1. ' SYED HAIDER ALI PIRZADA, J.---This appeal has been filed by the appellant under section 410, Criminal Procedure Code read with section 10 of Ordinance (IX of 1984) challenging the judgment, dated 18-11-1990 passed by the learned Presiding Officer, Special Court (Offences in Banks) at Karachi, whereby the appellant was convicted under section 408, P.P.C. And sentenced to suffer R.I.
2. For one year and to pay a fine of Rs,1,000 or in default of payment of fide, to undergo further R.I. For two months. He was also convicted under section 468, P.P.C. And sentenced to suffer R.I. For two years and to pay a fine of Rs,2,000 or in default of payment of fine to undergo R.I. For three months.
3. The substantive sentences were directed to run concurrently. While the sentences in lieu of non- payment of fine, were directed to run consecutively.
4. ' The brief facts of the prosecution case are that on 13-7-1987 Mr. Muhammad Umer, Manager of Muslim Commercial Bank Limited, Nishter Road Branch, Karachi sent a written complaint, to the Director, Federal Investigation Agency, Bank Circle, Karachi which was entrusted to Muhammad Hashim Qureshi, Inspector F.I.A. P.W.7 who investigated the case and after his transfer, the case was entrusted to Naimatullah Khan, Inspector F.I.A. P.W.8 for further investigation and he challancd the present appellant. The following charge was framed against the appellant by the learned Presiding Officer:--- "I, Justice, (Retd.) ZA. Channa, Presiding Officer, Special Court (Offences in Banks) at Karachi, hereby charge you accused Naseem Ahmed son of Haji Ali Muhammad as follows: ' That in the year 1979 you were working as Accountant in Nishter Road Branch of M.C.B.
5. ' That on or about 20-9-1979 you dishonestly issued a cheque book containing 10 cheques bearing Nos. 987081 to 987090 on a cyclo-styled requisition application bearing the forged signature of Islamuddin, holder of A/C No,1479 at the said Branch; ' That you either forged the signature of account-holder Islamuddin on the said requisition application or knew or had reason to believe that it was a forged document; ' That from the above cheque book, so dishonestly obtained/issued by you, eight cheques for a total amount of Rs,35,142 were drawn on the said Account No,1479, all bearing the forged signature of A/C holder Islamuddin; ' That you accused dishonestly passed seven out of the eight forged cheques, having either forged the signatures thereon of account-holder Islamuddin or knowing that the signatures thereon were forged; ' That the writings on the above eight cheques are in your hand; ' That you dishonestly received/misappropriated the amounts of the above 8 cheques, i.e, a total amount of Rs,35,142; ' That you admitted your guilt and your father, Haji Ali Muhammad, deposited in the Bank the misappropriated amount; ' That you have thereby committed offences punishable under sections 468/471/477-A, P.P.C. And within the cognizance of this Court; ' And I hereby direct that you accused be tried by this Court on the said charge."
6. ' The appellant pleaded not guilty to the above charge.
7. ' At the trial prosecution examined Muhammad Umer, Manager, Nishter Road Branch P.W.1 who has produced the written report as Exh.2-A, Muhammad Iqbal Usman, the then Manager of Nisther Road Branch P.W.2, who has produced Account Opening Form of Account Holder Islamuddin as Exh.3-A, specimen signatures as Exh.3-A-2, who has stated that Islamuddin had contacted him in February 1985, about his account as on that date the balance in his account was Rs,4,251. He completed pass book of Islamuddin. Islamuddin had complained to him that there appears to be shortage in his account and the balance must be much more. On enquiry from him Islamuddin denied issuance of fresh cheque book to him in 1979. He has produced cheque book requisition slip as Exh.3/B. Islamuddin denied to have signed the cheque book requisition slip or that he had been issued a fresh cheque book. He has produced 8 cheques as Exhs.3/C-1 to 3/C-8. He has also produced three cheques which had been issued between 1973 and 1986 as Exhs.3D-1, 3 D-2 and 3D-3. He has produced pass book of Islamuddin as Exh.3-E. He has produced six vouchers under which the appellant had deposited the amount defalcated as Exh.3F-1 to 3F-6. He has also produced call deposit receipt alongwith a letter of Ali Muhammad, the father of appellant as Exhs.39-1 and 39-2, statement of account as Exh.3/4, photo copy of letter forwarded to the Inspection team as Exh.3-I, the deposit slip as Exh.3-J, Zulfiqar Clerk/Accountant in Nishter Road Branch P.W.3, Mohsin Abdullah, Store Keeper at Nishter Road Branch P.W.4, Abdul Shakoor token clerk P.W.5, Shaikh Muhammad Din, Handwriting Expert P.W.6 who has produced report as Exh.7/B, prepared by Zafar Mahmood, Handwirting Expert, who had opined that disputed signatures purported to be of Islamuddin did not tally with the routine signature of Islamuddin as Exh.7/D. He has produced comparative chart as Exh.7/E, specimen handwriting of appellant as Exh.7/A, cheque issued by Yousufali as Exhs.7/C-1 and 7/C-2, Muhammad Hashim Qureshi, Inspector F.IA. P.W.7, who has produced formal F.I.R. As Exh.8/A, Mashirnama of seizure of documents as Exhs.8/B-1 to 8/B-6, Naimatullah Khan Inspector F.IA. P.W.8.
