' This judgment shall Criminal Appeals Nos.1236, dispose of 1237, 1238, prosecution evidence and defence evidence is same in all these cases.
2. Brief facts of the case are that Mehrnood Ali Shah, Senior Post Master, G.P.O., Khushab sent a written complaint to S.H.O., Police Station Khushab stating that the appellant had been posted as Clerk, General Post Office, Khushab and he while working so misappropriated Government money amounting to Rs,13,46,200 on the pretext of payment of money orders. It was stated that the appellant/accused used to increase the sum of money orders by manipulations while paying lesser amount to the payee, secondly he used to enter fictitious money orders. It is further alleged in the F.I.R. That the appellant in order to cover up the embezzled amount he wasted the record of money order receipts register from 1-4-1988 to 4-5-1988 telegraphic money order register from 1- 6-1988 to 1-4-1988 and money order paid lists from 1-1-1988 to 31-5-1988, 17-6-1988 to 24-6-1988, 1- 7-1988 to 31-7-1988, 8-8-1988 to 28-8-1988 and 1-1-1989 to 3-5-1989. On the basis of this complaint F.I.R. No,309, dated 27-8-1989 was registered. The appellant was arrested on 14-12-1989. During the investigation an amount of Rs,1,20,000 was recovered from him and after completion of investigation challan was submitted in the Court of Special Judge (Central), who framed charges against the appellant, which were denied by him and he claimed to be tried. The prosecution in order to prove his guilt has produced 15 witnesses. The appellant in his statement under section 342, Cr.P.C. Has denied allegation and also denied the recovery on his pointation and stated that he has been made scapegoat. He had given detailed statement which is placed as Annexure 'ED' in which he alleged that he had not committed the offence. The learned Special Judge Anti- Corruption, Central Faisalabad vide impugned judgment dated 5-9-1997 has convicted and sentenced the appellant to undergo R.I. For five years with a fine of Rs,1,000 and in default simple imprisonment for 6 months under section 468. P.P.C., to undergo R.I. For five years with a fine of Rs,1,000 and in default simple imprisonment for 6 months under section 471, P.P.C., to undergo R.I.
For three years with a fine of Rs,1,000 and in default S.I. For six months under section 420, P.P.C. To undergo R.I. For five years with a fine of Rs,1,000 and in default S.I. For six months and under section 409, P.P.C. He was also sentenced to undergo R.I. Five years with a fine of Rs,1,000 and in default S.I.
For six months. The learned Special Judge also ordered that the said sentence shall run concurrently and the sentences passed in all connected cases were to run concurrently. The appellant has filed separate appeals in each case against the said judgment.
3. The learned counsel for appellant contends that the appellant has been made scapegoat as it routine that the amount was being paid by the Cashier who has not been made as an accused person. It is further contended that P.W.2, Javed Muhammad lqbal, P.W.3 Fazal Ahmad, P.W.4 Jamil Ahmad were working alongwith the appellant in the same Post Office who were also associated on the same charges and subsequently in departmental inquiry they were reinstated with the direction to pay an amount of Rs,500 per month instalment of the embezzled, hence they were also accused persons and their statements against the appellant cannot be given any weight. It is further contended that it is in the evidence that inquiry report was prepared and was sent to the Headquarter about the payment of money through money order and no illegality or mala fide was ever pointed out and the cases have been planted subsequently and the appellant has been falsely involved. It is further contended that the case was originally under section 409, P.P.C., which was scheduled offence and only F.I.A. Or Anti-Corruption Establishment was competent to register the same and investigate the same and local police was not authorised to register and investigate the case. Hence the investigation has been conducted by an agency which could not investigate the case. It is therefore, contended that registration of case, investigation and submission of challan is illegal and unlawful and in such circumstances, the appellant is liable to be acquitted and the trial is liable to be vitiated. Reliance has been placed on case reported as NLR 1994 Criminal 505. It is further contended that Handwriting Expert report is weak type of evidence and no reliance can be placed on it. Whereas learned Trial Court has given much emphasis on the Handwriting Expert opinion for conviction of the appellant. It is further contended that the F.I.R. Has been lodged with an inordinate delay without any explanation. It is further contended that P.W.2 had admitted delivery of money order, which clarified that he passed the money order in register till the same delivered to the customer. In such circumstances, the appellant could not be held liable for excess payment as cashier was paying the amount. At the last it is argued that the appellant has been sentenced to 60 months' R.I. 'out of which the appellant has already served out 42 months' R.I., hence a lenient view may be taken and sentence may be reduced. It is further contended that the recovery of amount of Rs,1,20,000 has been effected in violation of section 103, Cr.P.C. As no public witness was joined in recovery proceeding.
