1. ' NAZIM HUSSAIN SIDDIQUI, J.--This appeal is directed against the judgment, dated 28th February, 1998 of learned Presiding Officer, Special Court (Offences in Banks), Sindh at Karachi, whereby appellant Raja Muhammad Afzal was convicted, under section 408, P.P.C. And was sentenced to suffer R.I. 1,13) for 4 years and to pay fine of Rs,80,750 or in default thereof to suffer R.I. For further period of one year. Fine, if recovered, to the extent of loss sustained by the bank, was ordered to be paid to it as compensation.
2. ' The F.I.R. Of this case was registered on 17-10-1993 at the office of the Deputy Director, F.I.A., C.B.C, Karachi. It was lodged by Ch. Abdul Razaq, Manager of U.B.L. Korangi Township Branch, and was registered under sections 408, 468, 471 and 477-A, P.P.C. Read with section 5(2) of Act II of 1947.
3. ' The case of the prosecution, in brief, is that the appellant was posted as cashier, in above Branch of the Bank since 1-9-1992. It is alleged that in above capacity, besides other amounts, during the period from December, 1992 to February, 1993, he had received a sum of Rs,50,435 from different customers towards utility bills i,e, telephone bills. Electric bills and gas bills and failed to credit it in the accounts of M/s. Gas Company, T.N.T,, and K.E.S.C. And embezzled/misappropropriated it. The full particulars of said amount i,e, names of the depositors, date of deposit, nature of bill and the amount of such bills are given in the first information report and the charge-sheet.
4. ' The investigation of this case was conducted by Zafarul Haq Qasmi Pirzada. On 30-10-1993, he arrested the appellant and secured bank record from U.B L. Korangi Branch. He had forwarded questioned documents, alongwith specimen signatures and handwriting of appellant, to the Handwriting Expert, F.I.A. Head Quarter, Islamabad. On 17-1-1994, the investigation was entrusted to S.I. Agha Zafar Abbas, who submitted the charge-sheet before the concerned Court.
5. ' Necessary charge under sections 408, 468, 471 and 477-A, P.P.C, read with section 5(2) of Act-II, 1947 was framed against the appellant ' At trial, the prosecution examined Abdul Razaq, Shaukat Hussain, Manzoor Hussain, Muhammad Raliullah, Muhammad Zafar Abbas, Syed Sabir Hussain, Sardar Bahadur Khan and Zafarul Haq Qasmi Pirzada..
6. ' The appellant, in his statement recorded under section 342, Cr.P.C. Has denied the prosecution's allegations and claimed to be innocent. He denied his alleged signatures on the relevant documents and also the allegations of misappropriating said amount. He also denied to have confessed the guilt before his superior officers. According to him, he was removed from service at the instance of rival Union of the Bank. Neither he examined himself on oath nor any witness in defence.
7. ' On assessm ent of the evidence brought on record, learned trial Judge convicted the appellant and sentenced him as mentioned earlier.
8. ' In order to appreciate the evidence brought on record, it would be advantageous to give a short resume of the prosecution evidence.
9. ' Complainant Abdul Razaq was the Manager of said Branch of the Bank during the period in question. He deposed that, during said period, only one cashier was working and he was the appellant. He stated that it was the duty of .The appellant to receive the cash of utility bills. Giving the details, he states that the procedure of receiving cash of utility bill is that at first the bill is presented to scroll clerk, who after entering it in the relevant register, gives it to the cashier, who receives cash and sends it to the utility incharge officers. The witness mentioned that, on 9-1-1993, one customer namely, Muhammad Siddiq approached him, showed a Sui Gas Bill, complaining that despite payment of the amount of last month the arrears were still shown in the new bill The amount of said bill was Rs,6,130. The witness called the appellant, asked him to deposit the amount as claimed by the customer, the appellant admitted his fault and deposited said amount. He deposed that the appellant, ,besides depositing the aforesaid amount, also admitted his guilt through a letter, which is on record at Exh.4-A. According to the witness, this letter is in the handwriting of the appellant and bears his signatures. The witness also deposed that in the first week of February, 1993 another customer namely, Wazir Ahmed approached him and complained that he had deposited the gas bill of previous month of Rs,2,020 but the new gas bill showed said amount as arrears. Again, he called the appellant, who accepted to have received said amount and stated that said amount could not be deposited as the slip was misplaced. On 16-9-1993, another customer Mst, Najma Begum approached the witness and gave him an application alongwith a paid telephone bill and stated that she had deposited bill of telephone for the month of April, 1993, but in the new bill its amount was shown as arrears, Another customer Mansoor Hussain made similar complaint about the telephone bill of Rs,4,272. Likewise, in the month of 1993.
