' This appeal is directed against the judgment dated 8th June 1973, passed by the Special Judge- cum-Enquiry Officer, Anti-Corruption, Karachi, whereby be convicted the appellant under section 409, P. P. C. Read with section 5(2) of Prevention of Corruption Act and sentenced him to undergo rigorous imprisonment for 12 months and to pay a fine of Rs, 4,000 or in default in payment of fine to suffer further rigorous imprisonment for six months.
2. The prosecution case in brief is that in the year 1966, the appellant was working as Sub-Overseer in the Acquarium of Karachi Municipal Corporation. The Acquarium had received a consignment of fish, fish plant and accessories which was to be cleared from the Customs Department. A firm by the name of Messrs Universal Corporation was the Clearing Agent for the Acquarium and it was their duty to clear from the Customs all the consignments received by the Acquarium. The appellant being Sub-Overseer in the Acquarium used to deal with Messrs Universal Corporation.
Messrs Universal Corporation wrote a letter Exh. 9 to the Incharge of the Acquarium namely P. W.
Mst. Alia Farooqui, Aquarist whereby an amount of Rs, 3,800.00 was demanded for the expenses to be incurred in clearing the consignment from the Customs. P. W. Mst. Alia Farooqui forwarded this letter along with her own letter (Exh. 7) to the Chief Officer of Karachi Municipal Corporation for sanction of the requisite amount. The amount was sanctioned and P. W. Rajab All prepared a cheque (Exh. 3) and advice slip (Exh. 9). This cheque was signed by Chief Officer of Karachi Municipal Corporation and it was entered in the cheque receipt register (Exh. 10). The appellant received the cheque and signed the cheque receipt register (Exh. 10). His signatures on the cheque receipt register are at Exh.
11. It is alleged that the cheque was not handed over to the Clearing Agents. The appellant on the other hand opened an account (Exh. 25) in the United Bank Limited, 'Shoe Market Branch, in the name of Messrs Universal Corporation by depositing an amount of Rs, 100 in the account. S. M.
Hassan was shown as Proprietor of the Universal Corporation. The Acquarium also had an account in this branch of the bank and the appellant used to operate that account. Accordingly, he introduced Messrs Universal Corporation to the Bank in Account Opening Form (Exh. 25). The cheque of Rs, 3,800 (Exh. 3) drawn on Habib Bank Limited was thus deposited in the account opened in the United Bank Limited, Shoe Market Branch. Subsequently, this amount was withdrawn from the United Bank Ltd. Vide cheques (Exhs. 27 to 29) The first two cheques of Rs, 34380 were drawn in the name of the appellant and the same were depostied in his account in Habib Bank Ltd.
In Idgab Branch while the third cheque -was drawn in the name of one Ahmad who received the amount in cash. Since Messrs Universal Corporation did not receive the requisite amount from the Acquarium they declined to make payment to the Customs Department. The goods being of perishable nature had already been handed over to the Acquarium and therefore embezzlement of the amount of Rs, 3,800 went unnoticed for quite some time. P. W. Mohomed Sharif who was Manager of Messrs Universal Corporation returned the Customs documents to the appellant when the amount was not received and the appellant put his signatures at Exh. 22 in token of acknowledgement of receipt of these documents. The matter came to light when on 1st May 1967 P.
W. Alia Farooqui received a letter (Exh. 14) from Assistant Account Officer, Karachi Municipal Corporation asking for the accountation of the amount of Ks. 3,800 advanced to her. Upon this P. W.
Alia Farooqui wrote a letter followed by some reminders (Exhs. 15 to 19) to Messrs Universal Corporation to confirm if the amount of Rs, 3,800 was received by them. Messrs Universal Corporation did not receive other letters except (Exh. 19). They made reply (Exh. 20) to this letter stating that they had not received the amount of Rs, 3,800 and that they had returned the Customs clearance documents to the appellant long ago. After receiving this reply P. W. Alia Farooqui sent her report (Exh. 23) to the then Chief Officer of Karachi Municipal Corporation namely Adnan Ahmed Ali who conducted an enquiry and recorded the statements of the appellant and P. Ws.
