1. ' Appellants abovenamed were tried on charge under sections 468, 471, 409/34, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947, by the Special Judge, Anti-Corruption (Provincial), Karachi. On conclusion of trial, by judgment dated 3-4-1989, now impugned in these appeals, appellants are convicted for offences under section 409/34, P.P.C. read with section 5(2) of Act II of 1947 and sentenced to R.I. for 3 months and fine of Rs,75,000 each or in default of payment of fine to suffer R.I. for 3 months more. Appellants are also convicted for offence under section 468/34, P.P.C. read with section 5(2) of Act II of 1947 and are sentenced to R.I. for 3 months and fine of Rs,5,000 each and in default to suffer R.I. for one month more. Appellants are further convicted under section 471/34, P.P.C. read with section 5(2) of Act II of 1947 and sentenced to R.I. for one month. The sentences awarded to the appellants are directed to run concurrently. Out of fine, if recovered, an amount of Rs,2,15,114.75 was ordered to be paid to K.R.T.C. These appeals arise out the conviction and sentence and being against common judgment, the same are being disposed of by single judgment.
2. F.I.R. No,10/77 was lodged by one Kanwar Shah Muhammad Khan, Deputy Superintendent of Police, Anti-Corruption Establishment, Sindh, Karachi on 24-5-1977 on behalf of the State under section 409/471/34, P.P.C. read with section 5(2) of Act II of 1947. It was stated that during audit of stores of Central Department, Sindh Road Transport Corporation (S.R.T.C.) conducted by Mr. Atiqual Hassan, Deputy Director, Finance, for the period December, 1975 to June, 1976, it was observed that record of spare parts used was not properly maintained and such parts were criminally misappropriated. The stores shown against Vouchers 18549, 18554 to 18561, 18565 to 18575, 18575 to 18577 and 18579 to 18580 issued between 15-5-1976 and 21-5-1976 were criminally misappropriated by the officials of the stores and workshop incharge by forging signatures of the recipients on these vouchers. Total value of such misappropriated parts is shown as Rs,2,15,114.75. Appellants and absconding accused Ilyas were shown as appearing to have misappropriated said parts.
3. It may be appropriate to mention that at the relevant time, appellants Muhammad Asim and Muhammad Sarwar Hussain were store-keepers, appellant Abdul Sattar was Head Stores Officer and absconding accused Ilyas was Workshop Incharge.
4. After usual investigation and after obtaining sanction for prosecution of accused from competent authority, challan was submitted in Court on 14-7-1979. Charge Exh.2 against appellants and absconding accused Ilyas was framed on 11-1-1984, under section 468-471-409-34 P.P.C. read with section 5(2) of Act II of 1947 to which accused pleaded not guilty and claimed to be tried.
5. Prosecution examined P.W.1 Imam Ali Shah, Senior Auditor K.T.C. Exh.6, who produced special report Exh.3, statement of appellant Asim during enquiry Exh.26, statement of absconding accused Ryas Exh. 27, and statement of certain witnesses Exhs. 56 to 65 and preliminary enquiry report Exh.4, P.W.2 Bashir Ahmed Exh.233, was Foreman in K.T.C. at the relevant time, P.W.3 Raphael James Exh.235, the Deputy Manager, Audit K.T.C. who produced photostat copies of his letters Exhs.236 and 237 regarding non-submission of returns of store department, P.W.4 Ayoob Ali Exh.246, a mechanic in K.T.C., P.W.5, Gul Muhammad Exh. 248, a blacksmith in K.T.C., P.W. 7 Syed Liaquat Hussain Exh. 249 a Works Manager K.T.C. and 4 photo copies of certificates Exhs. 250 to 253 were produced through him. Prosecution also examined P.W.8, Zahid Hussain Exh. 255, a mechanic group incharge, P.W. 9 Muzaffar Hussain. Inspector Anti-Corruption Exh. 256 and he produced sanction letters Exhs. 257 to
259. Muzaffar Hussain, Inspector was again called as Court witness Exhs.261 and he stated that NBW against accused Ilyas could not be served as the latter had gone out of country. P.W. 10 Nayar Humayun Exh. 266 was Works Manager K.T.C., P.W.11 Shah Muhammad Khan Exh. 267 D.S.P. Anti- Corruption who, on directions of Director ACE, registered F.I.R. Exh.268 and carried on investigation of the case, P.W.12, Ghulam Abbas Jafri Exh.277 who worked at the relevant time as Incharge Forensic Laboratory, Karachi and had examined various documents referred to him for opinion regarding the handwriting. He produced the specimen handwriting and signatures of accused Exhs.278, 279, 280, 281, 282, 283, 284, his report Exhs.285, 286, 287, and comparison charts Exh.288, Court witness Muhammad Kamil Exh. 289 was procees-server, who produced his report regarding non-service of process on certain prosecution witnesses Exh.
