ZAFFAR HUSSAIN MIRZA, J.--The appellant was tried and convicted by the Special Judge, Anti- Corruption, Karachi, vide judgment, dated 10th April 1980 under sections 468 and 471, P. P. C. He was sentenced to three years' R. I. And a fine of Rs. 5,000 under each count, in default whereof he was ordered to undergo R. I. For six months. An appeal filed by the appellant against his convictions and sentences was also dismissed by a learned Judge of the Sind High Court, subject to modification of the sentences, whereby substantive sentence of imprisonment was reduced to that already undergone.
2. The case of the prosecution briefly stated is that appellant S. Mahmood Alam Shah was serving as Headmaster of Teachers Training School, Korangi, whereas his wife Mst. Shaheda was working as lady teacher in L. K. Zone Karachi. It is alleged that on 14th September, 1977, the appellant went to the Office of the Educational Officer, L. K. Zone, Karachi, and received a cheque of Rs. 432 being the arrears of salary of his wife. The cheque was handed over to him on the authority letter of his wife and his signature was obtained on the counter-foil of the cheque, as well as on the back of the cheque. Further, the appellant's signature on the back of the cheque was attested by the Deputy Education Officer. On 19th September, 1977, when another cbeque for Rs. 1,303 issued in official course of business was sent to the bank for encashment it was dishonoured and returned for want of funds. Thereupon in consequence of inquiry it was discovered that the appellant had committed fraud and forgery in respect of the cheque issued in his favour earlier for Rs. 432. It was found that the amount of the said cheaue was altered from Rs. 432 to Rs. 4,032. The matter was referred to the Anti-Corruption Police and after usual investigation the appellant was sent up for trial. In support of their case the prosecution mainly relied on the testimony of Mst. Rehmat Sultana, Junior Clerk, Miss Shamim Akhtar the Educational Supervisor, Mr. Muhammad Israr, Clerk in the Accounts Offce, Arif Rehman, Teacher, in Teachers' Training School, Korangi, and Mr. Ghulam Abbass, Hand--writing Expert. The appellant denied the allegations of the prosecution and pleaded his innocence. His plea was that no cheque was given to him but the amount of Rs. 432 was paid to him in cash and his signatures were obtained on the salary bills as well as on cash register. He also denied the charge that he had forged the cheque by converting its amount from Rs. 432 to Rs. 4,032. He also alleged enmity against the witnesses who according to him were deposing falsely at the instance of Miss Shamim Akhtar (P. W.) who was junior to him but was given seniority over him wrongfully against which he had made representation. The appellant produced five witnesses in his defence.
3. The trial Court accepted the prosecution evidence and held the appellant guilty of offences under sections 468 and 471, P, P. C. He was awarded the sentence as already mentioned. The appellant challenged his convictions and sentences in an Appeal before the High Court of Sind, Karachi, which was dismissed by a learned Single Judge subject to modifica--tion in the substantive sentence as stated above. Leave was granted by this Court against the aforesaid judgment of the High Court in view of the fact that no evidence was produced by the prosecution that the appellant had withdrawn the amount of the cheque and that the circumstances on record indicated that the appellant had received the original sum of Rs. 432 in cash and not by cheque as pleaded by him.
4. The crucial document on which the entire prosecution case hinges is Cheque No. C. C. 1912756, dated 14th September, 1977, issued by the Deputy Education Officer, Karachi Municipal Corporation, Landhi Korangi Zone, on Account No. 508, Kabib Bank Limited, Korangi Township Branch, Karachi (Exh. 4). As already stated the prosecution case is that this cheque was issued for Rs. 432 being the dues payable to the wife of the appellant, but the appellant is said to have changed the amount of the cheque by means of forgery to Rs. 4,032 and thereby committed the offence under section 468 (forgery for purpose of cheating) and section 471 (using as genuine forged document) of Pakistan Penal Code. The star witness of the prosecution is Mst. Rehmat Sultana, Junior Clerk in the Office of the Deputy Education Officer. Her evidence is to the effect that she was approached by the appellant with a proper authority letter from his wife for payment of her dues. She presented this letter to the Deputy Education Inspectoress, Mrs. Farida Ahsan who was the Drawing and Disbursing Officer and she directed that a cheque for the amount be issued and delivered to the appellant.
