KHADIM HUSSAIN TUNIO, J.---Through instant Cr. Appeal, appellant Hamid Ali alias Pia has impugned judgment dated 24.08.2015 passed by learned Judge, Special Court (Central-I) Karachi, in Case No,09/1997, arising out of FIR No,19/1997 registered under sections 409, 420, 468, 471, 411, P.P.C. read with section 5(2), PCA-II, 1947 at Railway Police Station, Karachi whereby he has been convicted under section 409, P.P.C. and sentenced to suffer R.I for two years and to pay fine of Rs,10,000/= in default thereof he shall further undergo S.I. for six months; under section 420, P.P.C., to suffer R.I for two years and to pay fine of Rs,10,000/= in default thereof he shall further undergo S.I. for six months; under section 468, P.P.C., to suffer R.I for two years and to pay fine of Rs,15,000/= in default thereof he shall further undergo S.I. for six months; under section 471, P.P.C., to suffer for two years and to pay fine of Rs,15,000/= in default thereof he shall further undergo S.I for six months and under section 5(2), PCA-II, 1947 to suffer R.I for three years including fine of Rs,34,000/=. The amount of Rs,16,52,000/= recovered from the appellant was ordered to be returned to the Pakistan Railways according to law. However, remaining amount has also been ordered to be recovered from movable and immovable properties of the appellant by attaching and selling them by auction to satisfy the sentence of fine. In case the whole amount is not recovered, appellant has to further suffer R.I. for three months. He however has been extended benefit of section 382-B, Cr.P.C.
2. Precisely, the facts of the prosecution case are that complainant Matloob-ul-Haque, Accountant Pension, Divisional Accounts Office, Pakistan Railway Karachi had sent written complaint to the SHO PRS Karachi City for registration of case against appellant Hamid Ali with the abetment, connivance, common intention and inclusion of the concerned DPM/Staff and the Booking Clerk, Commercial Staff, who fraudulently through cheating committed forgery by manipulating the public documents, drew the amount of Rs,16,95,000/= from pension of different railway employees.
3. After registration of FIR, case was investigated and after completion of investigation final charge sheet was submitted only against the present appellant, who pleaded not guilty and claimed trial while other co-accused were released under section 169, Cr.P.C. by the Investigating Officer, which report was duly approved by the trial Court vide order dated 25.02.1998.
4. The prosecution, in order to prove its case against the appellant, examined PW-1. Complainant Matloob ul Haque as Ex.3, who produced complaint, FIR, Letter issued to SHO and month-wise statement of misappropriation as Exhs.4 to 7; PW-2 Dilawar Khan was examined as Exh.9, who produced mashirnamas of recovery of the embezzled amount as Exh.10; PW-3 Mira Khan, Driver was examined as Exh.11, who produced mashirnama of recovery of cash amount on the pointation of accused as Exh.12; PW-4 Sabir Jamil, Manager MCB was examined at Exh.13; PW-5 Muhammad Ramzan was examined as Exh.14, he produced memo of recovery of cash amount on the pointation of appellant as Exh.15; PW-6 Muhammad Ayoub was examined as Exh.16; PW-7 Tariq Mahmood, Accounts Officer, Pakistan Railways was examined as Exh.17, who produced 32 vouchers which were taken into custody by the police from DPM office as Articles 17/1 to 17/32 and produced such memo as Exh.18; PW-8 Muhammad Afzal was examined as Exh.20, he produced memo of recovery of amount as Exh.21 and case property i,e, currency as Article A/1 to A/50; PW-9 Abdul Ghaffar, as Exh.232, PW-10 Muhammad Farid as Exh.24; PW-11 Shahabuddin as Exh.25; PW-12 Farhad as Exh.27, who produced cash amount as Articles A/1 to A/4; PW-13 Muhammad Sultan as Exh.28; PW-14 Muhammad Sarwar as Exh.29; PW-15 Shakeel Haider as Exh.30; PW-16 Haji Gul Hassan, as Exh.342; PW-17 Mazhar Hussain as Exh.33, he produced memo of arrest and recovery as Exh.34; PW-18 Muhammad Ayoub, Electrician as Exh.35; PW-19 Ghulam Rabbani as Exh.44; PW-20 Muhammad Abdullah Qureshi as Exh.45; PW-21 Muhammad Amin Bhatti as Exh.48, who produced mashirnama of recovery of 18 original pension summaries along with 18 tampered carbon copies of pension summaries as Exh.49 and he further produced 18 original and 18 tampered carbon copies of pension summaries as Exh.49/1 to 49/36; PW-22 Muhammad Shahid Bhatti as Exh.50; PW-23 Mahmood Alam as Exh.51, PW-24 Mahboob Hassan examined as Exh.52, PW-25 Muhammad Shafi as Exh.53, PW-26 Muhammad Yamin as Exh.54.