2. 290.
3. ' Statements of appellants under section 342 of Cr.P.C. were recorded vide Exhs.292, 297 and 298. All the appellants denied prosecution allegation against them. Appellant Sarwar Hussain produced office orders dated 20-7-1976, Exh.293, dated 9-8-1976, Exh. 294, dated 20-8-1976, Exh.295, and another letter dated 20-8-1976 as Exh.296. Appellant Asim produced copy of office order dated 12- 3-1976 Exh.299. Appellant Abdul Sattar examined himself on oath Exh.300 and he produced a certificate dated 28-8-1976 issued by District Manager, S.R.T.C. Exh.301 which shows that on transfer from S.R.T.C. Central Store, Karachi, Abdul Sattar had handed over complete charge, nothing was outstanding against him and Exh. 301 was issued in token of his having rendered satisfactory service. Similar Certificates Exhs.302 to 305 were also produced by appellant Abdul Sattar in proof of no dues against him. He further produced Exh. 306, a statement showing duties of staff working in S.R.T.C. Central Depot, Karachi and a certificate dated 20-3-1977 that there were no shortages.
4. Appellant Abdul Sattar also produced in his statement under section 340, Cr.P.C. certified copy of deposition of P.W. Imam Ali Shah as Exh.
5. 308.
6. ' Since prosecution sanctions were produced in one case, on an application by P.D.S.P., sanctions in other cases were produced vide Exhs.310 to 346. None of the appellants examined any defence witness. On conclusion of trial which took about 10 years, the learned trial Court found all the 3 appellants guilty and convicted them as stated above. The learned trial Court has observed in the impugned judgment that as the trial was protracted, a lenient view in awarding short sentence was being taken.
7. ' Mr. A.Q. Halepota, learned Advocate for appellant Abdul Sattar (Cr. Appeal No, 59/87) has contened as follows:-
(i) Appellant Abdul Sattar was not posted at Karachi in K.T.C. as Head Store-Keeper at the time audit or enquiry was conducted and this fact is admitted by P.W.1 Imam Ali Shah in his evidence.
(i) Appellant Abdul Sattar had actually handed over charge to Abdul Baqi, as is obvious from certificates Exhs. 250 to 253 on record.
(iii) The I.O. did not. call Abdul Sattar for interrogation nor his specimen handwriting or signatures were taken for comparison because none of T.D.15 forms bore his signatures of endorsement.
(iv) P.W.12 Ghulam Abbas Jaffery, the handwriting expert, has said nothing against this appellant.
(v) According to P.W. Imam Ali Shah, the physical charge remains with store-keepers, which means that although Abdul Sattar was Head Store-Keeper he was not in physical charge of the stores.
8. ' In support of his these contentions, the learned counsel referred to following portions of evidence of each one of the prosecution witnesses and thereby has tried to establish that none of the charges against Abdul Sattar were proved and evidence did not warrant his conviction:
(a) P.W.3 Rapheal James, who stated "it is correct that accused Abdul Sattar was transferred from Central Depot in the month of August, 1976. It is correct that accused Abdul Sattar was succeeded by Abdul Baqi."
(b) P.W.7 Syed Liaquat Hussain who was a blacksmith, stated "I had also signed those certificates. I produce photostat copies of four such certificates as Exhs.250 to 253. All these certificates bear my signature. The T.D.15 forms shown to me in the Court today do not bear the signatures of accused Abdul Sattar or any incharge of the section of the store."
(c) P.W.2 Bashir Ahmed (Exh.233) who was a foreman in K.T.C. stated in his evidence, "If the value of the parts exceeded Rs, 1,000 then the sanction was to be accorded by the District Manager on T.D.
9. 15 Form. After the approval was obtained, the T.D.15 Form was sent to the Head Store-Keeper for the release of the parts from the store. The Assistant working in the Stores used to issue the required parts".
(d) P.W.4, Ayoob Ali (Exh. 246), who was a mechanic in K.T.C., stated, "The T.D. 15 Forms were always prepared by the clerk working in the workshop but the signature of the recipient was always taken on T.D.15 after the new parts were supplied to him".
(e) P.W. 6 Ghulam Qadir (Exh. 248) was a blacksmith in K.T.C. and he stated in his evidence, "I do not know as to who used to purchase the automobile parts".
