On the conclusion of the hearing of this appeal, by a short order this appeal was allowed and the conviction and sentence recorded against the appellant was set aside and I now proceed to record my reasons for the same.
2. The appellant Hamza Ally was tried on a charge under section 409, P. P. C. Read with section 5 (2) of the Prevention of Corruption Act 1947, before the Special Judge-cum-Inquiry Officer, Anti- Corruption. Sukkur, who by his judgment dated 13-1-1971 found him guilty of the said offences and sentenced him to rigorous imprisonment for 2 years and to pay fine of Rs. 15,374.32 (in default rigorous imprisonment for two years). The appellant has filed an appeal through Mr. Azizullah Shaikh Advocate who has appeared for him and at the time of hearing the State was represented before me by Mr. Hassan Inamullah.
3. In ]966-67 the appellant was a tapedar of Tapo Wagan within Warah Tahsil, Larkana District. In such capacity the appellant was issued receipt books bearing Nos. 1248 and 1286 for collection of land revenue from the Zamindars within Wagan Tapo. Each one of these receipt books contained 100 receipts and as per practice a copy of the receipt is to be given, to the person paying assessm ent and after collection of Land revenue the appellant had to make a return in regard to the collection and such return is called the Rozenamcha. The appellant was transferred from Tapo Wagon on or about 10th of April 1967 and on his transfer he did not submit the accounts of the collections so that the Mukhtiar kar A.I Raza Shah asked the Supervising Tapedar Baduruddin to check the record of the collection made by the appellant and Baduruddin found that from out of book No. 1248 the appellant had issued 18 receipts bearing numbers 83 to 100 and made a collection of Rs. 4,712.32 and had neither deposited the amount nor made any entry in the daily book. From out of the receipt book No. 1286 Baduruddin found that the appellant has issued 47 receipts bearing numbers 1 to 47 and collected a total amount of Rs. 10,662. These amounts had likewise not been deposited and the dates of recoveries had not been mentioned in the receipts and that only the month and the year were mentioned. Baduruddin found that the appellant had misap--propriated a total sum of Rs.15,374.32 and Baduruddin thereafter submitted a report to the Mukhtiar kar in regard to the facts which he bad found on examination of the record of receipts. On 19th April 1967 A.I Raza Shah Mukhtiar kar of Warah Taluka submitted a report to the Deputy Collector and the latter ordered registration of a case against the appellant so that on 28th April 1967 the Mukhtiar kar sent a report in writing to the Circle Officer Anti-Corruption Estb., Larkana on the basis of which a case was registered against the appellant. The Circle Officer of the Anti- Corruption Estb. Carried out investigation into the case and after obtaining sanction for prosecution of the appellant sent him up for trial which has resulted in the appellant being convicted and sentenced as stated above.
4. At the trial the prosecution examined Supervising Tapedar, Baduruddin and Mukhtiar kar A.I Raza Shah as the witnesses who had carried out a departmental check in regard to the alleged misappropriation of the assessm ent amounts obtained by the appellant. Besides these two witnesses the prosecution examined Mazhar A.I and A.I Akbar before whom the record relating to the case had been secured by A.I Raza Shah. The remaining two witnesses were Ijaz Akhtar and Bashir Ahmed, of the Anti-Corruption Estt. Who had investigated into the case.
The appellant in his statement under section 342, Cr. P. C stated that he had collected the amount of Rs. 15,374-32 but explained that he had paid this amount to Mukhtiar kar A.I Raza Shah for being deposited in the treasury and he produced the receipt (Exh. 9) said to have been signed by the Mukhtiar kar A.I Raza Shah in acknowledgment of having received the amount from the appellant.
In regard to his having made no entries in the roznamcha he stated that the Mukhtiar kar had called him and had taken away from him the receipt book and the daily book and for such reason he could not make any entries in the roznamcha. In short he relied on the receipt that had been given to him by A.I Raza Shah the Mukhtihrkar and he explained that he was being prosecuted because A.I Raza Shah wanted to save himself.
The appellant examined two witnesses in his defence. The first defence witness Sikandar A.I was a sub-treasurer in Warah Tehsil and this witness deposed that the receipt which had been produced by the appellant bore the signature of the Mukhtiar kar A.I Raza Shah. This witness and the second defence witness Bashir Ahmad also stated that the tapedars often collected the land revenue and gave the same to the Mukhtiar kar for being deposited in the treasury through the supervising tapedar. Since the appellant has admitted having recovered the total amount of Rs. 15,374.32 from the khotedars, the only point that deserves consideration in this appeal is whether the appellant dealt with the amount in a manner which was opposed to law and misappropriated the said amount. In that context the defence of the appellant was that he had paid the total collection to A.I Raza Shah, Mukhtiar kar and he produced the receipt (Exh. 9) in cross---examination of witness Baduruddin. This receipt states that "this copy begiven to the Tapedar as receipt". The receipt bears a signature over the words "Mukhtiar kar Warah" and is dated 31st March 1967. In regard to this receipt Baduruddin, the Supervising Tapedar stated that he "did not think" that the same was filled up by Mukhtiar kar, A.I Raza Shah and further that he "did not think" that the words "this copy is given to the Tapedar by way of receipt" was written by the Mukhtiar kar. By using the words "did not think" perhaps the witness meant that he was not sure if the writing was of A.I Raza Shah. The witness went on to state that he could not properly identify the Sindhi writing of A.I Raza Shah.
