ASLAM RIAZ HUSSAIN, ACTG. C. J.-This judgment will dispose of criminal appeal No. 75/80 filed by Hayat Muhammad criminal appeal No 76/80 filed by Muhammad Mumtaz and criminal appeal No. 83/80 filed by Bashir Ahmad.
2. The facts giving rise to these appeals are that; (1) Bashir . Ahmad an accountant, (2) Hayat Muhammad, Naqdi Muharrir, and (3) Muhammad Mumtaz Naib-Naqdi Muharrir, appellants and four other persons namely Abdur Rauf, Second Accountant, Naeem Ahmad, Contingent Clerk; Iqbal Hussain, Assistant Clerk and Inayat Ullah, Additional Line Officer, all employees in the office of the D.
I.-G., Lahore, were tried by the Special Judge, Anti-Corruption, Lahore, for having allegedly committed an offence under section409, P. P. C. Read with section 5(2) of the Prevention of Corruption Act, 1947. The 8th accused namely Zubair A. Hameedi, however, absconded and has not yet been apprehended.
The three appellants and Abdur Rauf, co-accused, were convicted by the learned trial Judge vide judgment dated 28-2-1979 while the remaining co-accused, named above, were acquitted. The four convicted accused, including the appellants, were sentenced to 3 years' R. I. And to a fine of Rs.
30,000 each or in default thereof to further undergo R: I. For one year and nine months each. The appellants and Abdur Rauf co-accused challenged their conviction and sentences in the High Court by filing a joint appeal. The High Court only accepted -the appeal of Abdur Rauf co-accused but rejected that of the three appellants and maintained their conviction and sentences.
3. The facts which form the background of this case are, briefly, that on 29-11-1974 the Inspector- General of Police, Punjab, Lahore, placed an order for the supply of 3,500 jerseys worth Rs. 1,08,250 with Messrs Valika Woollen Mills Limited, Karachi (hereinafter referred to as - Messrs Valika Mills).
The Valika Mills which were one of the standing contractors of the Punjab Police had constituted Zubair A. Hameedi (absconder) as their representative for Lahore for the purpose of dealing with their customers including the Office of the S. S. P.'s/D. I: G., Lahore inter alia for the receipt of payments in cash in respect of outstanding bills and issuing receipts in acknowledgments of the wine. It is in evidence that even on previous occasions the aforesaid representative had been receiving payments in cash for the goods supplied by Messrs Valika Mills to the Office of the S. P/D.
I.-G.
4. In April, 1975, the Valika Mills sent bills (Exhs. P. B. To P. L.) to the Office of the D. I: G., Lahore, demanding payment of the afore-mentioned amount of Rs. 1,08,250. The bills were scrutinized by the relevant Committee and the Committee's report (Exh. P. A.)alongwith bills (Exhs. P. B. To P. L.) were received by Naeem Ahmad, Contingent Clerk, (acquitted accused) on 9-5-1975, who marked the same to Iqbal Hussain, Assistant Contingent Clerk (acquitted accused). Iqbal Hussain, Assistant Contingent Clerk then prepared the contingent bills. Naeem Ahmad (co-accused) after scrutinizing the same, initialed them. The bills were then submitted to the Accountant --General's Office, which issued a cheque for Rs. 1,08,250. Nazir. Hussain P. W. 2, Junior Clerk in the Office of the D. I.-G. Received the said cheque from the A.-G.,, Office alongwith other cheques, amounting to total of Rs. 1,96,537.18. After getting the signatures of the concerned officer he handed over these cheques to Abdur Rauf (acquitted accused). The latter went to the State Bank of Pakistan, Lahore and got the cheques enhanced. Lie brought the money back to the D. L-G.'s Office and handed it over to Nazir Hussain (P. W. 2), Cashier on the same day (i. e. 25-6-1975).