Mohammad Hashim Tracha and Mohomed Sharif, Mohomed Hashim Pracha is Proprietor of Messrs Universal Corporation. On the conclusion of this enquiry he made a report (Exh. 51) to the Chairman, Karachi Municipal Corporation. On the receipt of this report it was decided that the matter should be reporte& to the Police. Accordingly, Adnan Ahmed Ali sent a written report (Exh.
39) to the Deputy Superintendent Police, Anti-Corruption. This report is at Exh.
40. On the basis of investigation it transpired that a prima fade case had been made out under section 409, P. P. C. Read with section 5(2) of Prevention of Corruption Act. Accordingly the case was put up to the Chairman, K. M. Corporation for necessary sanction which he accorded vide Exh.
70. A challan of the case was put up in the trial Court who read over and explained the substance of accusation to the appellant who pleaded not guilty and claimed to be tried. The trial was accordingly held and the appellant was ultimately convicted to the above-said term of punishment.
3. In his defence the appellant stated that he had neither received thu cheque (Exh. 3) nor signed the register (Exh. 11). The money was also not drawn by him. He also denied having received any documents from P. W. Mohomed Sherif and having signed Exh.
22. He however, accepted his signatures on Exh. 9 but explained that he had not received this document in token of the receipt of cheque but he had signed this document as a, witness to the effect that P. W. Mohomed Sharif had received the cheque from Karachi Municipal Corporation. He also denied having receive& cheques (Exhs. 27 and 28) which were issued in his name. He denied having made any statement before P. W. Adnan Ahmed All who had conducted preliminary enquiry on the departmental level in the case but admitted that he had signed the statement in question. His explanation is that he did not understand English language as such he did not know on what document his, signatures were obtained. A question was put to him if he had opened A/C No; 1888 in Idgah Branch of Habib Bank Ltd. And signed account opening form (Exh. 57). His specimen signatures on specimen signature card (Exh. 58) were also put to him but he denied that these signatures were his. He also denied that he opened A/C No, 5241 in KMC Branch of Habib Bank Ltd. And account opening form (Exh. 62) had his signatures. He further denied that this amount was transferred in his favour in Habib Bank Ltd. Branch (A/C No, 1153) and the statement of Account (Exh. 63) pertained to his account. He however accepted that Exh. 62 had his signatures. In short, he denied having misappropriated the amount and explained that P. Ws. Alia Farooqui and Rajab Ali had falsely implicated him in this case in order to save themselves.
4. The prosecution has furnished testimony of fourteen witnesses in order to prove the case against the appellant. The testimony of these witnesses is briefly discussed here. P. W. Alia Farooqui stated that in 1966 the Acquarium had imported some varieties of fish plants and other accessories of acquarium. Messrs Universal Corporation who were. Responsible for clearing the consignments received by the Acquarium from. The Customs wrote a letter (Exh 8) to her demanding Rs, 3,800 for clearing the consignment. On receipt of this letter she wrote a letter (Exh. 7) to the Chief Officer, K.
M. Corporation to sanction the same amount. She received from the K. M C. a letter (Exh. 14) which was accompanied with a, cheque for the amount of Rs, 3,800 for which demand had been made under letter (Exh. 7). Subsequently, she wrote a letter (Exh. 15) to Messrs Universal Corporation to confirm that the said amount had been received by them but having received no reply from them she sent them for reminders (Exhs. 16 to 19) (office copies). P. W. Mohomed Sharif also stated before him that no money was received by Messrs Universal Corporation and that he had personally returned the clearance documents to the appellant because the money was not received as demanded. He made the same statement before the Court when he appeared as P. W.
6. However, P. W. Adnan Ahmed Ali in his report stated that the appellant in his statement before him admitted having embezzled the amount of Rs, 3,800 in collusion with the Manager of Messrs Universal Corporation. Elaborating his statement he stated that the appellant had admitted before him that out of the sum of Rs, 3,800, Rs, 1,000 were retained by him while the remaining amount of Rs, 2,800 had been taken by P. W. Mohammad Sharif of Messrs Universal Corporation.
