1. ' Appellants Akhtar Ali son of Mehboob Ali, Khalil son of A. Khalique and Muhammad Afzal son of Waris Ali were tried by the learned Special Judge, Central I, Karachi who by his judgment, dated 30- 11-1991 convicted the appellants under section 409, P.P.C. And sentenced each of them to undergo R.I. For one year and fine of Rs,1,000 or in default to undergo R.I. For three months more. They were further convicted under section 471, P.P.C. And sentenced to suffer R.I. For six months and fine of Rs,1,000 or in default of payment of fine to undergo R.I. For two months more. The appellants have challenged their said conviction and sentence under this appeal.
2. ' The prosecution case is that the three appellants are public servants employed with the Oil and Gas Development Corporation (O.G.D.C.). On 17-12-1979 Deputy Chief Administrator of O.G.D.C. Sent a written complaint to F.I.A. Which was incorporated in the 154, Cr.P.C. Book on 18-8-1983 as FIR.
3. Crime No,28 of 1983 registered with F.I.A. Crime Circle II, Karachi. The facts disclosed in the complaint are that one Sirajuddin Qureshi, Superintendent Seismic Party-1 received payment of Rs,4,612.50 on account of encashment of three months refused leave. This amount was received by him on 13-8-1979 vide Voucher No,86, dated 13-8-1979. Subsequently a second voucher was got prepared bearing No,867. This was prepared on 11-8-1979 and it was also in respect of three months refused leave amounting to Rs,4,612.50 in the name of Sirajuddin Qureshi. This voucher was got encashed at Karachi and the amount was misappropriated by the accused. It is the prosecution case that the subsequent voucher No,867 was prepared by accused Akhtar Ali and the payment for this voucher was made by accused Khalil Tariq. While accused Muhammad Afzal is said to have acted in consert with the co-accused. The report was registered and recorded by P.W.7 Inspector Ghulam Samdani who himself conducted the investigation. The F.I.R. Is Exh.27. After completing the investigation sanction was accorded in respect of the three appellants and thereafter P.W. Ghulam Samdani was transferred as such he handed over the case papers to Inspector Wasiuddin who submitted the challan against the appellants.
4. ' The charge Exh.2 was framed against all the three appellants for having committed offences under sections 409, 468, 471, 34, P.P.C. Read with section 5(2) of Act II of 1947. The appellants did not plead guilty and claimed to be tried. At the trial the prosecution examined P.W.1 complainant Major (Rtd.) Zulfiqar Ali, P.W.2 Shamim Ahmad Baloch, P.W.3 Muhammad Ishaq, P.W.4 Qazi Shamim Ahmed, P.W.5 Sirajuddin Qureshi P.W.6 process server P.C. Abdul Majeed, P.W.7 Inspector Ghulam Samdani and P.W.8 Inspector Wasiuddin. After the conclusion of the prosecution case, the statements of the appellants were recorded under section 342, Cr.P.C. As Exhs.33, 34 and 35 in respect of appellants Muhammad Khalil Tariq, Akhtar Ali and Muhammad Afzal respectively.
5. Appellant Khalil Tariq while denying the prosecution allegation stated that he has been falsely implicated in this case and further stated that he had made the payment on the voucher which was duly passed by the department and as a Cashier he could not refuse the payment which is signed by the D.D.O. And passed by the Audit Department. Accused Akhtar Ali also denied the entire prosecution case but he stated that he had prepared the vouchers on the permission of Senior Accountant Shamim Baloch and the same was kept with him and it was Qazi Shamim Ahmed who had sent the voucher to the Audit Department. Similarly accused Muhammad Afzal has also denied the entire prosecution case in toto and has stated that he has been falsely implicated in this case. The appellants Khalil Tariq and Akhtar Ali neither wished to be examined on oath nor wanted to lead any defence witness. However, the appellant Muhammad Afzal wanted to be examined on oath but he also did not wish to examine any defence witness. Thereafter, vide Exh.36 the statement of appellant Muhammad Afzal was recorded under section 340(2), Cr.P.C. In his deposition he states that in the month of September, 1979 he was Accounts Assistant in O.G.D.C., Karachi. He did not prepare the Voucher No,867 nor he had made any payment on the said voucher. He has stated that he was innocent and has been falsely implicated in this case. After the conclusion of the prosecution case all the three appellants were convicted and sentenced as mentioned hereinabove.
