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Case No. 159 of 1984, decided on 18th December, 1985.

‑‑‑S. 419/420/467/468/471‑‑Evidence Act (I of 1872), S. 45‑‑Opinion of Handwriting/ Finger Print Expert‑‑Evidentiary value of‑‑Police official who prepared sample sheet of finger prints or obtained specimen signatures of accused, not produced‑‑Magistrate in whose presence sample, finger prints or specimen signatures obtained, not cited as witness‑‑Positive opinion of Handwriting/Finger Print Expert, in absence of proper identification of specimen thumb‑impression/handwriting, held, would be of no avail to prosecution‑‑Offence under S.467/468 was not made out in circumstances.

‑‑‑S. 471‑‑Forged document, using of‑‑Application for loan brought by accused‑‑Mere bringing of loan application by accused, held, was not sufficient to show that accused had reason to believe that application was a forged document‑‑Offence under S.471 was not made out in circumstances.

‑‑‑S. 419/420‑‑Impersonation‑‑No evidence of impersonation by accused as applicants‑‑No evidence of cheating bank authorities or dishonestly inducing them to sanction loan‑‑Offences under S.419/420, held, could not be made out in circumstances.

Muhammad Ameen Lone, Special Prosecutor for the State.

Ch. Nawab‑ud‑Din Mahmood for Respondent No. 1.

In this case, on the basis of two forged applications for the grant of agricultural loan for a sum of Rs.1,000 purporting to have been filed by one Chanan Khan, the said loan was sanctioned and fertilizer worth the said sum was fraudulently obtained. According to the report under section 173, Cr.P.C. the persons who had posed and affixed on the loan applications their thumb‑impressions as Chanan Khan loanee, as Hidayat Ali surety, as Bashir Ahmad and Kaley Khan, attesting witnesses of the loan application and the person who had impersonated as and appended his signature as Rashid Ahmad, another attesting witness, could not be found but it was discovered that after sanction of the loan accused Ilam Din had affixed his thumb‑impression on the supply order No. 48026, dated 13‑2‑1968 in token of his having received the fertilizer worth the amount of said loan while co‑accused Mukhtar Ahmad had, posing as Ghulam Qadir, his father, the Chairman of Pandoke Union Council made his signature (signature of Ghulam Qadir) on the said loan applications and on the report of Patwari in token of his having identified the person and thumb‑impression of the alleged loanee Chanan Khan and attested the report of the Patwari.

2. Thus, the accusation against accused Ilam Din in this case is that on sanction of loan of Rs.1,000 on the basis of two forged applications in the name of Chanan Khan son of Fojdar for the grant of loan of Rs.1,000 for the purchase of fertilizer for agricultural land, he fraudulently and dishonestly received the fertilizer on the basis of supply orders issued by the bank and affixed his thumb‑impression on them in token of his having received the said fertilizer. So far as Mukhtar Ahmad co‑accused is concerned, allegation against him is that he made false signature of his father Ghulam Qadir who was then Chairman of the Union Council for the identification of the loanee Chanan Khan and for attestation of report of the Patwari.

3. Charge in this case was framed against the two accused for offence under sections 419/420/467/468 and 471, P.P.C. The prosecution produced seventeen witnesses and closed the prosecution case. Accused Ilam Din in his statement under section 342, Cr.P.C. denied the charge, against him and stated that he had been falsely involved on account of his enmity with Chanan Khan. Mukhtar Ahmad in his statement under section 342, Cr.P.C. denied having signed as Ghulam Qadir on the said applications. He also attributed this case to enmity with Muhammad Hanif son of said Chanan Khan. They were asked as to whether they would appear as witnesses in their own defence in exercise of the option available to them under subsection (2) of section 340, Cr.P.C. as it stood before its amendment in 1985. Both the accused persons stated that they would appear as witnesses in their own defence to disprove the charges or allegations made against them. Ilam Din produced Sain Darbar Ali as D.W.1 and himself appeared as D.W.2. Mukhtar Ahmad, however, later changed his mind and declined to appear as a witness in his own defence. Since I was and am of the opinion that subsection (2) of section 340, Cr.P.C. which was substituted by virtue of Ordinance XII of 1985, making it incumbent upon the Court to record statement of the accused as witness in his own defence, was not retrospective in effect and was not applicable to pending cases, I did not compel the said accused to appear as a witness in his own defence.

