' The appellant was tried by Special Judge Anti-Corruption, Karachi for offences under sections 409, 461, 471 and 477, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947 (Act II of 1947), and convicted of offence under section 409 only and sentenced to suffer R.I. For two years and to pay fine of Rs,1,00,000 or in default of payment of fine to suffer R.I. For six months, by judgment, dated 29-12-1980. He has challenged his conviction and sentence by this appeal.
2. In the year, 1969 appellant Sirajuddin was serving as Chief Booking Clerk at Landhi Railway Station, as employee of the Pakistan Railway. On 12-8-1969 he had received 100 bales of Surgical cloth from Messrs Ali Textile Mill, Karachi for despatch to Medical Store, Lahore. He had issued Railway Receipt No, C-399317 in respect of the above consignment. Again on 18-11-1969 he received second consignment of 100 bales of surgical cloth from Messrs All Textile Mill for despatch to the same Medical Store, Lahore under R.R. No, F-187862. The case of the prosecution is that out of 100 bales of the first consignment, the appellant despatched only twenty bales while misappropriated eighty bales after making forged entry in the loading book showing loading of eighty bales on 16- 8-1969. It is alleged that he also forged the signature of the Guard concerned on the Loading Book purported to show that remaining eighty bales of the first consignment were despatched by 367- Up goods train on 16-11-1969. It is further alleged that out of the second consignment under the R.Rs, dated 18-11-1969, the appellant did not despatch a single bale and misappropriated the same after having made a forged entry in the loading book purporting to show that the bales of the second consignment under the R.R., dated 18-11-1969 were despatched on the same date. Signature of the Guard concerned on the loading book is also alleged to have been forged by the appellant.
3. The above facts came to the notice of the Railway Administration when P.W. Dr. Wajihul Hassan (Exh.22) of Medical Store, Lahore and P.W. Muhammad Ismail (Exh.24) Superintendent of the above Medical Store, filed claims in respect of eighty bales and hundred bales, respectively of the two consignments. On their complaint P.W. Mr. Jalilur Rehman (Exh.10) Claims Inspector, Pakistan Railways, Karachi held inquiry in the matter. His inquiry disclosed that the appellant had issued advance R.Rs, for two consignments of bales without having actually received eighty bales out of hundred bales of the first consignment, and hundred bales of the second consignment. It further transpired during the inquiry that the appellant had forged the signatures of the Guards concerned on the loading book showing that remaining eighty bales of the first consignment were loaded on 16-8-1969 and that the entire quantity of hundred bales relating to second consignment were loaded on 16-8-1969 and that the entire quantity of hundred bales relating to second consignment were loaded on 18-11-1969 by 367-Up goods train. Enquiry was also made from Ali Textile Mills regarding booking of the two consignments of hundred bales. P.W. Musharaf Ali Zubari (Exh.27) of the above Mills was examined who produced R.Rs, of the two consignments saying that hundred bales were booked on 12-8-1969 and another hundred bales on 18-11-1969. He had also given the value of the surgical cloth of the two consignments. Value of the eighty bales which were not received by the consignees of the first consignment was Rs,51,200 and that of the second consignment of hundred bales which were not received by the consignees, was Rs,64,000. After completing the inquiry, Mr. Jalilur Rehman, Senior Claim Inspector railway lodged F.I.R. With D.S.P., Anti-Corruption A.C.E., Karachi on 28-12-1970.