6. ' I have heard Mr. MA. Kazi and Mr. M. Ilyas Khan learned counsel for the appellants while nobody has turned up on behalf of the State. Before I proceed further it may be observed that this matter came up for hearing on 22-11-1992 on which date no one appeared for the State and, therefore, the matter was adjourned to 6-12-1992. On 6-12-1992 again the position was the same but the matter was heard and thereafter for want of time it was adjourned as a part heard matter to 8-12-1992. On 8-12-1992 again none appeared for the State and as such after hearing the learned counsel for the appellants this matter was reserved for judgment.
7. ' It has been contended by Mr. MA. Kazi learned counsel for appellant Akhtar Ali that the trial Court has convicted the appellants under sections 409 and 471, P.P.C. But the main ingredient of the said offences were not proved.
8. ' The conviction of the appellants is based on surmises and presumptions. He has further stated that the prosecution case is based on second voucher No,867 and this is alleged to have been prepared by the appellant Akhtar Ali. This voucher is Exh.9. It bears the signature of all the authorised persons. The most important witness in this case is P.W.2 Shamim Ahmed Baloch. He is Senior Accountant (Finance) in the O.G.D.C. This witness has submitted that it was P.W.5 Sirajuddin Qureshi who was interested in getting the payment at Karachi and he had brought a copy of the order and handed it over to accused Akhtar Ali. According to the learned counsel if there was an order then accused Akhtar Ali had to prepare the voucher. Therefore, the voucher on the face of it is not a forged document and since it is not a forged document within the meaning of section 468 that is why the learned trial Judge did not convict the accused persons of the charge under section 468, P.P.C. According to the learned counsel since the document prepared by Akhtar Ali was genuine, therefore, there was no question of using forged document as genuine. Therefore, the conviction of the appellant under section 471, P.P.C. On the face of it is not warranted. He has further argued that so far as the charge under section 409, P.P.C. Is concerned entrustment of the amount given in the voucher has not been proved in this case. As such the conviction of the appellant was not proper and, therefore, he is entitled for acquittal.
9. ' On the other hand Mr. M. Ilyas Khan while adopting the arguments of Mr. MA. Kazi has made further submission that so far accused Muhammad Afzal is concerned there is no evidence at all against him while against appellant Khalil Tariq the prosecution has relied on the fact that appellant Khalil Tariq has repaid the amount and, therefore, a presumption is drawn that since he has repaid the amount obviously he was guilty and in order to save his skin he has repaid the amount. The learned counsel states that the relative vouchers and other material pieces were not put to appellant Khalil Tariq when his statement under section 342, Cr.P.C. Was recorded with the result appellant Khalil Tariq was never given an opportunity to explain these circumstances relied upon by the prosecution.
10. ' I have carefully considered the facts and circumstances of the case and I have also gone through the entire evidence available on record with the assistance of the learned counsel for the appellants. At the very outset I may point out that the appellants were charged as per Exh.2 for having committed offences under sections 409, 468, 471, 34, P.P.C. Read with section 5(2) of Prevention of Corruption Act II of 1947. But the appellants have been convicted by the trial Court
(sic) under sections 409 and 471, P.P.C. Only. This virtually means the charge of "forgery' under section 468, P.P.C. And "common object" under section 34, P.P.C. Was not made out against the appellants and accordingly the appellants shall be deemed to have been acquitted by the trial Court for the offences under these sections.
