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Petitioner: M. A. MOTALIB VS Respondent: THE STATE
P L D 1960 Dacca 897
P L D 1960 Dacca 897
Before Murshed and Khan, JJ
M. A. MOTALIB‑Appellant
versus
THE STATE‑Respondent
Criminal Appeal No. 392 of 1959, decided on 25th Novem ber 1959.
(a) Criminal Procedure Code (V of 1898), Ss. 221 & 223 Charge vague and giving accused no notice as to what case he was called upon to meet‑Accused prejudiced.
Where the charges are so defective that they do' not give any notice to the accused as to the nature of the case which the prose cution sought to make out against him, the accused is prejudiced and his conviction on such defective charges cannot be sustained.
(b) Hand‑writing expert‑Failing to give good reasons in support of his opinion‑Evidence of little value.
(c) Penal Code (XLV of 1860), Ss. 418, 419 & 467‑Intention of accused either to obtain wrongful advantage for himself or to cause injury to somebody else must be specifically established.
In order to support a charge under section 419 or 467 of the Penal Code, 1860, the intention of the accused, either to obtain a wrongful advantage for himself or to cause an injury or a possible injury to somebody else must be specifically established by the prosecution.
Where, therefore, A merely signed before Customs authority an export application form purporting to be G, an agent of Z, in the presence of Z and on the misrepresentation of Z himself that A was his constituted attorney G, it was held that A had merely practised a deception and from this fact alone no inference could be drawn that he was actuated by an intention to gain some wrongful advantage to himself or to cause any injury to another and in the absence of proof that by his act A had obtained any advantage for himself or had done wrongful injury to anyone he could not be convicted under sections 419 and 467 of the Penal Code, 1860.
Harendra Nath Das v. Jyotish Chandra Datta I L R 52 Cal. 188 ; In re. Manikkam Pillai 8 Cr. L J 421 ; Ram Bharose Singh v. Emperor 37 Cr. L J 907 ; Sahebzada Muhammad Hayat Khan v. Ghulam Muhammad 6 D L R 177 ; Case of Loothy Bewa and others 11 W R (Cr.) 24 ; Muhammad Baksh and another v. Emperor 43 Cr. L J 254 ; Superintendent and Legal Remembran cer, Bengal v. Munmatha Bhusan Chatterjee A I R 1923 Cal. 495 ; Emperor v. Muhammad Shaha and another A I R 1919 Lah. 473 ; Muhammad Baksh and another v. Emperor A I R 1941 Lah. 460 ; Rattan Singh v. Emperor A I R 1934 Lah. 833 ; Nga Tun Sein v. Emperor A I R 1935 Rang. 203 ; Kailash Chandra Das v. The Crown 6 C W N 382 ; Aparthi Charan Roy v. Emperor 31 Cr. L J 1126 ; Kali Prasad Banerjee v. Emperor 16 C L J 76 and L. K. Siddipa v. Lalthama A I R 1954 Mys. 119 ref.
A. T. M. Mustafa with Akhtaruddin Ahmed for Appellant. B. N. Chowdhury for the State.
JUDGMENT
MURSHED, J.‑Appellant M. A. Motalib was tried by Mr. S. M. Huq, Assistant Sessions Judge, 1st Court, Faridpur, with the aid of Assessors under sections 419 and 467 of the Pakistan Penal Code.
The prosecution case in substance is as follows: One M. A. Zaman Chowdhury was holder of Export Licence No. 1229/4755/ Exh. 1/55 (306), dated the 13th of November 1956. This was a licence for export of fish to India. The said M. A. Zaman Chow dhury executed a power‑of‑Attorney in favour of one Abdul Gafur and two others by which the said Abdul Gafur and others were empowered to act on behalf of the granter in respect of export of fish to India. The power‑of‑Attorney conferred wide powers on the grantees who could conduct business of exporting fish, open account with National Bank of Pakistan sign export application forms and I. R. P. forms and other necessary papers, receive I. R. P. forms and other exchange control forms and sign bills of exchange either jointly with others or severally. This power of Attorney was executed on the 3rd of December 1956.