4. Charge for offences under sections 409, 468, 471 and 477, P.P.C.Was read over to the appellant who pleaded not guilty. In his statement under section 342, Cr.P.C. Appellant Sirajuddin (Exh. 40) admitted that he had received hundred bales on 12-8-1969 and another hundred bales on 18-11- 1969 from Ali Textile Mills for being despatched to Medical Store, Lahore. He also admitted that he was working as Chief Booking Clerk at Landhi Railway Station on the relevant days and was responsible for despatching these consignments to the destination mentioned in the two R.Rs, He also admitted having issued the two R.Rs, in respect of the two consignments. He has denied having misappropriated eighty bales out of the first consignment and entire hundred bales of the second consignment. He has also denied having made false and forged entries in the loading book showing despatch of eighty bales of the first consignment on 18-8-1969 and the entire consignment of hundred bales of the second lot on 18-11-1969 from Landhi Railway Station. He has denied that he had forged the signatures of the Guards concerned on the loading books. He claims that the signatures on the loading book were of the Guards concerned to whom the consignments were entrusted for loading and delivery at Lahore. He was also asked whether his speciman signature and handwriting were obtained alongwith specimen signature and handwriting of the Guards whose signature purported to have been forged on the loading books and that the signatures of the concerned Guards on the loading books were found to be forged by the handwriting expert. He denied the allegation and pleaded that the concerned Guards themselves had put their signature on the relevant loading book. He also submitted his written statement in which his version about the two consignments is given as under:- "The first consignment of 12-8-1969 was placed for despatch. A part of 20 bales of 100 bundles were sent by train No,367-Up of 12-8-1969. The 80 bales remained in hand and could not be dispatched earlier than 16-8-1969 and were cleared by 367-Up of 16-8-1969. The Landhi being a road side station the stoppage of train is very short hence the clearance was possible by this train which runs only to clear parcel Traffic only. Nor passengers travel by this train. This train is known as Parcel Express. It is a scheduled train and stoppages are provided with timings in Railway time and fare table. If any Guard says that the train was stopped without giving any specific reason is not believable. As regards 80 bales as per loading book it bears the entire formalities together with the signature of the Guard as token to have received the consignment. The prosecution has also accepted its despatch. The prosecution neither produced any witnesses of Booking Clerk or the Guard. They have not even referred this page of entry to handwriting expert as has done in other case. Hence it is accepted that these 80 bundles also left Landhi Station in the train 367-Up of 16-8- 1969. As regards 100 bundles under P.W. Bill No, 187862, dated 18-11-1969 there is a clear entry in loading book by 367-Up of 18-11-1969 under signature of the Train Guard. There is a dispute of signature which the handwriting expert do not agree. I say that why this responsibility is thrown on me. I booked the consignments and made over this to staff on duty for despatch. It was the duty to report that the consignment was not there otherwise it was loaded in the train. I have already stated in my statement that I being the incharge was posted to work during day time from 8 hours to 17 hours only. After that it was the duty of other staff to look after the work in their duty hours and so on in three shifts, the train mentioned in the loading book used to arrive at Landhi after 20 hours.
The record pertaining to making over and taking over neither produced nor is available there. This case was reported to police in 1969 and I was contacted in 1976. No enquiry in this connection at Landhi was held in my presence."
' In support of the prosecution case there is evidence of following witnesses.
5. P.W. No,1 Zaheer Ahmed (Exh.2). He was the Railway Guard upto 17-11-1909 of parcel train No,367- Up. He has stated that on the above date he did not receive any consignment of surgical cloth at Landhi Railway Station. P.W. No, 2 Abdul Waheed (Exh.5) used to work as Waterman-cum-Porter at Landhi Railway Station in the year 1969. He has denied that hundred bales of mazary cloth were loaded by him. He was confronted with his signature on the risk note Exh.6, dated 18-11-1969. He has denied that he had put signature as a wtiness on this risk note. This risk note which has been produced as Exh.6 pertained to the second consignment of hundred bales under R.R., dated 18-11- 1969 and purports to bear the signature of P.W. Abdul Waheed as a witness. He has stated categorically that his signature are forged. P.W. No,3 Hafeezuddin (Exh.7) was a Luggage Porter at Landhi Railway Station on 12-8-1969. On the above date he had loaded only twenty bales in the Parcel Goods Train No,367-Up. His evidence relates to the first consignment of hundred bales, out of which only twenty bales were despatched and the remaining eighty bales are alleged to have been misappropriated by the appellant.
6. P.W. No,4 Jalilur Rehman (Exh.10) was Senior Claims Inspector Pakistan Railway at Karachi. He had received the claims filed on behalf of Medical Store, Lahore in June, 1970 for conducting inquiry.
