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Appeal No. 397 of 1966, decided on 6th August 1968.
S. 419/109‑Abetment for cheating‑Opinion of Handwriting Expert not corroborated by any other evidence‑Possibility of some one else posing as accused not ruled out‑Circumstance creating serious doubt‑Accused, held, entitled to benefit of doubt‑Conviction set aside.
S. 45‑Expert evidence‑Opinion of Handwriting Expert‑‑Cannot be relied upon unless corroborated by other evidence.
Shamsul Huq Chowdhury for Appellant.
A. T. M. Masud, D. L. R. with A. T. Sadi for the State.
Date of hearing : 3rd June 1968.
In this appeal the accused was convicted by a Special Judge under section 419/109 of the Pakistan Penal Code and sentenced to one month's simple imprisonment and a fine of Rs. 19 in default of payment of the fine he was to suffer rigorous imprison ment for two weeks. At the time of admission of the appeal a rule for enhancement of sentence was issued. Both the rules were heard together.
The prosecution story is that a sum of Rs. 18.12 paisa was to be paid to one Meherunnessa Khatun P. W. 2 as compensation under the East Bengal State Acquisition and Tenancy Act. On 20‑10‑1962 the Disbursing Officer P. W. 3 Mr. Kazi Abdul Mazid paid the sum to a person posing as the said Meherunnessa Khatun on the identification of the accused appellant who is a member of the Union Council concerned. Meherunnessa Khatun not having received the sum filed a complaint through her son P. W. 1. The matter was investigated and ultimately the appellant was put up on trial under the above‑mentioned charge and was convicted and sentenced as aforesaid. Hence this appeal.
So far as the prosecution case is concerned it is not challenged by the accused that the sum was not disbursed to a fake person. The left thumb‑impression on the Disbursement Register Exh. 6 does not tally with any of the finger‑print impressions of Meherunnessa Exh. 9‑9‑D. That is the opinion of the Finger Print Expert and that is obvious from a comparison of the finger prints. The Offence is sought to be brought home to the accused by a signature appearing in Exh. 6 which the prosecution claims was made by the accused Tobarak Ali Majhi. The signature in Exh. 6 appears thus ; Tobarak Ali Majhi." Specimen signatures of the accused were taken, Exh. 7 series ;. There are three sheets in which the accused was made to sign four times in each sheet, but the accused always signed as "Tabarak Ali Majhi." The Handwriting Expert has given evidence that the signature in Exh. 6' tallies with the specimen signatures of the accused. The Chairman of the Union Council was examined as P. W. 7. In his examination‑in‑chief his evidence is recorded as follows:
"The accused Tabarak Ali Majhi was a member of the Union Council from 1960. Shown Exh. 6 bill‑cum‑acquittance roll I am not definite if it contains his signature."
In Cross‑examination he says:
"Shown the signature on the acquittance roll and Exh. 74 sheets the name has not been written in both places with the same words. Words are also different objected to as the witness is not an Expert."
The learned Sessions and Special Judge has held that as the accused was a member of the Union Council the Chairman was trying to shield him. But it must be held that conviction of an accused person must be based on evidence and not on conjecture. Therefore, there is no corroborating evidence of the opinion of the handwriting Expert. The Chairman of the Union Council was a competent person but he has failed to identify the signature on the bill‑cum‑acquittance roll as that of the accused. He has also given reasons for his view that the signatures were not the same. It must be noticed that the signature on the bill‑cum acquittance roll shows the letter (a) after (r), whereas the specimen signatures show the letter (o) after (r). The best evidence in this case would have been that of Disbursing Officer himself P. W. 3. He scrupolously avoids identifying the accused on the dock as the person who identified Meherunnessa Khatun can 20‑10‑1962 before him. His evidence is an evasive one. In examination‑in‑chief he says ; "She was identified before me by Tabarak Ali Majhi, member Durgapur Union Council." But he does not say that the accused in the dock is the person who identified Meherunnessa Khatun before him. In cross‑examina tion he says ; "I came to know member Tabarak Ali on the day of disbursement as he introduced himself as such". But again he does not say that the accused in the dock was the said person.
The learned Special Judge has not at all adverted to this aspect of the evidence of P. W. 3.
The learned Deputy Legal Remembrancer has cited some rulings but they are with respect to the identity of Finger‑Print impressions. That fact is not essential here for the conviction of the accused person. So far as the opinion of the Handwriting Expert is concerned it has been held consistently that it is not anseract (sic) science and there must be corroborative evidence f before one can rely on the same.
In this view of the evidence, the possibility of some one else posing as the accused and identifying Meherunnessa Khatun before the Disbursing officer cannot be ruled out. This creates a serious doubt, in ones mind and the accused is entitled to the benefit of that doubt.
I therefore allow the appeal, set aside the order of conviction and sentence passed against the accused and he is to be discharged from the bail bond and the fine if paid is to be refunded. The connected rule is discharged.
Appeal allowed.
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