' SHAHID ANWAR BAJWA, J.---By this judgment we propose to decide Criminal Appeals Nos. 17, 18, 19, 20, 21 and 22 of 2010 as common questions of law and substantially common facts are involved in these appeals.
2. Appellant in all these appeals was employed by United Bank Ltd., as Cashier and at the material time he was posted at Tando Ghulam All Branch of the Bank. It is alleged that parallel banking was resorted to in the branch. Appellant being Cashier in the branch, allegations against the appellant are that he received payments from various account holders and as token of acknowledgement of receipt he signed the pay-in-slips. However amounts were not credited to the relevant accounts.
3. In Appeal No,17 of 2008 there is one pay-in-slip whose amount is also stated (for an amount of Rs, 9000) for deposit in an account number, which is also stated in the charge which was framed on 22-11-2000. In Criminal Appeal No,18 of 2010, there are 18 pay-in-slips and in the charge framed on the same date, account number is stated and amount of each pay-in-slip is also stated. In Criminal Appeal No,19 of 2010 number of pay-in-slip is 9, in Criminal Appeal No,20 number of pay- in-slip is 44 and in Criminal Appeal No,21 number of pay-in-slip is 49. Like Criminal Appeal No,18, in Criminal Appeals Nos.19, 20 and 21 only amount of pay-in-slips and the account numbers are stated.
4. After complaint was made by the Bank an F.I.R. Was registered by the FIA, challan was submitted and thereafter the present appellant was convicted vide judgments dated 13-12-2009 and in each case the appellant was sentenced to imprisonment for 7 years and fine of amounts which differs from case to case.
5. These appeals have been filed under section 10 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984.
6. Learned counsel for the appellant made the following submissions:--
(1) That even if it is admitted that all the pay-in-slips were signed by the appellant even then since there are other persons who also signed, the appellant cannot be singled out.
(2) No proof has been produced that the appellant had received any payment from any of the customers.
(3) In any case, none of the pay-in-slip in question have been produced by any witness of the Bank.
(4) There are contradictions in various documents submitted by the Bank. In some documents the amount defrauded is stated to be more than 28 million and in the other document 55 million and in another document it is stated to be more than 47 million.
(5) Entire case of prosecution depends upon opinion of Handwriting Expert. Opinion of handwriting expert can only be used as a corroborative evidence and cannot form sole basis for decision.
Learned counsel relied upon Ghulam Abbas v. The State, 1971 PCr.LJ 918, Muhammad Anwer v. The State 1975 PCr.LJ 1151, Abdul Rashid v. The State 1989 PCr.LJ 687 and Qazi Naseem Ahmed v. The State 1992 PCr.LJ 963.
(6) No question was asked in the statement under section 342, Cr.P.C. In respect of the pay-in-slips.
Learned counsel relied upon Nuzhat Bibi v. The State 2008 YLR 2866 and Ali Ahmed v. The State 2007 PCr.LJ 73 and contended that in the absence of specific question in respect of each pay-in- slip the appellant could not have been said to be guilty of the charge against him.
(7) In respect of Appeals Nos. 20 and 21, learned counsel submitted that one of the account- holders was produced in Appeal No,20 and two of the account-holders were produced in the Appeal No,21 and they stated that they did not know the accused present (present appellant) and did not hand over the said amount to him.. They further stated that the accused present in Court is not the same person to whom the account holder has handed over the amount against the concerned deposit slip in the Bank. No question whatsoever in the cross-examination of such a witness was asked. Therefore the appellant could not have been held responsible of any misappropriation or any act of parallel banking.
7. Learned D.A.G. Submitted that 126 pay-in-slips have been produced in all these cases.
Handwriting Expert has given his opinion and full opportunity of cross-examination was allowed to the present appellant and he did not ask any material question in the cross-examination of the Handwriting Expert. Learned DAG further submitted that presence of the appellant in the branch is admitted and full opportunity was given to the appellant with all relevant details of the evidence while his statement was recorded under section 342, Cr.P.C. He therefore, supported the impugned judgment and prayed that appeal be dismissed.
8. We have considered the submissions made by the learned counsel and have also gone through the Paper Book, as well as case-law cited at the bar.
