P L D 1952 Baluchistan 1 (PLP)

R. K. M. SAKER, J. C.‑This is an appeal under the provisions of section 410, Criminal Procedure Code against the judgment of the Sessions Judge in Baluchistan, dated 19th May 1951 in which he found the convict‑appellant guilty of offences under sections 467/471, Pakistan Penal Code and sentenced him to three years' rigorous imprisonment on each count ,(sentences to run concurrently) and a fine of Rs. 1000 or in default to nine months' further rigorous imprisonment. The brief facts of this case, as alleged by the prosecution, are that Muhammad Umar (P. W. 3), who was working in the firm "Abdur Rahman‑Abdul Ghani", Kandhari Bazar, Quetta, was instructed by the Manager of the firm to go to the Sales‑tax Office in order to deposit the sum of Rs. 3,074 5‑0 assessed on account of sales‑tax up to 13th June 1949. On 14th or 15th July, 1949, Muhammad Umar went to the Income tax Department of the Sales‑Tax Office and there he met the convict‑appellant, who was at that time working as Income‑tax Inspector. Some talk took place between Muhammad Umar and the convict‑appellant about the deposit of the amount towards the sales‑tax and it is alleged that the convict‑appellant told Muhammad Umar that there was no need to deposit the money in the Bank and that if half of the amount in question, i. e., Rs. 1,537 was paid to the convict- appellant he would give a treasury challan for the full amount assessed as sales‑tax. Muhammad Umar consulted his Manager Abdus Sattar who told him that he would inform the Police. Abdus Sattar and Muhammad Umar both went to S. Yar Muhammad Shah, Sub‑Inspector in the Special Police Department, and informed him about the intention of the convict‑appellant. The Sub‑Inspector Police directed them to file a written report with him as soon as the whole transaction was completed. On 23rd July 1949 the appellant went to the shop of Abdur Rahman‑Abdul Ghani and there he had a talk with Abdus Sattar and Muhammad Umar. He gave an assurance to both of them that he would look after the whole affair satisfactorily and it would not cause any inconvenience to the firm. After this talk, the firm received a notice from the Sales‑tax Officer for inspection of their accounts on 25th July 1949. On the same date the accounts were shown and a sum of Rs. 3,074‑5‑0 was assessed as sales‑tax. After one or two days the firm received challans from the Sales Tax Officer for depositing the same in the Imperial Bank. The appellant in the meantime had left for Karachi and returned on 27th July 1949 when he met Abdus Sattar and Muhammad Umar. He directed them to hand over the four copies of the challan to him for completion. On 1st August 1949 the appellant informed Muhammad Umar that he had completed the four challans and would hand over the same in the house of Abdus Sattar. On the morning of 2nd August 1949 the appellant was invited to the house of Abdus Sattar for lunch at 1 p. m. In the meantime a written report had been made by Abdus Sattar to Syed Yar Muhammad Shah. By previous arrangement the Sub‑Inspector and Captain Saleh Muhammad, City Magistrate, Quetta, sat in an adjoining room in the house of Abdus Sattar on that day. Currency notes to the value of Rs. 1,537, which were eventually to be handed over to the appellant, were produced before the City Magistrate who recorded their numbers. The appellant then arrived and had lunch after which he took out a receipt of the Imperial Bank, Quetta from his pocket and handed it over to Abdus Sattar who then passed the notes in question to the appellant. The Magistrate and the Sub‑Inspector then entered the room and recovered the currency notes from the person of the appellant. They accompanied the appellant to the office of the Income -tax Department and recovered the challans there and three stamps showing the seals (1) "Received payment for Imperial Bank of India Agent, Quetta", (2) "Received" and (3) "30th July 1949" from the house of the appellant at his instance. Before proceeding to hear arguments, the learned Public Prosecutor drew my attention to the fact that the convict -appellant had been acquitted of the offence of accepting illegal gratification under section 161, Pakistan Penal Code and requested me to use the powers conferred by section 439, Criminal Procedure Code and remark on the order of acquittal. It would clearly be improper for me to accede to this request for if the Crown is dissatisfied with the order of acquittal, it is at liberty to lodge an appeal in accordance with the provisions of section 417, Criminal Procedure Code. Moreover, subsection (5) of section 439, Criminal Procedure Code is a mandatory provision of law prohibiting a Court from exercising its powers