Rex v Hasmani (Cr. App. No. 8/1938) [1938] EACA 49 (1 January 1938)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR JOSEPH SHERIDAN, C. J. (Kenya); SIR CHARLES LAW, C. J. (Zanzibar); and FRANCIS, Ag. C. J. (Uganda)

## REX, Respondent (Original Prosecutor)

## ESMAIL HUSEINALI HASMANI, Appellant (Original Accused) Cr. App. No. 8/1938

Evidence—Deposition—Witness—Confession police—Forgery to Signature per pro-Indian Evidence Act, section 25-Criminal Procedure Code (Tanganyika), sec. 265--Penal Code (Tanganyika), Chapter XXXIV.

The appellant was convicted on twenty-five counts embracing charges of forgery, uttering, obtaining money by false pretences and attempts to obtain money by false pretences. The depositions of two witnesses for the prosecution were read in evidence after a police officer had given evidence that these witnesses had left the Territory on certain dates and that they were absent from the Territory to the best of his knowledge and belief. In his petition, the appellant alleged that these witnesses had returned to Tanganyika before the trial and that one of them was present in Court after his deposition had been read out before the close of the prosecution case. At no stage of the trial did the appellant or his advisers draw the attention of the Court below to the fact that either or both of the witnesses were available at the trial.

A written confession made by the accused to the police was put in evidence by the prosecution for the purpose of proving that the appellant had previously made statements inconsistent with those he was making at the trial.

The appellant as the attorney of his father who held a power of attorney which contained no power of substitution from an insurance company signed *per pro* on behalf of the insurance company certain policies of insurance which as well as being false in other material particulars referred to non-existent goods which the appellant knew to be non-existent.

*Held* $(7-2-38)$ .—(1) That no consent of the part of the defence could dispense with the necessity of complying with the provisions of section 265 of the Criminal Procedure Code (Tanganyika) which prescribe that the Judge should inter alia be satisfied by the oath of a credible witness that witnesses were absent from the Territory before allowing their depositions to be read: The time for deciding this point is the time during the trial at which it is proposed to call the witnesses.

(2) That a confession made to the police should not be admitted in evidence for the purpose of proving that the appellant had on a previous occasion made a statement inconsistent with his defence.

(3) That a document signed by a person "per pro" may be a forgery within the meaning of Chapter XXXIV of the Penal Code (Tanganyika) if the person so signing had no authority to sign such document. (Morrison v. London County & Westminster Bank, Ltd. (1914 3 K. B. 356) distinguished).

*Figgis,* K. C., with *Burke, Chitale* and *Vellani* for the appellant.

Branigan, Ag. Solicitor General, for the Crown.

After reviewing the evidence and weight of the evidence the judgment of the Court delivered by Sir Joseph Sheridan, C. J., proceeded as follows: $-$

We will now discuss the question of the admissibility of the depositions of Morrison and Baseleer. We quite agree with Mr. Figgis that no consent on the part of the defence could dispense with the necessity of complying with the provisions of section 265 of the Criminal Procedure Code prescribing that the Judge should inter alia be satisfied by the oath of a credible witness that the witnesses were absent from the Territory before allowing their depositions to be read. The time for deciding the point is in our opinion at the time during the trial at which it is proposed to call the witnesses. A Police Inspector gave evidence that both witnesses were absent from the Territory at the time to the best of his knowledge and belief, and in cross-examination added that they left the Territory on dates which he mentioned. Thereupon the depositions of both were admitted. The evidence connotes that the Inspector after personal inquiries and search, as to the presence in the Territory of the two witneses, failed to find them, and we are unable to say that in these particular circumstances it was unreasonable for the learned trial Judge to be satisfied that the requirement of the section had been complied with. We will later discuss the effect of the admission of the depositions on the assumption that they should not have been admitted.

