' This appeal under section 410, Cr. P. C. Read with section 10 of Pakistan Criminal Law (Amendment)
Act of 1958, is preferred against the judgment dated 31st October, 1978 of the learned Special Judge (Central), Karachi. Whereby he acquitted the co-accused Yousuf Ali and convicted the appellant for the offences under section 409 read with 109. P. P. C. And sentenced him to suffer R.
1. For one year. He also found him guilty under section 497/468/471, P. P. C. And sentenced him to suffer R. J. For two years and to pay a fine of Rs, 8,000 and in default of payment of fine to suffer further R. I. For one year. The substantive sentences of imprisonment were ordered to run concurrently.
' The facts of the prosecution case are that Syed Mazhar Hussain, resident of Marten Quarters, Karachi sent an application to the Deputy Inspector-General of Police (Special and Crimes Branch), Karachi stating that his son S. M. Kaleem, who was in America, remitted U. S. $ 150 in August, and U. S. $ 150 in September, 1972 to him through the National Bahk of Pakistan. This amount was remitted for his medical treatment and such information regarding the first remittance was sent to the complainant. Since, he did not receive the amount, he informed his son accordingly, arid asked him to remit more money and also at the same time forward the copies of the relevant papers so that the matter could be taken up with the authorities concerned. As soon as he received the photostat copies of the remittances he brought the case to the notice of National Bank of Pakistan (Currency Branch) of Karachi. It was revealed that on receipt of the amount from the U. S. A. The bank forwarded the two pay orders on his address under postal certificate. But both the pay orders were not delivered to him and instead to some other person who received the covers containing pay orders and opined the account in the Sind Co-operative Bank. New Town, Karachi. He deposited those pay orders in his account and the proceeds thereof were collected by Sind Co-operative Bank from the National Bank of Pakistan P. I. B. Colony Branch which were withdrawn from the Sind Co-operative Bank by that person. It was also disclosed by the authorities of Sind Co-operative Bank Karachi, that the person who opened the account, and withdrew the amount was introduced by a shopkeeper who was having his shop adjacent to the bank premises but be had no account in the said bank. Since, introduction by a person who had no account in the bank, was not permissible under the bank Rules it seemed that it was a clear case of fraud committed by the Sind Co-operative Bank in collaboration with National Bank of Pakistan by arranging withdrawal of the amount by a person other than the beneficiary.
' The S. H. O. Sabir Ali Khan of Police Station Jamshed Quarters, Karachi on receipt of such application Exh. 12 from S. P. Central Division, Karachi incorporated the contents of it as F.
1. R. No, 306/1972 Exh.
36. He after recording the F. I. R. Took over investigation of the case and sought permission of the Sessions Judge, Karachi to secure and seize the bank documents which was granted to him, vide Exh.
37. He accordingly seized and secured the pay orders Exhs. 5 and 6 and the cheques Exh. 7 and 8 and prepared such seizure memo. Exh.
38. He also secured and seized bank account opening form Exh. 15, the card of specimen signature Exh. 16, register of issuance of cheque book Exh. 17, the cheques Exh.
18, 19, 21 and 22, a letter, Exh. 20 and prepared such seizure memo. Exh.
39. He arrested the accused Zulfiqar on 31st December, 1972 and co-accused Yousuf on 1st January, 1973. He in the presence of the A. C. M. XIIIth Karachi on 5th January, 1973 obtained the specimen writings of the accused as Exhs. 13 and 33, respectively. The documents in question viz, account opening form Exh. 15, the card Exh. 16, cheques as Exhs. 18, 21 and 22 and the register of issuance of cheque book Exh. 17, application Exh. 20 alongwith admitted documents viz. Handwritings Exhs. 13 and 33 were sent by him to the handwriting expert in the Forensic Science Laboratory, Karachi by addressing a letter Exh. 40 to the Director Forensic Science Laboratory, Karachi, and got the report Exh.
29. He on 5th December, 1972 examined P. Ws. Syed Mazhar Hussain, Hafiz Muhammad Ajmal, lkhlaque Mahmood, Muhammad Abdul Majeed, Abdul Ghani, Muhammad Yousuf, and Shahid Azeem, and P. Ws. Amin Muhammad, Abad Ahmad on 23rd December, 1973 with Malik Gul, Abdul Salam and Fazlur Rehman. It was on his transfer from the P. S. Jamshed Quarters when he handed over the investigation to Mr. Ashiq Hussain.