' Rajab Ali, Assistant Accounts Officer stated in his statement that on receipt of the cheque (Exh. 3) an advice slip (Exh. 9) was also prepared which was signed by him. This advice slip was sent to the Acquarium alongwith the cheque for delivery to Messrs Universal Corporation. This witness produced cheque receipt register as Exh. 10 and his entry in the register as Exh. 11 and stated that Exh. 11 bears the signatures of the appellant in. Token of having received the cheque (Exh. 3). He has categorically stated that he was well conversant with the signatures of the appellant and therefore he could confidently say that Exh. 11 was the signature of the appellant.
' The prosecution has next examined the officers of the banks in which, the accounts were opened and transaction regarding the cheque bad taken place. First of these witnesses is Ghulam Abbas, 3rd Officer of Habib Bank. Ltd., K. M. C. Branch. He has stated that the cheque in question which was drawn on Habib Bank Ltd. Was drawn in favour of Messrs Universal Corporation and as 3rd officer of the Bank it was his duty to check the genuineness of the signatures of the two officers of the Karachi Municipal Corporation who enjoyed the authority to issue cheques. On checking these signatures he found that the cheque was correct and therefore he put his. Signatures thereon. P. W.
10 is Manager of Habib Bank Ltd., Idgah Branch. He testified that A/C No, 1888 was opened in Idgah Branch. It was during the tenure of service of Syed Kazim Abas Kazmi as Manager. He identified the signatures of Kazmi who had been transferred by that time from Karachi to Peshawar. He produced an account opening form as Exh. 57 and stated that Mr. Kazmi had identified the signatures of the appellant and one Yasin holder of A/C No, 2445. The latter had introduced the appellant to the Bank. Statement of Account was also produced by him as Exh.
59. This account was closed on 18th July 1968. Muhammad Yasin has been examined as P. W.
11. He has stated that he had his account in Habib Bank Ltd., Idgah Branch bearing No, 2445. The account opening form Exh. 57 was brought to him by one Masood who told him that he identified the appellant who was his son and wanted to open the account and therefore he introduced the appellant to the Bank by signing Exh.
57. The Manager of Habib Bank, Clifton Branch was also produced. He produced the account opening form and stated that the account was opened in the-name of the appellant. According to him, it was transferred from Habib Bank Ltd.. K. M. C. Branch to his Branch. In K. M. C. Branch the account number was 5241 while in Clifton Branch it was 1153. He produced' account opening form as Exh.
62. He also produced Statement of Accounts(Exhs. 62 and 63). The prosecution has examined Javed Ahmed Razqi, Acting Manager, United Bank, Shoe Market Branch who testified that the account was opened in his Branch in the name of Messrs Universal Corporation on 7th January 1967. Mr. S. M. Hasan was shown as Sole Proprietor of the said Corporation. He produced the account opening form (Exh. 25) and Specimen Signatures Card (Exh. 26). He also produced three cheques issued by Messrs Universal Corporation as Exhs. 27 to 29. Mr. Najmul Husain, Assistant Manager, U. B. L. Was also examined who stated that on the day when the account in question was opened he was posted as Incharge of Lawrence Road Branch. Account opening form (Exh 25) was in the name of Messrs Universal Corporation and Mr. S. M. Hasan was shown as the person who was to operate the account. This opening of the account was on the introduction to the Bank by Pak Acquarium Society which had its account in the Bank. He signed Exh. 25 at three places indicating that he had verified that the formalities were observed and the form was properly filled in. The account started with Rs,
100. The account-holder's specimen signatures were attested by him as Exh. 26 but the account-holder had not signed before him. He also produced the Statement of Account of Pakistan Acquarium Society as Exh.
44. The appellant operated this account. He produced the specimen signature card which was signed by the appellant as Exh.
45.
