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Criminal Appeals Nos.172 and 175 of 1985, decided on 11th November, 1986.

‑‑‑S. 408‑‑Evidence, appreciation of‑‑Prosecution witness absolving accused, a Bank Officer, from allegation of withdrawing amount from account of an account‑holder‑‑Signatures of account‑holder on withdrawal form found forged by Handwriting Expert yet his report was not reasoned‑‑Conviction and sentence set aside, in circumstances.

‑‑‑S. 45‑‑Expert witness, reliability of‑‑Handwriting expert giving no reasons for forming opinion and holding signature as forged‑‑Such report, held, was not reliable and excluded from consideration, in circumstance.

‑‑‑S. 408‑‑Evidence, appreciation of‑‑Account‑holder disowned his signatures on withdrawal slips and Handwriting Expert also found his signatures as forged ones‑‑Accused, a responsible Bank official, himself filling withdrawal forms, verifying signatures of account‑holder and further taking payment from cashier‑‑Conviction maintained, in circumstances.

‑‑S. 408‑‑Benefit of doubt‑‑Accused, Bank Manager, authorizing payment on basis of verification of signatures of account‑holder by cashier of Bank‑‑Accused, having acted bona fide, conviction and sentence set aside, in circumstance.

Zaki Muhammad and Muhammad Rafiq Khanzada for Appellant.

Anwar Mansoor and Rashid Nizamani for the State.

Dates of hearing: 21st, 22nd and 23rd October, 1986.

‑‑ These two criminal appeals arise out of the same judgment, dated 4‑12‑1985 passed by Special Court (Offences in Banks) Karachi. The appellants had been charged for offence under section 408, P.P.C. read with section 34, P.P.C. for entering into conspiracy to illegally withdraw from accounts of customers f in their respective capacities Hifazat Hussain being Manager and Deedar Ali being cashier in National Bank of Pakistan Branch of Sita Road and in pursuance of the said conspiracy with dishonest intention of misappropriation Deedar withdrew an amount of Rs.500 from the account of Ghulam Rasool and Rs.6,000 from the account of Muhammad Ashraf by forged withdrawal slips and criminally misappropriated the said amounts. F.I.R. was lodged by Aftab Ahmad Shaikh P.W. 2 on 1‑9‑1977 which was registered on 4‑12‑1978. The prosecution case has been supported mainly by P.W.5 Ghulam Rasool who stated that he did not sign Exh.12 which is the withdrawal slip of Rs.500 from his account. He, however, stated that P.W. Ahmad Sultan used to write withdrawal forms for him. P.W.3 Ahmad Sultan stated in his deposition that he had prepared with withdrawal forms at the instance of appellant Hifazat Hussain and at that time Ghulam Rasool was present and put his signature at Exh.12 in his presence. He further stated that Deedar Ali verified the signature of Ghulam Rasool and Hifazat Hussain endorsed the words 'Pay cash' on Exh.12 and signed the same. P.W.9 Muhammad Ashraf had stated that he had not signed on Exhs.7 and 10 which are respectively withdrawal forms for Rs.2,000 and Rs.4,000 of his account in the relevant bank allegedly signed by Muhammad Ashraf. The withdrawal forms are respectively for Rs.2,000 and Rs.4,000. He had stated that he was maintaining his account in the said bank. He admitted that he used to get his withdrawal forms written by Deedar Ali.

P.W.6 Qurban Ali who is Head Cashier in the said bank and had been working with appellant Deedar Ali stated that Exh. 7 bears verification of the signature of Ashraf by Deedar Ali. He stated that Deedar had brought the withdrawal form of Rs. 2,000 before him and order for payment was made by appellant Hifazat Hussain. He further stated the Deedar Ali told him that Ashraf was sitting in the office of Manager Hifazat Hussain who had asked him to get it encashed. He delivered Rs. 2,000 to Deedar Ali. He admitted that withdrawal form bore his signature. He made such endorsement. He further stated that Exh. 10 is withdrawal form for Rs.4,000 from account of Muhammad Ashraf and it is in the handwriting of accused Deedar Ali and Deedar Ali had verified the signature of account‑holder Muhammad Ashraf. He further stated that order for payment had been made by accused Hifazat Hussain and payment was made to Deedar Ali. He also stated that after one week Muhammad Ashraf came and stated that Exh.10 does not bear his signature. He also said that Ashraf had told him that Exh. 7 also does not bear his signature. In cross‑examination he admitted that withdrawal form Exh.7 bore signature of Muhammad Ashraf on its reverse. He further admitted that he was not Handwriting Expert. He also admitted specimen signatures of Ashraf on Exh. 8 are different and that Ashraf was an illiterate person. He, however, asserted that withdrawal form of Rs.4,000 was prepared by accused Deedar Ali but he had not written it in his presence. He admitted in cross‑examination that Hifazat Hussain does not speak Sindhi and further that signature on withdrawal form is normally verified by Head Cashier. P.W. Abdul Malik who had taken over from Hifazat Hussain as manager of Sits. Road Branch stated that Exh. 7 i.e. withdrawal form of Rs,2,000 was in writing of Deedar Ali and that it bore forged signature of Ashraf. He produced Exh. 8 containing specimen signatures of Ashraf. He also stated that Exh.10 for Rs.4,000 was in writing of Deedar Ali and it bore forged signature of Ashraf. He further stated that the order for each payment is signed by Hifazat Hussain on Exhs.7 and 10 while on the stamp of the bank in token of making the payment appellant Deedar Ali has made his endorsement. He further stated that the signatures of Ashraf on the back of Exh. 7 and Exh. 10 are also forged. There is formal evidence of Shafiuddin P.W.4 who made inquiry in respect of such offence and gave his report Exh.21. The Handwriting Expert Khalid Rasool was examined as Exh. 27. He gave his report Exh.27‑A which shows that Exhs.7 and 10 bear forged signatures of Ashraf. However, that report is without any reasons and, therefore, it is difficult to rely upon the same.