10. The Manager of M/s. Apperals (Pvt.) Limited, approached. The witness and complained that they had paid K.E.S.C. Bill of Rs,19,521 but said payment was not shown in the relevant bill/record. Sui Southern Gat Company also made similar complaint and so also another customer Shabana Umer.
11. ' The witness stated that the appellant was charge-sheeted by the competent authority and he had admitted to have misappropriated, the aforesaid amount. The witness also stated, after holding proper enquiry, the appellant was dismissed from service.
12. ' In cross-examination, the witness admitted that prior to the posting of the appellant there were two cashiers in said branch. He stated that, within 'due date' of utility bills, there was always rush of work and approximately the amount of 500 to 700 bills was collected per day. He stated that on other dates, not being due date, generally the amount of 150 to 200 utility bills was deposited in one day. He also stated that first case of misappropriation by the appellant came to his notice, was of customer Muhammad Siddiq. He denied the suggestion that he himself collected utility bills directly from customers and latter on delivered the same to the appellant. A suggestion was given to him that he had forcibly obtained written confession (Exh.4-A) from appellant, which he denied.
13. He also denied the suggestion that he had lodged complaint against the appellant under the influence of Labour Union. He also denied the suggestion that Exhs. (4/E-2 and 4/F) do not bear the signatures of the appellant. He also denied the suggestion that the amount of the aforesaid utility bills was received by him directly from the customers. He claimed that he was familiar with the signatures of the appellant, as the latter worked under him since November, 1992 ' P.W. Shaukat Hussain deposed that in December. 1992 he was posted at said Branch as Officer Grade-III and at that time the complainant was the Manager and the,appellant was serving as a cashier there. He stated that it was duty of the appellant to receive the utility bills. He deposed that on 15-12-1992 one Abdul Rasheed the Proprieter of Mehboob Sweetmeat Mart, appeared and showed him a paid gas bill of Rs,5,354. He also stated that subsequent bill was also showed to him, which included arrears of previous bill. He stated that the bill (Exh.4G/4) bears initial of the appellant. In cross, he admitted that all the three initials or the signatures at Exhs.4-G/2, 4-G/3 are different. He, however, categorically stated that Exhs.4-G12, 4-G/3 bear the initials of the 'appellant.
14. ' P.W. Mansoor Hussain stated that on 3-2-1993 he had deposited telephone bill of Rs,4,272.
15. According to him, in the next bill said amount was included. The evidence of P.Ws. Rafiullah, Muhammad Zafar Abbas, is also like the above witnesses, disclosing the amount of their bills.
16. ' P.W. Sardar Bahadur an Officer Grade-II deposed that the appellant admitted before the Manager to have committed the fraud.
17. ' Mr. Naraindas C. Motiani, learned counsel for the appellant contended that learned trial Court had failed to appreciate the evidence and reached wrong conclusion. He argued that alleged misappropriation was not proved by the prosecution, yet, learned trial Judge convicted the appellant on the basis of evidence, which was inadmissible He submitted that the charge as framed was ambiguous and necessary particulars relating to the names of the depositors, dates of deposit, and nature of bills were not provided to him.