' Mubarak Alam appearing as prosecution witness stated that on 18th July 1968 he was posted as an Officer in K. M. C. Branch of Habib Bank Limited. One Abdul Majeed (appellant) son of Idu Khan opened his account and signed form (Exh. 62). The account number assigned to the account was 5741. The address of the account-holder was Sub-Overseer, Acquarium, K. M. C., Clifton. According to him Abdul Majeed whom he identified as accused in the lower Court had signed the account opening form (Exb. 62) which was verified by the witness. The prosecution has also produced Hajee Adam Khan who was posted as Sub-Inspector, Anti-Corruption Police, Karachi on 31st May 1968 and who received the written report from the Chief Officer of the K. M. C. Through Deputy Superintendent Police, Anti-Corruption. He produced this report as Exh.
39. He stated that on the receipt of this report he incorporated it in 154, Cr. P. C. Register (Exh. 40).
Abdur Rehman P. W. 13 investigated the case on obtaining the permission from the City and A. D. M., Karachi and he went to the Acquarium and secured the necessary documents from there (Exhs. 14 to 19). He then went to the office of the Universal Corporation and secured the letter (Exh. 22) and prepared a memo. Therefor. He then went to the Accounts Branch of K. M. C. And examined Rajab Ali. Accounts Officer who produced relevant letters and Register (Exhs. 7 to 10). The entry (Exh. 11) was signed by the appellant and the same was checked by him. He then obtained permission to secure relevant records from the Banks. He made applications (Exhs. 67 and 68) to Sessions Judge, Karachi, in this respect. He also secured documents (Exbs. 25 to 29 and 45) from United Bank Ltd., and the documents (Exbs. 57 to 59 and 62 and 63) from Habib Bank Ltd. He examined Managers of Habib Bank Ltd. And United Bank Ltd. And also Muhammad Hashim of Messrs Universal Corporation.
After completing the enquiry he sent the case-papers to Anti-Corruption Committee through his Director. The Committee decided to prosecute the appellant and accordingly sanction was obtained from the Chairman, Karachi Municipal Corporation to prosecute the appellant which the witness produced as Exh.
70. He then challaned the appellant. The charge-sheet produced by him is Exh. 71 which bears his signatures.
' From the statement of P. W. Ghulam Abbas it transpires that he had checked cheque Exh. 3 and found it genuine. P. W. Rajab Ali who was posted as Assistant Accounts Officer stated that the Chief Officer had sent a letter (Exhs. 7 and 8) to him for preparing the cheque for Rs, 3,800 which he did and also prepared an advice slip (Exh. 9). He has identified the signatures of the appellant as Exh. 11 in cheque receipt register (Exh. 10). He has categorically stated that he is well-conversant with the signatures of the appellant and that the signatures at Exh. 11 is that of the appellant. He has also produced three Pay Bills (Exhs. 30 to 32) which bear the signatures of the appellant. Mst. Alia Farooqui who was Acquarist at the time of the incident states that some varieties of fish plants and accessories were imported by the Acquarium. Messrs Universal Corporation were their Clearing Agents who demanded vide their letter (Exh. 8) an amount of Rs, 3,800 for clearing the gocds. She wrote to the Chief Officer, K. M. C. For the sanction of this amount which was ultimately received by her. Thereafter she wrote litters and reminders to the Clearing Agents who confirmed the receipt of the said documents. She produced the copies of these letters as Exhs. 15 to 19. On receipt of Exh. 19 Messrs Universal Corporation replied vide Exh. 20 and stated that they had returned the clearing documents to the appellant who represented the Acquarium and was assigned the duties of assisting the Universal Corporation in the clearance of the consignment under letter (Exh. 22). She then made the report in question (Exh. 23). She also specifically stated that she was well- conversant with the signatures of the appellant and Exhs. 9 and 11 had the signatures of the appellant. According to her the signatures on Exhs. 21 and 22 also appeared to be that of the appellant. She has also stated that it was the duty of the appellant to deal with the necessary work of import of fish besides his other duties. Furthermore she has stated that there existed a Society by the name of Pak Acquarium Society but she did not know anything about its members nor she knew if the appellant was its Honorary Secretary or Treasurer. There were some receipt books and counterfoils under which the Society used to get subscriptions and same counterfoils were identified bearing the initials and signatures of the appellant. She has also stated that documents (Exhs. 25 and 58) bear the signatures of the appellant and Exh. 62 also appears to have been signed by the appellant.
