This criminal appeal arises from the judgment of learned Special Judge (Central) Lahore, whereby he on 30-6-1987 convicted Zafar Iqbal appellant under section 409/471, P.P.C. And section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him as under:-- Under section 409 P.P.C. Seven years' R.I. and a fine of Rs.70,000 in default thereof 3 years' R.I.
Under section 471 P.P.C. Two years' R.I. and a fine of Rs.2,000, in default thereof 6 months' R.I.
Under section 5(2)47 P .C. ATwo years' R.I. and a fine of Rs.2,000, in default thereof 6 months' R.I.
The sentences were to run concurrently. It was directed that out of the fine paid by the appellant Rs.65,200 shall be paid to the Metropolitan Steel Corporation, Lahore, as compensation.
2. The appellant was Incharge of the Lahore Office of Metropolitan Steel Corporation. He received seven Metric Tons of 5.08 MM P.C. Were and 4 Metric Tons of 4.06 MM PC were valuing Rs.1,56,600 from Head Office for sale in Lahore. He sold 3.300 Metric Tons of 4 MM PC were to concrete Presstress Ltd., Sheikhupura, on 8-12-1981 and received Rs.36,000 as part payment through cheques dated 12-12-1981 and 17-12-1981. He also sold, two tons of 5 MM PC and 110 of 4 MM PC were to Precreset Industries Thokar Niaz Baig, Lahore and received Rs.40,000 on 3-12-1981 through cheque.
After his transfer, Muhammad Ejaz Khan P.W.1 succeeded him. An inquiry was initiated which revealed that the appellant had misappropriated the sale proceeds on the false plea that he had paid Rs.65,200 to Mr. Bakhtiar A. Khilji, General Manager, P.W.3 vide a receipt. The matter was reported to the F.I.A. And as a result of preliminary investigation conducted by the Crime Cell of the F.I.A., F.I.R. Exh.P.W.4/3 was registered against the appellant.
3. The charges against him were:-- Under section 409 P.P.C. Seven years' R.I. And a fine of Rs.70,000 in default thereof 3 years' R.I.
Under section 471 P.P.C. Two years' R.I. And a fine of Rs.2,000, in default thereof 6 months' R.I.
Under section 5(2)47 P .C. ATwo years' R.I. And a fine of Rs.2,000, in default thereof 6 months' R.I.
4. To prove its case, prosecution produced six witnesses namely Muhammad Ejaz Khan P.W.1, Muhammad Yousaf Khan P.W.2, Bakhtiar A. Khilji P.W.3, Muhammad Jaffar Khan P.W.4, Muhammad Sibtain Shah, Investigating Officer, P.W.5 and Muhammad Kishwar Kiani, Handwriting Expert P.W.6.
Prosecution also proved and tendered in evidence documentary evidence Exh.P.W.l/1 to Exh.P.W.2/7, Exh.P.W.3/1 to Exh.P.W.3/14, Exh.P.W.4/1 to Exh.P.W.4/3, Exh.P.W.5/1 to Exh.P.W.5/14 and Exh.P.W.6/1 to Exh.P.W.6/8. Muhammad Jaffar Khan P.W.4, Muhammad Sibtain Shah P.W.5 are the police officials.
Muhammad Kishwar Kiani P.W.3 is handwriting expert. He has compared the routine/admitted signatures of Bakhtiar A. Khilji P.W. With his alleged signatures on receipts Exh.P.W.2/6 and Exh.P.W.2/7 and was of the opinion that the signatures on receipts Exh.P.W.2/6 and Exh.P.W.2/7 of Rs.65,200 were not of Bakhtiar A. Khilji. Muhammad Ejaz Khan P.W. Is the complainant of the case.
He, Muhammad Yousaf P.W.2. And Bakhtiar A. Khilji P.W.3 have deposed about the entrustment of the wires to the appellant and the misappropriation of the sale proceeds thereof by the appellant.
Bakhtiar A. Khilji P.W.3 stated that he had neither received Rs.65,200, sale proceeds of the wires from the appellant nor did he execute or sign receipt of the payment of Rs.65,200 to him. He stated that the signatures on the receipt of payment of Rs.65,200 produced and relied upon by the appellant were false and forged.
5. When examined under section 342, Cr.P.C. The appellant admitted the entrustment of the wires, sale thereof by him and receipt of the sale proceeds by him. However, his plea was that he had paid Rs.65,200 through receipts Exhs.P.W.2/6 and 7 to Bakhtiar A. Khilji, General Manager, P.W. He produced 3 witnesses in defence and gave evidence in disproof of the charges against him as D.W.4. Mr. Zaka A. Malik, Handwriting Expert D.W.3 stated that the signatures on receipts Exhs.P.W.2/6 and 7 were the signatures of Bakhtiar A. Khilji. He contradicted the statement of Kishwar Kiani, Handwriting Expert, P.W.6. Dr. Pasha D.W.1 stated that Bakhtiar A. Khilji had signed Exhs.P.W.2/6 and 7 in his presence.
6. Relying on the statements of the prosecution witnesses especially on the statement made by Kishwar Kiani, Handwriting Expert and Bakhtiar A. Khilji P.W.3 and disbelieving the defence version and the statements made by the defence witnesses, the trial Court has convicted and sentenced the appellant as stated above.
7. Learned counsel for the appellant submitted that the prosecution has failed to prove its case beyond reasonable doubts; that the appellant has satisfactorily explained the remittance of the sale price of the were sold by him and that the statement made by Kishwar Kiani stands rebutted by the statement of equally competent handwriting expert namely Zaka A. Malik D.W.3. Learned a counsel for the State has supported the judgment of the trial Court.
8. I have considered the submissions made by the learned counsel for the parties with care. There is no dispute about the facts that the appellant was Incharge of Lahore Office of Metropolitan Steel Corporation, that he received were from the Head Office, that he sold the were and received sale price from the vendees, so the crucial question for consideration and determination was/is as to whether or not the sale price valuing Rs.79,160 was misappropriated by him. I find that from the prosecution evidence and the statement made by the appellant, the remittance of Rs.13,960 to the Head Office stands satisfactorily explained. The dispute remains with regard to the payment of Rs.65,200. According to the prosecution, the appellant has misappropriated this amount.
Conversely, the plea of the appellant was/is that he had not misappropriated this amount and had in fact paid the same to Bakhtiar A. Khilji, General Manager, Commercial, Metropolitan Steel Corporation, Karachi vide receipts Exhs.P.W.2/6 and 7. So far as the genuineness of the receipts Exhs.P.W.2/6 and 7 is concerned, there is solitary statement of Bakhtiar A. Khilji coupled with the report of the Handwriting Expert supported by the statement made by Kishwar Kiani P.W.6. In rebuttal, the appellant gave evidence on oath in proof of the receipts Exhs.P.W.2/6 and 7. D.W.1 Zakir Pasha supported the defence version. He is quite independent witness. I do not see any infirmity in his statement.
Furthermore, there is evidence of Zaka A. Malik, Handwriting Expert D.W.3 to the effect that the receipts were really signed by Bakhtiar A. Khilji P.W.3. In these circumstances, I feel that the appellant has successfully rebutted the prosecution case and the evidence produced by it and it can safely be said that there is a reasonable possibility of the defence version being true.
Pursuant to the above discussion, this appeal is accepted and the appellant is acquitted of the charge. He is on bail. He stands discharged of the bail bonds.