P L D 1958 Dacca 519 (PLP)

RAHMAN, J.‑The appellant before us who was, at the time material for the purpose of this appeal, the Head Clerk of the Election Department under the Election Deputy Collector, Noakhali, has been convicted under sections 467 and 167 of the Pakistan Penal Code and sentenced to sufer rigorous imprison ment for three years as also to pay a fine of Rs. 5,000 or in default to suffer further rigorous imprisonment for another year on each count ; but the sentences have been made to run concurrently.

2. The appellant was put upon his trial before the learned Assistant Sessions Judge and ex‑officio Special Judge of Noakhali along with two others. The appellant was charged under sections 467, 167 and 420/109 of the Pakistan Penal Code. The other two persons were charged only under section 420 of the said Code. The Special Judge, however, acquitted both the other two persons of the said charge under section 420 of the Pakistan Penal Code as also acquitted the appellant of the charge under sections 620/109 of the said Code. In this appeal' therefore, we arc not concerned with the cases of the said two acquitted persons or with the charge under sections 420, /109 of the Pakistan Penal code against the appellant.

3. The case against this appellant was that as such Head Clerk of the Election Department under the Election Deputy Collector, Noakhali, he had forged a Work Register (Exh. 1) said to have been maintained by him by making certain false and fictitious entries therein on various dates. This Work Register was alleged to have been maintained as a record of the progress of work done‑ by certain printing presses in the district of Noakhali engaged by the Government for the printing of the voters' lists of the last Assembly Elections. Amongst other printing presses, two presses, namely, the Emroze Press, Chaumuhani, and the Islamia. Press, Lakshmipur, had been engaged by the Government to print certain voters' lists `at the rate of Rs. 12 per page of one hundred copies on paper to be supplied by the Government. The Managers of these presses so engaged by the Government had, in terms of their agreement, to submit daily a progress report to the office of the Election Deputy Collector, showing the progress of their work. This progress report was, according to the prosecution, also maintained by the appellant. The manuscript voters' lists were supplied to the Managers of said presses together with the paper on which they were to be printed and the said Managers took delivery of the same by giving their signatures in the appropriate column of a Register again maintained by the appellant. Under the contract, the printing of the voters' lists had to be completed by the 31st of August 1953, as the 30th of September 1953, had been fixed by the Government for the publication of the Draft Electoral Rolls. The printed voters lists lead further to be delivered to the said Election office as, and when they were printed and it was, according to the prosecution, the duty of the appellant to accept deliveries of the printed voters' lists and to note the same in the Register (Exh. 1).

4. It appears that between the 13th of August 1953, and the 27th of August 1953, the appellant recorded in the said Register the receipt of, deliveries of certain voters' lists from the said two presses, namely, the Emroze Press and the Islamia Press, and, on the 1st of September 1953, he duly informed the Election Deputy Collector, P. W. 1 that the printing of the voters' lists of all the presses, including the Emroze and the Islamia Presses had been duly completed. A message was accordingly sent to the Government and thereafter the appellant, it is alleged, submitted a .proposal for the payment of 50 per cent of the total printing charges to the different presses, including the above two presses. This proposal was approved by the said Election Deputy Collector, P. W. 1, and duly sanctioned and in pursuance thereof various sums of moneys were drawn and paid, amongst others, to the Managers of the Islamia Press and tile Emroze Press, the other two accused persons who have since been acquitted.

