1995 P Cr (PLP)

In order to establish the charges against the appellants, it has to be proved that Voucher No.867 (Exh 9) was fraudulently prepared and that it was a forged voucher. Again, it must be proved that the appellants encashed the said Voucher No.867 and misappropriated the amount of Rs.4,612.50 which was in their entrustment. It goes without saying that the said charges must be proved against the appellants beyond all reasonable doubt by the prosecution. In order to establish the said charges, the prosecution relies on the evidence of P.W.2 Shamim Ahmed Baloch, P.W.3 Muhammad Ishaque and P.W.4 Kazi. Shamim Ahmed. As such the evidence of these witnesses so also the surrounding circumstances will have to be scrutinised in order to ascertain if the charges levelled against the appellants are established or not. P.W.2 Shamim Ahmed Baloch is the Senior Accountant in O.G.D.C., he is the star prosecution witness in this case. In his deposition Exh.5, he has stated that Sirajuddin was allowed encashment of three months leave vide order Exh.6, he has also produced the photocopy of the order all owing payment to Sirajuddin as Exh.7 and the payment Voucher (No.86) Exh.8 under which payment was received by Sirajuddin Qureshi on 13-8-1979. He further states accused Akhtar Ali again prepared cash payment Voucher (No.867) Exh.9, which was checked by Kazi Shamim and then it was sent to Audit Section. Accused Khalil Tariq made the payment on this voucher Exh.9. It transpired during accounting that double payment has been made to Sirajuddin Qureshi, it was verified from him, but he denied having received payment against Voucher (No.867) Exh.9. The matter was reported to the higher authorities. Accused Khalil Tariq refunded this amount vide receipt, dated 12-1-1980 Exh.10 which bears his signature and that of Cashier Nihal. From the above reproduction of the examination-in-chief portion of P.W. Shamim Ahmed Baloch, he gives the impression as. if the payment of Rs.4,612.50 was already received by Sirajuddin Qureshi on 13-8-1979 and, thereafter again another voucher for the 'same amount was prepared by appellant Akhtar Ali which was passed by the Audit Section and then payment for the second time was made by appellant Khalil Tariq to Sirajuddin which he has denied, but subsequently appellant Khalil Tariq refunded the amount. The above evidence of P.W. Shamim Ahmed Baloch is not only in conflict with his later portion of his evidence which I shall presently explain, but in fact his evidence does not F' in with the other circumstances of the case. When questioned by the Court, this witness contradicted himself as under; - "Sirajuddin Qureshi was interested in getting payment at Karachi and he had brought copy of the order personally and handed it over to accused Akhtar Ali who prepared the voucher and put up the case to his incharge and forwarded it to Audit Section through diary. In the meanwhile Sirajuddin got payment in his party where he was posted and therefore, the voucher was lying for 11 days in audit. One day before Eid I allowed payment and passed such order on the voucher. I cannot say to whom Khalil Tariq made payment against Exh.9." From the above evidence of this witness it will appear that Sirajuddin Qureshi actually came to Karachi with the order of payment. It is obvious that P.W. Shamim Ahmed Baloch did see that order. So also it was seen by P.W. Kazi Shamim Ahmed who was in charge of appellant Akhtar Ali, as such P.W. Shamim Ahmed Baloch has falsely mentioned in his examination-in-chief that accused Akhtar Ali again prepared the payment voucher for the same amount after the payment was received-by Sirajuddin on 13-8-1979. This witness has clearly mentioned that Sirajuddin came with the payment order to Karachi when Akhtar Ali prepared the voucher as such, the factum of pay order and the factum of preparation of voucher by Akhtar Ali was in the knowledge of this witness, so the voucher prepared by Akhtar Ali has to be the Voucher No.867 (Exh.9) as no other voucher was prepared at Karachi. No doubt this witness has stated that before Sirajuddin could get the payment on Voucher No.867, he received the payment from his own department where he was posted with the result Voucher No.867 kept lying in the Audit Section. But at the same time it is concretely established that Voucher No.867 (Exh.9) was a genuine voucher, as it was prepared on the basis of a pay order brought by Sirajuddin and in fact it is the first voucher and not the subsequent voucher. Furthermore, Voucher No.867 (Exh.9) was prepared on 11-8-1979 while Voucher No.86 (Exh.8) was prepared on 13-8-1979 on which Sirajuddin had received the payment, therefore, on the basis of dates also, Voucher No.867 is shown to have been prepared first in point of time. In the above circumstances it will be wrong to say that the appellants prepared a forged voucher in the name of Sirajuddin Qureshi as observed by the trial Court. The most important circumstance is that no evidence has come on the record to show that appellant Khalil Tariq was entrusted with any amount or he had dominion over any amount in which any shortage was detected. It is also the case of the prosecution that the appellant Khalil Tariq refunded .the misappropriated amount vide receipt Exh.10. On this point there are two versions on the record. The first version is by P.W. Shamim Ahmed Baloch and P.W.4 Kazi Shamim Ahmed who have stated that it was Khalil Tariq who deposited the amount. The second version, which is more plausible, is given by P.W.3 Muhammad Ishaque who states it was Sirajuddin Qureshi who has deposited the refunded amount and the relevant portion from his deposition is reproduced as under:-- "I am in the knowledge that Sirajuddin Qureshi has refunded the amount of Rs.4,612.50 vide receipt No.2892, dated 13-1-1980." It may be noted that receipt No.2892 is Exh.10. It is in the name of Sirajuddin Qureshi