Dilawar Hussain and Ghulam Hussain appellants alongwith Abdul Wahid, ex-Telegraphic Messenger, Telegraph Office, Lyallpur and one Muhammad Ishaq were tried for offences under section 420/468/471/120-B of Pakistan Penal Code read with section 5 (2) of the Prevention of Corruption Act by the Special Judge (Central). Abdul Wahid and Muhammad Ishaq were acquitted of all the charges. The two appellants were also acquitted of the charges under sections 120-B and 471, P. P. C. And were convicted under section 420/468, P. P. C. And under section 5(2) of the Prevention of Corruption Act (II of 1947). Each one of them was sentenced to one year's rigorous imprisonment under section 420, P. P. C., six months' rigorous imprisonment under section 463, P. P.
C. And one year's rigorous imprisonment under section 5(2) of the Prevention of Corruption Act (II of 1947). They were also sentenced to a fine of Rs. 2,000 each or in default of payment of fine further rigorous imprisonment of three months' each. They have appealed against their conviction and sentences.
2. The prosecution case in brief is that all the four accused had conspired to misappropriate amounts sent through the Telegraphic money orders. With a view to achieve this end they rented a Bungalow No. 63/A, Ghulam Muhammad Abad, Lyallpur. The acquitted accused were to change the original tapes and forge the names of the appellants instead of the real payees. The allegations are that they in fact changed the original tapes of Telegraphic Money Order No. 4499 dated 25-3-1968 for Rs. 300 and Telegraphic Money Order No. 7807 dated 27-3-1968 for Rs.
175. The real payees of the two money orders were Muhammad Razzaq Kiyani (P. W. 6) and Sher Muhammad (P. W. 16). On account of the forgery committed in the original tape it is alleged that the money orders were actually delivered to the two appellants at Bungalow No. 63-A. All the four accused pleaded not guilty and denied the charges. The defence of Abdul Wahid and Muhammad Ishaq, the two acquitted co-accused, was that they were not on duty on the material time and have been falsely involved on account of enmity with Telegraph Master Mr. Ashfaq Ahmad ; while the defence of the two appellants was that they had been falsely implicated in this case on account of their acquaintance with the two acquitted co-accused.
3. The prosecution at the trial examined in all 19 witnesses. The fact that the money orders were despatched to the respective payees and that the same have not in fact been paid to them is not disputed and, therefore, I will not discuss that part of the evidence. The main controversy, however, centres round the fact if the tapes were forged and the amount was, actually, received by the two appellants, and if so did they commit offences triable by the Special Judge under the provisions of the Criminal Law Amendment Act, 1958. Relevant evidence, therefore, is of Muhammad Ali Postman (P. W. 3). He deposed that he disbursed money orders Exh. P. W. 3/1 and Exh. P. W. 3/2 to Ch. Ali Hassan Bajwa and Muhammad Raza respectively. (It is alleged that the names of the actual payees were forged with Chaudhry All Hassan Bajwa and Muhammad Raza). Money Order Exh. P.
W. 3/I was received by Dilawar Hussain posing himself as All Hassan Bajwa and Money Order Exh. P.
W. 3/2 directed to Muhammad Raza, was received by Ghulain Hussain appellant posing himself as Muhammad Raza. The witness identified the two appellants in Court. He, however, admits that he did not have the two appellants identified at the time of the delivery of money order and have seen them in the office of the Special Police. Sardar Muhammad (P. W. 5) stated that at the relevant time he was the occupant of Bungalow 63-A which belonged to Haji Fateh Muhammad. At the instance of the owner he let out half portion of the house to the appellants. He stated that he had seen the two appellants and the two acquitted accused in the house. He stated that a Postman came to deliver money orders but the appellants were not present in the house. He asked the Postman to visit again. However the money orders were disbursed to the appellants in his absence. He then deposed that after the receipt of the money orders the two appellants had abandoned the house.
He stated further that he was called by Special Police in the Post Office in connection with the inquiry of this case and that when he was coming back he found Ishaq, the acquitted accused and Dilawar appellant in the Rail Bazar. He caught hold of Dilawar Hussain while Ishaq accused ran away The fact that the money orders were received by the two appellants was disclosed to him by his wife, who, according to him, was mentally deranged at the time when he was examined as a witness. This part of his evidence that his wife told him that the money orders were received by the two appellants shall have to be excluded as hearsay as his wife has not been examined as a witness.
4. The learned Special Judge dealing with the case of the two acquitted co-accused found that the allegations that they conspired with the two appellants in order to misappropriate the money sent through telegraphic money orders, changed the tapes of the addresses of the payees and forged the signatures of the official incharge of the receipt of teleprinter message, have not been established. He found that the prosecution has failed to prove their complicity in the offence beyond doubt. He viewed that there was nothing on the evidence to show that these money orders were given to Abdul Wahid acquitted accused for entrustment to the postal authorities or he was connected with the pasting of tapes or that he had any connection with their delivery. He found that mere presence of the acquitted accused at House No. 63-A would not be sufficient to establish the guilt. He, therefore, gave them the benefit of doubt and acquitted them of all the charges. With regard to the case of the two appellants the learned Special Judge found that they impersonated the forged payees i.e. Ch. All Hassan Bajwa and Muhammad Raza and had forged their signatures. They have been identified by Postman (P. W. 3) in Court. He, therefore, found them guilty of the offence of cheating punishable under section 420 and of forgery punishable under section 468, P. P. C. He also relied on the statement of Sardar Muhammad (P. W. 5) that they had hired house No. 63-A and received the two money orders. However, while convicting the two appellants the learned Special Judge, without any discussion, proceeded to hold that they are also guilty of the offence under section 5 (2) of the Prevention of Corruption Act (II of 1947).