' Mr. Ashiq Hussain P. W. 8, submitted the challan in the Court of S. D. M., Central Karachi who was subsequently directed by the prosecution agency to withdraw the case from the Court of S. D. M.
And to submit a fresh challan in the Court of Special Judge, Karachi and he accordingly challaned them.
' The prosecution case mainly depends on the evidence of Muhammad Yakoob (P. W. 5), Manager, Sind Co-operative Bank, complainant Mazhar Hussain (P. W. 3), Muhammad Amin (P. W. 7), proprietor of Zohra Stores Mukhtar Ahmed, handwriting expert (P. W. 10) and the Investigating Officers, Sabir Ali Khan (P. W. 11) and Ashique Hussain (P. W. 8).
' The accused has denied all the allegations. He has examined Khurshed Ahmed (D. W. 1) in defence who is also a handwriting expert. There is no doubt that the amount in question has been withdrawn by someone other than the beneficiary, Mazhar Hussain (complainant). The evidence of the complainant and Muhammad Yakoob, Bank Manager is sufficient to bold that the amount remitted to Mazhar Hussain by his son from U. S. A. Has not been received by him.
' The question, therefore, for determination is if it was the appellant/ accused who withdrew the amount by opening a fictitious account in the name of the complainant.
' It will be helpful to discuss the evidence of Muhammad Yaqoob W 5) as he is the person who has allowed the account to be opened in the name of Mazhar Hussain, vide account opening form (Exh.
15). He has stated before the trial Court that a person who was subsequently identified by him in the Court to be appellant/accused, Zulfiqar Hussain, had gone to him_in-the bank on 19th August, 1972 and demanded a form for opening of Savings Account in the bank. He was given the blank form which was completed by him by making entries in the form and after signing it handed over the same to him. He informed him that the Account could not be opened until and unless he was introduced by some one, having account in his bank. He went out and returned after a short time accompanied by one Muhammad Amin (P. W. 7) proprietor of the Zohra Stores. The said Muhammad Amin claimed to have known the appellant/accused very well. Muhammad Amin signed the Account Opening Form as introducer and put his seal below his signature. He has further stated that Muhammad Amin was known to him, therefore. He signed on Account Opening Form in token of having opened the Account in the name of S. Mazhar Hussain. He obtained the specimen signature of the said person on the card of specimen signatures. He has also stated that the said person deposited a Pay Order of the value of Rs, 1,614.40, issued by National Bank of Pakistan, P. I. B. Colony Branch, Karachi (Exh. 7) and after realising the amount of the pay order by his bank it was credited in the account of Syed Mazhar Hussain, opened on 19th August, 1972. The said person who was known to him as Mazhar Hussain, came with another person by name R.
Farooqi and requested for issue of a cheque book to operate the account. It was accordingly given to his companion R. Farooqi who was asked by the appellant/accused to receive it. After receiving it his companion R. Farooqi handed over the same to the accused who signed the Register in token of having received the cheque book. The accused on the same day issued a cheque for withdrawal of Rs, 1,500 from the said account and amount was paid to him on 5th October, 1972. The said accused came all alone to the bank again and issued a cheque for Rs, 130 and the amount was paid to him. He on the same date deposited another Pay Order amounting to Rs, 5,466.80 and again withdrew the amount on 9th October, 1972 by issuing a cheque amounting to Rs, 4,400. He signed the cheque at both sides in his presence. The accused on 10th October, 1972 again presented a cheque for Rs, 1,000 and after having signed it on both the sides, drew the amount and the same was paid to him. He has stated in the cross-examination that Muhammad Amin who signed as introducer was not an account holder with the bank on the day when he introduced him to open the Account. He has also tried to explain that the initial put against the column 'Introducer' was scored off by Muhammad Amin (P. W. 7), was also done in his presence. He has also admitted that the cheque is presented at the counter and the amount of cheque is obtained from the cashier there without meeting the manager.