4. As for offence under section 467/468, P.P.C. P.W.2 Chanan Khan stated that he had not filed any loan application. Hidayat Ali appeared as P.W.3 and stated that he had never affixed his thumb‑impression on any loan application as a surety and that the thumb‑impressions purporting to be his on the said loan applications were of somebody else. Ghulam Qadir, Chairman of the Union Council appeared as P.W.7 and stated that he had not signed the said loan application. Giving details of the statements of the remaining P.Ws. is not necessary because the crucial questions involved in relation to these offences are firstly as to whether there is any evidence on record to show that the thumb- impression affixed on the supply orders and the documents attached thereto have been proved on record of this case to be of Ram Din and secondly whether signatures purporting to be of Ghulam Qadir appearing on the said applications are in the handwriting of Mukhtar Ahmad accused. In connection with the first question, Malik Muhammad Ghaus, Finger Print Expert, appeared as P.W.12 and stated that the thumb impressions Q.3 and Q.4 purporting to be by Chanan Khan on supply orders are identical with the specimen thumb‑impressions on the sample papers, Exh.P.W.12/5 (two sheets) made by Ilam Din. However, to give effect to the said evidence of the said finger print expert, it is first necessary to ascertain whether the specimen thumb‑impressions on sample sheets Exh.P.W.12/5 have been proved on record to be of Ilam Din accused. For that production of Muhammad Bashir, Head Constable, who is shown on the said sheets to have obtained the said thumb -impressions and of the Magistrates before whom the said specimens are shown to have been obtained was necessary. However said Muhammad Bashir was not produced by the Special Prosecutor and was given up, by him on 3‑11‑1984. Furthermore, no Magistrate has appeared to state that the specimen thumb‑impressions of Ilam Din accused on sample sheets Exh.P.W.12/5 were taken in his presence. In the absence of proof of identity of said thumb‑impressions, the result of the comparison made by the said expert is absolutely of no avail. As regards the second question whether signatures purporting to be of Ghulam Qadir appearing on the said loan applications are in the handwriting of Mukhtar Ahmad accused or not, Sh. Muhammad Din, Handwriting Expert, appeared as P.W.14 and stated that the signatures were similar in characteristics to the specimen signatures reading as Ghulam Qadir made by the accused on sample sheets, Exh.P.W.14/13 to Exh.P.W.14/17. However, the police officer (Sub‑Inspector of F.I.A. of A.D.B.P. Unit) who is shown on the said sheets to have obtained the said specimen signatures of Mukhtar Ahmad accused was not produced. Furthermore, no Magistrate has appeared ,to prove that specimen signatures reading as Ghulam Qadir on the said sample sheets were made by accused Mukhtar Ahmad in his presence. The two Magistrates who actually appeared in this case as P.W.15 and P.W.16, did not say so. P.W.15 Khalid Bashir Tarar only deposed that specimens of signatures of one Muhammad Iqbal who was the third accused in this case and has since died were taken in his presence while P.W.16 Ghulam Sarwar stated that the specimen signature of Rashid Ahmad (attesting witness of the loan application) on eight specimen sheets were taken in his presence. As a matter of fact the signatures of the Magistrate before whom specimens of signatures reading as Ghulam Qadir were obtained on sheets, Exh.P.W.14/13 to Exh.P.W.14/17, are totally different from signatures of said two Magistrates on specimen sheets Exhs.P.W.15/1 to 12 and Exhs.P.W.16/1 to 8. It, therefore, appears that actually the said Magistrate was never cited as a P.W. in the calendar. It is thus clear that there is no evidence on record to show that the specimen thumb‑impressions of Ilam Din had been taken and specimen signatures of Ghulam Qadir on the said specimen sheets had been made by accused Mukhtar Ahmad in the presence of a Magistrate.

5. Failure of the prosecution to prove that specimens of handwriting/signatures were in the hand of the accused or specimens of thumb‑impressions taken were of the accused takes away the very basis of the opinion given by the handwriting or finger print expert. The proof that specimen writings/ signatures/thumb-impressions taken were of the accused is the foundation on which the superstructure of the comparison by the experts and their consequent opinion can be built: It is obvious that in case the foundation is not provided, no superstructure can be raised. The proof that author of the specimens of writing/ signatures or the person who affixed specimen thumb -impressions were the accused is an indispensable requirement of law which alone gives validity to the opinion of the handwriting/finger print expert. Without that the opinion and evidence of an expert is a mere exercise in futility and no Court can give effect to the same. The roof of the identity of author of specimens is the connecting link in he chain of proof of correspondence of suspected writing/signature/ finger prints with the specimens but in the absence of the same, the chain is broken and its portions fall as under destroying the continuity of the chain of proof essential to connect suspected writing/signature or thumb‑impressions with the accused. I am fortified in this view of mine by the law laid down in Bashir Ahmad v. The State 1977 P Cr. L J 893 wherein it was held by Gulbaz Khan, J that since the Magistrate before whom specimen signatures of the accused had been obtained had not been examined in this case, there was no certainty that the said specimen signatures were of the accused and evidence of handwriting expert was accordingly of no consequence. In the present case, since the identity of the said specimen thumb‑impressions and said specimen signatures is not established on record, the evidence of said finger print and handwriting experts is of no avail to the prosecution. In my opinion, therefore, no case for the offences under section 467/468, P.P.C. has been established against the two accused this case.