5. P. W. Javed Ahmad Razqi, Acting Manager of the United Bank Limited, Lawrence Road Branch has stated that on 7th January 1967 under account opening form (Exh. 25) an account was opened in his bank in the name of Messrs Universal Corporation and Mr. S. M. Hasan was shown its Sole Proprietor. Later on this account was closed. He has also produced cheques (Exhs. 27 to 29) of which two cheques were issued in the name of the appellant. The entire amount was withdrawn through these cheques. Mohomed Hashim Pracha and Mohomed Sharif who were proprietor and Manager of Messrs Universal Corporation have stated that they were Clearing Agents of Karachi Acquarium. Muhammad Sharif had written a letter (Exh. 8) to Acquarist to send Rs, 3,800 for clearing the imported goods and when this amount was not received the documents were returned by him to the appellant. They have stated that advice slip (Exh. 9) does not bear their signatures nor they had opened any account in United Bank Ltd., Lawrence Road Branch under Exh.
25. They had also not issued cheques (Exhs. 26 to 29). Mohomed Sharif has further stated that he had received a letter (Exh. 19) from the Acquarist to which he replied by letter (Exh. 20).
' Adnan Ahmed Ali was Chief Officer of K. M. C. And on receipt of report (Exh. 23) from the Acquarist he conducted an enquiry into the matter. He recorded the statement of the appellant which is Exh.
48. Before him the appellant admitted having embezzled the amount but to the-tune of Rs, 1,000.00 only.
' The Manager of the Habib Bank Ltd., Idgah Branch has stated that vide account opening form (Exh.
57) the appellant had opened his account in his bank. He has produced a specimen signature card of the appellant as Exh. 58 and statement of account as Exh.
59. Mohomed Yasin has stated that he had introduced the appellant in account opening form (Exh.
57) though he did not see the face of the appellant as the account opening form had been brought to him by one Masood who had told him that the appellant was his son and he should be introduced to the bank for the purpose of opening account. The Manager of the Habib Bank Limited, Clifton Branch has testified that the appellant had opened the account with his bank under form (Exh. 62) and that account was transferred from Habib Bank Ltd., K. M. C. Branch. P. W.
Mubarak Alam has stated that under form (Exh. 62) the appellant had opened his account in his bank and signed the account opening form before him. The prosecution has thus been able to establish that a consignment had been received from abroad and the delivery of the consignment was to be taken by the Acquarium through Messrs Universal Corporation. Messrs Universal Corporation demanded Rs, 3,800 and this amount was arranged for them. This amount was received by the appellant through a cheque who signed the cheque receipt register but instead of handing it over to Messrs Univesal Corporation he opened an account in the bank in the name of one S. M. Hasan who was shown to be the Proprietor of Messrs Universal Corporation. The introduction in the account opening form of the appellant was obtained by one Mohomed Yaseen.
Subsequently, a cheque of Rs, 3,800 was deposited in this account, and three cheques were drawn on the bank and the entire amount was withdrawn. Two of these cheques were deposited in another Bank in which the appellant had his own account. Thus the appellant misappropriated the amount of Rs, 3,800. He admitted having misappropriated the amount before Mr. Adnan Ahmad Ali ride his statement tExh. 48) but he stated that his share in the amount was only Rs, 1,000. The signatures of the appellant have been identified on the cheque receipt register, account opening forms and also on the counterfoils and receipt books maintained by the Pakistan Acquarium Society. His signature has also been identified on the letter through which Messrs Universal Corporation had returned the documents pertaining to the Customs Department to the Acquarium. Not only this, his signatures were tallied with the signatures appearing on the Pay Bills.
