P L D 1962 (W (PLP)

A. R. CHANGEZ, J.‑This appeal has been filed by the State against the order of Gazi Ghazanfar Hussain, Special Judge, Lahore, dated the 7th of December 1959, whereby Muhammad Yunus and Naseer Ahmad respondents were acquitted. Both the respondents were tried under sections 120‑B, 420 and 468 of the Pakistan Penal Code read with subsection (2) of section 5 of the Prevention of Corruption Act (11 of 1947), on the allegations that they had entered into a criminal conspiracy to cheat the Government, and in pursuance of the conspiracy had forged false money orders in the month of November 1957 at Narowal, and had by practising deceptions, fraudulently and dishonestly realised Rs.2,255, from the General Post Office, Lahore, on the basis of the forged money orders.

2. The case for the prosecution is briefly as follows: Muhammad Yunus respondent was employed as a clerk in the Sub‑Post Office, Narowal, in the month of November 1957. Naseer Ahmad respondent was his friend and used to visit him occasionally in the Sub‑Post Office. He was employed as a clerk in the office of the Board of Revenue at Lahore. It is alleged that in November 1957, Muhammad Yunus respondent forged money orders, Exh. P. A. for Rs. 570, Exh. P. B. for Rs. 590 Exh. P. D. for Rs. 550 and Exh. P. E. for Rs.

545. The two money orders, Exhs. P. A. and P. B., were payable to "M, Aslam Farooqi C/o Manager of Malik Hotel and Restaurant, Railway Chowk, Lahore." The name and address of the remitter in these money orders was given as "M. S. Qureshi, village and P. O. Sukho Chak, Tehsil Narowal, District Sialkot". The money orders, Exhs. P. D. and P. E. were payable to "M. Aslam Farooqi, B.A., care of Manager, Qaisar Hotel, Beroon Shah Alam Gate, nizad District Transport, Lahore". The name of the remitter in these money orders was given as "M. S. Qureshi Advocate, P. O. Zafarwal, Tehsil Narowal, District Sialkot". These money orders were received in due course in the General Post Office, Lahore. Two money orders (Exhs. P. D. and P. E.) were given to Abdul Waheed Postman (P. W. 5) for disbursing them to M. Aslam Farooqi. He went to Qaisar Hotel and learnt that the addressee was at the time residing in Malik Hotel. He then visited Malik Hotel on the 13th of November 1957 and found Naseer Ahmad respondent present in that hotel. Naseer Ahmad respondent put his signatures Exh. P. D./A on Exh. P. D. and P. E/A on P. E. as M. Aslam Farooqi. As the postman did not know this respondent personally, he asked the Manager of the Hotel, Mr. Nasir‑ud‑Din, to attest the signatures of the respondent. Mr. Nasir‑ud‑Din, accordingly, put his signatures on the money orders by way of attestation of the signatures of M. Aslam Farooqi.

