MUHAMMAD ANWAR Versus STATE

Muhammad Anwar appellant has been convicted under section 5 (2) of the Prevention of Corruption Act, 1947, and sentenced to three months' R. I., in addition to a fine of Rs. 100 in default whereof to suffer R. I. for one month, vide order, dated 20th July, 1976, of Special Judge, Anti- Corruption. Rawalpindi, Camp Jhelum.

2. The prosecution case is that the appellant while serving as Game Inspector Jhelum, received Rs. 30 as compensation fee for compounding the officer under the Games Act, from Muhammad (P. W. 2) on 25th March, 1968. While issuing receipt to him for the sum received, he entered Rs. 10 having been received in the counterfoil. The receipt issued to Muhammad in the sum of Rs. 30 is Exh. P. C., while the counterfoil is Exh. P. K.

3. At the trial the prosecution in all had examined 11 P. Ws.

4. The appellant during his statement under section 342, Cr. P. C. admitted that counterfoil (Exh. P. K.) was in his hand and bore his signatures. He, however, denied that he had signed or prepared Exh. P. C. According to him, he has been falsely involved in this case by Muhammad Aslam (P. W. 1), Games Watcher, against whom he had conducted a departmental inquiry after charge-sheeting him and by Fakhar Hussain, Proprietor, Regent Cinema, Jhelum, whom he had challaned under the Games Act.

5. Muhammad Aslam (P. W. 1) has stated that P. Ws. Muhammad and Ahmad had met him at Rasool Barrage in 1.969 and after some days had handed over him receipts (Exhs. P. C. and P. D.) and told him that they had paid Rs. 30 each as fine, vide the receipts for having been challaned under the Games Act. He has stated that he compared these documents with the counter foils in the office of D. F. O., Jhelum and thereafter coming to know that counterfoil (Exh. P. C.) showed a receipt of Rs. 10 only, he submitted application (Exh. P. A.) to S. P. Anti -Corruption, on which the case was registered. According to him, the receipt Exh. P. C. was produced by him before the police, which was taken into possession, vide memo. Exh. P. E. In cross-examination, he admitted that be had served for 1 years before the lodging of the F. I. R. under the appellant and the appellant had conducted an inquiry against him after charge-sheeting him. It is also admitted by the witness that Fakhar Hussain, Proprietor, Regent Cinema, was his friend and was an old Shikari and had been challaned by the appellant several times.

Muhammad son of Abdullah (P. W. 2) has stated that he had paid Rs. 30 as fine to the accused, who had handed over to him receipt (Exh. P. C.), for having received the amount and he had given the receipt to Muhammad Aslam P. W. He has admitted his relations with Fakhar Hussain. He has categorically stated in cross-examination that, "I am not in a position to say whether the receipt Exh. P. C. is the same which I banded over to Muhammad Aslam P. W".

Sher Ahmad Khan (P. W. 3) has also stated about having paid the amount but he did not produce receipt.

Abdur Rashid (P. W. 4), Head Clerk, had produced Cash Book, containing counterfoil (Exh. P. K.). He stated that Exh. P. C. and Exh. P. K. both bore the signatures of the appellant, which he identifies. He also stated that entries in Exhs. P. C. and P. K. were in the handwriting of accused. In cross-examination, however, he stated that he had not seen the accused writing or signing.

Shera son of Jalla (P. W. 5) has stated of having paid fine of Rs. 25 or Rs. 30, but be had not produced any receipt.

Muhammad Rafique (P. W. 6), Assistant Accountant, stated in exami nation-in-chief that he identified the signatures of the accused on Exh. P. C. However, in cross-examination, he stated that he bad never seen the accused writing or signing.

Muhammad Iqbal (P. W. 7), had produced Summary Register.

Manzoor ul Haq, S. I. (P. W. 8), who had investigated the case has deposed about taking into possession Exh. P. C. Exh. P. K. and some other documents. In cross-examination he stated that he bad obtained the specimen handwriting and specimens of signatures of the accused for purposes of comparison. The specimen and signatures were sent to the Examiner of Questioned Documents, Government of Punjab, Lahore. The Handwriting Expert had asked for more information about which he did not know whether the same was supplied or not.

Ghulam Shabbir (P. W. 9), Range Officer, who stated in examination -in-chief that he can identify the writings and signatures of the accused, stated in cross-examination that the signatures of the accused on Exh. P. C. resembled with those of his signatures which the witness bad occasion to see on papers received in his office, but he also stated that they might well be forged ones.

Ahmad son of Jalal (P. W. 10) stated about having paid Rs. 30 as fine to the accused, but no receipt was produced.

The statement of P. W. 11, D. S. P. is of a formal nature.