The witnesses who have identified his signatures on Pay Bills and other documents are such persons who had been working with him continuously and were therefore well conversant with his signatures. The identification of the signatures by these witnesses in the light of other circumstances clearly proves that the appellant had received the cheque of Rs, 3,800 from the Acquarium and misappropriated the same. The learned lower Court also compared the admitted signatures of the appellant with his signatures on Exhs. 30, 31, 32 and 48 and with the disputed signatures on Exhs. 9 and 11 and found that the same resembled with each other and that they were in the handwriting of the same person. Signatures on some of the documents have been admitted by the appellant himself such as advice slip (Exh. 9), pay bills (Exhs. 30 to 32), Exbs. 48 and 62. He has however denied his signatures on Exh. 11, the entry in the cheque receipt register Exh.
22 and letter signed in token of return of clearance documents and account opening form (Exh.
25). He has denied the signatures on Specimen Signature Card (Exh. 45), Specimen Signature Cards, (Exhs. 57 and 58) and counterfoils (Exhs. 79 and 80). According to the learned lower Court the signatures denied by the appellant were actually his signatures. The prosecution has been able to establish the case beyond all reasonable doubts.
6. In his defence the appellant has examined three witnssses i.e. D. W. Mohammad Younus who stated that he was a Cashier in the Acquarium and his duties were to receive the cash of the tickets sold at the Acquarium, prepare the pay bills, receive the cash and distribute it. He had no concern with maintenance and breeding of fish as that was the work of the appellant. The other witness P. W. Shamsuddin who is a Peon in Pak Acquarium Society has stated that one Abdul Majeed was a member of the Society but he was a different peron. Both these statements do not carry any weight on the face of the overwhelming evidence furnished by the prosecution. The appellant has also examined D. W. Assem Baig who is a Private Handwriting Expert. He has stated that he has examined the admitted signatures of the appellant on Exhs. 31, 32 and 62 and the disputed signatures on Exhs. 11, 25, 37 and 58 and came to the conclusion that the disputed signatures were not in the handwriting of the same person who signed the documents on which the signatures were admitted. He however, admitted in cross-examination that starting and ending impulses are in agreement in admitted as well as questioned signatures, but line quality is not the same.
7. The learned counsel for the appellant has mainly argued that the statement made by the appellant before Adnan Ahmed Ali could not be treated as admission and taken into consideration.
The learned counsel for the appellant has also argued that the opinion of the handwriting expert that the documents Exhs. 11, 25, 57 and 58 did not tally with the admitted signatures of the appellant on the documents Exhs. 31, 32 and 62, was conclusive and in this light of the evidence other evidence which was produced to prove that the signatures on these documents were that of the appellant was not acceptable. Under section 45 of Evidence Act the opinion of the handwriting expert does not amount to conclusive proof but it is only an opinion and as such it is relevant fact and can be taken into consideration in conjunction with other circumstances. In this case sufficient evidence of the person who were well acquainted with the handwriting of the appellant was produced to prove that the signatures and initials on the said documents were that of the appellant. The testimony of the handwriting expert cannot therefore be accepted. The learned counsel has relied upon Mumtaj Ali v. State (1), and argued that when there was a lacuna in other evidence the evidence of the handwriting expert should be considered conclusive. The facts of the case which the learned counsel has referred to do not in all the fours apply to the facts of this case.
In the cited case their Lordships have observed :- "The learned Deputy Legal Remembrancer, has, of course, argued that there is no rule which prevents the Court from convicting upon the basis of the solitary evidence of the Handwriting Expert if that evidence is accepted. In the present case he urges that there is no reason why the opinion of the Handwriting Expert should not be accepted and the conviction based upon that evidence. We have given the matter or anxious consideration and we are of the view that having regard to the lacuna in the evidence in this case, particularly {{FOOT NOTE}}
(1) PLD 1961 Dacca 573 {{FOOT NOTE}} ' with regard to the manner in which the appellant came to be connected' as a principal offender ; we feel that he must be given the benefit of doubt. If the opinion of the Handwriting Expert was by itself-sufficient to found a conviction then the acquitted accused Shamsul Haq should also have been convicted upon the unchallenged testimony of P. W. 13 and his own admission that the money order receipt Exh. 14 was written by himself.