18. The complainant in his deposition provided necessary details about each and every aspect of the case and held the appellant responsible for said misappropriation. P.Ws. Shaukat Hussain and Sardar Bahadur Khan, who had also worked in said branch. Have fully implicated the appellant for the unlawful acts on his part. It is significant to note that no personal enmity was alleged against any one of them nor any material was brought on record, which could falsify or create doubt about their positive statements. From the testimony of the customers. It was established that despite the payment of the amount in question, it was shown in the subsequent bills as arrears. It is established that as a bank employee the amount was entrusted to the appellant, which he with dishonest intention misappropriated it. In cross-examination, a suggestion was given to the complainant that the appellant was forced to confess his guilt and Exh.4-A was the result of it.
19. Impliedly, it meant that the signatures of the appellant on said documents were admitted. Its contents reveal the appellant had retained the amount of two bills, which he later on deposited.
20. Learned trial Judge had observed that, only the evidence of the complainant, was sufficient to establish the guilt of the appellant. We also hold the same view.
21. ' Learned counsel laid much stress on the fact that the customers namely, Mansoor Hussain, Muhaminad Rafi-Ullah, and Zafar Abbas, have not implicated the appellant in the commission of this crime, as they clearly stated that they could not recognise the person to whom they had paid the amount of their bills at the counter of said branch. This evidence by itself does not exonerate the appellant. It was not possible for each customer to have recognised the person sitting on the other side of the counter. Besides, 500 to 700 bills, per day, were deposited during 'due date' and manifestly the prime object of every customer would have been to deposit the amount as early as possible. It was not expected, from those customers to have made inquiries about the person, who was receiving the amount on behalf of the Bank. The evidence of the customers is material only to the effect that they had deposited the amount in question.
22. ' Learned counsel for the appellant strenuously argued that the handwriting expert's letter dated 22-1-1994 clearly mentioned that identity of the signatures could not be individualised, as such, no opinion about authorship of 'questioned signatures' could be expressed. According to learned counsel, this fact by itself was sufficient to establish the innocence of the appellant. It is true that report of the handwriting expert is in above terms. It is pertinent to point out that said report is neither in positive nor in negative. On the contrary, the issue has been left open. The followings are the mode of proving the handwriting:
(1) By calling as a witness a person who wrote the document; or
(2) saw it written, or signed; or
(3) who is qualified to express an opinion as to the handwriting;
(4) by a comparison of the handwriting;
(5) by admission of the person against whom the document is tendered;
(6) by expert evidence (expert opinion is only relevant, but it is for the Court to determine whether a writing is genuine or not);
(7) by internal evidence afforded by the contents of the document; and
(8) if signature or handwriting is to be proved by circumstantial evidence, the Court should be satisfied that the circumstantial evidence irresistibly leads to the inference that the person in question must have signed or written it."
23. ' In the instant case, it is proved that the complainant, P.Ws. Shaukat Hussain and Sardar Bahadur Khan, having served in the same Branch were familiar with the handwriting and signatures of the appellant. They had seen him writing and signing the documents. They are qualified to express their opinion as to the handwriting of the appellant. The circumstantial evidence provides tangible proof that the disputed signatures are of the appellant. The complainant categorically stated that Exh.4-A is in the handwriting of the appellant and also bears his signatures. It being so, we hold that the 'disputed documents' bear his signatures, although in some cases he attempted to sign them unlikely.
24. ' The, appellant maintained that he was removed from service due to his Union activities. Suffice it to say that this plea was raised by him, but no evidence was led to substantiate it. After show- cause notice of the relevant Bank Authority, he had absconded from duty since 5-5-1993. It unequivocally demonstrates his involvement in said crime. Otherwise, there was no good reason to abscond away. The amount he misappropriated was the Public Money and no leniency could be shown to him. The offence was proved and he was rightly convicted by the trial Court.
25. ' On 23-4-1998 after hearing the arguments, we had dismissed the appeal alongwith the listed applications and these are the reasons for short order announced on above date.