2001 P Cr (PLP)

3. Precisely, the facts of the prosecution case are that the abovementioned case was registered on 3‑10‑1989 by the Deputy Director, Crime Circle No. 1 as Crime No. 1 of 1989 on the written complaint of Mirza Afzal Baig, Senior Post Master (Treasury), Karachi vide his letter, dated 2‑10‑1989 to the effect that the Investigating Team, appointed by the Post Master General (Metropolitan), Karachi vide letter of even number, dated 24‑9‑1989, have unearthed an embezzlement of Rs.17,23,000 in the General Post Office Treasury, Karachi. The appellants, namely Fazal Haque Shahzad, Head Treasurer, Sajjad Hussain, Assistant Treasurer and Muhammad Mushtaq, Assistant Treasurer and co‑accused Muhammad Iqbal, Stamp Vendor were found involved in the said embezzlement in the enquiry. During the investigation, statements of Mirza Ahmed Baig, Mrs. Sanober Asghar, Yasin Qureshi, Syed Hamid Ali, Maqbool Ahmed, Sirajul Haque, Nooruddin Qamar, Attual Haque, Muhammad Hanif, Abdul Mehmood, Muhammad Shafi and Ghulam Rasool were recorded from which it transpired that misappropriation of Rs.17,23,000 has been done from 31‑1-1989 by the appellants as well as co‑accused Muhammad Iqbal in convenience with each other by increasing fictitious figures in the total of credit instruments in daily Head Office Summary and withdrawing the same subsequently from the treasury branches assigned to the appellants. The case of the prosecution is that the said cash was being withdrawn either by cash of through P.T. statements by co‑accused Muhammad Iqbal. All the four accused were arrested on 3‑10‑1989. Co‑accused Muhammad Iqbal confessed his guilt and volunteered to make confession which was recorded by the learned A.C.M. No.2, Karachi East. Irrespective of the above, Shamsuddin and Syed Smauzzaman were also arrested in this case. After usual investigation, challan was submitted before the abovementioned Court for trial. As no sanction for prosecution was received from the Ministry of Interior, Government of Pakistan, Islamabad even after lapse of statutory period of sixty days, as such sanction for prosecution was presumed to have been accorded on 8‑7‑1991.

4. Formal charge was framed against the appellants and the co‑accused to which they pleaded not guilty and claimed to be tried.

5. At the trial prosecution examined P.W. Mirza Afzal Baig, complainant, Senior Post Masters P.W. Sanobar Asghar, Principal, P.W. Maqbool, Superintendent Local Post Office, P.W. Syed Shahzad Naqvi, S.D.M., P.W. Allah Bux Pathan, Assistant Director, F.I.A. Prosecution gave up P.Ws. Yasin, Noorul Qamar Qasim, Abdul Mahmood and Shafi Vohra. P.Ws. Ghulam Rasool, Muhammad Hanif and Attaul Haque, Israrul Haque, Syed Hamid Ali could not be served by the Investigating Officer. 5‑A. Statement under section 342, Cr.P.C. of the appellants was recorded in which they denied the case of the prosecution and claimed innocence. They did not examine themselves on oath, although they in their statements under section 342, Cr.P.C: claimed the same but subsequently withdrew it. They also did not examine any other person in their defence.

6. The trial Court framed the following points for determination:‑‑ (1) Whether accused Fazal Haque Shahzad was posted as Head Treasurer, Sajjad Hussain Bhatti posted as Assistant Treasurer, Muhammad Mushtaque posted as Assistant Treasurer and accused Muhammad Iqbal was posted as Stamp Vendor in G.P.O., Karachi and as such they were public servants? (2) Whether accused Fazal Haque Shahzad being public servant with other co‑accused Sajjad Hussain Bhatti, Muhammad Mushtaq and Muhammad Iqbal with common intention misappropriated an amount of Rs.17,23,000 entrusted to them and misappropriated the said amount and committed criminal breach of trust in respect of the said amount? (3) Whether accused Fazal Haque Shahzad, Sajjad Hussain Bhatti, Muhammad Mushtaque, and Muhammad Iqbal being public servants in collusion with two private persons/accused namely Sami‑uz- Zaman and Shamsuddin misappropriated the amount Rs.17,23,000 of Government money? (4) What offence, if any, accused have committed? 7 On the assessment of evidence, the appellants were found guilty and were sentenced as mentioned above whereas accused Muhammad Iqbal, Syed Sami‑uz‑Zaman and Shamsuddin were acquitted

8. I have heard Messrs Muhammad Ilyas Khan, Ali Akbar and Rana Muhammad Shamim, Advocates on behalf of the appellants and Mr. Mushir Alam, Standing Counsel for the State and have gone through the R&Ps and the judgment at length.

