P L D 1961 (W (PLP)

Dates of hearing : 5th and 17th October 1960. Muhammad Akbar was tried by Qazi Ghazanfar Hussain, Special Judge, Lahore, under sections 379, 467, 468 and 420 P. P. C. and section 5 (2) of the Prevention of Corruption Act, 1947. The learned Special Judge convicted him only under section 467, P. P. C. and sentenced him to three years' rigorous imprisonment and a fine of Rs. 16,(00, or in default to undergo further rigorous imprisonment for two years. The convict has appealed against his conviction and sentence.

2. The facts of the case are briefly as follows. In the year 1957 the accused was posted as an overseer in the third Electric Construction Sub‑Division, Lahore. Mr. Muhammad Saleem Gillan (P. W. 2) was the Executive Engineer, Construction, at Lahore in those days. There were three Sub‑Divisions under him including the third Electric Construction Sub‑Division. Before April 1957, Mr. Azmat Mir was the S. D. O. in this Sub‑Division. In June 1957 Mr. Ghulam Haider Butt (P. W. 20), S. D. O. took charge of the Sub‑Division. In December 1957 the accused was transferred to another Sub‑Division. Cheque book Exh. P. 23 containing 100 cheques forms was received by Mr. Ghulam Haider Butt P. W. on the 20th of August 1957. This cheque book remained in the custody of the S. D. O. who used to keep it in a safe. One key of the safe used to remain with the S. D. O. and the other with the Sub‑Divisional Clerk. The S. D. O. used to make payments to the contractors and labourers by issuing cheques from this cheque book. On the 10th of June 1958, Shafiq Ahmed (P. W. 19) was posted as Sub‑Divisional Clerk. When he took over, he found that 52 cheques out of the cheque book Exh. P. 23 had already been issued. He, however, did not care to count the unused cheques. On the 6th of August 1958, he incidentally counted the unused cheques and found that Cheque No. 74792 was missing and its counter‑foil Exh. P. 23/A was lying blank in the cheque book. He accordingly submitted the report Exh. P. 6. to the S. D. O. On the receipt of this report Mr. Ghulam Haider Butt sent telegrams to the State Bank and the treasury and on the following morning he went to the State Bank of Pakistan where he learnt that the cheque had already been encashed for Rs. 19,100 in favour of Firm Shakoor & Company. This company had never worked for this Sub‑Division and no cheque had ever been issued by the S. D. O. to that firm. The cheque Exh. P. C. was also shown to him in the office of the Deputy Director, Accounts and Works. This is the cheque which relates to the counter‑foil Exh. P. 23/A. On seeing the cheque, he found that the cheque was in the band of the accused. He accordingly informed the Executive Engineer Mr. Muhammad Saleem Gillan about it. On the 7th of August, 1958, be made the report Exh. P. A to the Senior Superintendent of Police, Lahore. During the course of the investigation, certain recoveries were made and the specimen of the handwriting of the accused were taken and the cheque and the specimen were got compared by Malik Muhammad Ashraf (P. W. 28), Assistant Director, Forensic Science Laboratory, who is a handwriting expert. After obtaining the sanction Exh. P. Z. for the prosecution of the accused, he was sent up for trial before the Special Judge.

3. In support of the prosecution case twenty‑five witnesses were examined at the trial. The accused denied the removal of the cheque from the office of the S. D. O. He also denied the forging and encashing of the cheque Exh. P. C. He pleaded that he had been falsely implicated in the case by Mr. Muhammad Saleem Gillan, Executive Engineer, on account of previous enmity. He did not call any witness in his defence.

4. The learned Special Judge after carefully reviewing the evidence on the record came to the conclusion that `the accused had come into possession by some means the blank cheque Exh. P.C. from the office of Mr. Ghulam Haider Butt, S. D. O., and had forged the cheque by making the signatures of Mr. Ghulam Haider Butt and had presented it in the State Bank of Pakistan, on the 9th and 10th of April 1958 and bad received Rs 19,100 on the basis of that cheque from the Bank. He accordingly convicted and sentenced the accused as mentioned above.

5. Mr. Mushtaq Hussain, the learned counsel for the appellant had no difficulty in showing that the finding of the learned Special Judge that the accused had forged the cheque by making the signatures of Mr. Ghulam Haider Butt is not warranted by the evidence on the record. A reference to the statement of Malik Muhammad Ashraf, Handwriting Expert, makes it absolutely clear that although the signatures " Ghulam Haider Butt " on the face and on the back of the cheque were forged and had not been written by Ghulam Haider Butt himself, yet these signatures were not in the hand of the accused. He has, no doubt, stated that the entire writing on the face and on the back of the cheque Exh. P. C. (excluding the two signatures of " G. Haider Butt ") were in the hand of the person who had written the specimen writings, These specimen writings are admittedly in the hand writing of the accused. It is, therefore, clear to me that the learned Special Judge did not apply his mind at all to this aspect of the matter while writing the judgment. On the evidence before him he could not have held that the accused had forged the cheque by making the signatures of Mr. Ghulam Haider Butt. It may be that be wanted to write that the accused had forged the writings on. the face and on the back of the cheque, excluding the signatures, of Mr. Ghulam Haider Butt, but in haste or otherwise omitted to mention this fact in the finding and made the mistake of saying that he had forged the signatures. In this view of the matter it was vehemently argued by the learned counsel for the appellant that he was entitled to acquittal.

