' Appellant above-named being aggrieved by judgment dated 31st March, 1976 of the Special Judge-cum-Enquiry Officer, Hyderabad in case No, 175 of 1971, by which appellant has been convicted under section 471, P. P. C. And sentenced to suffer R. I. For 2 years and to pay fine of Rs, 70,000 or in default to suffer further R. I. For 6 years more, has preferred the above appeal, on the following facts and grounds :- ' There were two cases against the appellant of the same nature and the evidence was also the same so also the witnesses, but they were bifurcated as the transactions were different and they had taken place at quite different times and place. The substance of accusation in this case runs as under :- "It is alleged by the prosecution, that you Sajjad Ahmed Khan were Sub-Divisional Officer, Gharo Road, Sub-Division District Thatta during the year 1965 and as such you were public servant. As such public servant you entered into Criminal Conspiracy with absconding co-accused Shanker Lal S. D. C. And the appellant Syed Nasir Hussain Contractor to defraud the Government and misappropriate the Government money.
' It is further alleged, that you being a public servant and in furtherance of the conspiracy while issuing a cheque bearing No, 623943-06240 dated 31st June, 1965 for Rs, 5568-16 in favour of the appellant Syed Nasir Husain deliberately left sufficient space before the amount written in the said cheque, in order to facilitate the appellant Nasir Hussain to interpolate and add some figure subsequently in the said cheque, by your S. D. C. Shankar Lal Ojha, who later on added figure '6' and word 'Sixty' before the amount, thereby making it Rs, 65,568.16 and misappropriated Rs, 60,000 and thereby committed an offence punishable under sections 409, 468, 471, 120-B of title P. P. C. Read with section 5(2) of the Prevention of Corruption Act II of 1947. And you Nasir Hussain contractor entered into criminal conspiracy with co-accused Sajjad Ahmed and Shankar Lal got the figure Rs, 60,000 added in the above-said cheque making it Rs, 65,568.16 from Rs, 5,568.16 and subsequently you encashed the said forged cheque and got the amount Rs, 65,568.16 from the Bank and thereby committed offences punishable under sections 409, 468, 471, 120-B of the P. P. C. Read with section 5(2) of the Prevention of Corruption Act II of 1947 and within the cognizance of this Court."
' Above charge was read over to the appellant, who pleaded not guilty to the charge and claimed to be tried.
' To sum up the allegations of the prosecution as it is stated above, in the year 1965 co-accused Sajjad Ahmed Khan was S. D.
0. Gharo, Road Building Division Thatta, while appellant Nasir Hussain was the Government contractor working for that Sub-Division and elsewhere, co-accused Shanker Lal (absconder) was S. D. C. In that Circle. P. W. 3 Ghulam Mujtaba Khan was then Executive Engineer of that Division. This Executive Engineer Ghulam Mujtaba P. W. 3 under whom co-accused Sajjad Ahmed Khan was working as S. D.
0. Passed a bill of Rs, 5568.16 in favour of contractor (Appellant Nasir Husain) the bill was sent to co-accused Sajjad Ahmed S. D.
0. For payment on 14th July, 1965 a fraud of Rs, 40,000 was unearthed on reconciliation with treasury, another fraud of Rs, 60,000 was also dictated. The matter was immediately reported in writing to S. P. Thatta, from where the case was ultimately transferred to Anti-Corruption Police. The details of the interpolation in the cheque concerned in this case, the cheque (Exh. 12) No, 623943 from Book No, 06240 was issued for Rs, 5,568.16 and was signed by S. D.
0. Co-accused Sajjad Ahmed Khan. It was a cross-cheque and was issued to account of payee Nasir Hussain appellant. Mr. Azizur Rehman the Manager of National Bank received the cheque from appellant Nasir Hussain and encashed it and credited the amount in the account of appellant Nasir Hussain, who signed at the back of the cheque in his presence. The S. P. After having received the complaint endorsed it to the S. H. O. Thatta, who reported it in the book maintained under section 154, Cr. P. C. And the F.
