1. ' SAJJAD ALI SHAH, J.-- This appeal is directed against judgment, dated 28-11-1987 of learned Presiding Officer, Special Court (Offences in Banks), Karachi whereby appellant has been convicted for offence under section 419 read with section 109, P.P.C. And sentenced to R.I. One year and a fine of Rs,12,00,000 or in default of the payment whereof R.I. For one year. Appellant is also convicted under section 408, P.P.C. And sentenced to R.I. For six months. It is further directed in the impugned judgment that both sentences are to run concurrently and sentence in default of payment of fine would run after expiry of substantive sentences. After hearing learned counsel appearing for appellant as well as State on 14-9-1988, we had set aside the conviction and sentence and allowed appeal for reasons to be recorded later, which we record now.
2. ' Briefly stated the relevant facts giving rise to this appeal are that on 2-7-1985 complainant Qamar Din filed report with F.I.A. And stated therein that his cousin G.H. Pirwani had imported consignment of Auto Spare Parts, which could not be cleared from Customs due to some reasons and ultimately the consignment was auctioned and the Collector of Customs had issued cheque on State Bank of Pakistan in favour of G.N. Pirwani. During the absence of G.H.Pirwani from Pakistan as he was abroad, Ashraf Ali collected the cheque and fraudulently opened account in the name of G.H.
3. Pirwani in Allied Bank of Pakistan, Nazimabad 1st Chowrangi Branch. It was categorically asserted in the report that Ashraf Ali had no authority to open account in the name of G.H. Pirwani or operate the same.
4. ' Inspector Shahid Hussain of F.IA. After registration of F.I.R. Exh.13/A on the basis of written complaint of complainant Qamar Din Exh.8/C commenced investigation. He searched letter of authority issued by G.H. Pirwani in favour of complainant Qamar Din. On 3-7-1985 he secured the house of the Ashraf Ali but did not find Ashraf Ali who was not available in the house. Nothing was secured from the house which could help in the investigation. On 3-8-1985 Investigating Officer secured from Customs original refund order Exh.13/C. On 12-8-1985 he secured Bank record Exh.13/D.
5. Subsequently he recorded statements of witnesses. On 10-11-1985 he recorded statement of G.H.
6. Pirwani who was available as he had come from abroad. On 27-12-1985, I.O. Arrested present appellant Zeeshan Akhtar Zaidi. On 18-3-1986, I.O. Arrested Mrs. Tahira Ashraf wife of Ashraf Ali.
7. ' During the investigation it transpired that appellant Zeeshan Akhtar Zaidi, who was employed in the Customs Department had account in Nazimabad Branch of Allied Bank of Pakistan. He introduced a person as G.H. Pirwani to the Bank, who opened account. Opening account form was signed by appellant as introducer. New account-holder was given No,2528 and he signed his name as G.H. Pirwani and put his signatures on the specimen card. Account-holder deposited cheque for an amount of Rs,5,72,689 under the deposit slip. The said cheque was issued by Customs Department and was drawn on State Bank of Pakistan. After clearance of the cheque the amount was credited in the account of account-holder. Subsequently on 25-6-1985 account-holder encashed cheque for Rs,2,73,000 and on the following day he further encashed a cheque for an amount of Rs,3,00,000 from the said account. Subsequently in the Bank came complainant Qamar Din and made enquiries after which it became known that G.H. Pirwani who had opened the account was in America since long and the person who opened account as G.H. Pirwani was fictitious.
8. ' It appears from the record that according to the prosecution case, Ashraf Ali had impersonated as G.H. Pirwani and in his name opened account and encashed cheques but Ashraf Ali could not be arrested during the investigation as he had absconded and settled abroad where he died. Mst.
