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Criminal Appeals Nos. 244 and 245 of 1964, decided on 28th May 1968.

Ss. 45 & 73‑Expert evidence- Handwriting expert, opinion of‑Needs very careful examination and should also generally be supported by corroboration to form basis of conviction‑‑Court, upon careful examination of disputed and admitted writings, particularly with assistance and guidance .of handwriting expert, and after scrutinising evidence of expert, convinced that writing of disputed document is of same person who wrote admitted writings‑No bar in. law to base conviction upon such, finding--Conclusion arrived at by Court,' after analysis and comparison, with, regard to particular writing, can prevail even if contrary to opinion of handwriting expert.

B. Venkata Row I L R 36 Mad. 159; Kassarbai v. Jethabai Jiwan A I R 1928 P G 277; Barindra Kumar Ghose and others I L R 37 Cal. 467 and Ali Nawaz Gardezi v. Col. Muhammad Yousuf P L D 1963 S C 51 ref.

G. M. Shah and A. A.Akhund far Appellants.

M. Haleem and Manzoor Hussain for the State.

Dates of fearing: 29th January, 25th April and 7th May 1968.

The appellants Muhammad, Anwar and Muhammad Umar who have filed their appeals separately were both tried and convicted by the Special Judge, Hyderabad, under sections 420, 468 and 471 read with section 120‑B, P. P. C. and section 5(2) of Act II of 1947 and have been sentenced to various terms of imprisonment and fine.

2. This case relates to a fraud in which upon the basis of three forged bills, Exs. 15, 16 and 17, dated 17‑3‑62, 19‑3‑62 and 19‑3‑62 respectively relating to the office of the Extra Assistant Director of Agriculture, Tando Muhammad Khan, the payment of s total amount of Rs. 89,270.03 was obtained. Accused Anwar was a Junior Clerk in the Budget section of the office the Deputy Director at Hyderabad and accused Umar was a Senior Clerk of the same office. The Extra Assistant Director, Tando Muhammad Khan was empowered to draw Rs. 1,000 only at a time and his office had an account with the National Bank of Pakistan branch at Tando Muhammad Khan. As the amount of the three bills far exceeded the drawing power of the Extra Assistant Director an office order, dated 14‑3‑62 was prepared under the forged signature of the Deputy Director of Agriculture, Ghulam Muhammad Barrage, Hyderabad, Exh. 12, whereby the Deputy Director was purported to have accorded sanction for the purchase of paddy seed for distribution amongst the growers. The three forged bills Exhs. 15, 16 and 17, purported to bear the signature of 71 R. 13. Qureshi, Extra Assistant Director, Tando Adam. These signatures have also been proved to he forged and this fact is not disputed before me. The first bill was for Rs.85,900 for purchase of paddy, the second bill was for Rs. 3,230.93 for praying wages to Beldar, and the third was for Rs, 139.10 for office expenses. These were fictitious demands and the office of the Extra Assistant Director at Tando Muhammad Khan knew nothing about it. These bills were submitted in the office of the Deputy Director. Budget Section, Hyderabad. where they were passed by the account Officer Abdul Hasnat, P. W . 1. He then forwarded them to the Accountant Abdul Aziz, P. W.5, who checked and passed them on to Muhammad Salim, P. W. 6, who prepared the cross cheque, Exh. 24. In the meantime, a take account was opened in the National Bank of Pakistan at Hyderabad in the name of the Extra Assistant Director, Agri culture, I and Muhammad Khan, The cheque for the sum of Rs. 89,270.03 which was prepared by Muhammad Salim was passed on to the Accountant Abdul Aziz who it is alleged, delivered it to the accused Muhammad Anwar who had posed as Muhammad Alam and in whose favaur an authority to receive the cheque bad also been forged in the name of the Extra Assistant Director, Tando Muhammad Khan. The person who received the cheque signed on the counterfoil as Muhammad Alam in token of the receipt. One Muhammad Alam is a Senior Clerk in another section of the office of the Deputy Director which is situated in a separate building. He, however, knew nothing about it. This cheque Exh. 24, was deposited in the newly‑opened account in the National Bank of Pakistan at Hyderabad on' 20th March 1962 and two days thereafter the whole of this amount was withdrawn upon a forged authority of the Extra Assistant Director, Exh. 20, in which the National Lank of Pakistan, Hyderabad was directed to pay the amount to Muhammad Alam, Senior Clerk or Order. On the reverse of this authority, Exh. 20, the signature of Muhammad Alam is shown to have been attested by the said M. D. Qureshi. Both these signatures were also forged.