1. R. Was numbered as 59 of 1965 .Of Thatta Police Station and ultimately the investigation was given in the hands of Anti-Corruption Police and appellant was sent up to trial Court.
' Fakir Muhammad (P. W. 6) was at that time Assistant Sub-Inspector Establishment Thatta, took up the investigation of this case under the order of D. S. P., Hyderabad. He registered the case by lodging F. I. R. Exh.
26. He then secured Cheque No, 623943 of Book No, 06240 Exh. 12 for amount of Rs, 5,568.16. He also secured connected cheque of Executive Engineer Thatta, which was for the amount of Rs, 5,568.16, which he produced as Exh.
28.
' Mr. Atta Muhammad P. W. 8 Circle Officer A. C. E. Thatta, received the case papers of this crime and he had given the papers to Mr. Fakir Muhammad A. S. I. And then taken up the investigation from him and recorded the statements of Dawood Khan, Azizur Rehman, Muhammad Younus and Mr. Ghulam Mujtaba, Executive Engineer on 2nd August, 1965. He secured the pen, with which the alleged forgery was committed, from the possession of Mr. Muhammad Younus.
' Ghulam Siddiq P. W. 5 was also C.O.A.C.E. Thatta, who had received papers Mr. Atta Muhammad and examined P. Ws. Faiz Muhammad and Badar Alam and obtained specimen signature of Nasir Hussain and others and sent them to Handwriting Expert. Finally Mr. Ghulam Muhammad the then C.
0. A. C. E. Thatta, challaned the appellant in view of the direction of Director Anti-Corruption Establishment and requested the Court to move the appropriate Government for the necessary sanction.
' The other witnesses examined by the prosecution are Mr. Azizur Rehman, the Manager of National Bank Thatta, Muhammad Younus, P. W. 2 Head Clerk in the Office of Executive Engineer B & R Division Thatta. The writing of the cheque was duty of this clerk, he says that cheque, counterfoil of the cheque are written either by Sajjad Ahmed Khan or co-accused Shanker Lal, he further stated that Cheque Exh. 12 pertaining to this case is in the handwriting of co-accused Shanker Lal and is signed by co-accused Sajjad Ahmed Khan. The cheque is for Rs, 65,568.16 and its counterfoil Exh. 14 is for Rs, 5,568.16 only. The cheque and its counterfoil are both signed by co-accused Sajjad Ahmed Khan and are issued in favour of appellant Nasir Hussain contractor. P. W. 3 is Mr. Ghulam Mujtaba Khan former Executive Engineer and the gist of his testimony is given above. It was he, who had detected the defalcation. Mr. Badar Alam P. W. 7 was Divisional Store-Keeper B & R Division Thatta, his evidence is also more or less same as that of Mr. Ghulam Mujtaba Khan, he had during the reconciliation of the account found the discrepancy between the figure in Bank and with them and thereby detected the defalcation. The last witness Mr. Abdul Majeed P. W. 9 the Handwriting expert, who stated that the forgery in the cheque was done by absconding co-accused Shanker Lal i,e, the figure '6' and the word 'Sixty' were added in the cheque Exh. 12 by the hand of absconder co- accused Shanker Lal.
' The co-accused Sajjad Ahmed Khan in his statement admitted that he was S. D. O. At the relevant time, but denied that he entered into criminal conspiracy with Nasir Hussain and Shanker Lal. He admitted that he had initialled the entries in the Measurement Book. He also admitted that running bill for Rs, 5,568.16 Exh. 28, which was passed by P. W. 3 Mr. Ghulam Mujtaba was signed by him, but he had not committed the forgery. The forgery was committed after the issuance of the cheque. He pleaded innocence. He admitted that the cheque was issued by him only for Rs, 5,568.16, which amount is shown in the counterfoil and this is the amount which is entered in the cash-book. He denied to have committed any forgery. In his written statement he only added that Nasir Hussain filed a Civil suit against the Government which at that time was pending in the Court of District Judge, Thatta and produced the certified copy of its plaint as mark "A" Exh.