Muhammad Bashir, Game Inspector, who appeared as D. W. 1, has stated that the accused had challaned Fakhar Hussain, Proprietor, Regent Cinema, Jhelum, but the challan was withdrawn under the order of the D. F. O.

6. The learned trial Court ruled out the statements of Abdul Rashid (P. W. 4), Muhammad Rafiq (P. W. 6) and Ghulam Shabbir (P. W. 9), as they had admitted that they had not seen the accused writing or signing. The conviction of the appellant is based mainly on the comparison made by the trial Court of the writings and signatures on Exh. P. C. and Exh. P. K., and on the facts of placing the two receipts together and there by observing that Exh. P. C. torn out from Exh. P. K.

7. Learned counsel for the appellant contended that Muhammad Aslam P. W., at whose instance the case was registered, was inimical towards the appellant and was friend of Fakhar Hussain, who was also inimically disposed towards the appellant as the appellant bad challaned Fakhar Hussain many a times and that the case was the result of the mechanician of these persons. He has contended that the prosecution has not been able to prove the case against the appellant as there is no material on record to prove that receipt Exh. P. C. was written or signed by the appellant, that no expert's evidence was led to prove the signatures and writings of the appellant and the persons who had been examined as wit nesses being well versed with the handwriting and signatures of the appel lant had not supported the prosecution case. He has argued that although he does not question the authority of the Court under section 73 of the Evidence Act to make comparison by itself, but in the circumstances of the present case, the conviction merely on the comparison made by the trial Court of the signatures and handwriting of the appellant will not be a safe dispensation of justice. Learned counsel has cited Kessarbai v. Jethabhai Jivan (AIR 1928 P C 277),

8. Learned counsel for the State has controverted the arguments of the learned counsel for the appellant and has submitted that the trial Court has rightly convicted and sentenced the appellant.

9. Admittedly, the prosecution has failed to produce any evidence that Exh. P. C. was prepared and signed by the appellant. The fact is also not denied by the complainant, Muhammad Aslam, that he had strained relations with the appellant. Adverse interests of Fakhar Hussain against the appellant, friendship with whom has been admitted by the complainant and the other P. Ws., also stands proved. It is also the prosecution's own case that receipt Exh. P. C. had remained for some time in possession of Muhammad Aslam, complainant. Muhammad (P. W. 2) has stated in cross-examination that he was not sure whether Exh. P. C. was the same receipt which he had given to Muhammad Aslam P. W. It is in the light of these facts that it has to be considered as to how far it would be proper to sustain the conviction of the appellant on the observations of the Special Judge. The possibility, of the substitution of the receipt, of its having been forged with master mind, in view of the evidence on record that similar receipts were available in the office of D. F. O., cannot be ruled out beyond reasonable possibilities, in view of the fact that the receipt was made use of by Muhammad Aslam P. W., an admitted enemy of the appellant, after about one year of its having allegedly been issued. The receipt was produced before the police by Muhammad Aslam, who had no business to keep or receive the same. Even if all this be set apart, the question still remains posed whether comparison made by the trial Court was sufficient proof to sustain, conviction.

In the case Kesserbai v. Jethabhai Jivan, his Lordship the Chief Justice of Bombay High Court on comparing endorsements with the admitted signatures of Kesserbai had come to the conclusion that the endorsements were in her hand. Their Lordships of the Privy Council in the appeal observed that, "They would have thought it unsatisfactory and dangerous in any event to take a decision in such a case as this on the correct determination of the genuineness of a signature by mere compari son with admitted signatures, especially without the aid in evidence of microscopic enlargements or any expert advice".

Learned counsel for the appellant has also cited Muhammad Nural Hag Mia etc. v. State (P L D 1958 Dacca 341), wherein it has been observed that reliance on comparison of signatures by Court with admitted signatures would be dangerous without the aid of an expert and conviction based on such com parison would be unsafe.

In view of what, all has been discussed and noted above, I do not consider it, to be safe to rely upon the conclusions arrived at by trial Court about signatures and handwriting of appellant on bare comparison in the circumstances of this case. The other observations that having placed Exh. P. K. and Exh. P. C. together, he (the learned Presiding Officer) felt convinced that Exh. P. C. was torn away from Exh. P. K., also cannot be taken to be a conclusive proof as the technique applied was again a bare observation without anything else, being found common, i.e. of the same number having been printed on both, counterfoil and actual receipt.

10. In the circumstances, the prosecution has not been able to prove the case against the appellant beyond reasonable shadows of doubts. The conviction and sentence of the appellant is set aside. The appeal stands accepted. He is on bail, the sureties and bail bonds stand discharged.

M. Z. M. Appeal accepted.