3. The fraud was discovered in Tune 1962 when Wahid Akhtar, P. W. 1, who had succeeded M. D. Qureshi as Assistant Director at Tando Adam was informed by the Account Branch of the Deputy Director s office that they had overdrawn upon their account, After exchange of correspondence the Assistant Director came to know of the three bills. Exhs. 15, 16 and 17 for the total sum of Rs. 89,270.03 upon which payment had been made and Wahid Akhtar wrote to say that the office of the Extra Assistant Director had never issued these bills nor had received any payment on them. Wahid Akhtar then under the instructions of the Deputy Director lodged a complaint with the police and the case was then investigated by Inspector Athar Hussain. The investigation ' had of necessity to be lengthy and elaborate, in the course of which a large number of persons from both the 'offices were questioned and the handwriting of almost everyone concerned with the preparation of bills and the passing of them was obtained from both the offices and sent to the handwriting expert. On completion of the investi gation the two accused were sent up for trial after obtaining the necessary sanction.

4. The case against the accused Anwar is that he forged the three bills, Exhs. 15, 16 and 17, and the authority, Exh. 18, for the handing over of the cheque and the office order, Exh. 46, and be did this in conspiracy with Muhammad Umar to defraud the Government of the three bills. It is also alleged that it was he who received the cheque, Exh. 24, from the Accountant Abdul Aziz. The case against the other accused Muhammad Umar is that he, in order to successfully bring about the fraud and draw this amount of Rs. 89,270.03 got a fake rubber stamp prepared from the Sind Rubber Stamp Works, Hyderabad, which purported to he that of the Extra Assistant Director of Agricultural, Tando Muhammad Khan and it was this stamp which was put on the three bills. Exhs. 15, 16 and 17, over which the signature of Mr. M. D. Qureshi was forged.

The evidence against accused Anwar consisted of the testimony of the handwriting expert who had compared the questioned writing on the three bills, Exhs. 15, 16 and 17 the cheque Exh.20, and the office order Exh. 40 with the admitted writings contained in the bills, Exhs.47 to 41). In addition, there was the evidence of the Accountant Abdul Aziz to the effect that it was Anwar to whom he had delivered the cheque, Exh.20. As against Umar there was only the evidence of the stamp‑maker Abdul Hamid who stated that it was at Umar's instance that he had prepared the rubber stamp which had been put on the forged bills. The learned Special Judge believed all this evidence and accordingly convicted both the accused.

6. I will first take up the case of accused Muhammad Anwar and deal with the evidence of the handwriting. The handwriting expert Muhammad Din. P. W. 15, stated that he had joined service in the Central Forensic Office an Examiner of questioned documents in 1959. He had appeared in Court to give evidence as an expert on handwriting about 500 times. With regard to the cheque, Exh. 20, he was notable to give any opinion because the data was not sufficient. However with regard to Exhs, 15; 16, 17 and 46 his opinion was that these were written by the same person who had written the specimen. Writings, Exhs. 47, 48 and 49. The reasons given by the expert for this opinion were as follows :‑

"(1) There is an initial flourishing impulse in capital 'C', G which is highly peculiar and individual.

(2) The left stroke of capital letter 'A' is always written in a curve form.

(3) The final stroke of letter 'B' is curved upwards.

(4) There is bulb formation at the end of letter 'B'.

(5) The writer has a tendency of extending the final letter of ‑small e'.

(6) The 'second portion of letter f is made round.

(7) The letter L' is made highly shaded.

(8) The curve stroke of letter 'P' is written separated from the vertical line.

(9) The crossing bar of letter 'C' is represented like a dot.

(10) The final of letter ' W' is bul bed.

(11) There is a small extension at the end of letter 'V "."