' Muhammad Amin P. W. 7 has stated that the appellant/accused had gone to him for his signature on the Account Opening Form as an introducer and he had put in such initial on it. It was after about fifteen minutes that Manager of the Bank (P. W. 5) called him in his office. The appellant/accused who was known to him as Mazhar Hussain was also present there. The Manager verified from him if he knew the said person to which he replied in affirmative. He, however, in reply to the questions of the Court, admitted that he had no account in the said Bank. He has said in cross-examination that his shop was known as Ladani Medical Store. He denied having put his initial as `Abid' about accepted to have scored off his initial on account opening form and not the letters 'Abid'. He was called at the Police Station where the accused was shown to him, He has stated that the cash memos. Of his store were printed in name of Ladhani 'Medical Store' which was the name of the Store till 1969. He has also stated that he did not introduce anybody else to the said Bank.
' Mr. Mukhtar Ahmad (P. W. 10), handwriting expert in Forensic Science Laboratory, Karachi stated that he was holding a certificate of competence in Forensic Science Laboratory and he had examined more than three thousand documents and has appeared in hundreds of cases. He received the Account opening form and other questioned documents for examination and he found the questioned documents that the specimen writings on sheet Exh. 33 tallied with the bank account opening form Exh.
15. He after examination of the documents sent such report to the S. H.
0. Jamshed Quarters Police Station, Karachi.
' The complainant Mazhar Hussain (P, W. 3) has stated about the facts which have been disclosed by him in his complaint. His evidence for purposes of proof for opening of account in his name by the accused/ appellant and the withdrawal of the amount by him would not be of any help to the prosecution in this case.
' The evidence of Mr. Ashiq Hussain (P. W. 8) who is an Investigating Officer of some part of the investigation is more or less a formal one and it is not necessary to discuss it.
' Mr. Sabir Ali Khan is also an Investigating Officer who has stated that after recording F. I. R. He seized and secured questioned documents
(i) Account opening form, (ii) Specimen signature cards, (iii) Cheques, (iv) Pay orders etc. He also obtained the specimen writings of the accused in presence of Magistrate and sent the same to the handwriting expert. He also produced his report Exh.
29. Mr. Khurshid Ahmed. The handwriting expert (D. W. 1) has also been examined as defence witness who has stated that he examined the questioned documents Exh. 15, Exh. 19, Exh. 21 and Exh.
22 with specimen writings Exh.
33. According to him the questioned signatures had been constituted with too much attention, hesitation, penlift and decorating to unimportant points specially at the top of the letter 'S'. Both the shoulders of capital letter 'M' start and end of letter `H' and underlying signatures were the basis for suspicion that the disputed signatures were forged and not genuine. Therefore, in his opinion, the questioned signatures on the documents Exhs. 18, 19, 21 and 22 were not written by the same person who wrote the specimen signatures on sheet Exh.
33. He has also stated in reply to the questions in cross-examination of the learned counsel for the prosecution that the opinion of one handwriting expert should not be different from the opinion of the another handwriting expert in respect of the same set of documents if the requirements were fulfilled.
' Mr. Saghir Hussain Jafri, learned counsel for the appellant has contended that the evidence of Muhammad Yaqoob, Bank Manager (P. W. 5) and Muhammad Amin (P. W. 7) could not be treated as independent because'conduct and actions of Muhammad Yaqoob, Bank Manager and Muhammad Amin in respect of opening of account in name of Mr. Mazhar Hussain are not free from doubt that they were party to unholy alliance of committing fraud. Muhammad Amin was not an account holder in the bank, but still his intoduction was considered sufficient. There is no reasonable explanation as to what prompted Muhammad Yaqoob, the Bank Manager to open the account of a person without knowing him particularly when he was being introduced by a person who was not an account holder in the bank. It is, therefore, not safe to accept them as independent witnesses. It was also pointed out by Mr. Jafri that the account opening form Exh. 15 showed that the words 'Abed' were written in front of the words 'introduced by' which are scored off. Muhammad Amin (P. W. 7) was confronted with it, he denied to have written these words 'Abid' or even scored off them. The evidence of Mukhtar Ahmed (P. W. 10) who is a handwriting expert, was accepted without due care and caution particularly when another handwriting expert, Khurshid Ahmed (D. W.
