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Criminal Appeal No. 276 of 1965, decided on 8th January 1968.

S. 45‑Expert opinion‑Evidentiary value‑Accused charged with criminally misappropriating Govern ment funds by forging document‑Prosecution basing its case entirely on Handwriting Expert's opinion‑Acquitted co‑accused responsible for maintaining cash register, depositing Government monies in treasury and keeping documents in dispute in his safe custody‑Expert's opinion, held, not binding on Courts and reliabi lity depends in each case on its own circumstances‑Conviction set aside.

Muhammad Naeem v. Crown P L D 1950 Lah. 507 ref.

Mohammed Hayat Junejo for Appellant.

S. Ale Reza for A. A.‑G. for the State.

Dates of hearing : 20th and 21st December 1967.

Muhammad Ismail son of Khuda Bux, a clerk in the office of S. D. O., Water Works, Khairpur was tried, along with Abdul Ghafoor a co-accused (acquitted) for offences under sections 409, 468, 477-A, P.P.C. and 5 (2) of the Prevention of Corruption Act, 1947, by the Special Judge‑cum-Inquiry Officer, Hyderabad, and was convicted and awarded the following sentences:

Under section 409, P. P. C. one year's R. I. and a fine of Rs. 300 or in default three months' R. I.

Under section 5(2) of the Prevention of Corruption Act, 1947, one year R. I. and a fine of Rs. 300 or in default three months' R. I.

Under section 477‑A, P. P. C. to one year R. I. These sentences were ordered to run concurrently.

2. The brief facts of the prosecution case were that on 10‑11‑1958, Ali Asghar P. W. 1, a munshi of one Haji Mir Ghulam Hussain of Khairpur District went to the office of Abdul Ghafoor S. D. O., (the acquitted accused) to deposit a sum of Rs. 33‑8‑0 on account of arrears of water charges. Ali Asghar P . W. was allegedly directed by the said Abdul Ghafoor to pay the amount to his clerk Muhammad Ismail accused. It was alleged that Rs. 333‑8‑0 were accordingly paid by Ali Asghar to Muhammad Ismail accused who prepared a receipt for the said amount and got it signed from Abdul Ghafoor. The original receipt given to Ali Asghar P. W., by accused Muhammad Ismail for the sum of Rs. 333‑8‑0 was produced as Exh. 3 during the dial.

3. In the year 1960, Samiur Rehman S. D. O., successor of Abdul Ghafoor, demanded from Ali Asghar P. W. arrears of water charges on the same account for which lie had paid in the year 1958, vide Exh. 3. Ali Asghar P. W. produced Exh. 3 before Samiur Rehman S. D. O., in proof of the fact that no arrears were due on that account. On 18‑5‑1960, Manzoor Ahmad, XEN P. W. 3, received a written report from Samiur Rehman, supported by several documents, (Exhs. 13 to 19) which showed that an amount of Rs. 33‑8‑0 only had been deposited in the Government Treasury, out of the total amount of Rs. 333‑8‑0 which had been paid by Ali Asghar P. W. in the year 1958. After some inquiry, Manzoor Ahmad XEN, wrote a letter, Exh. 20, to the Anti‑Corruption Police, Sukkur for necessary action. After necessary permission was obtained from the relevant authorities, E. I. R. Exh. 26 was lodged by S. H. O., Khairpur. The case was subsequently challaned in the Court of Special Judge‑corn‑Inquiry Officer, Hyderabed who, as already dated, convicted the appellant.

4. In his statement under section 342, Cr. P. C. Muhammad Iamail accused denied his guilt and stated that he was innocent. He denied that he had taken Rs. 333‑8‑0 from Ali Asghar P. W.1. He stated that the amount was received by Abdul Ghafoor and as that he had done was to prepare receipt Exh. 3. He further dated that it was the responsibility of Abdul Ghafoor to accept cash and to maintain accounts. He denied to have committed any forgery in Exh. 10, which was a copy of Exh. 3. He, however, led no evidence in his defence.