He had made inquiries from the concerned Guards of 367-Up Parcel Train who were on duty on 12- 8-1969, 16-8-1969 and on 18-11-1969. His inquiry revealed that eighty bales out of the first consignment, and the entire hundred bales of the second consignment under R.Rs,, dated 18-11- 1969 were not despatched at all by the above train. The claims Inspector concluded that the bales which were not despatched by the appellant, were in fact not brought to the premises of the Railway, but only advance R.Rs, was issued by the appellant P.W No,5 Dr. Wajihul Hassan (Exh.22) was Incharge of Government Medical Store, Lahore in September, 1969. He had lodged claim with the Railway Administration in respect of eighty bales out of the hundred bales of the first consignment. He has stated that only twenty bales instead of hundred, were received under the first consignment and that the value of the cloth of the missing bales was Rs,50,000. P.W. No,6 Muhammad Ismail (Exh.24) was Superintendent of the Government Medical Store, Lahore from 1968 to 1974. He has deposed that the hundred bales alleged to have been despatched from Landhi Railway Station in November, 1969 never reached Lahore and not a single bale was delivered to the Medical Store.
7. P.W. No,7 Irshad Hussain was Booking Clerk at Landhi Railway Station. He had served under the appellant and has identified the handwriting and signature of the appellant on the risk note Exh.6 he has also identified the signature of the appellant on the two R.Rs, in question, and said that these R.Rs, were prepared by appellant in his own hand. He has also identified signature and handwriting of the appellant on the loading book at page 177 which has been produced as Exh.16.
P.W. No, 8 Musharaf Ali Zubari was (Exh.27) owner of the All Textile Mills Landhi. He has deposed about the two consignments of hundred bales each delivered to appellant Sirajuddin on 12-8-1969 and 18-11-1969 for being despatched to Lahore. This fact is not denied by the appellant in his statement under section 342, Cr.P.C. The witness has also given the value of the two consignments.
P.W. No,9 Buxul Khan (Exh.29) was A.C.M. At Karachi on 2-12-1975 when the Anti-Corruption Inspector had produced the appellant as well as the concerned Guards, whose purported signatures appeared on the loading books, for specimen signatures and handwriting. He had obtained specimen signatures and handwriting in slow, medium and fast speed of the appellant as well as the Guards namely Zaheer Ahmad, Abdul Hamid and Ishtiaq Beg.
8. P.W. No,10 Mukhtiar Ahmed (Exh.32) is the handwriting expert who had examined the specimen signature of the appellant on the loading books. He has stated that the pruported signatures of the concerned Guards on the concerned loading books were in the hand of the appellant. He has also given reasons for coming to this conclusion. The handwriting in which the entry at page 177 of the loading book was made, was also identified to be of the appellant. He has categorically stated that the entry in the loading book at page 177, dated 18-11-1969 in respect of loading of hundred bales on 16-11-1969 by Parcel Train 367-Up is entirely in the hand of appellant Sirajuddin. In the last column of page 177 of this entry which is meant for signature of the Guards concerned, the signatures have also been found by the expert to be in the hand of the appellant. P.W. No,11 S. Ghulam Sibtain (Exh.37) is the Investigating Officer who has produced F.I.R. Exh.39 which was recorded by his predecessor Shaikh Ghulam Hussian who died before completing the investigation.
He had completed the investigation after the death of Shaikh Ghulam Hussain and submitted challan on 11-6-1977 i.e, after about 7 years of recording of the F.I.R. He has produced the F.1.R. As Exh.39 and the sanction for prosecution as Exh.38.
9. The appellant had given a list of four witnesses which he wanted to examine in his defence.
However he examined only one witness Ziauddin Siddiqui as D.W. No, 1 (Exh. 42) and then closed his evidence. D.W. Ziauddin Siddiqui has deposed that he was Claims and Litigation Officer in Pakistan Railway at Karachi. He has given the procedure of booking of consignment. He has deposed that bilty (R.R) is issued on consignment from showing the details of the luggage and its weight whereafter it is despatched and such entry is made in the loading book which is signed by the Railway Guard of the train in which the goods are transported. If the Clerk who has booked the luggage does not despatch the goods, then he hands over the same to his successor duly entered in the charge report book. It is the duty of the man incharge, to despatch the goods in his duty shift.
This is the entire evidence which has been led on the behalf of the parties in this case.