We will next discuss the question as to whether the confession of guilt made to Shearer should have been admitted; the defence urged us to hold that it was made as a result of an inducement. We have carefully considered all the evidence surrounding the incident and have been unable to discover any evidence of inducement. Accepting Shearer as a witness of truth this confession remains as evidence against the appellant and it is amply corroborated by other evidence in the case both direct and circumstantial.

Regarding the document, Exhibit 183, a confession made to the police which was admitted in evidence for the purpose of proving that the appellant had on a previous occasion made a statement inconsistent with his defence, our view is that being a confession under section 25 of the Evidence Act, it should have been excluded.

Our conclusion is that if we were to discard all of the evidence to which Mr. Figgis took exception and to which we have referred it would not be possible to come to any other conclusion than that the appellant alone was the author of the series of frauds which were brought to light in this case and that his defence was nothing but a wicked attempt to set up that he was but a pawn in the hands of dishonest Bank Managers, with all the cruel consequences entailed. He received consideration in the matter of sentence in the High Court mainly because of the view the Court took of the conduct of the Bank Managers. He was fortunate for we consider his conduct throughout -for which he has shown no remorse—an aggravating factor warranting his being shown no leniency.

An argument was put before us by Mr. Figgis that documents such as the policy of insurance, Exhibit 14, were not forgeries. That document was signed by the appellant per procuration on behalf of The Economic Insurance Company. It referred to non-existent goods. The case relied on was Morison v. London County and Westminster Bank, Ltd. (1914 3 K. B. 356). Now apart from the decision in that case turning on the construction of section 24 of the Forgery Act. 1861, a short reference to the facts will show how different they are from the facts in the present case. From the judgment of Lord Reading, C. J., at page 362, it appears that "The plaintiff carried on business as an insurance broker in the City of London in the name of Bruce Morrison and Co. In 1888 he gave authority to one Harry Abbott, who had been some years in his employment, to draw cheques for the purpose of the plaintiff's business on the banking account of Bruce Morison and Co., at the National Provincial Bank, and to sign them 'per pro Bruce Morison and Co., H. Abbott', and the plaintiff gave written directions and authority to such bank to honour for his account all cheques so signed by Abbott ... About January, 1912, the plaintiff discovered that Abbott by means of the *per pro* signature had drawn a number of cheques on the plaintiff's aforesaid banking account, and had fraudulently applied the same to his own use". It was held (vide the judgment of Buckley, L. J., at 374), "The authority which Morison gave to the National Provincial Bank of England on April 7, 1888, was in general terms. There is no question but that, as between Morison and the National Provincial Bank of England, the cheques signed *per pro* by Abbott were effectual, and the bank were entitled and bound to pay them. Under these circumstances it is impossible to say that the instrument was not a cheque. As between Morison and the National Provincial Bank of England, it was a cheque and not a forged instrument. A document cannot be a forged instrument as between certain persons and not as between others". Far from this case being an authority for the proposition that a person who signed *per procuration* on behalf of another could not be convicted of forgery, as we were asked to hold. it emphasised that section 24 of the Forgery Act, 1861, was enacted for the purpose of bringing such a case within the definition of forgery and so overcoming the difficulty created by the decision in Rex v. White (1 Den. 208). At the same time the decision pointed out that the facts of the case did not fall within section 24. Now what are the facts in the present case? The policy of insurance was signed per pro. on behalf of the Economic Insurance Co. by the appellant who was not authorized by that Company to sign, for their attorney was his father H. D. Hasmani and there was no power of substitution in the power. It refers to non-existent goods and may be said to be false in every material particular. Even if it had been signed by the appellant under a power of attorney it would have been a false document as he could not be held to have been authorized to execute a policy of insurance in respect of non-existent goods which he knew to be non-existent. We have no doubt in holding Exhibit 14 to be a forgery within the meaning of Chapter XXXIV of the Penal Code.

We find that the evidence supports the conviction on all 25 counts and dismiss the appeal.