' IFTIKHAR MUHAMMAD CHAUDHRY, J.---Listed petitions have been filed by convict Salma Shahida who has been sentenced, details of which will be given hereinafter, by Special Judge, Anti- Corruption vide judgment, dated 29th September, 2000, separately delivered in two different Challans bearing Nos.1 and 4, arising out of common F.I.R. No,20 of 1994 and learned High Court vide impugned judgment has maintained the judgment of the trial Court. As common questions of facts and law are involved in both these petitions, therefore, we intend to dispose of both the petitions by instant judgment.
2. Precisely stating the allegation against the convict/petitioner are that she being Drawing and Disbursing Officer as well as Headmistress of the Government Girls Primary School, Chak No,39/3-R, District Okara, on having withdrawn salaries of the School Teachers and other employees of the Education Department did not make payment of the same to them, as a result whereof, school teachers and other staff starting poring applications against her, to different quarters.Ultimately criminal case vide F.I.R. Referred to herein above was registered against her under sections 409/420/468/471, P.P.C. Read with section 5(2) of the Act and on completion of inquiry, she was sent up to face the charge in the Court of Special Judge, Anti-Corruption.
3. It is important to note that during the trial, cases were bifurcated in five Challans, out of which petitioner was found guilty only in Challan Nos.1 and 4, whereas in rest of the Challans, she has been acquitted of the charge. It would be appropriate to give herein-below facts of each Challan separately, in which petitioner has been convicted/sentenced.
4. Facts of Cr.P. 495-L/2003 (arising out of Challan No,1)
' Facts in brief, leading to filing of instant petition for leave to appeal are that to initiate action against petitioner, a joint application was submitted by Sarayya Begum, Farkhanda Suleman and Naurin Afzal, teachers of the Primary School Chak No,39/3-R, Okara, before their Headmistress Shahnaz Sultana that petitioner Mst. Salma Shahida who besides the Headmistress of the Government Middle School, Chak No,48/3-R, District Okara was the Drawing and Disbursing Officer (hereinafter referred to as `DD0') as well as of the Government Girls Primary School, Chak No,39/3- R, District Okara, had not paid them salaries and allowances for some months. This application was forwarded to the concerned quarters and ultimately, the investigation agency succeeded in unearthing the crime committed by the petitioner i.e, embezzlement of Government money and forging signatures of the teachers on the Qubz-ul-Wasool and tampering with the official record, etc. Detail of the total amount embezzled by the petitioner is as under:--- Sr.
No.Name of employee Amount Period of non- payment of salary
1. Farkhanda Suleman TeachressRs,2737.00 Rs,2737.00February, 1992 April, 1992
2. Naureen Afzal, TeachressRs,1740.00April, 1992
3. Talat Firdaus TeacheressRs,1892.00September, 1992 Total Rs,9106.00 'Petitioner was charged under sections 409/420/468/471, P.P.C. Read with section 5(2) of the Act, 1947. She did not plead guilty to the charge. Prosecution led evidence by producing witnesses to substantiate accusation against the petitioner P.W. Shahnaz Sultana the then Headmistress Primary School Chak No,39/3-R supported the prosecution case, concerning the non-payment of salaries to the school teachers, whose names have been mentioned hereinabove and also alleged that she was also deprived of Rs,585, which was for the "Atta" allowance and this amount was not paid to her by the petitioner. P. Ws. Naureen Afzal, Farkhanda Suleman and Tallat Firdaus were also aggrieved teachers. They fully supported to the prosecution case and established that salaries for the months of February, April and September, 1992, have not been paid to them. P.W. Azhar Mehmood, Sub-Account Officer, Okara confirmed that the petitioner, being DDO vide pay bills Exh.PE/1-17, received the salaries of the above mentioned school teachers. P.W. Umar Farooq Alvi, Magistrate First Class obtained the specimen signatures of Mt. Farkhanda Suleman for comparing the same with her disputed signatures on the Qabz-ul-Wasool. P.W. Anwar-ul-Haq Bajwa, Handwriting Expert opined that the disputed signature of Mst. Farkhanda Suleman on Exh.P.C.(1-3) were found to be forged. P.W. Azmat Bari, Investigating Officer, besides highlighting other aspects of the case contended that vide recovery memo. Exhs.P.O., P.P. And P.Q., dated 11th December, 1994, 12th December, 1994 and 15th December, 1994, respectively, petitioner, produced before him Rs,4629 in respect of salary of Mt. Farkhanda Suleman and Tallat Firdous, Rs,1784 in respect of salary of Naseebullah, Chwokidar for the month of April, 1994 and Rs,25834 respectively. P.W.