5. In preparation for the publication of the voters' lists, the checking of the voters lists was started from the 15th of September 1953, and it was found that some pages of the printed voters' lists delivered by the Emroze Press were dissimilar with their other printings. On this discovery being made, the Deputy Collector wanted some other voters' lists of certain unions in the Ramganj police‑station which had been allotted to the said Chaumuhani Press but they were not found. The appellant, however, informed the said Deputy Collector that it was possible that they might be amongst the unsorted bundles lying in the Election godown which again was under the charge of the appellant. The appellant had the keys to the said godown also. Final sorting of the said voters' lists were, therefore, begun on the 22nd of September 1953, but even by the evening of that day the said voters' lists of Ramganj police‑station could not be found. The sorting was, therefore, to be continued on the next day. In the night, however, at about 2 a.m. in the morning of the 23rd of September 1953, the prosecution alleges that the appellant went to the house of the Election Deputy Collector accompanied by his son‑in‑law and a night guard of the office of the District Magistrate, woke him up and told him that there had been a theft in the Election godown. The Deputy Collector immediately accompanied them to that Election godown and found the door of the godown open but no marks of violence were found on the door. The lock, however, was found to be missing. Some bundles of the printed voters lists were also found lying scattered just near the door inside the go down ; some pages were found torn and some pages were found soiled with rain water and some manuscript voters' lists that had been given to the Islamia Press, Lakshmipur, for printing, with a few pages of printed voters' lists, were also found near the door. These printed voters' lists also appeared to the Deputy Collector to have been printed at some other press.

6. The appellant, after a pretended search, informed the Deputy Collector that nothing had been stolen from the godown except some voters' lists. The almirah in which the appellant used to keep some books, papers and money was also found to be intact. In respect of this alleged theft, the appellant lodged an information at the local police‑station. The gift was duly enquired into. The lock was found at some distance at a place near the godown on the next morning but it again bore no marks of violence.

7. In the meantime, however, the sortings of the voters' lists were completed on the 23rd of September 1953, and it was found that 99 copies of the voters' lists of the unions of Ramganj police‑station and of Begumganj police‑station were missing but only one copy of the printed voters' lists of each of the said unions was found in the Election godown, and all except one of the manuscript lists in respect of the said printed lists were found in the Election godown. As the date of the publication of the draft lists as drawing near, the Election Department wanted to have these missing lists printed immediately from other presses and placed orders accordingly. But, on such orders being placed, a telegram was received from one Atikullah of Chaumuhani, intimating that the story of theft in the Election godown was false and that the printed rolls in question were in possession of the Shakha Press, Dacca. It appears that the Deputy Collector had also received some secret information earlier that the appellant together with the Managers of the said Islamia and the Emroze Presses was running some sort of a joint business regarding the printing of the voters' lists and they were having the said lists printed at some presses at Dacca. Notwithstanding this telegram, the missing voters' lists were reprinted by different presses. Thereafter the police entered a final report in the theft case and‑started the present case against the appellant and the two acquitted persons. After completion of investigation of this case, sanction was obtained from the appropriate authority and charge sheet was submitted ultimately on the 5th of August 1955. The printed rolls lying at Shakha Press and the Muslim Printing Works at Dacca were seized on the requisition of the. Superintendent of Police, Noakhali. The case which was then in the file of the Sub‑Divisional Officer, Sadar, Noakhali, was thereafter transferred to the Court of the Special Judge for trial.

8. Upon these allegations, the prosecution alleged that the appellant had, in order to help the other two co‑accused persons in cheating the Government, fabricated the entries in the Work Register, as also for the said purpose put up the proposal, Exh. 6, for payment of 50 per cent. of the dues of the printers, and thus committed the offences he was charged with.

9. As against this, the defence of the appellant was that the printed rolls were received not by him but by his assistants in the office on due acknowledgment in the books of the different presses and that he wrote the Work Register (Exh. 1) on such acknowledgements. He denied that he bad any collusion or conspiracy with the other two accused persons and alleged that some of the prosecution witnesses who were his sworn enemies had, in collusion with each other, falsely implicated him in this case and had occasioned the theft of the Electoral Rolls from the Election godown to impair his future.