8. ' After the close of the prosecution case the statement of the appellant was recorded in which he has admitted that he was accountant in the above bank during the period but he did not misappropriate any amount. He has admitted that he had issued a cheque book as the same used to remain in his custody, but he did not forge any signature of Islamuddin on any requisition slip. He has admitted that he has passed some of the cheques but he has denied that on any of these cheques, he had forged the signature of Islamuddin. He admitted that he was called by the President of the Bank who told him that if the loss caused to the bank is made up, then they shall withdraw the case which they have filed against him. Upon the above assurance of the President his father had deposited Rs,33,000 with the bank which was kept in call deposit account. After deposit of the above amount he was dismissed from the service of the bank. The signatures on the reverse of the eight cheques, were obtained by the cashier; who makes payment at the counter, and who also makes payment under the cheques. He has further stated that only the date and the account number in the slip are in his handwriting. The account-holder was an illiterate person, therefore, he had requested him to fill up the requisition slip because the cheque book was not available with him. This requisition slip bears the signature of Islamuddin. In the presence of this slip, he had issued cheque book to Islamuddin bearing No,987081-90. The cheque numbers of the cheque book and the date and the months "issued" are in his hand.
9. ' The learned Presiding Officer after taking into consideration the evidence produced by the prosecution and the statement of the appellant has convicted the appellant as described above, And the present appeal is directed against the said conviction.
10. ' We have heard Mr. Muhammad Majeed Jeelani, learned counsel for the appellant, Mr. Syed Ashiq Ali Zaidi, learned counsel appearing for the Federal Government and Mr. Muhammad Zubair Qureshi, learned counsel for the State and have gone through the R&P of the case.
11. ' Mr. Muhammad Majeed Jeelani has urged the following contentions:-
1. The only basis of the judgment under appeal is report Exh.7/D of the Handwriting Expert, Zafar Muhammad who never came in the witness-box and whose report is inadmissible in evidence and should not have formed the basis of conviction of the appellant. On the other hand Mr. Syed Ashiq Ali Zaidi, learned counsel for the Federal Government has submitted that the counsel appearing for the appellant did not insist to cross-examine him and on his statement the evidence of Zafar Muhammad was dispensed with.
12. ' The question which we have to decide is whether the prosecution can be said to have established that the signatures of Islam uddin on cheque book requisition slip Exh.3/B and cheques Exhs.3/C-1 to 3/C-8 were forged by the appellant. The learned counsel for the Federal Government relies on the report Exh.7/D issued by the Handwriting Expert Zafar Mahmood. We are afraid, we cannot permit the learned counsel for the Federal Government to place any reliance on the report of Zafar Ahmad which appears at Exh.7/D, because the opinion expressed in that report cannot be treated as legal evidence. A report is nothing more than a mere opinion of the person/handwriting expert who purports to have issued the report (Exh.7/D), and opinion is not evidence until the person who has given the particular opinion is brought before the Court and is subjected to the test of cross- examination. The report of the handwriting expert Zafar Mahmood, without more, not being evidence and section 510 of the Code of Criminal Procedure, which contains special rules of evidence being inapplicable to such a report, the reliance by Mr. Syed Ashiq Ali Zaidi thereon is, in our opinion, misconceived.
13. ' Mr. Jeelani has submitted that the learned Presiding Officer was in error in bringing on the record and using as evidence the report of the handwriting expert. This point was considered by the Honourable Supreme Court in Allah Ditta v. The State PLD 1958 SC (Pak.) 290. The Honourable Judges of the Supreme Court, while dealing with this point, observed in the course of the judgment as under:--- "It is also contended that both the trial Judge as well as the High Court were in error in accepting the evidence of a witness Lala,. Recorded in the committing Court, as evidence in the case, without Lala being produced and examined as the law ordinarily requires. The Investigating Police Officer, Sh. Niamatullah at the conclusion of his examination-in-chief made the statement that 'Lala P.W.