3. Money orders Exhs. P. A. and P. B. were received In the General Post Office on the 19th of November 1957. The 6fficials of the Post Office suspected that these money orders were not genuine. Mr. Ahmad Hassan, Head Clerk (P. W. 12), sent the telegram Exh. P. H. to the Sub Post Office, Narowal, making enquiry about the genuineness of these money orders. In reply, the telegram Exh. P. G. was received from Narowal Sub Post Office which conveyed the information that the money orders were not genuine. On the 23rd of November 1957, Mr. Ahmad Hassan asked Abdul Waheed postman to contact the payee and ask him to receive the money from the General Post Office. On the same day, the postman informed him that the payee was present in the post office. Mr. Ahmad Hassan P. W., informed Pir Abdur Rashid (P. W. 4) about it and directed S. K. Akhtar, Inspector Post Offices (P. W. 13) and F. H. Akhtar, Inspecting Postmaster, Lahore (P. W. 1), to inform the police about it. He also informed Afzal Hussain Gilani (P. W. 11) about it and asked him to bring the money from the treasury. In the meantime Mr. S. K. Akhtar (P. W. 13) drafted the report Exh. P. C. and after it was signed by Mr. F. H. Akhtar (P. W. 1), he proceeded with It to the Anarkali Police Station and met A. S. I. Aziz‑ud- Din (P. W. 21) on the way, and handed over Exh. P. C. to him. The A. S. I. accompanied Mr. S. K. Akhtar to the post office. Afzal Hussain Gilani (P. W. 11), who was a window Clerk in the G. P. O., Lahore, in those days, obtained the signatures of Naseer Ahmad respondent on the back of the money orders Exhs. P. A. and P. B., who signed them as M. Aslam Farooqi. He then paid Rs. 1,160 to him. Meanwhile the A. S. I. reached the post office and saw Naseer Ahmad respondent holding the currency notes in his right hand. He recovered the currency notes of the value of Rs. 1,160 from him and took them into possession vide memo. Exh. P. L. He also took into possession the money orders Exhs. P. A. and P. B. vide memo. Exh. P. M. He also took into possession the telegrams Exhs. P. G. and P. H. vide memo. Exh. P. O. During the investigation he took into possession the register of Malik Hotel vide memo. Exh. P. C. Naseer Ahmad respondent led him to his office and from there the A. S. I. recovered the letter marked "E", along with the envelope marked "F" from his drawer which were taken into possession vide memo. Exh. P. P. He arrested Naseer Ahmad respondent on the same day. Muhammad Yunus accused was also arrested on the same day near the Commercial Buildings, Lahore. Some specimen writings were obtained from both the respondents, and the money orders and the specimen writings were sent to Muhammad Ali Anwar Naumani, Handwriting Expert (P. W. 6). Sub‑Inspector Sohne Khan of the Special Police Establish ment obtained the sanction Exh. P. S. for the prosecution of Muhammad Yunus respondent. He then prepared the formal F. I. R. (Exh. P. K.) and after completing the investigation sent up the two respondents for trial.

4. At the trial, 22 witnesses were examined In support of the prosecution case. Muhammad Yunus respondent denied having forged the money orders Exhs. P. A., P. B., P. D. and P. E. Naseer Ahmad respondent denied that he received any money on the basis of the money orders Exhs. P. D. and P. E. from Abdul Waheed Postman. He also denied having come to the General Post Office on the‑ 23rd of November 1957. He further denied having signed as "M. Aslam Farooqi" on the back of the money orders Exh. P. A. and P. B. He also denied having received Rs. 1,160 on the basis of the money orders Exhs. P. A. and P. B. He pleaded that he was called from his office through a police constable to the Anarkali Police Station where he was falsely implicated in this case. Fateh Muhammad (D. W. 1), Fazal Karim (D. W. 2) and Najeeb Ali (D. W. 3) have stated that a police constable had come to the office of the Board of Revenue and had asked Fateh Muhammad peon to send Naseer Ahmad respondent to the Old Anarkali Police Station, and in response to it, Naseer Ahmad respondent had gone to the police station. Muhammad Afzal (P. W. 4) produced the application Exh. D. J., which had been submitted by Naseer Ahmad respondent. Mr. Cyril G. Bhan, Handwriting Expert (D. W. 5) appeared on behalf of Muhammad Yunus respondent and stated that the writing on the money orders Exhs. P. A., P. B., P. D. and P. E. is not in the band of Muhammad Yunus. Mr. Zaka A. Malik, Handwriting Expert (D. W. 6), appeared on behalf of Naseer Ahmad respondent and stated that the signatures "M. A. Farooqi" on the back of the money orders Exhs. P. A., P. B, P. D. and P. E. are not in the hand of Naseer Ahmad respondent.

5. The learned Special Judge did not find sufficient evidence against Muhammad Yunus respondent and, accordingly acquitted him. As regards Naseer Ahmad respondent, he came to the conclusion that it was as a result of an illegitimate trap that Naseer Ahmad respondent had received the sum of Rs. 1,160 by signing as "Aslam Farooqi" on the back of Exhs. P. A. and P. B. In this connection, he relied on a Single Bench judgment of the Madras High Court In re: M. S. Mohi‑ud‑Din (A I R 1952 Mad. 561). In this view of the matter he also acquitted Naseer Ahmad respondent. The State has now filed this appeal against the acquittal of both the respondents.