10. We are not concerned herewith the defences of the other two accused persons but, so far as this appellant is con cerned, the prosecution examined some 25 witnesses, as also 'filed a large number of documents. No witnesses were examined on behalf of the appellant but documents from relevant files in the office of the Election Deputy Collector were tendered and marked on behalf of the defence also. The oral evidence adduced showed that the entries in the Work Register were in the hand writing .of the appellant. It also proved that when the printed voters' lists were received, they were produced before the appellant and sometimes he, sometimes the other assistants under him, received them and entered them in the Register. The prosecution also attempted by this oral evidence to establish the collusion between the three accused persons. Upon con sideration of this evidence, the learned Special Judge came to the finding that admittedly the Work Register (Exh. 1) was entirely in the writing of the appellant and its relevant entries which are alleged to constitute a false document within the meaning of section 464 of the Pakistan Penal Code were also in his handwriting and were definitely false. The story of the alleged theft in the Election godown was also found to be false He disbelieved the defence suggestion that the entries in the said Work Register were made on the statements of the assistant under the appellant or on seeing the receipt books of the different printing presses. Hence, the learned Special Judge came to the conclusion that the entries relating to the deliveries of the printed rolls of certain unions which had been allotted to the said Islamia and the Emroze Presses and which were made under dates 13‑8‑53, 14‑8‑53, 24‑8‑53 and 27‑8‑53 in the said Work Register (Exh. 1) were never received in Election Office either on the dates given by the appellant in the said Work Register or at any other time but were, in fact, seized by the police from two presses at Dacca in the course of investigation of the said case. The learned Judge also found that these entries were made by the appellant knowing that they were false and that he made these entries for the purpose of causing damage . or injury to the Government and for causing wrongful gain to himself. The story of the joint business of printing the voters' lists was also accepted by the learned Judge.

11. Having come to this conclusion, the learned Judge also found no difficulty in holding that the proposal, Exh. 6, made for the payment of the 50 per cent. of the printing charges had also been made by the appellant in his capacity as a Head Clerk entrusted or charged with the preparation of the said proposal and that the said proposal was also incorrect and made with the intent to cause injury to the Government. Hence, the appellant was guilty both under sections 467 and 167 of the Pakistan Penal Code.

12. In view of the arguments that have been advanced before us, it is not necessary to enter upon a more detailed discussion of the evidence in this case. The learned Advocate appearing in support of this appeal has argued that even if this evidence adduced by the prosecution is accepted, no case either under section 467 or 167 of the Pakistan Penal Code has been made out. It is urged that the learned Judge has wholly mis conceived the scope of section 467 of the Pakistan Penal Code. Our attention is drawn to the first clause of section 464 of the said Code which purports to define the making of a false docu ment. The other two clauses of the said section are not appli cable in the facts of this case. The first clause, however, is in these terms :‑ "A person is said to make a false document‑first. Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed." It is pointed out that there are two necessary elements under this clause. One is that the document must have been made (1) with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority the accused knows that it was not so made, signed, sealed or executed. Alternatively, (2) that the document alleged to have been fabricated was made at a time at which the accused knew that it was not made, signed, sealed or executed.

13. In the present case, the Work Register (Exh. 1) was, even according to the prosecution case, a register maintained by the appellant and all entries therein were made by him. So there was no question of it being made by or by the authority of a person by whom or by whose authority the appellant knew that it was not so made. Furthermore, there could be no question here of the document or the relevant entries therein not being made at a time at which the appellant knew that it was not made. The learned Special Judge, however, has taken the view that since the entries contained therein were false, namely, that the deliveries of the printed voters' lists said to have been received on certain dates specified in the said Register were not actually received on those dates, the document was made at a time at which the appellant knew that it was not so made. In so holding, it is urged, the learned Special Judge has entirely misconceived the provisions of the latter part of the said first clause of section 464 of the Pakistan Penal Code. It is contended that all that this part means is that the document itself must have been made or executed or signed or sealed at a time when it was not so signed or sealed, namely, it is attracted when a document is ante dated or a date given in the document is altered even though the document may have been executed by the appellant himself but it does not embrace a case of making of false entries in a particular document. It is pointed out that there is a specific section which deals with falsification of such entries, namely, section 477‑A of the Pakistan Penal Code which makes it an offence for a clerk, or an officer or a servant or a person employed or acting in such capacity to falsify or mutilate or destroy or alter any book, paper, writing or valuable security or account which belongs to or is in the possession of the employer or has been received by him for or on behalf of the employer, with intent to defraud the said employer.

