1986 P Cr (PLP)

As a preliminary argument the learned counsel for the appellant attacked on the inordinate delay made in lodging the F.I.R. No doubt the case was registered with police nearly four years after the loss of certain record and commission of fraud in respect of Government money was brought to the notice of Railway authorities. The only explanation furnished for the delay is that the said authorities kept on making enquiries at their own level. This explanation is far from convincing The delay in lodging F.I.R. has always been viewed with suspicion The next contention of the learned counsel for the appellant was that in the departmental enquiries the appellant was fully exhonerated. The appellants' statement to this effect to borne out by the S.I. Abdul Rahman. It seems after the Railway authorities concerned failed to establish the charge of misappropriation against the appellant and other co‑accused in departmental enquiry held against them, they took the matter to police. The appellant's exhoneration in the departmental proceedings cannot be completely ignored while appraising the evidence brought against him in this case. The appellant was admittedly a cash clerk at the relevant time whose duty was to make disbursement of the amount of T.A. Bills to the employees named in the said Bills. S.A. Hameed (P.W.10) who was working as Divisional Pay Master, P.W.R. at Karachi has stated in his evidence that on 28‑8‑1965 he entrusted Rs.13,788.58, the amount of 12 Bills to the appellant for making payment to the concerned. employees. According to him the said amount included two sums of Rs.1,464 and Rs.1,460 of the disputed Bills. His evidence further shows that the appellant was required to disburse the amount entrusted to him amongst the employees mentioned in the Bills in accordance with the rules. He further states that the payment was to be made in presence of witnessing officer named in the Bills. At this stage it may be pertinent to refer to the statement of the appellant recorded under section 342, Cr.P.C. It appears from the questions put to the accused that out of the total amount of Rs.13,788.58 entrusted to him for disbursement, he is alleged to have withheld the payment of only two sums of Rs.1,464 and Rs.1,460 of the disputed Bills. It is further revealed from the questions put to him that the said amount (Rs.1,464 and Rs.1,460 = Rs.2,924) was required to be paid to P.Ws. Abdul Manan (P.W.1), Muhammad Younis (P.W.2), Muhammad Yasin (P.W.6), Jamal (P.W.3) and others but the same was not paid to them. They have all been produced in evidence. Apart from the above witnesses, the others who were to receive payment but had not received the same are Bashiruddin (P.W.4), Ghulam Rasool (P.W.5) and Muhammad Saleh (P.W.7). They have no doubt stated with one voice that no payment of T.A. was made to them nor were they entitled to any T.A. However, the appellant has taken a stand that he had made payment in accordance with the rules to the employees specified in the T.A. Bills in presence of the witnessing officer also named in the said Bills. As stated above the aforesaid seven witnesses were mentioned in the T.A. Bills as entitled to receive the payments. Since they have denied having received any such payment and in their denial is trustworthy, the question would arise to whom the appellant had made the payment. Of course the appellant has attributed no motive to them for giving false evidence. The learned counsel for the appellant, however, contended that as the cash clerk the appellant had to disburse payments amongst thousands of Railway employees and, therefore, it was impossible for him to know each employee personally. The learned counsel was therefore, of the view that precisely for this reason that the rules required the disbursement to be made by the cash clerk only to the employees whose, identity was certified by the officer named in the relevant Bill. In support of iris view he referred to the rule 47 of. Officer Manual of General Accounts Branch, Pay Office, 1952. Clause (a) of this rule requires the officer submitting the Bill to specify place oh payment as well as the officer before whom the payment is to t.: made. According to clause (b) it is responsibility of the witnessing officer to certify the identity of employees to whom payment is to be made. Clause (c) makes it incumbent on the pay clerk to make payment in presence of officer named in the Bill. As required by the above rule, co‑accused Abdul Razak was named in the T.A. Bills as authorized officer to certify the identification of the payees. Instead of examining him as witness, Abdul Razak was sent up as co‑accused alongwith the appellant to face the trial. He has, however, been acquitted by the impugned judgment. The perusal of his statement under section 342, Cr.P.C. reveals that he has denied having certified the identification of the payee witnesses. Even according to handwriting expert Abdul Majeed (P.W.9) the specimen signature of Abdul Razak does not tally with the signature allegedly made by him on the documents in question. The prosecution case is that co‑accused Ahmed Khan had forged the signature of Abdul Razak for the purpose of identification of the payee employees. It appears from the statement of co‑accused. Ahmed Khan under section 342, Cr.P.C. that he has denied that any of the documents shown to him in the Court in his handwriting. No witness has been examined to say that he saw him forging the signature of Abdul Razak. He has also been acquitted of all charges including obviously the charge of forging Abdul Razak's signature. His acquittal clearly shows that ‑he was not guilty of forging the signature of Abdul Razak. If he had not forged his signature, the presumption would be that Abdul Razak had himself signed the certification of the payees. His denial as co‑accused cannot be used as evidence against the appellant particularly when he has not implicated himself. Assuming that he too had not certified the identification of the payees the question would arise who then played that role in his guise. Thus, the prosecution have failed to establish beyond reasonable doubt that Abdul Razak had not made the identification of payees. On the other hand the appellant does not claim to personally Know the payees nor there is an iota of evidence to show that the aforementioned witnesses, who have denied having received any payment were personally known to