Ikramul Haq an Auditor in the office of Controller Military Accounts (Pension) Lahore Cantt. Was tried by the Special Judge (Central), Lahore for criminal breach after arrest, forgery and for using forged documents. The trial Judge by judgment dated 8th September, 1981 sentenced him as under:-
(i) U/s 468, P.P.C.Two years' R.
1. And a fine of Rs. 4,000 or, in default, six months' R. I. On each count.
(ii) U/s 471, P.P.C. Six months' R.
1. On each count.
(iii) U/s 420, P.P.C.Two years R. I. And a fine of Rs. 2,000 or, in default, three months' R.
1. On each count.
The substantive sentences were to run concurrently. The convict has appealed to this Court.
2. In 1976, Muhammad Rafiq, Director Finance, Pakistan Natronal Shipping Corporation, Karachi, was posted as Controller of Military Accounts. The appellant was then working as Auditor in his office.
The prosecution case is that the appellant in his official capacity prepared forged documents, received payment of Rs. 5.491.86 from the Postmaster, Gujranwala. The appellant was proceeded departmentally. He was found guilty and dismissed from service. Muhammad Rafiq lodged report against the appellant Exh. P. W . 14/1.
3. Barkat Ali, Postal Clerk, Head Post Office, Gujranwala P.W. 1 deposed that he knew the appellant. In 1975, Audit Party came to Gujran--wala. The appellant was a member of that party. The party stayed for 10 days. It was during that period that Barkat Ali came to know the appellant. In April, 1.976, the appellant came to his office at Pension Counter and handed over to him life certificate Exh. P W 1/1 of Muhammad Yousaf attested by a Magistrate First Class, P.P.C. Exh. P W 1/2 and letter Exh. PW1/3 and a pension certificate for the pension of Muhammad Yousaf. Barkat Ali went through those papers. The were found to be in order. He prepared document Exh. PW1/4. The same was put up before the Assistant Post master, Gujranwala. After it had been approved by the Assistant Postmas--ter, he paid the amount to the appellant. In token of receipt of the amount the appellant put his signatures Exh. PW1/5 He also signed the life certificate, his signatures were Exh. P.1/6.
4. In the month of May, 1976, the appellant came again. He pre--sented life certificate Exh. PW1/7, L.
P. C. Exh. P W1/8 and Pension certificate. These pertained to Mahmood Khan, Sub-Maj Honorary Captain. The witness went through the formal routine and prepared pension payment journal Ex.
PW1/y approved by the Assistant Postmaster, Thereafter a sum of Rs. 3,544 was paid to the appellant against his signatures Exh. PW1/10, The appellant, in both the cases was shown as nominee of the pensioners According to Barkat Ali,. When the appellant came second time, he told him that Mahmood Khan pensioner was his uncle and was in need of a table fan, which he should procured for him from the factory. Later on the witness produced documents before the police which were taken into possession vide recovery memo. Exh. PW1/12 attested by him. Thereafter he learnt that Muhammad Yousaf and Mah--mood Khan were fictitious persons and the payment had been obtained without descriptive rolls.
5. Muhammad Bashir P. W. 4 was working as Accountant Head Post Office, Gujranwala. He was sent to the Controller Military Accounts Office, Lahore to enquire whether the persons on whose behalf Ikramul Haq got payments were actual pensioners or not. He contacted the Super--intendent of the said office, checked the record and learnt that no persons by the name of Muhammad Yousaf and Mahmood Khan existed in the record as pensioners. The appellant was not known to this witness before. During this query he came to know the name of the appellant was Ikramul Haq, although he signed as Muhammad Ikram. The witness was also told by the office that it was the appellant who had gone to Gujranwala. Police took into possession Exh. PW1/2, Exh. PW1/3 and Ex.
PW1/8 from Barkat Ali in his presence vide recovery memo. Exh. PW1/12 attested by him.
6. Ghulam Nabi P.W. 6, a clerk of Head Post Office Gujranwala was working as senior clerk in 1976.
The Assistant Postmaster was on leave, he was also doing his duties. He deposed that the appellant was paid a sum of Rs. 1,947.86 by Barkat Ali. The appellant did not sign in his presence. He again said that he put his signatures in his presence on Exh. PWI14 on three entries which the witness also initialled. Muhammad Yousaf P. W. 7 was Assistant Postmaster in 1976 at Gujranwala.
Payment vide Ex. PW1/9 was made in his presence by the concerned clerk to the appellant and the appellant signed in token of its receipt. He initialled the entries.
7. The prosecution examined other witnesses but those, referred to above, are the material witnesses. Azizud Din's evidence is of formal type. He joined the investigation, handed over documents Exh. PW1/1, Exh. PW1/7, Exh. PWI/4 and Exh. PWI/9 to the police.
8. Abdul Rehmap an Accountant testified that the record Ex. PW111, Exh. PW1/7, Exh. PW1/4 and Exh.
PWI/9 was produced by Azizud Din. Memo. Exh. PW2/1 was attested by him.
9. Khushi Muhammad P.W. 5 was Postmaster in the year 1976. The pension papers used to be dealt with by the Assistant Postmaster and he had nothing to do with that. It was the Assistant Postmaster who brought to his notice and told verbally what had happened.
10. Sh. Ishfaq Ahmad, Advocate P.W. 9 was shown form Exh. PW1/6 and Exh. PWI/11, which were attested by him as Oath Commissioner. He deposed that he attested those on the asking of another Advocate, namely, Qaiser Mustifa (deceased). Mr. Mueen Aftab P. W.
