Appellant above named, being aggrieved by Judgment dated 31st December, 1975 of the Learned Special Judge (Central) Karachi, camp at Hyderabad, in case No. 18 of 1974, by which appellant above named has been convicted under section 5(2) of Prevention of Corruption Act, 1947 and sentenced to suffer imprisonment till rising of court and to pay fine of Rs. 1,(100 or to suffer R. I. For further six months, has preferred the above appeal, on the following facts and grounds.
2. According to prosecution, appellant Muhammad Iqbal in 1965-66, was Deputy Settlement Commissioner, Mirpurkhas, while acquitted co-accused Bashir Ahmed was clerk in the Office of the Deputy Settlement Commissioner (D. S. C.), Mirpurkhas and fie' was incharge of preparation and issue of transfer orders, in respect of evacuee properties, situated at Mirpurkhas, as such, he was also incharge of maintenance of register concerned with such transfers. As Deputy Settlement Commissioner, Mirpurkhas appellant Muhammad Iqbal was wholly and solely responsible for issue of transfer orders in respect of evacuee properties at Mirpurkhas. It was alleged, that there was a criminal conspiracy between the appellant and acquitted persons for transferring shop No. A-204, situated in New Town Mtrpurkhas in name of Bhojomal. It was alleged that the appellant knew, that the said shop was already transferred to Qadeer Beg but, still they transferred the same to Bhojomal and issued such P. T. D., which was initialled by co-accused Bashir Ahmed and signed by appellant Ch. Muhammad Iqbal. Instead of paying Rs. 4,872.00 in cash, as price of said shop, Bhojomal chose to get adjusted said amount from three Compensation Books, which were found to be bogus. In this way, the appellant and co-accused persons were alleged to have caused wrongful loss to the Government to the tune of Rs. 4,872, by allowing Bhojomal to pay the price, by adjustment from certain Compensation Books, which were bogus. The appellant and co-accused were further alleged to have falsified the record and the books of accounts and to have used forged documents as genuine, knowing the same to be forged. Lastly, it was alleged, that the appellant and co-accused by illegal means and abusing their position as public servants, obtained for Bhojomal tile said shop, without realising its price in cash or by adjustment through genuine Compensation Books. Before transfer of said shop, co-accused Basbir Ahmed prepared an office note on 20-2-1967, wherein he dishonestly stated that transferee Bhojomal had paid transfer price of said shop, through genuine Compensation Books (C. B. S.). Appellant Muhammad Iqbal, as D. S. C. Agreed with this office note with the result, that the said shop was actually transferred to Bhojomal. It was alleged that with the collusion of officers of the office of D. S. C., Mirpurkhas, said shop was transferred to. Bhojomal through P. T. D. Dated 30-1-1967 without verifying the fact, that the cost of the property had not been paid. After detection of this fraud, a notice was issued to Bhojomal to deposit the entire amount of the shop and he did so. Such complaint was lodged with Pakistan Special Police Establishment by Israr Ali Khan, S. I. P., P. S. P. E.
Case was registered by Dy. S. P. Ziaul Hassan and was investigated by S. I. P. Akhtar Ali Khan, who obtained permission from a Magistrate at Karachi and from another Magistrate at Mirpurkhas. He obtained P. T. D. In question and all other relevant documents and registers from the office of D. S. C., Mirpurkhas. He also interrogated Bhojomal, who was co-accused with present appellant but he died. On conclusion of investigation present appellant, acquitted co-accused and Bhojomal were challaned. Bhojomal died during pendency of the case and case against him was ordered on 26- 10-1974 to have abated.
3. On 1-7-1974, trial Court moved Government of Pakistan, through Ministry of Interior for grant of sanction to prosecute present appellant and co-accused. Requisite sanction was neither ranted nor refused. Under his order dated 26-10-1974, the then learned trial Judge passed an order by which the requisite sanction was deemed to have been accorded.
4. The substances of accusations Exhs. 3 & 4 were read over and explain--ed to the appellant and co-accused who pleaded not guilty and denied the allegations.