Both the appellants had denied the case of the prosecution in toto in their statements under section 342. Cr. P.C. Both the appellants, however, admitted that they i.e. Hifazat Hussain and Deedar Ali were employees of the bank in their capacities as Manager and Cashier respectively. Deedar Ali had stated that account‑holders themselves withdrew the said amount.

The appellants' counsel Messrs Syed Muhammad Zaki and Gul Zaman Khan have respectively submitted that there is no proof of any conspiracy and that the case against both the appellants has not been proved. The learned trial Court has of course observed that the prosecution had led no direct evidence to establish hatching of plan between the accused persons to defraud Sits, Road Branch of N . B .P. But it took the view that an irreversible presumption arose that the accused had entered into conspiracy to defraud the Sits. Road Branch of N . B . P. as it was only a two officers' branch and that Deedar Ali one officer could not have committed fraud without the notice, abetment and connivance of Hifazat Hussain and, therefore, the fraud was committed in furtherance of their common intention. However, we are of the view that no conspiracy had been proved in this case between the two appellants and irreversible presumption could not be drawn in respect of the fraud and collaboration between the two accused /appellants because the very basis of the presumption that it was only a two officers' branch is not correct in view of the fact that there was another cashier namely Qurban Ali who made the payment in respect of the account of Muhammad Ashraf. Therefore, the basis of presumption having been found to be incorrect on a question of fact, the presumption cannot be gathered. Moreover there are no circumstances in this case on the basis of which we could come to the conclusion that there was a collaboration between the two appellants to defraud the bank, therefore, conspiracy is not established and hence we have to scrutinize the case in order to arrive as the individual responsibility of each appellant.

In respect of the amount of Rs.500 withdrawn from the account of Ghulam Rasool, it is correct that Ghulam Rasool had denied his signatures on the withdrawal form but the difficulty for the prosecution is that Ahmed Sultan who is himself a prosecution witness and was employed as Godown Keeper in the National Bank of Pakistan at the relevant branch from 1974 to 1976 has stated that he had filled in the withdrawal form of Ghulam Rasool in presence of Ghulam Rasool and at the instance of Hifazat Hussain viz. Exh. 12. He has further stated that Ghulam Rasool had put his signature on the withdrawal form in his presence and thereafter, Deedar Ali had put his signature on the stamp "Paid" and put his initial in respect of verification and Hifazat Hussain had put his signature on the endorsement "Pay Cash". This statement from a prosecution witness himself is sufficient to absolve both Hifazat Hussain and Deedar Ali from any responsibility in respect of the amount which is withdrawn from the account of Ghulam Rasool. Tha Handwriting Expert has merely given an arbitrary opinion and has not stated that the signature of Ghulam Rasool on Exh. 12 was put either by Deedar Ali or by Hifazat Hussain and since the report is not reasoned, therefore, it is no reliable and hence there is no corroboration in the statement of Ghulam Rasool that he has not put his signature on Exh. 12. We would add here that Ghulam Rasool has himself admitted that he had been asking Ahmad Sultan at various other occasions to fill in his withdrawal forms. In these circumstances none of the appellants can be burdened with the responsibility of having defrauded National Bank of Pakistan for Rs.500 from the account of Ghulam Rasool and both the appellants are, therefore, not found guilty of the same.