It may be mentioned there that in the meanwhile on 16-5-1975, the Valika Mills had written a letter (Exh. P. Q.) to the D. L-G., Lahore, re--questing therein that the payment of the money for the jerseys supplied to them should be sent to them directly by a cross-cheque. This letter was received in the Office of the D. 1.-G. On 25-5-1975 and according to the prosecution evidence, it was signed by the S. S. P. Headquarters, for the D. I.-G. It was recorded by Muhammad Bashir P. W. 12, Diary Clerk, who after entering it in the diary forwarded it to Shamshad A.I, P. W. 5, incharge of `A' Branch in the said office. He initialled it and sent to Taj Muhammad, Accountant (P. W. 7), in whose office it was received on or about the 30th May of 1975. On the 7th of June, 1975. The Second Accountant namely, Abdur Rauf (acquitted accused), who was the Contingent Clerk in those days. The latter has stated in his statement under section 342, Cr. P. C. That he received it on 14-6-1975 and marked it to his subordinate Iqbal Hussain, Contingent Clerk (C. C. I.) (another acquitted accused), on 15-6- 1975. Aforesaid Iqbal Hussain handed over the charge of the post of C. C. I. To Bashir Ahmad, appellant on 17-6-1975. It may be mentioned that Iqbal Hussain denied having received this letter from Naeem Ahmad while Bashir Ahmad P. W. 8, in turn, denied that Iqbal Hussain (acquitted accused) had given him the said letter while handing him over the charge as C. C. I. Muhammad Shah Nawaz P. W. 9, who took over charge as C. C. I. From Bashir Ahmed P. W. 8 has stated that he was not given the letter, by Bashir Ahmad P. W. 8 and according to him ' it remained in the English Branch. Muhammad Latif, P. W. 6, Superintendent of the office has stated that it was the duty of the incharge of `A' Branch to have taken action on the letter Exh. P. Q., after its receipt. The letter was kept in file Exh. P. A. Muhammad Siddique- P. W. 1, has stated that he obtained the said file from the Record Clerk of Branch `A' whose name he did not know. The said file was ultimately taken into possession by Muhammad Yaqub, Inspector (P. W. 13) from Bashir Ahmad, appellant.
5. Reverting now to the money received from the State Bank of Pakistan; the already mentioned, Abdur Rauf (acquitted accused) got the cheque encashed from the State Bank and delivered the entire amount to Nazir Hussain, Cashier (P. W. 2), who prepared an `advice note' for its dis-- tribution and then handed over the amount to Muhammad Mumtaz (appellant in Cr. A. No. 76;80), for distribution after obtaining his signatures on the Cash Distribution Register (Exh. P. C. At Exh. P. C.
1). The receipt of this money from Nazir Hussain (P. W. 2) is admitted by Muhammad Mumtaz appellant. According to .Nazir Hussain P. W. 2 shortly thereafter he had handed the money to Muhammad Mumtaz, appellant, Bashir Ahmad, appellant shouted to him (i. e. To Mumtaz Ahmad) that the representative of the Valika Mills, tamely Zubair A. Hameedi (absconder), to whom the money was to be paid on behalf of the Valika Mills, was present. Mumtaz, appellant thereupon paid a sum of Rs. 1,08,250 to the above said Zubair A Hameedi and obtained signatures on the voucher P. J./1-9. An endorsement was made on these vouchers by Hayat Muhammad (appellant in Cr. A.
No. 75/80) to the effect that the amount had been paid. The vouchers were then verified by Inayatullah (another acquitted accused) Assistant Line Officer, on the same day. A receipt (Exh. P.
X.) was also issued by Zubair A. Hameedi on the Letter Head of Messrs Valika Mills, acknowledging the receipt of Rs. 1,08,250 which was duly signed by him. These signatures were later admitted to be genuine by G. Rizvi P. W. 4, the Sales Manager of Messrs Valika Mills. The entries with regard to this payment were made in the relevant register by Hayat Muhammad, appellant showing the disbursement of the amount in question to Zubair A. Hameedi. Another formal receipt (Exh. P. V.) was also issued by the said Zubair A. Hameedi (absconder) acknowledging receipt of this and various other amounts.
It may be mentioned at this stage that no reply was received by Messrs Valika Mills from the Office of the D.
1. G. To their letter Exh. P. Q. There--fore, the said Mills sent a telegram (Exh. P. Y.) to the said office, repeating the request that the amount towards payment of the prices of the jerseys supplied to them be paid through a cross-cheque. This was followed by a letter (Exh. P. Z.) from the Valika Mills containing the details of the out--standing amounts totalling Rs. 1,08,250 which was received by the Accounts Branch of the D. I.-G.'s Office on 30-6-1975. The letter (Exh. P. Q.) and the telegram were replied to vide memo. (Exh. P.T.) dated 28-8-1975 informing the Valika Mills that the entire outstanding amount of Rs. 1,08,250 had already been paid to their representative. The reply to letter Exh. P. Z. Dated 26-6-1975 was sent to the Vahka Mills vide memo., Exh. D. K. On 9-1-1976.