9. Mr. Muhammad Ilyas Khan mainly contended that the learned trial' Judge while convicting the appellants, has failed to appreciate the evidence. On one hand he did not believe the case of the prosecution against accused Syed Sami‑uz‑Zaman, Shamsuddin, and Muhammad Iqbal and on the other hand, believed the same piece of evidence against the appellants without showing any cogent reason except that the learned Prosecutor had conceded to their acquittal. According to him, the alleged offence was said to have started from 31‑1‑1989 and was registered on 3‑10‑1989 after a period of about 9 months for which no plausible explanation of any sort has been furnished by the prosecution, the benefit of which goes in favour of the appellants. He further argued that from the evidence recorded At trial, no offence under section 409, P.P.C. has been made out against the appellant Fazal Haque Shahzad as its most important ingredient of entrustment of the property has not been specifically proved against him and in its absence, he cannot be convicted. Neither complainant nor the Investigating Officer namely Allah Bux, have stated in the evidence that appellant Fazal Haque had the exclusive dominion over the cash property and that it was he, who has embezzled the same. According to him, an audit party consisting the Accounts Officer and his assistant from the Circle Office, Karachi audited the accounts of the treasury in June, 1989 and did not find any sort of forgery or embezzlement though the offence was alleged to have been committed from 31‑1‑1989‑to 19‑9‑1989, as such the appellants cannot be held responsible for the same. According to him, the entire case of the prosecution is based upon the enquiry report but the evidence recorded in such enquiry, has neither been brought on record nor any one from Enquiry Officers has been examined at the trial as such conviction has not been based on proper reasoning. In this case nothing specific as to the manner in which the misappropriation took place and its time or any documentary proof to that effect has been produced at trial. Even the cheques wherein it is said that an overwriting was made and forgery was committed and the amount was enhanced and such payments were obtained from the treasury, were never produced and exhibited in the evidence by the complainant or the Investigating Officer. In such circumstances, the learned counsel urged that provisions of section 409, P.P.C. will never be attracted. He further argued that the Investigating Officer Allah Bux in his statement has categorically stated that during: the earlier enquiry, he seized documents which were bearing the signatures of appellant Sajjad Hussain Bhatti. He admitted that he has neither produced any treasury hook nor cash summaries which used to be sent to the Head Office after tallying the same with the cash book. These summaries were signed by the appellant Sajjad Hussain Bhatti. He has further deposed that during enquiry he came to know that there were two keys maintained of the cash drawer, one used to remain with the appellant Fazal Haque Shahazad and the second was with the Post Master viz. the complainant. Despite this, he arrested the appellant only and did not arrest the complainant. From this, it is argued that the appellant Fazal Haque had no exclusive dominion over the safe where the cash or other documents were lying. In such situation, he cannot be held responsible alone and convicted under section 409, P.P.C. He lastly, submitted that no incriminating evidence viz. the entries of the ledger book signed by the were either shown to the appellant Fazal Haque nor he was asked any question with regards to the same in his statement under section 342, Cr.P.C, as such the said piece of evidence cannot be calculated against him. Even no question as regards the overwriting, adding or 3feparing forged document viz. cheques arid getting the same encashed from the treasury in collusion with other appellants have been asked from him in his collusion with other appellants have been asked from him in his statement under section 342, Cr.P.C. and as such, this piece of evidence also could not be taken to be the evidence against him. Above all, this statement was neither got signed from the appellant nor a certificate as required under section 364(2), Cr.P.C. was ever appended by the learned ‑Judge at its foot, therefore, for these reasons the entire trial vitiates and such illegality cannot even be cured under section 537, Cr.P.C. In support he relied upon the decisions reported in (i) Muneer Akbar v. The State 1992 MLD 1428, (ii) 1992 PCr.LJ 342, (iii) PLD 1994 SC 279, (iv) PLD 1971 SC 61, (v) 1991 PCr.I.J 617, (vi) 1990 PCr.LJ 396; (vii) 1989 PCr.LJ 1079 and (viii) 1992 PCr. L.J 342.