14. It seems to us that this contention of the appellant is of substance. There was no question here of the entries said to have been fabricated and to be false entries, being not made on the dates on which they purport to have been made but all that was alleged and proved by the prosecution was that those entries, even though made on those dates, did not represent the true state of affairs, namely, that they were false entries mad by the appellant, the Head Clerk of the Election Office, with intent to defraud the Government. This does not, in our opinion, come within the mischief of the first clause of section 464 o A the Pakistan Penal Code. In this connection, we may refer also to the case of Ram Ghulam Singh v. Emperor (A I R 1929 All, 396), where it was held that an entry of excess payment made in a muster- roll by the person who kept the said muster‑roll would not make the muster‑roll a forged document. Dalal, J., sitting singly, in his judgment was dealing with the case of the appellant therein who had been convicted under section 468 of the Penal Code. He set out the first clause of section 464 of the said Code, and pointed out that examining the said first clause it appeared to him that the matter that must be proved in main under the said clause is either that the authority was wanting or that the date was purposely fictitious and not that the entry was fictitious. In the case before his Lordship, as already stated, the question was whether the showing of excess payments in certain entries in a muster‑roll constituted an offence. There was no question there of the want of authority in the person who prepared the muster‑roll because, as here, it was admitted that the appellant therein had the authority to prepare that document and there was also no question of the date being fictitious. It is interesting to note that it was observed in that case to the following effect :‑ "I have gone through every illustration given in S. 464, both under the main definition and under the explanations, but have failed to discover any case, where a document would become a forged document if a wrong entry of payment happens to be made therein." We are in agreement with the view expressed above and we too find it difficult to hold that merely because on those dates the appellant made entries in the said Work Register, showing false receipts of certain printed voters' lists, he could be said to have committed a forgery in respect of the said Work Register.

15. The learned Deputy Legal Remembrancer appearing on behalf of the State also felt this difficulty and frankly conceded that he could not support the conviction of 'the appellant under section 467 of the Pakistan Penal Code.

16. With regard to the conviction under section 167 of the Pakistan Penal Code, it is true that it has been well‑proved that the appellant was the Head Clerk of the Election office at Noakhali but it is urged on his behalf that a very important element of the offence under the said section has not been established by the prosecution evidence, namely, as to whether he was charged with the preparation of the said proposal, Exh.

6. Section 167 is in these terms :‑ "Whoever, being a public servant, and being, as such public servant, charged with the preparation or translation of any document, frames or translates that document in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imprisonment of either description for a term which may 'extend to three years, or with fine, or with both".

17. The learned Advocate for the appellant did at one stage of his argument attempt to argue that the words "charged with the preparation or translation of any document" should be so construed as to mean charged by some statute or rules having the force of a statute with such preparation or translation. We do not think that we would be justified in introducing some thing which is not in the section itself ; but, nevertheless, we do agree with him that the prosecution must at least show that it was the duty, general or, at any rate, special, of the accused to prepare or translate that particular document. In the present case, there is no evidence that the appellant was specially charged to prepare this proposal, Exh. 6, but the prosecution relied upon his Duty Card, Exh. 23, to show that it was part of the function to the Head Clerk as such to prepare the proposal or any proposal emanating from that office and, therefore, he was charged with the duty of preparation of the said proposal. Exh. 23 has also been put in by the defence as Exh. B. The particular entry in it, upon which the learned Deputy Legal Remembrancer relies to show that he was so charged with this duty of the preparation of this particular proposal, Exh. 6, is as follows :‑"Drafting of all important letters in connection with election and rural development work" and generally "to supervise the work of R.D. Assistant and the Election Assistants". Upon the basis of this, the learned Deputy Legal Remembrancer urges that it must be held that the appellant was charged with the preparation of the aforesaid proposal, Exh.

