Appellant Muhammad Idrees, a retired Head Clerk of the Office of Rationing Controller, II, Karachi, was tried alongwith Azhar-ul-Hasan Naqvi, Food Grain Inspector and Muhammad Saeed Khan alias Naseem, by learned Special Judge, Anti-Corruption (Provincial) Karachi, for the offence under section 420/468/471/34, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, who found the appellant guilty for the offence under section 465, P.P.C. Read with section 5(2) of the Prevention of Corruption Ad, 1947, and vide judgment dated 22-11-1990 sentenced him to suffer R.I.
For six months and to pay a fine of Rs.5,000 or in default to suffer R.I. For one month more. By the same judgment co-accused Azharul Hasan Naqvi, Food Grain Inspector and Muhammad Saeed Khan alias Naseem were acquitted. By this appeal filed under section 10 of the Pakistan Criminal Law Amendment Act, 1958, read with section 410, Cr.P.C., the appellant has challenged his conviction and sentence.
2. On receipt of a pseudonymous application received by Deputy Director Food, Government of Sindh, Karachi, in the year 1976 that sugar was being issued from Government Minwala Godown, Malir, Karachi, against fake permits, a departmental inquiry was ordered. Muhammad Rafique, Storage and Enforcement Officer, Karachi Region, conducted the inquiry and secured 69 fake permits against which 1,319 bags of sugar were released from the said godown. The inquiry revealed that the said permits were issued by the appellant, who although was working as Head Clerk had signed them as Rationing Officer. It also transpired during the course of inquiry that the price/value of 1,319 bags of sugar was deposited in the State Bank of Pakistan before taking the delivery. A written report was sent to S.H.O. Malir P.S. Who registered a case on 5-5-1976 (Crime No.141 of 1976), Malir P.S., under section 420/468/471/109, P.P.C. During the course of investigation accused Muhammad Saeed Khan alias Naseem (since acquitted) was arrested who made judicial confession before a Ist Class Magistrate giving all the details. After usual investigation accused Muhammad Saeed Khan alias Naseem was challaned. Abdul Khalique, an employee of Food Department and one Asghar Ali, a Ration Shop owner, who could not be arrested were sent up; in absentia. The Anti-Corruption Police then emerged at the scene and a case being Crime No.54 of 1976 was registered on 30-7-1976, in respect of the same incident and they sent up the present appellant, co-accused Azhar-ul-Hasan Naqvi, and Muhammad Saeed Khan alias Naseem before Special Judge, Anti-Corruption (Provincial), Karachi, to stand trial for the offence under section 420/468/471/34, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947.
3. At the trial all the accused including the appellant pleaded not guilty. The prosecution then examined Muhammad Rafique, Storage and Enforcement Officer, Food, Karachi (P.W.1), Muhammad Sabir, Clerk (P.W.2), Ahmad Saeed Clerk (P.W.3), Pir Muhammad, Food Grain Inspector (P.W.4), Shan Muhammad D.S.P. (P.W.5), Mukhtar Ahmad, Handwriting Expert (P.W.6) and Mumtaz Hussain, Inspector A.C.E. (P.W.7). The evidence of Mukhtar Ahmad, Handwriting Expert (P.W.6) who was examined in this case through mistake was expunged vide order (Exh.136/A).
4. The appellant met the charge with denial. His defence as unfolded by him in his written statement (Exh.140) filed alongwith his statement under section 342, Cr.P.C. Is as under:- "I am innocent and seek justice. I was Head Clerk in Rationing Controller II. I was authorised to sign on behalf of the Rationing Controller. It was the practice even after registration of this case that the Head Clerk in the office of Rationing Controller used to sign permits issued by the Ward Rationing Officer. I hereby submit photocopy of the office order issued by the Assistant Director Food on 11-10- 1979 in which this fact has been mentioned.
That I hereby categorically deny about the issuance of forged permits. I did not issue any of the permits or challans annexed therewith. Initially the local police registered the case against the private persons. As there was suspicion against me, therefore, I surrendered before the Court of Sessions Judge, Karachi. Whereas my application for bail before arrest was transferred to the learned Additional Sessions Judge, Karachi, I was granted interim bail before arrest at the first instance and thereafter a notice was sent to the police for confirmation. The case came up for hearing on 28-6-1976 for confirmation, when learned A.P.P. Made a statement that "there is no case against the applicant and police does not want to arrest him". In view of this statement my application was dismissed being infructuous. A certified copy of the order is filed herewith marked as `A'. That the local police after completing the investigation challaned the case in the Court of Illaqa Magistrate. I was not shown an accused in that case. A certified copy of the challan is filed herewith marked as `B'. That one Asghar Ali a Ration Shopkeeper was shown as absconder in case of Crime No.141/76 of P.S. Malir. He was also required in the Landhi case. Since he was brother of one Aslam Choudhry and that the group of Aslam had 6 to 10 Ration Shops, therefore he was an influential person. He mixed up with the higher officers of the Food Department and that the group also influenced the Investigation agency, therefore, the Anti-Corruption Police took up the investigation and submitted another challan in which Asghat Ali and his group was not shown as accused persons, instead their names were added in the calendar of witnesses.