1) gave a different opinion which was contrary to that of Mr. Mukhtar Ahmed. Moreover the prosecution has failed to show as to how the appellant/accused came into the possession of the Pay Order (Exhs. 7 and 8) though the acquitted accused, Yousuf Ali who was a postman at the relevant time was charged to have received them. There is absolutely no evidence for delivery of the pay orders to the appellant/accused. Therefore without proof of delivery of the pay orders to the accused it will be unsafe to accept the evidence of P. Ws. Muhammad Yakoob, and Muhammad Amin on this point also particularly when there is no other direct evidence to connect the appellant/ accused with delivery or possession of the pay orders. Muhammad Yakoob Bank Manager has also stated that after opening the account in the bank the cheque book was to be issued in his presence by the accountant and the amount of each cashier presented to the bank for encashment was to be disbursed by the chasier. The payments in respect of cheques (Exhs. 18, 19, 21 and 22) have been made by the cashier. But the prosecution has not examined either the accountant, Mr. Shahid Azim or the cashier who were connected with the issue of the cheque book and payments of cheques, respectively. It will be pertinent to note that the appellant/accused has not been put to any identification test through Muhammad Yaqoob and Muhammad Amin who were not knowing him previously by the name of Mazhar Hussain. It was the duty of the prosecution, to establish the identity of the accused through these witnesses by way of identification test, particularly when both the witnesses did not know him. It has also been contended that the sheet on which specimen writings of the appellant/accused were obtained, very clearly showed that the seal of the Court as well as signatures and the stamp below were put on it before the writings of the letters S. M. Hussain. Moreover, very foundation of the prosecution case depends on proof of the delivery of the pay orders to the accused either through the acquitted co-accused, Yousuf Ali or some one else and also on genuineness of the writings of the appellant on the sheet Exh. 33 which have not been proved beyond reasonable doubt against the appellant. He has lastly contended that the sanction required for prosecuting the accused also suffered from legal infirmities and the proceedings before the learned Special Judge (Central), Karachi were therefore illegal. Moreover the acquittal of the co-accused, Yousuf Ali destroys the foundation of the prosecution and the appellant was entitled to benefit of doubt under the circumstances of the case. He has placed his reliance on (1) PLD 1963 SC 51, (ii) PLD 1982 SC (A J & K) 89 and (iii) PLD 1982 Kar.
255.
' Mr. G. R. Warsi, the learned counsel for the State does not support the conviction for want of satisfactory evidence against the appellant/ accused. He has further contended that the learned Special Judge (Central), Karachi had no jurisdiction to proceed with the case as there was no legal sanction available in the case, and the proceedings before him were therefore illegal.
' I have heard the learned counsel for the appellant as well as State. I have carefully considered the evidence on the record and have gone through all the documents produced by the prosecution in order to connect appellant/accused with the offence. It is important to discuss the evidence in respect of the two documents i. e. (i) Account opening form Exh. 15, and (ii) the sheet produced as specimen writings of the accused Exh. 33 as both of these documents are connected with the roots of the case. The Exh. 15 has been properly examined by me and column showing the words 'Introduced by' showed that there were word 'Abid' written against it and the same were scored off subsequently. Muhammad Yakoob P. W. 5, who was the Bank Manager has stated before the trial Court that Muhammad Amin P. W. 7 had put his initial in the first instance and it was he who subsequently scored off it. He told him that he was required to put his full signature which he did and scored off his initial. When Muhammad Amin was confronted in cross-examination by the learned counsel for the appellant/accused on this point, he denied to have put his initial as 'Abid'.
He has also stated that the letters 'Abid' written below stamp letters 'Proprietor', were neither written in his hand nor the same were scored off by him. He has also produced his account opening form Exh. 25 and the card having his specimen signatures as Exh.
26. Both these Exhs. Were having signatures of this witness and in a reply to a question of the learned counsel for the appellant he stated that his signatures on form Exh. 25 were almost similar to that of his signatures as 'Introducer' on the form Exh.
15. I have examined both the documents i,e, Exh. 15 and Exh.
25. It is very clear that the signatures of this witness referred to above on both these Exhs. Are really different from each other. Moreover, the signatures on the account opening form Exh. 15, specimen signatures card Exh. 16 and specimen writings on sheet Exh. 33 are also subject to careful examination before accepting them.
' Mr. Mukhtar Ahmed, handwriting expert, examined by the prosecution to prove the handwritings of the appellant on the account opening form, specimen signatures on the card of the bank Exh. 16, cheque book Exh. 20, has stated that they tally with the signatures on Exh. 15 in view of the prominent unconscious characteristics of the disputed English signatures as 'S', 'M', Hussain.
