1. SAJJAD AHMAD, J.-Gul Hassan appellant who, at the relevant time, was an Assistant City Survey Officer in the office of the City Deputy Collector, Karachi, was tried along with Muhammad Amir Israili who was a cashier in the same office, on charge under section 420, P. P. C., section 5 (2) of Act II of 1947 read with section 120-B, P. P. C. The charge against them was that they as public servants had committed criminal misconduct by conspiring together and obtaining pecuniary advantage of Rs. 6,000 by corrupt and illegal means by cheat--ing one, Haji Abdul Sattar Haji Muhammad, by misrepresent--ing to him that a penalty had been imposed upon him by the City Deputy Collector, Karachi, on account of unauthorized constructions made by him on plots Nos. 117/1 to 117/6, Garden East, Karachi. The Special Judge, Hyderabad, acquit--ted both the accused persons, but on a State appeal under section 417 of the Criminal Procedure Code a Division Bench of the High Court of West Pakistan at Karachi while up--holding the acquittal of Muhammad Amir Israili found the appellant Gul Hassan guilty of the charge leveled against him and sentenced him to imprisonment till the rising of the Court and to pay a fine of Rs. 6,000 or in default to undergo six months' rigorous imprisonment.
2. As it was a case of reversal of acquittal by the High Court and it was contended that there were a number of features in the case as canvassed in the judgment of the trial Judge which created a doubt as to the prosecution story, special leave to appeal was granted by this Court to re-examine the evidence to ensure safe dispensation of justice.
3. The facts of the prosecution story, briefly stated, are as follows. In the year 1951, P. W. Haji Sattar Haji Muhammad had purchased six plots of land bearing Nos. 117/1 to 117/6 in the area of Garden East, Karachi, from one, Kandawalla. Later, in 1955, he constructed- six bungalows on these plots with the permission and approval of the Karachi Municipal Corporation. On the 21st of August 1958, he was served with a notice by the Collector of Karachi, informing him that he had raised unauthorized constructions on the plots in question and had amalgamated and sub-divided the plots without the prior permission of the authorities and had thus violated the Town Planning Scheme. He was told to remove the unauthorized constructions and to get the matter regu--larized within 15 days, failing which the plots with the standing structures thereon, shall be forfeited to Government. In his reply dated the 22nd of September 1958, Haji Sattar requested for six months' time for compliance with the requisite demands but he was allowed four months to do so. (fin the 5th of October 1959, the appellant Gul Hassan wrote a letter (Exh. 8-B) to Haji Sattar Haji Muhammad which was admittedly signed by him and which purported to be from the City Deputy Collector, Karachi, informing him that as the period of four months allowed to him had elapsed and his con-- structions were not regularized, he should do so within seven days as a final opportunity, after which the property in question will stand forfeited to Government under the terms of his lease. A few days thereafter, the appellant contacted Haji Abdul Sattar on the telephone and told him that the City Deputy Collector had imposed a penalty of Rs. 6,000 which should be paid on which his plans of tire construction would be approved. Haji Sattar conveyed the message to his Assistant Manager, Abdul Hamid, P. W. 7 and asked him to contact the appellant. Abdul Hamid then met the appellant who confirmed his telephonic message in compliance with which a crossed cheque, Exh.
4. 2-E, for a sum of Rs. 6,000 was prepared and signed by Haji Sattar for delivery to the appellant. The name of the payee at the time was left blank as it was not known to whom the amount was to be credited. Abdul Hamid brought the cheque to the appellant and asked him as to whose name was to be inserted in the column of payee. The appellant took the cheque from him and put his rubber stamp on it containing the words "Assistant City Survey Officer, Karachi" against the word "Pay" and told Abdul Hamid that the official receipt would follow in a few days. The official receipt, Exh. 2-F, was issued by him on the 2nd of December 1959. The appellant has, however, denied the execution and issuance of this receipt. This receipt (copy at page 38 of the paper book) which we have seen in original, clearly recites that the amount by cheque was being received in payment of Plots Nos.
5. 117/1 to. 117/6, Garden East. The cheque in question which we have also seen in original (copy at page 37 of the paper book) bears the name of Gul Hasan in rubber stamp immediately before the rubber stamp of his official designation as the Assistant City Survey Officer, Karachi, which seems to have been affixed separately in the same line on 5-12-59, the appellant deposited the cheque in the National and Grindlays Bank Ltd., Karachi for credit to his own account.