4. On the other hand the learned State Counsel has opposed the appeal on the ground that the appellant has been rightly convicted as sufficient evidence was available on the record to connect the appellant with commission of offence. She further contends that already lenient view has been taken by the learned trial Court and the appellant does not deserve leniency and the appeal is liable to be dismissed.
5. I have heard the learned counsel for parties and also perused the record carefully. The prosecution in order to prove guilt of the appellant has produced P.W.1, Mehr Maqsood Ahmad, Magistrate Ist Class, who obtained specimen signature of Ikhlaq Ahmad, appellant on three sheets which were subsequently sent to Handwriting Expert for comparison with the signature on the register of money order. According to the report of Handwriting Expert, who has appeared as P.W.6, he has found after comparison that these specimen signatures are similar to that of on registers which had been produced in the Court. The statements of these two witnesses are sufficient to prove that the petitioner was dealing with the entries regarding the money orders and he was making payment to the public and had prepared the forged documents. This fact is also proved that less amount has been paid but some excess amount has been shown to be paid.
6. P.W.2, Muhammad Iqbal, Assistant, was working as Assistant Senior Post Master, Khushab during the period when the appellant had been working as Money Order Paying Clerk in the Post Office. It is stated by him that during the period the appellant had been fabricating the money orders and has been receiving the amount and misappropriated the same. He denied the suggestion that he was directed to make payment of Rs,500 as monthly instalment to remit the entire embezzled amount. He further stated that it was true that he was asked to pay Rs,700 per month by the Departmental Authority, but he preferred appeal before Federal Service Tribunal, which was accepted and he was exonerated of the alleged charge. It was admitted by him that the money order pay order was duty bound to enter money order in the relevant register and prepare the M.O.
And deliver the money to the customer and also pay the cash after ascertaining the identity of customer. He denied the suggestion that the Money Order Clerk did not use to pay the amount to payees. He also denied that the amount was being paid by the cashier. He also denied the suggestion that the telegraphic money order is initially received by A.P.M. And that T.N.O. Form is filled by the A.P.M. However, he admitted that oblong seal and M.O. Paid Stamp remain in the custody of A.P.M. But the same can be used by the M.O. Paid Clerk. It is also stated by him that the documents are always prepared by Money Order Paid Clerk and the relevant seals are also affixed by him on the documents. He also stated that the payee appears before M.O. Clerk/appellant and he used to ascertain his identity and used to pay the amount to him. He denied the suggestion that M.O. Paid Clerk was not competent to make the payment. He has thus fully supported the prosecution case that the appellant used to make the payment to the payees and he embezzled the whole amount.
8. P.W.3, Fazal Ahmad, Assistant Post Master, G.P.O. Khushab made similar statement in lines with the earlier statement made by Muhammad Iqbal and also put full responsibility of payment of amount to the payees of the money order on the appellant, who was M.O. Paid Clerk and nobody else according to him was involved in this case and the appellant according to him had been making the entries and paying the amount. According to this witness the appellant was responsible for the embezzlement and nobody else has embezzled the amount. Similar statement has been made by Jamil Ahmad, Assistant Director-General Pa stan Post Office Directorate General, Is mabad, P.W.4. According to him the appellant was posted as Clerk T.M.O. At Khushab, G.P.O. And he used to get payment himself after impersonating other fictitious persons and signing the receipts himself. During this posting the appellant had received an amount of Rs,13,27,200 illegally. On receiving information about this, inquiry was conducted and the appellant had been found guilty of the offence. He denied the suggestion that the amount was being paid by Cashier.
His statement is also in lines with the statement of other witnesses and he has fully supported the prosecution case. He was subjected to lengthy cross-examination, but nothing could be gained from him.
