Appellant Ahmed Bux and Abdul Ghani were tried by the Special Judge. Anti-Corruption, Sukkur for offences under section 409/469/477-A/109, P. P. C. Read with section 5 (2) of the Act 11 of 1947. Co- accused Abdul Ghani was acquitted by the learned Judge for want of evidence while the appellant was convicted and sentenced as under :--
(i) Under section 409, P. P. C. Read with section 5 (2) of the Act of 1947 till rising of the Court and a fine of Rs. 6,000 or in default R. I. For 3 months:
(ii) under section 468; P. P: C. Read with section 5 (2) of the Act of 1947 till rising of the Court and a fine of Rs. 1,000 or in default R. I. For 2 weeks ; and
(iii) under section 477-A, P. P. C. Read with section 5 (2) of the Act of 1947 : till rising of the Court and a fine of Its. 1,000 or in default to suffer R. I. For 2 weeks.
The third co-accused Habibullah was also challaned alongwith the appellant and the acquitted accused Abdul Ghani, but he was let off for want of the statutory sanction under the Pakistan Criminal Law (Amendment) Act: 1958.
2. The appellant has challenged his conviction and sentences by this appeal under section 10 of Criminal Law (Amendment) Act, 1958.
3. The appellant was serving as Accounts & Store Clerk in the Comprehensive High School, Khairpur in the year 1974. Mr. Allah Dad Bhaio was Principal of the School at that time. On 25th July, 1974 Mr. Allah Dad charge-sheeted the appellant for misconduct, because he had made some false application against him (Principal). The charge-sheet is Exh. 6-K/7 in the lower Court's record. On the same date Mr. Allah Dad, Principal/complainant passed another order placing the appellant under suspension from 25th July, 1974 until further orders and he was directed to hand over charge to Mr. Nizamuddin, Junior Clerk of the same School. In pursuance of this order, appellant Ahmed Bux handed over charge to Nizamuddin. Prior to this date, the appellant was also entrusted with the work of preparing bills, presenting the same to the District Accounts Officer, Khairpur after obtaining the signature of the Principal and then getting the bills encashed from the National Bank of Pakistan, Khairpur. For the purpose of encashing the bills from the Bank, a written authority used to be issued alongwith an identity card in the name of the person, who was to receive payment from the Bank. It is presumed that the Bank would not make payment to any person other than the one who held such authority and the identity card on behalf of the Princi--p.1 of the Comprehensive High School. On 17th July, 1974 authority for receiving payment from the Bank in favour of Ahmed Bux was cancelled and such intimation was sent to the National Bank of Pakistan by a letter of the complainant- which is Exh. 6-G on the record. A fresh autho--rity, however, was issued in favour of Nizamuddin by the complainant to receive payment from the Bank on behalf of the School.
4. On 14th December, 1974 Mr. Nizamuddin, Clerk informed the Principal that he had seen one bill in the Treasury Office which was not issued by the Office of the School, but purported to be a bill in respect of leave salary of two teachers, namely, Karim Bux and Abdul Aziz. These teachers had never proceeded on leave nor any leave Salary was due to these persons. Mr. Allah Dad, Principal went to his Office and saw the bill which in fact was not claimed by his Office, According to the Princi--p.1/complainant, who had recorded statements of Mr. Nizamuddin and appellant Ahmed Bux, it transpired that at the time of handing over charge Mr. Ahmad Bux had not given over one seal, and original keys of the cupboard to Mr. Nizamuddin. It was, therefore, presumed that perhaps this disputed bill which was for an amount of Rs. 5,835 purported to have been signed by the Principal was forged by the appellant and money was drawn from the Bank in collusion with a Clerk Abdul Ghani of the District Account Office and the Token Clerk Habibullah of National Bank of Pakistan. Mr. Allah Dad, the Principal/complainant saw the signature on the bill purporting to be his and found that it was forged one. He, therefore, made a report in writing on 1 January, 1975 to Inspector, Anti-Corruption, Khairpur which is Exh. 6-A. In this report, the role which has been attributed to appellant Ahmed Bux is described in the following manner : - "Mr. Ahmed Bux, Junior Clerk and sometimes Clerk dealing with the cash did not band over the stamp in his charge to Office. Mr. Ahmed Bux also did not return the original keys in duplicate in his charge to the new Clerk Mr. Nizamuddin. This explains the use of the office stamp by Mr. Ahmed Bux. On these grounds I am of the opinion that the fake bill has been prepared by Mr. Ahmed Bux and the cash also been received by him."