the appellant. Consequently he can only held to have made payment in presence of witnessing officer namely Abdul Razak named in the Bills, as the certification as, to identity of the payees was purported to bear signature of the said Abdul Razak. There is no allegation that the appellant had forged the signature of Abdul Razak. As stated above the prosecution allegation that co‑accused Ahmed Khan had forged the signature of Abdul Razak also fell through for want of proof. In these circumstances when there is no proof of Abdul Razak's signature having been forged, there is reasonable possibility that he had himself signed the certification of the employees' identity. His own denial as co‑accused will be of no consequence. Apart from above the prosecution have failed to prove as to who prepared the bogus T.A. Bills and how they were got passed and how the money was drawn on 'the said Bills. There is absolutely no evidence to the effect that the appellant was associated with any of these stages. Consequently he cannot be held to have any knowledge about preparation and passing of the bogus T.A. Bills nor can he be held to know that even money was drawn dishonestly on such bills. In absence of such material it is difficult to believe that he did not m n. the payment to the persons duly identified by the authorised office. This cannot be believed for the additional reason that there was no complainant against the appellant with regard to disbursement of the greater portion of the amount entrusted to him. In other word's out of Rs.13,788.58 he paid Rs.10,864.58 to right persons. As stated by the P.W.S.A. Hameed, the appellant was required to enter the T.A. Bills in the cash book before making payment to the employees concerned. According to him the necessary entries with regard to the two disputed Bills have actually been made by the appellant in the cash book. While producing the cash book maintained by the appellant up to 31st August, 1965, he has testified that the said entries are in the handwriting of the appellant. This provides further clue as to the state of the appellant's mind. If he had guilty intention inasmuch as that he intended to misappropriate the disputed portion of the amount entrusted to him for disbursement, he could not be expected to make straight entries in the cash book. In a criminal case the burden always lies on the prosecution to prove their case beyond reasonable doubt. On the other hand if the accused succeeds in showing that the plea taken by him appeals to a reasonable mind inasmuch as that it may not be altogether untrue, the benefit of the impression that such plea creates will be given to the accused who on that basis can even be acquitted. To reinforce this view, the learned counsel for the appellant has drawn my attention to some celebrated authorities which have been consistently followed by the Courts. In the famous case of Safdar All v. The Crown P L D 1953 FC 93 the then Chief Justice of the Federal Court of Pakistan, Abdul Rashid C.J. expressed his views as under:‑ "In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt." In another case reported as Muhammad Aslam v. The Crown PLD 1953 F C 115, the view taken was that even if the accused fails to prove his special plea aiming at bringing his case within an exception as required by section 105, Evidence Act, but he succeeds in creating reasonable doubt in respect of his guilt, the Court is bound to give benefit of doubt to the accused. The third case cited in this connection is of Shamir v. The State P L D 1958 S C (Pak.) 242 in which it was held that the accused was entitled to acquittal if the plea of self‑defence raised by him received support from prosecution evidence to the extent that it was reasonably possible. The next case in the above line is of Waris and 9 others v. The Sate P L D 1981 S C 127 wherein it was held:‑ "And if from the material on record it can be established that the defence version is reasonably, possible, then‑the accused can be given due benefit on the basis of the rule laid down in Safdar Ali's case P L D 1953 F C 93." If the entire, material brought on record of the instant case is judged in the, light of the principles laid down in the above authorities, the irresistible conclusion that can be drawn will be that the defence plea taken by the appellant is reasonably possible. According to him he had disbursed the amount entrusted to him to the employees specified in the T.A. Bill as per identification of the authorised officer named in the said Bills. As has been pointed out above, it is the prosecution's own case that the appellant had made the necessary entries in the relevant register showing the disbursement of the amounts of the two disputed Bills' to the employees mentioned in the Bills. There is no evidence to show that the said employees were personally known to the appellant. The other who was authorised and named in the Bills to identify the employees for guidance of the appellant was co‑accused Abdul Razak. Since he figured as accused he could not be produced by the prosecution in evidence to say that he had not certified the identity of the payees. His denial as co‑accused cannot be used as evidence against the appellant. The prosecution's attempt to prove that co‑accused Ahmed Khan had forged the signature of Abdul Razek also met with failure as despite the evidence of handwriting expert the trial Court acquitted him of all charges including obviously the charge of forgery. The prosecution have also failed to prove dishonest intention on the part of the appellant as there is no evidence on record to establish that the appellant was associated with any other employee for committing the fraud by first preparing the bogus T.A. Bills and then by getting them passed and then drawing the money specified in the Bills. There is also no evidence to the effect that he had agreed to show the disbursement of the money entrusted to him to have been made to the fictitious persons. There is also no complaint against the appellant about disbursement of the larger portion of the amount entrusted to him. In the context of above circumstances the plea taken by the appellant though not established beyond reasonable doubt, is reasonably possible and benefit of doubt will go to the appellant. Accordingly the appeal is allowed and the appellant is acquitted. He is reported to be on bail. His bail bond stands cancelled. S.G.D. Appeal allowed.