JUDGMENT MIAN NAZIR AKHTAR, J.- The appellant along with 2 others namely Muhammad Ashraf and Hamid Jalil (Since acquitted) was tried under section 468/419 PPC and Section 5(2) of Prevention of Corruption Act 1947 and sentenced to R.I. For 2 years with a fine of Rs.50,000/- or in default of payment to undergo R.I. For 9 months, by learned Special Judge Anti-Corruption, Sargodha vide his judgment dated 20.5.1991.
2. The appellant was Chairman Municipal Committee, Bhalwal in the year 1981. A contract was awarded to Riaz Hussain complainant for metalling of road in Block No. 3 in Bhalwal at the estimated cost of Rs.50,000/-. A running bill for an amount of Rs.32,358/- was passed by the appellant which was to be paid to the contractor/complainant. A cross-cheque for Rs.32000/- was issued by Hamid Jalil Accountant (the acquitted co-accused) on 23.4.1981. On the same day, the complainant made an application Ex. PH stating therein that instead of a cross cheque he be given a bearer cheque. Accordingly, the cross-cheque was converted into a bearer cheque by deleting the words "payees account" only. The appellant issued the letter Ex. PB authorising the complainant to encash the cheque.
3. On 7.5.1981, the complainant filed a complaint (Ex. PD) before the Deputy Director Anti-Corruption Establishment, Sargodha stating therein that Hamid Jalil Accountant had issued a cheque of Rs.32358/- in his name and that somebody else got it encashed. The complainant's statement Ex.
PE was also recorded by Malik Gul Mohammad SCO PW-3 on 27.8.81. Thereafter, the Additional Director Anti-Corruption Establishment, Faisalabad Region Faisalabad wrote letter dated 15.6.85 (Ex. PM) to the Circle Officer, A.C.E. Sargodha for registration of a criminal case. Thereupon, FIR No. 12 dated 25.6.85 under section 468/471 PPC and 5(2) of the Prevention of Corruption Act, 1947 was registered. The appellant's name did not figure in the FIR but was mentioned in the note written by Malik Gul Mohammad SCO PW3.
4. In support of its case, the prosecution produced 7 witnesses. Syed Shabhir Akhtar, National Saving Officer, Bhalwal PW.1 stated that on 23.4.1981 some unknown persons came with a cross- cheque and was told that he shall have his on account for depositing the cheque. He went back and the appellant in his presence scored of the entry, "payes account" and asked him to make payment to his companion. Asghar Ali Khan PW.2 produced the copy of the running bill Ex. PC. Malik Gul Mohammad SCO/ACE investigating Officer appeared as PW3. He had recorded the statement of Ex. PE and sent his report Ex. PF. He further stated that in the light of his report the Deputy Director vide order Ex. PG directed him to submit the final report. He took into possession the application Ex.
PH, the counter-foil of the cheque book Ex. PJ vide recovery memo Ex. PK. He also secured the specimen signature of Riaz Hussain, complainant on the sheets Ex. PL to Ex. PL/5. He forwarded the same for comparison with the counter-foils Ex. PJ/1 to Ex. PJ/10. Riaz Hussain PW-4 is the complainant who stated that cheque for an amount of Rs.32,000/- was prepared in his name but the entire amount was received by Hamid Jalil Accountant. He further stated that he filed a complaint Ex. PD before the Deputy Director/ACE. He denied his signatures Ex. PA/3 and Ex. PA/4 on cheques Ex. PA and Ex. PA/1. He also denied having submitted the application Ex. PH for converting the crossed cheque into bearer one. Sardar Ali and Ikram ul Haq PW-5 and PW-6 did not support the prosecution case and were declared hostile. Malik Tilla Mohammad CO/ACE PW-7 had taken over investigation of the case from Malik Gul Mohammad PW-2. He recorded the formal FIR Ex. PN and the statements of the PWs u/s 161 of the Cr.P.C. He obtained sanction for the appellant's prosecution Ex. PO and submitted challan against him in the Court. The prosecution produced in evidence report of the Forensic Science Laboratory as Ex, PR.
4. In his statement u/s 342 of the Cr.P.C, the appellant denied the charge and in reply to question No. 8 stated, "Complainant Riaz Hussain himself came to my office with application Ex. PH and requested that cheque should not be crossed one as he needed the money so I did the necessary sanction". He claimed that he was involved in a false case due to party politics. He produced Khawaja Mohammad Afzal DW-1 who stated that in his presence the complainant himself presented the cheque and received the money.