The conviction of the accused Anwar, if it is to be upheld, must rest primarily upon the evidence of the handwriting. I have spent considerable time over the examination of these documents and shave found certain pronounced peculiarities and idiosyncrasies in, the admitted writings contained in Exhs.47 to 49. One has to see these characteristics in the original documents in order to appreciate their peculiar traits. Let us them turn to, Exhs. 47 to 49. Exh. 47 is the specimen writing of Muhammad Anwar taken before a Magistrate whereas Exhs. 48 and 49 are the bills prepared on T. O. Form No. 10 in the office of the' Assistant Plant Protection Officer, Ghulam Muhammad Barrage Hyderabad; where Muhammad Anwar was employed at the time when he filled these forms. The whole of the writings on these forms are admittedly that of Muhammad Anwar. Let us first turn to Exhs. 48 and 49 "these consist of several pages and contain a considerable amount of the handwriting of Muhammad Anwar. In Exh. 48 appears the writing "E 4 Contingencies" at the bead of the column. Both the capital letters "E' and 'C'' in this have a striking in impulse. In Exh. 49 the contingencies are under other 'beads such as 0‑I1,' D.2, etc. But the letter C in the' word 'contingency' can again be noticed all through the pages of this document as well. This letter C' is written in an unconventional way and the idiosyncrasy of the initial flourish is so marked and appears so persistently through these documents this one cannot remain unimpressed by its peculiarity. The next letter to which the expert has referred is the capital the, left stroke of which is always written in a curved form‑ ,This letter appears in the first column in the word "Agriculture". Quite frequently, one would notice the tendency to put a dot between the two lines instead of crossing them. The left stroke of the letter 'A' and the dot are equally unusual. I have marked most of these letters in the original in the red pencil whore the peculiarities are pronounced. Then we notice the small letter e in these documents, the end of which is considerably extended. This is a very remarkable small e' and one finds it again and a gain occurring in these bills as Well at in the specimen writings. The next letter to note in the capital B'. The expert has noted the upward curve of the final, stroke and .the bulb formation at the end of this letter. These can also easily be noticed. The next letters to note are small g and y . in both of them the upward stroke of the finishing part has a considerable flourish and frequently a large loop is made as a result of it. The letter p would be noticed almost invariably to have the curve stroke separate from the vertical line. This again is the peculiarity of the writing. These characteristics to which I have referred also occur in the specimen ,writing Exh. 47.

6. We may now turn to the disputed writings in Exh. l5, 16,17 and 46 The first three are again bills. In these the letter C' of 'Contingency' is exactly the same as in the admitted writings. I have already expressed myself with regard to the peculiarities of the writer in respect of this letter. The letter 'A' of the word 'Agriculture" in Exh. 17 is against exactly of the same kind as the A' of the admitted writings. It may be noted that in Exh. 16 the writer had first made the similar kind of curved left line in the letter ''A' of Agriculture as in the admitted writings. Later on, he over-wrote on it a different kind of A The small letter a an these three documents as well as in Exh. 46 is exactly like letter of the admitted writings with all its peculiarities. The same similarity is to be found in the capital letter p and B One may note that in every single letter p' the vertical line and the loop represent, two distinct and separate action of the pen. The finishing flourish and the Large loop of ate small letters 'g' and y' in Exhs. 16,17 and 46 are similar to those in the admitted writings. The capital letter and the small letter e' of, Exh 46 are again like these letters in the admitted' writings with all their peculiarities. The capital letters 'P,' ,and B also have the same mark of identity in character. Apart from these pronounced peculiarities in the particular letters to which I have referred and which I have marked on the original with red pencil the general pattern of the two writings is the name.