and signed by P.W. Shamim Ahmed Baloch, therefore, on the record the amount has been refunded by Sirajuddin Qureshi and not appellant Khalil Tariq. Even otherwise where there are two versions, the version, which is more favourable to the accused, is to be accepted. As such I am of the view that the amount of Rs.4,612.50 was refunded by Sirajuddin Qureshi. I have gone through the evidence of the other witnesses also, P.W.3 Muhammad Ishaque and P.W. Kazi Shamim Ahmed both have deposed on the same lines as P.W.2 Shamim Ahmed Baloch by stating that Sirajuddin Qureshi was granted refused leave encashment pay amount of Rs.4,612.50 voucher was prepared by the accused, but Sirajuddin was already paid vide Voucher No.86, then they came to know that double payment has been made. The second Payment was through Voucher No.867. P.W.3 Muhammad Ishaque has said that amount was refunded by Sirajuddin while P.W.4 Kail Shamim Ahmed has said it was refunded by accused Khalil Tariq. P.W.5 Sirajuddin Qureshi has also been examined, he states that payment was not received 'by him through Voucher No.867 and it does not bear his signature. He also denied to have made the refund of the amount. After carefully sifting and weighing the evidence, I am of the view that P.W.5 Sirajuddin Qureshi actually came to the Karachi Office of O.G.D.C. with the payment order of three months leave encashment pay, in view of the said order Voucher No.867 (Exh.9) was prepared by appellant Akhtar Ali and after it was signed by P.W.4 Kazi Shamim Ahmed it was sent to the Audit Section. Before it could be cleared, in the meanwhile said Sirajuddin Qureshi was paid the said amount vide Voucher No.86 (Exh.8) by the office where he was posted, with the result the Voucher No.867 (Exh.9) which was lying in the Audit Section had become infructuous. However, this voucher was sent back by the Audit Section under the normal course, and on the basis of this voucher second payment appears to have been made to Sirajuddin Qureshi, otherwise there was no reason for him to refund the amount. Though Sirajuddin has denied to have received the payment or to have refunded the same but the evidence and the circumstances of the case indicate that he did refund the amount. When Sirajuddin had denied his signature on Exh.9 (Voucher N6.867), it should have been referred to a Handwriting Expert to determine if it is genuine or forged, but for reasons best known, it was not done. From my above discussion I am of the view that neither any forged document was prepared, nor any amount had been misappropriated. It was simply a case of double payment by mistake and the person to whom the double payment was made has since refunded the amount. Therefore, the conviction and sentences of the appellants are not sustainable. Apart from the above; there is also a legal lacuna in this case which goes to the very root of the matte. It may be noted that the three appellants are public servants and they can be tried by the learned Special Judge only if a "valid sanction" for their prosecution is granted by the appropriate authority. In the present case the sanction orders for the three appellants are Exh.29, Exh.30, and Exh.31. The perusal of the said sanction orders will indicate that not only the-same are defective, but these have been accorded in a mechanical manner without application of mind. It is obvious that the sanctioning authority has only affixed his signature on Exhs.29, 30 and 31, without actually going through its contents or the contents of the case papers. Furthermore, it appears that apart from the names of the accused, rest of the matter has been simply copied out verbatim in all the tree sanction orders with the result defects appearing in Exh.29 are also appearing in Exh.30 and Exh.31. To be more precise, I will first refer-to Exh.29 the sanction order of appellant Khalil Tariq. The first para is reproduced as under:-- "Sanction Order Whereas it appears that accused Khalil Tariq, while posted as Accounts Assistant in Oil and Gas Development Corporation, Karachi as such a public servant in furtherance of common intention and object of co-accused Akhtar Ali and Muhammad Afzal both public servants being employed in the said Corporation, fraudulently received amount of Rs.4,612.50 drawn in the name of Sirajuddin Superintendent Seismic' Party No.1, Khairpur vide Vouchers No.768, dated 13-8-I979, from co-accused Khalil Tariq by putting the signatures of Sirajuddin:' The above sanction order is exactly the same in respect of co-accused except the names of the accused in the first line and the fourth line. The above sanction order shows that Khalil Tariq is the accused (first line) and he received Rs.4,612.50 from co-accused Khalil Tariq (last line). This obviously is not possible as their is no co-accused Khalil Taliq in this case. Furthermore, the amount is said to have been drawn vide Voucher No.768. This also is not possible as no such voucher is in existence. Accused Khalil Tariq who is a Cashier is wrongly shown as Accounts Assistant. The above defects are common in all the three sanction orders, therefore, the only conclusion which can be drawn is that, after having prepared one sanction order; the rest have been simply copied out with the result defects appearing in one are also common in the rest. Such a sanction order cannot be termed to have been accorded with conscious application of mind Obviously it is mechanical in nature and this type of sanction is no sanction in the eyes of law. In the absence of a valid sanction, the trial Court had no jurisdiction in this matter and on this ground also, the conviction and sentence of the appellants is not sustainable. In the light of my above discussion, the appeal, is allowed, their conviction and sentences of all the appellants are hereby'-set aside. The appellants are on bail their bail bonds are discharged. N.H.Q./A-1537/K ??????????? Appeal accepted,