5. The cash was investigated by the Inspector during which several witnesses were examined. The handwriting of appellant Ahmed Bux was also obtained and was sent alongwith the forged bill to the handwriting expert for comparison of the disputed signature of the Principal with the handwriting of the appellant. The handwriting expert Mr. Mukhtar Ahmed had examined the two handwritings and gave the opinion that the forged signature appeared to be of Ahmed Bux. During the trial, besides complain--ant Allah Dad, the other witnesses examined were Abdul Aziz (Exh. 4), Karim Bux (Exh. 5), Nizamuddin (Exh. 7), Raza Panjtan (Exh. 8), K. G. Rabbani (Exh. 9), Izzat Ali (Exh. 11), Qamar Abbas (Exh. 12) and Ghulam Abbas (Exh. 13).
6. The appellant did not examine any witness in defence. He has alleged that Principal Allah Dad has implicated him on account of enmity which stands proved on record on the basis of the' charge-sheet as Exh. 6-K/7.
7. The main question in this case is whether the accused/appellant was in a position to prepare the bill in the name of the Principal, forge the signature of Principal Allah Dad, put the stamp of the School on the bill and to present it in the Bank for encashment on the relevant date, i. e. 25th November, 1974. It is already on record that on this date appellant Ahmed Bux was underst suspension vide order dated 25th July, 1974 which is Exh. 6-K/8. It is also proved that he was asked to hand over charge to Nizamuddin on the same date and this was done and the charge report was also prepared which is duly signed by Nizamuddin, Ahmed Bux and verifed by the Principal, i. e.
Complainant Allah Dad. This charge list is on the record as Exh. 6-K/6 This list would show that all the stamps and keys of the almirahs which were with Ahmed Bux had been handed over to Nizamuddin intact. There is nothing is this report to show that any article was short which was not handed over by Ahmed Bux to Nizamuddin. In his deposition (Exh. 7) Nizamuddin clearly states that he did not complain to the Principal that any stamp or key of any almirah had not been banded over by the appellant to him. The story of complainant Allah Dad as stated by him in the F. I. R. That the bill might have been forged by Ahmed Bux by taking advantage of the key and stamp which were with him is, therefore, false and must be rejec--ted as unbelievable.
8 The next question is whether Ahmed Bux was in a position to draw amount of the fake bill from the National Bank of Pakistan on 25th November, 1974. It is proved that his authority as well as the identity card which were issued to him for the purpose of receiving payment from the Bank were cancelled, hence he could not have received payment from the Bank on the date when the fake bill was produced for payment on 25th November, 1974, In this connection the statement of Raza Panjtan, who was Cashier of the National Bank of Pakistan and had made the payment against this bill, is very important. It is Exh. 8 on the record. He states in his examination-in-chief as under ; "Present accused Ahmed Bux had brought the token of this bill to me. 1 made payment of Rs. 5,835 to Ahmed Bux."
But in his cross-examination, lie completely retracts from his earlier statement and states as under :- "I was not sure of the identity of the recipient of the cash on 25th 'November, 1974 as to whether he was Ahmed Bux, Nizamuddin or anyone else.
This witness has thus contradicted his own statement which he gave in his examination-in-chief and as such must be disbelieved so far as it relates to payment of the money to Ahmed Bux.
9. Reference may be made to other witnesses also as to what they have said about the role of appellant Ahmed Bux in this crime.