5. Prosecution examined P. Ws. Muhammad Amin Exh. 5, Mashooq Hussain Exh. 12,.Muhammad Anis Raza Exh. 13, Muhammad Rahim Exh. 14, Akhtar Ali Khan Exh. 18 and Israr Ali Khan Exh. 28, Remaining witnesses were given up under statements Exhs. 15 and 17. Prosecution produced in evidence the enquiry report Exh. 36-A, composed by P. W. Nazar Hussain, who was said to have become incapable to giving evidence due to operation of his brain. Subsequently, prosecution applied for summoning and examin--ing of Mr. Iqbal Shah, D. S. C. Mirpurkhas, whose name did not figure in the challan. Said witness was not connected with the transfer of said shop to Bhojomal. Under Order dated 17-12-1975, trial Court disallowed application moved by the prosecution for summoning of Iqbal Shah. Sub--sequently, under his application Exh. 37, the Prosecutor produced in evidence application Exh. 38 of Bhojomal, a progress sheet for PTD Exh. 39 and a true copy Exh.
40 of an order, passed by Additional Settlement Commissioner, Hyderabad Division on 10-1-1960.
Said documents were received in evidence. Since no other witness for prosecution was present on 17-12-1975 the prosecution case was closed.
6. In his statement Exh. 41, appellant Bashir Ahmed admitted, that he was clerk in the office of D. S. C., Mirpurkhas in 1965-66. He admitted that in that capacity, it was his duty to prepare transfer orders. He denied if he was supposed to maintain registers concerning the transfers. He denied existence of any criminal conspiracy between him and the appellant. He denied having prepared the P. T. D. Exh. 6 and the once Note Exh.
8. He denied that P. T. D. Exh. 6 and the P. T. D. Exh. 11 were issued before payment of Government dues by Bhojomal. Appellant Bashir Ahmed added, that the entries in Register C. S. C. 5 were authenticated by P. W. Mashooq Hussain and that he made entries in C. S. C. F. Register, but not in C. S. C. 4 Register. He admitted that entries at page 218 of C. S. C. F.
Register (Exh. 11-A) were in his handwriting and were bearing his initials. He admitted that he received application Exh. 9 and affidavit Exh. 10 for entry in inward register and denied if the same were given to him for enquiry. He admitted that the entries at page 291 of Register C. S. C. 5 were in his handwriting and were bearing his initials. He also admitted, that the original entry No. 237 at page 33 of Register C. S. C. 4 was in his hand--writing but, denied the overwriting over it with red ink to be in his hand. He denied the other prosecution allegations. He explained that P.. T. Ds. Were issued in consequence of judicial orders and that the Register C. S. C. F. Was with the record keeper of accounts branch and not with him. He did not accept the responsibility for disappearance of pages 249 to 254 of Register C. S. C. F. Appellant Bashir Ahmed alleged, that the prosecution witnesses had deposed under the influence of Mr. Nazar Hussain, D. S. C. Co-accused Bashir Ahmed produced true copies Exh. 42 to 44 of the orders passed by Settlement Officers.
7. In his statement Exh. 45, appellant Muhammad Iqbal admitted, that he was Deputy Settlement Commissioner, Mirpurkhas and as such a public servant in 1966-67 and not in 1965. He denied that he was responsible as D. S. C., Mirpurkhas for issue 'of transfer orders in respect of evacuee properties at Mirpurkhas. He denied having signed or issued P. T. Ds. Exhs. 6 and 11 or the office note Exh.
8. In respect of the property in question, appellant Muhammad Iqbal stated, that the same was available for transfer since 1961, under an order of the Additional Settlement Commis--sioner, which was maintained by his superiors in 1964. He spoke of Settlement Scheme No. 8, introduced in 1966 and stated that under it, the locals were entitled to apply for transfers of evacuee shops in their possession. Appellant Muhammad Iqbal denied that the writing in red ink at page 33 of-C. S. C. 4 was in his hand. He added that .C. S. C. 5 Register was to remain in record room of accountant and not with him. Appellant Muhammad 'Iqbal denied remaining prosecution allegations and added that P. W. Mashooq Hussain, Accountant was himself responsible for making adjustments in Compensation Books, for making entries in cash books and for signing the challans and that he alone has deposed against him. Appellant Muhammad Iqbal added, that he had issued order Exh.
44 on the basis of Orders Exhs. 42 and 43 and that his order was upheld in 1969 by the Additional Settlement Commissioner under the order Exh. 40.
8. The appellant and co-accused did not wish to go into the witness box, as their own witnesses and did not lead any defence.
9. The learned trial Court taking into consideration the evidence adduced before it, while acquitting accused Bashir Ahmed, convicted and sentenced the appellant above named as hereinbefore mentioned and con--sequently appellant above named has filed the above appeal, on the grounds mentioned. In the Memo. Of appeal.
