1. ' This appeal is directed against the judgment dated 20th June, 1983, of Special Judge (Central)
2. Karachi, whereby he convicted the appellant, Rasool Kausar u/ss.409/34, 161, 468 and 471, P.P.C. r/w section 5(2) of Act II of 1947 and sentenced him to suffer R.I. For two years and fine of Rs,60,000/- (Rupees Sixty Thousand) in default to undergo R.I. For 6 months. It has further been ordered that in case fine is realized Rs,50,000/- (Rupees Fifty Thousand only) be paid to Sharafatullah.
2. Briefly stated, the facts are that on 11-3-1978, one Sharafatullah made an application to Deputy Director, F.I.A., Hyderabad in which he stated that he required loan from House Building Fipance Corporation for repairs of his house. He went and met appellant in the Office of House Building Finance Corporation, where co-accused Rafiuddin Qamar came. He was introduced by appellant and told that he will get his work done and that I should pay Rs,5,000/- (Five Thousand) to him.
3. Subsequently, Rafiuddin came to his house and got his signatures on forms and stamps and took away the plan of his house. Thereafter Rafiuddin informed him that loan of Rupees fifty thousand has been sanctioned. He received one cheque of National Bank amounting to Rs,15,000/-. He deposited the cheque in Habib Bank in Account No,18460. Rafiuddin forcibly took a cheque of Rupees Ten Thousand from him: After some time he went to appellant Kausar to enquire about 2nd instalment who informed that amount has been paid to some other person and he will get it refunded. While he was standing in the office Haji Muhammad Yamin, General Manager came and enquired to which he narrated the entire story. He also promised to get back his money on 9th March. The amount was not returned. Finally he made an application and investigation started.
4. Rafiuddin and appellant were sent up. During proceedings Rafiuddin died and appellant has been convicted as stated above.
5. ' At the trial prosecution examined complainant Sharafatullah Ex.6, Sakhawat Ex.26, S. Mahmood Ali Ex.32, Muneer Ahmad Shams Ex.34, Malik Bux Ex.37, Muhammad Yameen. Ex.42, Din Muhammad Ex.46, Naseem Akbar Ex.50 and Abdul Kadir.
6. ' Appellant in his statement under section 342, Cr.P.C. Ex.73 has, denied the allegation. He has stated that Malik Bux had delivered the cheques and misappropriated the amount. In his defence appellant examined Usman Ghani Ex.78, Rahmatullah Ex.79, and Maqsood Ahmad Ex.80. The remaining two witnesses were examined by co-accused tafiuddin who is dead.
7. ' Complainant Sharafatullah has stated that in the month of August, 1977 he contacted appellant Rasool Kausar in connection with House Building Finance Corporation loan to which appellant introduced one Rafiuddin Qamar and told that he will arranged the loan of Rs,60,000/- provided Rs,5,000/- is paid as illegal gratification. After 2 or 3 days Rafiuddin Qamar came to his house and got signatures from him on the blank papers and took away the plans of the house. 2-3 months passed away but nothing happened therefore he contacted Rafiuddin who informed that loan of 50,000/- has been sanctioned but he should get walls of first floor demolished and reconstructed and then the mortgage deed would be got executed from him. He then got the walls of the roofs of first floor reconstructed. The mortgage deed Ex.7 was executed. He produced the site plan duly approved by Secretary, Shah Latifabad Committee Hyderabad, as Ex.9. After furnishing the documents and executing mortgage deed, he was given Cheque of Rs,15,000/- in the office of the Registrar. He deposited cheque in his account with Habib Bank Limited Station Road Branch Hyderabad. Thereafter Rafiuddin obtained one cheque of Rs,10,000/- from him towards the illegal gratification. Rafiuddin got the same cheque encashed on the very day in his presence. After some time he demanded the, remaining amount of loan from Rafiuddin which he did not give. He went in office of House Building Finance Corporation at Hyderabad andthe contacted appellant Rasool Kausar and enquired about second instalment to which he was informed that second cheque of Rs,15,000/- was handed over to Rafiuddin. He tried to contact Rafiuddin but could not meet him as he absconded from Hyderabad. He again went to appellant Rasool Kausar who promised to get back the amount and I should not take any further action in the matter. He then contacted Haji Yamin, Regional Director of House Building Finance Corporation who too promised to get his amount returned. Haji Yamin called appellant and directed him to get amount back within 15 days.