7. We now come to Exh. 26 which is the counterfoil of the cheque Exh.20. In the course of the hearing it was found that this document, had‑not been sent to the expert and, therefore, at the request of the counsel I sent it to the same expert who gave his, opinion which he supposedly the witness box that one of the signatures which is a short one contained all the traces of disguised writing and cannot be the basis of a comparison. According to Abdul Aziz this signature C, was made by the person, who had come to take the delivery of the cheque and he found this to be inadequate :and., therefore, asked him to write ,out his name Muhammad Alam more distinctly. This was done and about this the opinion of the expert is that the writer is not the same as the one who wrote the admitted writings of Exhs. 47, 48, and 49 and the disputed writings of Exhs. 15,16, 17 and 46. I am however of the opinion that even this signature Contains overwriting and tremor which are signs of disguise. But in any case I am of the view that the data is so little that even this signature could not properly form the subject‑matter of adequate comparison with the disputed writings. Apart from this the evidence of Abdul Aziz with regard to the identification of Anwar itself is far from satisfactory. In his statement to the investigating officer he had said that tire person to whom the cheque was delivered was a tall man who appeared to be a Punjabi and aged about 40 years. This description does not fit Muhammad Anwar. As regards the identification of Anwar by this witness in the identification parade I agree with the defence counsel that considering that this witness had gone to the Police Station more than 10 times during the course of the investigation where the accused Anwar was also called it was quite likely that he had seen him before the test was held. The learned Special Judge has relied upon the evidence of Abdul Aziz for the purposes of identification of Anwar as the person to whom the cheque was delivered but I do not find it safe to act upon it. That leaves us with the evidence of the handwriting about which the expert gave evidence and which I have taken some pains to compare and scrutinise myself. Mr. Akhund naturally argued that a conviction cannot be based upon the testimony of the handwriting expert without substantial corroboration and in this case there was none. It was also urged that it was tot safe for the Court itself to reach conclusion as regards the identity of the writer by a com parison of the disputed and the admitted writings. Reference teas made to the commentary and case‑law under sections 45 and 7 3 of the Evidence Act.

8. With regard to the evidence of a handwriting expert the Courts have frequently observed that by itself it should not be mad the basis of conviction arid the Courts should bole for corroboration. I have examined almost all the cases on this print and the comes to theme generally is that they are partisan witnesses and come prepared to support the party who may have called them. But I have noticed that in most of these cases the Courts have themselves taken the trouble of examining the disputed and the admitted writings and before rejecting the evidence of the expert hate given their reasons fir dosing so. I have myself had a considerable experience of these experts during sty practice at the bar both in Civil and Criminal cases and though is nothing in the Evidence Act which requires the corroboration of the testimony of handwriting expert before it can be acted upon. I am also of the view, if I may say so respectfully, that this evidence needs very careful examination arid should also generally be supported by corroboration to be the basis of conviction in a criminal case, I have seen handwriting experts appearing on opposite sides and giving diametrically opposite opinions with regard to the same writing and supporting it with equal zeal, and force. It is for this reason that their opinion have often been described as that of a partisan or biased witness. But having said this I must add that if after carefully examining the disputed and admitted writings and after scrutinising the evidence of handwriting expert, the Court is fully convinced that the writing of the disputed documents is of the same person who wrote the admitted ones there is no bar in law to base a conviction upon such a finding. I have examined the case‑law with reference to section 73 of the Evidence Act which empowers the Court to compare the disputed and the admitted signatures and writings, and though caution has been advised I have not come across, any authoritative decision in which it has been held that if upon such comparison, and particularly if there is guidance of the evidence of an expert, the Court should not act upon the result for the purposes of basing a conviction. Dealing with this question their Lordships of the Madras High Court in the case of B. Venkata Row (I L R 36 Mad. 159) after referring 'to the weak nature of the evidence of an handwriting expert went on to concede that‑‑‑‑

"there may be cases in which the peculiarities in the handwriting of a person are so numerous and striking and there are so many mannerisms of the forger that he has been unable to avoid in committing his forgery that the Court might well come to the safe conclusion on expert evidence alone that the writing is that of a particular person."

9. The Privy Council in the case of Kassarbai v. Jethabai Jiwan (AIR 1928 P C 277) while dealing with the conclusion of the Chief Justice who had written the judgment in the High Court as regards the genuineness of a disputed signature observed as follows :‑

"If their Lordships were able to reach the same degree of certainty as to the genuineness of these endorsements from the materials before the Court, they would agree with the appellate Court."

