1997 P Cr (PLP)

Appellant Jalal Ahmed Khan son of late Akhtar Ahmed Khan, was tried alongwith acquitted accused Jameel Ahmed Siddiqui, Ramzan, Jameel Hyder and Saleem Merchant, by the Special Judge (Central), Karachi, in Case No. l of 1985 arising out of F.I.R. No.3 of 1984 of F.I.A. E.E. Wing, Karachi, for offences under sections 161, 165-A, 420, 468, 471, 34, P.P.C. read with section 5(2) of Act II of 1947. By judgment, dated 8-2-1994, while the 4 co-accused are acquitted, the appellant herein is convicted under section 468, P.P.C. and sentenced to R.I. for 3 years and fine of Rs.10,000 or in default to suffer R.I. for 6 months. The appellant is further convicted under section 471, P.P.C. and is sentenced to R.I. for 1 year and fine of Rs.5,000 or in default to suffer R.I. for 3 months. The appellant has challenged his conviction and sentence through this appeal under section 10 of the Pakistan Criminal Law Amended Act, 1958. The brief facts of the case are that the F.I.A., Karachi, received a report from E.E. Wing, Karachi, Headquarter Office, Islamabad, and from the Director (Trade Dispute) Export Promotion Bureau, Karachi, authenticated by the Embassy of Pakistan in Iran on the basis of which a case was registered. The allegation in the F.I.R. is that accused Zaffar S. Shaikh (absconder) of Messrs Adamji Industries Limited, Karachi entered into a contract on 9-3-1992 (Contract No.BC-367/1982, dated 10-2-1982) with Messrs T.P.D.C. Iran for the Export of 5 million meters of bleached cloth sheeting through the indenter Messrs East Yard Trading Company, Karachi. The contract was in the sum of U.S. Dollar 27,50,

000. The importer in Iran, with the consent of the Exporter, appointed Messrs Lyods Agent Limited (Mackanon Meckanze) as Inspecting agent for the purpose of examining the quality of goods. Absconding accused Zaffar S. Shaikh and acquitted accused Saleem Merchant were the Chairman and Vice -President respectively of the Export Firm and they are said to have allegedly and in collaboration with appellant Jalal Khan, prepared two fake telex messages Nos.8020, dated 4-7-1982 and 861, dated 14-7-1982 on the Telex Machine No.912 of the T&T Department. It is alleged that although the importer had never issued any telex to amend the conditions in the L.C. the 2 telex messages sent by the accused named above indicated an amendment in the conditions' of the L.C. The fake telexes were transmitted on the telex machine of Messrs Mackanon Meckanze Company Limited, Karachi by accused Jameel Hyder, Jameel Siddiqui and Muhammad Ramzan (all acquitted), who accepted illegal gratification of Rs.500 for each telex message from accused Saleem Merchant. The allegation in respect of appellant Jalal Ahmed Khan is, that he being contracting agent examined the quality of the consignment and issued his examination reports on false papers, which were contrary to the Laboratory Test, without looking to the specification in the L.C. and proforma invoice. All accused were alleged to have prepared false documents, for the relaxation of a condition of L.C. purporting to have been issued by Messrs T.P.D.C. and thus absconding accused Zaffar S. Shaikh succeeded in realizing the payment of substandard goods (45,000 bales) worth U.S. Dollars 24,75,000 from Messrs Habib Bank Limited Foreign Exchange Branch, Karachi. It is further the case of prosecution that absconding accused Zaffar S. Shaikh and acquitted accused Saleem Merchant had no intention to supply the goods as per specification of the buyers (T.P.D.C. Iran) and by deceitful means, they prevailed upon the employees of the T&T Department accused Jameel Hyder, Jameel Siddiqui and Muhammad Ramzan and got the two fake telex messages issued. Accused Jameel Hyder, Jameel Siddiqui and Muhammad Ramzan, in connivance with absconding accused Zaffar S. Shaikh and Saleem Merchant having abused their position as public servants, are said to have prepared false telexes and transmitted same on the telex machine of Messrs Mackanon Meckanze of Pakistan, Karachi, where, appellant Jalal Khan was working and having had reason to believe that the said telexes were forged, aided and abetted the commission of the offence, when, in fact, he should have informed the buyers of the fake telex messages. It is the prosecution case that appellant Jalal Khan falsified the inspection notes/Report No.MM/85414/82 sent by him to Messrs Adamji Ltd., by adding clause "D", though the office note of the report did not contain clause "D". In this act of appellant, he is alleged to have wilfully and deliberately assisted the absconding accused Zaffar S. Shaikh and Saleem Merchant in realizing an amount of L.C. worth U.S. Dollars 24,7500 (of 4500 bales) of substandard bleached cloth from Habib Bank Limited Foreign Exchange Branch. In the challan, submitted against appellant and acquitted accused, Zaffar S. Shaikh is shown as an absconder and N.B.Ws. were issued against him, when Investigating Officer Hatim Ali Baloch appeared before the Court and stated that the said accused was not traceable as he had left Pakistan. The statements recorded by the Investigating Officer in that respect were brought on record and after declaring him as absconder, the trial Court proposed to frame charge but because the prosecution sanction for the trial of public servants in the case was not available, reference was made to the Ministry of Interior for obtaining prosecution