6. Learned counsel for Naseer Ahmad respondent has raised a preliminary objection that the trial of the respondents was vitiated because of the mis-joinder of charges. He has urged that on the allegations of the prosecution, four offences of forgery were committed in respect of the money orders Exhs. P. A., P. B., P. D. and P. E. and four different offences of cheating were also committed in respect thereof. It is true that in fact eight offences were committed. The question, therefore, arises whether all these offences could have been tried together. If these offences were committed in the course of the same transaction then in view of clause (1) of section 235 of the Code of Criminal Procedure all these offences could have been tried at the same trial. Section 235 (1) provides as follows: ‑ "If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence." The case of the prosecution is that the respondents had entered into a criminal conspiracy, and it was in pursuance of the conspiracy that these offences were committed and, as such, they formed parts of the same transaction. According to the police report under section 173 of the Code of Criminal Procedure it was alleged that these offences were committed in pursuance of a scheme. The sanction Exh P. S. also refers to the conspiracy. At the commencement of the trial the allegations put to the respondents were also to the same effect. In Ghulam Jilani v. The State (P L D 1957 Lah. 290), I had an occasion to deal with this question at some length and, after reviewing a number of authorities, I had come to the conclusion that even if different offences are committed on different occasions in pursuance of a conspiracy, they constitute the same transaction. In coming to this conclusion I had relied on the judgment of the Privy Council in Babulal Chowkhani v. The King‑Emperor (65 I A 158), where their Lordships, while dealing with section 239 (d) of the Code of Criminal Procedure, had interpreted the expression "the same transaction" as "Whatever‑scope of connotation may be included In the words `the same transaction', it is enough for the present case to say that if several persons conspire to commit offences, and commit overt acts in pursuance of the conspiracy (a circumstance which makes the act of one the act of each and all the conspirators), these acts are committed in the course of the same transaction, which embraces the conspiracy and the acts done under it. The common concert and the agreement which constitute the conspiracy serve to unify the acts done in pursuance of it." I had also relied on another judgment of the Privy Council in Mukand Singh and others v. King‑Emperor (54 I A 45), where the petition for special leave to appeal was dismissed without assigning any reasons, although the point in respect of the misjoinder of charges was specifically raised on the ground that the petitioners and some others had been jointly tried upon charges of conspiracy and for having committed a number of offences including eight murders on different occasions in pursuance of that conspiracy. On the facts of the present case, I am clearly of the opinion that the respondents had carried out a single scheme by successive acts and the offences were linked together with the thread of continuity running through them so as to present a continuous whole. It is not a case of repetition of similar offences if and when an occasion arose. I am, therefore, of the view that all the offences were committed in the course of the same transaction. Learned counsel for the respondent has not been able to cite any authority to the contrary. I, therefore, see no merit in this objection and overrule it.

7. Turning now to the merits of the case, I find that there is hardly any evidence to connect Muhammad Yunus respondent with the offence. Muhammad Asghar, Clerk, Post Office, Narowal (P. W. 8), and Abdur Rashid, Postman, Narowal (P. W 9), have stated that Muhammad Yunus respondent was posted in the Post Office, Narowal, in the month of November 1957, and that Naseer Ahmad respondent used to visit Muhammad Yunus in the post office. This evidence only establishes that Naseer Ahmad respondent was on friendly terms with Muhammad Yunus respondent. From the evidence of Muhammad Bashir, Sub‑Postmaster, Narowal (P. W. 7), and Ghazanfar Husain, Clerk (P. W. 16), there can be no doubt that the four money orders, Exhs. P. A., P. B., P. D. and P. E., had been sent from the Post Office, Narowal, to the General Post Office, Lahore, and that they were false money orders. This establishes that someone in the Post Office, Narowal, was responsible for sending these four money orders to Lahore. Another piece of evidence on which the prosecution relies is the opinion of the Handwriting Expert Mr. Muhammad Ali Anwar Naumani (P. W. 6), who has stated that the person who wrote specimen writings in Urdu and English is Exhs. P. 2, P. 3, P. 4, P. 8, P. 9, P. 10, P. 14, P. 15, P. 16, P. 23, P. 24 and P. 25 also wrote the English writing on the face of Exh. P. A. (except the portion marked C. 8), on the face of Exh. P. B., on the face of Exh. P. E. and the signatures "M. Aslam Farooqi" marked Exh. P. E/1 and the writing on the face of Exh. P. D. and the signatures "M. Aslam Farooqi" marked Exh. P. D./1 and the entry marked Exh. P. I/A in Exh. P.

