P L D 1962 Supreme Court 102 (PLP)

HAMOODUR RAHMAN, J.‑

This appeal, by special leave, is directed against the judgment and order of a learned Single Judge of the High Court of East Pakistan upholding the convic tion of the appellant herein under section 409 of the Pakistan Penal Code. The appellant, who was at the relevant time the President of the Union Bard of Nasirakandi within Matlab Police Station of District Tippera, was charged with having committed criminal breach of trust in respect of a sum of Rs. 200 from out of the funds of the said Union Board by falsely showing the said amount as disbursed to one Chowkidar, Dhaniram Saiyal for his salary for ten months and by affixing a forged signature of the said Dhaniram Chowkidar in the pay‑register. The said Chowkidar denied having received the said amount and actually filed an application to the Sub‑Divisional Officer, Chandpur, praying that his salary for the said period be directed to be paid to him. The Sub‑Divisional Officer caused an inquiry to be made Into the matter by the Circle Officer and as a result of such inquiry the case was referred to the District Anti‑Corruption Branch, Comilla, which after investigating into the case and obtaining the necessary sanction for the prosecution of the appellant sent him up for trial before the ex‑officio Special Judge, Tippera. The defence of the appellant appears to have been that since the said Chowkldar bad of his own accord ceased to come to the Board's Office from Chaitra 1362 B. S., corresponding to February‑March 1956, the Union Board had in a meeting held on the 12th of February 1957, corresponding to the 29th of Magh 1363 B. S., resolved to fine him at the rate of Rs. 2 per month and dismiss him from service with effect from the said day. He was accordingly paid the balance of Rs. 180 in the presence of the members of the Board and this payment he acknowledged by signing his name (Exhibit D) in his own hand in the pay‑register. In order to establish its case the prosecution examined the said Chowkidar (P. W. 1). He categorically denied either to have received the payment or to have signed the pay‑book register (Exh. 1). He claimed that he could read and write a little and could sign his name. He was shown some of his earlier signatures In the pay‑register for amounts actually received by him by way of salary for earlier months and he admitted them but denied the disputed signature. The admitted signatures of the said Chowkidar in the pay‑register, as also on his petition to the Sub‑Divisional Officer, Chandpur, and certain specimen signatures of his taken by the police in the presence of the Sub‑Registrar, Chandpur, were all sent along with the disputed signature (Exh. D) for examination to the Government Handwriting Expert (P. W. 2) attached to the Criminal Investigation Department at Dacca. On comparison of these signatures he came to the conclusion that the specimen signatures and his admitted signatures in the pay‑book register tallied. In his opinion, the writer of the admitted signatures and the specimen signatures was a poor pen‑man having lower movement at his command, but the disputed signature, although it had some similarity in pictorial aspects and formation, differed in significant features, which he detailed, from the specimen and admitted signatures. He was further of the opinion that the writer of the disputed signature was a superior pen‑man as could be gathered from the spood and rhythm in the execution of some of the strokes of the said signature. The said disputed signature also, according to him, contained certain careful retouchings. The other evidence adduced on behalf of the prosecution was if a formal character and is not material for the purposes of this appeal. As against this the appellant examined four witnesses on his behalf. The first was Abdul Hamid Master, who was the clerk of the Union Board at the relevant time. He proved the resolution passed by the Union Board and supported the defence case that the sum of Rs. 180 was in fact paid to Chowkidar Dhaniram in his presence. The other members of the Board, the other Chowkidars and one Rajendra Chandra Sardar (P. W. 2), a village doctor, who had come to intercede on behalf of the Chowkidar, were also present at that time. He claims that he made the relevant entry in the pay‑register and the Chowkidar Dhaniram signed therein on the revenue stamps in his presence. The said Rajendra Sarkar was a village doctor and he too supported the story of the payment to the Chowkidar, although there is some discrepancy between his version and the version given by the clerk. According to the clerk the Chowkidar was paid Rs. 180 after deduction of the fine but according to the doctor he was paid Rs. 200 and he repaid Rs.20 to the appellant. The entry in the register (Exh. 1), however, records payment of Rs.