11. Assistant Military Accountant-General, Rawalpindi deposed that he had seen Exh. P W 1/2 of Muhammad Yousaf Sepoy and Exh. PW 1/8 of Mahmood Khan, Honorary Captain, signed by the Deputy Assistant Controller, Military. Accounts and Pension but the signatures were not of his. Although those were alleged to be signed by him.
11. Similarly Khaliq Dad Khan P.W. 12 retired Audit Account Assistant said that the documents Exh.
PW1/2 and Exh. P.1/8 did not bear his signatures. Those had been forged.
12. The only other important evidence is that of Qamarud Din, P. W. 13, Examiner Questioned Documents Forensic Science Laboratory, Lahore. On, 30th March, 1977 he was given form Exh. PW1/1 for com--parison with questioned signatures marked PA/1 to PA/3 with specimen signatures of Ikramul Haq as Muhammad Yousaf marked EE/1 and E/2and form Exh. P WI/I I to compare questioned signatures written as Mah--mood Exh. PB/3, PB/1 and PB/2 with the specimen signatures of Akram as Mahmood on sheets Exh. F, F/I and F/2 and pension payment form Exh.
PW1/4 and Exh. PW 1/9 to compare the questioned signatures written as M. Akram marked PCI1 on Exh. PWI/4 and PB/1 on Exh. PWI/9 with the sample signatures as M. Akram on sheets marked G, G/I and G/2. His opinion is Exh. PW13/1.
The appellant when questioned by the learned trial Court denied all the allegations and said that the L. P. Cs. Were prepared and signed by the Superintendent and Officers Incharge. They in order to save themselves got this case registered against him falsely. In defence he produced Nawaz Khan, Assistant Admn. Section CMA, Lahore and Muhammad Ziaul Haq, Accounts Manager Moono Company, Lahore.
Learned counsel appearing on behalf of the appellant took me through the relevant evidence and submitted that the conviction of the appellant is not legally maintainable because the prosecution evidence was very sketchy. It was contended that the prosecution has not been able to prove the essential ingredients of the offences for which the appellant has been convicted. In this sequence my attention was drawn to the important evidence like the one of Muhammad Yousaf, who admitted that he did not work as Assistant Postmaster regularly, but when this incident took place he was Assistant Postmaster. According to him the Postmaster had ordered his posting as Assistant Postmaster in the order book. Neverthe--less he failed to give any proof to show that he was appointed as Assistant Postmaster. He admitted that the papers relating to the pensions were put up before him after the same were complete and they kept the record of the pensioners and checked the same at the time of presentation of pension papers. This was initially to verify whether the pensioners existed or not.
Learned counsel also referred to the statement of Sh. Ishfaq Ahmad, Advocate, where he admitted to a court question that he was not competent to attest the forms. Reference was then made to the evidence of A. S. I. Wazir Ali, Police Station Model Town, Lahore. In the year 1976 he was posted at Police Post Ellgan Road, Police Station South Cantt., Lahore. This officer investigated the case. He obtained the necessary permission from the Magistrate. On 8th December, 1976 documents Exh.
PW1/1, Exh. PW1/4 Exh. PW1/7, Exh. PW1/9 were produced before him by Azizud Din, Accountant. They were taken into possession vide recovery memo. Ex. PW2/1. On 21st December, 1976 Barkat Ali Postal Clerk, Post Office Gujranwala, produced documents Exh. P WI/2, Exh. PW 1/3 and Exh. PW 18. These were taken into possession vide recovery memo. Exh. PW1/12. He ob--tained specimen signatures of the appellant in the presence of the Magistrate and sent the same to the Forensic Science Laboratory for comparison. The witness admitted that neither any document nor the alleged misappropri--ated amount was recovered. He also admitted that he did not go at the residence of the pensioners on whose behalf the accused is alleged to have received the pension from the Postmaster. Gujranwala. He was told by the Postmaster, Gujranwala that the pensioners were fictitious persons. The A. S. I. Was shown L. P. C. Exh. PWI/2 and admitted that specimen signatures of Mueen Aftab were not obtained by him for the purpose of comparison with the disputed signatures on Exh. P.1/2 and Exh. PW 1/8.
Another fact which the witness admitted is that the L. P. Cs. Appear--ed to be signed by the Auditor and Superintendent alongwith Officer In charge, that is to say Mueen Aftab. The witness did not obtain signatures of Superintendent for comparison with the signatures on Exh. PWI/2 and Exh.
PW1/8.
Another important factor in his evidence is that he had asked the concerned authority to produce the inquiry report but that was not produced. The answer given for this was that the report could only be produced in Court and not before the police.
It is in the light of the above evidence that the criminal liability of the appellant is to be determined.
He was convicted for three different offences. The important point in this sequence to be noted is whether the prosecu--tion has successfully proved all the ingredients of the offences for which the appellant had been convicted.
Usually the important evidence in a case of this type is that of the Investigating Officer because that provides the starting point. If the start is not good then the prosecution tries to build its case by collecting evi--dence bit by bit from hither and thither.
As mentioned above the appellant was proceeded departmentally. He was found guilty.
Accordingly he was sacked. This was the basis of his prosecution. I fail to understand why the authority concerned felt shy in producing that report before the Court. If it was not to be shown to the police, there was no justification to withhold it from the Court.
The Police Officer admitted that he did not obtain specimen signatures of certain officers. Those were very important to complete the chain of events. No office order was brought on record to soow that Muhammad Yousaf was appointed as Assistant Postmaster.
The evidence led by the prosecution is not fool proof. All the avenues of the innocence of the appellant have not been closed. There is an element of doubt. Its benefit must go to the appellant.
The appeal is accordingly allowed. The conviction and sentences are set aside. The appellant shall he set free, forthwith, if not required in any other case.