Muhammad Akram constable appeared as recovery witness of the amounts produced by the petitioner before the Investigating Officer. Petitioner also got recorded her statement under section 342, Cr.P.C. Wherein she denied the prosecution case and explained following reasons for the registration of the case against her:--- "... The other wife of my husband also named as Salma Bano was school teacher in Chak No,48/3-R, who had grudge against me because I married with her husband. After my transfer from the school she along with other teachers manoeuvred false applications against me and subsequently succeeded in getting registered this false case against me. I had paid all the salaries to the concerned teachers. Now nothing is outstanding against me. I am innocent."
' She did not opt to appear as her own witness under section 340(2), Cr.P.C. Not produced any defence witness. Learned trial Court vide judgment, dated 29th September, 2000 found him guilty of the charge and sentenced her as under:--- Under section 409, P. P. C .
Read with section 5(2) of the P. C . A . , 1947.Sentenced to undergo nine months 'R.I. Each with fine of Rs,2000 each for both the offences or in default Whereof undergo S.I. For 30 days for each offence.
5. Facts of Cr.P. 491-L/2003 (arising out of Challan No,4)
' There is no need to mention facts of the case in detail again, except noting that this Challan relates to non-payment of salaries and other allowances to the staff members of the Government Girls Middle School Chak No,48/3-R and the Government Girls Primary School Chak No,39/3-R, District Okara for the months of June, July and August, 1994. A joint application was moved by 15 teachers and Chowkidar/Naib Qasid of the Government Girls Middle School Chak No,48/3-R (Exh.P.B.), addressed to the Deputy Commissioner/Deputy Director, Anti-Corruption, wherein it is alleged that they had also not been paid salaries etc. For certain months by the petitioner. This application was sent to the concerned quarters. After usual investigation, Challan was submitted in the Court and petitioner was charged under sections 409/420/468/471, P.P.C. And section 5(2) of the Act, 1947. Detail of the total amount embezzled by the petitioner in this case is as under:--- Sr.
No.Name of employee Amount Period of non- payment of salary 1 Mst. Musarrat Ara Rs,228.00 Rs,2255.00June, 1994, August, 1994 2 Farkhanda SalumanRs,500.00, Rs,3346.00, Rs,3346.00June, 1994, July, 1994, August, 1994 3 Naseebullah Naib QasidRs,1926.00, Rs,1926.00, Rs,1926.00June, 1994, July, 1994, August, 1994.
4 Yaqoob son of Rehman, ChowkidarRs,1550.00, Rs,1750.00July, 1994, August, 1994.
5 Mst. Maaz Bibi Rs,400.00, Rs,2650.00June, 1994, August, 1994.
6 Mst. Shahina BashirRs,500.00, Rs,2275.00June/July, 1994, August, 1994.
7 Mst. Robina ShaheenRs,200.00, Rs,1776.00June, 1994, August, 1994 8 Mst. Shazia Huma Rs,171.00, Rs,1921.00June, 1994, August, 1994.
9 Mst. Zahida Begum Rs,332.00, Rs,2232.00June, 1994, August, 1994 10 Kausar Shabbir Rs,348.00, Rs,2681June, 1994, August, 1994 11 Mst. Naureen Afzal Rs,300.00, Rs,2252.00, Rs,2252.00June, 1994, July, 1994, August, 1994 12 Mst. Surayya BegumRs,889.00, Rs,260.00, Rs,3060.00, Rs,3060.00,June, 1994, June, 1994, July, 1994, August, 1994.