43.
' Mr. Nasir Hussain admitted that he was contractor and was given the repair work of Mukhtiarkar Katchari Mirpur Sakro, but denied that he had entered into criminal conspiracy or misappropriated any Government amount. He refused to have signed any running bill for Rs, 5,568.16 (Ex. 28), he also refused to have committed any forgery and misappropriated any Government amount. He also refused to have received any amount on the strength of cheque Exh. 12 or to have signed at the back of the cheque Exh.
12.
' Both the above appellant as well as co-accused neither examined in defence themselves nor examined any defence witness.
' The learned trial Court taking into consideration the evidence adduced before it, while acquitting co-accused Sajjad Ahmed Khan convicted and sentenced the appellant above-named as hereinbefore mentioned and corrsequently the appellant has filed the above appeal on the grounds mentioned in the memo of appeal.
' The learned Advocate for the appellant in support of the above appeal submitted as under :-
(a) That the co-accused Sajjad Ahmed Khan was acquitted on the same set of evidence by the learned trial Court and as such conviction of the appellant cannot be sustained.
(b) That the real dispute is civil dispute between the appellant and the department in respect of which appellant filed his Suit No, 105/66 and as such the question of criminal misappropriation on the part of the appellant does not arise at all.
(c) That the prosecution has failed to establish, that the alleged forgeries were committed by the present appellant in this connection and handwriting expert has clearly said, that the figures alleged to I have been forged in the cheque in question are not in the handwriting of the appellant.
(d) That appellant in his statement under section 342, Cr. P. C. Had denied encashment of the cheques in question and as such the prosecution ought to have produced documentary evidence from the appellant's bankers in support of their case, but the prosecution did not do so and consequently relied upon the statement of P. W. 1 in utter disregard of the law of evidence in this connection and as such no reliance can be placed on the statement of P. W.
1.
(e) That the learned trial Court did not put any question regarding allged admission of the appellant in his civil suit to the appellant under section 342, Cr. P. C. But instead of this relied on the alleged admission in the copy of the plaint produced before it and as such conviction of the appellant on this ground alone cannot be sustained.
( f ) That the learned trial Court having come to the conclusion, that the forgeries were not proved and in the absence of any evidence regarding alleged encashment of the cheque in question by the appellant, the conviction of the appellant under section 471, P. P. C. Is not at all warranted by law.
' In support of the above contentions the learned Advocate for the appellant relied upon cases reported in 19'69 P Cr. L J 173, 1970 P Cr. L J 963 and 1963 PLC 58.
' The learned Advocate for the appellant further submitted in the alternative, that appellant remained in custody from 31st March, 1976 upto 23rd April, 1976 and since he has been facing trial right from 1971 and has been on bail from April. 1976 ends of justice will be fully met if the sentence of imprisonment awarded to the appellant is reduced to the period already undergone by him. In support of this the learned Advocate for the appellant relied upon cases reported in PLD 1964 SC 266, 1977 P Cr. L J906 and 934 and 1975 P Cr. L J 809.
' The learned Advocate appearing for the State on the other hand submitted, that be was fully supporting the impugned judgment, in view of the statements of prosecution witnesses brought on record, for the cogent reasons given by the learned trial Court in its impugned judgment.
' I have carefully considered the above submissions made by the learned Advocate before me and have gone through the R & P of the learned trial Court as well as the impugned judgment and the cases cited by the learned Advocate for the appellant.