The investigating agency of the Anti-Corruption Department Las partially excluded even the name of Additional City Magistrate No.22, Karachi who had recorded the confessional statement of the accused Muhammad Saeed alias Naseem son of Muhammad Jameel. In the confessional statement it is clearly mentioned that one Abdul Khaliq who was the Chowkidar of the Food Department used to bring permits forms and that those were filled in at the house of Abdul Khaliq and that thereafter Asghar Ali of Ration Shop No.2261 was handed over those, forms by Abdul Khaliq. A certified copy of the confessional statement of accused is filed herewith marked as `C'.
The prosecution agency also withheld all those witnesses whose statements were, against the group of Ch. Aslam and his brother Asghar Ali. Photo copies of 161, Cr.P.C. Statements of P.W.
Muhammad Sadiq, Muhammad Nazeer, his driver Ghulam Hussain a Chowkidar of Malir Godown and Hazrat Ali, Muhammad Ashrif arc filed herewith marked as `D to D.4'.
P.W. Muhammad Rafique was an interested witness, he lodged the report without holding any inquiry. He was favouring the private group of Ration Shopkeepers. He deposed against me for favouring the private group. Muhammad Sabir and Ahmed Saeed had not said anything against me. So far the evidence of P.W. Shah Muhammad and Mumtaz Shah is concerned their statements are partial, therefore, they may be assessed on the-basis of record.
That I, have already faced this false and concocted trial for more than 12 years. During this time I have already been retired. I have also suffered mental, sentimental and monetary losses. I only pray for justice.
I shall lead defence. My Advocate will submit -the list of defence witnesses within a week."
5. The appellant examined himself on oath (D.W.1) in disproof of the charge. He also examined Ghulam Hussain (D.W.2), and S.H. Siddiqui, Private Handwriting Expert (D.W.3), in his defence.
6. On the assessm ent of evidence available on record the learned Special Judge acquitted the appellant for the offence under section 420/471, P.P.C., but convicted him for the offence under section 465, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, and sentenced him accordingly. It is in these circumstances that the present appeal has been filed.
7. I have heard Mr. Sarwar Khan, learned counsel for the appellant and Mr. S.Z.A: Qureshi, learned counsel for the State. I have also gone through the record of this case carefully.
8. The case of the prosecution against the appellant is based on the following allegations:--
(i) That he being a Head Clerk in the Office of Rationing Controller II, although not authorised to issue sugar permits, had issued the same.
(ii) That he being the Head Clerk in the Office of Rationing Controller II, had in fact signed 69 fake permits (Exhs.10 to 78), against which 1,319 bags of sugar were released, as Rationing Officer.
(iii) That these 1,319 bags of sugar were removed by co-accused Azhar-ul---Hasan Naqvi, Food Grain Inspector (since acquitted), who in turn delivered the same to co-accused Muhammad Saeed Khan alias Naseem (since acquitted) and absconding accused Muhammad Hanif.
(iv) That the challans through which the price of these bags was deposited in the State Bank of Pakistan were signed by the appellant.
(v) That the sugar bags so removed on the basis of fake permits were not delivered to Ration Shops owners.
9. The main allegation against the appellant is that he being a Head Clerk was not authorised to issue sugar permits but still he used to issue the same. Muhammad Rafique (P.W.1) who is the complainant in this case and who had conducted the departmental inquiry in respect of the entire affair was, however, constrained to admit as follows:-- "It is correct that all the permits for supply of sugar were signed by the Head Clerk at the relevant time. It is also correct that in the year 1976, even the genuine permits were signed by accused Muhammad Idrees."
10. Ahmad Saeed, Clerk (P.W.3) has also admitted this position in the following words:-- "It is correct to suggest that Head Clerk signs the permits for supply of sugar on behalf, of Ward Rationing Officer."
11. The learned Special Judge has also given clear finding to this effect.
12. As regards the removal of these 1,319 bags of sugar by co-accused Azhar-ul-Hassan Naqvi (since acquitted) and the delivery of these bags to co---accused Muhammad Saeed Khan alias Naseem (since acquitted) and absconding accused Muhammad Hanif, there is no iota of evidence on record and it was obviously for this reason that both Azhar-ul-Hasan Naqvi, and Muhammad - Saeed Khan alias Naseem were acquitted by the learned Special Judge.