1. As against this, Mr. Cyril G. Bhan, Handwriting Expert (D. W. 5) has stated that the writing on the money orders Exhs. P. A., P. B., P. D. and P. E. Is not in the handwriting of Muhammad Yunus respondent. It is really very unfortunate that the Magistrate in whose presence the specimen writings were written by the respondents was not examined at the trial and no questions were put to the respondents to find out if the alleged specimens of writing were, in fact, written by them. It is not clear, which specimen writings were obtained from Muhammad Yunus respondent and which from Naseer Ahmad respondent. But even if it is assumed that Mr. Naumani had compared the specimen writings of Muhammad Yunus respondent with the writings on the money orders, then also, in the circumstances of the present case, it is difficult to come to a definite conclusion that these money orders were in fact written by Muhammad Yunus respondent. The evidence of Mr. Naumani stands contradicted by the testimony of another Handwriting Expert Mr. Cyril G. Bhan. Besides, it is now well, settled that a conviction cannot be based merely on the testimony of the handwriting expert. In the present case the. Sub‑Postmaster and clerks of the Post Office, Narowal, were examined at the trial, and Muhammad Bashir (P. W. 7) did say that he could identify the handwriting of Muhammad Yunus, but in spite of the Public Prosecutor did not examine them on the question whether the money orders Exhs. P. A., P. B., P. D. and P. E. were in the handwriting of Muhammad Yunus respondent.

8. The only other piece of evidence on which the prosecution has relied is that Muhammad Yunus respondent was arrested in Lahore from the Commercial Buildings on the 23rd of November 1957, soon after Naseer Ahmad respondent was caught red‑handed in the General Post Office. It may have been a coincidence that he was in Lahore on that date, but in any case, this, by itself, does not raise any presumption of guilt against Muhammad Yunus.

9. There is no other evidence to connect Muhammad Yunus respondent with the offences, and consequently, the appeal filed by the State against him is hereby dismissed. He is on bail. He is discharged from his bail‑bond.

10. The case of Naseer Ahmad respondent, however, stands on a different footing. From the evidence of Ghazanfar Hussain (P. W. 16) it is clear that Money Order No. 4202 dated 5‑11‑57 for Rs. 2 and Money Order No. 4273 dated 8‑11‑57, for Rs. 2‑8‑0, were sent to Shama Cross‑words Puzzle, Lahore, and Money Order No. 4307 dated 9‑11‑57, for Rs. 3, and Money Order No. 4329, dated 9‑11‑57, for Rs. 2‑10‑0 were sent to Shama Cross‑words Puzzle, Lahore, and Copying Supervisor, Sialkot, respectively. It appears that the culprit then forged the money orders, Exhs. P. A., P. B., P. D. and Y. E. and put the Nos. 4329, 4307, 4202, and 4273 on them, respectively. Exhibits P. D. and P. E. were received in the General Post Office some time before the 13th of November 1957, and were banded over to Abdul Waheed, Postman (P. W. 5), for disburse ment. Postman Abdul Waheed has categorically stated that he had found Naseer Ahmad respondent present in Malik Hotel on the 13th of November 1957 and he had put his signatures in his presence at Exhs. P. D/A on P. D. and at P. E/A on P. E. as "M. Aslam Farooqi" and he had accordingly paid the amount to him after getting the signatures attested by Nasir‑ud‑Din, Pro prietor of Malik Hotel. Both these money order forms do bear the signatures of Nasir‑ud‑Din, Proprietor of Malik Hotel; but. somehow, Nasir‑ud‑Din (P. W. 3) was not put any question about it. It was only seven days later that Naseer Ahmad respondent was caught red‑handed in the General Post Office and as a matter of fact it was Abdul Waheed Postman, who had informed Mr. Ahmad Hassan (P. W. 12) that the payee was present in the Post office. The learned Special Judge was, therefore, not justified 9n rejecting the testimony of Abdul Waheed Postman. In view of the circumstances of the case, I see no reason to doubt the veracity of this witness. He had no malice against Naseer Ahmad respondent. He could not have forgotten the respondent, to whom he had paid a big sum of money only a week earlier. T accordingly hold that Naseer Ahmad had obtained the money on the basis of the money orders Exhs. P. D. and P. E., amounting to Rs. 1,095 by posing himself as "M. Aslam Farooqi". He put these signatures knowing that he was a fictitious person, and he intended it to be believed that he was a real person. He, thus practised deception and dishonestly and fraudulently obtained Rs. 1,095.