On the 23rd of December 1956, M. A. Zaman Choudhury accompanied by the appellant, approached the clearing Agent, P. W. 4. Hafez Abdul Hamid, who was one of the proprietors of the firm of Abdul Hamid & Sons, and introduced the appellant M. A. Motalib as Abdul Gafur his constituted Attorney. There after Hafez Abdul Hamid took M. A. Zaman Choudhury and the appellant to the Deputy Superintendent of Land Customs by the name of Syedul Huq who has been examined as P. W. 12. In this case appellant M. A. Motalib was identified as Abdul Gafur by P. W. 4 Hafez Abdul Hamid to the Deputy Superintendent of Land Customs (P. W. 12). It is alleged that the appellant signed as Abdul Gafur for M. A. Zaman Chowdhury in the presence of P. W. 4 and the said Customs officer namely P. W. 12 and others. It is also alleged that he signed some I. R. P. forms in the presence of the Land Customs officers. Thereon the appellant was directed to deposit the necessary duties and fees and the applications were passed by the Customs officers.
The appellant is also an exporter of fish on his account and on the 6th of July 1957 he submitted some export applications and I. R. P. forms on his own behalf in which he had signed himself as M. A. Motalib. It is alleged that this roused suspicion in the mind of the Deputy Superintendent Syedul Huq who suddenly remembered that the appellant had signed as Abdul Gafur more than six months ago namely, on the 23rd and 24th of December 1956. The Customs Officers made certain inquiries in the customs office as well as from the employees of the firm of Abdul Hamid & Sons. It transpired that the appellant had practised deception and signed himself as Abdul Gafur on the 23rd and 24th December 1956.
Thereupon a first information report was lodged in which final report was submitted. Later on, on a fresh first information report further investigation was started which ended in the submission of a charge‑sheet against the appellant on the afore said counts.
After a preliminary inquiry by a competent Magistrate the appellant was committed to the Court of Sessions to stand his trial on the following charges:‑---
"First.‑That you, on or about 24‑12‑56 at Goalundo ghat P. S. Goalundo ghat, dt. Faridpur before clearing Agent and Customs Officer pretending to be Abdul Gafur and thereby com mitted an offence punishable under section 419 of the Pakistan Penal Code, and within the cognizance of the Court of Session.
Secondly.‑‑That you, on or about the same date at the same place forged the export application dated 24‑12‑56 form and I. R. P. form dated 24‑12‑56 purporting to be a valuable security with intent to defraud the Government and thereby committed an offence punishable under section 467 of the Pakistan Penal Code and within the cognizance of the Court of Sessions.
And I hereby direct that you be tried by the said Court on the charge."
The appellant was thus charged under section 419 and 467 of the Pakistan Penal Code.
The defence is a plea of not guilty and the appellant claims to be completely innocent.
The assessors were equally divided in their opinion in respect of both the charges. Two of them found the appellant guilty under both the counts and one of them found to be not guilty while the fourth gave him the benefit of doubt.
The learned Assistant Sessions Judge, however, came to a finding that the charges against the appellant were brought home against him. He, therefore, convicted him under both the afore said charges and sentenced him to suffer rigorous imprisonment for a period of four and a half years in respect of the conviction under section 467 of the Penal Code. He further sentenced the appellant to suffer rigorous imprisonment for a period of one and a half years under section 419 of the said Code. It was directed that both the sentences should run concurrently.
This appeal is directed against the convictions of the appellant and the sentences passed on him, as stated above.
Mr. A. T. M. Mustafa, learned counsel who has appeared before us on behalf of the appellant, has taken us through the evidence as well as the records of this case. He has assailed the conviction of the appellant on the following grounds.
In the first place he has argued that the charges as framed against the appellant by the trial Court were so vague that they gave practically very little notice to the appellant as to what case he was called upon to meet.
We have quoted above the charges which were framed by the trial Court against the appellant, and we think that these charges are so defective that they do not give any notice to the appellant as to the nature of the case which the prosecution sought to make out against him.
We have no hesitation to say that these have prejudiced the appellant. On this ground alone we would have set aside the convictions and sentences of the appellant and directed a retrial.
Mr. Mustafa has further argued that on the evidence on record the appellant is entitled to acquittal first, because the prosecution has not been able to prove by clear and satisfactory evidence that the appellant has in fact signed the export application forms and the I. R. P. forms, and secondly because on the evidence in this case the convictions of the appellant under the aforesaid sections cannot be sustained.