200. One of the Chowkidars. who was said to have been present at the time of payment, namely, Sahadeb Chowkidar (D. W. 3) also stated that Dhaniram received payment by signing the register and that the signature (Exh. D) was his. A member of the Union Board Hazrat Ali Pramanik (D. W. 4), who claimed to have been present at the meeting wherein the resolution (Exh. C) by which the Dhaniram Chowkidar was purported to be dismissed and paid off was passed, also supported the story of payment and signing of the register by Dhaniram in acknowledgement thereof. The Courts below disbelieved the defence version and relying upon the testimony of Dhaniram Chowkidar (P. W. 1), who was regarded as a truthful witness, convicted the appellant, particularly, since the fact that the signature was forged also found support from the evidence of the Handwriting Expert (P. W. 2). Learned counsel appearing in support of this appeal has, however, sought to contend that the Courts below had wrongly rejected the defence evidence upon grounds which did not find support from the evidence on record. It is pointed out to us that none of these defence witnesses were shown to be inimical towards the appellant. It is true that no specific enmity between those witnesses and the Chowkidar has been established, but the main ground given by the Courts below for not relying upon their evidence is that these persons were serving under the appellant at the time they gave their evidence on the 5th of April 1960. The appellant, it appears, had since been re‑elected as a Basic Democrat on the 9th of March 1960 and had again become the Chairman of the Union Council, as admitted by the clerk Abdul Hamid Master, who is now the Secretary of the Union Council. The appellant, according to this witness, is a well‑to‑do person and is evidently a man of influence in this locality. Similarly, Shahadeb Chowkidar (D. W. 3) Is still serving as a Chowkidar and Hazrat Ali (D. W. 4) too continues to be a member of the said Union Board and was all along serving with the appellant in the said Union Board for over 15 or 16 years. Rajendra Sarkar (D. W. 2) was the village doctor and evidently a person towards whom the appellant was well disposed, for, this witness claims that at his request the fine was reduced from Rs. 5 to Rs.

2. It cannot, therefore, be said that the Courts below acted either unreasonably or without any founda tion in treating them as interested witnesses on the side of the defence. It was next contended on behalf of the appellant that the conviction should not have been based on the solitary evidence of P. W. 1 and that the Courts below were wrong in treating the evidence of the Handwriting Expert as corroborative evidence. The expert's evidence is, no doubt, opinion evidence but having ourselves compared the disputed signature with the various admitted and specimen signature of Dhaniram Chowkidar on A the record we are satisfied that the reasons given by the expert were cogent for holding that the disputed signature was not his signature. Certain letters in the said signature, as pointed out by the Handwriting Expert, have obviously been written by 'a person who is well accustomed to write. The same letters, however, in the admitted and specimen signatures have consistently been written in quite a different manner indicating that the writer thereof did not passes the easy flow of writing possessed by the writer of the disputed signature. We also find on examination of the pay‑register that the entry relating to the disputed payment has been counter‑signed by the appellant in an ink which is different to the ink used by him for counter signing the payments made to the other Chowkidars on the same day. Again, it appears from the said pay‑register that a similar entry was also made at the bottom of the entries for payments in the previous month by the clerk Abdul Hamid Master (D. W. 1) and then scored out. These circumstances are significant and in no small measure confirm the finding that the disputed signature was not made by Dhaniram. Learned counsel, notwithstanding these facts, attempted to argue that the prosecution evidence had not excluded every possibility of the signature (Exh. D) having been made by Dhaniram for, in the course of 10 months he may have acquired sufficient proficiency in writing and made the loops in certain letters which persons accustomed to write usually make. This possibility is, however, negatived both by the specimen signatures which were obtained later by the police and by his signature on the petition he submitted to the Sub‑Divisional Officer on the 30th May 1957. In these signatures too there are no loops like those in the disputed signature. Similarly, the theory that Dhaniram had deliberately made his signature (Exh. D) in a different manner is pure speculation. We cannot, purely on the basis of surmises and speculations, set aside a concurrent finding of fact which appears to be based upon adequate direct evidence. We are unable to appreciate how also the prosecution could have disproved the disputed signature. We are not also impressed by the argument that Dhaniram was set up to give false evidence against the appellant by one Abdus Salam Mukhtear who is said to have stood as a rival candidate against the nephew of the appellant at the last elections for the Provincial Assembly. It was suggested that since Dhaniram cultivated the lands of the said Abdus Salam Mukhtear, he had been set up to falsely implicate the appellant, but this suggestion was not made in this specific form to Dhaniram himself. All that was suggested to him was that he had filed this case at the instance of Abdus Salam Mukhtear but he denied the same. He also denied that the appellant had any enmity with the said Mukhtear or that he knew whether the Mukhtear contested the said election. He was