' Appellant Muhammad Idrees, a retired Head Clerk of the Office of the Rationing Controller II, Karachi, was tried alongwith Muhammad Saeed son of Abdul Rashid Khan, Foodgrain Inspector and Muhammad Saeed Khan alias Naseem by learned Special Judge, Anti-Corruption, (Provincial), Karachi, for the offence under section 420/468/471/34, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, who found the appellant guilty for the offence under section 465, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, and vide judgment, dated 22- 11-1990 sentenced him to suffer R.I. For six months and to pay a fine of Rs,5,000 or in default to suffer R.I. For one month more. By the same judgment co-accused Muhammad Saeed son of Abdul Rashid, Foodgrain Inspector and Muhammad Saeed Khan alias Naseem were acquitted. By this appeal filed under section 10 of the Pakistan Criminal Law Amendment Act, 1958, read with section 410, Cr.P.C. The appellant had challenged his conviction and sentence.
2. On receipt of a pseudonymous application received by Deputy Director Food, Government of Sindh, Karachi, in the year 1976 that sugar was being issued from Government Godown, Landhi, Karachi, against fake permits, a departmental inquiry was ordered. Muhammad Rafique, Storage and Enforcement Officer, Karachi Region conducted the inquiry and secured 73 fake permits against which 1444 bags of sugar were released from the said godown. The inquiry revealed that the said permits were issued by the appellant, who although was working as Head Clerk had signed them as Rationing Officer. It also transpired during the course of inquiry that the price/value of 1444 bags of sugar was deposited in the State Bank of Pakistan before taking the delivery. A written report was sent to S.H.O. Quaidabad Police Station, who registered a case on 3-6-1976 (Crime No,198 of 1976) Quaidabad Police Station under section 420/468/471/109, P.P.C. During the course of investigation co-accused Muhammad Saeed Khan alias Naseem was arrested.
Thereafter the investigation was transferred to Anti-Corruption Police for want of jurisdiction, who after completing the investigation sent up the appellant and co-accused mentioned above, before Special Judge, Anti-Corruption (Provincial), Karachi, to stand trial for the offence under section 420/468/471/34, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947.
3. At the trial all the accused including the appellant pleaded not guilty. The prosecution then examined Muhammad Rafique, Storage and Enforcement Officer, Food, Karachi (P.W.1), Muhammad Sabir, Clerk (P W.2), Ahmad Saeed, Clerk (P.W.3), Shan Muhammad D.S.P. (P.W.4), Mumtaz Hussain Shah, Inspector, A.C.E. (P.W.5), and Mukhtar Ahmad, Handwriting Expert (P.W.6).
4. The appellant met the charge with a denial. His defence as unfolded by him in his written statement (Exh.143) filed alongwith his statement under section 342, Cr.P.C., which is as under:-- "I am innocent and seek justice. I was Head Clerk in Rationing Controller IL I was authorised to sign on behalf of the Rationing Controller. It was the practice even after registration of this case that the Head Clerk it the office of Rationing Controller used to sign permits issued by the Ward Rationing Officer. I hereby submit photo copy of the office order issued by the Assistant Director Food of 6- 54979, in which this fact has been mentioned.
' That I hereby categorically deny about the issuance of forged permits. I did not issue any of the permit or challan annexed therewith. Initially the local police registered the case against the private persons. As there was suspicion against me therefore, I surrendered before the Court of Sessions Judge, Karachi, whereas my application for bail before arrest was transferred to the learned Additional District and Sessions Judge, Karachi. I was granted interim bail before arrest at the fast instance and thereafter a notice was sent to the police for confirmation. The case came for hearing on 28-6-1976 for confirmation when learned A.P.P. Made a statement that "there is no case against the applicant and police does not want to arrest him, in view of this statement my application was dismissed being infructuous. A certified copy of the order is filed herewith marked "A". That the local police after completing the investigation challaned the case in the Court of Illaqa Magistrate. I was not shown an accused in that case. A certified copy is filed herewith and marked "B". That one Asghar All a Ration Shop Keeper was shown as absconder in case of Crime No,141/76 of Police Station Malir. He was also required in the Landhi case. Since he was brother of one Aslam Chaudhry and that the group of Ch. Aslam had 6 to 10 Ration Shops, therefore, he was an influential person. He mixed up with the higher officers of the Food Department and that the group also influenced the investigating agency, therefore, the Anti-Corruption Police took up the investigation and submitted challan in which Asghar All and his group was not shown as accused persons instead their names were added in the calendar of witnesses.