However, having compared the endorsement with the admitted signatures their Lordships came to the conclusion that they were unable to agree with the view of the Chief Justice. There were other circumstances in the case which, in their Lordships' opinion, went against the conclusion arrived at by the High Court. The observations of Jenkins, C. J. in the well‑known case of Barendra Kumar Ghose and others (I L R 37 Cal. 467) have often been quoted in subsequent cases. The observation which is often emphasised is this :‑‑

"A comparison of handwriting is at all times as a mode of proof, hazardous and inconclusive."

But in this case, the Sessions Judge who had tried the case had made the comparison out of Court after the conclusion of the arguments so that there was neither the guidance of any expert nor any assistance in the way of arguments by council. It was for this reason that to the passage quoted above the learned Chief Justice had added this‑----

"and especially when it is made by one not conversant with the subject and without such guidance as might be derived from the arguments of counsel and the evidence of experts."

In several other cases which I bad occasion to examine there was just one signature, of which the forgery or authenticity was in question. Naturally, a finding in such circumstances and upon such little material by comparison would be hazardous and inconclusive. But here we are not dealing with one signature or some small bit of writing. There are several pages of the disputed writings which are said to have been forged by the accused Anwar. As against this for comparison there is also a considerable bulk of admitted writings and specimens. The expert has not relied upon general characteristics of writing, such as pen pressure, pen lift, alignment and so on. He has wisely referred to the special peculiarities of certain letters written by accused Muhammad Anwar in the admitted writings and which also found place in the forgeries. As I have said I have myself examined them with great care and the striking peculiarities cannot be appreciated unless the originals themselves have been carefully seen. Upon such comparison and having carefully examined the evidence of the expert I am fully satisfied that the writings on the three forged bills and the office order are that of the accused Muhammad Anwar. Having reached this conclusion and after removal of all reasonable doubts it will be wrong in my opinion to flinch from upholding the conviction of Muhammad Anwar. I may refer usefully here to the judgment of the Supreme Court in the case of Ali Nawaz Gardezi (PLD1963SC51). In that case there were two experts, both of whom had given their opinion that the document of divorce was written by the same person who had written the letter Exh. D ‑I. Their Lordships having themselves compared the two writings reached a contrary conclusion, They were careful enough to demonstrate it by reproducing in the judgment photostat copy of the disputed as well as the admitted documents. Therefore, in the ultimate analysis if on comparison the Court reaches a farm and definite conclusion with regard to a particular writings even though that conclusion is against the opinion of the handwriting expert such a conclusion can prevail.

10. With regard to the case of accused Umar there is only the evidence of P. W. 9 Muhammad Hamid. He is the maker of the rubber stamp which was fixed on the forged hills. He stated that accused Umar bad come to him and had this rubber stamp prepared by him. He referred to the entry in Exh. 35 which should have contained the signature of the person to whom the stamp was delivered on preparation. This was the practice of Muhammad Hamid, but the signature which was found on Exh. 35 is admittedly not that of accused Umar. It was for this reason that the witness sought to give an explanation by saying that the signature was not made in his presence because he had gone to get the change of the 10‑rupee note which Umar had given him for the purposes of taking his charges for the preparation of the stamp. To strengthen his case he said that another tall man with white complexion had accompanied Umar. Tire suggestion was that it might be during the absence of Hamid when he had gone to bring the change of the 10‑rupee note that this tall man might have signed the register, Exh. 35. He did identify Umar in the identification parade, but this was useless because he admitted that not only had he known him from before but had even gone to his office where he had received payments from him for his work. When asked whether he had given the name of Umar in his statement before the police be said he could not do so because he knew him only by face. The only guarantee for accepting the evidence of Hamid as true would have been in the circumstances of the case, if he had been supported by the entry in his register. This, as I have pointed out, did not support him. I therefore, give him the benefit of doubt and allow his appeal and set aside the conviction and sentence passed against him. He is on bail. His bail bond shall be discharged.

11. In view of my conclusion with regard to the case of accused Muhammad Anwar I uphold his conviction for the offence under section 468, P. P. C. and sentence him to 3 years' R. I. and a fine of Rs. 10,000, in default of payment of fine he shall undergo further R. I. for one year. With this modification his appeal is dismissed. His bail bond is cancelled.

A.E, Appeal dismissed.

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