' Qasim Ali Malik, Manager National Bank of Pakistan, Bank Street Branch, Bahawalnagar, the petitioner, through this Criminal Revision under sections 435/439/561-A, Cr.P.C. Has impugned the judgment dated 9-10-2010 passed by the Judge Special Court (Offences in Banks), Punjab, Lahore, whereby Majid Hussain Zaidi and Muhammad Zaman Khan, respondents Nos.2 and 3, accused have been acquitted of the charges in case F.I.R. No,302 of 2008 under sections 419/420/468/471, P.P.C., Police Station City Bahawalnagar.
2. Revision of the impugned judgment is sought on the grounds that the learned trial Court has ignored the ocular account comprising the statement of Qasim Ali Malik, complainant (P.W.1.), report of the Handwriting Expert rendering the bogus pension vouchers in the hand of the accused Muhammad Zaman Khan, recovery of Rs,2,00,000 out of the embezzled amount effected from respondent Majid Hussain Zaidi accused by the Investigating Officer through recovery memo Exh.PB.
3. We have given patient hearing to the counsel for the petitioner and also gone through the record with his able assistance.
4. Main points for determination in this revision are as under:--
(i) Whether a revision petition under sections 435/439, Cr.P.C. Against the order of acquittal is competent in the High Court as section 10 of the Offences in Respect of Banks (Special Courts)
Ordinance No,X of 1984 merely provides for appeal from the sentence passed by the Trial Court and there is no provision regarding appeal against acquittal or revision in the Ordinance ibid.
(ii) Whether the report of the Handwriting Expert is per se admissible as a valid piece of evidence in terms of section 510, Cr.P.C. Without adopting mode for proving the signatures or handwriting as laid down in Article 78 of the Qanun-e-Shahadat Order, 1984.
(iii) Whether the impugned order suffers from any illegality or misappraisal of evidence.
5. To meet the point No,(i) learned counsel for the petitioner has taken reliance upon a beacon- light judgment of the apex Court in thecase of Habib Bank Limited v. The State (1993 SCM R 1853) wherein after detailed examination it is laid down that revisional powers of High Court under sections 435/439, Cr.P .0 . Against the order of acquittal remain intact despite prohibitory and negative provisions contained in section 10 of the Offences in Respect of Banks (Special Courts)
Ordinance, 1984. Relevant extract from the cited judgment reads below:- " The revisional authority of the High Court embodied in sections 435 and 439 of the Code has not been taken away by express or clear term. The High Court has not been stripped off all powers by this Ordinance. The High Court has been enjoying certain powers by the Ordinance and this special enactment has close connection with the. High Court. The ouster of jurisdiction must be expressed in clear and unqualified words. The Ordinance has not completely ousted the jurisdiction of the High. Court in all respect and section 10 is to be 'interpreted in limited sense. The provision of section 10 of the Ordinance cannot be so constructed so as to take away the normal jurisdiction of the High Court. The words are to be construed in a reasonable and judicious manner. The revisional jurisdiction cannot be curtailed by implications. The rule laid down by this Court in Abdul Hafeez's case (supra) will also apply to the cases under the Ordinance. In the result we hold that the powers of the High Court under sections 435 and 439 remained in intact in spite of prohibitory and negative provisions contained in section 10 of the Ordinance."
6. Needless to mention that revisional powers under section 439, Cr.P.C. Are discretionary. The expression "may in its discretion" clearly manifests the intention of the legislation in this regard.
While exercising powers under sections 435 and 439, Cr.P.C. The High Court and the Sessions Court besides considering legality of an impugned order may also look into the propriety of any sentence as well as by going into the evidence and regularity of the proceedings of an inferior court.
Reliance be made upon the case of Abdul Rehman Bajwa v. Sultan (PLD 1981 SC 522). For this purpose the expression inferior criminal court used in the provisions of section 435, Cr.P.C. Has been sufficiently elaborated in the case of Abdul Hafeez v. The State (PLD 1981 SC 352) wherein the question was whether a Drug Court established under the Drugs Act, 1976 was a criminal court inferior to the High Court and whether the High Court was competent to hear a revision petition against the court's order. In the cited case it was held that the Drug Court is an inferior criminal court subordinate to the High Court for the purposes of section 435, Cr.P.C. The dictum laid down in the above cited case of Habib Bank Limited was based on the principle adopted in the case of Abdul Hafeez.
7. For better understanding of the above proposition we would-like to reproduce the provisions of subsection (4)(a) of section 439, Cr.P.C. Which reads below: -- "Sec.
439. High Court's power of revision. (4) Nothing in this section shall be deemed to authorize a High Court:
(a) to convert a finding of acquittal into one of conviction;"
8. Accumulative reading of the above quoted dictums and the provisions of section 439(4)(a), Cr.P.C. Therefore makes it crystal clear that while exercising revisional powers under section 435/439, Cr.P.C. a finding of acquittal cannot be converted into one of conviction. However in appropriate cases on setting aside of the finding of acquittal the case can be remanded to the Special Court for decision on merits.
9. In view of the above, point No (i) is answered in the manner that the instant revision petition against the acquittal order passed by the Special Court (Offences in Banks) Punjab is competent in terms of sections 435/439, Cr.P.C.