8. He has stated that he again contacted Rasool Kausar who told him that 3rd cheque of Rs-.15,000/- was also given to Rafiuddin. He went and lodged FIR. He was also shown receipt of 2 cheques Exs.11 and 12. He denied to have signed the receipts. He stated that he had not opened any account with Allied Bank and not signed the opening form Ex.13 and specimen signature card Ex.14. He has disowned the signatures on the cheques Exs.15 and 19. He has stated that FIA police obtained his specimen signatures and writings in presence of City Mukhtiarkar & FCM Hyderabad, which he produced as Ex.21/1 to 21/9. He has produced counterfoil of deposit slip of first cheque as Ex.23 and counterfoil of cheque of Rs,10,000/- as Ex.24. PW Sakhawat was working as UDC in House Building Finanace Corporation at the relevant time. He stated that on 12-1-1978 he was given file of complainant. He prepared the cheque in sum of Rs,15,000/- being second instalment of the loan.
9. He placed this cheque before appellant who was working SDO. Appellant put his initial and stamped below his note which he produced as Ex.27. He had not delivered the cheque to complainant Sharafatullah. He has produced a letter of intimation sent to the Head Office in respect of delivery of cheque as Ex.28 which bears initial of appellant. He stated that slip was prepared by junior clerk Malik Bux. He has also produced the diary relating to delivery of the cheques and stated that diaries were initialled by Rasool Kausar has stated that cheque was not delivered by him to any person. PW Mahmood Ali was accountant Allied Bank Latifabad, Hyderabad. He has stated that on 4-1-1978 accused Rafiuddin brought one S' rafatullah and got account opening form which he gave. The form was filled by them and account was opened.
10. Rafiuddin after getting signature from that person handed over the same. He has stated that, signaturs of Sharafatullah were not obtained by him but specimen signatures card was signed by Sharafatullah. He stated that form Ex.13 was signed by Rafiuddin as introducer while specimen signature card was signed by Sharafatullah. The account was opened. He also handed over cheque book to that person. The receipt Ex.20 bears the signature of Sharafatullah. The person who was brought by Rafiuddin Qamar had signed as Sharafatullah. He has stated that complainant who is present in Court was not same person who was brought by Rafiuddin on the day when account was opened and cheque book was given. On 12-1-1978 a cheque of Rs,15,000/- in the name of Sharafatullah was deposited by accused Rafiuddin in that account. The cheque was issued by House Building Finance Corporation, On 15-1-1978 an amount of Rs,8,000/- was withdrawn by cheque brought by accused Rafiuddin Qamar. Accused Rafiuddin put signature on back of the cheque Ex.15. Another Cheque of Rs,15,000/- was presented by Rafiuddin Qamar issued by House Building Finance Corporation in the name of Sharafatullah drawn on National Bank of Pakistan. On 29-1-1978 Rafiuddin Qamar brought cheque of Rs,13,000/- and amount was given to him after obtaining signature on the back side of the cheque. Rafiuddin had brought another cheque of Rs,2,000/- and amount was paid to him. After that account was not operated. The FIA police recorded his statements and secured the relevant documents. Munir Ahmad Shams Ex.34 on 20-5-1978 took over charge as District Manager House Building Finance Corporation from appellant Rasool Kausar. He has stated that from the perusal of the loan file he found that Sharafatullah made an application for grant of loan on 30th August, 1977 to the extent of Rs,60,000/- from House Building Finance Corporation. He produced a photostat copy of the application form of Sharafatullah. He has stated that loan was sanctioned by the Head Office. The loan application was processed by appellant Rasool Kausar. He produced the sanction letter Ex.36- A and stated that First cheque was delivered to appellant Sharafatullah in presence of Additional Sub-Registrar on 7-1-1978. He was not present when second and third instalments were paid. Malik Bux Ex.37 has stated that he was working as clerk in the House Building Finance Corporation from 1974 while appellant was working as Senior District Officer. In the year 1977 complainant Sharafatullah gave an application for grant of loan of Rs,60,000/-. He registered the case and put up a note Ex.38. Intimations about the delivery of cheques of Sharafatullah were sent to the Zonal Office in respect of cheques for Rs,15,000/-. He has stated that in both the note sheets it appears that cheques had been delivered to complainant against proper stamped receipt. In cross- examination he has admitted that he got bail before arrest. He has admitted to have prepared two stamped receipts of Sharafatullah in respect of 2nd & 3rd instalments and presented the same to District Manager. Columns of these two receipts Ex.11 & 12 were filled by him and are in his hand. He stated that Sharafatullah never came to him nor gave any document but appellant have given the same. He has stated that appellant countersigned the receipts and put his signatures. He has admitted that word counter signature was written by him but had not delivered the cheques.