5. The learned counsel for the appellants has argued that the offence under section 5(2) of Act (II of 1947) is not at all made out and their conviction under this offence is not legal. He then argued that the offence of criminal conspiracy not having been made out the two appellants could not be tried and convicted by the Special Judge for offences under sections 420 and 468, P. P. C. He referred to Sayeed Hai v. The State . On merits he argued that the prosecution has failed to establish beyond reasonable doubt that the petitioner forged the signatures of the payees or that they impersonated the payees and received the money. He contended that the two appellants were never put to identification parade and they were shown to the Postman in custody with the Special Police and, therefore, their identification by the witness in Court was of no importance. No reliance, similarly, could be placed on the statement of P. W. 5, as the manner in which, according to this witness, appellant Dilawar Hussain was arrested by this witness, is unique. He was called by the Special Police while holding an inquiry in the Post Office and, by any chance, when he was returning he saw Dilawar Hussain and Muhammad Ishaq in the Bazar and apprehended one. The money orders were delivered at House No. 63-A where this witness resided and they were disbursed by P. W.
3. It could well be that these two witnesses were responsible to misappropriate the amount and, therefore, they were not more than an accomplice in the case and their testimony could not be accepted without corroboration. The forged signatures had not been sent to the Expert for his opinion and, therefore, could not be safely said as to who forged the signatures.
6. I have given my anxious thought to the argument raised by the learned counsel for the appellants. I am inclined to agree with him. Section 5(1) defines misconduct. It provides that (1) A public servant is said to commit the offence of criminal misconduct (a) if he accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the Pakistan Penal Code, or (b) if he accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, likely concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, or (c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do, or (d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage or (e) if he, or any of his dependents, is in possession, for which the public servant cannot reasonable account, of pecuniary resources or of property disproportionate to his known sources of income. Section 161 of the Pakistan Penal Code similarly provides that whoever being or expecting to be a public servant, accepts or obtains or agrees to accept, or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person, with the Central or any Provincial Government or Legislature or with any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. In the instant case, however, there is nothing on record to establish that the appellants1 conspired or abetted any public servant in the commission of an offence under section 5(2) of Act 11 of 1947. Their conviction, therefore, under section 5(2) of Act II of 1947 is not sustainable. They are acquitted of this charge.
7. According to paras. (a) and (c) of the Schedule to the Pakistan Criminal Law (Amendment) Act, 1958 offences punishable under sections 161 to 166, 168, 217 and 218 of the Pakistan Penal Code and as attempts, abetments and conspiracies in relation thereto or connected therewith and offences punishable under the Prevention of Corruption Act, 1947, and as attempts, abetments and conspiracies in relation thereto or connected therewith are triable by a Special Judge. As I have taken the view that the conviction of the appellants under section 5(2) of Act II of 1947 is not proper, the learned Special Judge did not hold trial for any of the offences mentioned in paragragh (a) or
(c) of the Schedule.
8. Offences under sections 403 to 409, 417 to 420, 465 to 468, 471 and 477-A of the Pakistan Penal Code and as attempts, abetments and conspiracies in relation thereto or connected therewith when committed by any public servant as such or by any person acting jointly with or abetting or attempting to abetment or acting in conspiracy with a public servant as such are triable by a Special Judge. In the instant case the public servant involved has been acquitted. The offence of conspiracy has not been established. No public servant in the case is charged with any of the offences mentioned in this para. The two appellants, therefore, who are not public servants, could not be tried by the learned Special Judge for offences under section 468 or 420 of Pakistan Penal Code. I am supported in the view, I have taken by Sayeed Hai v. The State. Their trial by the Special Judge was, therefore, not proper and their conviction on these two offences also cannot be sustained. On merits, also, I find that the prosecution has failed to establish its case beyond reasonable doubts. Money was not received by the appellants in presence of P. W.5. He was only told by his wife that the two appellants received the money orders. This part of the evidence cannot be used against the appellants as the wife was not examined as a witness. P. W. 3 Postman does not claim that he was previously known to the two appellants. He offered them the money orders without having them identified. The two appellants were shown to this witness while they were in custody with the police. The identification of the two appellants by this witness is, therefore, not of much significance. There should have been some independent evidence to corroborate the testimony of this witness that the money orders were in fact paid to the two appellants and that they had impersonated the payees. As I have held that the trial by the learned Special Judge of the two appellants was not proper I should have allowed the appeal without going into the merits yet I have examined the merits of the case with a view to form an opinion if it would be a fit case for ordering retrial. But I am not prepared to order retrial as I find that the prosecution has a weak case on merits. Moreover the offence is alleged to have been committed in 1968 ; the trial commenced in 1971 and was concluded in 1974. The appeal has been beard in 1974. The two appellants underwent protracted trial for all these years ; the fear of conviction has been hanging on their mind. I am, therefore, of the opinion that this is not a fit case for re-trial.
For all what has been stated above I accept this appeal and set aside the conviction and sentence of the two appellants. They are on bail. Their bail bond shall stand discharged. PLD 1967 Kar. 768 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.