' The learned trial Court has convicted the appellant under section 471, P. P. C. Only, in view of the statement of P. W. 9 Abdul Majid, that alleged forgeries in cheque Exh. 12 are in the handwriting of absconding accused Shanker Lal and keeping in view the statement of P. W. I Azizur Rehman, the Manager of National Bank of Pakistan, which is corroborated by the statement of P. W. 7 Badre Alam, who was familiar with the handwriting and signatures of the appellant, convicted appellant for using Exh. 12, a forged cheque, as genuine. The learned Advocate for appellant in this connection submitted, that prosecution has led no evidence, that Exh. 12 was in fact encashed by the appellant by producing his account statement etc. From appellant's Bank and as such no reliance ought to have been placed on oral statement of P. W. 1 only, in this connection, in view of sections 59 of Evidence Act and provisions of Bankers Book of Evidence Act etc. I see no force in this contention of the learned Advocate of appellant, as admittedly Exh. 12 was one cheque and endorsed for payees A/C only and as such it could not be credited to any other account, except that of appellant. Appellant has not denied, that he had account with National Bank of Pakistan, of which P. W. 1 was Manager. P. W. 1 was after seeing Exh. 12 and endorsements made by the Bank on the said cheque stated, that it was presented for encashment in the account of appellant and was accordingly encashed and credited to the account of appellant, in ordinary course. This statement of P. W. 1 was not at all challenged in cross-examination. In addition to this P. W. 7 Badre Alam, categorically stated, that endorsement and signatures on the back of Exh. 12 were in handwriting of appellant, with which he was familiar. This statement of P. W. 7 was also not successfully challenged in his cross-examination. In view of this, even if plaint Exh, 43 filed by appellant is discarded, still it is clear from the statements of P. W. 1 and P. W. 7, that appellant encashed the proceeds of Exh. 12, after the same was forged by absconding accused Shanker Lal. This fact by itself raises unrebuttal presumption, that appellant was fully aware of the fact, that Exh. 12 was a forged cheque, as far as amount of Rs, 65,568.16 was concerned, in view of Exh. 28, which has been proved by P. W. 7 and statement of P. W. 7 in this connection, was not at all challenged in his cross- examination.
' In view of my above conclusions, I see no force in the other contentions urged before me by learned Advocate for appellant, as case of present appellant is quite distinguishable from the case of acquitted co-accused Sajjad Ahmed Khan and appellant has not been convicted for committing forgeries in question, by the learned trial Court, but has been convicted B under section 471, P. P. C. Only and as such I see no reason to interfere with the impugned judgment, on any ground urged by the learned Advocate for appellant. Cases cited by the learned Advocate for appellant are based on different facts and as such not at all applicable to the facts of case against the appellant. It may further be noted, that statement of P. W. 1 is not only oral statement, but is fully supported by Exh. 12 and endorsements made thereon by the Bank, in ordinary course of business and as such no provisions of Evidence Law have been violated by the learned trial Court, by accepting the statement of P. W. 1 for purposes of the conviction of the appellant.
' The only point, which requires consideration in the above appeal, is whether appellant's sentence of imprisonment be reduced in view of the fact, that appellant has been facing trial since 1971 and has been on bail from 23rd April, 1976 and has remained in custody from 31st March, 1976 upto 23rd April, 1967 when he was granted bail by this Court. In this connection, I find great force in the contention of the learned Advocate for appellant and cases cited by him namely PLD 1964 SC 266, 1977 P Cr. L J 906 and 1975 P Cr. L J 809 fully support the contentions of the learned Advocate for appellant, in this connection.
' Therefore while dismissing the above appeal on merits, in my opinion, ends of justice will be fully met, if sentence of imprisonment awarded to appellant from 2 years is reduced to the period already undergone by him, and consequently I reduce the said sentence awarded to appellant from 2 years' R. I. To the period already undergone by him and maintain the fine of Rs, 70,000 imposed on him by impugned judgment.Since appellant is on bail, I give him one month time to pay the said fine of Rs, 70,000 and on such payment, the bail bonds executed by appellant shall stand discharged. However in case appellant fails to pay the said fine, within the time allowed by this judgment, learned trial Court is directed to issue non-bailable warrants for his arrest and on his arrest to remand him back to judicial custody to serve out sentence in lieu of fine awarded to him, by learned trial Court.
' Above appeal stands dismissed in terms of the above judgment. .