6. At the trial, Haji Abdul Sattar and his Assistant Manag6r, Abdul Hamid, supported the' charge against the appellant that he had received the amount of the cheque in pretence for the amount of the penalty which he said had been imposed on Haji Sattar on account of unauthorized construction made by him on his plots. Three witnesses, namely, Muhammad Ali Khan, Mohsin Ali Khan and Rashid Beg, who belonged to the office of the City Deputy Collector, at the time, were produced to establish the handwriting of the appellant on the official receipt, Exh. 2-F. Muhammad Ali Khan who was working under the appellant as a City Surveyor and was familiar with his handwriting and signatures identified the appellant's handwriting and signatures on the receipt.
7. Mohsin Ali Khan, P. W. 6, the City Deputy Collector, Karachi, from 1955 to 1962 who was the immediate superior of the appellant deposed that he came to know about the payment of a sum of Rs. 6,000 as penalty by Haji Sattar to the appellant on getting a letter (copy Exh. 2-J) dated I1-7- 60 from Haji Sattar addressed to the Collector, saying that he had paid this amount vide receipt bearing No. G-560521 dated 2-12-59 and yet the plans had not been approved. He sent for the receipt book and found that the counterfoil pertaining to this receipt was missing from the book which bore the endorsement in the appellant's handwriting to the effect that the book con--tained only 49 pages. He also identified the handwriting of the appellant on the receipt and the endorsement on the receipt book Exh. 7-A, Mr. Khurshid Ahmad Qureshi, a Handwriting Expert to the Government of West Pakistan, was also examined to prove that the writing on Exh. 2-F was that of the appellant. Two officers of the National and Grindlays Bank Ltd., namely, Mr. Arthur Pereira and Mr. Qutubuddin were produced to prove that the appellant had addressed a letter to their Bank on 2-12-59, intimating his change of address and, designation as Assistant City Survey Officer, Karachi, instead of Assistant Superintendent, Survey and Land Records, Karachi. They also produced a statement of the account maintained in their Bank by the appellant which showed that on 5-12-59 a sum of Rs. 6,250 was credited to his account which included the amount of Rs. 6,000 realized on the cheque in question drawn by Haji Sattar in favour of the appellant. There were paltry withdrawals of small sums of money by the appellant from this account.
8. The appellant, in his defence, in view of the documentary evidence, being unable to deny the receipt of the cheque and realization of the amount there under, stated that the amount had been advanced to him as a loan by Haji Abdul Sattar. He produced four witnesses in defence, namely, Mahboob Ali, Abdul Qadir, Ghulam Ali and Abdul Hamid. The first two stated that the appellant was in urgent need of money in the end of the year 1959 and had approached each of them for a loan of Rs. 6,000, but before they could help, he had told them that he was able to arrange for the requisite loan. The last two defence witnesses, who were employed in the office of the City Deputy Collector, sought to prove the ill---will that prevailed in the office between the appellant and his superiors. D. W. Ghulam Ali further deposed that he had heard Gul Hassan appellant requesting Abdul Hamid, the P. W. For a loan of Rs. 6,000.
9. The short question that arose in the case was whether the amount of Rs. 6,000 which is in question, was received by the appellant by deceitful means and cheating, on the pretence that it was recoverable as penalty as alleged by the prosecution, or it was a loan raised by him as alleged by the appellant. The learned trial Judge has accepted the defence plea for the reasons, firstly, that it was fantastic to believe that a big businessman like Haji Sattar and his Assistant Manager, allowed themselves to be readily duped by a tele--phonic message from the appellant demanding Rs. 6,00 by way of penalty and obeyed it without making further inquiries. The learned trial Judge has also taken note of the fact that it was only on the 11th of July 1960, that Haji Sattar in his letter of that date, made a reference of this amount of penalty of Rs. 6,000 paid by him to the appellant and had failed to mention it in the earlier letters sent by him pressing for the approval of his plans by the Collector. The second reason advanced by the learned trial Judge for his conclusion is that if the appellant had intended to cheat, he would not have received the amount by a crossed cheque thus creating an infallible piece of documentary evidence against him. The learned trial Judge has also felt inclined to agree with the defence that the appellant was the victim of intrigue of his superior officers, namely, Mr. Mahmoodi and Mr. Mohsin Ali Khan as there was no love lost between them and the appellant.
10. The learned Judges in the High Court have carefully examined all these reasons and have held them to be fan--tastic and far-fetched. According to them, the circumstances of the case point to one direction and to one conclusion only, which is that the appellant had received the sum of Rs.
