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Petitioner: HASSAN AHMEDULLAH VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Irfan Saadat Khan, Shahid Anwar Bajwa Title: HASSAN AHMEDULLAH vs THE STATE Case No.: Criminal Appeal No.169 of 2010 Date of Judgment:2010-07-19 Reported As: 2011 YLR 931 Result: Appeal dismissed
JUDGMENT
JUDGMENT SHAHID ANWAR BAJWA, J.---The appellant was employed at the material time as Manager of Dastagir Colony Branch of Allied Bank Limited. One Mst. Shahana Ameen was maintaining Saving Bank Account No.318203 at that branch. On 23-2-2006 she closed the account. On 6-6-2006 transfer advice for Rs.40,47,390 was prepared at the Dastagir Colony Branch and was signed by the appellant and the other authorized signatory Ms. Farhat Shahnaz. The procedure is that the advice is sent to NIFT which is Company acting for and facilitating clearing of cheques of various banks. It is claimed that at NIFT advice of the same date for an amount of Rs.92, 47,390 was received. It is every body's case that the second advice bore forged signatures of Ms. Farhat Shahnaz. It is claimed by the prosecution and denied by the present appellant that the advice bore his signatures. In any case, it is claimed that first advice was never received at NIFT and second was cleared by representative of ABL at NIFT, one Muhammad Afzal. A bank account was opened at Askari Commercial Bank, New Challi Branch by one Umer Shahzad Baig. A cheque of Rs.52,000,00 bearing No. 377955 was presented at Askari Commercial Bank on or about 5-6-2006 and was cleared on the basis of second advice referred to above. It may be pointed out that the cheque bears the number which was of the account of Shahana Ameen and she claimed that she returned six unused cheques to the present appellant. That cheque was hounored, amount was withdrawn from Askari Commercial Bank and thereafter the said Umer Shahzad Baig disappeared without a trace and his NIC was found to be nonexisting in NADRA record and person who is stated to have introduced Mr. Baig denied that he had introduced Umer Shahzad Baig to the Askari Bank for the purpose of opening of the account. F.I.R. Was lodged and after investigation challan was submitted. On 19-5-2007 charge was framed against the present appellant in the following words:-
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"That you accused Hassan Ahmadullah, while posted as Manager ABL Dastagir Colony Branch, Karachi received Cheque Books Nos. 377954 to 377960 from Account-holder Mst. Shahana Amin, on close of her account. Further you accused in connivance of absconding accused Omer Shahzad Baig son of Dr. Sakhawat Baig opened Account No. 1374-3 at Askari Commercial Bank Ltd. New Challi Branch and in common intention to defraud the bank deposited Cheque No. 377955 of Rs. 5.2 Million of closed account of Mst. Shahana Amin in the same account, which was received at ABL Dastagir Colony Branch for collection/clearing. Further you accused prepared a fake Advice No. D-933387 dated 6-6-2006 for Rs. 92,47,390 showing said cheque (closed account) cleared/passed and allowed remittance to account of Omer Shahzad Baig, whereby you accused withdrew the amount through absconding accused Omer Shahzad Baig. Thus you have committed the offences of breach of trust, fraud and forgery punishable under sections 409/420 /471 and 477-A, P.P.C. Read with section 5(2) of Prevention of Corruption Act-II, 1947, which are schedule offences and within the cognizance of this Court." 2. After trial the appellant was convicted by the trial Court vide judgment dated 14-4-2010 and was ordered to undergo the following punishments:-- (1) Under section 409, P.P.C. R.I. For 7 years with fine of Rs. 30,00,000 and in case of default further simple imprisonment of 21 months. (2) Under section 468, P.P.C. R.I. For 7 years and fine of Rs. 22,00,000 and in case of default further imprisonment of 21 months. (3) Under section 471, P.P.C. R.I. For one year. (4) Under section 477-A, P.P.C., R.I. For 5 years. 3. It was further ordered that the amount if recovered is to be paid to the concerned branch of the Bank. It was further ordered that substantive sentences of imprisonment shall run concurrently. Benefit of section 382-B, Cr.P.C. Was also allowed to the present appellant. The trial Court further observed that I.O. Of the case has favoured employees of Askari Commercial Bank, who allowed opening of fake account of a dummy person. It was also observed that I.O. Also favoured Muhammad Afzal Chaudhry an employee of ABL who cleared the fake advice at NIFT although it was bearing forged signatures of Ms. Farhat Shahnaz. Consequently, the trial Court recommended that appropriate action be taken against the I.O. 4. At the trial P.W.1 was Ale Muhammad. He was successor Manager of the appellant at Dastagir Colony Branch. He basically produced certain documents and deposed that certain documents were seized by F.I.A. The most material document, duplicate of genuine advice for Rs.40,47,390 was produced as Exh. 4/A-1. Second advice for Rs. 92,47,390 was also produced as Exh. 4/B-1. 5. P.W.2 was Mst. Farhat Shahnaz. She was posted as Officer Grade-III at Dastagir Colony Branch at the relevant time. She stated that she prepared the advice at Exh. 4/A-1 and "handed over advice to accused Hassan Ahmedullah". She further stated that FIA showed her advice Exh.4/B-1 and stated that on this advice her signatures were forged. She was cross-examined and she stated: "The original copy (of advice Exh. 4/A-1) was sent to NIFT....I have no knowledge if the advice Exh.
