Charge against accused Tufail Ahmad Shah in this case is that while employed as Manager in UBL Quaid-i-Azam Road Branch, Dera Ghazi Khan in 1984, he had received a sum of Rs,5000 on 7-2- 1984 and a sum of Rs,2500 on 11-2-1984 from Muhammad Ramzan A account holder who was maintaining saving bank account No,129 in the said branch and had issued him deposit receipts (counterfoils of the paying-in-slips) respectively No,442398 and 443108 of the respective dates for the said sums but had not accounted for the said sums either in the daily cash of the branch or in the books of account of the branch and had misappropriated the said sums. The matter was detected on 8-4-1984 when the accused was on leave and Muhammad Ramzan had visited the branch to inquire about the balance in his said account and on his inquiry Mr. Ijaz Hussain Gormani, OG III who was working in place of the accused on relieving duty, found that the credit entries of the said two sums were not available in the record of the said branch on which the said Ijaz Hussain Gormani intimated the Zonal Office of the same, from there Azhar Ali Siddiqi OG I was deputed to look into the said complaint. It is stated that Muhammad Ramzan had shown him the two original receipts in the presence of Ijaz Hussain Gormani and Muhammad Jamil. It is also the case of the prosecution that at the instance of said Azhar Ali Siddiqi, Ijaz Hussain Gormani had taken the said receipts and had got their photo copies made which were retained in the branch and the originals were returned to the account holder who was not prepared to part with them.
Azhar Ali Siddiqi continued to make the inquiry on 8-4-1984. He also came to the branch on 9-4- 1984 on which date, the accused is said to have made a confession in writing before him. Accused Tufail Ahmad Shah was charge-cheeted by the Zonal office vide letter No,MAM 3042 dt. 12-5-1984.
His reply, denying that he ever receive& any sums, was found to be unsatisfactory and untenable by the bank authorities and it was decided to hold an independent inquiry against him and vide Zonal Office letter dated 7-6-1984 Muhammad Naseem Khan Khakwani of UBL Zonal Office D.G.
Khan, was appointed as an inquiry officer to make the said inquiry. The said inquiry was held on 20- 6-1984 and 15-7-1984. The Inquiry Officer submitted the final inquiry report dated 15-7-1984 that the accused was guilty of misconduct. As a result of the above, on 27-1-1985 a complaint which constituted the original FIR was made by A.H. Naseem, Group Incharge, to the Assistant Director FIA CBC, Multan and as a result of the same formal FIR No,1085, dated 15-4-1985 was registered with FIA CBC Multan for offences under sections 409/420 PPC and section 5(2) of Prevention of Corruption Act, 1947.
2. During investigation on 15-5-1985, 16 credit vouchers and their counterfoils (deposit receipts) were produced by Khuda Bakhsh Nayyar, Staff Officer, Zonal Office, DG Khan and were taken into possession by the investigating officer, Masood Ahmad, Inspector, FIA CBC, Multan, in the presence of AVP Azhar Ali Siddiqi. On 5-5-1985 Khuda Bakhsh, Staff Officer, Zonal Office, UBL DG Khan, produced the following documents before the said investigating officer:-
(i) Statement of account of A/c No, SB1201 in the name of Haji Muhammad Ramzan.
(ii) Photostat of Receiving Cashiers' book for 7-2-1984 and 8-2-1984, 11-2-1984 and 12-3-1984.
(iii) Photostat of deposit receipt No,443108 dated 11-2-1984 for Rs,2,500, deposit receipt No,442398 dated 7-2-1984 for Rs,5000.
(iv) Photostat of enquiry proceedings.
(v) Photostat of final enquiry report.
' A part from that, the I.O. Recorded the statements of the prosecution witnesses and challaned the accused.
3. After receipt of challan in this Court the accused, Tufail Ahmad Shah filed an application under section 249-A/265-K, Cr.P.C. (Crl.Miscellaneous No,194186) for his acquittal on the ground that there was no possibility of his conviction in this case.
4. I have heard Mr. Muhammad Latif Khosa, Advocate counsel for the accused and Ch. Sarfraz Ahmad Spl. Prosecutor for the State. I have also scrutinized the entire record with their assistance.