9. Tahira wife of Ashraf Ali was put on trial but she was acquitted under section 265-K, Cr.P.C.
10. Appellant Zeeshan Akhtar Zaidi who introduced Ashraf Ali as G.H. Pirwani in the Bank for the purpose of opening of account has been convicted and sentenced as stated above. ' in the trial Court prosecution has examined seven witnesses in support of its case and two witnesses have been examined as Court-witnesses. P.W.1 is Syed Misbahul Islam Rizvi, who was at the relevant time Manager of Allied Bank Nazimabad Branch. He has deposed that appellant brought a person and introduced him as G.H. Pirwani who opened account. This witness filled in the acccount opening form. Account-holder also signed the opening form and specimen signature card. New Account No, 2528 was opened with deposit of Rs,500. Cheque for Rs,5,72,689 was deposited under a deposit slip Exh.2/D. This cheque was issued by. Customs Department and was drawn on State Bank of Pakistan. Subsequently account-holder withdrew the amount by two cheques which he had issued and were encashed. He produced those cheques as Exhs.2/F and 2/F-1. This witness saw G.H. Pirwani and stated that he was not the same person who opened account in the name of G.H. Pirwani. This witness further stated that at the time of opening of account there was a lady who had come alongwith the person who was introduced as G.H. Pirwani and the lady was introduced as Mrs. Pirwani. So far appellant is concerned, this witness deposed that the person who opened account in the name of G.H. Pirwani was introduced by appellant and secondly appellant was known to this witness since a long time as appellant had an account in the Branch since early 1985 and also had a locker in the said Branch since 1978. Appellant had been visiting the Branch alongwith his wife. During the recording of his evidence in the trial Court, this witness was shown photographs of Ashraf Ali and he recognized him to be the person who had opened Account No, 2528.
11. ' P.W.2 is Hassan Bin Raza. He was aecovery Officer in the Zonal Office of Allied Bank at the relevant time. He has deposed that he used to sit in the cabin of Manager due to shortage of space and on 23-6-1985 he was present when appellant brought a person and introduced him to the Manager for the purpose of opening of new account. Appellant introduced that person as G.H. Pirwani, who opened account with a cash deposit of Rs,500. After two or three days, this witness was sitting in the cabin of Manager and in the absence of Manager he received a telephone call from a person who informed that account which was opened with deposit of more than Rs,5,00,000 was not genuine.
12. ' P.W.3 is Shahnawaz Shah who was at the relevant time Clerk in the Account Section of Customs Collectorate. This witness has deposed that a consignment was auctioned and order was passed for refund of amount of Rs,5,72,689 in the name of Ashraf Ali. A.C., Audit endorsed the order of refund of the said amount to Ashraf Ali. Ashraf Ali was holder of power of attorney on behalf of G.H.
13. Pirwani and that power of attorney only empowered him to sign customs documents on behalf of G.H. Pirwani and not to receive any amount or cheques on his behalf. Such information was supplied by this witness that Ashraf Ali was only agent of G.H. Pirwani who was real importer as such name of G.H. Pirwani was substituted in the order of refund and the cheque was made out in favour of G.H. Pirwani.
14. ' P.W.4 is Aftab Ahmed Siddiqui who was at the relevant time Superintendent of Account Section in the Customs Department. He deposed that initially refund order was in the name of Ashraf Ali but on verification it was found that actual importer was G.H. Pirwani hence necessary correction was made and name of G.H. Pirwani was entered in the refund order and the name of Ashraf Ali was scored out. This witness also deposed that wife of Ashraf Ali had come and she had scored out old address of Pirwani as was given in the import licence. She gave new address of G.H. Pirwani which was in fact address of Ashraf Ali.
15. ' The trial Court examined Mrs. Tahira Ashraf as C.W.1. She deposed that her husband Ashraf Ali was attorney of G.H. Pirwani and further that her husband Ashraf Ali had died. She stated that she was aware about the fact that G.H. Pirwani had a claim against Customs for refund of money. She had admitted that she made correction in document Exh.4/A when she went to Customs Department and changed the address of G.H. Pirwani and substituted the same with address of her husband for the reason that G.H. Pirwani had executed power of attorney in favour of her husband. She has admitted that cheque for Rs,5,72,689 was received at her residence in the name of G.H. Pirwani by her husband and she further claimed that she did not know what her husband did with that cheque.