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4/A-1 was sent in sealed envelope by the Manager to NIFT or otherwise". 6. P.W.3 Syed Mehmoodul Hassan was merely a witness of the seizure memo. P.W.4 was Mst. Shahana Ameen, Accountholder. She stated that she was operating PLS Account No. 3182031N at the ABL Dastagir Colony Branch. She stated that on 23-6-2006 she went to the bank and submitted application for surrender of locker and also closure of bank account. She produced application for surrender of locker and closure of bank account at Exh.9/A and stated that it was received by the present appellant. She stated that she handed over the cheque book (which contained Cheques Nos. 377954 to 377960) to the present appellant. She stated that there was no balance in her account. She further stated that in the month of June, 2006, present appellant came to her house and asked that she had not returned Cheque Book and that she told him that on the very first day when she had closed her account she had also deposited the Cheque Book. She also stated that she made same statement to the auditors. She was also shown a cheque of Rs. 52,000,00 which was in respect of her account and stated that it was neither issued nor signed by her. In the cross- examination only thing that came out was that she stated that she shifted to Gulshan-e-Iqbal in 1998 but continued to maintain bank account at Dastagir Colony Branch. 7. P.W.5 was Muhammad Afzal who was posted at NIFT Premises by ABL. He stated that he received advice Exh.4/B-1 and from the record he verified the signatures of Hassan Ahmedullah and other signatory. He also stated that second advice bears his signatures. In the cross- examination he admitted that Exh.4/A-1 is correct according to the bank record but stated that it was never received by him at NIFT premises. 8. P.W.6 was a witness in respect of seizing of documents as was also P.W.7. P.W.8 was Investigating Officer, Rana Ghulam Shabbir. After referring to seizing of documents he stated that he obtained specimen signatures of accused Hassan Ahmedullah in presence of Magistrate and those were sent to Director Technical, Islamabad for obtaining opinion of a Handwriting Expert. He produced opinion of Handwriting Expert. During cross-examination he stated that. "It is correct that original advice Exh.4/A-1 was received in NIFT. Again says that Exh.4/A-1 was not received in NIFT. But it is fake one. Chaudhary Muhammad Afzal sitting in NIFT informed during investigation that Exh. 4/A-1 has not been received in NIFT. Voluntarily says, he informed me that advice of Rs. 92,47,390 was received in NIFT." He further stated that he recorded statement of introducer Shamim who was alleged to have introduced Umer Shahzad for opening of account and Shamim denied to have introduced Umer Shahzad and also disowned his signature on AOF. He further stated that NIC of Umer Shahzad was found to be fake upon verification from NADRA. He stated: "It is correct that none of the witnesses stated in their statements recorded under section 161, Cr.P.C. That accused Hassan Ahmedullah signed the forged advice in their presence". Opinion of Handwriting Expert produced by I.O. Stated as tinder:- "The examination of the documents under VSC (Documents Examination System) has revealed that the questioned signatures marked as Q/1 and Q/2 are similar in characteristics such as letter formation and design, rang of natural variation etc., as compared to the specimen and routine signatures marked as S/1 to S/4 and R/1 to R/13 of Hassan Ahmedullah." 9. It may be stated that Handwriting Expert was not produced in the Court. It may further be stated that Q/1 is the same as Exh. 4/B-1. Thereafter statement under section 342 Cr.P.C. Was recorded. The appellant stated that he had signed Exh. 4/A-1 but had not signed Exh.4/B-1 (same is also Exh.6/B). He further denied other aspects of the evidence. After trial the trial Court vide impugned