11. ' Haji Muhammad Yamin Ex.41 stated that he was Divisional Manager of House Building Finance Corporation from 21-1-1976 up to 3rd August, 1979. He has stated that appellant was posted as Senior District Officer House Building Finance Corporation Hyderabad in the year 1977-1978. He used to keep cheque books in his custody and delivered 2nd and 3rd and 4th instalments to appellant himself. In the year 1978 Sharafatullah came and complained, when he was not given the second instalment of loan. Subsequently he came to know that 3rd instalment was also drawn but not paid to Sharafatullah. He asked Sharafatullah to file such complaint in writing which he did not. However on his oral complaint he issued memorandum to appellant Rasool Kausar. FIA police obtained copy of the memorandum. He produced the copy of memorandum as Ex.43. Appellant did not reply to the above-said memorandum therefore he issued second reminder which he produced Ex.44. Shaikh Muhammaduddin Ex.46 has stated that he is working as Handwriting Expert for last 18 years. He examined the documents and gave opinion of these documents.
12. ' According to his opinion the two cheques Ex.11 & 12 with regard to the opening form and specimen signature got and withdrawal cheques Ex.15, 16, 17, 18, 19 and application for cheque book Ex.20 are in the handwriting of co-accused Rafiuddin Qamar. Abdul Qadir Ex.57 is investigating officer who registered the case and investigated the same. He secured the documents and recorded the statements of the witnesses. He took the specimen signatures of Sharafatullah in presence of Magistrate for the purpose of comparison by Handwriting Expert.
13. ' D.W. Osman Ghani Ex.78 in his evidence stated that Malik Bux was Reception Clerk, in the. Year 1977.
14. Whenever loan is sanctioned the first cheque is .Given in presence of Sub-Registrar and subsequent cheques are handed over by Reception Clerk. Another defence witness Rehmatullah Ex.79 was daftri in the Regional Office of House Building Finance Corporation Hyderabad. He has stated that applications for loan are always received by the Reception Clerk and Malik Bux was posted for that purpose. He has also stated that subsequent cheques were being delivered to the person concerned by Clerk Malik Bux. Maqsood Ahmad Ex.80 has stated that in the year 1977 he applied for loan. The application was entertained by Malik Bux who used to sit near the door of the office. Thee first cheque was given to him in presence of Sub-Registrar. But subsequently the cheques were delivered by Malik Bux.
15. ' Mr. M. Ityas Khan appearing for the appellant contended that entire evidence regarding forgery and opening of bogus account etc. Is against co-accused Rafiuddin. It is contended by the learned counsel that there is only word of complainant Sharafatullah that appellant introduced Rafiuddin to him for getting his loan sanctioned. It is argued that there is no evidence against Rasool Kausar.
16. ' Mr. M.I.Qarni appearing for the State submitted that case against Rasool Kausar is not free from doubt.
17. ' During the pendency of this case before the trial Court Rafiuddin co-accused committed suicide.
18. He was the person who got the bogus account in the name of the complainant opened with false signatures and had withdrawn the entire amount of 2nd and 3rd instalments of the, loan. The evidence against present appellant consists of complainant Sharafatullah who has stated that appellant introduced co-accused Rafiuddin and told him that he should pay Rs,5,000I- for getting his loan sanctioned. There is no allegation against the appellant about taking any illegal gratification from the complainant. There is nothing on the record to show that appellant is a party in opening of the account of complainant and withdrawing the same on false signatures of complainant. The important point in this case is that cheques of 2nd and 3rd instalments of loan were not handed over properly to the complainant Sharafatullah but Rafiuddin collected those cheques and opened fictitious account in which he deposited the cheques and withdrew the amount without the knowledge of complainant Sharafatullah. PW Malik Bux is the person who prepared the notes and submitted to the concerned authorities. He prepared the acknowledged receipt duly stamped purported to have been signed by the complainant. He has not been able to explain as to who signed on the stamp affixed on the receipt. He has also stated that word countersigned was written by him but signature was put by appellant. From the procedure as deposed by the witnesses is that receipt is prepared. It is signed by the loanee thereafter; finally it is countersigned by the officer to show that cheques were delivered to the concerned person. Malik Bux got bail before arrest in this case. Basically he is the concerned person who was required to hand over the cheques and present the man before the officer for the purpose of countersignature.
19. There is absolutely no evidence that appellant handed over the cheques to Rafiuddin or other person. For the reason best known Malik Bux was not challaned nor any memorandum was issued to him. Unfortunately Rafiuddin died. The department tried to recover the amount from appellant as he is also equally responsible for the negligence. Appellant has been convicted for the offences under sections 409/34, 161, 468, 481 r/w Section 5(2) of Act II of 1947. There is no evidence on record to show that he as public servant accepted, obtained or agreed to attempt to receive illegal gratification from the complainant nor he has committed criminal breach of trust. There is no evidence against him about forgery or dishonestly using as genuine a document which he knew to be a forged document. There is no sufficient evidence to warrant conviction. I therefore give benefit of doubt to appellant and acquit him. He is on bail. His bail bond stands discharged.
20. ' Before parting with this judgment it is made clear that two loan cheques of Sharafatullah were handed over to wrong person due to negligence of the staff of the House Building Finance Corporation. It is open to the department to hold departmental enquiry even against appellant.