1. HAIDER ALI PIRZADA, J.----By a short order, dated 10-4-1985 we had allowed the appeal. The reasons are as follows:-- This appeal is directed against the judgment, dated 31-12-1984 passed by the learned Presiding Officer, Special Court of Sind (Banks) Karachi (hereinafter referred to as the trial Court), in Case No. 239 of 1984, whereby the appellant has been convicted under section 471, P.P.C. And has been sentenced to two years' R.I. And also to pay a fine of Rs.3,00,000 and in default of payment to suffer further R.I. For five years. The appellant who is authenticated representative of Messrs M.A. Footwear Industries, being aggrieved by the above judgment has filed the present appeal.
2. The brief facts leading to the filing of the above appeal are that Messrs M.A. Footwear Industries, Karachi against loan facility granted to it, had pledged its goods consisting of leather jackets with the National Bank of Pakistan, Hasrat Mohani Road Branch, Karachi. The pledged goods including leather jackets were kept in the custody of National Bank of Pakistan's approved clearing agents Messrs International Forwarding Agency Ltd., under Bank's lien. The said firm namely Messrs M.A.
3. Footwear Industries by their letter, dated 22-1-1972 appointed the appellant as accredited agent.
4. On 21-4-1979, the appellant deposited Rs.16,000 in the National Bank of Pakistan, Hasrat Mohani Road Branch, Karachi in cash in order to take delivery of four cartons of said pledged goods and received a delivery order No. 333/79, dated 21-4-1979 for lifting of said four cartons from the godown of International Forwarding Agency where the goods pledged in question were stored, against his signature. It is the case of the prosecution that on 21-4-1979 he presented the said delivery order after altering the same to forty cartons to Messrs International Forwarding Agency and lifted 40 cartons of the pledged goods instead of 4 cartons. In the context only payment was made for 4 cartons and this caused wrongful loss of Rs.1,44,000 to the said Bank. The National Bank of Pakistan lodged a complaint, dated 23-4-1981 with the Deputy Director F.I.R. On the basis of which he lodged F.I.R. Exh. 10/A.
5. After the investigation, the present appellant was charged and tried under sections 468 and 471, P.P.C. The learned trial Court convicted and awarded the above-mentioned sentences to the present appellant.
6. On the other hand Mr. Murtaza Hussain, the learned counsel for the State, submitted that the prosecution has been able to prove the case against the appellant under section 471, P.P.C. The conviction is legal and proper in the circumstances of this case.
7. The prosecution in support of the case has examined three categories of witnesses namely Bank Officers, employees of International Forwarding Agency Ltd., and Inspector of F.I.A.
8. P.W. No. 1 Mirza Muhammad Tariq Exh. 2 was the manager of the Bank in the month of April, 1981. He lodged the complaint which he produced as Exh. 2/A.
9. P.W. 6 Khalid Masood is Exh.
7. He was working as a godown --keeper at Hasrat Mohani Road Branch of National Bank of Pakistan in the month of April, 1981. He has deposed that on 21-4-1979 the appellant came to the Bank and went to the office of the then manager and after sometime he was called by the Manager, who gave him Rs.16,000 for depositing in account of Messrs M.A.
10. Footwear Industries. Thereafter manager gave him delivery order No. 333/79 (Exh. 3/A-1) alongwith the counterfoil (Exh. 2/C-2) for making entry in the delivery register. The Manager delivered (Exh.
11. 3/A-1) to the appellant.
12. P.W. 10 Hakeemuddin is Exh.
11. He was Manager of the Bank from 11-5-1978 to 15-5-1979. He has deposed that appellant was authorised to operate loan account of Messrs M.A. Footwear. On 21-4- 1979 the appellant came and deposited Rs.16,000 in the loan account. He issued delivery order. He has further deposed that number of packages were altered in delivery order from 4 to 40. On the basis of manipulated delivery order Exh. 3/A-1 appellant took delivery of 40 cartons instead of 4 cartons. In his cross-examination he has stated that he cannot say manipulation from 4 to 40 is in whose handwriting.
13. P.W. 11 Kamal Ahmed Siddiqui is Exh.
12. He is brother of the appellant. He is sole proprietor of Messrs M.A. Footwear. He had authorised the appellant to operate his loan account.
14. P.W. 2 Ahmed Saeed is Exh.
3. He was Manager of International Forwarding Agency. He has deposed that on 21-4-1979 the appellant brought delivery order to him. Their supervisor Ghulam Nabi on receipt of delivery order rang up the Bank in order to find out identification of the cartons which were to be delivered on the basis of the delivery order and he was told to deliver any forty cartons.
15. P.W. 3 is Bhagwan Jee Potacha Exh.
4. He is the Managing Director International Forwarding Agency.
16. He has deposed that delivery order was brought to him by supervisor. He found certain manipulation or correction in Exh. 3/A-1, in respect of number of cartons to be delivered to the appellant. He asked his supervisor to confirm on phone from Bank. Mr. Khalid was not available in the Bank. After confirming from Bank he delivered 40 cartons to the appellant.
17. P.W. 4 Ghulam Nabi Exh. 5 was supervisor of International Forwarding Agency. He has deposed that appellant brought delivery order to him. He noticed certain overwriting. He took the delivery order to the Managing Director P.W.
3. He asked him to ring the Bank and to get confirmation about actual number of cartons to be delivered. As Bank Manager was not available, he got the confirmation from Khalid godown-keeper. Khalid confirmed that the number of cartons mentioned in Exh. 3/A-1 as forty was correct and so far as identification of the cartons was concerned, only those selected by appellant were to be delivered.