11. ' Now the position is that on the one hand the learned trial Judge has dropped the charges under sections 468 and 34, P.P.C., yet on the other hand the learned trial Judge has given a finding that the accused under common intention prepared a forged voucher. Relevant portion from the judgment is reproduced as under:-- "I am of the conclusion that all accused jointly in collusion and with common intention prepared a forged voucher in the name of Sirajuddin Qureshi and got it passed for payment through audit branch and misappropriated the Government amount of Rs,4,612.50."
12. ' The above comparison clearly indicates that the view taken by the learned trial Judge is self- contradictory, as after having dropped the charges under sections 34 and 468, P.P.C., how could the learned Judge give a finding that the accused acted under a "common intention" and "prepared a forged voucher". It may be noted that apart from the above, I have further observed that the most material aspects of the case have been completely overlooked by the trial Court and I will highlight the same at the proper time.
13. ' The allegation against the appellants is to the effect that P.W.5 Sirajuddin Qureshi an employee of the same Corporation was granted an encashment of three months refused leave amounting to Rs,4,612.50 which he received from Khairpur Office of the Corporation vide Voucher No,86. It is alleged that subsequently a forged Voucher bearing No,867 was prepared by the appellant Akhtar Ali, thereafter it was got passed through the Audit Section and encashed by the appellants who have misappropriated the amount of Rs,4,612.50.
14. ' In order to establish the charges against the appellants, it has to be proved that Voucher No,867 (Exh.9) was fraudulently prepared and that it was a forged voucher. Again, it must be proved that the appellants encashed the said Voucher No,867 and misappropriated the amount of Rs,4,612.50 which was in their entrustment. It goes without saying that the said charges must be proved against the appellants beyond all reasonable doubt by the prosecution. In order to establish the said charges, the prosecution relies on the evidence of P.W.2 Shamim Ahmed Baloch, P.W.3 Muhammad Ishque and P.W.4 Kazi Shamim Ahmed. As such the evidence of these witnesses , so also the surrounding circumstances will have to be scrutinised in order to ascertain if the charges levelled against the appellants are established or not.
15. ' P.W.2 Shamim Ahmed Baloch is the Senior Accountant in O.G.D.C., he is the star prosecution witness in this case. In his deposition Exh.5, he has stated that Sirajuddin was allowed encashment of three months leave vide order Exh.6, he has also produced the photo copy of the order all owing payment to Sirajuddin as Exh.7 and the payment Voucher (No,86) Exh.8 under which payment was received by Sirajuddin Qureshi on 13-8-1979. He further states accused Akhtar Ali again prepared cash payment Voucher (No,867) Exh.9, which was checked by Kazi Shamim and then it was sent to Audit Section. Accused Khalil Tariq made the payment on this voucher Exh.9. It transpired during accounting that double payment has been made to Sirajuddin Qureshi, it was verified from him, but he denied having received payment against Voucher (No,867) Exh.9. The matter was reported to the higher authorities. Accused Khalil Tariq refunded this amount vide receipt, dated 12-1-1980 Exh.10 which bears his signature and that of Cashier Nihai.
16. ' From the above reproduction of the examination-in-chief portion of P.W. Shamim Ahmed Baloch, he gives the impression as if the payment of Rs,4,612.50 was already received by Sirajuddin Qureshi on 13-8-1979 and, thereafter again another voucher for the same amount was prepared by appellant Akhtar Ali which was passed by the Audit Section and then payment for the second time was made by appellant Khalil Tariq to Sirajuddin which he has denied, but subsequently appellant Khalil Tariq refunded the amount.
17. ' The above evidence of P.W. Shamim Ahmed Baloch is not only in conflict with his later portion of his evidence which I shall presently explain, but in fact his evidence does not fit in with the other circumstances of the case.
18. ' When questioned by the Court, this witness contradicted himself as under;-- "Sirajuddin Qureshi was interested in getting payment at Karachi and he had brought copy of the order personally and handed it over to accused Akhtar Ali who prepared the voucher and put up the case to his incharge and forwarded it to Audit Section through diary. In the meanwhile Sirajuddin got payment in his party where he was posted and therefore, the voucher was lying for 11 days in audit. One day before Eid I allowed payment and passed such order on the voucher. I cannot say to whom Khalil Tariq made payment against Exh.9."
