1990 PLP 2152 (MLD)

The appellants alongwith Muhammad Akhtar acquitted co-accused were tried by the learned Special Judge Anti-Corruption (Central), Rawalpindi, on the charge of cheating, forgery and using forged document as genuine, punishable under sections 420. 468 and 471, P.P.C., respectively, as also on the charge under section 5 of Act II of 1947 for having derived pecuniary advantage to the tune of Rs.5, 121 by abusing their official position. On the conclusion of the trial. vide his judgment, dated 30-4-1981. he acquitted Muhammad Akhtar co-accused of all the charges but convicting the appellants under sections 420. 4fA and 472, P.P.C., sentenced each of them to nine months' R.I. and a fine of Rs.3,000 each or in default of its payment to further undergo nine months each.

2. The prosecution story in brief was that during 1977-78 Muhammad Suleman, Cable Technician and Aurang7.eb Lineman, appellants, both employees of T & T Department, were engaged in laying telephone cable from Chakwal to PAF Murid Exchange under the immediate supervision of Muhammad Akhtar acquitted accused and under the general supervision of Muhammad Irshad appellant, Assistant Engineer of the said department. One of the duties of the latter was to physically check the presence of labourers/coolies working at the site and their attendance in the muster rolls and disbursement of wages to them.

3. During that period FIA, Rawalpindi, received a secret information that the appellants and their co-accused were using deceitful means by employing fake labour to execute the said work. The preliminary enquiry was, therefore, conducted. During this enquiry it transpired that Muhammad Arshad appellant in collusion with Suleman and Aurang7eb appellants had forged muster rolls by fictitiously showing the names of certain coolies employed on daily wages, having been paid Rs.5,120 while none of them had been actually employed and in this way they all the three misappropriated this amount. The muster rolls were prepared by Muhammad Suleman and Aurangzeb appellants and were verified by Irshad Ahmad. These papers were taken into possession by the police and were sent to Technical Director, FIA, for soliciting his expert opinion. He opined that all the thumb impressions on the muster rolls were identical and were most probably affixed by one and the same person and as such they were not genuine. Consequently, a case was registered against the appellants and their acquitted co- accused under the aforesaid provisions of law and on the completion of investigation they were prosecuted, tried and ultimately the appellants were convicted and sentenced, while Muhammad Akhtar their co-accused was acquitted by the impugned judgment. The convicts filed this appeal.

4. It was argued on behalf of the appellants that they were not on good terms with Mukhtar Ahmad (P.W.4) who was the prime mover and the star witness of the prosecution in this case. According to the learned counsel, his evidence, besides being that of an inimical witness, even otherwise did not inspire confidence because on 31-12-1977 when he went for surprise checking, he found two labourers or coolies present and the rest absent but by that time nobody had been marked present or absent in the muster rolls and he simply presumed that those labourers/coolies who were entered in the muster rolls but were not present, were also not present on previous days of the month and he marked them absent and wrongly came to the conclusion that all the entries were fake.

5. It was contended that the confession made by Aurangzeb appellant before Mukhtar Ahmad P.W. in the mosque could not be read in evidence in view of the provisions of section 24 of the Evidence Act because the so-called confession had been made before a person in authority. Finally, it was urged that the report of Technical Director of F.I.A. about the examination of the thumb impressions on the muster rolls was not per se admissible in evidence and it could not be read in evidence against the appellants without calling and examining him as a witness.

6. There is nothing in the statement of Mukhtar Ahmad (P.W.4), who was Divisional Engineer Telephones, that he was on inimical terms with the appellants due to some service matters. Therefore, his testimony cannot be discarded on that account and the contention of the learned counsel for the appellants in this respect is without any substance.

7. However, there is some force in his argument that this witness had no justification to presume that those labourers or coolies who were not present at the time of his surprise visit on 31-12-1977, had been absent during the whole month and their names had been fictitiously entered in the muster rolls. For coming to the conclusion he alleged a verbal enquiry made by him from the mason employed for the job and had no record to substitute his findings in this respect because he did not record the statement of any mason.

8. The witness had conducted surprised check in the afternoon of 31-12-1977 and by that time no entry had been made of this date in the muster rolls by Aurangzeb or by Muhammad Suleman appellants. At that time only two skilled workmen and two coolies were on the job and rest of the mustered labour was absent. No presumption could be raised as what sort of entry was to be made on that date by the mustering official in the muster rolls about the presence of the mustered labour. It is possible that after the close of working hours they might have shown the presence of only those persons who were actually working. To prove the fact that the mustering official had been making fictitious entry in muster rolls about the presence of certain skilled and unskilled labourers, the statement of the mason, which the witness had relied upon for his conclusion, was necessary and he should have been examined by the investigating agency and should also have been produced as a prosecution witness but this course had not been adopted. It was, therefore, a serious omission on the part of the prosecution to prove the allegations of forgery of the official record against the appellants and the bare statement of the said witness with reference to the oral statement of the mason was not enough.

9. As regards the confessional statement (Exh.P.4/11) made by Aurangzeb appellant before Mukhtar Ahmad Divisional Engineer (P.W.4) in terms of section 24 of the Evidence Act, it appears that this statement was written by the former in the presence of the latter in some mosque at Chakwal on 31-12-1970 where both of them had gone to offer prayers and after the prayers the latter had asked the former, while still sitting in the mosque, to tell him as what had actually happened. In reply to the question of the defence the witness replied that he did not remember having said to Aurangzeb appellant that "you are sitting in the House of God tell me the truth". On the question of the admissibility of confessional statement made by Aurang7eb appellant before Mukhtar Ahmad Divisional Engineer (P.W.4), the learned trial Judge was of the view that it was admissible in evidence because there was nothing on the record to show that it had been obtained under some threat or by inducement or promise held out by the latter to the former, though the latter was a person in authority, and for that reason the provisions of section 24 of the Evidence Act were not applicable to this case.