5. Statement of accused under section 342, Cr.P.C. was recorded at Exh.57 wherein he denied the prosecution allegations and claimed himself innocent. However, he neither examined himself on oath in terms of section 340(2), Cr.P.C. nor produced any witness in his defence.
6. Mr. S. Ehsan Raza, learned counsel for the appellant has contended that the impugned judgment passed by the learned Special Judge is contrary to the record and is based on surmises and conjectures, hence liable to be set-aside; that the learned trial court has grossly erred and ignored the point that the complainant of the FIR Maqloob-ul-Haq whose duty was to make ledger posting of pension vouchers in the respective pensioner's account, which had not been done for last three months, otherwise the fraud which has been spread over more than one year could be detected within 3 months; that there is no role of appellant who was Section Paymaster Pension (Cashier) in the alleged fraud which revolves amongst M. Hanif, Commercial Superintendent, Booking; Khalid Rasheed, Supervisor Booking Office land Syed Ashraf Ali, DPM Pension, Railway Cash Office, Karachi City, who were released under section 169, Cr.P.C. by Investigating Officer and such report was approved vide order dated 25.02.1998 by the Special Court; that there is no show-cause notice issued to the appellant for any tampering in any record or summaries, as deposed by PW-15 Shakeel Haider, retired Section Paymaster; he further deposed that it was the duty of Accountant, Pensioner to post the vouchers within three months so that the fraud had to be detected within three months but not within 16 months, Commercial Supervisor Booking, Supervisor DPM and Accountant Pensioner are actual persons of fraud but not the appellant; that the charge was not framed in accordance with the alleged recovery shown as Rs, 16,02,000/- and as per alleged recovery memos the recovery comes to Rs, 12,02,000/-; that learned Judge relied upon the hand writing expert report, who did not appear in the witness box, hence the report of the Expert is of no use, that the alleged recovery is highly doubtful as the prosecution has failed to produce the cash register whereby DPM used to deliver cash for the alleged period of fraud; that DPM is held responsible for delivery of cash and bringing cash from the cash office and in absence of complete payment and recoupment the liability cannot be fixed upon the appellant, when the prosecution had already released that DPM under section 169, Cr.P.C.; that appellant has been seriously prejudiced by the act of Prosecuting Inspector, Railway Police by not examining the complainant when the only appellant crossed the complainant; that not a single Prosecution Witness supported the prosecution case, whereas one witness gone hostile and five witnesses have been declared given up by the prosecution; that prosecution case is filled with multiple doubts; that there were more than 30 staff working under the subordination of DPM but none of them was made witness of recovery, which makes the entire alleged recovery doubtful; that the appellant was arrested on 25.02.1998; that appellant is innocent and has falsely been implicated in the instant crime, hence, impugned judgment may be set aside and appellant may be released. He relied upon case law reported in 1969 PCr.LJ 1317, PLD 1971 SC 61, 1974 SCM R 411, PLD 1981 Kar. 195, 1991 NLR Cr.LJ 604, PLD 1994 FSC 24, 1994 M LD 1360, 1995 SCM R 1345, 1995 NLR Cr. 10, 1995 SCM R 1345, 1995 SCM R 1377, 1996 PCr.LJ 1510, 1997 SCMR 196, 2005 YLR 2220 and PLD 2008 Kar. 3.
7. Conversely, Mr. M. Shoaib Mirza, learned Standing Counsel while supporting the impugned judgment argued that evidence of the prosecution witnesses is consistent on material aspect of the matter and no material contradictions have been pointed out in their evidence, such evidence is reliable and confidence inspiring; mat there is recovery of amount fraudulently withdrawn from the account which establishes the case against the appellant, therefore, he is liable to be convicted, hence, instant appeal may be dismissed as the trial. Court has already taken lenient view in awarding him the sentence.
8. I have heard learned counsel for the appellant as well as learned Standing Counsel and perused the evidence on the record.