' The investigating agency of the Anti-Corruption Department, has partially excluded even the name of Additional City Magistrate No,22, Karachi, who had recorded the confessional statement of the accused Muhammad Saeed alias Naseem son of Muhammad Jameel. In the confessional statement it is clearly mentioned that one Abdul Khaliq was Chaukidar of the Food Department. He used to bring permits forms and that those forms were filled in at the house of Abdul Khaliq and that thereafter Asghar Ali of Ration Shop No,2261 used to be given those forms by Abdul Khaliq. A certified copy of the confessional statement is filed herewith marked as "C".
' The prosecuting agency also withheld all those witnesses whose statements were against the group of Ch. Aslam and his brother Asghar Ali. Photo copies of 161, Cr.P.C. Statements of P.Ws.
Muhammad Siddique, Muhammad Nazeer his driver Ghulam Hussain Chaukidar of Malir Godown and Hazrat Ali, Muhammad Ashraf are filed herewith marked as "D" to "D-4".
' That the opinion of the Handwriting Expert is also a part of dishonest investigation. Although specimen signatures of co-accused Muhammad Saeed alias Naseem were obtained but either they were not sent to Handwriting Expert or the opinion of Handwriting Expert has been withheld.
Moreover the expert was an employee of police, therefore, his opinion may not be considered.
' P.W. Muhammad Rafiq was an interested witness, he lodged the report without holding any inquiry. He was favouring the private group of Ration Shop Keepers. He deposed against me for favouring the private group. P.Ws. Muhammad Sabir and Ahmed Saeed had not said anything against me. So far as the evidence of P.Ws. Shah Muhammad, Mukhtar Ahmed, and Mumtaz Shah is concerned their statements are partial, therefore, they may be assessed on the basis of record.
' That I have already faced this false and concocted trial for more than 12 years. During this time I have already been retired. I have also suffered mental, sentimental, monetary losses. I only pray for justice.
' I shall lead defence. My Advocate will submit the list of defence witnesses within a week."
5. The appellant examined himself on oath (D.W.1) in disproof of the charge. He also examined Ghulam Hussain (D.W.2), and S.H. Siddiqui, Private Handwriting Expert (D.W.3) in his defence.
6. On the assessm ent of evidence available on record the learned Special Judge acquitted the appellant for the offence under section 420-471, P.P.C., but convicted him for the offence under section 465, P.P.C., read with section 5(2) of the Prevention of Corruption Act, 1947, and sentenced him accordingly. It is in these circumstances that the present appeal has been filed.
7. I have heard Mr. Sarwar Khan, learned counsel for the appellant and Mr. S.ZA. Qureshi, learned counsel for the State. I have also gone through the record of this case carefully.
8. The case of the prosecution against the appellant is based on the following allegations:--
(i) That he being a Head Clerk in the office of Rationing Controller II, although not authorised to issue sugar permits, had issued the same.
(ii) That he being the Head Clerk in the office of Rationing Controller II, had in fact signed 73 fake permits (Exhs.11 to 83), against which 1444 bags of sugar were released, as Rationing Officer.
(iii) That these 1444 bags of sugar were removed by co-accused Muhammad Saeed son of Abdul Rashid, Foodgrain Inspector (since acquitted), who in turn delivered the same to co-accused.
(iv) That the challans through which the price of these bags was deposited in the State Bank of Pakistan were signed by the appellant.
(v) That the sugar bags so removed on the basis of fake permits were not delivered to Ration Shops owners.
9. The main allegation against the appellant is that he being a Head Clerk was not authorised to issue sugar permits but still he used to issue the same. Muhammad Rafique (P.W.1) who is the complainant in this case and who had conducted the departmental inquiry in respect of the entire affair was, however, constrained to admit as follows:-- "It is correct that about one year back Head Clerk used to sign the permits on behalf of Rationing Controller."
10. Ahmad Saeed, Clerk (P.W.3) has also admitted this position in the following words:-- "I used to prepare the special permits. The permits were either signed by Assistant Ward Rationing Officer or Head Clerk."
11. The learned Special Judge has also given clear finding to this effect.
12. As regards the removal of these 1444 bags of sugar by co-accused Muhammad Saeed son of Abdul Rashid (since acquitted) and the delivery of these bags to co-accused Muhammad Saeed Khan alias Naseem (since acquitted) there is no iota of evidence on record and it was obviously for this reason that both Muhammad Saeed son of Abdul Rashid and Muhammad Saeed Khan alias Naseem were acquitted by the learned Special Judge.
13. There is also no scintilla of evidence on record to prove that the Apgar bags removed on the basis of fake permits were not delivered to the cation Shopholders. At least none out of them was examined to satisfy the Court that they had already received sugar quota against genuine permits and were not the beneficiaries of these fake permits.