sanction, which was never accorded and after the lapse of statutory period of 60 days, the Court under its order, dated 18-5-1985, presumed that the sanction was accorded and proceeded with the case. On 20-2-1986, the charge (Exh.8) was framed against the 5 accused before the Court, to which, they pleaded not guilty and claimed to be tried. Prosecution examined as many as 21 witnesses, some of whom tendered in evidence the relevant documents to prove the charge against the accused. For the sake of brevity, the names of the witnesses and the documents produced by them need not be referred. The State has not filed any acquittal appeal against the acquittal of the 4 accused named above. The bulky record of the evidence in the case, which pertains to the acts of omission and commission by all accused would therefore, not be referred in this judgment except such portions of the evidence that pertain to the appellant herein. The charge (Exh.8) against the appellant was, that he in complicity with co-accused Jameel Hyder, Jameel Siddiqui and Muhammad Ramzan (all acquitted), employees of T&T Department, Government of Pakistan and in complicity with absconding accused Zaffar S. Shaikh, prepared false telexes purporting to have been issued by Messrs T.P.D.C. Iran to the Inspecting Agent (appellant Jalal Ahmed) of Messrs Loyds Agent (Messrs Mackanon Meckanze) and made relaxation of the condition in the original L.C. and invoice after having obtained illegal gratification of Rs.500 for each telex message from accused Saleem Merchant. Further charge against the appellant was that he alongwith acquitted accused Saleem Merchant and absconding accused Zaffar S. Shaikh used as genuine the telex messages, which to-their knowledge were forged and issued fake inspection reports, which were contrary to the test report in favour of absconder Zaffar S. Sheikh. Yet, further charge against appellant is that he, the acquitted accused Saleem Merchant and absconder Zaffar S. Shaikh obtained by deceitful means a sum of U.S. Dollars 24,75,00 without any lawful justification on the basis of inspecting reports, allegedly prepared by appellant. I have been taken through the evidence of the material witnesses, one of whom is P.W.5 S. Imtiaz Hyder (Exk.29), who joined the Mackanon Meckanze as Executive Director after retirement in the year 1976. He produced a report (Exh.33), which, he prepared on his visit to Teheran. The report indicates that the entire fraud in the case was committed by Zaffar and Farooq Shaikh but nothing is found from his evidence as to either complicity or collaboration of the appellant in the entire racket. This report (Exh.33) was one of the most important pieces of documentary evidence, the perusal of which completely exonerated the appellant Jalal Ahmed Khan. The contention of the learned counsel is that the appellant was not surveyor but he was only serving as Manager in Messrs Mackanon Meckanze Ltd. but throughout the judgment, the trial Court has attributed role of the Surveyor to the appellant, and such erroneous approach of the trial Court resulted into miscarriage of justice. According to the learned counsel, in respect of the charge against the appellant, no question has been put while recording his statement under section 342, Cr.P.C. and the finding of the learned trial Court that the charge is duly proved is without any merit and cannot be sustained. It is also contended that appellant is convicted under sections 468 and 471, P.P.C. and reading the charge against the appellant, the whole fabric of the prosecution would fail as the learned trial Court has gone beyond the scope of the charge and convicted appellant for extraneous reasons. The last contention of the learned counsel is that on same evidence co-accused have been acquitted and the prosecution evidence against them is not believed and in any case such untrustworthy evidence could not have been believed against the appellant. Before concluding their arguments, the learned counsel referred to the case of Miran Bux v. Niaz and others 1975 SCMR 337, where it was observed that it was not necessary for accused to set up any definite case but it is sufficient for accused to manage to cast doubts on prosecution case. Learned counsel appearing for the State have not supported the conviction and sentence and both of them have stated that the case against appellant was identical to the case of acquitted accused, rather a better case and on such evidence conviction could not have been recorded. I have considered various contentions of the learned counsel and have gone through the entire evidence, most of which, consists of documents or the oral testimony of witnesses, which was at all not necessary to be recorded. In any case, the first portion of the charge (Exh.8), is, that appellant, in complicity with co-accused Jameel Hyder, Jameel Siddiqui and Muhammad Ramzan and absconding accused Zaffar S. Shaikh prepared false telex messages, purporting to have been issued by the Importer T.P.D.C. of Iran. On this charge, the 3 accused Jameel Hyder, Jameel Siddiqui and Muhammad Ramzan are acquitted, as it was not established against them that they being the public servants and employees of T&T Department, prepared false telex messages. On same evidence, it is not understood as to how appellant could have been convicted under section 468, P.P.C. It would be advantageous to reproduce section 468 of P. P. C.: "