6. Since the accused are not proved to have made any forgery on the said loan applications or supply orders, they cannot be considered to have known that the said documents were forged. P.W.5 S.M. Munir Hussain Rizvi, who was officer in Lahore Branch of A.D.B.P. and had made recommendation for sanction of the said loan had, no doubt, deposed that the application Exh.P.A. was brought to him by accused Mukhtar Ahmad but there is no corroboration off' his said statement by any other witness or circumstance and at any rate the mere fact that accused brought to him said application is not sufficient to show that accused Mukhtar Ahmad knew or had reason to believe that the said applications were forged documents., Offence under section 471, P.P.C. is also, therefore, not made out against the accused.

7. Furthermore, there is absolutely no evidence on record to the effect that the accused falsely impersonated as Chanan Khan and Ghulam Qadir respectively and cheated the bank authorities and thereby dishonestly induced them to sanction the said loan and issue supply order to them for receipt of fertilizer worth Rs.1,000 or that the accused Ham Din impersonated before the owners of fertilizer agency as Chanan Khan and cheated them and thereby dishonestly induced them to surrender to him the fertilizer worth Rs.1,000. The offences under sections 419 and 420, P.P.C. are also, therefore, not proved against the accused.

8. For the foregoing reasons, I find that no case for the scheduled offences with which the accused have been charged is made out against the accused. I, therefore, acquit them. They are already on bail. Their bail bonds stand discharged.

9. However, before I part with this judgment, I feel constrained to say a few words regarding the nature of investigation in this case. The Inspector F.I.A. Lahore who prepared the challan on 31‑5‑1981 did not cite the police officer of F.X.A. who had obtained from Mukhtar Ahmad specimens of signatures reading as Ghulam Qadir. He also did not cite the Magistrate before whom specimens of thumb‑impressions of Ilam Din and specimens of signatures reading as 'Ghulam Qadir' in the handwriting of Mukhtar Ahmad had been obtained by the Investigating Officer. The dictum that identity of author of specimens must be proved before the positive opinion of the experts, duly proved in evidence, can be given effect to on the basis of comparison made by them of the suspected thumb‑impressions/handwriting/signatures with the said specimens is not new. The Inspector F.I.A. himself admitted by implication that the said dictum was not unknown to him as he cited two Magistrates whose statements, however, did not relate to the crucial evidence required in this case, namely, that specimen thumb‑impressions had been obtained from Ilam Din and specimen signatures purporting to be of Ghulam Qadir had been obtained from Mukhtar Ahmad in their presence. The citing of said two Magistrates as prosecution witnesses in the calendar of witnesses is an eloquent testimony to the awareness of the said police officer of the legal necessity of citing the Magistrate before whom specimen thumb‑impressions of Ram Din were taken and the police officer who had taken specimen signatures of Ghulam Qadir from Mukhtar Ahmad and the Magistrate before whom the said specimens had been obtained. In my opinion, therefore, it was a case of extreme negligence on the part of the said Police Officer when he did not cite as P.W. the Police Officer who had taken specimens from Mukhtar Ahmad accused and the Magistrates who had permitted the Investigating Officer to take the specimens of thumb‑impressions of Ram Din in their presence or had allowed the said Investigating Officer to take specimens of signatures of Ghulam Qadir in the handwriting of Mukhtar Ahmad. It is mainly on account of the failure of the said Inspector F.I.A. to cite the said Police Officer and the said Magistrates as prosecution witnesses in the calendar of witnesses that in spite of positive evidence of the finger print and handwriting experts prima facie showing that accused Ilam Din had received the said fertilizer worth Rs.1,000 and accused Mukhtar had made forged signatures of his father Ghulam Qadir, that the said two persons have been acquitted. Let, therefore, a copy of this judgment be sent to the Director‑General of F.I.A. Islamabad, for issuance by him of such instructions as he may deem necessary for preparation of the challans and citing the names of Police Officers and Magistrates in the calendar of witnesses in the challans.