6. The learned counsel for the State, however, argued that this mistake of the learned Special Judge can be rectified by this Court and the conviction of the accused under section 467, P. P. C. can be upheld by virtue of section 6 (4) of the Pakistan Criminal Law (Amendment) Act, 1958. It reads as follows "Notwithstanding anything contained in this Act the Special Judge may convict the accused of any offence which from the facts admitted or proved he appears to have committed."

7. It appears that so far this provision of law has not been subjected to judicial scrutiny by any of the Courts in Pakistan. In any case, no authority was cited before me to show the implications of this provision. The learned counsel for the appellant invite.: my attention to the sanction order Exh. P. Z. in which the sanction had been given for the prosecution of the accused for the various offences enumerated above on the following allegations :‑ "That Muhammad Akbar while employed as overseer in the Public Works Department on or about the 4th February 1958 stole a cheque No. 01181/074792 from the office of Electrical Construction Circle Sub‑Division, Wahdat Colony, Lahore, and forged the signatures thereon of Ghulam Haider Butt. S. D. O. of the said Circle, and drew Rs. 19,100 fraudulently from the State Bank, Lahore, and misappropriated the same."

8. It will be seen that so far as the forging of the cheque is concerned, the sanctioning authority had stated that the accused had forged the signatures thereon of Ghulam Haider Butt, S. D. O. of the said Circle. At the trial of the accused, however this was not the case for the prosecution. The learned counsel for the appellant also invited my attention to the particulars of the offences which were read out to the accused at the commencement of the trial. It is a verbatim copy of what is stated in the sanction order. It was, therefore, argued that in the circumstances of the case, the finding of the learned Special Judge could not be altered.

9. The question, therefore, arises that if I were to accept the evidence of the prosecution that the accused had forged the writings on the face and on the back of the cheque Exh. P. C., excluding tile two signatures of Ghulam Haider Butt, can I maintain his conviction under section 467, P. P. C.? The sanction as it stands is perfectly all right and no objection could be raised to the trial of the accused on the basis of the sanction. But as the trial proceeded, it became crystal clear that the prosecution rested its case not on the forging of the signatures of Ghulam Haider Butt, but on the basis of forging the writings on the face and on the back of the cheque Exh. P. C. In this examination under section 342, Code of Criminal Procedure, the accused was put questions as to the forging of the signatures of Mr. Ghulam Haider Butt and he had denied writing the same on the cheque. In addition to this he was also put the question whether the writing Exh. P. C. was in his hand and he had denied it also. Section 6 (4) of the Criminal Law (Amendment) Act, referred to above, does away with requirement of the sanction altogether and the Court appears to have been given very wide powers to convict the accused of any offence which from the facts admitted or proved he appears to have committed. Subsection (5) of section 6 of this Act provides that previous of sanction of the appropriate Government shall be required for the prosecution of a public servant for an offence under this Act, but subsection (4) empowers the Special Judge to convict the accused of any offence, which from the facts admitted or proved he appears to have committed "not withstand ing anything contained in this Act". This expression surely includes the provision of the previous sanction as required by subsection (5) of section

6. The learned counsel for the appellant relied on Ali Ahmed Molla v. The State (P L D 1960 Dacca 696) where Khan J. held that where the sanction on the face of it did not contain the facts constituting the offence, the sanction would be invalid and the Special Judge would have no jurisdiction to take cognisance and try the accused for such an offence. In support of this conclusion Khan, J. has relied on Gokulchand Dwarkadas Morarka v. The King (AIR 1948 PC 82 : PLD 1948 PC 11) and some other authorities of the Allahabad and Lahore High Courts. But with respect I .would like to say that the attention of the learned Judge was not drawn to section 6 (4) of the Criminal Law (Amendment) Act. In none of the rulings, referred to by Khan. J., the provisions of section 6 (4) have been discussed. In all probability, such a provision did not exist in the law, which was required to be interpreted by their Lordships of the privy Council. It may be that the law‑making authority added this provision in order to overcome the difficulty envisaged in the above rulings. After having given the matter my anxious consideration, I do not see how I can ignore the plain wordings of this provision of law. I am, therefore, inclined to bold that by virtue of this section the Special Judge could have convicted him under suction 467, P. P. C , and this Court can uphold his conviction under that section if it is found established that he had forged the writings on A the face and on the back of the cheque Exh. P. C.

10. The learned counsel for the appellant has urged that in case the conviction of the appellant is to be upheld under section 467, P. P. C., on the ground that he had forged the writings on the face and on the back of the cheque Exh. P. C., then in that case he had been materially and substantially prejudiced in his defence inasmuch as that in view of the sanction order and the particulars of the accusation read out to him, he had the impression that he could be convicted only if it was found established, that he had forged the signatures of Ghulam Haider Butt. In my opinion, this contention is not without force. I therefore, do not propose to enter into the merits of the case and, setting aside the conviction and sentence of the appellant, remit the case to the Court of the Special Judge, with the direction that he should re‑examine the accused in full in respect of the writings on the face and on the back of the cheque Exh. P. C. which are alleged to have been forged by him and then give him an opportunity to produce his defence, if any, and then decide the case in accordance with law. C Meanwhile, the petitioner who is in jail is granted bail in the sum of Rs. 10,000 with one surety in the like amount to the satisfaction of the Special Judge, Lahore. He should appear in the Court of the Special Judge on the 7th of November 1960 and in case Mr. Ghazanfar Hussain has ceased to work as a Special Judge, then he should appear in the Court of the Senior Special Judge, Lahore. A. H. Case Remanded.