(f) P.W.9 Muzaffar Hussain (Exh. 256) who was Sub-Inspector ACE stated in Court "on 23-8-1978 I had taken accused Ilyas to City Courts where I had taken his specimen signature in presence of Magistrarte Mr. Noor Ahmed."
10. ' Mr.Halepota has, by referring to the above portions of prosecution evidence, argued that on such incoherent statements when no other witness said a word against accused Abdul Sattar, it was not safe to record conviction. Lastly it is contended that the prosecution evidence in any case was neither free of taint nor of doubt and appellant was entitled to acquittal.
11. ' Mr. Nooruddin Sarki, learned Advocate for appellant Sarwar Hussain (Cr. Appeal No, 50/89) has contened that P.W.1 Imam Ali Shah (Exh.6) stated in Court that on enquiry made by him and the other members of audit party, accused Asim and Ilyas had admitted that they had issued T.D.
12. Forms Exhs.8 to 21, without implicating accused Sarwar Hussain who was working at the relevant time as a Store-keeper. It is further argued that except evidence of handwriting expert, there is no evidence to connect Sarwar Hussain with the alleged misappropriation. But such piece of evidence was not put to the accused Sarwar Hussain in his statement under section 342, Cr.P.C. so that he could have explained the same. He has referred to PLD 1952 FC 1, PLD 1955 FC 8, PLD 1955 FC 88 (129) in support of his contentions.
13. ' Mr. Muhammad Rafique Khanzada, learned Advocate for the appellant Muhammad Asim (Cr.
14. Appeal No, 46/89) has contended that except the word of handwriting expert there is no evidence that either the Bin-cards or the TD-15 Forms were forged by accused Asim. The admission of guilt by appellant Asim before P.W. Imam Ali Shah that he and Ilyas had forged the TD-Forms is no evidence on which conviction could be based. As to the opinion of handwriting expert, the same was a mere opinion, but no question with regard to such piece of evidence was put to accused Asim in his statement under section 342, Cr. P.C.
15. ' Mr. Zaheer Quershi, learned Advocate appearing for the State, has supported the convictions. It has been contended that prosecution relied on Bin-cards, TD-15 Forms and TD-16 Forms and relevant registers showing the receipt of various parts of automobiles and issuance thereof when indented for various buses. P.W. Imam Ali Shah is an important witness who had seen TD-15 Forms Exhs.28 to 55 and Exhs.8 to 21 which were in the handwriting of absconding accused Ilyas. Some of these TD-15 Forms were in the handwriting of accused Sawar and are Exhs.26 to 35 while Exhs.8 to 21 were in the handwriting of accuced Asim as deposed by handwriting expert Ghulam Abbas Jaffery. It is also argued that these TD-15 Forms were issued in the names of various stores, when same had to be issued against, particular buses in the Depot and this act of the accusod was, against prevailing practice in K.R.T.C.
16. ' It is also contended that none of the accused was' authorised to sign TD-15 Forms. It is also pointed out that Bin-Cards .are- meant to show the quantity of spare-parts with their prices, received in the store. These cards also show that on the basis of TD-15 Forms, spare:parts had been issued.from the store. From the evidence it is clear that the, persons named. iii TD-15 Forms, neither received spare parts nor signed said form, Further that accused Asim and Ilyas were found making entries Exh.s. 8 to 21 and such forms were taken in possession by audit party. Accused Asim was also found making entries in workshop maintenance register Exh.
167. The fact of making entries in various records is fully proved by P.W. -Imam Ali Shah. The conduct of accused Aim and Ilyas in not sending TD-15 Forms to accounts department in June 1976 further establishes their guilt, as it was intended by them to hide their guilt.
17. ' It is further contended by the learned State Counsel that although there is no direct evidence to connect appellant Abdul Sattar with the alleged offence, yet he being Head Store-keeper, was supposed to check the working of his subordinates accused Asim, Ilyas and Sarwar and as such he is liable under section 34, P.P.C. as all accused in furtherance of their common intention, committed forgery. All that has been stated by learned State Counsel against Abdul Sattar is that he was guilty of dereliction of his duty. Overall, it is argued that prosecution evidence was turstworthy and a lenient view was taken by the trial Court in awarding short sentence in view of lengthy and protracted trial and no interference is called for.