A.I Raza Shah, the Mukhtiar kar denied having signed this receipt but stated that the signature on the receipt resembled his signature. On B such statement having been made by A.I Raza Shah the witness was asked) to produce 3 documents which were admittedly signed by the witness. These three documents are a show-cause notice given to the appellant in regard to his services, and other notices which had been given to the appellant by A.I Raza Shah, the Mukhtiar kar. It appears that these documents were brought on the record by the appellant with a view to facilitate comparison of the signature of A.I Raza Shah on the disputed document viz. The receipt (Exh. 9) with the admitted signature on the other three documents viz. Exhs. 24, 25 and 26.
On the point of identity of signature on the disputed receipt the appellant examined Sikandar A.I, the Sub-Treasurer of the Tehsil Warah. This defence witness had in his custody the specimen signatures of A.I Raza Shah and he had brought the same to the Court. This document was however, not brought on record either by the appellant or by the prosecutor but the defence witness clearly stated while he was sub-treasurer he became acquainted with the signature and the handwriting of Mukhtiar kar A.I Raza Shah. He carried out the comparison of the signatures which the witness had in his custody and on such comparison the witness stated that the disputed receipt bore the signatures of A.I Raza Shah.
On such state of facts, the learned Special Judge came to the conclusion that the amount of Rs.
15,374.32 had not been deposited by the appellant with the Mukhtiar kar. In regard to the receipt the learned Special Judge came to the conclusion that the appellant may have obtained the signature of Mukhtiar kar A.I Raza Shah in a routine manner by placing a bundle of papers before him or may have fabricated this document. It will be of benefit to reproduce the following passage from the judgment :- "Even if it is conceded that the disputed challan used as receipt has some marks of resemblance with the signature of the Mukhtiar kar when compared with the other official record it can conveniently be made out that, the accused must have taken the signature of the Mukhtiar kar in the routine while placing a bundle of papers before the Mukbtiarkar for signatures. In case the Mukhtiar kar had received the amount for deposit. As, pleaded in defence, he should have passed regular receipt but not a receipt on challan which was meant for submission to the Treasury for the deposit of the amount. It is not denied by the accused that, he has made all the entries in, the challan Exh. 9 including the words that, this copy was being passed to the tapedar as a receipt. The only writing on the challan is the signature of the Mukhtiar kar. If at all it is a genuine signature, it on the contrary makes out this document to have been forged and fabricated with a dishonest intention, for the Mukhtiar kar was not expected to pass a receipt on the challan. The very words of using the challan as a receipt are written by him which the accused has admitted to be In his hand writing. The preparation of this document to show the passing of the money proves that the accused is really a very clever man who after having absconded from duty after his transfer from this tapa must have managed this document :)y some means to keep himself on the safe side. It further proves, "is consciousness that, he had really pocketed this amount and wanted to retain the same in his pocket."
The above passage from the judgment of the learned Special Judge indicates that the learned Judge was of the view that the appellant had prepared this receipt and obtained the signature of Mukhtiar kar while the latter was unwary in regard to the document. The Special Judge assumed that the appellant was a very clever man so that he managed this document by some means to keep himself safe from the penalty of law. With regard to the evidence of A.I Raza Shah, the learned Special Judge was of the opinion that lie had made very honest and straightforward statement in regard to the signature on the receipt but the learned Judge all the same went on to observe in the judgment that if this receipt had been a genuine document the same should have been produced by the appellant at an early stage and not at the stage of trial. ---It makes no difference for the signature of the Mukhtiar kar is either made in the routine or has been forged in a successful manner.--- On reading of the judgment of the Special Judge I am of the view that the Special Judge was almost certain that the signature of the disputed document was of A.I Raza Shah but he has assumed that the appellant must have obtained the signature of A.I Raza Shah on the receipt by deceit. To say the least this was not the case of the prosecution. The prosecution case was that the amount had been misappropriated by the appellant. Even A.I Raza Shah, the Mukhtiar kar has not stated in his evidence that his signature has been fraudulently obtained by the appellant. He candidly stated that the signature on the disputed receipt resembled his signature. What is more that three documents were brought on record which bore the signatures of A.I Raza shah but the learned Judge did not compare these admitted signatures with the disputed signature on the receipt. In any case the learned Judge does not express that he had under--taken such a comparison. The learned Advocate for the appellant invited me to compare the signature on the disputed receipt kith the admitted signatures on the three documents that were brought on the record at the instance of the appellant while A.I Raza Shah was being cross-examined. The learned State Counsel has also seen these signatures and he candidly stated that there was marked similarity as between the signature on the disputed receipt and the three admitted documents. I have also seen the said receipts and although no expert evidence is available for my assistance, I have found marked characteristics of similarity as between the signatures appearing on the disputed receipt and on the three admitted documents. It appears that even the learned trial Judge was of that view but has however refrained from expressing the same and for such reason assumed that the appellant had obtained the signature of A.I Raza Shah while the latter may have been carelessly sinning the documents produced by the appellant, a story which is neither the contention of the prosecution nor there is any support from the evidence available on the record.