Similarly signatures on Q. 2 to Q. 7, were also in agreement with the signatures on sheet Exh.
33.
' Mr. Khurshid Ahmed, another handwriting expert D. W. 1 examined as a defence witness, on the other hand, has stated that the disputed signatures in question have been constituted with too much attention, hesitation, pen-lift and decorating to unimportant points specially the top of letter 'S'. Both the shoulders of capital letter 'M' start and end of letter 'H' were the basis for suspicion that the disputed signatures were forged and not genuine. He has also stated that the signatures on documents Exhs. 18, 19, 21 and 22 were not written by the same person who wrote the specimen signatures on sheet Exh.
33. The evidence of both these experts is contradictory to each other and therefore it is very difficult to accept the word of one and reject the word of other. Moreover, Mr. Mukhtar Ahmed took photographs of the disputed writings and that of the specimen signatures but he did not bring those photographs in the Court and according to him the file containing the photographs was not traceable. Mr. Mukhtar Ahmed, when confronted by the learned counsel in respect of the last line of specimen writings on sheet Exh. 33 to the effect. If it was written over the signatures and stamp of the Magistrate has replied in negative. Similarly his reply that the seal of the Court had been affixed after the writings on the sheet Exh. 33 does not impress me at all. I have carefully examined the sheet Exh. 33 keeping in view the suggestions of the learned counsel for the defence and I am of the firm view that the last line of specimen writings on sheet Exh. 33 was written over signatures and stamp of the Magistrate and the seal of the Court also affixed before any writing on the sheet because it is very clear to the naked eye. Mr. Mukhtar Ahmed has also failed to advance reasons so as to accept his evidence. Moreover there being obvious difference of opinion between the two experts it will be very risky to base my findings on such evidence. I have therefore come to the conclusion that the evidence of Mr. Mukhtar Ahmed was not cogent and convincing enough so as to accept it. The cursory examination of the sheet Exh. 33 showed that the seal of the Court, signatures and stamp of the Magistrate below it were put on the sheet before the writings on it. But the repliesof this expert in this respect being in negative it appears unsafe to fix the authorship of the signatures on the appellant particularly when the other expert was of different view. The other consideration for not accepting the evidence for authorship of the signatures on the questioned documents is also the contradictory versions of P. Ws. Muhammad Yakoob and Muhammad Amin who are themselves interested witnesses.
' The fact of allowing to open account by Muhammad Yakoob through a person who was not an account holder casts shadow of doubt on his bona fides. The evidence of Muhammad Amin who is introducer is also full of contradictions, in respect of the words `Abid' on the Account Opening Form Exh.
15. The different versions of both these P. Ws. As to who scored off these words leads to suspicion that probably they were party to fraud and it is therefore difficult to accept their version. Since the evidence of prosecution witnesses on the material facts is not only full of suspicion but devoid of truth and conviction on such evidence cannot be sustained under the circumstances of the case.
' I would also discuss as to what evidence has been adduced by the prosecution on the point of delivery of the postal orders Exhs. 7 and 8 to the appellant/accused so as to know as to how they came into possession of them. It is an admitted fact that postal orders were sent by the National Bank of Pakistan P. I. B. Colony Branch, Karachi under a postal certificate and the only source of the delivery was some postman. The co-accused Yousuf Ali who was postman at the relevant time and was acquitted from the charge for delivering the said postal orders to the complainant and misappropriating the amount of the said postal orders in collusion with appellant has been acquitted of all the charges. Therefore no such connection has been believed between the appellant/accused and the co-accused Yousuf Ali by the trial Court. There is absolutely no other evidence left on record to connect the appellant with the delivery of the postal orders to him.
' When the evidence against the acquitted co-accused has not been believed and he has been acquitted there is hardly a case against the appellant. I am fortified in my views by the observations in all, the above-cited cases.
' Since the prosecution case fails for want of satisfactory evidence against the appellant, any finding on legality or otherwise of the sanction to prosecute the accused would not be of any help in this case. I therefore do not find it necessary to enter into his exercise.
' For the foregoing reasons I feel that the prosecution failed to prove guilt of the accused and he is entitled to benefit of doubt under the circumstances of the case. I, therefore, accept this appeal, acquit the appellant, and set aside the sentences awarded to him. Fine if paid shall be remitted to him.
' The appeal is allowed accordingly.