1. CORNELIUS, J.-This is an appeal brought before this Court by special leave granted to Zahidali whose conviction under sections 120-B and 420, Pakistan Penal Code by a Sessions Judge was confirmed on appeal by the Chief Court of Sind. Leave to appeal was granted on the question whether the evidence in the case, which was entirely circumstantial, was sufficient to justify the conviction.
2. Zahidali was prosecuted along with another person Mahrat Khan Bhatti. Zahidali on the material date viz. The 1st February 1949, was working as a clerk at the Government Desk in the Imperial Bank of India, Mirpurkhas Branch. Mehrab Khan Bhatti was Assistant Cashier at the bank. There is clear evidence to the effect that the desk clerk or clerks worked entirely independently of the Cashier's Branch. The cheating of the Bank, which is the basis of the charge, was in respect of two bills, which are Exhs. Nos. 5.And 6 on the record. The first bill was drawn on behalf of the Provincial Government of Sind, by the Treasury Officer, for Rs. 5,200. The second bill was for Rs. 5,150, and was drawn by the same Treasury Officer, against the account of the Central Government under the major head "Loans and Advances" and the minor head "Refugees". It is important to note the precise procedure adopted at the Imperial Bank for dealing with Government bills. The following account is taken from the evidence of Daud Babulali, Agent of the Bank at Mirpurkhas from July 1949, onwards. (The Agent at the material time was one Mr. Sipahamalani, who continued in that capacity until July 1949, when Mr. Daud Babulali took over charge from him).
3. The modus operandi is as follows :-- Government bills are dealt with by a clerk sitting at the Government Desk, and designated "Government Desk Clerk". Four books are maintained for treasury business on behalf of the State Bank of Pakistan, namely a debit book and a credit book for the Central Government, and a debit took and a credit book for the Provincial Government of Sind. These books remain in the hands of the "clerks concerned" during business hours but are otherwise kept in a safe. When a Government bill is received at the Bank for payment, it is first presented to the clerk in charge of the Government table. He has the following duties to perform in respect of the bill viz. Firstly, to verify that it has been correctly drawn on the Bank, for which it is necessary that he should compare the signature with the specimen signature of the drawing officer kept in the office of the Agent of the Bank, who is present at the verification ; secondly, the amount as stated in words and figures has to be verified as well as the correctness of the date ; finally, the identity of the payee, or the person seeking payment, is checked by the clerk, either from personal knowledge or with the aid of some other known person. Having satisfied himself concerning these matters, the clerk enters the bill in the debit scroll of the appropriate Government. The bill is then forwarded to the Agent for his orders viz. Of payment or otherwise. Bills exceeding Rs. 5,000 have to be sent through the sub-accountant. It does not appear to be necessary for the clerk to write anything on the bill to indicate that he has performed the functions noted above, or even to note in what manner the payee has been identified. The fact of the bill being entered in the appropriate scroll register which is sent along with the bill to the Agent, is treated as a sufficient indication that the clerk has duly performed all his functions. When the bills are signed, they are sent down to the Cashier for payment. The Cashier acts upon the signature of the Agent, after satisfying himself concerning the identity of the payee.
4. It is of advantage to the argument to reproduce the following short passages from the statement of Muhammad Shafi, Head Cashier of the Bank, P. W. 8 :- "As Head Cashier I have nothing to do with the clerk doing his work on scroll table, and so also the Cashier. Both do their work independently and on their own responsibility.
5. After the bills and cheques are passed by the Agent they come to me. I only see the Agent's signature and the endorse--ment of Pay Cash made by Bank on it, and if I am satisfied I make payments myself and send them to the Cashier."
6. The position with respect to the bills Exhs. P. 5 and P. 6 is as follows. Exh. P. 5 bears the signature of Shewaram Treasury Officer Mirpurkhas in four places. All these signatures have been held to be forgeries. The endorsement by the Bank is "Pay Cash" and is signed by the then Agent Mr. Sipahamalani. Three separate signatures of Abdul Hamid appear on the face of the bill. It is suggested that the last of these signatures was obtained in his own presence by the Agent himself, though there is no proof to this effect. The bill is clearly marked as "Provincial". Since it was duly passed for payment, a corresponding entry in the provincial debit scroll made on the 1st February 1949, appear in the handwriting of Zahidali. There is no entry relating to the bill Exh. No. 5 to be found among these entries.