11. 6,000 by practicing deception upon Haji Sattar and not by way of a loan from him. We are inclined to agree with the learned Judges in the High Court that the learned trial Judge in recording the acquittal of the appellant has been swayed by reasons which not only do not stand a careful scrutiny but are also opposed to the plain and rational deductions from the circumstances of the case. It must be said straightaway that the plea of the appellant that he had raised a loan of Rs.
12. 6,000 from Haji Sattar is, on the face of it, absurd and unbelievable. It was not shown by him as to what was the urgency that had driven him to ask for this loan from a person to whom he was in a position to extend official patronage and indulgence and which would have savored of an act of clear misconduct on his part as a public servant. His account in the National and Grindlays Bank Ltd., records only petty withdrawals by him after the credit of this amount in the Bank, which shows that there was no necessity for him to raise a big loan to meet any immediate demands. The receipt, Exh. 2-F, which had been issued in lieu of the cheque in question, clinches the matter. There is the bare denial of the appellant so far as this is concerned as against the weighty evidence, including that of the Handwriting Expert, that it is in his (appellant's) handwriting. We also concur with the High Court in the view that the trial Judge was wrong in holding that P. Ws., Mahmoodi and Mr. Mohsin Ali Khan, the then City Mukhtiarkar and the City Deputy Collector, respectively, bore any grudge against the appellant to the extent that they became parties to manipulating forged evidence against the appellant. It is difficult to believe that Haji Sattar, a respectable businessman, fell into line with these officials to be a party to the victimization of the appellant with whom according to the defence case he had cultivated a relationship of confidence to a degree that he gratuitously advanced him a sum of Rs. 6,000 as loan. The receipt which is proved to be in the handwriting of the appellant, unques--tionably supports the prosecution case that the appellant had received the amount in question in relation to the plots Nos. 117/1 to 117/6 on which Haji Sattar had constructed his bungalows. This totally demolishes the plea of loan set up by the defence.
13. The argument of the learned trial Judge that a business--man of the status of Haji Abdul Sattar and his Manager Abdul Hamid, should have made inquiries from the Collector's office about the imposition of the penalty before credulously believing the telephonic message of the appellant, loses its persuasiveness when we examine it in the context of the events of this case. The matter of the clearance of the plates of the bungalows in question in the office of the Collector had become a long drawn-out affair. The message received from the appellant who was the City Survey Officer and as such in a position to induce faith about his word and his actions, was readily accepted by Haji Abdul Sattar as an easy solution of the problem. Similarly, the fact that Haji Sattar mentions the payment of the penalty by him in his letter dated the 11th of July 1960 (Exh. 2-J) and not in his earlier letters, would not furnish an argument in favour of the appel--lant that the amount was received by him as a loan and not as a penalty. In the previous letters, no need may have been felt for mentioning this fact which was taken for granted and a request was being made merely for the return of the plans with the formal approval of the Collector. The plain effect of the sequence of events in this case which has been missed by the learned trial Judge emphatically speaks out the guilt of the appellant. He has admitted having written the letter Exh. 8-B dated the 5th of October 1959 to Haji Abdul Sattar, giving him a final opportunity of seven days only to remove his unauthorized constructions. He follows this up soon after by a telephonic message and a few days later, that is, on the 18th of November 1959, he receives a cheque of Rs. 6,000 from Haji Abdul Sattar for which he issues a receipt on the 2nd of December 1959. The pressure tactics initiated by the letter Exh. 8-B on the 5th of October 1959, reach a fruitful culmination on the 18th of November 1959.
14. The fact that the amount is received by the appellant through a crossed cheque was, of course, a risky venture, but the appellant probably had had the surest belief that the matter would not come to light once the question of the formal approval of the plans of the constructions was finalized in favour of Haji Sattar and to his satisfaction. He could easily anticipate that this will go through in normal routine. But, unfortunately for him, the matter leaked out and he was put under sus-- pension before the plans could be dispatched back to Haji Abdul Sattar bearing the Collector, formal approval. We are satisfied that the trial Court had misdirected itself in ordering acquittal of the appellant in this case by misjudging the evidence and the circumstances which clearly establish the appel--lant's guilt. The learned Judges in the High Court have acted rightly in reversing the acquittal and recording the appellant's conviction for the offences with which he was charged. We can only say that they have been rather indulgent in the matter of the award of sentence to him which, in fact, only amounts to disgorging him of the pecuniary benefit obtained by him by the abuse of his position as a public servant.