18. ' The arguments of the learned counsel were heard at length and entire evidence, documentary as well as oral, has been perused. During trial 2 words have been frequently used and these were 'Bin- Card' and `TD-15 Forms', which are said to have been forged and resultantly, loss of Rs, 2,15,114.75 was caused to K.R.T.C. 'Bin-Cards' is a card maintained at the Stores Department of Depot showing the spare parts received at the Depot and also issuance of such parts for various buses of K.R.T.C. if indented. It is in fact a record of receipt and issue of various parts in the Depot together with their price. `TD-15' Forms are such forms as include the indent, demand or requirement of various parts made for different vehicles, after such part of a particular vehicle becomes unserviceable. `TD-15'
19. Forms are also in the nature of issue vouchers.
20. ' The allegation in the case was that although 'Bin-Cards' contained the name, number and price of each part received in the Head Store, their issuance for various buses was forged and no parts were either indented or issued but such parts were sold in the market, resulting into financal loss to K.R.T.C. For this loss, appellant Abdul Sattar being Head Store-keeper, appellant Asim and Sarwar being Store-keepers were liable as it is they, with connivance of absconding accused Ilyas that forgery was committed and they derived wrongful gain and caused wrongful loss to K.R.T.C.
21. 'Prosecution case, as evident from charge Exh.2 is that forgery for the purpose of cheating, criminal breach' of trust or using as genuine as forged documents,. is confined to period' between 15-6-1976 to 22-6-1976 i.e. total period of 7 days. This when came to the .notice of higher ups in the organization of 'K.R.T.C., an audit party was framed, comprising of P.W. Imam Ali Shah, Atiqul Hassan and Muhammad Shah Bukhari, who submitted their enquiry report Exh.7, on the basis of which F.I.R. was registered.
22. ' Apart from securing the documents i.e. Bin-Cards and TD-15 Forms, during enquiry, apppellant Asim and absconding accused Ilyas are said to have recorded their statements of guilt Exhs. 26 and 29 in which both of them confessed their guilt. A detailed perusal of Exhs. 26 and 27 shows that Asim and Ilyas made these statements on an assurance by P.W. Imam All Shah that he would save them if they made such statements. V.W. Imam Ali Shah was conducting the enquiry and was man in authority capable to save Asim and Ilyas. These statements are ruled out of consideration as the same are inadmissible under Article 37, Qanun-e-Shahadat, 1984.
23. ' In order to prove charge under section 409 of P.P.C., it was incumbent on the prosecution, to prove entrustment of the spare-parts, details of which were entered in Bin-Cards, whereafter alone it could be said that the appellants or for that matter anyone holding charge of the Stores, committed breach of trust. More entries of the parts in Bin-Cards and issuance of such parts through TD-15 Forms, even though bearing handwriting of some of the accused, would not make out a case of breach of trust by a public servant as required under section 409 of P.P.C. In the instant case the learned trial Court has based its finding of criminal breach of trust by appellants on an assumption that since the spare-parts were entered in the Bin-Cards, it is the accused who could be held liable for breach of trust if issuance of such parts is not established through entries in Bin-Cards or TD-15 Forms. The burden of proof has been shifted to the accused, which was not a correct approach.
24. ' Further charge against the appellants was that they committed forgery for the purpose of cheating, punishment for which is provided under section 468 of P.P.C. The perusal of entire evidence does not make out that the appellants forged the Bin-Cards or TD-15 Forms for the purpose of cheating. Allegation against the appellants is that they forged entries in the Bin-Cards and showed issuance of various parts when no such parts were indented through TD-15 Forms. For the purpose of establishing this charge prosecution has taken support from the evidence of P.W.
25. Ghulam Abbas Jaffery, Handwriting Expert. The evidence of Handwriting Expert is in the nature of opinion and unless corroborated by other independent evidence, it could not be made the sole basis of recording conviction. In Rafiq Ahmed v. The State PLD 1958 SC (Pak.) 317 it was held by the Hon'ble Supreme Court that the mere fact that the writing therein contained all the peculiarities of the handwriting of the approver does not by itself exclude the possibility of a person knowing the approver's handwriting and being clever at forging documents having forged, his writing. Keeping above rule in view, there is no hesitation in holding that on the basis of opinion of handwriting expert that certain characteristics of handingwriting of accused in the disputed documents, were similar to the characteristics of their admitted handwriting and signatures, a finding of guilt cannot be recorded. Only a presumption may be drawn against accused which could not be sufficient to hold them guilty of charge.