5. The prosecution had further relied on the official routine where under the amount collected by the tapedars had to be deposited by them in the treasury without the Mukhtiar kar having to do anything in regard to t fie deposit. On that aspect of the case A.I Raza Shah was cross-examined and he has stated as follows:-- ---The collection of assessm ent is the function of the tapedar. It is he who hits to credit it in the Government account. There is no such law that the Mukhtiar kar should take the assessment collected from the tapedar and deposit himself.
Question.-Whether there is any provision of law debarring the Mukhtiar kar from taking upon himself to deposit the land revenue assessment collected by the Tapedar in the treasury?
Answer.-These is no such specific provision lout the provision for collect--ing the assessment by the Tapedar and crediting the same in the Government treasury shows that the Mukhtiar kar cannot accept the amount of tapedar in cash and deposit it himself."
The same witness had stated that the receipt which is the disputed docu--ment in this case is the prescribed printed form used for the purpose of deposit--ing the amount in the treasury. He stated that either the collections are deposi--ted in the Bank or Lt the sub-treasury but since the disputed receipt bears no endorsement in regard to the deposit being made in the Bank it meant that the amount was to be deposited in the treasury and the witness further stated that he as the Mukhtiar kar was the head of the treasury as well as ex-officio sub-treasure officer. This would show that Mukhtiar kar A.I Raza Shah was himself the head of the sub-treasury and for such reasons payment of the amount to the Mukhtiar kar would be as good as payment in the treasury itself. On the other hand the defence witness Sikandar A.I who is also a sub-treasurer has stated that in case the Tapedar leaves the land revenue assessment collected by him with the Mukhtiar kar the latter gets the same deposited in the treasury through the Supervising Tapedar or the Kotar. In like terms is the evidence of Bashir Ahmed who had been working as a Tapedar for about 20 years and was the President of the Tapedars' Association of Larkana District. This defence witness has also stated that sometimes the Mukhtiar kar collects the land revenue assessment from the Tapedars and deposits the same in the treasury in which case he may sign on the copy of the challan in token of receipt.
He has further stated that the Tapedar either deposits the amount himself or gets the same deposited through others. On such state of the facts it is abundantly clear that the Tapedar either deposits the amount collected by him directly in the treasury or gets the same deposited trough the Mukhtiar kar or Supervising Tapeder or Kotar. In fact the Mukhtiar kar is the head of the sub- treasury, and as such the deposit of the amount with the Mukhtiar kar by itself will be good deposit.
The learned trial Judge has observed in his judgment that this receipt (Exh. 9) does not bear the stamp of the sub-treasury and for such reason it cannot be termed a genuine receipt. In my view this is completely misconceived. The case of the appellant was that he had paid the amount to the Mukhtiar kar for being deposited in the treasury, and since the Mukhtiar kar who is the head of the treasury had given him a signed receipt, it did not the matter whether a seal was borne on the receipt because the receipt is on the regular printed form used for the purpose of depositing the amount in treasury, In my view this inference from the facts was absolutely unjustified.
6. Lastly, the prosecution had relied on the circumstance that the appellant had not made entries in regard to the collection in the daily book. The appellant has stated that he had not been able to make the entries because the record was seized by the Mukhtiar kar. There is a background to this case and that is that in the month of February 1967 the appellant had been removed from service for reasons which are not clear on the record. The appellant had filed a suit in the Civil Court and obtained an injunction restraining the appointing authority from compelling the appellant to handover the charge. Such action of the appellant in filing the suit was resented by the Deputy Collector and actually the Mukhtiar kar A.I Raza Shah had made a report to the Deputy Collector stating that the appellant was flouting the orders of the superior officers. Thereafter the appellant was immediately transferred and it is stated that he did not submit the record nor did he formally hand over the charge. No doubt this may amount to disobedience of lawful orders passed by the superior officers but it cannot be forgotten that the appellant was in the meantime making efforts to retain his job and for such reasons may have ill-advisedly retained the record with him. In any case the receipt of the amount by Mukhtiar kar is a total defence for the appellant because such receipt appears to be genuine. Under what circumstances the Mukhtiar kar had signed this receipt is not for this Court to determine but even the trial Judge was of the same opinion, although he may not have expressed it in so many words that the disputed receipt was signed by the Mukhtiar kar. In regard to the appellant having failed to make entries in the daily book the same may amount to dereliction of duty but falls short of making out a crime.
7. The learned State counsel has candidly expressed that tie receipt appeared to be genuine and there are marked characteristics of similarity as between the signature on this dispute and the other admitted documents. I agree with him and hold that the prosecution has not been able to make out a case against the appellant beyond reasonable doubt. The appellant deserves the benefit of a reasonable doubt and consequent acquittal.
8. In the result the conviction and sentence passed against the appellant is hereby set aside and he is acquitted. The appellant is on bail and his bail bonds shall stand cancelled.