With regard to the prosecution case that the appellant had signed the export application forms as Abdul Gafur, the constituted Attorney of M. A. Zaman, Choudhury, Mr. Mustafa has submitted that there is no evidence in this case that Abdul Gafur is a fictitious person and that no such person existed. Learned counsel has drawn our attention to the evidence of P. W. 10 Sridhat Ch. Das who is the only witness examined on behalf of the prosecution in order to prove that there was never any person by the name of Abdul Gafur, son of Jaliluddin belonging to the village Dapunia. This witness is the defadar of the Dapunia Union. In his evidence he has said that there is no man by the name of Abdul Gafur, son of Jaliluddin in village Dapunia. In his cross‑examination he has said that there are as many as 3;000 to 3,500 Muslims in Dapunia and although he claims to know most of them he has admitted that there maybe some whom he might not know. On this evidence we cannot hold that it has been proved that no such person as Abdul Gafur, son of Jaliluddin, belonging to village Dapunia existed.
With regard to the prosecution case that M. A. Motalib signed several export applications and I. R. P. forms on the 23rd and 24th of December 1956, as Abdul Gafur the evidence comes from the following witnesses, namely, P. W. 1 Abu Siddique, P. W. 4 Hafez Abdul Hamid, P. W. 12 Md. S. Huq, P. W. 13 A. W. T. Talukdar (hand writing expert), P. W. 15 Khalek Newaz and P. W. 16 Md. Arfan Ali Khan. P. W. 2 M. A. Zaman and P. W: 3 K. C. Acharjee have been examined to corroborate P. W. 12 Md. S. Huq. These witnesses can be divided into two groups‑those belonging to the firm of Abdul Hamid & Sons and, secondly the Customs Officers, namely P. W. 12. Md. S. Huq, P. W. 2, M. A. Zaman and P. W. 3 K. C. Acharjee. The most important witness is P. W. 4 Hafez Abdul Hamid in his examination‑in‑chief, he has proved the entire prosecution case which has been set out above. He has stated that on the 23rd of December 1556 M. A. Zaman Choudhury accompanied by the appellant M. A. Motalib came to his office for the purpose of exporting fish from Goalundo Ghat to Calcutta. He has stated that M. A. Zaman Chowdhury showed him the registration certificate and an affidavit and power‑of‑Attorney executed in favour of Abdul Gafur and others and thereafter introduced the appellant as Abdul Gafur, the holder of the afore said power‑of‑Attorney. Thereafter the witness took Zaman Choudhury and the appellant to the Customs Officer who in this case happens to be P. W. 12 Md. S. Huq. In the presence of M. A. Zaman Choudhury this witness identified the appellant to the said Customs Officer as Abdul Gafur. He has stated that in the presence of the Customs Officer and some employees of the firm, appellant M. A. Motalib signed as Abdul Gafur on the export application forms Exhs. 1 to 1 (g) and some I. R. P. forms which have been marked as Exhs. 2 to 2 (c).
The witness has further stated that there is an entry with regard to export application of the appellant in a book called manuscript register which is maintained in the office. His evidence is that the investigating officer seized that manuscript register. The manuscript register was not produced in Court by the prose cution. From the evidence of this witness it appeared that the appellant M. A. Motalib was introduced as Abdul Gafur, the grantee of the power‑of‑Attorney, by M. A. Zaman Chowdhury. In cross‑examination on behalf of the appellant he has denied that he stated to the investigating officer that the power‑of‑Attorney as well as a domicile certificate were produced before him. According to the investigating officer this witness did state that a domicile certificate was produced. Mr. Mustafa has vigorously argued that this is a contradiction of such a vital nature that it completely shakes the credit of this witness. He has asked us to take judicial notice of the fact that a domicile certificate will also have the photograph of the holder axed to it. It is well known that a photograph of the holder is so axed. Learned counsel has rightly argued that this contradiction is of utmost importance because if it is true that a domicile certificate was produced before Hafiz Abdul Hamid, he could not have mistaken the identity of the appellant M. A. Motalib as Abdul Gafur. This witness has further stated that he does not know the distinction between a domicile certificate and a nationality certificate, meaning thereby that he could have easily described a nationality certificate to be a domicile certificate. A nationality certificate was proved by P. W. 8 Md. Nazar Ali Confidential Assistant to the District Magistrate of Mymensingh. He had proved the nationality certificate which was marked as Exh. 8, and it bears the photograph of the appellant M. A. Motalib. This witness has proved his own signature on the certificate.
Mr. Mustafa has further argued that Hafez Abdul Hamid was at one stage a co‑accused of the appellant but 'a final ‑report was submitted in his favour by the Investigating officer. Learned counsel have submitted that his evidence should be treated on the same' footing as that of an accomplice. We think that the evi dence of this witness, in the circumstances of this case, should be accepted with a good deed of care and caution.