10. Messrs Ali Akbar and Rana Muhammad Shamim, for the appellants Sajjad Hussain Bhatti and Muhammad Mushtaque respectively, while adopting the arguments advanced by Mr. Muhammad Ilyas Khan added that co‑accused Muhammad Iqbal had pleaded guilty and volunteered to make confession and such confession was recorded by the learned A.C.M. m which he clearly accepted that he has caused misappropriation of Rs.17,23,000 out of which he paid Rs.23,000 whereas promised to pay the remaining balance amount, has been acquitted by the trial Court, whereas the appellants against whom there was neither direct nor an indirect evidence, have been convicted. None of the, prosecution witnesses has specifically shown the particular act by which appellants actually misappropriated the above mentioned amount. According to them, the Investigating Officer Allah Bux in cross‑examination has submitted that the charge of the treasury was either with co‑accused Muhammad Iqbal or with appellant Mushtaq but they had no dominion over the treasury. According to them, accused Muhammad lqbal used to take tickets from the treasury in the morning and sells the same and deposits the sale precedes back in the treasury. He did not find any shortage in the amount and unused tickets were deposited by him in the office at the closing hours daily. They lastly contended that neither any writings of any of the appellants were taken down nor the same Were sent to the Handwriting Expert for opinion and in the absence of the same, none of them could be held responsible for committing any misappropriation by making false entires. The Investigating Officer has categorically admitted in the cross‑examination that as per procedure of, the Post Office, it was the Post Master alone to initially see the cash and cheques in the treasury and after tallying the same he would have to sign over the cash book. They referred to the decisions reported in (i) PLD 1992 Kar. 91, (ii) 1985 PCr.LJ 864, (iii) 1973 PCr.LJ 1015, (iv) PLD 1960 SC 382 and (v) 1997 SCMR 292.

11. Admittedly, the offence is said to be spread over a period ranging from 31‑1‑1989 to 19‑9‑1989 even then the F.I.R. was not lodged within the C above period but was got registered on 3‑10‑1989 i.e. after a period of about 8 months and 12 days from the initial date and 21 days after the last date of the abovementioned period. Neither the complainant nor any other witness have particularly specified the time, date or the manner in which the offence, was said to have been committed. Simply that it started from a particular date ended on a particular date without pinpointing the manner and the responsibility in this regard, would not be sufficient for holding anyone responsible for the said offence. On this, adverting to the deposition of the complainant Mirza Afzal Baig, it is noticed that it was on 21‑9‑1989 that a meeting was held in the office of the Chief Post Master, Karachi in respect of checking of the treasury section and on that day after closing the treasury, he checked D.F.T. cheques and found that there was a shortage of Rs.17,23,

000. In his entire deposition, he has not disclosed as to since when that shortage started.

12. P.W. Allah Bux, Investigating Officer has deposed that it was the duty of the Post Master to collect the cheques and deposit the cash with the assistant of appellant Fazal Haque Shahzad. He has further stated that he was told about the procedure whereby it transpired that it was the prime duty of the Post Master to physically verify the cash in safe and treasury and after tallying the cash, he would have to close the cash and. sign the cash books. Rule 344 of the Posts; Telegraphs and Telephones Initial Account. Code provides that all the money, postage stamps, reply, coupons; British Postal Orders and Pakistan Postal Orders in the office and other articles of property and documents required to be kept in the safe or safes; are in joint custody of the Post Master and the treasurer, each of whom is provided with a key of the safe or safes. The Investigating Officer has categorically stated that during the enquiry he came to know that there were two keys of the safe, one was with the appellant Fazal Haque and another was with the Post Master. He arrested one of them namely the appellant Fazal Haque whereas did not arrest the Post Master as he was the complainant of the case. For convicting under section 409, P.P.C. the Courts will have to adhear to its ingredients strictly. Most important ingredient of this offence is that the accused being held responsible should have the dominion over, the property or would have been, entrusted with the property about which criminal breach of trust had been committed. From what has been discussed above, it clearly transpires that the appellant Fazal Haque Shahzad as well as the complainant Mirza Afzal Baig has the dominion over the cash property and appellant was not the sole person having the exclusive entrustment/domain over the cash embezzled in this case which is the main ingredient for awarding conviction. In absence of an exclusive charge, control and possession of the property misappropriated, the appellant cannot be convicted. Who out of the two has actually misappropriated the abovementioned amount, leaves sufficient room for consideration and brings the case of the appellant within the ambit of benefit of doubt. Investigating Officer has not shown any reasonable explanation of not joining the complainant in the investigation of the case or as an accused, as such the benefit of which should also be extended in favour of the appellant Fazal Haque Shahzad. Irrespective of this, the Investigating Officer has specifically stated before the trial Court that it was correct that the charge of treasury was with co-accused Iqbal or, appellant Muhammad Mushtaq but he denied that they had any dominion over the treasury. Investigating Officer also did not find any shortage in the amount and the tickets deposited by the co=accused Muhammad Iqbal. The allegation that appellant Fazal Haque Shahzad had misappropriated the amount of Rs.17,23,000 by interpolation, has been contradicted by Investigating Officer Allah Bux who, for the first time, has introduced a new version and said that while checking the cash book summary, he found that there was a deposit of Rs.10,00,000 and a cheque of that amount was submitted and appellant Fazal Haque had taken Rs.2,00,000 from the cash and enhanced the amount by overwriting in the, cheque as Rs.12,00,000 so that the amount should be balanced. This .is contrary to the case of the prosecution and renders the entire case against the appellant to be of highly doubtful nature. Which version of the two is correct, leaves room for consideration. Above all, co‑accused who confessed the guilt clearly admitted in his confessional statement recorded before the A.C.M. that he was responsible for the misappropriation of an amount of Rs.17,23,000 and promised, on 24‑9‑1989 I to make good the entire amount by 31‑12‑1989 and deposited an amount of Rs.23,000 on 28‑9‑1989 as first instalment. This was confirmed by the Enquiry Committee and they in their enquiry report at its page 2 candidly admitted that accused Iqbal claimed the misappropriation of the entire amount of Rs.17,23,000 himself and promised to make good the entire amount by 31‑12‑1989 and deposited an amount of Rs.23,000 in proof as its first instalment. In the report it is further mentioned that co‑accused Shamsuddin, Stamp Clerk was advancing P.T. statements of Rs.20,000 to Rs.25,000 to accused Muhammad Iqbal, Stamp Vendor for sale almost dally without receiving cash. The learned trial Court has acquitted co‑accused Muhammad Iqbal and Shamsuddin without giving any convincing reasons' and has totally ignored the version taken in the confessional statement as well I as in the abovementioned enquiry report. The contention that appellant Fazal Haque Shahzad accepted the guilt and made partial payment of Rs.23,000 out of the embezzled amount, in view of the above admission of co‑accused Iqbal that it was he who has paid Rs.23,000 diminishes the above ,piece of evidence against the appellant Fazal Haque. Neither cash book containing the summary relating to the embezzled amount nor the cheques referred above, have been produced in evidence, as such awarding conviction in absence of this material piece of evidence, would be highly improbable.