10. For appropriate deliberation on point (ii) we would like to, reproduce the provisions of section 510, Cr.P.C. And Articles 59 and 78 of Qanun-e-Shahadat Order, 1984:-- "Sec.
510. Report of Chemical Examiner, Serologist etc. ---Any document purporting to be a report, under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government or of the Chief Chemist of Pakistan Security Printing Corporation Limited or any Serologist, Finger Print Expert or Fire-arm Expert appointed by Government upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceedings under this Code, may without calling him as a witness, be used as evidence in any inquiry, trial or other proceeding under this Code: ' Provided that the Court may if it considers necessary in the interest of justice summon and examine the person by whom such report has been made"
"Article 59. Opinion of experts.---When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impression, the opinions upon that point of persons specially skilled in such foreign law, science or art or in question as to identity of handwriting or finger impression are relevant facts. Such persons are called experts."
"Article 78. Proof signature and handwriting of person alleged to have signed or written document produced. ----If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the documents as is alleged to be in that person's handwriting must be proved to be in his handwriting."
11. Bare reading of the above quoted provision of section 510, Cr.P.C. Makes it crystal clear that report of the Handwriting Expert does not figure in this provision and thus the same is neither per se admissible nor it can be read in evidence until and unless proved in the manner prescribed under Article 78 of the Qanun-e-Shahadat Order, 1984. Point No,(ii) therefore is answered accordingly.
12. Pursuant to the above findings on the questions of law now we take up the above noted arguments of the learned counsel for the petitioner. Admittedly reports of the Handwriting Expert Exh.PE and Exh.PF are pivotal documents relied upon by the prosecution as incriminating material against the accused to connect them with the alleged commission of offences.
13. As prescribed under Articles 59, 78, 81 and 84 of the Qanun-eShahadat Order, 1984, ordinarily following modes are adopted for proving the signatures or handwriting of a person:--
1. by admission or examining the person who signed the document;
2. By examining the person before whom the alleged document is signed;
3. By referring the disputed document and the specimen signatures of the person or admitted signatures to the Handwriting Expert for his opinion;
4. By examining the person who is conversant with the signatures in question;
5. By comparison of the signature on the disputed document and admitted document by the Court itself.
14. It is evident on the record that the prosecution did not bother to summon or to examine the scribe of both the reports Exh.PE and Exh.PF in order to prove the alleged handwriting and signatures of the accused. Needless to mention that it is unalienable right of an accused to have an opportunity to cross-examine the scribe/expert of the handwriting report. In the instant case both the reports of the Handwriting Expert Exh.PE and Exh.PF were neither duly proved by producing the scribe nor the accused have been provided an opportunity to question the credence of both the reports by exercising their right of cross-examination. Therefore such reports are neither admissible in evidence nor can be taken reliance upon against the accused. Above said reports cannot be termed as incriminating material against the accused and thus of no helpthe prosecution.
15. As regards the ocular account produced by the prosecution in the form of testimonies of Qasim Ali Malik complainant/Bank Manager (P .W.1), Maqbool Ahmad P .W.2, Bashir Ahmed P .W.3 and Muhammad Aslam P.W.4, suffice to say that none of the disputed documents was put to complainant P.W.1 to identify the handwriting or signatures of the accused in terms of Article 61 and 78_of the Qanun-e-Shahadat Order, 1984.
16. Besides it is also pertinent to mention that Malik Qasim Khan P .W.1, the complainant has frankly admitted during cross-examination that the accused Muhammad Zaman Khan had not worked with him as a bank employee before February, 2007 and after May, 2007. He also admitted the defence suggestion that as per bank procedure pension vouchers are to be acknowledged every month and that it is the duty of the District Accounts Office to return any fake pension voucher back to the issuing bank branch and that no stance of returning of any fake pension voucher during the two years from 2006 to 2008 from the District Accounts Office to the National Bank of Pakistan Bahawalnagar, issuing Bank Branch, has been placed before the Court.
17. In the above state of affairs even the ocular account produced by the prosecution does not formulate confidence-inspiring or reliable incriminating material against the accused.
18. As regards the alleged recoveries, suffice to say that Muhammad Wakeel SI/Investigating Officer (P.W.10) while facing cross-examination has admitted the defence' suggestion that no recovery was effected from the accused Majid Hussain Zaidi present in the Court.
19. For the foregoing discussion and reasons we are of the considered view that the learned trial Court while appreciating the prosecution evidence in a salutary manner has rightly acquitted both the accused, namely, Majid Hussain Zaidi and Muhammad. Zaman Khan given benefit of doubt. We do not find any illegality or misappraisal of evidence in the impugned order of acquittal. Therefore, point No,(iii) is also answered in the negative.
20. As a sequel to the above, we have no hesitation to reach the conclusion that the prosecution has not been able to bring the guilt home to the accused Majid Hussain Zaidi and Muhammad Zaman Khan beyond any shadow of doubt. Therefore the impugned order does not call for anyinterference by this. Court through exercise of revisional jurisdiction under section 435/439, Cr.P.C. Resultantly, this revision petition is dismissed in limine.