7. Exhibit 6 is clearly marked as being debitable to the Central Government. It also bears the signature of Mr. Sipahamalani. This bill should have been entered in the Central debit scroll. On the 3rd February 1949, it was found by Shewaram Treasury Officer, who had by this time discovered the fraud and was making investigations that a number of pages were missing from the Central debit scroll, containing entries from the 4th January 1949, to the 1st February 1949. The last two entries for the 1st February 1949, were however found on the page succeeding that which had been removed, and these are admittedly in the hand--writing of a clerk, Muqaddas Ali by name, P. W. 7, who was working as ledger keeper. All the remaining entries for the 1st February 1949 were missing and it is reasonable to infer that the removal of these pages was necessarily a criminal act, which in view of its direct connection with the embezzlement discovered on the 3rd February 1949, which had been effected on the 1st February 1949, constitutes a circumstance of the highest importance.
8. Consequently, the following facts assume great significance. Firstly, there is the fact that the grand total for the 3rd February 1949, appears in the Central debit scroll in the handwriting of Mr. Panthekey, the then sub-accountant, a person who had left the service of the Bank and whose whereabouts were unknown so that he could not be examined at the trial. It is difficult to suppose that his subordinate, the Government Desk clerk presented his scroll to him after removing the pages which are found missing. The second important fact is that although the Police commenced investigation on the 4th February 1949, and Zahidali was examined two days after, it was not until March 1950, that a charge was preferred against him, and this too was not in respect of the disappearance of important accounts from the Central debit scroll, but on the allegation that the signatures of the payee Abdul Hamid appearing on Exhs. P. 5 and P. 6, had been fabricated by him.
9. A private examiner of questioned documents, Mr. Cyril Bhan, expressed the opinion in December 1949, that these signatures were in the handwriting of the accused Zahidali, but when deposing as a witness on the 23rd September 1952, he clearly admitted that there were "persistent differences" between the disputed signatures and those which had been written by Zahidali. Consequently, the basis for Zahidali's implication in the case, fourteen months after it was reported to the Police, is found to disappear, but the fact remains that he was not prosecuted in respect of a circumstance which is now thought to be of great significance, as proving his guilt, namely the dis--appearance of significant pages from a register allegedly in his possession.
10. Several reasons can be imagined for the immunity thus allowed to him. One is that the register itself shows, by the entries appearing in it, that a number of persons other than the desk clerk made entries in it from time to time, indicating that the desk clerk was not exclusively in possession of this register, and therefore could not be held exclusively responsible for everything appearing in it, or disappearing from it. Another reason might be that, as has already been seen, the register had frequently to be sent to the sub-accountant and the Agent, along with bills to be passed, and during these intervals at any rate, it would be out of the possession of the desk clerk. A third reason might be that if Zahidali was responsible for the disappearance of the missing pages, it could hardly be that the final total for the 3rd February 1949, would appear in the handwriting of Mr. Penthekey, indicating that Zahidali had finished with the register for the day, and had passed it on to Mr. Panthekay, his immediate superior, presumably in complete condition.
11. The circumstance of the missing pages does not therefore, in my opinion, serve at all appreciably to connect Zahidali with the embezzlement. The case for the prosecution appears to be that upon the missing pages there appeared not only the entry relating to the Central bill Exh. P. 6, but also an entry relating to the Provincial bill Exh. P.
5. The matter is one of mere assumption, but is nevertheless of considerable importance for the resolution of the principal question arising in the case, as will presently be seen.
12. After having been passed by the Agent the two bills on the same day reached the Cashier's Branch and payment was made by the Cashier Mehrab Khan Bhatti to a person calling himself Abdul Hamid. As against Mehrab Khan Bhatti, the evidence was that certain writings appearing on the bills Exhs. P. 5 and P. 6 including the fabricated signatures of Mr. Shewaram, were in his handwriting, that he had been seen talking to the person Abdul Hamid who came to receive payment, and that the entries in the books kept by the Cashier relating to the payment were in his handwriting. These facts were thought to be in themselves sufficient to sustain his conviction, and as he has not appealed, they need not be considered any further. But it should be made clear that there is nothing on the record to show that any of the clerks at the government desk, and in particular that Zahidali, in any way acted in concert with Mehrab Khan Bhatti in respect of any of the actions found against him. The Cashier's Branch acts independently of the Government desk clerk or clerks, and there--fore such association was not to be expected. As a necessary consequence it is not to be assumed that Zahidali had any knowledge that the bills in question had been paid. The question would only arise indeed, if he could be shown to have had knowledge that the bills had been presented at the Bank. It is upon this point that, in my opinion, the evidence for the pro--secution, being wholly circumstantial in nature, proves to be totally inadequate.
13. Zahidali's case has been treated by the learned Judges of the Sind Chief Court in the following manner. Declaring that it was admitted that the two bills were forged and had been present--ed at the Bank by a person calling himself Abdul Hamid, they added that it was also admitted "that the present two appellants passed these bills and made payment to that AbJul Hamid". On this basis, they thought the only question which required decision was whether Zahidali and Mehrab Khan Bhatti were themselves duped, or, on the contrary, were themselves party to the cheating and embezzlement.
