P L D 1977 Karachi 432 (PLP)

Dates of hearings : 16th and 17th February 1977. The appellant has been convicted by Special Judge (Central), Karachi ‑for offence under sections 120/B, 467, 471 and 403, P. P. C. and section 5(2) .of Prevention of Corruption Act, 1947. He has been sentenced to R. I. ‑for one month on the first count. R.1. for 3 months on the second count and R.1. for 3 months and a fine of Rs. 500 or further R. I. for one month on the last count, the substantive sentences of imprisonment to run .concurrently.

2. Appellants Muhammad Sharif, Muhammad Bashir and Maqsood Ahmed had all been tried and convicted as above. Muhammad Bashir slid not prefer any appeal while Maqsood Ahmed who had joined in filing this appeal later on withdrew the appeal and did not press it since at the :time of admission a notice for enhancement of sentence had also been issued. We are, therefore, left with appellant Muhammad Sharif only.

3. The prosecution case in brief is that on 13‑1‑1973 P. W. Muhammad Younus presented a money order for Ry. 500 payable to one Muhammad Ali at Lahore cantt. This money order was received by counter clerk Nasir Ali of the City Post Office. Nasir Ali issued the receipt. Accused Maqsood Ahmed a clerk in the registration branch of the same post office prepared fake money order for Rs. 500 payable to Muhammad Ali at Orangi Town, Karachi. This fake money order was substituted for the original money order presented by Muhammad Younus which was destroyed. Appellant Muhammad Sharif was the journalising clerk and all the money orders received on 13‑1‑1973 including the bogus money order were journalised by him. These money orders were initialled by way of routine by the Assistant Post Master. The 3rd accused Muhammad Shabbir wrongly identified Maqsood Ahmed as the payee S. Muhammad Ali of the fake money order and Rs. 5(m were thus realised from the postman of Orangi Town on 21‑1‑1973.

4. Muhammad Younus received the acknowledgment receipt which was not the one written by him and he also found that the payee had not received the amount at Lahore. He then made a complaint and the Postmaster, City Post Office appointed Moiz Ali Inspector, City Post Office as enquiry officer to hold departmental enquiry. He made a general report without putting the responsibility for the fraud on any one. Inspector Iftikhar Ajmal was then appointed as the second enquiry officer and he Interrogated the accused persons over again. Appellant Muhammad Sharif was interrogated twice. In the 3rd and the last statement Muhammad Sharif admitted that he had substituted the fake money order for the genuine one ; that he had written Karachi No. 41 on the fake money order in his own hand and when the amount was realised he received his share of Rs.

125. The appellant was then made to pay Rs. 2'10 to the Department to make ,up the loss of Rs. 500 the balance of Rs. 250 having been realised from the other clerk. The counter‑clerk had, however, absconded and he could not be found.

5. We are thus left with this meagre evidence as against appellant Muhammad Sharif. He bad journalised the bogus money order but that would not show his guilty mind because all the money orders were passed on to him for the purpose by the Counter Clerk and there is nothing to show whether the bogus money order was substituted by the counter clerk or by appellant Muhammad Sharif the journalising clerk. Apart from this there is the statement Exh. 9 written by appellant Muhammad Sharif and delivered to the enquiry officer Mr. Iftikhar Ajmal. In this connection it may be pointed out that Mr. iftikhar Ajmal had received the enquiry papers of this case from the previous enquiry officer Moiz Ali Rizvi. He recorded the statement of Muhammad Sharif Exh. 8 on 23‑4‑1

473. He recorded another statement of Muhammad Sharif on 24‑4‑1973 which is Exh.

9. In this last statement which is in the form of questions and answers the incriminating admissions were made by the appellant. Question No. 10 put in the statement Exh. 8 was as under :‑ "Q.‑You can see that your role in this affair is extremely suspicious and it would be better that you come out with the truth and reveal the names of your other collaborators involved in this affair." Even then the appellant replied that he did not know any thing. But on the next day be gave his statement Exh. 9 written by him in his own hand ,in narrative form. This statement shows that it was made as a result of some promise of pardon. The actual words used are as under "In this connection whatever mistakes we have committed will not be repeated after the assurance given to us that we will be pardoned." Under section 24 of the Evidence Act the confessional statement made in consequence of any inducement, threat or promise proceeding from a person in authority would be irrelevant. The inducement may not be express but may even be implied. A confession may be made to a third person but if it is in consequence of the inducement held out by a person in authority it would be equally inadmissible. The expression "you had better confess" or "you had better tell the truth" and other equivalent expressions are deemed to involve a threat or promise and confessions made in consequence off such expressions have generally been excluded. (Wigmore on Evidence, p. 8361. , In the present case this written confession has been made after repeated interrogations for the third time. The interrogations express showed that the appellant was being asked that he was under a cloud of suspicion and he must tell the truth. The Inspector of post office holding a superior post to that of a clerk and holding enquiry under orders of the Post Master could certainly be regarded as 'a person in authority'. It has also been mentioned by the appellant in the very confessional statement that a promise of pardon bad been made. Under these circumstances this confessional statement has to be excluded.

6. Even otherwise any confession before it can be made the basis of a, conviction needs to be sufficiently corroborated. In the present case this corroboration is wanting. There is no other direct or circumstantial evidence connecting the appellant with the offence.

7. The case against the appellant is thus not free from reasonable doubt. Possibly the postal authorities were convinced in the departmental enquiry in respect of the guilt of the accused and he was made to pay Rs. 250 to make good the loss. But for a conviction on a criminal charge the general principles of evidence cannot be disregarded and only the evidence which is relevant and admissible is to be considered.

8. The conviction and sentence passed against the appellant are accordingly set aside and he is allowed the benefit of reasonable doubt and acquitted of the charge. This acquittal will not, however, affect any findings in the departmental enquiry or entitle him to get re‑instated in his job. S. A. H. Appeal allowed