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judgment convicted and sentenced the appellant as stated above. 10. Learned counsel for the appellant made the following submissions:-- (1) The appellant had not received the Cheque Book of the Account holder in the month of February, 2006. Therefore, he in any case could not be held responsible for use of Cheque No. 377955. (2) Although the Cheque Book stated to have been returned by the Account-holder was stated to contain 7 cheques and although it is alleged that one cheque was used, the prosecution has not been able to recover any of the other cheques from the present appellant because they have never been with the present appellant in the first place. (3) It has not been established that the cheque alleged to have been used was a genuine cheque. (4) It is alleged that account was opened with Askari Commercial Bank by Umer Shahzad and the present appellant was in connivance with Umer Shahzad. Learned counsel submitted that no evidence whatsoever of any such connivance or role of the appellant in opening of the bank account has been proved through evidence. (5) Learned counsel referred to the order dated 13-5-2008 passed in Criminal Bail Application No.1005 of 2007 and submitted that the direction contained in the order dated 13-5-2008 have not been complied with by the trial Court. The said order is in the following words:-- "The F.I.R. Lodged by Inspector Rana Ghulam Shabbir, FIA Crime Circle Karachi, is indicative of the fact that the complaint was basically initiated by the present accused/applicant regarding the offences alleged in this case. The deposition of P.W. Mrs. Farhat Shahnaz Rizvi, Officer Grade-III of the Allied Bank Limited appears not to have been presented before the trial Court in a manner so as to have brought the necessary circumstantial evidence against the accused/applicant for the purpose to draw a conclusion that it was nobody else but the present applicant to have committed the said alleged offences. It is an admitted fact that so far no application has been moved before the trial Court with a prayer to record further examination of the said witness Mrs. Farhat Shahnaz Rizvi, as she appears to be the only material witness of the prosecution to connect the present applicant by means of the circumstantial evidence regarding the alleged offence. It would not be in the fitness of things to record any further observation as the case of prosecution is likely to get prejudiced and instead to leave the prosecution at liberty to make proper application before the trial Court for the purpose of proper record of the deposition of its witnesses. Under the present circumstances, applicant is admitted to bail in the sum of Rs. 4 Million and P.R. Bond in the like amount to the satisfaction of the trial Court." (6) The trial Judge has resorted. To conjectures and surmises and has not himself undertaken exercise to compare the alleged signatures of the present appellant on Exh. 4/B-1 with his admitted signatures on Exh.4/A-1 and many other documents. Learned counsel relied upon a number of case-law to which we shall refer in due course.