5. A peculiar feature of this case is that Muhammad Ramzan, account-holder, is not cited as a P.W.
In the calendar of witnesses of this challan. In the complaint made to the police by the bank itself, it was mentioned that the accused had made good the loss of the party directly outside the bank.
Moreover, Muhammad Ramzan account-holder executed, on 13-3-1985 an affidavit deposing that he B did not deposit any sums in the, branch on 7-2-1984 and 11-2-1984 and had no claim against the bank for any short fall in his account and that he had come to know that some proceedings were being taken against staff of the bank regarding any shortage in his account although his account was absolutely correct and that enquiry had been held in the bank in that regard in his absence when he was away to Dobai and that he had no grievance against any member of the bank staff. This affidavit was attached to the application for the grant of bail, B. A.No,172/85, filed by the accused in this Court. In the proceedings taken in this Court on the said application for grant of bail, Masood Ahmad, Inspector, FIA, deposed before me on 4-9-1985 that said Muhammad Ramzan had stated before him in his statement C under section 161 Cr.P.C. That he had not deposited any sums on 7-2-1984 and 11-2-1984. There is, therefore, no possibility of Muhammad Ramzan, account-holder, now veering round to the prosecution and appearing in this case as a prosecution witness to support the prosecution version. In these circumstances direct evidence of entrustment/delivery of the said sums to the accused which is an D essential ingredient of the offences under sections 409/420, PPC and under section 5 of the Prevention of Corruption Act, 1947, is not available to the prosecution in this case.
6. Another equally peculiar feature of this .Case is that Muhammad Ramzan took back the two original deposit receipts (counterfoils of paying-in-slips) allegedly signed by the accused and due to his having later denied that there was any shortage of money in his account, did not surrender the said receipts to the I.O. The said original E deposit receipts are thus lost to the prosecution beyond any hope of being retrieved and used in the prosecution of the accused in this case.
7. Thus besides the complete absence of oral evidence of entrustment/delivery of said sums to the accused, the prosecution stands robbed of the original decumentary evidence in this case also. It is in this background that it is now to be seen whether there is any probability of the accused being convicted in this case on the basis of other evidence proposed to be produced in this case.
8. The prosecution now binds its hopes on the photostats of the said two deposit receipts and identification of the handwriting and signatures of the accused on these to prove the entrustment delivery of the said sums to the accused. Therefore, the crucial question involved now in this case is whether the proposed attempt of the prosecution to prove the entrustment delivery of the said sums by this alternative method is likely to succeed or not.
9. To me Awis there appear serious legal hurdles in the way of production by the prosecution in evidence of said two photostats and of identification of the handwriting and signature of the accused on the said photostats. It is true that the said photostats are secondary evidence of the contents of the original deposit receipts under sub-article (2) of article 74 read with illustration (a) under the said article of the Qanun-e-Shahadat Order, 1984, but it cannot be ignored that such secondary evidence is admissible only in certain specified situations enumerated and detailed in article 76 of the Qanun-eShahadat Order, 1984. Para (d) of the said article clearly shows that such photostats which are now made by modern devices can be produced as secondary evidence of the contents of the original documents when such photostats are made due to volume or bulk of the original. In the present case, it is not so because- as is clear from the facts recited above the photostats were got made neither because the original deposit receipts were bulky nor because they were voluminous but because the account holder, Muhammad Ramzan, did not want to surrender the said original receipts to the bank.