19. ' From the above evidence of this witness it will appear that Sirajuddin Qureshi actually came to Karachi with the order of payment. It is obvious that P.W. Shamim Ahmed Baloch did see that order.
20. So also it was seen by P.W. Kazi Shamim Ahmed who was in charge of appellant Akhtar Ali, as such P.W. Shamim Ahmed Baloch has falsely mentioned in his examination-in-chief that accused Akhtar Ali again prepared the payment voucher for the same amount after the payment was received by Sirajuddin on 13-8-1979. This witness has clearly mentioned that Sirajuddin came with the payment order to Karachi when Akhtar Ali prepared the voucher as such, the factum of pay order and the factum of preparation of voucher by Akhtar All was in the knowledge of this witness, so the voucher prepared by Akhtar Ali has to be the Voucher No,867 (Exh.9) as no other voucher was prepared at Karachi. No doubt this witness has stated that before Sirajuddin could get the payment on Voucher No,867, he received the payment from his own department where he was posted with the result Voucher No,867 kept lying in the Audit Section. But at the same time it is concretely established that Voucher No,867 (Exh.9) was a genuine voucher, as it was prepared on the basis of a pay order brought by Sirajuddin and in fact it is the first voucher and not the subsequent voucher.
21. Furthermore, Voucher No,867 (Exh.9) was prepared on 11-8-1979 while Voucher No,86 (Exh.8) was prepared on 13-8-1979 on which Sirajuddin had received the payment, therefore, on the basis of dates also, Voucher No,867 is shown to have been prepared first in point of time. In the above circumstances it will be wrong to say that the appellants prepared a forged voucher in the name of Sirajuddin Qureshi as observed by the trial Court.
22. ' The most important circumstance is that no evidence has come on the record to show that appellant Khalil Tariq was entrusted with any amount or he had dominion ever any amount in which any shortage was detected.
23. ' It is also the case of the prosecution that the appellant Khalil Tariq refunded the misappropriated amount vide receipt Exh.10. On this point there are two versions on the record. The first version is by P.W. Shamim Ahmed Baloch and P.W.4 Kazi Shaniim Ahmed who have stated that it was Khalil Tariq who deposited the amount. The second version, which is more plausible, is given by P.W.3 Muhammad Ishaque who states it was Sirajuddin Qureshi who has deposited the refunded amount and the relevant portion from his deposition is reproduced as under:-- "I am in the knowledge that Sirajuddin Qureshi has refunded the amount of Rs,4,612.50 vide receipt No,2892, dated 13-1-1980."
24. ' It may be noted that receipt No,2892 is Exh.10. It is in the name of Sirajuddin Qureshi and signed by P.W. Shamim Ahmed Baloch, therefore, on the record the amount has been refunded by Sirajuddin Qureshi and not appellant Khalil Tariq. Even otherwise where there are two versions, the version which is more favourable to the accused is to be accepted. As such I am of the view that the amount of Rs,4,612.50 was refunded by Sirajuddin Qureshi.
25. ' I have gone through the evidence of the other witnesses also, P.W.3 Muhammad Ishaque and P.W.
26. Kazi Shamim Ahmed both have deposed on the same lines as P.W.2 Shamim Ahmed Baloch by stating that Sirajuddin Qureshi was granted refused leave encashment pay amount of Rs,4,612.50 voucher was prepared by the accused, but Sirajuddin was already paid vide Voucher No,86, then they came to know that double payment has been made. The second payment was through Voucher No,867. P.W.3 Muhammad Ishaque has said that amount was refunded by Sirajuddin while P.W.4 Kazi Shamim Ahmed has said it was refunded by accused Khalil Tariq. P.W.5 Sirajuddin Qureshi has also been examined, he states that payment was not received by him through Voucher No,867 and it does not bear his signature. He also denied to have made the refund of the amount.