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11. Mr. Umer Hayat Sindhu, learned DAG made the following submissions:-- (1) Whereas signatures of the cosignatory are different on Exh.4/B-1 than the one (and admitted) signatures on Exh.4/A-1, signature of the present appellant are the same on both the documents. Report of Handwriting Expert was produced in Court who had clearly opined that Exh.4/B-1 bore signatures of the appellant and no question regarding authenticity of the signatures was asked in the cross-examination of the I.O. (2) P.W.2, categorically stated that after signing Exh.4/A-1 she handed it over to the present appellant and P.W.5 stated that it was new received by him at NIFT: (3) P.W.4, Account-holder clearly stated that she handed over Cheque Book to the present appellant in February, 2006 and the appellant in June, 2006 visited her and asked her to give the Cheque Book and she told him that Cheque Book had already been given to the appellant. In spite of this no suggestion in this regard was made in cross-examination of the witness. (4) Observations made by the Division Bench in the order by which bail was granted to the present appellant do not constitute the evidence and once evidence has been recorded it was duty of the trial Court to decide the matter in line with the evidence available before it and this is exactly the trial Court has done. 12. While exercising his right of rebuttal, learned counsel for the appellant made the following points:-- (1) P.W.2 in her cross-examination admitted that the original i.e. Exh. 4/A-1 was sent to NIFT. (2) No evidence has been brought about to establish that the cheque was a genuine cheque. (3) I.O. In his evidence stated that Muhammad Afzal admitted that he had signed Exh.4/A-1. (4) Learned counsel read para-29 of the impugned judgment and submitted that it is based on conjectures, surmises and presumption. Whereas trial Court compared signatures P.W.4 it did not even compare the alleged signature on Exh.4/B-1 with the admitted signatures of the appellant. (5) No link whatsoever has been proved between the present appellant and Umer Shahzad. 13. We have considered the submissions made by the learned counsel and have gone through the record as well as case law cited at the bar. 14. Before appreciating the evidence and contentions of the learned counsel, it may be relevant to refer to the case law cited by the learned counsel. 15. Syed Mahmood Alam Shah v. The State, PLD 1987 SC 250. Facts of this case were that Mehmood Alam was serving as Headmaster of a school and his were was working as a lady teacher in Landhi Korangi Zone Karachi. It is alleged that on 14-9-1977 the appellant went to the office of Educational Officer, L.K. Zone, Karachi and received a cheque for arrears of salary of his were. It was alleged that the amount of the cheque was altered by the appellant from Rs. 432 to Rs. 4,032. Handwriting Expert
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opined that the original writing on the cheque was with blue ink which was afterward overwritten with black ink and digit 4 was erased and then digits 40 were added. Supreme Court observed, after itself evaluating the cheque, that it appeared to contain original writing intact. In this background of facts the Supreme Court held as under:-- "Expert knowledge about handwriting alone may not be sufficient for determining whether a particular document contains forgeries and he has no where stated that forgeries were with the hand of the appellant. Be that as it may the expert evidence is at best opinion (Sic) evidence and a Court is not bound to accept it." 16. Nasim Ahmad v. The State, 1992 M LD 620. Facts of the case were that Account-holder complained that there was shortage in his account, On inquiry Account-holder contended that he had not been issued fresh Cheque Book and had not signed Cheque Book requisition slip and through cheques of such a Cheque Book the amount has been withdrawn. It was contended that the Handwriting Expert on whose opinion reliance was placed by the trial Court for conviction never appeared as witness in the witness box. The High Court observed as under:-- "The question which we have to decide is whether the prosecution can be said to have established that the signatures of Islamuddin on Cheque Book requisition slip Exh. 3/B and cheques Exhs. 3/C-I 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 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." 17. Allah Dino and 2 others v. Muhammad Umar and 2 others 1974 SCM R 411. It was held that report of Handwriting Expert who has not been produced as witness should not be taken into consideration by the trial Court while deciding genuineness or otherwise of a particular piece of handwriting. In Sailendra Nath Haider v. The State, PLD 1974 Dacca 690, it was held as under:-- "To be acquainted with a person's signature or initials or handwriting the person must actually see the signatory signing or writing or when he receives documents purporting to have been signed by the person in answer to his on letters or when the documents submitted to him. Now in the instant case neither of the witnesses has said that they have seen him to sign or that the documents bearing the accused signature were received by them in reply to their letters or that they were submitted to them. So the requirement of law as regards the proof of the signature of the accused- appellant has not been complied with. In the case of the defence of the accused the Court should have resorted to the provisions of section 45 of the Evidence Act and referred the impugned signatures of the accused person to an expert." 18. Nando Lal Malik v. Punchanon Mukerjee, AIR 1918 Calcutta 618. Bone of contention in this case was whether a receipt for Rs.1000 had been issued by the plaintiff or not. It was alleged by the defendant that the receipt was a forgery. High Court observed as under:--