5. The appellant's learned counsel contends that the appellant's trial was vitiated as the Provincial Government and not the Commissioner of the Division was competent to grant sanction in the case of the appellant who was not a salaried employee of the Municipal Committee. He next submits that the appellant had originally signed the crossed cheque and thereafter on the written application of the complainant converted it into a bearer one. He was personally present at the time when the cheque was presented by the complainant for encashment. This clearly proves his bona fides and negates menseria on his part. He further submits that in the complaint Ex. PE nothing was said against the appellant but Malik Gul Mohammad SCO arbitrarily added the allegation against the appellant in his report Ex. PH. He further submits that the report of the Hand- writing expert Ex. PR could not be excluded merely because the Handwriting Expert was not summoned as a witness. Lastly he submits that the appellant was alleged to have abetted Mohammad Ashraf co-accused who had been acquitted. Therefore, there was no justification to convict the appellant for the alleged abetment.
6. On the other hand, learned State counsel supported the appellant's conviction and urged that the appellant was proved to have converted the cross cheque into a bearer one and helped Mohammad Ashraf, his co-accused in getting it encashed. He adds that the complainant never submitted any application for converting the cross-cheque into a bearer one.
7. At the relevant time, the appellant was the Chairman of Municipal Committee, Bhalwal and was a public servant. By virtue of the provisions of section 176 of the Punjab Local Government Ordinance 1979 every member and every servant of a local council and every other person duly empowered to act on behalf of the local council is to be deemed to be a public servant within the meaning of section 21 of the Pakistan Penal Code (read with section 2 of the Prevention of Corruption Act, 1947). For the trial of a public servant sanction of the appropriate Government is mandatory as provided under section 5(6) of the Act. The appropriate Government in case of the local Councils/Municipal Committees is the Government of the Punjab which enjoys control over the affairs of local Councils/Municipal Committees by virtue of the provisions of sections 156 and 157 of the Ordinance. The Provincial Government delegated its powers in the matter of grant of sanction to different authorities under Pakistan Criminal Law Amendment (Punjab) Rules 1985. The said rules related to sanction of public servants employed from grade 1 to grade 21 but do not cover the cases of the members of the local councils including the Chairman or the Vice Chairman who are not salaried employees of the Local Councils. Hence in their case sanction is to be granted by the Provincial Government and not the authorities specified under the Rules. In the present case, sanction for appellant's prosecution was granted by the Commissioner who was not competent to grant sanction in the matter. The Commissioner could merely grant sanction for prosecution of public servants employed in Grade 1 to Grade 18. Therefore, in the absence of sanction granted by the competent authority, the appellant's trial was vitiated.
8. Even if it is assumed for the sake of argument that the appellant was tried after sanction of the competent authority, still on merits, the prosecution does not seem to have proved its case beyond reasonable doubt. The facts on the record show that initially in the normal course the appellant had signed a cross cheque in the name of Riaz Hussain complainant. The complainant himself made and application in writing for converting the cheque into a bearer one as he urgently needed money. The complainant denied having made the application Ex. PH but the report (Ex. PR) of the Fronsic Science Laboratory confirms that it bears the signatures of the complainant. A mere comparison of signature pf Riaz Hussain complainant appearing on the application Ex. PH with his specimen signatures borne on Ex. PL to PL/5 clearly confirms the correctness of the opinion of the expert. The appellant appear to have allowed the application in good faith and scored of the words "payees account" under his signatures. It is significant to mention that after obtaining the cross- cheque the complainant presented it in the Bank and again he presented the bearer cheque for encashment. This can be fairly gathered from the statement of Syed Shabhir Akhtar PW-1 who stated that the person who had come to the bank with the cross-cheque had again come with the bearer cheque in the company of the appellant. Obviously, the crossed cheque could not be presented in the bank by any person other than the complainant himself. After it was converted into a bearer cheque the appellant, out of abundant caution accompanied the complainant so that he may witness himself that the amount was withdrawn by the complainant. Had he been a party to some fraud or cheating he would never have accompanied the person who had taken the bearer cheque to the bank. There is no evidence on the record to show that the appellant had impersonated for some other person, cheated the complainant or the bank officials or personally derived some benefit. According to the prosecution case initially set up, it was one Hamid Jalil who got the cheque encashed. At the trial, it was alleged that Mohammad Ashraf co-accused got the cheque encashed and received the amount and that the appellant had abetted Mohammad Ashraf. Mohammad Ashraf co-accused has already been acquitted by the trial court. Therefore, the allegation of abetment levelled against the appellant also fails. The possibility that the appellant was falsely roped in due to political rivalry cannot be ruled out.
9. For the foregoing discussion this appeal is allowed and the appellant is acquitted of the charge against him. He is present in court on bail. His bail/surety bonds shall stand discharged.