14. Could not be served in spite of my best efforts'. He did not say that he himself attempted in serve summons upon Lala and this would indeed have been an extraordinary proceeding for a Sub- Inspector of Police, since the work is ordinarily entrusted to constables. No constable was produced to say that he had been given the summons to serve on Lala or that he had been unable to trace Lala so as to effect service upon him. The Public Prosecutor requested that Lala's evidence in the committing Court should be transferred to the record of the trial under section 33 of the Evidence Act. Counsel appearing for the accused persons stated that he had no objection if the request was granted, and thereupon the trial Judge made an order admitting the evidence in which he declared that Lala's evidence could not be procured 'without delay and unnecessary adjournment' and he noted particularly that the defence counsel had no objection to the course which he was asked by the Public Prosecutor to take. Accordingly the evidence was read in the case as evidence against the accused. It is contended with great force that the trial Court misapplied section 33 of the Evidence Act and on this point reference was made to the. . Observations of the Judicial Committee in the case of Chainchal Singh (LR (72) IA 270). The action of the trial Judge was not supported before us by the Advocate-General of West Pakistan, and we consider that it was clearly not within the provisions of section 33 aforesaid."
15. ' We are in respectful agreement with the observations of their Lordships of the Supreme Court in the case, referred to above and hold that Shaikh Muhammad Din was not the proper person to prove that Zafer Mahmood was not available for evidence at the trial because Shaikh Muhammad Din was never entrusted with summons to be served on Zafer Mahmood. The report prepared by Zafer Mahmood could be admitted into evidence under section 32(2) of the Evidence Act (Article 46(2) of the Qanun- e-Shahadat, 1984) being statement which he prepared in the discharge of his professional duty, provided it was shown that the witness could not be found or his attendance could not be produced without unreasonable delay or expense. This requirement of law was not adequately satisfied in this case. The contents, therefore, of the report issued by Zafer Mahmood cannot form the basis of the finding that the disputed signatures purported to be of Islamuddin or the disputed signatures of Islamuddin were forged.
16. ' Mr. Jeelani has contended that except for the report Exh.7/D of Zafer Mahmood there is no other oral/documentary circumstantial evidence to connect the appellant with the commission of offence punishable under section 468, P.P.C. And the evidence of the handwriting expert being weak type of evidence, the conviction cannot be sustained. Conversely Mr. Zaidi has supported the judgment of the trial Court on the ground that the handwriting expert has fully implicated the appellant.
17. ' The question arising in the case is not a simple issue of fact on which a finding can be recorded only because the witnesses examined in support of it are believed or disbelieved. We have allowed the learned counsel appearing before us to address us at length on the question whether the opinion, the evidence, such as we have in present case, is sufficient to warrant a definite finding that the appellant has forged the signatures of Islamuddin on the cheque book requisition slip and eight disputed cheques. This course was rendered more necessary in view of the learned Presiding Officer's view of the, evidence as disclosed by his judgment. To take the evidence of the witnesses other than the handwriting expert P.W.1 Muhammad Umer, who was working as Manager, Nishtar Road Branch of MCB from 10-2-1987 upto the date of recording of his evidence. He has no personal knowledge of the alleged defalcations. P.W.2 Muhammad Iqbal Usman was Manager from April 1984 upto February, 1987. The appellant was not working in the Nishter Road Branch during the period he was Manager of the Branch. P.W.3 Zulfiqar joined M.C.B. In the year 1961 as clerk. He was posted as accountant in the Nishter Road Branch of M.C.B. In the year 1974 and in the year 1975 he became Manager of that Branch and remained as manager uptil 1980. In the year 1979, the appellant was posted as accountant in the said Branch. He has stated that cheques Exhs.3/C-1 to 3/C-5 and 3/C-7 and 3-C-8 bear the signature of the appellant and the appellant passed five cheques Exhs.3/C-2, 3/C-3, 3/C-4, 3/C-7 and 3/C-8 with his single signature and the appellant has also counter-signed the cheques Exhs.3/C-1 and 3/C-5. The witness has signed on the cheques Exhs.3/C-1 and 3/C-5 in addition to the signature of the appellant. The witness has passed cheque Exh.3/C-5 with his single signature. He has stated that he had signed on cheques Exhs.3/C-1 and 3/C-5 and had passed cheque Exh.3/C-6. He has admitted in his cross-examination that he had compared the signatures on the three cheques with the signature on the specimen signature card of the account-holder before signing these cheques. According to him the signatures on the three cheques are similar to the signatures on the account opening form and he signed them. P.W.4 Mohsin Abdullah was working as Store-keeper at the Nishter Road Branch of M.C.B. Although he was posted as Store-keeper, he was asked by the manager to work as Token Clerk and to issue tokens to persons presenting cheques for encashment. He has stated that three cheques being Exhs.3/C-5, 3/C-6 and 3/C-7 were presented to him at the counter for encashment and he had issued tokens in respect of the said cheques for payment, they bear his initials. According to him the person to whom he issued tokens in respect of the three cheques had signed on the reverse of the three cheques in his presence. P.W.5 Abdul Saboor was working as Token Clerk in the year 1979.
