1. ' The above two appeals have been filed by appellants Miskeen Masih and Ghulam Rasool, being aggrieved by a common judgment, dated 31st August, 1977 of the learned Special Judge (Central)
2. Karachi, in Case No,79/75, by which appellant Miskeen Masih has been convicted under section 477-A and sentenced to suffer R. I. For 1 year and to pay fine of Rs,1,000 or in default of payment of fine to suffer further R.I. For 6 months and both the appellants have been convicted under section 420/34, P.P.C. And sentenced to suffer R. I. For 6 months each and to pay fine of Rs,500 each or to suffer further R. I. For 3 months, in case of default, have filed the above two appeals against the said common judgment, on the following facts and grounds:- ' According to prosecution, appellant Ghulam Rasool was Assistant Station Master, Barudabad Railway Station during the month of July, 1974. The skeleton of the monthly pay bill for July, 1974 for the railway staff posted at Barudabad Railway Station was prepared in triplicate by P.W. Muzafar Hussain the then Station Master, Barudabad. In the skeleton, the net amount payable to appellant Ghulam Rasul for July, 1974 was shown to be Rs, 274;
40. The skeleton bill was submitted by the Station Master, Barudabad to the bill section of Divisional Superintendent's Office, Karachi, where the bills were to be completed by the bill clerk and were to be sent to the Assistant Personnel Officer for his signature and then the same were to be sent to the Divisional Accounts Officer, Karachi. In office of the Divisional Accounts Officer, each bill was to be entered in Register C.0.6 by the concerned clerk and then the bill was to be sent to the concerned audit clerk. The bill for July, 1974 for the staff of Barudabad Railway Station was entered in Register C.0.6 by P.W. Zahid Husain Clerk, who sent the same with its summary to appellant Miskeen Masih, who was Audit and Accounts Clerk in same office at the relevant time. Appellant Miskeen Masih as Accounts clerk was to check and audit each bill and its summary and then he had to fill in the infestment of the bill at back of the summary and then put up the bill and its summary before the Head Clerk, whose duty was to see that individual totals were carried over to the summary. In the instant case, appellant Miskeen Masih was alleged to have obtained the bill in question from clerk C.0.6 and to have submitted the same before P.W. Abdul Ahad, Head Clerk after performing his part. It was alleged, that while dealing with said bill and its summary, appellant Miskeen Masih-fraudulently added in the bill an amount of Rs,705 as overtime allowance to co-accused Ghulam Rasool. In this way, he was alleged to have falsified the accounts and to have cheated the Pakistan Railways to the tune of Rs,705. Appellant Ghulam Rasool was said to be beneficiary of the falsification of accounts and cheating and he was alleged to be having common intention with appellant Miskeen Masih, in commission of the various offences. Such complaint was lodged with F.I.A. By the Divisional Accounts Officer, Mr. Ghulam Ahmed. F.I.A. Registered the case and after due investigation, challaned the appellants.
3. ' Under a letter dated 1st October, 1975, trial Court moved the Government of Pakistan for sanction.
4. Said letter was acknowledged by the Government of Pakistan under their letter dated 24th October, 1975. Subsequently the challan, put up by the F.I.A, was bifurcated on 6th December, 1975 in three cases. A fresh reference was made to the Government of Pakistan on 24th December, 1975 for sanction. Said letter was received in the Ministry of Interior on 3rd January, 1976 as per postal A/D.
5. Requisite sanction was deemed to have been accorded under an order passed on 6th March, 1976 as Exh. I.
6. ' Charge Exh .3 was framed against the appellants and it was read over to them. They pleaded not guilty.
7. ' Prosecution examined complainants Ghulam Ahmed Exh.4 and P.Ws. Zahid Husain Exh. 9, Ghulam Rasool Exh.10, Abdul Ahad Exh.11, Muzafar Husain Exh.12 and Shamshul Qamar Exh.14. Prosecution was closed under statement Exh.19.
8. ' In his statement Exh.20, appellant Ghulam Rasool admitted, that he was .Assistant Station Master, Barudabad Railway Station during the month of July, 1974 and for said months, he was entitled to draw net pay of Rs,274;40. He admitted, that he was not entitled to any overtime allowance for July, 1974. Rest of the allegations were denied. He added that he never claimed any amount as overtime.
9. That the extra-money was taken by him in good faith as his salary. That he questioned the Station Master about the extra-money. Appellant Ghulam Rasool added, that the amount overpaid to him had been realised from him in instalments. He did not wish to be examined in his defence and did not lead evidence in defence.