not asked if he cultivated the lands of the said Abdus Salam Mukhtear. In the absence of any such suggestion to Dhaniram the connec tion sought to be established between him and the Mukhtear through the testimony of the clerk (D. W. 1) cannot be accepted. There is no substance either in the contention that the convic tion could not have been based on the evidence of the Chowkidar alone. It may be that the case against the appellant was started on the basis of the petition submitted by him. But apart from this, there is nothing also on the record to show that he had any particular interest in falsely implicating the appellant. The suggestion that he might have had such motive as he had been dismissed by the appellant is also baseless, for, it appears, that he did not even know when the Board dismissed him. Prudence of course requires that the evidence of an interested witness should be scrutinised with care and conviction should not be based upon such evidence alone unless the Court can place implicit reliance thereon. But in the present case there is nothing to indicate that he is an interested witness in that sense. More over, his assertion that he did not put his signature (Exh. D) on the pay‑register is supported also by the evidence of the Handwriting Expert who has given detailed and convincing reasons for taking the view that the signature does not tally with his admitted signatures. We have also compared the signatures ourselves and have come to the conclusion that the reasons given by the expert were correct. We are unable, therefore, to agree that the conviction of the appellant could not have been based upon such evidence. It is lastly contended by the learned counsel that the trial of the appellant was without jurisdiction, as the sanction was not granted by any competent authority. In support of his argument he has also invoked in aid the decision of this Court in the case of Hamid Ghulam Sadiq v. Pakistan and others (P L D 1960 S C (Pak.) 351). It is argued that since on the date the sanction to prosecute the appellant was given by the Provincial Government he was not a President of the Union Board and, therefore, not a public servant, the Provincial Government of East Pakistan could not possibly have granted the sanction for his prosecution. He was not serving any Government at that time, as he had after being defeated at the election, actually made over charge of his office on the 21st of July 1958. He was re‑elected as a Basic Democrat only on the 9th of March 1960, So between the 21st of July 1958 and the 9th of March 1960, he was not a public servant serving any Government and, therefore, no Government could have grant the sanction for his prosecution. This decision is, however distinguishable, for, in the case of Hamid Ghulam Sadiq the impugned sanction was granted under the Criminal Law Amendment Act of 1948 and under sub section (5) of section 5 of that Act no prosecution for any offence exclusively triable by a Special Judge could be commenced without a sanction from the appropriate Government. The appropriate Government was also differently defined therein. The Criminal Law Amendment Act of 1948, has, however, now been repealed and replaced by the Pakistan Criminal Law (Amend ment) Act of 1958. Under clause (b) of the Schedule appended to this Act an offence under section 409 when committed by any public servant in his capacity as such public servant is still by virtue of subsection (1) of section 5 triable exclusively by a o Special Judge but under subsection (5) of section 6 thereof sanction of the appropriate Government is required only for the prosecution of a public servant for an offence under the said Act. The prosecution in this case was on the basis of a formal com plaint lodged by the Assistant Inspector of the District Anticorruption Branch, Comilla, on the 5th of March 1958, but the sanction was actually granted on the 16th of April 1959. At the time, therefore, that the sanction was granted he had ceased to be a public servant. Thus tinder the provisions of the Act of 1958, no sanction for his prosecution was at all necessary. In any event, under the explanation given under subsection (5) of section 6 of the Act of 1956, an appropriate Government for the purposes of the said subsection means the Government which at the time of the commission of the offence was the appropriate Government. Thus, if sanction was necessary for the prosecution of the appellant, the only Government that could grant such sanction under the Act of 1956, seas are Government under which appellant was a public servant at the time of the commission of the offence. At that time there can be no doubt that the appropriate Government was tire Provincial Government of East Pakistan which had, in fact; granted the sanction in the present case. Sanction under the Act of 1958, was the Government under which the appellant was a public servant at the time of the commission of the offence. At that time there can be no doubt that the appropriate Government was the provincial Government of East Pakistan which had in fact granted the sanction in the present case. In either event, therefore, this argument is of no assistance to the appellant, for, if sanction was necessary, sanction was granted by the appropriate Government under the Act of 1958 and if no sanction was necessary, than the sanction on the record can be treated as a nullity, but the prosecution cannot be said on that account to be without jurisdiction. The Special Judge alone had under the Act of 1958, jurisdiction to try the offence alleged to have been committed by the appellant in his capacity as a public servant and he has done so in the valid exercise of that jurisdiction. For the reasons given above there is no substance in this appeal and it is, accordingly, dismissed. K.B.A./A.H. Appeal dismissed.