It would be noted that the receipt of the amount in question from Nazir Hussain Cashier (P. W. 2) is not denied by Muhammad Mumtaz appellant. He also admits having paid the same to Zubair A.
Hameedi, the repre--sentative of the Valika Mills. But the trouble arose because the Zubair A.
Hameedi vanished and did not transmit the aforementioned amount to his Principal, Messrs Valika Mills. On receiving the letter Exh. P. T. From the D. I.-G.'s Office, the Valika Mills wrote a letter (Exh. P.
U.) saying that the amount in question had not been received by them. On this a formal F. I. R. Was got registered by the D.
1. G's. Office, where after the seven accused (including the three appellants) mentioned above were arrested on the allega--petition that they had conspired and connived with Zubair A. Hameedi for misappropriating the. Aforementioned amount and making payment thereof to him in contravention of the prescribed procedure and the express request of Messrs Valika Mills that the payment of money be made to them through a cross-cheque. It- was alleged that this letter Exh. P. Q. Was deliberately suppressed and Hayat Muhammad appellant had made false entries with regard to the disbursement of this amount.
6. In support of its case the prosecution examined 15 witnesses. The accused denied their guilt ; pleaded innocence and produced 3 witnesses in defence.
As already mentioned above the learned trial Court believed the prosecu--petition evidence with respect to the three appellants, and Abdur Rauf (co---accused) and acquitted the remaining three. On appeal the High Court acquitted Abdur Rauf (co-accused).
Feeling aggrieved the three appellants filed separate petitions for leave to appeal, which was granted to them by this Court on 3-3-1980, for reappraisal of the evidence.
8. We have beard Mr. D. M. Awan, counsel for Muhammad Mumtaz and Hayat Muhammad appellants, and Mr. Bashir Zaffar for Bashir Ahmad appellant, as well as the learned State counsel, at length and have gone through the impugned judgment and evidence on the record.
9. The learned defence counsel pointed out that Abdur Rauf (acquitted accused) admitted having drawn the amount in question from the State Bank and given it to Nazir Hussain, Cashier (P. W. 2).
The latter has stated that he had then handed over the money to Mumtaz, appellant, for disbursement. As already mentioned, Muhammad Mumtaz appellant has admitted the receipt of the money from Nazir Hussain Cashier (P. W. 2) and has also admitted having paid the same to Zubair A. Hameedi, the representative of the Valika Mills against a receipt by the latter. The contention raised on behalf of the appellants is that although the prescribed procedure for payment, as stated by Hassan A.I, Accountant (P. W. 14) was that the payment to contractors of the amounts due to them was to be made through the concerned Police Station or Police Line, yet it is the evidence that the general practice prevalent at the D. I.-G.'s Office was to make such payments directly to the representatives of the suppliers or contractors. In support of this contention it was pointed out that it has been admitted by the prosecution itself, even previously on several occasions large sums of money had been paid to Zubair A. Hameedi (absconder) as representative of the Valika Mills. For example, he (Zubair A. . Hameedi) was paid Rs. 1,71,500 on 21- 4-1976, for supply of goods by Messrs Valika Mills. Another amount of Rs. 60,000 was paid to him in cash at the D. I.-G's. Office on 17-4-1975, for supply of goods by Messrs Valika Mills. Similarly, yet another sum of Rs. 6,750 was paid to him on 16-0-1975 as the representative of the said Mill. And it is not denied that all these amounts were duly transmitted by Zubair A. Hameedi to his Principals at Karachi and that there had never been any complaint of defalca--petition against him earlier.
10. The crux of the allegation in the present case, however, is that on this occasion Messrs Valika Mills had sent a letter (Exh. P. Q.) requestin that the money in question should be sent to them directly through a cross-cheque, but this letter was deliberately suppressed and all the accused person had conspired together and joined hands with Zubair A. Hameedi for misappropriation of the said amount.