The evidence of P. W. 12 Md. S. Huq, the Deputy Superin tendent of Land Customs, is that this witness namely Hafez Abdul Hamid, identified the appellant as Abdul Gafur to him. This shows that Hafez Abdul Hamid acted without any sense of respon sibility or with some ulterior motive. The contradiction that has been brought out by the defence in respect of the production of the domicile certificate or the nationality certificate has also the effect of shaking his credit. In these circumstances, the suggestion by the defence that the appellant incurred the displeasure of Hafez Abdul Hamid because on a later date, namely, on the 6th of July 1957, there was some unpleasantness between the two which led the appellant to approach a rival firm of agent, namely, A. K. Banerjee firm for the purpose of export on his behalf, can not be held by us to be entirely baseless. We find it difficult to place any reliance on the evidence of this witness.
In this background the evidence of P. W. 1 Abu Siddique who was an employee of Hafez Abdul Hamid cannot inspire much confidence in us.
Mr. Mustafa has next drawn our attention to the evidence of P. W. 16 Md. Arfan Ali Khan. This witness was tendered by the prosecution for cross‑examination. It will be remembered that the material prosecution witnesses have all stated that Md. Arfan Ali Khan was a witness to the occurrence and he also saw the appellant M. A. Motalib signing the export application forms and I. R. P. forms as Abdul Gafur on the 23rd and 24th of December 1956. This witness was shown the I. R. P. forms represented by exhibits 2 series and he denied having any knowledge with regard to the writings thereon. Learned counsel for the appellant has, there fore, rightly, contended that this witness does not support the prosecution. He has no knowledge of the writings on those docu ments although the other witnesses have said that the appellant signed them in presence of the witnesses.
We shall now turn to P. W. 12 Md. S. Huq the Deputy Superintendent of Land Customs. From his evidence it appears that the appellant has gone to the 'land customs office twice in December 1956, namely on the 23rd and 24th of that month. His evidence is that the appellant signed the export application forms and the I. R. P. forms as Abdul Gafur. His further evidence is that more than six months thereafter, on the 6th of July 1957, the appellant M. A. Motalib presented some export applications forms and I. R. P. forms signing as M. A. Motalib. This roused suspi cion in his mind, as according to him he recalled two occasions six months ago when the appellant has signed himself as Abdul Gafur. The witness does not say that he personally knows the appellant M. A. Motalib or that he saw him prior to the 23rd or 24th of December 1956. In this background it is highly improbable that an official, who deals with quite a good number of export applica tions and also daily performs his other normal official duties would remember a hitherto unknown individual whom he had happened to see six months ago and whom he had no special reasons to remember. To us the evidence of P. W. 12 Md. S. Huq is so highly improbable that we find it difficult to accept the same as true. In cross‑examination he has asserted that he would be in a position to identify a person whom he has seen six months ago. According to his evidence he had seen the appellant twice in the course of his rather busy official duties, once on the 23rd and again on the 24th of December 1956. After a lapse of six months it is extremely improbable that he would be able to remember the person who came to his office in the midst of official works and signed as Abdul Gafur, unless there was some particular reason for remember ing him.
P. W. 2 M. A. Zaman and P. W. 3 K. C. Acharjee are customs officials who were subordinate to P. W. 12 Md. S. Huq, and there fore, it is difficult for us to accept their evidence if we cannot accept the evidence of P. W. 12.
P. W. 15 Khaleque Newaz is another witness who was at the relevant time the Head Clerk in the Land Customs office at Goalunda Ghat. It is admitted that a brother of this witness, namely, Arfan, is an employee of the firm of Hafez Abdul Hamid. P. W. 12 Md. S. Huq has admitted this fact. It was suggested on behalf of the defence that P. W. 15, Khaleque Newaz was annoyed with the appellant inasmuch as there was ill‑feeling between Hafez Abdul Hamid in whose firm the brother of Khaleque Newaz was an employee. It was further suggested that Khaleque Newaz was taking side with Hafez Abdul Hamid who got a false case against the appellant. The suggestions have been denied. But it is difficult for us to hold, in the light of the facts and circumstances of the case, that P. W. 4 Hafez Abdul Hamid and P. W. 15 Khalek Newaz are unbiased witnesses.
This is all the prosecution evidence as to the signatures of the appellant as Abdul Gafur on the export application forms and the 1. R. P. forms which we have stated above.
