1988 P Cr (PLP)

Date of hearing: 7th May, 1988. This criminal appeal arises from the judgment of learned Special Judge Anti-Corruption, Bahawalpur, whereby he on 12-12-1978 convicted Asghar Ali Shah appellant under various sections:- Under section 420, P.P.C. to two years' R. I. Under section 468, P.P.C. to two years' R I. and a fine of Rs.500, in default thereof six Months R.I. Under section 5(2)47 to two years' R.I. with the direction that the sentences shall run concurrently. The appellant was working as Head Clerk Municipal Committee, Ahmadpur East in September, 1977. The charges against him were/are that he, by means of cheating, criminally misappropriated Rs.500 out of the total amount entrusted to him for collecting the engines of Municipal Committee Ahmadpur East from Peco Company, Lahore to Ahmadpur East; secondly, he tampered with record of Bilty No. 1447, dated 19-9-1977 of Azad Goods Transport Co., Lahore by converting figure of Rs.320 into 820 and thereby obtained Rs.820 from Municipal Committee, Ahmadpur East He denied the charge and claimed to be tried .

3. To prove its case, prosecution examined 4 witnesses. Ahmad Bakhsh P.W.1 stated that the appellant had received Rs.700 from Municipal Committee in advance for the collection of engines from Peco Co. Lahore. This included Rs.200 as the journey expenses. He identified the signatures Exh.P.A./1 of the appellant on contingent bill Exh.P.A. The witness proved endorsement Exh.P.B./2 of Chief Officer and Administrator's sanction Exh.P.B./2, and identified the signatures of the Chief Officer and the Administrator. Mian Ghulam Rasool P.W.2 had recorded the formal F.I.R. Exh.P.H./1 on the basis of application Exh.P.H. Abdul Qadir, Chief Officer P.W.3 stated that -the appellant had submitted report Exh.P.B. claiming Rs.700 including Rs.200 as T.A./D.A. He proved the signatures of the appellant Exh.P.B./3 on this report. The witness further stated that an amount of Rs.700 was sanctioned by the Administrator vide his order Exh.P.B./2. He identified the signatures of the Administrator. He stated that Rs.700 were given to the appellant on the basis of contingent bill Exh.P.A. who received the same vide entry Exh.P.A./1. He stated that on his return from Lahore the appellant had submitted his report Exh.P.C. claiming Rs.820. He identified the signatures Exh.P.C. /1 of the accused on this report. He further stated that the appellant had submitted voucher Exh.P.C./A of Rs.800 which bears his signatures Exh.P.C./A/1. He also proved the report of the Accountant Exh.P.C./2. He also proved his report Exh.P.C./3. The witness stated that the appellant had received Rs.'100 in addition to the advance of Rs.500 already received by him. The witness also proved report Exh.P.N. of the Head Clerk, endorsement Exh.P.N./2 made by the appellant and his signatures Exh.P.N./3 thereon. He also proved the T.A./D.A. Bill Exh.P.D. and consolidated bill for Rs.231.50 which included the amount of Rs.165.10 for the journey performed by the appellant from Ahmadpur East to Lahore. Muhammad Saeed P.W.4, Manager, Azad Goods Transport Co., Lahore stated that on 19-9-1977 the appellant had come to his office and had paid Rs.320 as transportation charges of two engines from Lahore to Ahmadpur East. The witness stated that Exh.P.Z./1 is duplicate carbon copy of the original Bilty No. 144". He also proved his report Exh.P.F. with regard to the transportation of two engines from Lahore to Ahmadpur East and the amount charged by him.

4. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. In defence he produced Mir Waseeq Ahmad, Chief Officer, Municipal Committee, Ahmadpur who stated that in July 1978 Muhammad Bakhsh complainant had made application that he had engaged private counsel for the Perwi of the case and had claimed Rs.440 as fees but no payment was made to him. The witness stated that there was party faction within the employees of Committee. The trial Court examined Muhammad Ahmad as C.W.1 who stated that Exh.P.Z./1 was the true carbon copy of Bilty No.1447. The witness stated that the original bilty Exh.P.J. was not in torn condition when it was delivered. He identified his signatures Exh.P.Z./2 on the bilty. He stated that he had charged Rs.320 only from the appellant on 19-9-1977 for transporting two engines from Lahore to Ahmadpur East.

5. Learned counsel for the appellant contended that the prosecution has failed to prove the commission of offence punishable under section 420/468, P.P.C. against the appellant, inasmuch as, there was/is no evidence that the appellant had fraudulently or dishonestly induced any person to deliver the amount to him and that there is also no satisfactory evidence to the effect that the appellant had converted the figures Rs.320 into Rs.820. Learned counsel for the State has supported the judgment of the trial Court. Haji Riaz-ud-Din Ahmad, the learned counsel for Municipal Committee argued that although there was no direct evidence of the forgery or tampering with the figures of 320 in the bilty by the appellant yet the circumstances appearing in the case fully connect the appellant with the alleged forgery. He, however, frankly and rightly conceded that the ingredients of cheating punishable under section 420, P.P.C. could not be proved by the prosecution.

6. I have considered the submissions made by the learned counsel for the parties with care. I find that there is really no evidence to the effect that the appellant had fraudulently induced any person to deliver him Rs.820 and as such his conviction under section 420, P.P.C. is not sustainable. The conviction of the appellant under section 168, P.P.C. shows that he has been found guilty for converting figures Rs.320 into

820. The relevant figure, in fact, is '3' which allegedly was converted into '8' by the appellant. There exists absolutely no evidence to prove the tampering of figure `3' by the appellant. No witness claiming to have seen the appellant converting figure '3' into '8' in the bilty or copy thereof has been produced. Although some of the witnesses produced by the prosecution have identified the signatures/handwriting of the appellant on different documents yet they remained silent with regard to the conversion of figures Rs.320 into Rs.820. They did not identify the converted figure of '8' to be in the hands of the appellant. So much so, no' handwriting Expert was produced to prove tampering with an overwriting of figures in the bilty. No doubt there appears some circumstances raising suspicion against the appellant that he might have tampered with the figures in the bilty, e.g. he was entrusted with duty of collecting two engines from Lahore; that he had approached Pakistan Engineering Co. Lahore and had got the two engines transported from Lahore to Ahmadpur East through Azad Goods Transport, Lahore; that he had received Rs.820 as transport charges from Municipal Committee, Ahmadpur East but suspicions after all are suspicions and do not take place of proof within the meanings of section 3 of the Evidence Act. For these reasons I am of the view that the prosecution has failed to prove that forgery in the bilty was committed by the appellant and none else. Since the main offences under section 420/468, P.P.C. have not been. proved against the appellant therefore, there seems to be no justification to hold him guilty of misconduct punishable under section 5(21 of the Prevention Corruption pct, 1947. For what has been said above, there being no satisfactory is to uphold the conviction of the appellant, he is given benefit of doubt and acquitted of the charges. He is on bail and stands discharged of the bail bonds. M.B.A./A-352/L Appeal accepted.