18. He has stated that three cheques Exhs.3/C-1, 3/C-3 and 3/C-4 were presented to him at the counter for encashment. He has further stated that the person who presented the three cheques had signed on the reverse of the cheques in his presence and he had given the bank's token to the person presenting the there cheques. This is all the evidence produced by the prosecution.
19. ' We find that the prosecution has not successfully proved that signatures of Islamuddin on cheque book requisition slip and eight cheques were bogus or forged ones and not in the handwriting of Isiamuddin. It has hopelessly failed to prove that signatures of Islamuddin were prepared or forged by the appellant and none else. No one saw the appellant signing cheque book requisition slip and eight cheques or putting thereon bogus signatures of Islamuddin. The prosecution did not care to produce persons conversant with the handwriting of the appellant to prove that the signatures of Islamuddin on cheque book requisition slip Exh.3/B and eight cheques Exhs.3/C-1 to 3/C-8 were in the hand of the appellant. The testimony of P.Ws, 2, 3, 4 and 5, evidence of Shaikh Muhammad Din, Handwriting Expert and his report Exh.7 of P.W.6 do not relate to the signatures of Islamuddin. The mere fact that the cyclostyle requisition slip for obtaining cheque book Exh.3/E is in the handwriting of appellant does not establish that signatures of Islamuddin on Exh.3/B and Exh.3/C-1 to Exh.3/C-8 were forged by the appellant.
20. ' We will now take the admission of the appellant. This admission is not in writing. It is advantageous to reproduce the relevant portion from the evidence of P.W.2 Muhammad lqbal IJsman which is as follows:--- "P.14. An enquiry was held by the Bank in respect of this matter. The enquiry was held by the inspection team. The head of the Inspection Team was Younus Cheeniwala. After the report of the enquiry team, the accused had refunded the amount of the 8 cheques which has been withdrawn from account of Islamuddin. I produce the six vouchers under which accused had deposited with the Bank the amounts defalcated as Exhs.3/E-1 to 3/F-6. The father of the accused, Ali Muhammad, had deposited an amount of Rs,33,000 in the Bank for call deposit receipt alongwith a letter addressed to the Manager, Nishter Road Branch. I produce the application of the father of accused for the call deposit receipt and his letter as Exh.3/G-1 and 3/G-2. FIA had made enquiries from me."
21. ' It is advantageous to reproduce the question put to the appellant in his statement under section 342, Cr.P.C.
22. "Q. It is alleged that you had admitted your guilt before the high officers of the bank, whereupon your father Haji Ali Muhammad had deposited Rs,33,000 with the Bank to make up partly the loss caused by you to the Bank. What have you to say?
23. A. I was called by the President of the Bank and told that if the loss caused to the bank is made up, then they shall withdraw the case which they have filed against me. Upon the above assurance of the, President, my father had deposited Rs,33,000 with the bank which was kept in Call deposit account. After deposit of the above amount I was dismissed from the service of the bank."
24. ' In the present case except the said admission there is no other trustworthy evidence to prove the charges. In his 342, Cr.P.C. Statement the appellant has stated that he had been falsely implicated in the case. He stated that he had passed some of the cheques but he denied that on any of those cheques he had forged the signature of Islamuddin. There is nothing on record to connect the appellant either with the factum of obtaining of the cheque book on forged application or drawing of eight cheques on forged signature; keeping in view the above fact if we examine the alleged admission the same does not inspire confidence as to sustain conviction solely on the above basis.
25. ' In Muhammad Luqman v. The State PLD 1970 SC 10, the Honourable Judges of the Supreme Court have laid down the following dictum:--- ' it may be said that a finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. If a case were to be decided merely on high probabilities regarding the existence or non- existence of a fact to prove the guilt of a person, the golden rule of 'benefit of doubt' to an accused person, which has been a dominant feature of the administration of criminal justice in this country with the consistent approval of the superior Courts, will be reduced to a naught."
26. ' The above dictum is applicable to the facts of the instant case.
27. For what has been discussed above, we accept the appeal and set aside the conviction and sentence. The appellant is in jail. He shall be set at liberty, forthwith if not required in connection with any other case. The amount of Rs,33,000 deposited by the father of the appellant with the bank and kept in call deposit account shall be refunded to him. If the fine has been paid by the appellant, the same shall be refunded to him.