On going through the evidence with regard to the movement of the letter (Exh. P. Q.), however, we notice that it passed through several hands in routine. As already mentioned in pararaph No. 4 above, it was received in the D. I.-G's. Office on 25-5-1975 and was first signed by the S. S. P. And forwarded to Shamshad A.I (P. W. 5), who initialled it and sent it, to Taj Din Accountant (P. W. 7). The latter banded it over to Abdur Rauf, Second Accountant (acquitted accused), who in term marked it to Naeem Ahmad (acquitted accused), who sent it to Iqbal Hussain (acquitted accused) who is stated to have given it to Bashir Ahmad, P. W.
8. The letter was ultimately found in a file (Exh. P. A.) recovered by the Investigation Officer from Bashir Ahmad, appellant. Iqbal Hussain of course denied the receipt of this letter or having handed it over to Bashir Ahmad P. W.
8. Nor does Eashir Ahmad, P. W. 8, admit having received it. It appears from the evidence on the record that certain transfers of the staff in the D. I. G's. Office took place in rapid succession during this period. Bashir Ahmad appellant took over as Accountant Taj Din P. W. 7, on I1-6-1975. Abdur Rauf accused took over as Second Accountant on 7-5-1975 forenoon. Naeem Ahmad accused left the charge of the post of Contingent Clerk on 17-6-1975 forenoon and Iqbal Hussain accused left the charge of the post of Assistant Contingent Clerk on the same very day 1. e. 17-6-1975. He handed over the charge to Bashir Ahmad ,P. W. 8, who handed over this charge to Shah Nawaz. P. W. 9, on 18-6-1975. It appears to us that due to the confusion created by these rapid transfers, as also due to the negligence and inefficiency, which is quite common in Government Offices in this country, letter, Exh. P. Q. Was lost sight of and remained in the file of the relevant Clerk in the `English Branch'. The courts below have pinned down the responsibility of suppression of this letter on Bashir Ahmad, appellant mainly because it was ultimately taken into possession by the Investigating Officer, alongwith many several other documents, from the file Exh. P. A. Which at that time was in his custody. But this does not necessarily lead to the conclusion that he was aware of the contents of this letter. There is no direct evidence of conspiracy or collu--sion to suppress letter Exh. P. Q. And with great respect, it appears that the view that there was such a conspiracy, has been based by the learned Courts below merely on conjectures. Considering that Muhammad Mumtaz admits having received the money and having paid it to Zubair A. Hameedi, who usually received payment on behalf of the Valika Mills on earlier occasions, as also the fact that the latter had issued receipts in lieu of the receipt of the said amount, which bear his genuine signatures, go to negate the existence of any such conspiracy. The receipt (Exh. P. X.) is available on the record and as already observed, signatures of Zubair A. Hameedi (absconder) on the sane are admitted by Mr. G. K. Rizvi, P. W. 4, the representative of the Messrs Valika Mills as genuine. It seems that although the appellants might have been, negligent and had contravened the relevant rules they do not appear to have done so with any criminal intention. We are of the view that guilty conscience or mens rea is completely lacking in this case and does not appear to us to be a case of criminal conspiracy.
11. Much mention has been made of the signatures of one Majid on vouchers (P. J., P. J./1-9) in order to canvass that the money bad not, in fact, been given to Zubair A. Hameedi. But on going through the file and carefully observing the vouchers with respect to the earlier payments made to Zubair A.
Hameedi we find that even on some of those vouchers the signatures are not those of Zubair A.
Hameedi but of someone else. There--fore, it appears that it was not the practice with Zubair A.
Hameedi to sign the vouchers himself. In view of the fact that no defalcation or misappropria-- petition had occurred earlier, although someone other than, Zubair A. Hameedi signed the vouchers, the mere fact that one Majid, who might be a person with Zubair A. Harneedi at that tune, signed the vouchers on this occasion, while the latter was receiving the payment of the money, does not necessarily show that the money was not paid to Zubair A. Hameedi but to some one else.
This view further is reinforced by the fact that the Zubair A.' Hameedi has himself admitted the payment of this amount through receipts which are available on the record.
We, therefore, accept the three appeals and acquit the appellants. Their sentences are set aside and they shall be set at liberty if not required in any other case.