18. P.W. 5 is Ibrahim Exh.
6. He was godown-keeper of the Agency. He has deposed that he delivered 40 cartons to the appellant.
19. P.W. 7 is Syed Habib Ali Exh.
8. He was inspector of F.I.A. He had submitted charge-sheet as Exh. 8/A.
20. P.W. 8 is Muhammad Saleem Sh. Exh.
9. He was Inspector of F. I. A. He got the writing and signature of the appellant before First Class Magistrate Court No. 12 and then forwarded to handwriting expert Chughtai. He also produced report of the handwriting expert.
21. P.W. 9 is Iqbal Waris Khan Exh. No. 10. He was Inspector of F.I.A. At Karachi. He had received complaint Exh. 2/A for investigation. He had recorded statements of P.Ws. Muhammad Tariq, Ahmed Saeed, Bhagwan Jee, Ghulam Nabi, Ibrahim, Khalid Masood and Hakeemuddin.
22. The appellant in his statement under section 342, Cr.P.C. Statement stated that he got delivery of 4 cartons only from International Forwarding Agency Ltd. He has stated that Exh. 3/A-1 bears his signature but the writing on the top of it was not his. He has also stated that he was innocent and was falsely involved. He examined two witnesses.
23. D.W. 1 is Karim Dad. He was the driver of the appellant. He has deposed that he lifted 4 cartons in his Suzuki to the factory on Jehangir Road.
24. D.W. 2 Muhammad Asadullah was supervisor of this factory. He has deposed that 3-4 cartons were brought inside the factory in April.
25. The learned trial Court has found that the prosecution has led no evidence to establish that it was the appellant who changed figure from 4 to 40 in delivery order No. 333/79 Exh. 3/A-1. The learned trial Court has also examined admitted handwriting of the appellant obtained before the Magistrate with the disputed writing on Exh. 3/A-1. He has found that it cannot be said with certainty that manipulation in Exh. 3/A-1 was in the handwriting of the appellant. The appellant was acquitted and the point No. 3 was decided in the negative.
26. Mr. Muhammad Hayat Junejo, the learned counsel for the appellant, has contended that in this case there are two different versions, that is, one by prosecution and the other by defence. Two versions are to be considered in juxtaposition with all evidence brought on the record.
27. The prosecution case is that the delivery order was manipulated before presentation to the International Forwarding Agency Ltd. Prosecution has placed reliance on the evidence of P.W. 2 Ahmed Saeed, who has deposed that their Supervisor Ghulam Nabi on receipt of delivery order in question had rung up the Bank in order to find out identification of the cartons which were to be delivered on the basis of the delivery order in question and he was told to deliver any forty cartons.
28. His evidence is silent about manipulation of figure 4 to 40.
29. P.W. 3 is Bhangwan Jee Potacha. He deposed that when delivery order was brought by P.W. Ghulam Nabi, he found certain manipulations in respect of number of cartons. As such he asked Ghulam Nabi to ring the Bank. Khalid confirmed the number of cartons as 40.
30. P. W. 4 Ghulam Nabi contacted the Manager of the Bank on phone but was not available. He then contacted Khalid who confirmed the number of cartons.
31. P.W. 6 is Khalid Masood, Godown Inspector of the Bank. He did A not say anything in his examination-in-chief about telephonic call. From International Forwarding Agency but to a question in cross-examination he has stated that telephonic call wad only about identification of the goods and not about number of cartons.
32. The prosecution has failed to establish that P.W. 4 had a telephonic conversation with Khalid Masood about actual number of cartons to be delivered to the appellant. The prosecution did not suggest any question to Khalid Masood about confirmation of actual number of cartons.
33. The appellant in his statement under section 342, Cr.P.C. Has stated that he got delivery of 4 cartons. This statement was supported by D.W. 1 Karimdad and D.W. 2 Muhammad Asadullah.
34. The instant case raises a familiar question namely the question of the correct treatment of a plea of defence which is of factual nature and is supported by evidence and circumstances. This matter received careful consideration by the Federal Court in the case of Safdar Ali v. The State PLD 1953 FC 93 where it was held that the decision in such cases must not be taken in relation to the accused special pleading, but must rest on examination of the entire evidence, and if thereafter the Court is of the opinion that there is a reasonable possibility that the defence version put forward by the accused is entitled to benefit of-such doubt, then it can be said on that ground that the prosecution has not proved its case beyond reasonable doubt.
35. Here, the charge was whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as-if he had forged such document. The appellant furnished an explanation that only 4 cartons were delivered to him and he never used any forged document.
36. The learned trial Court has found that it is not established that the appellant committed forgery in respect of change of figure 4 to 40 as well as in writing of said figure of forty on Exh. 3/A-1. The prosecution has not produced the delivery register and the gate pass in respect of the cartons delivered to the appellant. In the absence of any documentary evidence it is not certain that the International Forwarding Agency actually delivered forty cartons instead of 4 and who collected.
37. We are of the view that when all facts and circumstances of the case against the appellant are taken into account, there is a reasonable possibility that the explanation which he puts forward is true or in any case prosecution version is also not satisfactorily established beyond doubt.
38. 1972 SCMR 15 it was held that in circumstantial evidence the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused. Respectfully following the aforesaid principles and examining the present case on that basis, our opinion is that the circumstances brought on record against the appellant are not sufficient to prove his guilt beyond all reasonable doubts.
39. We cannot persuade ourselves to hold that although the prosecution has failed to establish that the figure in delivery order No. 333/79 (Exh. 3/A-1) was manipulated by the appellant, implicit reliance can be placed on it in convicting the appellant who, in our opinion, must be given the benefit of the same doubt which made it imperative for the learned trial Court to acquit him on the other charge.
40. Finding neither any direct nor any corroborative evidence against the appellant regarding the offence for which he has been convicted we have no option but to accept his appeal and acquit him. We order accordingly. In the result appeal is allowed and conviction and sentence are set aside.