9. P.W.5 Ahmad Nawaz, Head Post Master, Khushab has also supported the prosecution case and stated that the appellant was Money Order Paying Clerk, when the embezzlement took place till registration of the case and he used to receive the money orders and entered the same in Treasury Book and delivered the money to fictitious persons. This witness during investigation produced 137 fictitious telegram money order forms and relevant treasury cash book to the police, which were taken into possession vide memo. Exh.P.C. And he attested the same. He further corroborated the prosecution case in lines with other witnesses.
10. P.W.7, Muhammad Mumtaz, was declared hostile. P.W.8 Feroze Khan and P.W.9 Muhammad Ilyas were residents of the village of those persons, to whom alleged amount was shown to be paid.
They supported the prosecution that these persons were not residents of their village and some fictitious persons have been shown.
11. P.W.10, Ghulam Abbas is retired Sub-Inspector, who on the receipt of complaint recorded the formal F.I.R. Exh. P. D . P. W. 1I, Muhammad Nawaz, partly investigated the case. P.W.12, Ghulam Abbas, Constable stated that the accused/appellant while in custody disclosed that he had placed the money in Baithak of his house and lie led to the recovery of Rs,50,000 from brief-case lying in his Baithak on 19-12-1989. This witness further stated that on 20-12-1989 the appellant made disclosure and got recovered Rs,70.000 from inside the box lying in the Baithak of the accused. The investigation was conducted by P.W. 13, lftikhar Ahmad. He has supported the prosecution case.
12. All these statements of the prosecution witnesses have been perused by me with due care and caution. Though all the witnesses have been subjected to lengthy cross-examination but nothing could be gained by the appellant from them. Their statements are consistent on material point and no discrepancy has been found in their statements. The counsel for appellant has failed to point out any contradiction in their statement which can cast doubt on the prosecution case. The prosecution has fully established its case against the appellant. The appellant in his statement under section 342, Cr.P.C. Admitted that he remained as Money Order Paid Clerk from 1987 to 1989.
He denied other allegation and even denied recovery of huge amount of Rs,1,20,000 and has stated that it has been planted upon him. I am not impressed by the arguments of the learned counsel for petitioner that such an amount could be planted upon the appellant, if it was not recovered from him. There is no reason to substitute the appellant by exonerating other accused persons. The appellant has failed to point out any mala fide on the part of prosecution witnesses to exonerate other accused persons if the offence had been committed by them. The judgment of the trial Court is based. On cogent reasons and is supported by the evidence on record. No illegality has been committed by the learned Trial Court while convicting the appellant.
13. So far as the contention of the learned counsel for appellant that local police could not investigate and register the case is not sustainable and complete answer of the same can be found in case State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408 at para.18, which is reproduced hereunder:-- "As regards the question, as to whether the above illegality/ irregularity if already committed by the C.I.A. Personnel would vitiate the trial, it may be observed that subsection (2) of section 156. Cr.P.C.
Expressly provides that No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate'. It is an admitted position that the C.I.A. Is part of the Pollee Force.
It is in fact a special branch carved out from the police force for special purpose. The violation of section 156(1) of the Cr.P.C., may not vitiate trial if no serious prejudice has been caused to the accused person concerned resulting in miscarriage of justice in view of above subsection (2). Of section 156, Cr.P.C. But it does net mean that the C.I.A. Personnel should knowingly violate the above provisions of the Cr.P.C. On the contrary, they are legally duty bound to ensure the supremacy of law."
14. From the perusal of above said case-law it is clear that the investigation conducted by any agency other than the relevant agency will not vitiate the trial on this ground alone unless some prejudice has occasioned by the investigation to the accused. The learned counsel for appellant has failed to point out any circumstances by which it can be inferred that a prejudice has been caused to the appellant by investigation of the local police instead of F.I.A. The challan was submitted to the Court and the prosecution produced the evidence under the provisions of law in a Court of competent jurisdiction. The Court cannot go back to seek whether the case was registered by competent person or not. Hence the stand taken by the learned counsel for appellant is not sufficient to give any benefit to the appellant. The prosecution in this case has stood on its own legs. The appellant has failed to show any reason for interference in the impugned judgments.
Hence all the appeals having no merit are dismissed.