468. Forgery for purpose of cheating.

Whoever commits forgery, intending that the documents forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. " Whatever the evidence in respect of this charge, does not connect the appellant herein with the offence as there was no evidence that the appellant either committed forgery or used forged documents as genuine. In the case of Ali Anwar and 2 others v. The State 1988 PCr.LJ 2107 it was observed that where there was no evidence of forgery and using forged documents as genuine, the conviction and sentence under sections 468 and 471, P.P.C. could not be sustained- There is also no evidence against the appellant that he used as genuine a forged document i.e. the two telex messages, which he knew or had reason to believe to be forged. Needless to say that the acquitted accused were also charged with the same offence falling under section 471 of P.P.C. but have been acquitted and I would again observe that the learned trial Court ought not to have recorded conviction against the appellant on the basis of evidence, which was disbelieved regarding acquittal accused. In my view the evidence of P.W.5 S. Imtiaz Hyder was material for the purpose of determining the guilt or innocence of the appellant herein. At the time, his evidence was recorded, he was working in Mackanon Meckanze of Pakistan as Executive Director During his cross-examination to- the counsel for appellant, he admitted that any manager of the department could sign the survey reports and that some of the survey reports were counter-signed by him and other reports were signed by some other managers. He also admitted that all reports were signed in good faith. This witness had even visited Iran regarding the consignments in question to clarify the doubts if they had any, regarding the service of Mackanon Meckanze. He admitted that the Chairman T.P.D.C. had informed that the telexes were sent from his office by some of the staff member but working in the interest of Messrs Adamji Industries. He also admitted that the appellant worked as manager in the department for about 7 or 8 years and in his opinion appellant was extremely honest, efficient and man of high integrity. He also admitted that whatever accused Jalal had done was according to the instructions and not acted on his own. Such important piece of evidence has completely been ignored by the learned trial Court, who has convicted appellant while on the same evidence, acquitted the co-accused. From the impugned judgment, it is noticed that the learned trial Court took appellant to be a surveyor when in fact he was not. P.W.6 Shafiqur Rehman and P.W.9 Aurangzeb were the surveyors, while, the appellant was a Manager in Mackanon Meckanze. No question was put to the accused during his statement under section 342 of Cr.P.C. that he was working in Mackanon Meckanze as a surveyor. This clearly shows that the relevant aspects of the evidence as to the designation of the appellant escaped the notice of the learned trial Court. The two surveyors referred to above have completely exonerated the appellant and have stated that accused Jalal Ahmed had done nothing in this case. The main beneficiary in the case was Zaffar S. Shaikh, Chairman Adamji Industries, who succeeded in getting huge amount in foreign exchange towards the export of substandard bleached cloth sheets. There is no evidence on record that the appellant derived any gain out of transmitting false telex messages through his office machines with the aid and assistance of the acquitted accused, who were the employees in T&T Department. Burden of proof is always on the prosecution and it would shift to accused to disprove only when the prosecution had duly discharged its burden. In the instant case the charge against the appellant was not proved at all as the evidence against the appellant was incoherent, full of doubts and not worthy of reliance. In my view the case of appellant was on better footings than the case of the acquitted accused or in any case identical to their case. In the case of Khalid Hussain and others v. The State 1989 PCr.LJ 772, it was observed that it is not accused who was to prove his innocence. It is always for prosecution to prove case against accused beyond any doubt and accused is always at liberty to take any type of defence. The learned counsel appearing for the State have fairly conceded that the conviction and sentence awarded to the appellant cannot be sustained. I agree with them and as also with the learned counsel appearing for the appellant, that the scanty evidence, falling short of the ingredients of the offences with which the appellant was charged, cannot be made basis of either recording or sustaining conviction. As a result of above discussion, I accept this appeal, set aside the conviction and sentence and acquit the appellant. There are the reasons for the short order, dated 12-6-1994. N.H.Q./J-189/K Appeal accepted