13. So far the case of other two appellants namely Sajjad Hussain Bhatti and Muhammad Mushtaq is concerned, there is neither direct nor indirect evidence connecting them with the commission of the offence. None of the prosecution witnesses has specifically assigned them a particular act by which they actually misappropriated the abovementioned amount. If Allah Bux has categorically stated that appellants had no dominion over the treasury, as such ingredients of section 409, P.P.C. would not be attracted against them. In absence of the evidence of Handwriting Expert, none of the appellants could be held responsible for making forged entries in the record. Above all the incriminating piece of evidence viz. preparing of forged cheques by entering an amount of Rs.12,00,000 in place of Rs.10,00,000 and the entries in the summary of the cash book having not been put to the appellants in their statements under section 342, Cr.P.C. cannot be taken into consideration against them as a piece of evidence for the purpose of conviction. Moreover, the said statements of the appellants were got recorded in clear violation of section 364(2), Cr.P.C. as the said statements have neither been got signed by the appellants nor requisite certificate has been appended with the same, as such violation of the mandatory provision of law has been made and it amounts to an illegality not curable under section 537, Cr.P.C.

14. Now I proceed to examine the law cited by the learned Advocate for the appellants. In the case of Muneer Akbar v The to 1992 MLD 1428, the Honourable Lahore High Court has dealt with a similar matter and has held that in case no direct or circumstantial evidence is available on record that the missing items were in the exclusive possession of entrustment of the accused, the offence under section 409, P.P.C. would not be attracted. In the case of Bashir Ahmed v. The State 1985 PCr.LJ 864 it has been held that prosecution not proving the entrustment of items to the accused and no evidence available that the removed items were entrusted to the accused and simply saying that there was shortage of items, would not bring the case within the criminal misappropriation. In the case of Sikandar v. The State 1990 PCr.LJ 396 this Court has dealt with both the aspects as in the present case and has held t rat material evidence should be brought to the notice of the accused in his statement under section 342, Cr.P.C. to enable him to give an explanation to that and where the requisite to certificate under section 364, Cr.P.C. has not been appended at the foot of the statement, the same amounts to an illegality not curable under the law. The same view has been taken in the cases of Ashraf Mian v. The State 1989 PCr.LJ 1079 and Raees Khan V. The State 1991 PCr.LJ

617. In the case of Maula Bux and 8 others v. The State 1977 SCMR 292 it was held that the disclosure of the names of co‑accused was not admissible in evidence for the purpose of conviction in absence of any other piece of evident‑a against the accused. In the case of Maqbool Hussain v. The State PLD 1960 SC 382 it has been held by the Honourable Supreme Court that there should be some direct or indirect evidence linking such a person with the crime before a confession made by the accused could be adverted to in adjudging the guilt of that person. Such confessional statement is over‑weakened by the circumstances that their makers had themselves resiled from the same. For what has been discussed above, I am of the considered view that prosecution has miserably failed to make out a case against the appellants and 1 giving them the benefit of doubt, they are acquitted of the charges. The conviction and sentence awarded to them are set aside and their appeals are allowed. They are on bail, their bail bonds stand cancelled. The above are reasons for my short order. H.B.T./S‑113/K Appeals allowed.