14. The fact that 1444 sugar bags were removed against fake permits (Exhs.11 to 83) is proved from the record. The issue register (Exh.84) which is on record confirms this position. There is, however, no satisfactory evidence on record to prove that these fake permits and the challans through which the price of sugar bags so removed was deposited in State Bank of Pakistan bear the signatures of the appellant, who has emphatically disputed this position. Muhammad Rafique (P.W.1) is the star witness of the prosecution and his testimony, seems to have weighed considerably with the trial Court in tipping the balance against the appellant. His evidence, however, makes it clear that the appellant had never worked under him. In such a situation the possibility of a mistake cannot be ruled out. The Qanun-e-Shahadat, 1984, provides the following modes of proving signatures/handwriting:--
(i) By the opinion of the expert who can compare signatures/handwriting (Article 59),
(ii) by a witness who is acquainted with the signature/handwriting of the person by whom it is supposed to be written or signed (Article 61), and
(iii) by comparison of signature or writing with other admitted or proved signatures (Article 84).
15. The disputed documents were referred to handwriting expert and the evidence of Mukhtar Ahmed (P.W.6) is on record to show that the signatures on the questioned documents were in agreement with the specimen signatures and routine signatures of the appellant. To rebut this evidence of the expert the appellant has examined. S.H. Siddiqui (D.W.3), the Private Handwriting Expert, who had examined the disputed documents and was of the opinion that they do not bear the signatures of the appellant. There is, therefore, word against word. However, it is settled principle of law that before acting on such evidence it is usual to see if it is corroborated either by clear, direct or circumstantial evidence. It may be hazardous to base a conviction solely on the opinion of the handwriting expert without any independent corroboration.
16. The learned Special Judge has also not compared the signatures of the appellant on the disputed permits with other admitted documents available and he has convicted the appellant mainly on the evidence of Muhammad Rafique (P.W.1) with whom, as indicated above, the appellant has not worked directly. A traced forgery becomes virtually identical in outward form with the genuine signature and unless a person is fully conversant with the signature and handwriting of the other, it is not safe to base conviction upon such opinion alone. The evidence of Muhammad Rafique (P.W.1) to this effect was believed by learned Special Judge for the simple reason that he had no animus against the appellant so as to depose falsely. The learned Special Judge should have known the weighty observations made in the case of Nazir Muhammad alias Nazir Ahmad v. The State, reported in PLD 1974 Kar. 274, wherein it was remarked that the mere fact that the witness had no apparent reason to falsely implicate the accused does not render such evidence unassailable. It was further observed that there can be no general rule that the testimony of a witness having no apparent reason to falsely implicate the accused should be accepted at its face value. The truth or falsity of the statement of witness largely depends upon the circumstances which provide the guideline. To accept the evidence without considering the circumstances would be totally inconsistent with the safe dispensation of justice. It is only on the scrutiny of the evidence with the assistance of the circumstances, it is possible to say with certainty that the evidence is immune from all taints and is worthy of belief.
17. The evidence which has come on record shows that the case was initially investigated by Quaidabad Police. A separate case was also registered at Malir Police Station and during the course of investigation of that case co-accused Muhammad Saeed Khan alias Naseem had made a judicial confession in which different sets of accused were nominated. An alternate hypothesis inconsistent with the guilt of the appellant is very much there and in the event of such a possibility of two versions the settled principle of law is that the one favourable to the accused has got to be preferred.
18. The conviction of the appellant for the offence under section 465, P.P.C., read with section 5(2) of the Prevention of Corruption Act, 1947, after his acquittal on the charge under section 420, P.P.C. Is again pregnant with legal infirmity. The case of Adhi Mallick v. The State reported in AIR 1955 Cal.
473, decided by a Full Bench is a direct authority on this subject, wherein it was held that the effect of the order of acquittal of the accused in respect of charges under sections 419 and 420 was that he could not be convicted of the offence under section 465, Penal Code. In order that a charge of forgery under section 465, Penal Code can be sustained it has to be proved in the first instance that there was forgery within the meaning of section 463 which again implies that there was the making of a false document in terms of section 464, Penal Code. It follows, therefore, that there must be found fraudulent intent which is an essential ingredient of section 465, Penal Code. At page 474 it was finally observed:- "When the learned Magistrate did not find it possible to believe the prosecution case on the two charges with all their implications, the charge under section 465, I.P.C. Cannot possible survive the consequence of such acquittal."
19. Thus, from whatever point of view the matter may be looked at, the conviction recorded against the appellant cannot be sustained. The impugned judgment is, therefore, set aside and the appeal is accepted. The appellant who is on bail is discharged from his bail bond.