11. What happened on the 23rd of November 1957 is depos ed to by F. M. Akhtar (P. W. 1), Pir Abdur Rashid (P. W. 4), Afzal Hussain Gilani (P. W. 11), Ahmad Hassan (P. W. 12), S. K. Akhtar (P. W. 13) and A. S. I. Aziz‑ud‑Din (P. W. 21). The evidence of these witnesses leaves no room for doubt that on the 23rd of November 1957, Naseer Ahmad respondent had gone to the General Post Office and had signed the money orders Exhs. P. A. and P. B. at P. A/1 and P. B/1 as "M. Aslam Farooqi" and had obtained Rs.1,160 from Afzal Hussain Gilani. Mr. F. H. Akhtar (P. W. 1), Mr. Afzal Hussain Gilani (P. W. 11) and Mr. Ahmad Hassan (P. W. 12) have categorically stated that Naseer Ahmad respondent had signed the money order forms Exhs. P. A and P. B. and had obtained the money from the clerk concerned. Soon after this, Rs. 1,160 were recovered by A. S. I. Aziz‑ud‑Din (P. W. 21) from the possession of Naseer Ahmad respondent and there is ample evidence in support of it. The plea of Naseer Ahmad respondent that he was sent for from his office through a police constable and was then caught by the police is too fantastic to be believed. In view of tree direct and reliable evidence that Naseer Ahmad respondent had signed the Money Orders as "Aslam Farooqi", I am not prepared to attach any value to the opinion of Mr. Zaka‑A Malik on the point.

12. The question which now remains to be determined is as to what offence was committed by Naseer Ahmad in respect of the money orders Exhs. P. A. and P.B. It has been urged by the learned counsel for Naseer Ahmad respondent that the offence of cheating was not committed because the money was not given to the respondent as a result of deception practised on Afzal Hussain Gilani Y. W. It is true that the officials of the General Post Office knew at the time when the money was paid to Naseer Ahmad respondent that the money orders were bogus, but in spite of this, the money was‑paid to him after obtaining his signatures on the money orders. Obviously, the money was paid to Naseer Ahmad respondent with a view to entrap him. In view of the fact that the Post office officials were forewarned, it cannot be said that they were cheated when they paid the money on the basis of the money orders Exhs. P. A. and P. B. to Naseer Ahmad respon dent. But all the same I have no doubt in my mind that Naseer Ahmad respondent did attempt to cheat the officials of the post office. The act of the respondent by putting signatures on the money orders in the name of a fictitious person concluded his act so far as he was concerned. Whether he got the money or not did not depend upon any future act of his. If the officials of the post office had not paid the money to him, yet the offence of attempt to cheat was completed, because all what was necessary for him to do had been done by him. He is, therefore, guilty under section 420/511, Pakistan Penal Code. If any authority is needed for this proposition the case of Government of Bengal v. Humesh Chand Mittar (I L R 16 Cal. 310) may be referred to.

