This Criminal Appeal arises from the judgment of learned Special Judge Anti-Corruption Dera Ghazi Khan Camp at Rajanpur, whereby he on 4-10-1989, while acquitting Maqsood Ali appellant of the charges under section 409/420/468/471, P.P.C., convicted him under section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to 2 years' R.I. And a fine of Rs.2,000 in default thereof 3 months' R.I.
2. The appellant was working as untrained teacher in Government High School Bangla Ichha. The charge against him was that although he remained absent from January, 1985 to December, 1985 and had been undergoing training of dispenser, yet he was not only marked as present in the attendance register of the school but also had been receiving monthly pay for the months from January, 1985 to December, 1985. He denied the charge and claimed to be tried.
3. To prove its case prosecution produced 12 witnesses. Jauhar Ali P.W.1 stated that the appellant has been showing himself present in the school register from January 1985 to December, 1985 but in reality he was undergoing training of dispenser in District Headquarter Hospital, Rajanpur, during this period. The witness further stated that the appellant had received pay for the period January 1985 to December 1985 from the school. Allah Dewaya, P.W.2 produced register Exhs. PI to P3 before Circle Officer, which was taken into possession vide memo Exh.P.W.2/A signed by him. Lal Bux P.W.3 identified the signatures of the appellant appearing on register Exh.P.2 pertaining to the months of January, February, May, September, October, November, and December, 1985. Register ExhS.P.1 to P.3 were taken into possession in his presence vide memo Exh.P.W.2/A signed by him. He further stated that from January 1985 to December 1985 the appellant had been attending the school 2/4 days in a week. Muhammad Tayyib P.W.4 was Assistant in the Office of District Accounts Officer, Rajanpur. He had prepared the list of Bills (Exh.P.W.4/A) of the pay of the appellant drawn by Assistant Education Officer, Rojhan. Liaqat Ali P.W.6 stated that Muhammad Asghar Bhutta was incharge of High School Bangla Ichha. He had been distributing pay to the teachers. He further stated that the appellant had received pay in November 1985 from him. Qazi Khadim Hussain P.W.7 was A.E.O. From 1982 to 1987. He stated that the appellant was a teacher in Government High School Bangla Ichha. His pay was used to be withdrawn on the basis of bill prepared by the Headmaster concerned. The Circle Officer had taken into possession salary register Exh.P.4 vide memo Exh.P.7, which was signed by him. Noor Muhammad P.W.8 was a Junior Clerk in District Headquarter Hospital Rajanpur. He produced attendance register Exh.P.5, original training order of Maqsood Ali Exh.P.6, original application of Maqsood Ali for training addressed to Superintendent District Headquarter Hospital Exh.P7. These documents were taken into possession by Circle Officer, vide memo Exh.P.W.8/1 signed by him. Naseer Ahmad Khan was A.E.O. On 11-9-1985. He stated that he never received any application for long leave from the appellant and that the appellant had not obtained any permission to take admission in Dispenser Course. He stated that pay of the appellant for the months of October 1985 to December 1985 could not be disbursed and was deposited in the treasury. He stated that the Headmaster of the school concerned was Drawing and Disbursing Officer in the School and used to distribute salary to the teachers. Asghar Bhutto, Headmaster, P.W.10 is the crucial witness. He worked in Government High School Bangla Ichha from 1-11-1984 to 23-10-1985. He has been distributing pay to the teachers including the appellant. He identified the signatures of the appellant in salary register Exh.P.4. He stated that the appellant had been received pay from him for the period January 1985 to October 1985 except for the month of March and April 1985 under his own signatures. He stated that the accused had been marking himself present on the attendance register from January 1985 to October, 1985. Aman Ullah Khan P.W.11 was the Circle Officer. He recorded the F.I.R. Exh.P.W.11/A. He took into possession documents Exhs.P.1 to P.3, P.5 to P.7, Exh.P.2/A and P.W.8/A. He forwarded the signatures of the appellant appearing on attendance register of teachers and on Roll Call Register for comparison and report, to the handwriting expert. He obtained sanction for the prosecution of the appellant. Muhammad Sarwar P.W.12 is Handwriting Expert. He stated that on comparison of the signatures of the appellant on Roll Call Register, attendance Register of the teachers and the cashbook, he found that all the signatures were similar. He also compared the English signatures of the appellant Exhs.P.D.5 and P.D.6 and found that they were identical with his signatures Exh.P.D.7 to Exh.P.D.14 on Cash Book Register Exh.P.D. His report is Exh.P.W.12/A.
4. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. He stated that he had joined Dispenser Course in D.H.Q. Hospital, Rajanpur with the permission of Muhammad Asghar Bhutta, Headmaster. He denied to have marked his presence in the relevant register. He denied receiving of monthly pay from the Headmaster. He denied his signatures on the documents produced by the prosecution. According to him the signatures were forged by Muhammad Asghar Bhutta, Headmaster, in collusion with Muhammad Aalam. He produced Ejaz Ahmad in defence, who stated that the appellant had not received monthly pay from the school in the year 1985. The trial Court after applying its mind to the oral and documentary evidence came to the conclusion that the offences punishable under section 409/420/468/471, P.P.C. Were not proved. The trial Court was of the view that the appellant had by illegal means and by abusing his position as public servant obtained and acquired pecuniary advantage and thereby committed criminal misconduct as defined in sub-clause (d) of clause (1) of section 5 punishable under clause (2) of section 5 of Act, 1947.
5. Learned counsel for the appellant submitted that the prosecution has failed to prove beyond reasonable doubt that the appellant had really received monthly pay from January, 1985 to December, 1985 and that since the signatures of the appellant were not obtained before the Magistrate, therefore, it cannot be said with certainty that the alleged signatures on the register for the payment of the salary, were of the appellant and of none else and that Muhammad Asghar Bhutta, Headmaster, P.W.10 is a not reliable witness. Learned counsel for the State has supported the judgment of the trial Court.
6. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the appellant. The plea of the appellant is that he neither attended the school from January, 1985 to December, 1985 nor did he receive any salary for this period. The onus was on the prosecution to prove that the appellant had in fact been receiving pay for this period. According to the prosecution the pay of the appellant for the months from October, 1985 to December, 1985 could not be disbursed and were re-deposited in the Government treasury and that the pay for the remaining months of year 1985 was paid to the appellant by Muhammad Asghar Headmaster. The prosecution case from the beginning was that the crime was committed by the appellant with the connivance of the Headmaster. The Headmaster has stated that the appellant had not been attending the school during this period. Strangely enough, he continued paying monthly salary to the appellant without any reservation. In the peculiar circumstances of the case, Muhammad Asghar Bhutta, Headmaster, P.W.10 appears to be accomplice and as such his statement cannot be relied upon without corroboration. The evidence of the Handwriting Expert does not take the case of the prosecution any further because instead of obtaining the signatures of the appellant in the Court by a Magistrate and sending the same for comparison with the signatures on pay register, his signatures on different registers were sent for comparison to the Handwriting Expert. I am fully convinced that the prosecution has failed to bring home the charge of misconduct to the appellant.
Pursuant to the above discussion, the appeal is accepted and giving him the benefit of doubt, the appellant is acquitted of the charge. He shall be released forthwith, if not required to be detained in any other case.
N.H.Q./M-2459/L