However, the position in respect of the withdrawal of Rs.6,000 is different. Ashraf has clearly stated that he had not signed on Exhs. 7 and 10 which are withdrawal forms of Rs.2,000 and Rs.4,000 respectively from his account in the said bank. He had further stated that he used to get his withdrawal forms written by Deedar Ali. In this respect the statement of P.W. Qurban Ali who had been working with appellant Deedar Ali is very important in which he has stated that Exh. 7 bears verification of the signature of Ashraf by Deedar Ali and that Deedar had brought the withdrawal forms of Rs.2,000 and Rs.4,000 before him and order for payment had been made by appellant Hifazat Hussain. He further stated that Deedar told him that Ashraf was sitting in the office of Manager Hifazat Hussain who had asked him to get the cash and that he delivered Rs.2,000 and Rs.4,000 to Deedar Ali. He further stated that Exhs. 7 and 10 were in the handwriting of Deedar Ali. Not only that but Deedar Ali had also verified the signature of account‑holder Muhammad Ashraf. Muhammad Ashraf had complained about the illegal withdrawal from his account and stated that Exhs. 7 and 10 did not bear his signatures. He. however, admitted that Ashraf was an illiterate person but the statement of Ashraf gets corroboration from a complaint which he had made before the relevant bank vide Exh. 6‑B where he had clearly stated that Rs.2,000 and Rs.4,000 were withdrawn respectively on 23‑10‑1976 and 25‑11‑1976 from his account by forged signatures. Qurban Ali had further admitted that Hijazat Hussain did not speak Sindhi and that the signature on the withdrawal form is normally verified by the Head Cashier. In this respect, the statement of P.W. Abdul Malik who had taken over from Hifazat Hussain as Manager is to the effect that Exh. 7 was in the writing of Deedar Ali and it bore forged signature of Asnraf. He was conversant with handwriting of Deedar Ali as he had worked with him, He also produced Exh. 8 containing specimen signatures of Ashraf. He further deposed that Exh. 10 for Rs. 4,000 was also in the writing of Deedar Ali and it also bore forged signature of Ashraf. The order for cash payment on both withdrawal froms Exhs. 7 and 10 had been signed by Hifazat Hussain while on the stamp of the bank in token of making the payment appellant Deedar Ali had made his endorsement. It was further averred by Abdul Malik that the signatures of Ashraf on the back of Exhs.7 and 10 are also forged. We would, however, observe that the signature on the stamp of the branch in respect of verification is of Deedsr Ali while the signature in token of having the payment is not of Deedar Ali as it appears to be different and furthermore we have the evidence of Qurban Ali cashier who had stated that he had made the payments of Exhs. 7 and 10 to Deedar Ali and that he put his signature in token of making payment to Deedar.

The handwriting, expert Khalid Rasool in his report Exh .27-A has of course stated that Exhs. 7 and 10 bore forged signatures of Ashraf but the report having no reasons, is excluded from the consideration.

From the evidence discussed above it appears to us that there is direct responsibility of Deedar Ali who had not only written the withdrawal form of Ashraf but has also verified his signature and further he had also taken the payment from Qurban Ali. If Ashraf had been there, then it was clearly Ashraf who would have received the payment particularly when the signature of Ashraf appears on the back of Exhs. 7 and 10 which are the withdrawal forms. Deedar Ali has done almost everything in respect of these two forms. He has written the same and has identified the signature of Ashraf which identification is found to be incorrect and he has further got the payment from Qurban Ali. It is correct that ordinarily Qurban ‑Ali should not have made the payment to Deedar Ali as the payment is to be made to the person who had signed on the back of the withdrawal form at the time of presentation for the payment but no complicity of Qurban Ali in the fraud is established and Qurban Ali was the cashier of the bank at the relevant time, therefore, bona fide he might have made payment to Deedar Ali who was a responsible officer of the bank on believing the statement of Deedar Ali that Ashraf was sitting in the office of the Manager and that he told him to get the each. However, the signature of Ashraf being forged, the responsibility of Deedar Ali cannot be excluded, particularly in view of his statement that the account‑holders had themselves withdrawn the amounts. It was the duty of Deedar Ali to explain as to why he had received the payment from Qurban Ali, but he had failed to do so. In fact he had not seriously cross‑examined Qurban Ali on the point of Qurban Ali having made the payment for the withdrawal forms Exhs. 7 and 10 to Deedar Ali, and had felt contend with a mere suggestion to Qurban Ali that he was friendly with the account‑holder which suggestion had been denied. In fact Qurban Ali should be more friendly towards his colleague in the branch, Deedar Ali, than to account‑holder, Ashraf Therefore, Deedar Ali appellant is responsible for having misappropriated Rs.6,000 from the account of Ashraf. Hence, his conviction under section 408, P.P.C. is found to be justified but the sentence is reduced to two years R.I. The fine is also reduced to Rs.12,000 in view of the fact that the fine is provided to be double of the amount found to have been misappropriate. In case fine is not paid then Deedar Ali will further suffer R.I. for one year. Benefit of section 382‑B of Cr. P. C. will be allowed to the appellant and the substantive sentence awarded will run concurrently with the substantive sentence in cases Nos.141/84 and 143/84.

The complicity of Hifazat Hussain is attracted only on account of the fact that he authorised the payment but the Manager can act bona fide on the basis of the verification of the signature of the account‑holder made by the cashier and, therefore, we have to give benefit of doubt to Hifazat Hussain who could have acted bona fide on the basis of the identification made by Deedar Ali in respect of the signature of Ashraf. We have already held there was no evidence of any hatching of conspiracy between Hifazat Hussain and Deedar Ali, therefore, Hifazat Hussain appears to be not involved in this matter and he is given benefit of doubt and, therefore, his appeal is allowed and the sentence awarded against him is set aside.

S. G. D.(5109/K) Order accordingly.

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