9. The first contention of the learned counsel for the appellant was that the pay-in-slips are alleged to have been signed-besides the appellant by other persons and such other persons have been treated with kid gloves. Answer to this particular submission by the learned counsel lies in Para 21 of each of the impugned judgment which para is in the following words:-- "This Court has noticed that Investigating Officer Abdul Hameed Pathan has purposely, and intentionally not challaned the other officers of the bank who are also said to be involved as per enquiry report, and audit report, besides his admissions in cross-examination. Hence the copy of judgment be sent to Director-General FIA for taking appropriate action against him."
10. Besides it is now well-settled law that if one accused, for whatever reasons, bona fide or mala fide, is not proceeded against it is not a ground available to the other accused to claim that he should also be allowed to go scot-free. The Supreme Court of Pakistan in Nazir Ahmed Pathan and another v. Muslim Commercial Bank Ltd., and others 2008 SCM R 899 observed as under:-- "Inaction on the part of respondent bank to initiate proceedings against Manager Aijaz Ali Kalwar and to take action against him for his alleged involvement in misappropriation/ embezzlement of banks/customers money along with petitioner Abdul Razzak Pathan would not be a ground for exonerating or absolving the petitioner from the charge of misappropriation/embezzlement."
11. Therefore, fact that other co-accused had been treated kid gloves is no ground for absolving the present appellant.
12. Main emphasis of the learned counsel for the appellant was that none of the witnesses coming from the Bank produced the pay-in-slips in question. P.W.1 in all the cases was Rahim Bux Memon and his evidence in all the cases was in the following words:-- "I was posted as AVP in Zonal Office of U.B.L., Mirpurkhas and was available on duty in the Bank on 28-5-1997, when I received written directions to conduct the enquiry and inspection of Tando Ghulam Ali Branch of U.B.L. In writing from Zonal Chief. I produce the letter Exh.4/A. Further is reserved for original documents."
13. P.W.2 in all the cases by the Bank was Mr. Zulfiqar Bhambot and his evidence was as under:-- "I was posted as Inspection Officer in Regional Audit Office Hyderabad and was available on duty on 31-5-1997 when I proceeded to Tando Ghulam Ali Br. Of UBL under the instructions of Regional Audit Chief Hyderabad along with Haroon Rasheed and Shafqatullah as members of the Team under me for conducting the audit inspection of the said Tando Ghulam Ali Br. Of UBL. We conducted the audit and inspection of the said Br. And prepared such audit and inspection report on 3-9-1997 and submitted the same to the Regional Audit Chief Hyderabad, duly signed by me as Head and the other two members of the team. I produced the attested photocopy of the said audit report as Exh.5/A and see its original as Exh.5/A in Case No, 6/99 and say further that it is same, correct and bears our signatures. The present accused Mir Fayyaz Ahmed had worked as cashier during the period under report. FIA recorded my statement."
14. These were the only two witnesses who came from the Bank therefore Dr. Rana Muhammad Shamim seems to be correct, at first glance in arguing that none of the witnesses of the Bank had produced pay-in-slips in question. However, Handwriting Expert, Munir Ahmed Shaikh also came as a witness. His entire evidence is identical in all the cases and is in the following words:-- "Since 1983 I am posted as Inspector/handwriting expert in the technical wing of FIA Headquarter, Islamabad. In October, 1997 I was entrusted a case file containing the dismissed, specimen and the previous admitted routine signatures of the accused Mir Fayyaz, Umed Ali, and Muhammad Iqbal Khan for examination and report. I examined the concerned documents and prepared consolidated report and I produce the photocopy of the same report as Exh. 10/A and say it bears my signature (original has been produced in other case of the same F.I.R.). I produce the questioned signatures marked as Q/1 to Q/69, Q/71 to Q/74 and Q/78 to Q/117 as Exh. 10/B-1 to 10/B-1 12 are found similar in characteristic with the corresponding specimen and routine signatures marked as S/1 to S/9 which I see the same on record as Exh. 7/E17 to 7/E-25. I produce routine signature, handwriting marked as R/11 to R/14 as Exh. 10/C-1 to 10/C-4. The questioned signatures in circle and marked as Q/70 and Q/75 to Q/77 do not tally with corresponding specimen and routine signature marked as S/1 to S/9, R/11 to R/14 and R/1 to R/10. I produce attendance register marked as R/1 to R/10 as Exh. 10/D."
' And his entire cross-examination is in the following words:-- ".I have not obtained any foreign qualification other than the training from technical wing of FIA.
Voluntarily says, it is only institute in Pakistan."