14. Now, it seems clear that this representation of the case, as against Zahidali, is not entirely fair in so far as it relates to the supposed admission that he passed the bills in question. Undoubtedly Mehrab Khan Bhatti did pass the bills in his capacity as Cashier and then made payment thereon, and therefore as to him, the statement that there was an admission of passing the bill and making payment to Abdul Hamid, is generally correct. The error seems to have crept in because of the two appel--lants, whose interests were by no means parallel, being represented by the same counsel.
15. For the case put up by Zahidali was one of denial, that he in the capacity of desk clerk, had dealt with either of the bills in question. He denied that he had conspired to cheat the Bank and had carried out the fraud. He admitted that he had worked at the Government table on the 1st February 1949, but not for the whole day, adding that other clerks viz. Muqaddas Ali and Mr. Panthekey also had worked there for that day, and as for himself, it was his first day at that table. When asked pointedly whether he received Exhs. P. 5 and P. 6 for passing he replied --- I cannot say as there were other clerks also working. --- When asked whether he had made the entries relating to these bills in the two debit scrolls of the Provincial and Central Govern--ments, he replied in the negative.
16. Asked about the missing pages in the Central debit scroll, he stated that he had handed the book in tact to Mr. Pantheky who had totalled up the grand total up to the 3rd February 1949. These statements were made at the trial. In the commitment proceedings he had pleaded his innocence and with reference to the scroll said that he was not solely in charge of the book.
17. Reference to the grounds of appeal taken on his behalf in the Chief Court shows that there was no admission made on his behalf of having dealt with the bills in question, but again while it was admitted that he was in charge of the table as the desk clerk, it was contended that this was of no evidentiary value because at least one other clerk, namely, Maqaddis Ali had also worked on that table on the material date It seems to me to be clear that the statement in the judgment of the Chief Court regarding an admission by Zahidali on this extremely important point is due to his case having, in the material respect, been confused with that of the co-accused Mehrab Khan Bhatti.
18. The argument of the learned Judges of the Chief Court in relation to the question whether the appellants were themselves duped proceeds largely upon the basis that the "natural course of proceedings", according to the practice of the Bank, was followed to respect of the bills in question.
19. Now, one of the charges against the accused persons was of conspiracy. The trial Court found this charge to have been established, giving the following reasons, namely :-
(1) that the two bills were not drawn on the prescribed forms ;
(2) that they did not bear the initials of any treasury clerk ;
(3) that they did not bear the number of the treasury office ;
(4) that they are not entered in the paper scroll books ;
(5) that the identity of the payee was not properly ascertained ; and
(6) certain pages were found to be missing from the Central debit scroll when the fraud came to light on the 3rd February 1949.
20. The learned Judges thought that "the above defects and irregularities in the bills must have weighed very heavily upon the mind of Abdul Hamid before he must have presented the bills Exhs.
21. P. 5 and P. 6 to the scroll clerk for payment". Therefore, he concluded that Abdul Hamid must have worked in colla--boration with some Bank employees in order to succeed in his design.
22. The assumption that the bills "must have been presented" to the Government desk clerk seems to me to beg the whole question. For, in the state of the evidence it is a clear possibility that they never passed through the Government desk. There is no mark of any kind upon the face of these bills to indicate that they were dealt with at the desk at all. The argument of the ---natural course of proceedings" is, in my opinion, excluded with complete thoroughness by one proved circumstance, as well as by the c prosecution contention concerning the contents of the pages missing from the Central debit scroll. If the bills had passed through the Government desk, the duty of the clerk dealing with them would have been to enter, the Provincial bill in the Provincial debit scroll and the Central Bill in the Central debit scroll. Unless he was in league with the sub- accountant and the Agent, the clerk would necessarily be careful to perform his simple duty in the correct manner, that is to say, to enter the respective bills in their proper books and then send up each bill with its proper book to the sub-accountant Mr. Panthekey, and through the latter to the Agent Mr. Sipahamalani. These are senior officers. It must be presumed that they would have discovered an error in this important respect, had it come to their notice.
23. What is actually found is that the Provincial bill is passed for payment by the Agent (Presumably after it had been seen and passed by the sub-accountant) without its being entered at all in the Provincial debit scroll. No page or entry is missing from the Provincial debit scroll. That clearly shows a departure from the "natural course of proceedings''. The prosecution suggestion or contention is that both bills were entered in the Central debit scroll, and that the superior officers, incautiously accepted these entries as proof that the clerks below had performed their duties in a proper manner, in passing them for payment. The matter is one of assumption, since the pages upon which these entries might have appeared are missing. But assuming that the con--tention is correct, it is based upon another very clear departure from the "natural course of proceedings".