16. ' P.W. 5 Muhammad Hanif, Accounts Clerk in the Federal Treasury Office produced letter of Federal Treasury Officer regarding the cheque required by the Court as Exh.7/A.
17. ' Next witness examined is P.W.6 Ghulam Hyder Pirwani. He deposed that normally he stayed in Kuwait and in 1978 he did business in Pakistan with his cousin Qamar Din and imported Auto Spare Parts. For some reasons customs clearance for the goods was refused and the consignment was auctioned. He was informed through Qamar Din that he would get refund of Rs,5,75,000 after deduction of auction price and other relevant charges as he was out of Pakistan and he had given power of attorney to Ashraf Ali to get clearance of goods and deal with Customs. He had not authorised Ashraf Ali to receive money on his behalf from Customs Authorities. Subsequently he was informed by his cousin that the cheque issued in his name by Customs Authorities has been encashed by Ashraf Ali. At that time he was in U.SA. He authorised his cousin Qamar Din to file report against Ashraf Ali.
18. ' Court examined Fateh Muhammad as C.W.2. He was Assistant Collector in the Customs Department. He deposed that at the relevant time Shah Nawaz was Clerk in the Account Department. He did not remember whether any lady by name of Mrs. Ashraf Ali had come to him in connection with refund on consignment of Motor Spare Parts. He admitted that papers of refund passed through Audit Section and then went to Account Section.
19. ' C.W.3 is Naseem Afzal. He worked in registration office and brought with him to the Court file relating to issuance of Identity Card No, 512-47-102438. He produced the file Exh.10/A.
20. ' Prosecution examined Qamar Din complainant as P.W. No,7 described in the record as 10 perhaps due to inadvertence. He has deposed the facts as stated above and according to him after making necessary enquiries when he discovered that cheque issued in the name of Pirwani has been received by Ashraf Ali, he informed Pirwani and then filed the report.
21. ' Trial Court examined S.H. Habib Hussain Zaidi as C.W.
4. He deposed that he was from Registration Office. According to him National Identity Card Exh.6/A had been issued from his office with registration No, 512-47-102438 in the name of Niaz Muhammad son of Khan Akber but subsequently this card had been tampered with and in it No, 7 was converted into 5 and signature and photographes had been replaced.
22. ' Next witness examined is Shahid Hussain, Sub-Inspector of F.IA. As P.W.8 but in the record number shown is 11. According to him he registered F.I.R. Exh.13/A, searched house of Ashraf All but could not secure anything. He could not arrest Ashraf Ali who absconded but he arrested appellant Zeeshan Akhtar Zaidi and Mrs. Tahira Ashraf.
23. ' Trial Court recorded statement of appellant Zeeshan Akhtar Zaidi under section 342, Cr.P.C.
24. Appellant has admitted that he introduced Ashraf Ali in the Bank to open the account and he did so for the reason that Ashraf Ali represented to him that he was G.H. Pirwani and subsequently produced National Identity Card in support of that claim. Appellant also admitted having signed opening account form Exh.2/A. He also admitted that Ashraf Ali who was introduced by him to the Bank as G.H. Pirwani issued two cheques Exhs.2/F and 2/F-1 for Rs,2,73,000 and Rs,3,00,000 signing the cheques as G.H. Pirwani and received the amounts of these two cheques from Nazimabad Branch of Allied Bank. Appellant produced three witnesses in defence.
25. ' D.W.1 is Shah Aminuddin. He deposed that he made shoes. He was shown photograph Exh.6/A and stated that it was photograph of G.H Pirwani who had placed an order for shoes with him. He produced that order as Exh.15/A. D.W.2 is Saleem who is also shoe-maker. After seeing photograph on Exh.6/A, this witness deposed that the photograph was that of G.H.Pirwani who informed him that he exported shoes. Pirwani also visited factory of this witness and took samples of shoes.