10. Complainant Allah Dad does not say that Ahmed Bux had com--mitted forgery or had received the amount. In his statement (Exh. 20) he simply says that he presumed that since the original keys were not given to Nizamuddin hence Ahmed Bux have tampered with the bill, but he also admits that Nizamuddin never complained to him that the keys and the stamps were not handed over to him by Ahmed Bu: at the time of taking over the charge.
11. The next witness is Nizamuddin (Exh. 7). He admits that after 17th July, 1974 he received identity card from the National Bank of Pakistan and on the basis of this he used to receive payments for the bills of his School and that all the bills from 1st August, 1974 to 26th November, 1974 were encashed through him, Then about Ahmed Bux, the witness says "We suspect that accused Ahmed Bux has forged the said bill."
No other witness has said against him except the expert Ghulam Abbas (Exh. 13) whose evidence needs to be discussed in detail.
12. The handwriting expert, who had, compared the signature on the forged bill with the handwriting of appellant Ahmed Bux was in fact Mukhtar Ahmed, Sub-Inspector of the Police at Karachi, but he was not examined and instead Ghulam Abbas, who was D: S. P.' was put in the Witness Box to prove the report which was prepared by Mukhtar Ahmed. Ghulam Abbas Exh. 131 states that as the whereabouts of Mukhtar Ahmed were not known, therefore, he had been required by his office to prove the report of the expert. He has produced the report as Exh. 13-t3 prepared by Mukhtar Ahmed. The witness identifies the signature of Mukhtar Ahmed on this report, according to which the forged signature is in the hand of appellant Ahmed Bux.
13. There is nothing on record to suggest that any attempt was mad to procure the attendance of Mukhtar Ahmed. No process server was examined to prove that any effort was made to serve summons of the Court upon him and that it was not possible to do so for the reason of his being untraceable. Under these circumstances, the secondary evidence of Ghulam Abbas is of no avail at all. In this connection, learned counsel for the appellant has referred to case of Allah Ditta v.
State (PLD 1958 SC (Pak.) 290) in which it has been held that if a witness is untraceable then this fact should be proved by direct evidence of the person, who went to execute summons and that without such evidence, secondary evidence should not have been admitted. Another case referred to in this connection is Mohammad Siddik v. State (1974 P Cr. L J 180). In this case the Medical Officer, who was required as a witness had gone abroad. No attempt was made by the prosecution to examine the Police Official entrusted with the service of summons issued in the name of the doctor to prove his absence. It was held in the case that secondary evidence should be excluded from consideration in the circumstances. In the present case also there is not an iota of evidence to suggest that Mr. Mukhtar Ahmed was beyond the control of the process serving agencies. Mr. Ghulam Abbas has admitted that Mukhtar Ahmed is alive; but his whereabouts are not known. In such circumstances, the Court should have issued summons to Mukhtar Ahmed and examined the process server about his efforts to procure Mukhtar Ahmed and about his untraceability. As this was not done, the secondary evidence of Ghulam Abbas must be kept out of the considera--tion.
14. Even otherwise the expert's evidence as to handwriting, in the absence of any other corroborative evidence, shall not be sufficient to find the appellant guilty of the crime of forgery.
Reference in this connection may be made to the case of Jaffer Alam Choudhery v. State (1969 P Cr. L J 260), In this case it has been held that evidence of handwriting expert is liable to error and is very weak type of evidence. In the case of Tobarak Ali Majhi v. State (1969, P Cr. L J 596) it has been held that the opinion of the handwriting expert with--out corroboration, shall not be suffcient to sustain conviction for the charge of forgery.
15. If the evidence of Ghulam Abbas is also excluded, then there remains no evidence whatsoever against the appellant on the record. This is thus a case of no evidence against the appellant.
16. Learned counsel for the State Mr. Amanullah Qureshi frankly stated that conviction of the appellant was wrongly funded on the evi--dence of the witnesses, who had not said anything against the appellant He has thus not supported the conviction.
17. For the reasons stated above, the appeal is allowed. The appel--lant is acquitted from the offences with which he has been charged He is already on bail. His bail bond stands discharged.