10. The learned Advocate for the appellant in support of the above appeal submitted as under :-
(a) That P. T. D. Exh. 6 and document Exh. 11/A alleged to bear the signatures of the present appellant, were not sent to handwriting expert and consequently in the face of appellant's denial, that these documents do not bear his signatures, appellant could not have been convicted.
(b) That in spite of challan Exh. 33 being on record, the prosecution failed to examine the concerned bank to prove, that the amounts mentioned in the said challan Exh. 33 were in fact not deposited in the bank in question. In view of this the prosecution has failed to establish its case against the present appellant, beyond reasonable doubt.
(c) That P. W. 1 Amin, P. W. 2 Anis Raza and P. W. 4 Muhammad Rahim had categorically stated before the learned trial court, that Exh. 11/A does not bear the signature of the present appellant, where as P. W. 3 Anis Raza and P. W. 4 Muhammad Rahim also stated before the learned trial Court, that P. T. D. Exh. 6 also did not bear the signature of the appellant. In spite of this the learned trial court, on the basis of the statement of P. W. 2 Mashooq Hussain, came to the conclusion that both the documents in question were signed by the present appellant, without taking into c3nsideration, that P. W. 2 Mashooq Hussain in order to save himself, has involved the present appellant.
(d) That the learned trial Court did not take into consideration Exh. 16 and Exh. 33 which were important documents on record and as such the impugned Judgment of the learned trial Court cannot be sustained.
(e) That the original application for issuance of P. T. D. By Bhojomal Exh. 31 and Exh. 8 the office note, was not put by P. W. 2 to the appellant. This important fact has not been Considered by the learned trial Court.
11. In view of the above submissions made by the learned Advocate for the appellant, he urged that the prosecution has failed to establish its case beyond reasonable doubt against the present appellant.
12. The learned Advocate appearing for the state at the outset submitted, that he was not supporting the impugned judgment in view of the above mentioned facts on record.
12. 1 have carefully considered the above submissions made by the learned Advocates before me and have gone through the record and proceedings of the learned trial court as well as through the impugned Judgment.
13. It is admitted position that P. T. D. Exh. 6 and document Exh. 11/A were not sent to Handwriting Expert, though appellant denied his signatures on both of them. But in spite of this, learned trial Court held otherwise.
14. Learned trial Court came to conclusion that, P. T. D. Exh. 6 was issued to Bhojomal, before realisation of full price. The learned trial Court failed to take into consideration Exh. 33 copy of challan, which showed that full price of the shop in question was paid by Bhojomal prior to issue of P. T. D. Exh. 6 and rejected the contention of the appellant that Bhojomal was compelled to pay price of the shop twice, on the ground that this con--tention was not substantiated by the appellant. I find that the learned trial Court has not at all considered the effect of Exh. 33 dated 31- 12-1966, which was produced by prosecution vis-a-vis plea of the appellant, that the price of the shop was paid by Bhojomal on 31-IZ-1966, long before issue ofP. T. D. Ext. 6 dated 30-1-1967 or 20-2- 1967. Learned trial Court has no rejected Exh. 33 as forged document, so as to ignore it completely.
15. I find from the impugned Judgment, that learned trial Court cam to the conclusion that it was the duty and responsibility of P. W. 2 Mashooq Hussain to verify payments and issue certificate, after consulting Register C. S. C. 5, before issuance of P. T. D. This duty in fact P. W. 2 Mashooq Hussain performed by countersigning and initialling P. T. D. Ext. 6, before the same was alleged to have been sent for signatures to appellant, by P. W.
2. However, this witness before the learned trial court stated, that without performing his duty and without verifying payment made, he initialled the P. T. D. Exh. 6 and sent to appellant. In the face of this statement of P. W. 2 even if it is accepted that Ext. 6 P. T. D. Was in fact signed by the appellant. Then too it cannot be said, that appellant acted contrary to usual practice and signed P. T. D. Exh. 6, on account of alleged conspiracy. I find that learned trial Court tried to get over this difficulty by stating that P. W. Should also have been challaned as co-accused. I cannot agree with such conclusion and finding of the learned trial court and hold appellant liable for alleged conspiracy, in the face of the statement of P. W. 2, who has been relied upon for conviction of the appellant, specially in the absence of any, evidence on record, that compensation books produced for adjustment by Bhojomal, were bogus.
16. Keeping in view above facts on record, in my opinion prosecution has failed to establish its case against the present appellant, beyond reasonable doubt.
17. Therefore I allow the above appeal and set aside conviction of the appellant and sentences awarded to him and acquit him by giving benefit of doubt and discharge the bail bonds executed by the appellant.