cs. By depositing the said amount without customer's authority and caused wrongful loss to the bank and wrongful gain to themselves?
(4) Whether Younus Habib and Saleem Sattar from the sale proceeds of D.B.Cs. Worth US$ 4.3 million equivalent to Pak Rs,108.059 million credited the same in the Account of Messrs M.S. Corporation (Account No,663-1) for Rs,4,57,52,000, Messrs Rasco Enterprise (Account No,9954-1) for Rs,2,89,73,000 and Messrs Farooq Brothers (Account No,13501-1) for Rs,1,60,07,000 which accounts were owned, operated and managed by Younus Habib thus, caused wrongful loss to the bank and wrongful gain to themselves?"
7. The learned Judge answered the points 1 and 2 in affirmative. On the point No,2, the trial Court formed opinion that it was proved against the appellant Younis Habib whereas the benefit of doubt was given to acquitted accused Muhammad Saleem. On the point No,4 which was framed on 2nd count of the charge the learned Judge formed his opinion that the prosecution could not establish the said point against the appellants Younis Habib and Muhammad Saleem consequently the appellant was convicted and Muhammad Saleem was acquitted.
8. The learned trial Judge acquitted the accused Muhammad Saleem on the ground that his initials on vouchers were not sent to Handwriting Expert, the specimen signature of Muhammad Saleem were neither taken nor sent to any Handwriting Expert, therefore, through the said initials the involvement of Muhammad Saleem, was not proved.
9. While going through the evidence of P.W.1, it has been found that P.W.1 Abdul Hameed Akhtar has also given the statement on the second count of the charge on which the trial Court framed the point No,4. The said evidence reads as under:-- "Accused Saleem Sattar at the relevant time was the Private Secretary of accused Younus Habib and was enjoying status of Assistant Vice-President at the relevant time. On 23-7-1992 D.B.C. Worth US$ 43,15,400 were issued and received by accused Saleem Sattar. Against the amount of dollars withdrawn from the account of Hamad Rizavi D.B.C.'s were also issued to accused Saleem Sattar.
On the same day all these D.B.Cs. Sold by accused Saleem Sattar which was equivalent to Pak Rs,116.453 million which includes amount of Hamad Rizavi which come to Pak Rs,18,463 millions. I produce certified copy from the register of D.B.Cs. Issued as Exh.5/51 (Note: original seen and returned). This Exhibit shows that D.B.C. Worth US$ 43,15,400 were received by accused Saleem Sattar who has put his initials in receipts of the same. (Note: initials of accused Saleem Sattar are marked as Exh.5/51-A). On the same day i,e, 23-7-1992 all the D.B.Cs. Worth US$ 43, 15,400 were sold by accused Saleem Sattar. The total amounts received in Pak Rupees against selling of these D.B.Cs. Were Rs,116.453 millions. From this sale proceed three other accounts namely M.S. Corporation for Rs,45 millions, Rasco Enterprises for Rs,29 millions and Farooq Brothers for Rs,16 millions were credited. I produce three credit vouchers through which these accounts were credited as Exh.5/52-A to 5/52-C. All these exhibits bear initials of accused Saleem Sattar. (Note: initials of accused Saleem Sattar are marked as Exh.5/52-A-1 to 5/42-C-1). No amount was credited in the account of Hamad Rizavi or Expo International (Pvt.) Limited. All the above said three accounts were VIP in nature and were controlled and supervised by accused Younus Habib. Messrs Expo International (Pvt.) Ltd. Has lodged complaint with Mehran Bank Limited. Bank has suffered loss up to tune of Rs,2 crores approximately by the acts of both the accused."
10. We have gone through the cross-examination conducted to these witnesses but we did not find anywhere that the statements of P.W. On the point of initials of the accused Muhammad Saleem appearing on the various documents were challenged. The rule laid down on the above aspect of the case by this Court in the case of Malik Muhammad Iqbal v. State 1987 PCr.LJ 247, Saeed Muneer v. State PLD 1964 Pesh. 194 and the rule was confirmed in recent decision by the Honourable Supreme Court of Pakistan in the case Muhammad Akhtar v. Muna reported in 2001 SCM R 1700, appears to have not been taken into consideration by the trial Court. Apparently the learned Judge was of the opinion that to prove a signature of any person the only mode to prove the said signature is through Handwriting Expert but under Articles 59, 61, 78, 79, 81 and 84 of the Qanun-e- Shahadat Order there are other modes for proving the signature of writing of any person:--
(i) by admission or examining the person who signed the document (Articles 78 and 81).
(ii) by examining the person before whom the alleged document was signed (Article 79).
(iii) by referring the disputed document and the specimen signature of the person or admitted signature to the Handwriting Expert for his opinion (Article 59).
(iv) by examining the person who is conversant with the signature (Article 61).
(v) by comparison of the signature on the disputed document and on admitted documents by the Court (Article 84).
11. It appears that learned Judge did not consider the said provisions of law It further appears that the learned Judge did not appreciate the evidence in accordance with law and the rules laid down by the superior Courts on the subjects.
12. In view of above, position we are of the considered view that before passing any order it is expedient in the interest, of justice and in exercise of our revisional powers direct that a notice be issued to the accused Muhammad Saleem to show cause as to whythe impugned judgment in his respect should not be set aside and his case be remanded to the trial Court for decision in accordance with law.