Accordingly, she prepared the aforesaid cheque for Rs. 432 in the name of the appellant and obtained the signature of Mrs. Farida Ahsan on it. She has further allaged that the appellant signed the cheque on the reverse in her presence and his signature was verified by Mrs. Farida Ahsan. She has further stated that she had obtained the signature of the appellant on the counter-foil of the cheque (Exh. 5) as well as on the cheque register (Exh. 6). All these signatures were denied by the appellant in his statement under section 342, Cr. P. C. The prosecution sought to prove the signature through witnesses Miss Shamim Akhtar, Muhammad Mohsin Asrar and Arif Rehman who were all con--versant with signature of the appellant having dealt with him in official course of business. Additionally the signatures of the appellant were also sought to be proved by the evidence of Mr. Ghulam Abbass, Handwriting Expert, who in his testimony opined that after comparing the disputed signatures with the admitted specimen signatures he had come to the conclusion that the disputed signatures were those of the appellant. The finding of the learned trial Court was that as the testimony of Mst. Rehmat Sultana, Miss Shamim Akhtar and Muhammad Mohsin Asrar was not challenged by cross-examination, the case of the prosecution stood proved ipso facto. Reliance was also placed upon the Expert evidence. Accordingly it was held that the appellant was responsible for making necessary forgery in the cheque originally drawn and issued by charging the figures and words indicating the amount therein. The learned Judge in the High Court affirmed the finding of the trial Court and agreed with the conclusion. At the hearing of the appeal we have carefully examined cheque (Exh. 4) in order to satisfy ourselves bow any. Person could alter the amount of the cheque in figures as well as words so as to bypass the scrutiny ordinarily expected from the bank officials. It is in the evidence of Syed Muhammad Mohsin (P. W.), Second Officer, Habib Bank Limited, Korangi Township Branch, Karachi, that there was no overwriting in the figures of the amount mentioned in the cheque and it was a clear cheque. He has also admitted that the signature of the payee after making the payment was not obtained.
However, Mr. Ghulam Abbass, Handwriting Expert in his evidence stated as follows :- "The further examination of the body of the cheque had transpired that the original writing was written with blue ink which was after--wards overwritten with black ink and the digit 4 was erased and then degit 40 were added and thus the original digit of amount 432 was altered as 4032 and also the word `hundred' was altered as 1,000 `thousand' by added alphabet `t' and after erasing the alphabet `D' and `r'."
We are rather surprised to note the finding of the handwriting expert. As found by the bank officials, there is no discernible overwriting on the cheque, which appears on our examination to bear the original writing intact. The document also does not yield any sign of erasures. If the cheque originally mentioned Rs. 432 in figures and words, it could not have been altered to Rs. 4,032 and left the document in the present form. We are, therefore, wholly unsatisfied and do not agree with the opinion of the handwriting expert that any forgery was committed on the document in question. The Courts below seem to have been greatly influenced in arriving at their conclusions by the fact that the accused did not direct any cross-examination to challenge the testimony of these witnesses. They have ignored to take into consideration that the accused was unrepresented in the trial Court. We cannot approve of such an approach to the appreciation of evidence in criminal cases. It is the obligation of the Court to take into consideration all matters placed before it in a trial before arriving at the conclusion whether a fact is proved or not. The proof of a fact depends not upon the accuracy of the statement but upon the probability of its having existed. The ultimate reponsibility to come to the necessary findings of fact rests with the Court which is undivided and complete. The definition of the word "proved" provides for two conditions of mind : first, that in which a man feels absolutely certain of a fact, in other words "believes it to exist", and second, that in which, though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would, under the circum--stances, act on the assumption of its existence. We may also here refer to another aspect of the testimony of the handwriting expert. In this case the expert evidence was led on two points. Firstly, whether the disputed signatures were those of the appellant and more importantly whether document Exh. 4 was tampered with by means of forgery.
Mr. Ghulam Abbass who is a D. S. P. In F S. F., stated in his evidence that he is a qualified handwriting expert. He has nowhere asserted that he has necessary skill and training in regard to questioned documents generally. Expert knowledge about handwriting alone may not be sufficient fordetermining whether a particular document contains forgeries and he has. Nowhere stated that forgeries were with the hand of the appellant. Be that` as it may the expert evidence is at best opinion evidence and a Court is not bound to accept it.
5. Having come to this conclusion it seems to us that reasonable doubt has been created as regards the prosecution case that cheque Exh. 4 was originally issued for a sum of Rs. 432. It may well have been originally issued and indeed the probabilities appear enormous that it was so issued in the sum of Rs. 4,032 for ulterior motives by the staff of the Education Department concerned. In his defence the appellant produced some witnesses to say that payments to the teachers are made in cash and not by cheque. 1n this connection reference may be made to the evidence of Mr. Masood Hussain (D. W. 1), who was working in Education Department since 1977.