26. Pirwani did not give him advance, so he did not make shoes for him. This witness also stated that he met the appellant at Customs House and gave him visiting card and enquired from him whether he could export shoes and the appellant replied that if his work was satisfactory, he could do so. This witness gave his visiting card to the appellant who came to him after some years and informed him that one person, who impersonated as Pirwani and was not Pirwani had played a fraud with Bank. D.W.3 is Muhammad Ilyas, who has a shop of Supari' at Soria Bazar. He was shown identity card Exh.6/A and stated that photograph in that card was of G.H. Pirwani. He further deposed that he had known him as such for the last 12/13 years. This witness further stated that he used to visit Customs House in connection with export business and met appellant there. Appellant told him about fraud committed in the Bank by a person who posed as Pirwani but was not Pirwani.
27. This witness then offered to give his evidence.
28. 'We have heard Mr. Azizullah Sheikh, Advocate for the appellant and Mr. Abul Khair Ansari for A.-G., Sind for the State. On the merits of the case and appraisement of evidence Mr. Shaikh s'ibmitted that prosecution has not produced any evidence to prove or show that appellant who is an officer in Customs knew Ashraf Ali as Ashraf Ali and aided and abetted him in his act of personation in which Ashraf Ali posed as G.H. Pirwani and succeeded in cheating the Bank. Witnesses who have been examined by the prosecution from Customs Department have not implicated the appellant at all. P.W. 3 is Shahnawaz Shah who was Clerk in the Account Section of Customs Collectorate. He has deposed about the order of refund and the fact that Ashraf Ali was holder of power of attorney of G.H. Pirwani and that power of attorney did not authorise Ashraf Ali to withdraw money from Customs. Ultimately cheque was issued in favour of G.H. Pirwani. About the present appellant this witness said nothing to show any part played by him. He admitted that appellant was appraiser in Customs but he was not aware where he was posted at the time of either auction of goods or the order of payment. This witness admitted in questions to the Court that wife of Ashraf Ali changed the address of G.H. Pirwani but did not say whether appellant had anything to do even with that order. Prosecution produced P.W.4 Aftab Ahmed Siddiqui who was Superintendent of Account Section in Customs. This witness deposed about change of address of G.H. Pirwani in the relevant papers by wife of Ashraf Ali. This witness also has not said a word against the appellant.
29. ' C.W.1 Mrs. Tahira Ashraf admitted in her evidence that she went to the Customs House and she changed the address of G.H. Pirwani in the matter of refund and substituted address of her husband. She claimed that she did so for the reason that G.H. Pirwani had signed power of attorney in favour of her husband. Now so far the appellant is concerned, this witness stated that she knew him and had met him at the Customs House on one or two occasions in connection with sale proceeds which were to be refunded. Reference made by this witness to the appellant in the trial Court was casual in natu, e and she has not implicated the appellant in support of the prosecution case. She has claimed that only once or twice she had met him. In the Customs House but she has not said in what way his help was sought. In fact according to prosecution case, the same was being dealt with in routine matter except that this witness Mrs. Tahira Ashraf had changed the address of G.H. Pirwani to that of her husband and the Customs Authorities had issued cheque in the name of G.H. Pirwani. Perhaps at that stage this step was not considered as having been taken with mala fide intention because G.H. Pirwani was abroad and there was already power of attorney in favour of Ashraf Ali. Even in this act this witness has not implicated appellant as having made any contribution to it. In cross-examination this witness was confronted with identity card Exh.6/A and she had admitted that this card is issued in the name of G.H. Pirwani but photograph contained therein is not of G.H. Pirwani but of her husband. Plea taken by the appellant is that he was misguided by Ashraf Ali who represented to him that he was G.H.
30. Pirwani. Further plea taken by the appellant is that Ashraf Ali gave him his identity card, which is on the record as Exh.6/A in which there is photograph of Ashraf Ali but the card is in the name of G.H.
31. Pirwani. In this context, it would be pertinent to point out that P.W.1 Syed Misbahul Islam, who is Manager of Allied Bank, Nazimabad Branch stated in his evidence that at the time when appellant introduced G.H. Pirwani for the purpose of opening account, there was a lady with him, who was also introduced as Mrs. Pirwani. When this witness Mrs. Tahira Ashraf was examined in the Court as Court-witness, she did not state that she was present in the Bank at the time of opening of account by her husband in the name of G.H. Pirwani and was introduced by appellant to the Bank Manager as Mrs. Pirwani. No such question was asked even by the trial Court as this witness was examined as Court-witness.