10. I am conscious of the fact that under para (b) of article 76 of the Qanun-e-Shahadat Order, 1984 also photostats can be tendered as secondary evidence of the contents of the original documents when the contents of original documents have been proved to be admitted in writing by the person against whom they are to be proved and in such cases, the said written admission is admissible in evidence as secondary evidence of the existence and contents of the original documents and there is on record a written extra-judicial confession said to have been executed by the accused in which the existence and contents of the said deposit receipts have been admitted in writing but the said extra-judicial confession itself is a photostat and since G there is no indication on the record that its original exists, and the said photostat was made from the original as required by sub-article (2) and illustration (a) to article 74 of the Qanun-e-Shahadat Order, 1984, it is not secondary evidence of the contents of the original confession nor it is admissible as secondary evidence under para (d) of article 76 of the said statute. Furthermore, assuming that the original confession exists, it is not relevant under article 37 of the Qanun-e- Shahadat Order, 1984, inasmuch as it was on the showing of the prosecution itself, executed before Azhar Ali Siddiqi (who was vis-a-vis the accused definitely a man in authority) during the preliminary enquiry made on 9-4-1984 when the accused was under a great mental stress and it is extremely doubtful that he had made the said confession without any inducement, proceeding from said Azhar All Siddiqi, sufficient to make him believe that by making the said confession he would be saved from consequences of the acts attributed to. Him. It may be noted in this context that the accused I had during the regular departmental enquiry madeby Mr. N. Naseem Khan Khakwani of Zonal Office Dera Ghazi Khan which had been held almost immediately thereafter, retracted from the said confession and had stated that he had written the said confessional statement at the instance of and- as directed by Mr. Azhar All Siddiqi. In these circumstances, the said confession by the accused is not likely to be admitted in this case as a relevant piece of documentary evidence and in consequence the admission by the accused or execution of the original deposit receipts as required by para (b) of article 76 of the Qanun-e-Shahadat Order, 1984, is not likely to be proved in evidence and for that reason, in its turn the said photostats of the two deposit receipts are not likely to be admitted in evidence in this case as secondary evidence of the original deposit receipts even under para (b) of article 76 of the Qanun-e-Shahadat Order, 1984.
The other paras of the said article are inapplicable to the said photostats. It is clear, therefore, that the two photostats of the deposit receipts are not likely to be read in evidence in this case as secondary H evidence of the original receipts in any circumstance if regular trial of the accused is held by this Court.
11. This does not end here, as there is the further circumstance of almost decisive importance that even assuming without accepting that the said photostats of deposit receipts are liable to be admitted in evidence, there is no likelihood of the writing and signature on them to be judicially proved to be in the hand of the accused as no j evidence of identification of a writing can be allowed to be adduced on the basis of photostat of an original writing. It is true that nearly all the witnesses from the bank have identified in their statements under section 161 Cr.P.C. That the writing on the said photostats of said deposit receipts to be in the handwriting of the accused and signatures thereon to be signatures of the accused but under the law nobody can be allowed to depose on the basis of photostats that the writing and signature on the originals are of the K accused. The original document has to be before the P.W. Before he can make that deposition.
Article 61 of the Qanun-e-Shahadat Order, 1984, which permits ingress of opinion evidence of a person acquainted with the handwriting of a person, contemplates admission of such an opinion evidence on the basis of the original document only and not on the basis of any photostats and that is not without reason and that is that the photostats give only shadowgraphic impressions of the original writing which lose except for the style, the details of individual characteristics of the writing which are necessary for mental comparison 'by such a person and in their absence no comparison 'is possible. The result is that even if regular trial of the accused is held and all the prosecution witnesses cited in the calendar of witnesses are examined, there is no likelihood of it being proved that the writing on the original deposit receipts (and for that matter on the said extra-judicial confession) was in the hand of the accused.
12. The upshot of the above discussion is that the alternative method of proving the entrustment delivery of the said two sums of money to the accused is without any doubt going to fail in this case, if a full-fledged trial of the accused takes place in this case.