10. I think I would be failing in my duty if I do not point out that conduct of the prosecution in this case was also not above reproach. The challan in this case was submitted in the Court of Sardar A.R. Gorsi, Magistrate Section 30 by Inspector Legal F.I.A., Lahore, on 19‑7‑1981. Before the submission of the challan, it was duty of the prosecution to check the challan for any lacunas in investigation or any omission in the preparation of the challan by the Inspector F.I.A. However, there is no indication on the challan papers of realization by the said Inspector Legal F.I.A. of the grave omission in the calendar of witnesses of the name of Sub‑Inspector F.I.A., A.D.B.P. Unit who had taken the specimens of signatures of Ghulam Qadir from accused Mukhtar Ahmad and of the names of the Magistrates before whom the specimens of signatures reading as Ghulam Qadir and specimens of thumb‑impressions of Ilam Din had been obtained. That constituted material evidence which was to form the basis of the evidence of the experts in this case but the Inspector Legal F.I.A. did not exhibit any consciousness of knowledge or perception of the same. He appears to have failed to give to the challan his deeper application of mind which alone would have brought out to him the necessity of citing of the said Magistrates and the said Police Officer as prosecution witnesses in the case. After the case was sent to this Court, in pursuance of the provisions made in subsection (7) of section 4 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984, a Special Prosecutor was entrusted with the prosecution of the case. He got recorded statements of two experts as P.Ws. 12 and 14 and of the said two Magistrates as P.Ws. 15 and 16. He was the Law Officer directly concerned with the question whether basic evidence which could give meaning to the evidence of the experts had come on the record or not and whether he should file an application for summoning the S.I., F.I.A., A.D.B.P. Unit who had obtained specimens of signatures of Ghulam Qadir in the handwriting of accused Mukhtar Ahmad as well as the concerned Magistrates before whom specimens of thumb‑impressions of Ilam Din had been taken by Muhammad Bashir Head Constable F.I.A. He should have shuddered to find that material witnesses for proof of the said specimens had not been cited in the calendar of witnesses and should have taken up cudgels to meet the challenge to his ability and alertness and ought to have proceeded to file an application for summoning the said S.I. of F.I.A. and the said Magistrates as prosecution witnesses or at any rate as Court‑witnesses, under section 540, Cr.P.C. However, it appears that the realization never dawned upon him of the grave omission in the challan and he failed to take necessary steps to make up the said serious deficiency in the case. I would have myself called the said S.I. and the said Magistrate in suo motu exercise of my powers under section 540, Cr.P.C. but the signature of the said S.I. and the Magistrate on the relevant specimen sheets were illegible and undecipherable giving me no information in regard to their correct names and any further attempt on my part to find out their names and their present assignments would have put me in the position of a Prosecutor instead of a Judge who should neither be inclined nor appear to be inclined towards one party or the other appearing before him. It was primarily the duty of the prosecution to perform the said function which the dictates of the situation demanded from it. The prosecution, however, as already stated, failed to rise to the occasion. To add to it the Special Prosecutor made a statement on 3‑11‑1984 giving up as unnecessary Muhammad Bashir, Head Constable, who had obtained specimen thumb‑impressions of Ilam Din on Exh.P.W.1215, consisting of two sheets which had the devastating effect of depriving the case of the basic evidence of any Police Officer having taken the specimens of thumb‑impressions of Ham Din before a Magistrate which the said learned Magistrate attested to be of accused Ilam Din as identified before him by the said Police Officer. And yet the statement of giving up the said witness was made by learned Special Prosecutor with unparalleled complacency as if the Magistrate himself knew that the person whose specimen thumb‑impressions had been taken before him was accused Ilam Din or there was a presumption of law in respect of the Magistrate having himself known the said accused, both by face and name or it was implicit in his statement itself that specimens taken before him were of said accused Ilam Din and not of any other person. Learned Special Prosecutor little understood that evidence of the Police Officer was necessary to identify the person whose thumb‑impressions were taken by him before the Magistrate as accused Ilam Din while evidence of the Magistrate was meant to show that the act of taking specimens of thumb‑impressions of said accused persons was made in solemn proceedings taken before a judicial official and there was no chicanery on the part of the police in taking the said thumb‑impressions and it had not taken thumb‑impressions of another person and shown them to be of the accused. It is the police officer who had been in association with the accused for some length of time during the course of investigation and he knew with certainty the identity of the accused and he alone could represent to the. Magistrate that the person from whom he had taken specimen thumb‑impressions in his presence was accused Ram Din. The said sad episode took away the connecting link from the chain of proof of genuineness of specimens of thumb‑impressions which constituted the basis of comparison by P.W.12 Malik Muhammad Ghaus, the Finger Print Expert and thereby, rendered statement of said expert of absolutely no evidentiary value. This was culmination of the story of inability on the part of the prosecution agency to rise to the situation and meet the challenge of this case. The effect of these acts of omission and commission on the part of the prosecution agency is that in spite of clear and unambiguous evidence of two experts and other corroborating material on record prima facie connecting the said two persons with the scheduled offences, they had to be let off scot free. Let, therefore, a copy of this judgment be sent to the Deputy Attorney‑General to enable him to issue such instructions to the Prosecutors appointed in this Court as he may deem fit in order to stop the recurrence in future of such incidents resulting in undeserved acquittals on account of the default of the prosecution agency.

S.A. Accused acquitted.

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