27. ' After carefully sifting and weighing the evidence, I am of the view that P.W.5 Sirajuddin Qureshi actually came to the Karachi Office of O.G.D.C. With the payment order of three months leave encashment pay, in view of the said order Voucher No,867 (Exh.9) was prepared by appellant Akhtar Ali and after it was signed by P.W.4 Kazi Shamim Ahmed it was sent to the Audit Section.
28. Before it could be cleared, in the meanwhile said Sirajuddin Qureshi was paid the said amount vide Voucher No,86 (Exh.8) by the office where he was posted, with the result the Voucher No,867 (Exh.9) which was lying in the Audit Section had become infructuous. However, this voucher was sent back by the Audit Section under the normal course, and on the basis of this voucher second payment appears to have been made to Sirajuddin Qureshi, otherwise there was no reason for him to refund the amount. Though. Sirajuddin has denied to have received the payment or to have refunded the same but the evidence and the circumstances of the case indicate that he did refund the amount.
29. When Sirajuddin had denied his signature on Exh.9 (Voucher No,867), it should have been referred to a Handwriting Expert to determine if it is genuine or forged, but for reasons best known, it was not done.
30. From my above discussion I am of the view that neither any forged document was prepared, nor any amount had been misappropriated. It was simply a case of double payment by mistake and the person to whom the double payment was made has since refunded the amount. Therefore, the conviction and sentences of the appellants are not sustainable.
31. ' Apart from the above, there is also a legal lacuna in this case which goes to the very root of the matter. It may be noted that the three appellants are public servants and they can be tried by the learned Special Judge only if a "valid sanction" for their prosecution is granted by the appropriate authority. In the present case the sanction orders for the three appellants are Exh.29, Exh.30, and Exh.31. The perusal of the said sanction orders will indicate that not only the same are defective, but these have been accorded in a mechanical manner without application of mind. It is obvious that the sanctioning authority has only affixed his signature on Exhs.29, 30 and 31, without actually going through its contents or the contents of the case papers. Furthermore, it appears that apart from the names of the accused, rest of the matter has been simply copied out verbatim in all the three sanction orders with the result defects appearing in Exh.29 are also appearing in Exh.30 and Exh.31.
32. ' To be more precise, I will first refer to Exh.29 the sanction order of appellant Khalil Tariq. The first para. Is reproduced as under:-- "Sanction Order ' Whereas it appears that accused Khalil Tariq, while posted as Accounts Assistant in Oil and Gas Development Corporation, Karachi as such a public servant in furtherance of common intention and object of co-accused Akhtar All and Muhammad Afzal both public servants being employed in the said Corporation, fraudulently received amount of Rs,4,612.50 drawn in the name of Sirajuddin Superintendent Seismic Party No,1, Khairpur vide Vouchers No,768, dated 13-8-1979, from co- accused Khalil Tariq by putting the signatures of Sirajuddin."
33. ' The above sanction order is exactly the same in respect of co-accused except the names of the accused in the first line and the fourth line. The above sanction order shows that Khalil Tariq is the accused (first line) and he received Rs,4,612.50 from co-accused Khalil Tariq (last line). This obviously is not possible as their is no co-accused Khalil Tariq in this case. Furthermore, the amount is said to have been drawn vide Voucher No,768. This also is not possible as no such voucher is in existence. Accused Khalil Tariq who is a Cashier is wrongly shown as Accounts Assistant.
34. The above defects are common in all the three sanction orders, therefore, the only conclusion which can be drawn is that, after having prepared one sanction order, the rest have been simply copied out with the result defects appearing in one are also common in the rest. Such a sanction order cannot be termed to have been accorded with conscious application of mind. Obviously it is mechanical in nature and this type of sanction is no sanction in the eyes of law. In the absence of a valid sanction, the trial Court had no jurisdiction in this matter and on this ground also, the conviction and sentence of the appellants is not sustainable.
35. ' In the light of my above discussion, the appeal is allowed, conviction and sentences of all the appellants are hereby set aside. The appellants are on bail, their bail bonds are discharged.