10. The prosecution has not produced the most important witnesses in the case who were, the two guards concerned on the relevant dates namely Abdul Hameed and Mirza Ishtiaq. Although their names have transpired in the inquiry held by P.W. Jalilur Rehman, they have not been examined by the prosecution. The case of the prosecution is that the signatures of these two guards were forged by the appellant on the Loading book. Their specimen signatures were also obtained, because according to the investigating officer they were suspects. These persons have not been produced in Court to say that their signatures on the loading book were forged or that the consignments were not loaded on the train on the dates as shown in the loading books.
' Mr. Jalilur Rehman (Ex. 10) who had conducted departmental inquiry, had obtained written statements from the above guards. He has produced copies of those statements, which make interesting reading. A. Hameed guard made the following statement in writing (Ex. 12)
"I worked 367-Up Ex. Kyc to Kot. On 18-11-1969 leaving Kyc at 22. 20 arriving Kot, at 2-48 on 19-11-1969 during the journey no work. Yours (Sd.) (Abdul Hameed)
Lg. Gd.
367-Up on 18-11-1969 at Kyc."
Dt. 23-6-1970.
He does not say that he did not sign the loading book, nor does he say that his signature on the Loading Book is forged. In the absence of his evidence in Court, it cannot be said that the statement in writing given by him is correct or that the signature on the Loading Book purporting to be his, is forged.
11. Another guard concerned was Mirza Ishtiaq Beg. Mr. Jalilur Rehman has produced copy of his statement in writing as Ex. 14, which is not intellegible. It runs as under: {{TABLE}} "To, S.C.I. Kyc. Sir, As desired by you the work done statement of 367 dated 17-8-1969 is submitted as under:- Loading form IND (53)
( (1)P/van C 63999 LHR 50 B/LMade over too/g going guard at Kot, under his clear signature(53)
Fifty-three (2)TCR 4943 Shujabad 3 Three only Total (53)
Fifty-three only ' I attended your Office with R1 journal for your perusal as promised by me on 12-9-1970 and I waited up to 14/hrs. Yours obediently, (Sd.)
Mirza Ishaq Baig Guard Kyc. Dt.14-9-1970" {{TABLE}} He too does not state anything about the entry in the Loading Book or about his signature on. The Loading Book being forged. Ommission to produce him in evidence shall justify the presumption that, had he appeared as a witness, his evidence would not have supported the prosecution case.
12. It may be stated that specimen signatures of these two guards were obtained as they were suspects. The only guard who has been examined is Zaheer Ahmed (Exh. 2) who has deposed that on 17-11-1969 no bale was loaded at Landhi on 367-UP Parcel train, on which he was the guard. It is no body's case that any loading was done on this date. He does not even remember whether 367- UP train stops at Landhi or not. His evidence does not advance the prosecution case at all.
13. Specimen signature of P.W. Abdul Wahid (Exh. 5) Porter, whose signature is alleged to have been forged by the appellant on the risk note Exh. 6, was not obtained, nor sent to the Expert for comparison with the appellant's handwriting. Hence his evidence is of no help to the prosecution.
Again while recording statement of the appellant under section 342, Cr.P.C., the trial Court did not put any question to him about this piece of evidence i.e, alleged forged signature of Abdul Wahid on risk note Exh.
6. Hence on this ground also the evidence of P.W. Abdul Waheed cannot be considered against the appellant.
14. Although the appellant was charged with forgery and breach of trust, but he has been convicted by the trial Court of offence under section 409, P.P.C. Only. It shall be presumed that the appellant has been acquitted of the charge of forgery. Now the proof of the offence of breach of trust, in fact depended upon proof of forged entries in the loading book. If these entries have not been proved to be forged, it cannot be said that the appellant committed breach of trust in respect of the consignments relating to those entries.
It is also surprising that the Railway Administration and the Police took seven years to complete the investigation and decide that the case was fit for being tried in a Court of law. The F.I.R. Was lodged on 28-12-1970 while final challan was submitted on 10-2-1977. The trial Court took three more years to decide the case on 28-12-1980.
15. For the reasons stated in the foregoing paras., it is clear that the charge of offence under section 409, P.P.C. Has not been brought home to the appellant beyond a reasonable doubt. His appeal is therefore allowed and he is acquitted of the offence with which he has been charged. He is on bail.
His bail bond stand discharged.