15. A reading of the evidence indicates that all pay-in-slips were produced by the Handwriting Expert. When the Handwriting Expert was questioned in the cross-examination only question that was asked was as to whether he had any foreign qualification or not. No question whatsoever was asked of him in respect of as to how he reached the conclusions that he had reached, whether he was producing the original or not and whether the document bore the signatures of the appellant or not. Therefore, contention of Dr. Rana Muhammad Shamim that witnesses of the Bank did not produce the alleged pay-in-slips though attractive on its face loses its force in view of the fact that the same payin-slips were produced through the Handwriting Expert.
16. Here we may also look at the question for which the learned counsel has very ably referred to in terms of the issue relating to probative value of the opinion of the Handwriting Expert.
17. In Ghulam Abbas's case (Supra), facts were that person who had an account in his Post Office Saving Branch was issued a Pass Book. Account-holder was away from Pakistan and it was alleged that the petitioner had withdrawn Rs,2000 on 11-2-1956 under a. Forged withdrawal application.
Some other withdrawals were also alleged. Petitioner denied the charges and also denied that he had forged any withdrawal slip. About the opinion of the Handwriting Expert the Court' observed that ."opinion of the Handwriting Expert is of course a mere opinion and it cannot be considered as final word on the subject." However, the Court accepted the petition and set aside conviction on the ground that under the rules withdrawal could only be approved by the Deputy Postmaster and at the time of withdrawal it was essential that Pass Book be produced and it had not been contended by the account holder that Pass Book was not with him or that any duplicate Pass Book had been issued.
18. In Muhammad Anwar's case (supra), prosecution story was that money order for Rs, 90 was sent from Peshawar to some one at Wah Cantt. It was alleged that same money order had reached at Hyderabad where amount was changed from Rs,90 to Rs,160 and even name of payee was changed from Muhammad Iqbal to Israr Ahmed. Suspicion of Post Master arose and he referred to originating post office. When the fact came to light he sent report to S.H.O. The recipient of the money order Israr Ahmed was arrested. Since the appellant was working as dealing clerk in the post office he was also apprehended. Appellant's specimen signatures were obtained and the Handwriting Expert report that overwriting in the money order were from the hand of the appellant.
Agha Ali Haider, J. (as his lordship then was) after observing that "it is a trite proposition of law that evidence of the Handwriting Expert is to be taken with caution and cannot be implicitly relied upon unless properly corroborated" held that since co-accused Israr Ahmed had been acquitted if there was criminal conspiracy Israr Ahmed should have been convicted and acquitted Muhammad Anwar.
19. In Abdul Rashid's. Case (Supra), it was held that since there was no evidence at all to connect the appellant with the commission of offence with which he stood charged and that it was "well- settled that since conviction cannot be based uncorroborated testimony of an expert witness which is certainly a weak type of evidence."
20. Lastly in Qazi Naseem Ahmed's case (Supra), the appellant was convicted under section 5-C of the Prevention of Corruption Act. It was alleged that being a public servant, by improper means, he had acquired in his own name and in the names of his dependent mother and young brother a host of properties. Court analyzed each of the property and came to the conclusion that the charge had not been proved. Regarding probative value of opinion of the Handwriting Expert, the Court observed that in the absence of any corroborative evidence, opinion of Handwriting Expert is not sufficient to hold that the appellant had forged the documents, as such evidence is not infallible."
21. A reading of the above case-law indicates that the law seems to be well-settled that opinion of Handwriting Expert is what it is i,e, only an opinion. Therefore, standing alone the opinion will not be sufficient for reaching a definite conclusion as to the alleged handwriting or the. D alleged signatures. The opinion has only corroborative value and therefore unless independent corroboration is available conviction cannot be based on sole testimony of Handwriting Expert. In Ghulam Abbas's case (Supra) it was the point regarding the requirement of producing pass-book before Deputy Post Master which had created a doubt. In the present case before us it is not denied that appellant at the material time was posted a cashier in Tando Ghulam Ali Branch.