' In this case it has not been held as contended by the learned counsel for the appellant that the evidence of the handwriting expert was conclusive and that it should be allowed to supersede all other evidence. This case does not therefore apply to the facts of the instant case. All that section 45 says is that the opinion of the handwriting expert would be relevant. In this case also the opinion of the handwriting expert has been considered relevant but it is rebutted successfully by the overwhelming independent evidence which has conclusively proved that the signatures and initials on the disputed documents were those of the appellant. Not only this, the handwriting expert has in his cross-examination admitted that the starting and the ending impulses were in agreement in admitted as well as questioned signatures though the line quality was not the same.
This admission in the cross-examination throws further doubt on the testimony of the handwriting expert. However, in view of the fact that there is sufficient independent evidence to prove that the disputed signatures and initials were in the handwriting of the appellant the opinion of the handwriting expert does not in any manner hold good and the same can conveniently be rejected.
5. The learned counsel next contended that the confession made by the appellant before P. W. 9 Adnan Ahmad Ali was also not relevant. I am unable to agree with this contention as the confession was not in any manner involuntary. Under section 24 of the Evidence Act only those confessions are irrelevant the making of which is caused by any inducement, threat or promise having reference to charge against the accused persons and such confessions shall not be taken into consideration. To attract the provisions of section 24 the facts which are required to be established are, (i) the confession has been made by the accused persons to a person in authority ; (ii) it appears to the Court that the confession has been made or obtained by reason of any inducement, threat or promise proceeded from a person in authority ; (iii) the inducement, threat or promise must have reference to the charge against the accused persons ; and (iv) the inducement, threat or promise must in the opinion of the Court be such that it may appear to the Court that the accused in making the confession would be able to gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. In this case the confession was made before Adnan Ahmed Ali who was the Chief Officer of the K. M. C. In those days. Though he was a person in authority but the nature of the authority exercised by him over the appellant was not such that the appellant would have felt in any manner bound to confess before him that he had committed the offence. In this case the appellant has admitted all the substantial facts constituting the offence and he had voluntarily admitted before Adnan Ahmed Ali that the cheque in question was received by him and he had signed the disputed cheque receipt register (Exh. 10) and put signatures (Exh 11). In this statement he has admitted that he embezzled the amount but while admitting the act of embezzlement he has tried to implicate Muhammad Sharif of Universal Corporation also and has stated that "I drew out the entire amount and as per agreement with Mohomed Sharif I retained Rs, 1,000 and handed over the remaining amount of Rs, 2,800 to Mohomed Sharif." It is apparent that the fact of misappropriation has not been denied by him. All that he has stated is that he did not retain the entire amount with him but a part of it which does D not make any difference so far as the material required for proving the ingredients of section 409, P. P. C. Is concerned. He has tried to implicate Mohomed Sharif also but there was no evidence on record to corroborate his statement and therefore Muhammad Sharif was not challaned. This part of his statement is not therefore acceptable. The learned counsel for the appellant while arguing that it was for the prosecution to prove that the nature of the confession was voluntary, placed reliance on Nathuram and others v. State (1). There is no dispute so far as the proposition of law that it is always for the prosecution to prove voluntary nature of the confession is concerned. In this case, as I have discussed above there is nothing to establish any element of doubt on the voluntary nature of the confession. Not only the confessional statement has been corroborated beyond all shadows of doubt by independent and cogent evidence but in his statement made before the Court also the appellant has not stated that the confession was extracted from him by exercise of threat, promise or inducement. It has been held in Sudama Sheoba v. King-Emperor (2), that "a confession would be presumed to be voluntary unless contrary is proved". In the instant case there is not an iota of evidence to suggest that the confessional statement was involuntary therefore the same shall be considered wilful and admissible in evidence.
6. In view of what has been stated above I find no cogent reason to interfere with the impugned judgment. The same is accordingly upheld and the appeal is dismissed. {{FOOT NOTE}}
(1) AIR 1951 Him. Pra. 1 (2) AIR 1949 Nag. 405 {{FOOT NOTE}}