10. The opposite view was that the confessional statement (Exh.P.W.4/11) was inadmissible in evidence under section 24 of the Evidence Act because it had been extracted from Aurangzeb appellant, who was a very junior official, by Mukhtar Ahmad Divisional Engineer (P.W.4), who was a very senior official of his department and a person in authority, in a mosque by inviting his attention to the fear of God.

11. Section 24 of the Evidence Act makes the confession of an accused person irrelevant in criminal proceedings if the making of such confession appears to be by inducement, threat or promise, having reference to the charge against the accused person, proceedings from a person in authority and sufficient, in the opinion of the Court, to give the accused person a ground for supposing that by making it he would gain any advantage or avoid any evil of temporal nature in reference to proceedings against him". It is obvious that the statement (Exh.P.W.4/11) made by Aurangzeb appellant was in his own handwriting and was written while sitting in a mosque at Chakwal in the presence of Mukhtar Ahmad Divisional Engineer (P.W.4) who was decidedly a person in authority. There is, however, nothing on the record to suggest that Mukhtar Ahmad (P.W.4) posed any threat to Aurangzeb appellant or caused any inducement or gave any promise to him for making that statement. The mere fact that it was written in a mosque and Mukhtar Ahmad P.W. allegedly invited his attention to the fear of act would not render the confession irrelevant or inadmissible in evidence because whatever he asked him was not the kind of exhortation or persuation which could possibly give him (accused) the ground to suppose that he would be "gaining any advantage or avoid any evil of temporal nature . The fear of God, which the witness allegedly wanted to invoke for Aurangzeb appellant, was for persuading him to speak truth, which was legally permissible because his exhortation could not possibly lead to falsehood but to truth. The reason for the irrelevancy or inadmissibility of confession is based on a presumption that a confession made by an accused on account of inducement, threat or promise would be false as it would be for the purpose of gaining any advantage or avoiding any evil of wordly nature by him, but where a spiritual hope can lead to truth, the confession becomes relevant and receivable in evidence as it goes out of the pale of section 24 ibid. Therefore, in my opinion, the confession (Exh.P.W.4/11) allegedly made by Aurangzeb appellant' before Mukhtar Ahmad P.W. was admissible in evidence despite his being a person in authority.

12. In spite of the receivability of the confessional statement attributed to Aurangzeb appellant, the prosecution cannot avail it of for securing his conviction because it was proved by Mukhtar Ahmad (P.W.4) and not by other evidence. It was allegedly' written by Aurang7eb himself and from the trend of cross- examination it appears that this writing was not denied by him but the fact remains that during the course of his examination under section 342, Cr.P.C. It was not put to him. Therefore, he was hot given the opportunity of explaining his position vis-a-vis his confession and for that reason it could not he used against him.

13. Another item of proof against the appellants is the opinion of Finger print Expert (Exh.P.W.6/2) which was brought on the record and proved by Junaid Sultan Khan, Inspector F.I.A. (P.W.6). It indicates that Malik Muhammad Ghaus Inspector, Finger-print Expert, F.I.A., Islamabad, had compared certain thumb impressions on the muster rolls of Work Orders Nos.34 and 29 and there is no opinion of this expert about Work Order No.30 (Exh.P.W.3/4), the authenticity of which had been doubted by Mukhtar Ahmad (P.W.4) and formed the main basis for the prosecution of the appellants. This witness (P.W.4) had said nothing about the presence or otherwise of the mustered labour of Work Order No.34 and with regard to Work Order No.29 he had stated that he did not delete the name of any labourer, meaning thereby that he did not doubt the correctness of this Work Order and the relevant muster rolls. Therefore, the opinion of the Finger-print Expert had no relevancy so far as muster roll of Work Order No.30 prepared by Aurangzeb appellant was concerned. As regards admissibility of the, document (Exh.PW.3/4), if its author had not formally been examined as 3 prosecution witness, section 510, Cr.P.C. makes his report or opinion per se admissible without calling him to formally prove it. In suitable cases the Court, however, has the power to examine the expert either of its own accord or can the request of any party. This item of proof was, therefore, also not helpful to the prosecution.

14. Lastly, the conviction and sentence of the appellants suffer from at serious technical defect inasmuch ac the learned trial Judge convicted and sentenced all the three appellants under sections 420, 468 and 470, P.P.C., without further elucidating as how much sentence he was awarding to each of the appellants for each of the offences. It is, therefore, not ascertainable as how much sentence each appellant was awarded for each of the three offences for which his conviction was recorded. This cumulative sentence is not sustainable at law due to. its uncertainty and impracticability.

15. Against Aurangzeb and Muhammad Suleman appellants, particularly the former, it appears to be a good case for retrial and I would have directed accordingly but due to the lapse of 12-13 years to the alleged commission of offences and 7-8 years to the pendency of this appeal coupled with the lesser amount of money involved, I do not consider it proper to direct their retrial. Therefore, in view of the above the appeal is accepted, the conviction and sentences of the appellants are set aside and they are acquitted on benefit of doubt.

16. However, if Aurangzeb and Muhammad Suleman appellants are still in service and departmental proceedings have not already been taken against them, they may now be proceeded against departmentally. M.B.A./M-2317/L Appeal accepted.