The prosecution, in order to strengthen a rather weak evidence on this point, examined a hand‑writing expert who has figured as P. W. 13 in the trial ‑Court. This witness is A. W. Talukdar who is a band‑writing expert attached to the Criminal Investigation Department, Dacca. Mr. Mustafa has criticised his evidence as a faint and timid support of the prosecu tion case, namely, that the signatures "Abdul Gafur" which appears in the said export application forms are in the hand‑writing of the appellant. In the first place, this witness has admitted that he had received a forwarding note with the specimen signatures which were sent to him for examination and that be formed an impression regarding the case from the same. The forwarding letter must have had the effect of creating in his mind a bias against the appellant. He also admitted that he has not noted the dissimilarities which appeared on a comparison of the various writings. The evidence of this witness is not very impressive. He has hardly been able to give good reasons to support his opinion that on comparison of the various specimen signatures he was of opinion that the signatures of the export application forms and the I. R. P. forms, dated 23rd and 24th of December 1956, were in the hand‑writing of the appellant. His evidence is of very little value to us.
We have ourselves compared the alleged signatures of the appellant as "Abdul Gafur" with various specimen signatures which were forwarded to the hand‑writing expert as well as the undoubted signature of the appellant which was appended to the record of his examination under section 342 of the Code of Criminal Procedure. To us there is no noticeable similarity between those signatures and it is difficult to be certain that the writings must be of the same hand.
In this view of the matter, we think that the contention of the learned counsel for the appellant to the effect that the alleged signatures of the appellant on the aforesaid export application forms and I. R. P. forms as Abdul Gafur has not been established by satisfactory evidence, must be accepted.
With regard to the signatures on the I. R. P. forms we do not have even the benefit of the opinion of the handwriting expert. The I. R. P. forms, according to the Investigating officer, were never seized by him and the hand‑writing expert (P. W. 13) has also stated that he never examined these I. R. P. forms.
Mr. Mustafa has next argued that on the facts of this case there can be no conviction either under section 419 of the Pakistan Penal Code or under section 467 of the said Code even if the prosecution evidence is accepted.
In order to decide this point, it is necessary to recapitulate the salient features of the prosecution case. The prosecution case, is, that the holder of the export licence, namely, M. A. Zaman Chowdhury executed a power‑of‑attorney in favour of Abdul Gafur and others and that he himself took the appellant to the clearing Agent represented by Hafiz Abdul Hamid and introduced him as "Abdul Gafur", his constituted attorney. It is further the prosecution case that in presence of the said M. A. Zaman Chowdhury, Hafez Abdul Hamid identified the appellant as "Abdul Gafur" before the Deputy Superintendent of Land Customs. Upon such identification the appellant appended his signature to the applica tion forms and the I. R. P. forms as "Abdul Gafur". It has not been proved by the prosecution that there is no such person as Abdul Gafur. In the circumstances aforesaid, the principal, namely, M. A. Zaman Chowdhury was assuming the responsibility for the acts of his attorney and he was himself presenting the appellant as his attorney although under a fictitious name. In these circumstances, the act of the appellant in signing himself as Abdul Gafur may be deceptive, but that does not prove his criminal intention either to obtain some wrong full advantage for himself or to do some wrongful injury to anybody else. On the prosecution evidence the appellant stands to get nothing from the act of signing himself as "Abdul Gafur". Mr. Mustafa has strenuously argued that it can be a purely innocent act to oblige a fellow businessman. The Customs Officer, namely, P. W. 12 Md. S. Huq has not said that either he or the customs department has suffered any injury as a result of the signing of the appellant as "Abdul Gafur" on the export application forms and I. R. P. forms.
The charges, which have been set above, vaguely state that the intention was to defraud Government and this allegation is only in respect of the charge under section 467 of the Code that there is no evidence how Government has been or could have been injured in the circumstances set out above.
In course of the argument before us Mr. B. N. Chowdhury, learned Advocate for the State, has argued that it would involve a loss to the State Bank of Pakistan inasmuch as the money which was earned by the export of fish to India was not repatriated to the said Bank. An official from the State Bank of Pakistan has been examined and he has stated that no such amounts as stipulated in the aforesaid I. R. P. forms has, in fact, been repatriated to Pakistan from India.
In this connection we should understand the nature of the act which the appellant was doing. He was merely signing as an agent of M. A. Zaman Chowdhury in the presence of the principal and on the representation of the said principal that the appellant was his constituted attorney M. A. Zarnan Chowdhury made the misrepresentation that the appellant was…
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