13 Mst. Talat Firdous Rs,300.00, Rs,2396.00June, 1994, August, 1994 14 Mst. Irshad Akhtar Rs,300.00, Rs,2352.00June, 1994, August, 1994 15 Shahadat Ali ChowkidarRs,1926.00, Rs,1926.00, Rs,1926.00,June, 1994, July, 1994, August, 1994. Total:- Rs,57478.00 ' As she did not plead guilty to the charge, therefore, prosecution led evidence of as many as 19 witnesses against her, while the rest of P. Ws. Were given up being unnecessary witnesses. Besides the witnesses, who have been discussed in Challan No,1 as they have reiterated the stand which they had earlier taken in that challan, P.W.7 Moaz Bibi, P.W.9 Musarrat Ara, P.W.10 Kaser Shabbir, P.W.11 Shahina Bashir and P.W.18 Shaziah Huma as well as P.W.13 Muhammad Yaqub Chowkidar have also supported the allegations of forgery, non-payment of salaries and arrears against the petitioner. P.W.15 Mr. Anwar-ul-Haq Bajwah Handwriting Expert has also in his Expert report Exh.P.G.
Opined that the disputed signatures were forged. P.W.17 Azmat Bari, who had recorded the F.I.R.
(Exh.P.H.) and had conducted the investigation, claimed that during the investigation the accused petitioner, on four different occasions, had got recovered a sum of Rs,70,647 which was misappropriated by her from the salaries of the teachers. According to him vide recovery memo.
Exhs.P.N. P.O. And P.P., dated 1st December, 1994, 11th December, 1994 and 12th December, 1994, respectively, petitioner produced before him Rs,38400 in respect of salary of teachers, Rs,4629 in respect of salary of Mst. Farkhanda Suleman and Talat Firdous, and Rs,1784 in respect of salary of Naseebullah Chowkidar for April, 1994, respectively. After closing of prosecution evidence, statement of accused under section 342, Cr.P.C. Was recorded, wherein she denied the prosecution case. She denied the alleged non-payment of arrears of June, 1994 to Talat Firdous P.W. Regarding the allegations for the non-payment etc. To Moaz Bibi, she admitted that she had withdrawn her salaries from the treasury but it could not be paid to her as Moaz Bibi was on maternity leave. She also denied the non-payment of salaries to Musarrat Ara, Kauser Shabbir, Shahina Bashir, Naseebullah Chowkidar and Shazia Huma and maintained that during the investigation she had not got recovered any cash amount. She did not opt to produce herself in the witness box under section 340(2), Cr.P.C. On conclusion of the trial, learned trial Judge came to the conclusion that petitioner is guilty for the commission of the .Offence under section 468, P.P.C. As she had forged the official record to wrongfully maintain that she had paid the salaries to some teachers and by using these forged document as genuine one, for the commission of this offence, an offence under section 471, P.P.C. Is also committed by her. By not making the necessary entry regarding the payment of salaries regularly to some of the teachers the offence of cheating and dishonestly inducing delivery of property by paying less salaries or no salary to the concerned teachers, petitioner has committed the offence falling within the provisions of section 420, P.P.C. . The petitioner as a Government servant on account of these offences committed criminal misconduct, attracting section 5(2) of the Act, 1947. As all these offences established against her, beyond any reasonable doubt, therefore, learned trial Judge vide judgment, dated 29th September, 2000, proceeded to sentenced her as under:--- Under section 468, P. P. C.Sentenced to undergo nine months' R.I.
With fine of Rs,2,000 in default whereof to undergo S.I. For 30 days.
Under section 471, P . P. C .Sentenced to undergo nine months' R.I.
With fine of Rs,2,000 in default whereof to undergo S.I. For 30 days.
Under section 420, P. P. CSentenced to undergo nine months' R.I. with fine of Rs,2,000 in default whereof to undergo S.I. For 30 days.
Under section 5(2) of P.C.A., 1947Sentenced to undergo nine months' R.I. with fine of Rs,2,000 in default whereof to undergo S.I. For 30 days. All the sentences, except the sentences of fine, were ordered to run concurrently.
6. Appeals filed by petitioner against her above conviction/ sentence before the High Court, have been dismissed by means of impugned judgment. As such instant petitions for leave to appeal have been filed.
7. Learned counsel appearing for petitioner contended that:-
(a) Prosecution has failed to substantiate accusation against the petitioner by producing convincing and trustworthy evidence therefore she deserves to be acquitted of the charge.