5. The prosecution examined Ali Asghar P. W. 1, Fazalullah P. W. 2, Manzoor Ahmad P. W. 3 and Khurshid Ahmad, Hand writing Expert P. W. 6, in support of it's case. Ali Asghar P. W. 1, who is the most important witness in this case, stated in examination‑in‑chief that when he went to deposit the money on 10‑11‑1958, Abdul Ghafoor directed him to Muhammad Ismail accused who was then sitting at the adjoining table. He further stated that he paid Rs. 333‑8‑0 to Muhammad Ismail accused who wrote a receipt for that amount and then took the receipt book to Abdul Ghafoor for his signatures. Receipt Exh. 3. was then given to him, after Abdul Ghafoor had signed it in his presence. In cross‑examination he stated that he knew Muhammad Ismail accused from before. In answer to a question put to him he said that he had not mentioned the name of Muhammad Ismail accused in his statement before the Police. Muhammad Ismail P. W. 5, A. S. I., Anti‑Corruption Establish ment, Khairpur, stated in cross‑examination that Ali Asghar P. W. 1 had not stated before him that he was directed by Abdul Ghafoor to deposit the money with Muhammad Ismail accused. He further stated that the name of Muhammad Ismail accused had not transpired when he took up the investigation of this case. The learned trial Judge however convicted the accused on the evidence of Khurshid Ahmad, Handwriting Expert P. W. 6, after exonerating Abdul Ghafoor, his co‑accused. The learned Judge accepted the plea of Abdul Ghafoor that at best he was negligent in not verifying the amount men tioned in receipt Exh. 3 and its duplicate Exh. 10, both of which he admittedly signed and initialled respectively. How ever, the learned Judge failed to take notice of the evidence of Fazalullah P. W. 2, who was a Sub‑Divisional Clerk in the office of S. D. O. Water Works Khairpur in the year 1958. He clearly stated in cross‑examination that the register, Article "B", was maintained in the handwriting of Abdul Ghafoor since 1958. According to him, all entries in the said register were made by Abdul Ghafoor accused after he had received the amounts, alongwith, the carbon copies of receipts originals whereof were issued to depositors. He further stated that it was the duty of Abdul Ghafoor accused to handle cash transactions in the office. He further stated that the clerks used to receive money as a matter of practice only but the same used to be passed on to Abdul Ghafoor, along with the receipt book, for his signature after the clerk concerned had prepared the receipt. According to him he had been called upon by Abdul Ghafoor on many occasions to prepare such receipts. He further stated that the cash book, roznamcha and receipt books used to remain with Abdul Ghafoor accused under lock and key. In answer to a question he admitted that he, alongwith, Abdul Ghafoor was tried on a similar charge prior to this case. Muhammad Ismail A. S. I. Anti‑Corruption Establishment P. W. 5. confirmed in examination‑in‑chief that Abdul Ghafoor had been convicted, in that case by the Senior Civil Judge, Khairpur.

6. It appears that the learned trial Judge fixed the respon sibility of forgery of Exh. 10 on Muhammad Ismail accused without realising that it was the responsibility of Abdul Ghafoor alone to handle cash transactions, to maintain cash register, roznamcha and to deposit the amounts in the Government Treasury. Fazalullah P. W. 2 clearly stated that as a matter of practice clerks used to receive cash amount from the depositors but after preparing the receipts, they used to hand them over to the S. D. O. Incharge when the receipt book used to be placed before him for his signatures. This part of his evidence was not questioned in cross‑examination. In any case such a proce dure does not appear to be abnormal. In this view of the matter it is difficult to believe that Muhammad Ismail accused would have committed forgery in Exh. 10 when he could not derive any conceivable benefit from the transaction. The learned trial Judge was impressed by the plea of Abdul Ghafoor that he was misled by Muhammad Ismail accused, in whom he had reposed confidence, in signing and initialing Exh. 3 and Exh. 10 respectively. On my part I have not been able to pursuade myself to accept this plea. It is hardly believeable that Abdul Ghafoor would have signed these docu ments and then made an entry of them as Exh. 6 in his cash book without realising that Exh. 10 was a forged document. For all, these reasons I am of the view that the forgery of Exh. 10 was committed by Abdul Ghafoor who alone could possibly benefit himself from such a crime.