32. ' C.W.2 Fateh Muhammad, Assistant Collector has not said anything against the appellant. Similarly C.W.3 Naseem Afzal from Registration Office and C.W.4 S.M. Habib Hussain Zaidi also from Registration Office have not implicated appellant. Appellant does not dispute the fact that he introduced Ashraf Ali to the Bank Manager for the purpose of opening account in the name of G.H.
33. Pirwani. Appellant has claimed that he did so because he was under the genuine impression that Ashraf Ali was G.H. Pirwani because he represented to him as such and further produced National Identity Card which confirmed his plea that Ashraf Ali was G.H. Pirwani. Appellant has produced the defence witnesses who have testified the fact that Ashraf Ali has been personating before them as Pirwani. Now it is for the prosecution to produce evidence in order to show that appellant had knowledge of the fact that Ashraf Ali was unlawfully personating as Pirwani and in spite of such knowledge appellant aided and abetted him and introduced him in the Bank as G.H. Pirwani so that the Bank should be cheated and fraud be committed. Prosecution has failed to prove such evidence. Prosecution has produced witnesses from Registration Office who are C.W.3 Naseem Afzal and C.W.4 S.M. Habib Hussain Zaidi from the Registration Office. According to these witnesses original National Identity Card was issued to some other person but subsequently the same was tampered with and the name and photograph were changed. There is no evidence that appellant was also al party to this forgery of identity card.
34. ' It was urged before us by the learned counsel for appellant that in this very case Mrs. Tahirs Ashraf Ali was on trial and was acquitted vide order dated 20-10-1986 passed under section 265-K, Cr.P.C., whereby she has been acquitted. Case against appellant is also more or less on the same lines and identical to that against this lady as such the appellant should also be acquitted. We have perused this order and according to this order it was alleged by the prosecution that she aided and abetted her husband in the act of fraud committed with Bank but in support of the charge prosecution produced evidence which was inadequate and unsatisfactory. In this context, evidence produced was that she went to Customs House and changed the address of G.H. Pirwani to be substituted by the residential addres of her husband Ashraf Ali. Secondly that she was introduced in the Bank at the time of opening of account by her husband Ashraf Ali in the name of G.H. Pirwani as Mrs. Pirwani and she kept quiet and did not raise any objection from which an inference can be drawn that she was part of preconcert and was privy with act of fraud. This order of acquittal has not been challenged, rather it can be said that in the relevant special law, there is no provision for filing an acquittal appeal. When Mrs. Tahira Ashraf appeared in the Court as Court- witness she admitted having changed the address and gave reason that she did so because power of attorney was in favour of her husband. No further questions were asked and she was allowed to do so by Customs Officials. In her deposition she has not implicated appellant but only stated that she had met him once or twice in the Customs House. She did not say that appellant was also a party to the commission of fraud at any stage. She did not say that appellant had helped her in getting the address changed in the papers relating to refund. In fact it is not the case of the prosecution that appellant was present at the time of change of address and assisted.
35. Strangely enough no question was put to this witness when she was available in the box in the trial Court as Court-witness with regard to the fact that she was present in the Bank when account was opened by her husband and she was introduced as Mrs. Pirwani. Evidence produced by the prosecution on this point is, therefore, not free from inherent defects and infirmities.
36. Second point urged on behalf of the appellant is that Ashraf Ali had not only cheated the Bank but had also cheated the appellant inasmuch as he represented to the appellant that he was G.H.
37. Pirwani and produced in support of such claim fake identification card. Trial Court examined two witnesses from the office of Registration and it has been revealed that original card was issued to some other person but then interpolation was made in number and signature and photograph which were substituted to show that Ashraf Ali was G.H. Pirwani. No evidence was produced by the prosecution that appellant had fore-knowledge that Ashraf Ali was not G.H. Pirwani and National Identity Card produced by him was fake.