13. There is also no scintilla of evidence on record to prove that the sugar bags removed on the basis of fake permits were not delivered to the Ration Shop holders. At least none out pf them was examined to satisfy the Court that they had already received sugar quota against genuine permits and were not the beneficiaries of these fake permits.
14. The fact that 1,319 sugar bags were removed against fake permits (Exh.10 to Exh.78) is proved from the record. The issue register (Exh.80) which is on record confirms this position. There is, however, no satisfactory evidence on record to prove that these fake permits and the challans through which the price of sugar bags so removed was deposited in State Bank of Pakistan bear the signatures of the appellants who has emphatically disputed this position. Muhammad Rafique (P.W.1) is the star witness of the prosecution and his testimony seems to have weighed considerably with the trial Court in tipping the balance against the appellant. His evidence, however, makes it clear that the appellant had never worked under him. In such a situation the possibility of a mistake cannot be ruled out. The Qanun-e-Shahadat, 1984 provides the following modes of proving signatures/handwriting:--
(i) By the opinion of the expert who can compare signatures/handwriting (Article 59).
(ii) By a witness who is acquainted with the signature/handwriting of the person by whom it is supposed to be written or signed (Article 61), and
(iii) By comparison of signature or writing with other admitted or, proved signatures (Article 84).
15. Admittedly the disputed documents were not referred to handwriting expert. At least there is no evidence of handwriting expert on record to prove that the appellant had signed the fake permits.
On the other hand the appellant examined S.H. Siddiqui (D.W.3), a private handwriting expert who had examined the disputed documents and was of the opinion that they do no bear the signatures of the appellant.
16. The learned Special Judge has also not compared the signatures of the appellant on the disputed permits with other admitted documents available and he has convicted the appellant mainly on the evidence of Muhammad Rafique (P.W.1) with whom, as indicated above, the appellant has not worked directly. A traced forgery becomes virtually identical in outward form with the genuine signature and unless a person is fully conversant with the signature and handwriting of the other, it is not safe to base conviction upon such opinion alone. The evidence of Muhammad Rafique (P.W.1) to this effect was believed by learned Special Judge for the simple reason that he had no animus against the appellant so as to depose falsely. The learned Special Judge should have known the weighty observations made in the case of Nazir Muhammad alias Nazir Ahmad v. The State reported in PLD 1974 Kar. 274, wherein it was remarked that the mere fact that the witness had no apparent reason to falsely implicate the accused does not render such evidence unassailable. It was further observed that there can be no general rule that the testimony of a witness having no apparent reason to falsely implicate the accused should be accepted at its face value. The truth or falsity of the statement of a witness largely depends upon the circumstances which provide the guideline. To accept the evidence without considering the circumstances, would be totally inconsistent with the safe dispensation of justice. It is only on the scrutiny of the evidence with the assistance of the circumstances it is possible to say with certainty that the evidence is immune from all taints and is worthy of belief.
17. The evidence which has come on record makes it clear that the case was initially investigated by Malir Police and during the course of this investigation co-accused Muhammad Saeed Khan alias Naseem had made a judicial confession in which different sets of accused were nominated.
An alternate hypothesis inconsistent with the guilt of the appellant is very much there and in the event of such a possibility of two versions the settled principle of law is that the one favourable to the accused has got to be preferred.
18. The conviction of the appellant for the offence under section 465, P.P.C., read with section 5(2) of the Prevention of Corruption Act, 1947, after his acquittal on the charge under section 420, P.P.C., is again pregnant with legal infirmity. The case of Adhi Mallick v. The State, reported in AIR 1955 Cal.
473, decided by a- Full Bench is a direct authority on this subject, wherein it was held that the effect of the order of acquittal of the accused in respect of charges under sections 419 and 420 was that he could not be convicted of the offence under section 465, Penal Code. In order that a-charge of forgery under section 465, Penal Code can be sustained it has to be proved in the first instance that there was forgery within the meaning of section 463 which again implies that there was the making of a false document in terms of section 464, Penal Code. It follows, therefore, that there must be found fraudulent intent which is an essential ingredient of section 465, Penal Code. At page 474 it was finally observed:-- "When the learned Magistrate did not find it possible to believe the prosecution case on the two charges with all their implications, the charge under section 465, I.P.C. Cannot possibly survive the consequence of such acquittal."
19. Thus, from whatever point of view the matter may be looked at, the conviction recorded against the appellant cannot be sustained. The impugned judgment is, therefore, set aside and the appeal is accepted. The appellant who is on bail is discharged from his bail bond.
N.H.Q./M-1679/K