Therefore learned DAG has correctly argued that his presence in the branch at the material time is established. It has also come in evidence that parallel banking involving an amount running into scores of million had gone on in the Tando Ghulam Ali Branch for quite some time. It may also be noted that normal course of business is that when a customer comes to deposit an amount he first goes to cashier. There might be exceptions, such as when a customer is personally known to the Manager, instead of going to the cashier he goes to Manager. The Court in terms of Article 129 of Qanoon-e-Shahadat, 1984 can presume existence of any fact, which it think likely to have happened, regard being had to the common course of natural events, normal human conduct and public' and private business. The third factor which has to be also factored in is that presence of a F large number of pay-in-slips which are not accounted for in the accounts of the customers and the fact that the present appellant was posted in that branch does indicate a situation that the present appellant cannot be ignorant of the goings on in the branch: All these three factors lend corroboration to the opinion of the Handwriting Expert and therefore it would be safe to come to the conclusion by relying upon evidence of the Handwriting Expert that the pay-in-slips bear the signatures of the present appellant.
22. Dr. Rana Muhammad Shamim submitted that no question was asked at the time of recording of section 342, Cr.P.C. Statement regarding the pay-in-slips. His submission was that if question regarding a particular aspect of evidence is not asked in cross-examination, that evidence cannot be used against the person standing trial. He relied upon two reported cases.
23. In Nuzhat Bibi's case (Supra), regarding examination of the accused under section 342, Cr.P.C. It was observed as under:-- "After going through the statements of accused recorded under section 342, Cr.P.C. We have felt that the same was not recorded properly. All the possible material brought on record in evidence against the accused persons should be put to them for their explanation. They should not be left to guess the material which can be made basis for convicting them. Therefore, all the circumstances appearing in prosecution evidence should be put to them for their explanation. Mere putting general type of questions is not sufficient as provisions of section 342, Cr.P.C. Are mandatory.
Omission of any material question putting to accused persons for their explanation on appeal in many cases has vitiated the trials.
24. In Ahmed Ali's case, Federal Shariat Court observed as under:-- "In short the questions asked by him and reply given by all the accused persons were verbatim the same leading to irrebutable conclusion that the trial Court had acted with gross illegality, judicial impropriety and in flagrant breach of mandatory provisions of section 342, Cr.P.C. Which requires examination of an accused person separately and independently."
25. In the statement under section 342, Cr.P.C. In all the cases, among others the following questions were asked:-- "Q.No,
3. P.W. Zulfiqar Bharnbot has deposed that he along with Haroon Rasheed and Shafqatullab of Audit Deptt. Conducted special audit of UBL Tando Ghulam Ali Branch and submitted report Exh.
5/a whereby it was transpired that you accused Meer Fayyaz being cashier received Rs,47,54,925 through various pay-in-slips (Exh. 10/B-1 to 10/B-112), and same was not credited in books of the bank and you were also present during audit, what you have to say?
Q.No,4. P.W. Muneer Ahmed Shah Handwriting Expert has deposed who has produced the expert opinion, what you have to say?
26. Reading of the above two questions indicates that specific question as to alleged signature of the appellant on all the pay-in-slips were put. The point to be noted would be that the appellant did not say that the amount was credited in the bank accounts. All he stated was that he did not receive amount. Therefore, it is clear that on the one hand the evidence was put to the appellant when his statement was recorded under section 342, Cr.P.C. And secondly, implicitly the appellant admitted that the amount received on pay-in-slips was not credited to the concerned bank accounts. Combining this with the opinion of the Handwriting Expert and with the corroborative circumstances stated above, we do not think that there is any room for any doubt that appellant has been proved guilty of the charges alleged against him.
27. Learned counsel for the appellant referred to Appeals Nos. 20 and 21 and submitted that the account-holders (two in one appeal and one in other appeal) stated that they did not hand over money to the appellant. Regarding this aspect learned Court below has dealt with in para 17 of the judgment in both these appeals substantially in the same words. In Appeal No, 21, it has been observed as under:-- "17. I have also considered the evidence of P.W. All Haider, and Alam Khan though it is not against the accused but their amount is only to the extent of Rs, 1,97,000 while charge against the accused in the case under discussion is more than Rs,13,00,000 and deposit slips which bears the signatures of accused Mir Fayyaz as confirmed by Handwriting Expert is available on record, then in such circumstances the accused cannot be exonerated from the charge only the evidence of persons/P.Ws. Whose account is less than Rs, 200,000."
28. VThe fact that it has been established that the pay-in-slips bear the signatures of the present appellant is sufficient to hold him guilty whether the customers paid the amount to him or to anybody else in the branch. If the amount was paid to anybody else in the branch then the person who signed pay-in-slips would be equally guilty. Consequently result of the above discussion is that all the appeals in hand are dismissed and judgments dated 30-12-2009 by the Presiding Officer Special Court (Offences in Banks) Sindh Karachi, are upheld.