of revision in cases where an appeal is competent but has not been lodged. While the prayer before me is not to set aside the order of acquittal, I am not disposed, in this judgment, to offer any remarks on the propriety or otherwise of the order of acquittal since these remarks would be tantamount to prejudging the case and would be prejudicial either to the Crown or to the appellant in the event of an appeal being lodged under section 417, Criminal Procedure Code. I will now proceed to consider the appeal before me. Learned counsel for the convict‑appellant has assailed the judgment of the lower Court on the following grounds. He contends that previous sanction as required by section 6 of the Prevention of Corruption Act (Act II of 1947) is absent in that the various sanctions on the record were not present at the time the Court took cognizance. He further contends that there has been a misjoinder of charges ; and finally he argues that the convict‑appellant has been improperly convicted on the facts on record. I propose to deal with these arguments in the order in which they have been set forth here. The record discloses that there are no less than three documents on the file purporting to accord sanction to pro secution of the convict‑appellant and it will be necessary to examine them in detail to see whether they are defective or not. The first sanction is dated 22nd August 1949 but was subsequently cancelled by another order dated 9th September 1949 which reads as follows :‑ "I accord my sanction to the prosecution of Mr. S. A. Khan, Inspector of Income Tax, `B' Division, Quetta in respect of the charges of bribery and corruption, etc., which are now under investigation by the Special Police, Quetta. The Income‑tax Officer, `B' Division, Quetta will give every assistance to the police in this case and report on the action being taken from time to time.

2. My order of even number dated 22nd August 1949 is hereby cancelled. (Sd.) Commissioner of Income‑tax, Karachi, Sind and Baluchistan. Two questions in issue arise. Firstly, was this order defective and, secondly, if not defective, was it before the Committal Magistrate when he took cognizance ? Section 6 of the Prevention of Corruption Act does not define the manner in which the order of sanction shall be worded though learned counsel) for the convict‑appellant contends that the order must beg defective since it does not specify an offence under section 5 of the same Act. But the fact that the sanction mentions `charges of bribery and corruption, etc., though loosely worded, can only have one meaning. The competent authority gave sanction to the prosecution of the convict‑appellant for specific criminal charges. The provision of section 197, Criminal Pro cedure Code are also attracted in this case, and while no rulings are apparently in existence on the definition or application of section 6 of the Prevention of Corruption Act, it is an accepted principle that the sanction required by section 197, Criminal Procedure Code, is not required in any particular form. Since the convict‑appellant was also charged with an offence under section 161, Pakistan Penal Code, sanction to his prosecution was equally necessary under section 197, Criminal Procedure Code. It was held by the Madras High Court that the authority which gives sanction must specify the offence ; but that does not mean that the particular sanction of the Penal Code should be mentioned. If the facts mentioned in the sanction point to a particular offence the terms of the section are complied with. In my view the order of the Commissioner of Income‑tax, dated 9th September 1949 is therefore not defective. As for the date on which the Committal Court took cog nizance the record discloses that the challan was presented on 11th October 1949. It follows therefore that the Court did not take cognizance until after the requisite sanction existed. As for the misjoinder of charges, the charge‑sheet reads as follows :‑ First.‑That you, on or about the 2nd day of August 1949 at Quetta being a public servant in the Sales and Income- tax Department accepted from Abdus Sattar of the firm Abdur Rahman‑Abdul Ghani of Quetta directly a sum of Rs. 1,537 by way of illegal gratification as a motive for forbearing to do an official act and thereby committed an offence under section 161, Pakistan Penal Code read with section 5 of Act II of 1947. Secondly.‑That you, on or about the months of July and August 1949 at Quetta forged the documents Exh. P/A, P/B and P/C purporting to be receipts acknowledging payment of money and thereby committed an offence punishable under section 467, Pakistan Penal Code. Thirdly.