13. The learned Special Judge was also satisfied that Naseer Ahmad respondent was paid Rs. 1,160 towards the bogus Money Orders Exhs. P. A. and P. B. on the 23rd of November 1957 in the General Post Office, Lahore, and the money was actually recovered from him, but relying on A I R 1952 Mad. 561, he had acquitted him. I have carefully gone through this ruling and I am cons trained to remark that the learned Special Judge was not justified in holding that the offence had not been borne out and that it was as a result of an illegitimate trap that Naseer Ahmad respondent had received the amount. In fact, the offence had been born long before the 23rd of November 1957. I cannot believe it for a moment that Naseer Ahmad did not know that the four money orders were bogus money orders. As soon as these money orders were forged the offences of forgery had been committed and it was only when the respondent Naseer Ahmad tried to reap the fruits of the forged money orders, that he was caught red‑handed in the General Post Office on the 23rd of November 1957. He had already received Rs. 1,095 earlier on the basis of Money Orders Exhs. P. D. and P. E. The ruling relied upon by the learned Special Judge has, therefore, no application to the facts of the present case. Otherwise too, there is no evidence of an illegitimate trap. There is nothing to indicate that Naseer Ahmad had come to the General Post Office on the 23rd of November 1957 at the invitation of the officials of the Post office. It is true that Ahmad Hassan, Clerk, has stated that he had asked Postman Abdul Waheed to inform this respondent to receive the money from the General Post Office, but Abdul Waheed Postman, has nowhere stated that he had contacted Naseer Ahmad respondent and had asked him to go to the General Post Office. In fact, he says nothing about it. Ahmad Hassan P. W. however, has stated that on the same day Abdul Waheed Postman had informed him that the payee was present fn the post office. It may be that Abdul Waheed Postman, who had already paid to Naseer Ahmad Rs. 1,095 on the basis of money orders Exhs. P. D. and P. E., saw this respondent present in the General Post Office and informed the officials of the post office that the payee was present in the post office. In these circumstances, only this much can be said that the officials of the post office knew that the money orders were bogus. But this does not mean that when they paid the amount to Naseer Ahmad, respondent, they were laying an illegitimate trap with a view to entrap him. In fact they did not know at that time that this respondent was not "M. Aslam Farooqi". Besides, all that the ruling has laid down is that in the case of an illegitimate trap, one should look for untainted evidence in support of the prosecution case. It cannot be denied that in the present case there is sufficient independent evidence in support of the prosecution case.

14. On a careful consideration of the facts of the case, I feel satisfied that Naseer Ahmad is guilty of offences under sections 468, 420 and 420/511, Pakistan Penal Code. He had put his signatures on the money order forms as " M. A. Farooqi", who was a fictitious person and he intended it to be believed that the docu ment was made by a real person. He, therefore, did make a false document with a view to cheat and, as such, his act is covered by section 468, Pakistan Penal Code. I accordingly sentence him to 18 months' rigorous imprisonment under section 468, Pakistan Penal Code. I also sentence him to 18 months' rigorous impri sonment and a fine of Rs. 1,095 under section 420, Pakistan Penal Code, in respect of the Money Orders Exhs. P. D. and P. E. In default of payment of fine, he should undergo further rigorous imprisonment for a period of nine months. He is also sentenced to nine months' rigorous imprisonment under section 420/511, Pakistan Penal Code, in respect of the Money Orders Exhs. P. A. and P. B. The sentences imposed on him for the various offences shall run concurrently. The fine, if realised, shall be paid to the Post‑Master, General Post Office, Lahore.

15. The result is that the appeal filed by the State is dismissed as against Muhammad Yunus respondent, but is accepted as against Naseer Ahmad respondent who is convicted and sentenced as mentioned above. Naseer Ahmad respondent should now be arrested and required to serve out the sentence imposed on him.

16. In conclusion, I am constrained to remark that the case was very perfunctorily conducted by the Public Prosecutor. He did not examine the Magistrate who had obtained the specimen writings from the respondents. He did not ask the officials of the Sub‑Post Office, Narowal, who were expected to identify the hand writings of Muhammad Yunus, whether the forged Money Orders were in his hand. He also failed to ask Nasir‑ud‑Din (P. W. 3), if he had attested the signatures of Nasir Ahmad respondent as "Aslam Farooqi" on the Money Orders 8xhs. P. D. and P. E., although his signatures do appear on these Money Orders. The learned Special Judge also did not try the case with the care which was expected of him. Let a copy of this judgment be sent to the Government for taking such action in the matter as it may deem fit. MUHAMMAD DAUD KHAN, J.‑I agree. K. B. A. Appeal partly accepted.