6. The proposal itself has been proved to have been prepared by the appellant and it contains the endorsement "submitted for orders" over the signature of this appellant. The evidence of P. W. 1, the Deputy Collector, is that he approved of the said proposal and counter signed it. No letter, however, was issued on the basis of the said proposal contained in the note sheet in the file but on the note itself the sanction of the District Magistrate was endorsed and, in pursuance thereof, a bill for Rs. 55,200 was drawn and various payments were made to various presses including the Islamia and the Etnroze Presses.

18. It is true that the word "charged" is not to be too narrowly construed but it is urged on behalf of the appellant that since the proposal in the note‑sheet was not a letter and P. W. 1 did not state in his evidence that he had asked the said Head Clerk to prepare this proposal, it could not be said that the appellant was either generally or specially charged with the preparation of the said document even though the word "charged" is given a wide meaning. Again it is urged that since the note put up or submitted for orders by the appellant did not, in fact, become a proposal until it had been accepted, presumably after checking, by the Deputy Collector, Election, it could not be said that the appellant had prepared or made ready the proposal for submission to the Government. Im mediately, it is urged, the Deputy Collector accepted the pro posal and counter‑signed it, it became his proposal and not the proposal of the appellant.

19. If, it is further contended, the word "charged" is to be used in this loose sense, then it is difficult to appreciate why the other assistants in the Election Office or the Deputy Collector himself were left out from this charge, because, in this generic sense, they were all charged with the preparation of the docu ment, proposal Exh.

6. In order to justify the singling out of the appellant for the purposes of this charge, we feel that it was necessary for the prosecution to lead some evidence to show, that the appellant was entrusted with the preparation of this document. The Duty Card, Exh. 23 or Exh. B, is also, in our opinion, much too vague and it would be extremely unsafe to rely upon the said Duty Card alone for the purpose of holding C that the appellant‑was charged within the meaning of section 167 with‑the. preparation of the said proposal, Exh.

6. In our opinion, therefore, at any rate, the appellant is also entitled to the benefit of doubt in respect of the offence under .section 167.

20. In these circumstances, it is necessary for us to enter into the third point relating to the want of jurisdiction of the Special Tribunal urged on behalf of the appellant except to indicate that it was urged that in so far as this case was not transferred to the Special Judge by any order of the appropriate Government, the Special Judge acquired no valid jurisdiction for hearing. or trying this case.

21. The contention of the learned Deputy Legal Remem brancer, however, is that the provision for the specification of the Special Judge by the appropriate Government. for the trial of a particular case in an area where there are more Special Judges than one is in. the nature of a directory provision, the non -performance of which would not render the trial itself null and void, as the appellant could have no control over those entrusted with the discharge of the said duty of specifying the particular Special Judge, and the neglect to perform the said duty, if held to render all acts done in neglect of this duty null and void, would work serious general inconvenience or injustice. In support of this contention, the learned Deputy Legal Remembrancer has also relied upon a decision of another Division Bench of this Court in the case of Nirode Chandra Biswas and others v. The State (9 D L R 546); where Ispahani and Asir, JJ. in more or less similar circumstances upheld the contention of the learned Deputy Legal Remembrancer and decided that the non‑specification by the Provincial Government did not render the trial by the Special Judge null and void.

22. As already stated, we do not, however, consider it necessary to enter upon a consideration of this question, as, on the merits of the case, we feel that the appeal must succeed and the appellant must be acquitted in respect of the offences for which he has been convicted.

23. In parting with this case, however, we cannot help but observe that we have not directed a re‑trial of the appellant on a charge under section 477‑A of the Penal Code as it appears to us from the sanction granted by the Government that this was not one of the sections in respect of which the said sanction was given. We do not consider the acquittal of the accused in the present case, however, to be a bar to his trial for any other offence which he may have committed if the authorities are still so minded to prosecute him in respect of the said other offence.

24. The result, therefore, is that this appeal is allowed and the conviction and sentence of this appellant are set aside and he is directed to be set at liberty forthwith, if not required in any other connection. MURSHED J.‑I agree. A. M. C. Appeal accepted.