According to him Mst. Rehmat Sultana (P. W.) after obtaining the approval from Education Officer made the payment to the appellant in cash and obtained his signature in his presence. He is an independent witness and had no reason to give false evidence. Unfortunately the Courts below did not take into consideration his evidence at all.
6. In view of the aforesaid discussion we have come to the conclusion that the charges of which the appellant, was found guilty have not been proved against the appellant.
7. Although we have found the appellant not guilty of the charges on which he was tried, on merits, there is a legal aspect of the case which deserves to be considered. The jurisdiction of the Special Judge appointed under section 3 of the Pakistan Criminal Law Amendment Act, 1958, isl to try and punish offences specified in the schedule. This jurisdiction conferred on the Special Judge is exclusive by virtue of subsection (1) of section 5 of the said Act. The appellant was tried on a charge alleging that he bad committed offences under sections 468, 471, 420 and 409, P. P. C., and section 5(2) of the Act, 1947, in his capacity as a public servant as at the relevant time he was serving as Headmaster, Teachers' Training Institute, Korangi. Clause (b) of the schedule to the- aforesaid Act clearly lays down that the offences included therein are triable by the Special Judge only when committed by a public servant "as such". Similar is the position in regard to section 5(1)
(d) of the Prevention of Corruption Act. However, the facts of the present case admittedly are that the appellant was merely acting as an agent of his wife for the purposes of collection of arrears of her salary. Therefore, although at the relevant time he was a public servant, the transaction in which the alleged offences were committed was by no stretch of imagination a course conduct which had any nexus with the duties performed by the appellant in his capacity as a public servant. He was clearly acting in his private capacity. A learned Single Judge of the erstwhile High Court of Sind and Baluchistan, in the case of Ganhwar v. The State PLD 1975 Kar, 239) was called upon to interpret the effect of the words "as public servant" in somewhat similar circumstances.
The learned Judge found guidance in resolving the question raised before him from the observations of Sulaiman, J. In the case of Hari Ram Singh v. Emperor AIR 1939 FC 43). Sulaiman, J.
In the cited case laid down the tests whether the act was committed by a public servant as such in the following words :- "What is necessary is that the offence must be in respect of an act done or purported to be done in execution of duty that is in the discharge of an official duty. It must purport to be done in the official capacity with which he pretends to be clothed at the time. That is to say under the cloak of an ostensibly official act, though of course, the offence would really amount to a breach of duty. An act cannot purport to be done in execution of duty unless the offender professes to be acting in pursuance of his official duty and means to convey to the mind of another, the impression that he is So acting."
In the case of Ganhwar, the learned Judge then stated his conclusion as follows :- "The test in my humble opinion is whether a public servant expressly or ostensibly commits an offence or does an act in the garb of his office. In other words if the act of misdemeanour bears relation or connection to his status as a public servant or performance of his duties as such public servant, he may attract the penalty of section 5(1) (d) of the Prevention of Corruption Act. But on the other hand if a public servant does an act which bears no relation or even the semblance of it to the performance of his official duties, he cannot be considered to be guilty of a misdemeanouras such public servant'. Act of public servants to be indictable fall in following groups. In the first group fall such acts which attach to the official character of the person doing it, in the second group fall such cases where official character or status of the accused gives him the oppor--tunity to commit an offence and in the third and the last group fall such cases where an accused is engaged in his official duty and the alleged offence is committed in his official duties.
(AIR 1939 FC 43), In all cases it would seem that unless the act of a person can be reasonably construed to be his act in his capacity as a public servant, the accused cannot incur the penalty proved in section 5(1)(d) of the Prevention of Corruption Act for the simple reason that he has to be shown to have acted `as' a public servant while obtaining any benefit for himself."
8. We are in agreement with the enunciation of law by the learned Judge in the case cited above.
The facts of the present case abundantly demonstrate that the acts alleged against the appellant did not bear the remotest nexus with the discharge of his duties as a public servant, and therefore, any offences committed by him purely in a private capacity, unconnected with his function as a public servant, were not triable by the Special Judge; for the simple reason that such offences do not fall within the ambit of the schedule attached to the Pakistan Criminal Law Amendment Act.
The trial was, therefore, vitiated and the convictions and sentences passed against him were likewise bad in law.
9. In the result this appeal succeeds and is allowed. The appellant is acquitted. The fine if paid shall be refunded to him.