26. ' I have also gone through statements of appellants recorded under section 342 of Cr.P.C. No question was put to them that they had forged certain entries in the Bin-Cards or TD-15 Forms. A general question is put to accused Sarwar Hussain that he in furtherance of common intention with accused Asim and Abdul Sattar prepared forged TD-15 Forms and obtained signature of Muhammad Ilyas Foreman who was Works Manager. It was not put to accused Sarwar Hussain that the handwriting and entries in TD-15 Forms were forged by him or that the same were in his handwriting. Similarly no specific question in that respect was put to accused Abdul Sattar in his statement Exh.297. Even appellant Muhammad Asim was not asked such question. The requirement of section 342 of Cr.P.C. is that for the purpose of enabling the accused to explain any circumstances appearing in evidence against him, the Court may at any stage of any enquiry or trial, without previously warning the accused, put such questions, to him as the Court considers necessary. If there was any circumstances appearing in evidence against the accused with regard of their having forged the Bin-Cards or TD-15 Forms, such a question should necessarily have been put to the accused. In Abdul Wahab v. The Crown PLD 1955 FC 88 it was held as under:--- "Where 'the circumstances appearing in evidence against him' are not put to accused and his.explanation is not taken thereupon, it cannot be said that the purpose of section 342 has been fulfilled. It is not a mere formality, but is an essential part of the trial that the accused should be given notice of the point or points which he must meet in order to exonerate himself.
27. ' In Abdus Salam Molla v. The Crown PLD 1955 FC 129 it was held:--- "Compliance with section 342 of the Criminal Procedure Code is absolutely essential in accordance with its terms, and where this is not done, the conviction might be quashed, or the trial might be set aside, if some prejudice appears to have been caused to the accused. Particular care should be taken that the important elements in the prosecution case which need some explanation from the accused should be put to him in a succinct form and his reply recorded. It is wholly against the provisions of the Criminal Procedure Code or the demands of natural justice that a person should be convicted on the basis of something, of which he was not given any notice. and to which he was never required to give his own reply."
28. ' In Rahim Bakhsh v. The Crown PLD 1952 FC 1, it was held:--- "It would be most unfair to the accused, and it would amount to a violation of a fundamental principle of natural justice if he is convicted solely on the basis of an admission alleged to have been made by him without calling his attention to the admission and asking for his explanation when he was examined in Court."
29. ' In view of the rule laid down in the above judgments, omission by the trial Court to have put all circumstances appearing in case against each C accused has caused prejudice to them and on that score alone the accused can be acquitted or their retrial could be directed.
30. ' Appellant Abdul Sattar produced Exhs. 301 to 304 in his statement on oath and these are certificates which were also produced by P.W.7 S. Liaquat Hussain. These documents clearly show that Abdul Sattar handed over charge of the store to his successor Mr. Abdul Baqi Siddiqui on 28- 8-1976. Perusal of these certificates shows that Abdul Sattar was given a clean slate and nothing was found due against him. At the time when enquiry was conducted by P.W. Imam Ali Shah and others, appellant Abdul Sattar was not even called to explain various entries purporting to have been made in Bin-Cards or TD-15 Forms during the time he was Head Store-keeper. The trend of arguments of learned Advocate for the State was that although there were no entries in the handwriting of Abdul Sattar, yet he being Head Store-keeper, was duty bound to check the performance of his subordinates and failure on his part to do so, would mean his collaboration in the act and that he is also equally liable with other accused under section 34, P.P.C. I am afraid such is not the spirit of section 34, P.P.C. It has to be proved by evidence that appellants Asim and Abdul Sattar had committed acts of forgery and that appellant Abdul Sattar could also be held liable with them and that such acts of forgery were done in furtherance of the common intention of all. There is no evidence in that behalf and appellant Abdul Sattar could not have been held guilty under section 34 of P.P.C.
31. ' I have gone through the entire record and have observed that the trial Court took nearly 10 years to complete the trial and announce the impugned judgment. Although I have found from the case certain lacuna which I have pointed out earlier that circumstances appearing against each accused were not put to them during their statements under section 342 of Cr.P.C. and the case could have been remitted back for retrial, but in view of the fact that from the date of F.I.R. registered on 24-5-1977, a period of 15 years is taken to conclusively determine the fate of the accused, I would not direct retrial of the accused, but would decide the appeal on the evidence available on record.
32. ' Prosecution, in my view, failed to prove guilt of the appellants beyond reasonable doubt. Neither there was sufficient evidence to prove criminal breach of trust by appellants nor forgery of forged documents. Since the main charge under sections 468, 409, 471 and 34, P.P.C. was not proved, appellants cannot be held to have misconducted themselves as provided under section 5(2) of Act II of 1947. The evidence on record is shaky, incoherent and untrustworthy. The trial Court did not even deal with the documentary evidence produced by each of the appellants in their statements under section 342 of Cr.P.C. These documents clearly exonerated the appellants of the charge but in any case it was a case of doubt and benefit of doubt should have been given to the accused.
33. ' For the aforesaid reasons, while giving benefit of doubt to the appellants, I accept their appeals, set aside the conviction and sentence and direct their acquittal.