24. Moreover, in the natural course, the function of the superior officers was to detect the obvious error, presumably made by their subordinates, and send the books back so that correct entries could be made.
25. If it is sought to fasten responsibility upon Zahidali on the basis of "natural course of proceedings", in the absence of even the slightest evidence to show that he at all handled these papers, surely it is necessary to establish that at least after the point at which the papers passed out of his hand, his superior officers' followed the "natural course of proceedings". The irregularity which stands proved on the record affects the officers much more closely and directly than it does the subordinate clerk Zahidali. Mr. Sipahamalani passed a Provincial bill without satisfying himself that it had been entered in the appropriate register, and upon the contention of the prosecution, he did so because the bill was entered in another register which was undeniably the wrong register for the purposes of this bill. It does not appear that even Mr. Panthekey's initials were endorsed on either of these bills, so that if one were to make inferences exclusively on the basis of what is proved in evidence, one would be inclined to say that Mr. Sipahamalani was himself the most likely person to have made the erroneous or fraudulent entries, as the case may be, and on the basis of those entries, to have passed the forged to time. After the bills had been passed by him they would not be returned to the Government desk clerk, but would be passed on to the Cashier. It is not suggested that it was any part of the duty of the Government desk clerk to keep track of payments made by the Cashier against bills of Government account.
26. As regards the defects appearing on the face of the bills which have been relied upon by the trial judge as furnishing evidence of conspiracy between Zahidali and Mehrab Khan Bhatti, they should have struck the eye of the superior officers much more readily than that of a junior and inexperienced clerk. But there is evidence to the effect that, in those days, such irregularities were apt to be overlooked. Shewaram admitted clearly that at that time bills were sometimes passed without the proper certificates and even without the initials of the Head Accountant. It was also customary if no printed forms were available to prepare bills on blank sheets. It is important to notice that this witnesses' standard signature was very well known in the Bank, and that the signatures appearing upon the bills (Exhs. 5 and 6) bore a, very close resemblance to his specimen signature. In this con--nection, it may be mentioned that Mr. Daud Babulah Agent of the Bank stated that "there had been instances that while Mr. Shewaram was Treasury Officer Mirpurkhas the Bank felt the necessity to remind him that his signatures were not steady". This should be taken into consideration along with Mr. Shewaram's own statement that the only reason why he declared that his signatures on Exhs. 5 and 6 were forged was that the bills in question had not been dealt with by any clerk in the treasury. The point is of importance as sustaining in the alternative, the possibility that, even if the difficult assumption be made that Zahidali dealt with the bills in transit, he did so in the honest belief that the signatures of Mr. Shewaram appearing on the bills were genuine. In that case, there would be no ground for inferring that he was party in a conspiracy to defraud the Bank. The other defects appearing on the face of the bills were of a familiar nature, and it was the practice in those days to overlook them.
27. In these circumstances, it seems to me that the finding of the learned Judges in the Sind Chief Court that Zahidali was not himself duped, is not one which can be sustained on the record. If it be assumed that he handled the bills, the possibility of his having been deceived by the resemblance of one Mr. Shewaram's standard signatures, and those appearing on the bills, is a very likely one.
28. Several of his superior officers were undoubtedly so deceived. Indeed, it seems to me that it is necessary in this case to fix the responsibility for the loss some--what higher than the desk clerk.
29. Finding nothing to indicate that Zahidali handled these bills, but on the other hand, it being clearly established that the bills were handled and passed by the then Agent, who could not fail to see that essential support of the entry in the Provincial debit scroll was missing, I cannot avoid the inference that the passing of the bills by the Agent was irregular. It is entirely unnecessary, in my opinion, to suppose that Zahidali was involved in this irregularity.
30. In this view of the matter, it seems plain that no case of conspiracy to cheat or of cheating was made out against Zahidali from the evidence on the record. The view of the facts upon which the Sind Chief Court came to the contrary conclusion appears to be clearly erroneous, and to have resulted in grave and substantial injustice. I would, therefore, allow this appeal and acquit Zahid Ali.
31. MUHAMMAD SHARIF, J.-I agree.
32. MUHAMMAD MUNIR, C. J.-Since there is no evidence that the missing leaves of the Scroll Book (Central) were removed by the appellant or that the Book came into the appellant's custody on the 2nd or 3rd February or at any time after the removal of the leaves, I think the remaining circumstantial evidence cannot safely support the conviction. The position would have been otherwise if evidence had shown that it was the appellant who tampered with the Scroll Book or that the two bills together with the Scroll Book were taken to the Agent by the appellant himself. I, therefore, agree that this appeal should be allowed.
33. AKRAM, J.-I agree.