(b) Petitioner has been made victim of the circumstances i.e, Dacoity, took place in her school in the year of 1994, which was allegedly committed by P.W. Naseebullah, Chowkidar, therefore, she could not pay salaries to the employees. However, later on the salaries to some of the teachers were paid who were quite satisfied but on account of personal grudge with the petitioner by first wife of her husband namely Mst. Salma, who was also posted in the Primary School in Chak No,48/3-R, a false case was concocted against her, otherwise, on merit, the prosecution has no case against her, as such she is liable to be acquitted of the charge.
(c) During the investigation, the total amount pertaining to salaries/allowances, etc. Has been paid to the Government and presently nothing is outstanding against her, as such in absence of loss to public exchequer, she was not liable for the punishment.
(d) The trial is liable to be vitiated on account of misjoinder of the charges.
8. On the other hand Raja Abdul Rehman, learned Assistant Advocate-General contended that:---
(i) Prosecution has produced overwhelming incriminating evidence to substantiate allegation against the petitioner, therefore, she has rightly been found guilty for the commission of the offence.
(ii) The evidence brought on record has come from independent source, which clearly indicates that the petitioner lids embezzled a huge amount of the salaries of the employees which she had drawn from Government Treasury in the capacity of DDO,therefore, there is no question of making her victim of the circumstances.
(iii) The recovery of embezzled amount itself is an indication of the fact that petitioner has committed the crime and subsequently made the deficiency good by depositing the amount during the investigation, as such this fact itself has gone against the petitioner to substantiate accusation.
(iv) The trial is not liable to be vitiated on account of misjoinder of the charges because such irregularity is curable under section 537, Cr.P.C.
9. We have heard learned counsel for the parties and have carefully examined their respective contentions keeping in view the evidence produced by the prosecution to establish guilt against the petitioner. It is important to note -that before the trial Court, prosecution has succeeded in establishing that petitioner being DDO of the area was responsible to disburse salaries amongst the staff of Government Girls Primary School Chak No,39/3-R, District Okara and admittedly salaries in the sum of Rs,9,106 belonging to Mst. Farkhanda Suleman, Naureen Afzal and Tallat Firdous, for the months of February, April and September, 1992 were not paid as the same were got recovered from her possession by the Investigating Officer vide recovery memos. Exhs.P.O., P.P. And P. Q, copies of which have been placed on record. Similarly, Rs,70,647, as it was misappropriated by her, were also recovered from her possession vide recovery memos. Exhs.P.N., P.O. And P.P. The employees to whom salaries were not paid appeared against her as prosecution witnesses and fully supported its case. Although they were subjected to lengthy cross-examination but nothing was extracted in her favour. Likewise, statement of Handwriting Expert furnishes strong evidence against her to substantiate that petitioner had forged the signatures of the some of the employees on the documents. In view of such convincing trustworthy evidence learned trial as well as Appellate Courts have rightly come to the conclusion that she is guilty for the commission of the offence. Although in respect of case arising out of Challan No,4, she raised the plea that a dacoity took place in her school in which one of the prosecution witnesses i.e, Naseebullah Chowkidar was involved but she failed to establish actual happening of such incident.
10. It is important to note that it is the case of petitioner that later on the salaries were paid to some of the employees and some money had been handed over to the Investigating Officer by her during investigation, as such the Government had not sustained loss, therefore, she deserves to be exonerated from the charge. In our considered opinion, this very fact goes against her as she initially committed misappropriation of the Government money, may be temporarily, but later on, under the fear of prosecution case, she got recovered the amount, which was misappropriated by her by forging the signatures of some of the employees and tampering with the record. Even before the registration of the case, salaries of some of the persons were paid by her. Therefore, we are of the opinion that prosecution has successfully established guilt against her.
11. As far as the contention of the learned counsel that proceedings suffer from misjoining of the charges is concerned, it has no substance in view of the facts, circumstances and nature of the crime committed by the petitioner, which has been elaborated hereinabove. Besides it, even if it is presumed that proceedings suffered from misjoining of the charges, same can be cured under the provisions of section 537, Cr . P. C .
' Thus in view of above discussion, we see no substance in these petitions, as such the same are dismissed. Leave declined.