38. ' Mr. Shaikh also argued that National Identity Card Exh.6/A on the record is punched which shows that Ashraf Ali has used it for travel abroad in the name of G.H. Pirwani from which an inference can be drawn that he has been personating as G.H. Pirwani since a long time.
39. ' Mr. Shaikh has pointed out observation in the impugned judgment at page 85 of the paper book which is reproduced as under:- "It is possible, though there is no evidence on the record that the accused had some interest in the refund amount which was payable to G.H. Pirwani and it was for this purpose that he took the trouble of taking Ashraf Ali to the bank and there introducing him as G.H. Pirwani. In the absence of any vital interest, it is incomprehensible that a Customs Officer would take the trouble of taking a person, whose real identity was not known to him, to the bank for purposes of opening an account and cashing a refund cheque for a very large amount and that too on a working day and during office hours."
40. ' It is submitted by Mr. Azizullah Shaikh that this observation is not based on legal evidence but is based upon presumption. It is the duty of the prosecution to prove the case against the accused beyond doubt and law does not allow to presume anything in favour of prosecution in the absence of legal and conclusive evidence in support of the charge. It is further submitted by the learned counsel that no evidence is produced by the prosecution to show that appellant played any positive role in the act of changing address of Pirwani in the Customs House. So far introduction in the Bank of Ashraf Ali at the time of opening of accJunt is concerned, it is admitted by the appellant that he did so but then plea is taken by him that he did so on account of the fact that Ashraf Ali had always represented to him that he was Pirwani and he was satisfied about this fact for the reason that Ashraf Ali had produced national identity card with photograph of Ashraf All as Pirwani. In such circumstances, appellant was under the impression that Ashraf Ali was Pirwani.
41. Prosecution has produced no evidence to falsify this assertion. Prosecution has produced no evidence to show that in Customs dealings appellant knew Ashraf Ali as Ashraf Ali and not as Pirwani. None of the witnesses produced by prosecution has said so.
42. ' In the impugned judgment, appellant has been convicted for offences under sections 419 and 403, P.P.C. Read with section 109, P.P.C. Section 419, P.P.C. Relates to punishment for cheating by personation and contemplates that whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Section 103, P.P.C. Relates to dishonest misappropriation of property. According to the prosecution case both these offences are alleged against Ashraf Ali who could not be put on trial for the reason that he had absconded and subsequently it was disclosed to the Court that he had died abroad. Wife of Ashraf Ali admitted before the trial Court that the cheques in question were encashed by her husband and she could not say further what he did with them. Appellant is not accused of substantive offences as charged under sections 419 and 403, P.P.C. But has been convicted for both these offences under section 109, P.P.C. On the ground of abetment. Abetment is defined under section 107, P.P.C. To the effect that a person would be said to have abetted firstly that he instigates any person to do that thing or secondly engages with one or more other persons in any conspiracy for doing that thing and thirdly he intentionally aids, by any act or illegal omission in doing that thing. In order to prove the charge under section 109, P.P.C., it is the duty of the prosecution to produce evidence of conclusive nature in order to prove the ingredients of one or two of these mentioned in the definition of abetment as stated above. In this context, reference can be made to the case of Naseebullah Khan and another v. State PLD 1986 Kar.
417. In the instant case prosecution has not produced evidence in support of any one of the ingredients of abetment specified in section 107, P.P.C. Evidence produced by the prosecution in this case as discussed above is unsatisfactory and does not falsify plea of appellant that he knew Ashraf All as Pirwani and introduced him in the Bank as such his belief was confirmed by production of identity card by Ashraf Ali in which he had been shown as Pirwani. Not only that but appellant has produced three defence witnesses who deposed about the fact that Ashraf Ali went on personating as Pirwani before them. Defence plea of the appellant, in the absence of its having been rendered false, has made case of the prosecution doubtful.
43. ' For the facts and reasons stated above, we are of the considered view that prosecution has failed in its duty to prove case against appellant beyond doubt. We give benefit of doubt to the appellant and set aside his conviction and sentence. In the result appeal is allowed. Appellant be set at liberty if he is not wanted in any other case.