13. Since the prosecution relies upon the said extra-judicial confession also and it is stressed by it that it may be able to produce the original document in actual trial it is to be ascertained that if it is considered fit to be admitted in evidence as relevant piece of evidence whether the said original confession would have any evidentiary value so as to be able to prove the accused to be guilty of commission of any one of the said scheduled offences. I have considered that question too and am of the opinion that even if the said original document is produced, it would hardly advance the case of the prosecution against the accused. The first most important circumstance in that regard is that apart from its involuntariness it is a confession in name only and is not a confession in fact inasmuch as, though it is an acknowledgement by the accused of receipt by him of said sums on the said dates from account holder Muhammad Ramzan and of issuance by him of deposit receipts for the said sums it is not an acknowledgement by the accused of commission by him of any offence as the admission not to have accounted for the said two sums in the bank cannot be equated with admission of his having misappropriated. The said sums. Acknowledgment of criminal liability is conspicuous by its absence from the said writing. It is well established that confession should be an acknowledgement of the commission of offence and acceptance of guilt in terms of the accusation which is not the case in the present confession. There can be many explanations of failure to put the sums in the daily cash of the bank' wholly excluding any guilt on the part of the accused, Moreover, it is well known that extra-judicial confession is a very weak type of evidence and the Courts have always been reluctant to act upon such a corfession and apart from that the said extra-judicial confession is a retracted one and is additionally not likely to be corroborated in N its material particulars by any other evidence on record and for that reason is going to be of little consequence to the prosecution. For that reason no weight is likely to be attached to the said extra-judicial confession at the time of its appraisal as a place of prosecution evidence.
14. There is another item of evidence which is proposed to be produced in this case and that is one of reports made by the inquiry officer Mr. M. Naseem Khan Khakwani who held departmental enquiry against the accused and found the accused guilty of misconduct. However, this Court cannot surrender its judicial functions to the said inquiry officer and rely upon his said report because in holding the accused to be guilty of commission of scheduled offences, it has to come to an independent finding of its own on the basis of evidence to be adduced before it. The said report was quite a valid basis for departmental action taken against the accused but does not by itself furnish adequate material for holding the accused guilty of the commission of a scheduled offence and the same has to be proved 0 before this Court independently. However, as already shown above in detail, there is no direct evidence of guilt of the accused on the record of this case and there is no likelihood of the remaining categories of prosecution evidence available in this case furnishing adequate basis for conviction of the accused.
15. So far the matter has been considered on the basis that Muhammad Ramzan, account-holder, is not likely to appear in this case as a prosecution witness. But the possibility of his appearing as a defence witness in this case cannot be ruled out and the effect of that circumstance too has to be, assessed at this stage. Therefore, the next crucial question involved in this case is as to what is going to be the fate of the prosecution case if he appears in that capacity in this case at the trial of the accused.
14. I have considered that question too. Section 249-A1265-K Cr.P.C. Which authorises a criminal court to acquit an accused person if there is no probability of his conviction in a case visualizes appraisal of evidence proposed to be produced in a case for coming to that finding. Evidence to be appraised, however, should not be the prosecution evidence alone but defence evidence also provided there is a reasonable certainty at the stage of consideration of the said matter of the nature of the defence evidence likely to be given by the defence witness inasmuch as appraisal of evidence in its comprehensive sense appears to be contemplated by the said provision. Now we know that Muhammad Ramzan, account holder, had denied in his police statement that he had deposited any sums on 7-2-1984 and 11-2-1984 in the branch. Later he swore an affidavit to that effect and gave the same to the accused for being produced in the Court in connection with his bail application. We can, therefore, clearly see even at this stage that in case of the trial of the accused being held, the accused cannot fail to summon Muhammad Ramzan as a defence witness and we also know it with certainty that Muhammad Ramzan shall in his deposition as a defence witness state that he had not deposited any sums in the branch on the said two days. It can well be imagined that will be the secondary evidence of delivery entrustment of said sums to the accused which alone is likely to be produced by the prosecution in this case and to the extra- judicial confession which are the only two planks of the prosecution in this case. The secondary evidence of entrustment of said sums by Muhammad Ramzan to the accused and the truth of the said extra-judicial confession will stand completely negated and the said confession proved wholly false by the said direct evidence of Muhammad Ramzan and would most certainly result in acquittal of the accused. For that p reason too, in my opinion the contemplated trial of the accused would be nothing but a farce and no useful purpose would be served thereby.
' In a nutshell, therefore, having examined all the aspects of this case, I am of the view that there is no probability of the conviction of the accused in this case in any circumstance and that holding of the trial of the accused in this case would be a mere exercise in futility.
' Accordingly, in exercise of my powers under section 249-A/265-K Cr.P.C. I acquit the accused of all the scheduled offences said to have been committed in this case. He is on bail. His bail bonds stand discharged.
Accused acquitted.