10. ' In his statement Exh.21, appellant Miskeen Masih admitted, that during the period July, 1974 to April, 1975, he was Accounts Clerk but not Audit Clerk in Office of the Divisional Officer. He stated that his duty was to check each bill with its summary as Accounts Clerk. That he had to do external checking of each bill and its summary, but was not supposed to do audit. He admitted that he had to prepare infestment at back of each bill under his initial and that the infestment in the instant case at back of summary Exh.6 was in his handwriting and the same was bearing his initial's. Remaining allegations were denied. Appellant Miskeen Masih denied if the cuttings and overwritings in the bill Exh.5, except those in red ink were by him. He added that the cuttings and overwritings in the ink other than red ink already appeared in the bill Exh.5 and its summary when the same was passed to him by P.W.Zahid Husain. He admitted that overwritings in bill Exh.5 and Summary Exh.6 with red ink were in his handwriting. He added that it was his head clerk, who directed him to score off a figure and reproduce the same by overwriting with red ink as that figure was not legible. He further stated, that he had to check totals only of the bills. That after filling in the infestment at back of summary, he used to pass on the same with the bill to the Head Clerk, who was to rectify any mistake committed by this appellant. Appellant Miskeen Masih added, that his mistakes were to be pointed out to him by the Head Clerk and then he used to correct those mistakes. That some times the bills were returned for correction and sometimes the same were corrected in the office. Appellant Miskeen Masih further stated, that every bill after finalisation was to be audited by audit clerk and that if there was any over payment, the same was to be recovered. Appellant Miskeen Masih alleged, that P.W. Ghulam Ahmed had personal grudge against him and that the witnesses had deposed at the instance of P.W. Ghulam Ahmed. Appellant Miskeen Masih went on to say, that he passed the bill Exh.5 and other bills in good faith. That had there been any mistake, in any of said bills, the same would not have been forwarded to the Divisional Accounts Officer. Appellant Miskeen Masih did not wish to enter the. Witness-box, but in his defence, he examined D.W. Riazuddin Exh. 23, D.W. Abdul Sattar Exh.24 and D.W. Naimullah Exh.25.
11. ' The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellants abovenamed as hereinbefore mentioned and consequently both the appellants have filed above two separate appeals on the grounds mentioned in their respective memo. Of appeals. Since both these appeals arise out of common judgment. I proposed to dispose of the same by this common judgment.
12. ' The learned Advocates for the appellants in support of the above appeals submitted as under:-
(a) That the Railway employees are not the public servants and as such trial by the learned Special Judge was without jurisdiction.
(b) That prosecution failed to bring any evidence on record, that appellant had actually falsified accounts, as D.W. 1 Riazuddin in his cross-examination, admitted, that he was unable to state in whose handwriting accounts in question were written. The appellant has been convicted simply because he had filled in investment stamp on the back of the said bills in the normal course of his duties as specially it is an admitted position, that the bills in question were not prepared by the appellant.
(c) That no fraud was committed, as the alleged excess payment was received back.
(d) In the alternative, since this is an old case of 1975 and appellants have been facing trial for all these heirs, the sentences awarded to the appellants are harsh.
13. ' The learned Advocate appearing for the State on the other hand submitted, that he was fully supporting the impugned judgment as prosecution has established it's case beyond reasonable doubt by the statements of six prosecution witnesses, against whom no enmity at all is alleged.
14. However, he submitted, that as far as the sentences are concerned, since appellants have been facing trial right from 1975, this fact may be taken into consideration.
15. ' I have carefully considered the above submissions made by the learned Advocates before me and have gone through R & P of the learned trial Court as well as impugned judgment and the cases cited by the learned Advocate for the appellants.
16. ' The contentions of the learned Advocate for the appellant, that the appellant was not a public servant within the meaning of section 21 of the P.P.C., has no force. It may be mentioned that after promulgation of Act 1975, which added the words "and includes an employee of any Corporation or other body set up by the Central Government," to section 2(b) of Pak Cr. Amendment Act, 1958, it is very clear that the Railway employees come within the definition of public servant and consequently the jurisdiction assumed by the learned Special Judge was legal. The cases cited by the learned Advocate for the appellant are prior to this amendment and/or based on different facts and as such not applicable to the present case.
17. ' On merits prosecution case rests upon the statements of P.W. Zahid Husain, Ghulam Rasool, Ahad, P.W. Muzaffar Husain and Shamsul Qamar Warsi. These prosecution witnesses in their statements have stated, that manipulations and changes in Exh.5 and Exh.6, did not exist in the office copies of the said bills and were not present before the bills in question were delivered to appellant Miskeen Masih. None of these P:Ws have stated that overwriting and manipulations in these bills are in the handwriting of appellant Miskeen Masih. However, D.Ws Riazuddin, Abdul Sattar and Naimullah in their statements before the learned trial Court stated, that the manipulations and overwritings in the bills in question were not in the handwriting of appellant Miskeen Masih. In spite of this the learned trial Court came to the conclusion, that since P.Ws have stated, these manipulations and overwriting did not exist before the said bills were handed Over to appellant Miskeen, appellant Miskeen alone could have done said manipulations and overwriting's in the said bills. I find that the learned trial Court has based its conclusions and findings on mere presumptions. Furthermore prosecution has laid no evidence to prove common intention and conspiracy between both the appellants. In view of this. I see no reasons to agree with the conclusions and findings of the learned trial Court as same are based on mere presumptions, which are not at all warranted by the evidence on record and as such in my opinion, prosecution has failed to establish his case beyond reasonable doubt against both the appellant.
18. ' Therefore, I allow the above appeals and set aside convictions of the appellants and sentences awarded to them by impugned judgment and acquit them by giving him benefit of doubt and discharge the bail bonds executed by both the appellants in the above appeals.