9. After hearing the learned counsel for the parties, careful scanning of the oral as well as documentary evidence, it has been observed that there were two main allegations leveled by the prosecution, first one was the allegation that the appellant committed forgery by manipulating the public documents and the second was that he drew the amount of Rs,16,95,000/= from pension of different railway employees.
10. Now coming to the allegation of manipulating the public documents it appears that documents produced in court relating to the embezzlement/misappropriation of huge amount i,e, tampered pension vouchers and summaries produced in court which were taken into possession during investigation, therefore, in presence of such documents, which were taken into possession by the prosecution in proper manner and in accordance with law and then produced the same before the court in shape of Articles, it cannot be said the documents were prepared or managed by the prosecution itself against the appellant and such a huge embezzlement and fraud by misappropriation of government amount cannot be foisted against the appellant in any manner.
Moreover, the appellant had also not disputed the documents in his evidence as discussed above, therefore, it can safely be concluded that the appellant was found in commission of embezzlement/ misappropriation of pension amounting to Rs,16,95,000/-.
11. So far as the allegation No,2 is concerned, perusal of record shows that an amount of Rs,6,72,000/- was recovered on the pointation of appellant from his house in presence of witnesses and such memo was also prepared and the said amount was also produced in court through mashir Mira Khan who admitted the same amount. Moreover, an amount of Rs,1,80,000/- was also recovered on the pointation of the appellant from his office table drawer in presence of witnesses and such memo was prepared which has been brought on record and the said amount was also produced in court. Furthermore, amount of Rs,3,00,000/- was also recovered which was paid by the appellant to one Muhammad Ramzan for purchasing of house and this amount was also produced in court through recovery memo. Moreover, further amount of Rs,50,000/- written statement was also recovered by the I.O. and the same amount was produced in court and as such total amount of Rs,16,52,000/- was recovered from the appellant.
12.In a case titled as Hassan Ahmedullah v. The State 2014 SCM R 1159, the Honourable apex Court has been pleased to hold as under:- "We are in agreement with the learned Division Bench of the High Court that the Handwriting Expert's report which was produced but the Handwriting Expert, was not produced by the prosecution and the said report was excluded from consideration under section 510 of the Cr.P.C. which is reproduced hereunder:-- "510. Report of Chemical Examiner; Serologist, etc. Any document purporting to be a report, under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government or any Serologist, finger-print expert or fire-arm expert appointed by Government, or of the Chief Chemist of the Pakistan Security Printing Corporation Limited, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may, without calling him as a witness, be used as evidence in any inquiry, trial or other proceeding under this Code." The reports which were admissible in evidence per se included the Handwriting Expert report and the appellant has not filed any application for summoning the Handwriting Expert who had given the positive report about the signatures of the appellant on the disputed document. In such circumstances we find that report had gone unchallenged by the appellant which further supported the other evidence available on record. Even otherwise, it is a case of the appellant himself that he was Manager of the Bank and the advice was sent when he was Manager of the Bank and his signatures were on the said report but denies the signatures which fact has been established by the statements of Mst. Farhat Shahnaz and other witnesses and also supported by the Handwriting Expert's report. Conduct of the appellant shows that it was not above board as the appellant had filed a complaint before the FIA authorities and had not disclosed that who was the accused, who had prepared this forged advice and was serving under him and who was party in preparation of the advice and had only mentioned the name of the main accused as Umer Shahzad Baig whose documents have been found forged one during inquiry. Thus, we find that the filing of complaint was to brush aside the real issue and to save his own skin instead of making details and giving the names of the officials subordinate to him responsible for the preparation of the advice who could have been responsible for the huge loss to the Bank amounting to Rs,52,00,000."
13. With regard the case law cited at Bar by the learned counsel for the appellant is concerned, there is no cavil with the principle laid down in the referred case as the same is not applicable in the present case as facts and circumstances of the referred cases are different from the facts and circumstances of the instant case.
12(sic.) The offence committed by the appellant is very heinous in nature because he has committed forgery by manipulating the public documents and then he drew the amount of Rs,16,95,000/= from pension of different railway employees. If the public functionaries are doing such kind of job especially, when they are custodian of public record and committing forgery and fabrication to deprive the people from their respective pensions, so in the prevailing circumstances, no misreading or non-reading of evidence has been pointed out by the counsel for the appellant and the same is based on proper appraisal of proof. The findings of the learned Special Judge, Anti-Corruption Court (Central-I), Karachi Central are fully supported by the evidence on record, therefore, by upholding the same, the appeal in hand is dismissed.