7. The learned trial Judge relied on the evidence of Khurshid Ahmad, Handwriting Expert P. W. 6 in support of his conclusion that Muhammad Ismail accused was responsible for forging Exh. 10 and was therefore, guilty. The evidence of Khurshid Ahmed however, is not only highly unsatisfactory but goes a long way in support of Muhammad Ismail accused. He stated that in his opinion "the duplicate receipt Exh. 10. Again says that the words thirty‑three, annas eight are in the handwriting of Muhammad Ismail Shaikh." It would be recalled that Exh. 3, the original of Exh. 10, was prepared by Ismail accused for a sum of Rupees three hundred and thirty- three and annas eight only while Exh. 10, it's copy, was forged to show an entry of Rupees thirty‑three and annas eight only. Accord ing to Khurshid Ahmad P. W. 6, the original entry of Rupees three hundred and thirty‑three and annas eight only was erased and then substituted by an entry of Rupees thirty‑three and annas eight only. This change, according to him, was in the hand of Muhammad Ismail accused, I have carefully examined and compared Exh. 10 and Exh. 42 (the specimen writing of Ismail accused) and have found that the letters "Th" in Exh. 10, which were in the hand of Ismail accused, were un-tampered. In fact there was hardly any need to tamper with these two letters because they were common to "Three hundred and thirty‑three". If Muhammad Ismail accused was to forge Exh. 10 nothing could have been more easier for him than to rub out the entire original entry of "Three hundred and thirty‑three and annas eight" and then forge an entry of "Thirty‑three and annas eight only" instead. I am clear in my mind that the forgery of Exh. 10 was committed by Abdul Ghafoor. While erasing the original entry of "Three hundred and thirty‑three", he was clever enough to leave the original letters "Th" which were in the hand of Ismail accused, un-tampered in an attempt to show as if Muhammad Ismail accused was responsible for the forgery. I consider that the evidence of Khurshid Ahmad P. W. 6 is not trustworthy and cannot safely be relied upon. For this conclusion I find support from a judgment of Lahore High Court reported as Muhammad Naeem v. Crown (P L D 1950 Lah. 507) where, disregarding the evidence of Handwriting Expert, their Lordships at page 522 observed:

"The despatch of the telegram (Exh. P. E) to Rashid Shah by Naeem from Lahore, Ghulam Ali Shah (P. W. 15) stated that he was a licensed telegram writer at Lahore and the telegram P. E. was written by him and signed on the back by someone other than Naeem. The specimen writing of Naeem appellant was obtained by the trial Court and a Handwriting Expert, Mr. Cyril Bhan (P. W. 61 expressed the opinion that not only signature Kabir Shah' at the back of the telegram were also in the handwriting of Muhammad Naeem appellant. Ghulam Ali Shah said that except the signature Kabir Shah', on the back of the telegraphic form, the rest was written by him. The trial Court held that the signature Kabir Shah only was written by Naeem. We have seen the original telegram and the specimen writing of Muhammad Naeem and we accept as correct the finding of the trial Court that the telegram was only signed by Muhammad Naeem. The opinion of an expert is never binding on a Court. It is admitted in evidence only to help the Court in arriving at a correct decision. But it does not follow that the opinion of an expert is always correct. In this case it is not."

For all these reasons I am of the view that the learned trial Judge was in error in relying on the evidence of Handwriting Expert alone in convicting Muhammad Ismail accused. He was further in error not to have given due weight to the evidence of Fazalullah P. W. 2.

8. In the result, this appeal is allowed and the appellant shall be released forthwith unless he is required in some other case. Fine, if already recovered, shall be refunded to the appellant. If he is on bail his bail bonds shall stand discharged forthwith.

Appeal allowed.

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