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"Under such circumstances, I am not prepared to take a different view of the value of the oral testimony from what has been adjudged by the Trial Judge. As regards the documentary evidence, we have two important items, namely, first, a receipt alleged to have been signed by the plaintiff to the defendant, and, secondly, an entry alleged to have been made in the account book produced at the trial by the plaintiff. As regards the receipts, Greaves, J., pronounced against its genuineness. We have been invited in this Court to compare the signature on the receipt with the various admitted signatures of the plaintiff on the record; but, as pointed out by the Judicial Committee in Kurallee Persaud Misr v. Anuntorarn Hojra (1), it is by no means safe to base our conclusion upon a mere comparison of handwriting without proper materials on the subject: Shankarrao Gangadhar v. Bamji Harjivan (11). Consequently, I must hold that the view taken by Greaves, J., that the receipt was not genuine has not been successfully attacked in the court." 19. Subedar Fazal Hussain v. Qazi Muhammad Bashir and 12 others, PLD 1982 SC (AJ&K) 89. It was laid down as under:-- "(10). It is an accepted principle of law that the expert's evidence must always be received with great caution especially the opinion of Handwriting Experts. The Court should not surrender its on opinion to that of experts who are called before it. Although such evidence has to be received with great caution, yet the evidence and reasons, on which it is based, are entitled to a careful. Examination before rejection. (11) The most important things, in such like cases to be examined, are the general characteristics, formation of letters in the handwriting (questioned or admitted), fixed pen habits and mannerisms. The identity or resemblance in handwriting has to be found out on the value of the effect of various considerations arising from individual characteristics which have been embodied in the technical language of experts. It is also settled that mere resemblance between two writings is not sufficient to create the conviction that they were written by one and the same person. I say so because in the world of today, which has shown much advancement in every direction, it is not difficult to forge the handwriting, of a person in such a manner as to make it impossible for even the most acute and experienced Judge to discriminate between the false and the true. My above observations are duly supported in Kazim Hussain v. Shambhoo Nath (1), Jitendra Nath Gupta v. Emperor (2) and Mushtaq Ahmed Gurmani v. Z. A. Sulehri (3). It has been observed in Kazim Hussain v. Shambhoo Nath:-- "It should be borne in mind that the evidence of an expert is to be received with caution." In Jitendra Nath Gupta v. Emperor, it has been held:-- "Expert opinion in the case of handwriting as in other matters has to be received with caution." In Mushtaq Ahmed Gurmani v. Z.A. Sulehri it has been observed:-- "It is well settled the opinion of a Handwriting Expert should be received with great caution and it should be borne in mind that however impartial an expert may be, he is likely to be unconsciously prejudiced in favour of the party that calls him and to this effect I need not cite judicial authorities of which there is an abundance both in our country and others."
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(12)On the aforesaid view of the matter, the question which naturally falls for determination is as to whether corroboration of an Handwriting Expert as contended is necessarily to be insisted upon and, if so, what do we mean by corroboration in such like cases. (13)There is nothing in the Evidence Act to require the evidence given by an expert in any particular case to be corroborated before it could be acted upon. Expert's evidence is sufficient proof of what be states. The statement of an expert, however depends on the facts and circumstances of each case. It is correct that as a matter of prudence and abundant caution, the Courts generally insist upon some sort of corroboration of the Handwriting Expert. What kind and to what extent corroboration of the expert's opinion is required is a question which varies from case to case and no rule of universal application can be formulated on this subject." 20. From above case-law it appears that the position is sum as follows:-- (1) Opinion of a Handwriting Expert is at best an opinion and the Court before which such opinion is tendered is not bound to accept it. If the Handwriting Expert is not produced in Court and consquently opportunity of cross-examination is not given to the defence or opposite party such opinion cannot be taken into consideration by the trial Court while deciding genuineness or otherwise of a particular piece of evidence. (2) The appellate Court must give due weight to the findings recorded by the trial Court in respect of genuineness or otherwise of a particular piece of handwriting for which the trial Court itself had undertaken the exercise of comparing the handwriting or signatures. (3) Though the opinion of the Handwriting Expert is not binding on the Court yet it is entitled to a careful examination before it is rejected by the Court. (4) As a matter of prudence and abundant caution, the Courts generally insist upon some kind of corroboration of the opinion of Handwriting Expert. (5) As to what kind and to what extent corroboration is required, is a question which varies from case to case and no rule of universal application can be laid down in this regard. 21. Learned counsel also relied upon a number of other reported cases on the point that benefit of any doubt whatsoever must be given to the accused person this is a so well-settled principle of law that it 'would only and…
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