‑That you, on or about the 2nd day of August 1949 fraudulently and dishonestly used as genuine receipt Exh. P/A which you knew or had reason to believe at the time you used it to be a forged document and thereby com mitted an offence punishable under section 471, Pakistan Penal Code. Three charges only were framed and it is necessary to exa mine the wording of the first charge. Learned counsel for the convict‑appellant contends that the wording of this charge shows that Saadat Ali Khan was charged with two distinct offences under two different enactments and for which different punishments can be imposed. He therefore claims that since the convict‑appellant has been tried for more than three offences at one trial, the misjoinder of charges is an illegality in contravention of the provisions of section 234, Criminal Procedure Code and that the illegality being patent is not curable by virtue of section 537, Criminal Procedure Code. My attention has been drawn to the ruling reported in 1950 Lah. p. 479 in which Muhammad Khurshid Zaman, J. held, inter alia, that "I find it extremely difficult to hold that an offence under section 5 of the Act is an offence of the same kind in relation to offences under section 161". I am in respectful agreement with these views, for while the offences defined in section 161, Pakistan Penal Code and section 5 of Act II of 1947 may, at first sight, appear to be similar, the main emphasis in section 5 is placed on the crimi nal misconduct of a public servant. This section then proceeds to define various types of criminal misconduct. These are far more exhaustive than the offence of accepting illegal grati fication as defined in section 161, Pakistan Penal Code. I cannot, however, accept the argument that the phraseo logy of the first charge should be read as meaning that the convict‑appellant was charged separately and independently with offences under section 161, Pakistan Penal Code and section 5 of the Act. S. A. Khan has been acquitted on this charge, but had he been convicted it would be reasonable and proper to assume that he would have been sentenced under the first section, namely section 161, Pakistan Penal Code, and not under both. The only interpretation I can place on the words "read with" appearing in this charge is that operative section was the section of the Penal Code while section 5 of the Act would be read in conjunction with it. I consider the phraseology is unfortunate and is an irregularity, since there is no provision in any law which allows of the joining of separate and distinct offences under one charge. Where charges have some semblance of similarity though I have held in this case that they are distinct and separate it would be proper either to frame separate charges, provided the pro visions of section 234, Criminal Procedure Code are not contravened, or to frame 'alternative charges when the Court is doubt as to the exact offence which the accused may have committed. The irregularity in this case is, in my view, curable by section 537, Criminal Procedure Code for it has not occasioned a failure of justice. On the subject of charges, it was further argued that in relation to the charge under section 467, Pakistan Penal Code the convict‑appellant had been found guilty of forging three documents and that since the act of forgery in relation to each document was an act complete in itself, there had been mis joinder of charges. The documents in question are three treasury challans which, according to the rules, must be pre pared in triplicate. The forging of one only would therefore have been valueless. The learned Public Prosecutor relies on section 235, Criminal Procedure Code in regard to this charge, There can be no doubt that when, for the purpose of commit ting the offence of forgery, it is necessary to forge more than one document ; and when the act of forging each document was a series of acts forming the same transaction, section 235 of the Criminal Procedure Code will apply. It might have been a different matter if three separate challans had been forged on different occasions for different purposes. But there one challan and two copies of it were forged with the object of causing damage or injury as defined in section 463, Pakistan Penal Code. It was certainly not the intention that the three forged documents could, or would, have caused separate injury in themselves thereby charging the convict‑appellant with three separate and distinct offences under 467, Pakistan Penal Code. I now come to the facts of the case. Learned counsel for the convict‑appellant has not attempted to cast doubt on the entire prosecution case at large, but has endeavoured to draw certain inferences from the evidence as well as to point out certain alleged discrepancies. When the trap was laid and Rs. 1,537 recovered from ‑the convict‑appellant, learned counsel points out that the Magis trate stated the appellant said he was borrowing the money. This statement of the convict‑appellant is supported by two defence witnesses (D. Ws. 3 and 5). It is therefore claimed that the money was a loan and not a bribe. Learned Public Prosecutor, correctly in my view, argues that even if Saadat Ali Khan was in need of money and wished to borrow Rs. 1,500 it would be preposterous to assume that the firm would pay him Rs. 1,537 and not Rs. 1,500 if that was the sum required. I cannot accept this argument on behalf of the convict‑appellant for there is ample evidence to indicate that the convict‑appellant was prepared to accept half the total sum due as sales tax payable by the firm in return for a receipt in full discharge. Excluding the odd annas Rs. 1,537 is exactly half of Rs. 3,074 which is the sum entered in the forged challans. As for the evidence of the manufacture of the stamps, it is claimed that the maker (P. W. 1) would never have des patched them to a private address in Quetta when the convict appellant posed as the Agent of the Bank. I see nothing in this to discount the evidence about the preparation of the stamps and their despatch to Quetta. The fact remains that the stamps were recovered from the house of the convict appellant and that he can give no explanation of possession of such incriminating articles. I am certainly not prepared to believe that Usmani (P. W. 2) may have planted them on the convict‑appellant, for there is no evidence at all to support this contention. As for the expert evidence about handwriting and the stamps, the expert Mr. Bhan, called for the defence, can only support the case for the convict‑appellant in one respect. This relates to the dissimilarity on the impression on Exh. P/D with the forged challans. It is, however, clear that this Exhibit was made from a sample stamp and not from the actual stamp which is also now an exhibit. As for the evidence on handwriting, it would be extremely dangerous to rely entirely on the evidence of experts in this respect. While an opinion may be expressed as to the probabilities of one person being responsible for forging a signature or not, this will be a matter of opinion only and cannot, by any stretch of imagination, be taken as firm evidence of proof. I therefore propose to treat the evidence of both handwriting experts with extreme caution. Inferences can, however, be drawn from other evidence about the forged challans. The most important witness is Muhammad Umar, P. W. 3, who states that the convict appellant would hand over the challans for full discharge if half the amount were paid to him. The convict‑appellant can make no defence about the manner in which he came into possession of these challans which were complete in all respects. There is also the evidence of Mr. Hamid Ahmad Khan, the Head Cashier of the Bank, who denies his signature on the three challans. Moreover, he states there is no entry in the books of the Bank about them. Even without the evidence of the handwriting experts, there can be no denying that the challans in question were bogus ; there is the evidence of the maker of the stamps; the recovery of the stains from the house of the convict‑appellant, and finally the evidence of the Bank Cashier. When taken together, this evidence can only lead to the irresistible conclusion that it was the convict‑appellant who was responsible for the preparation and illegal use of these bogus challans and that he has been properly found guilty of the offence of forgery under section 467, Pakistan Penal Code. As for the charge under section 471, Pakistan Penal Code there is equally irrefutable evidence about the guilt of the convict‑appellant and I consider he has been properly convicted. Learned counsel for the convict‑appellant finally argues that the sentence is unduly severe. The evidence, however, discloses that the convict‑appellant acted in a calculated manner with the intention to defraud. He has been found guilty of two offences for which the heaviest penalties can be imposed. In all the circumstances, I am not disposed to think that the sentences passed are in the least severe and I am not prepared to reduce them. After reviewing the case at large, I am satisfied that justice has been done and the appeal is accordingly dismissed. As for the order of the learned Sessions judge .regarding payment of expenses to the expert defence witness, it would be improper to order part payment from the fine and direct that the sum of Rs. 300 will be paid by the Court while the fine, if realised, will be credited to Government. A. H. Appeal dismissed.