1994 P Cr (PLP)

The appellant alongwith 2 others namely Muhammad Ashraf and Hamid Jalil (since acquitted) was tried under section 468/419, P.P.C. and section 5(2) of Prevention of Corruption Act, 1947 and sentenced to R.I. for 2 years with a fine of Rs.50,000 or in default of payment to undergo R.I. for 9 months, by learned Special Judge, Anti-Corruption,. Sargodha vide his judgment, dated 20-5-1991.

2. The appellant was Chairman, Municipal Committee, Bhalwal in the year 1981. A contract was awarded to Riaz Hussain complainant for metalling of road in Block No.3 in Bhalwal at the estimated cost of Rs.50,

000. A running bill for an amount of Rs.32,358 was passed by the appellant which was to be paid to the contractor/complainant. A cross-cheque for Rs.32,000 was issued by Hamid Jalil, Accountant (the acquitted co-accused) on 23-4-1981. On the same day, the complainant made an application (Exh.P.H.) stating therein that instead of a cross-cheque he be given a bearer cheque. Accordingly, the cross-cheque was converted into a bearer cheque by deleting the words "payees account" only. The appellant issued the letter Exh.P.B. authorising the complainant to encash the cheque.

3. On 7-5-1981, the complainant filed a complaint (Exh.P.D.) before the Deputy Director, Anti-Corruption, Establishment, Sargodha stating therein that Hamid Jalil, Accountant had issued a cheque of Rs.32,358 in his name and that somebody else got it encashed. The complainant's statement Exh.P.E. was also recorded by Malik Gul Muhammad S.C.O. P.W.3 on 27-8-1981. Thereafter, the Additional Director, Anti-Corruption, Establishment, Faisalabad Region, Faisalabad wrote letter, dated 15-6-1985 (Exh.P.M.) to the Circle Officer, A. C. E., Sargodha for registration of a criminal case. Thereupon, F. I. R. No. 12, dated 25-6-1985 under section 468/471, P.P.C. and 5(2) of the Prevention of Corruption Act, 1947 was registered. The appellant's name did net figure in the F.I.R. but was mentioned in the note written by Malik Gul Muhammad, S.C.O. P.W.3.

4. In support of its case, the prosecution produced 7 witnesses. Syed Shabbir Akhtar, National Saving Officer, Bhalwal P.W.1 stated that on 23-4-1981 some unknown persons came with a cross-cheque and was told that he shall have his own account for depositing the cheque. He went back and the appellant in his presence scored off the entry, "payees account" and asked him to make payment to his companion. Asghar Ali Khan P.W.2 produced the copy of the running bill Exh.P.C. Malik Gul Muhammad, S.C.O./A.C.E. Investigating Officer appeared as P.W.3. He had recorded the statement of Exh.P.E. and sent his report Exh.P.F. He further stated that in the light of his report the Deputy Director vide order Exh.P.G. directed him to submit the final report. He took into possession the application Exh.P.H., the counter-foil of the cheque book Exh.P.J. vide recovery memo. Exh.P.K. He also secured the specimen signature of Riaz Hussain, complainant on the sheets Exh.P.L. to Exh.P.L./5. He forwarded the same for comparison with the counter-foils Exh.P.J./1 to Exh.P.J./10. Riaz Hussain P.W.4 is the complainant who stated that cheque for an amount of Rs.32,000 was prepared in his name but the entire amount was received by Hamid Jalil, Accountant. He further stated that he filed a complaint Exh.P.D. before the Deputy Director/A.C.E. He denied his signatures Exh.P.A./3 and Exh.P.A./4 on cheques Exh.P.A. and Exh.P.A./l. He also denied having submitted the application Exh.P.H. for converting the crossed cheque into bearer. one. Sardar Ali and Ikram-ul-Haq, P.W.5 and P.W.6 did not support the prosecution case and were declared hostile. Malik Tilla Muhammad C.O./A.C.E. P.W.7 had taken over investigation of the case from Malik Gul Muhammad P.W.2. He recorded the formal F.I.R. Exh.P.N. and the statements of the P.Ws. under section 161 of the Cr.P.C. He obtained sanction for the appellant's prosecution Exh.P.O. and submitted challan against him in the Court. The prosecution produced in evidence report of the Forensic Science Laboratory as Exh.P.R.

4. In his statement under section 342 of the Cr.P.C. the appellant denied the charge and in reply to question No.8 stated, "Complainant Riaz Hussain himself came to my office with application Exh.P.H. and requested that cheque should not be crossed one as he needed the money so I did the necessary sanction". He claimed that he was involved in a false case due to party politics. He produced Khawaja Muhammad Afzal D. W.1 who stated that in his presence the complainant himself presented the cheque and received the money.

5. The appellant's learned counsel contends that the appellant's trial was vitiated as the Provincial Government and not the Commissioner of the Division was competent to grant sanction in the case of the appellant who was not a salaried employee of the Municipal Committee. He next submits that the appellant had originally signed the crossed cheque and thereafter on the written application of the complainant converted it into a bearer one. He was personally present at the time when the cheque was presented by the complainant for encashment. This clearly proves his bona fides and negates mens rea on his part. He further submits that in the complaint Exh.P.E. nothing was said against the appellant but Malik Gul Muhammad, S.C.O. arbitrarily added the allegation against the appellant in his report Exh.P.H. He further submits that the report of the Handwriting Expert Exh.P.R. could not be excluded merely because the Handwriting Expert was not summoned as a witness. Lastly he submits that the appellant was alleged to have abetted Muhammad Ashraf co-accused who had been acquitted. Therefore, there was no justification to convict the appellant for the alleged abetment.

6. On the other hand, learned State Counsel supported the appellant's conviction and urged that the appellant was proved to have converted the cross-cheque into a bearer one and helped Muhammad Ashraf, his co accused in getting it encashed. He adds that the complainant never submitted any application for converting the cross-cheque into a bearer one.

7. At the relevant time, the appellant was the Chairman of Municipal Committee, Bhalwal and was a public servant. By virtue of the provisions of section 176 of the Punjab Local Government Ordinance, 1979 every member and every servant of a local council and every other person duly empowered to act on behalf of the Local Council is to be deemed to be a public servant within the meaning of section 21 of the Pakistan Penal Code (read with section 2 of the Prevention of Corruptior Act, 1947). For the trial of a public servant sanction of the appropriate Government is mandatory as provided under section 5(6) of the Act. The appropriate Government in case of the Local Councils/Municipal Committees is the Government of the Punjab which enjoys control over the affair, of Local Councils/Municipal Committees by virtue of the provisions of sections 156 and 157 of the Ordinance. The Provincial Government delegated its powers in the matter of grant of sanction to different authorities under Pakistan Criminal Law Amendment (Punjab) Rule, 1985. The said rules related to sanction of public servants employed from Grade 1 to Grade 21 but do not cover the cases of the members of the Local Councils including the Chairman or the Vice-Chairman who are not salaried employees of the Local Councils. Hence in their case sanction is to be granted by the Provincial Government and not the authorities specified under the Rules. In the present case, sanction for appellant's prosecution was granted by the Commissioner who was not competent to grant sanction in the matter. The Commissioner could merely grant sanction for prosecution of public servants employed in Grade I to Grade

18. Therefore, in A the absence of sanction granted by the competent authority, the appellant's trial was vitiated.

8. Even if it is assumed for the sake of argument that the appellant was tried after sanction of the competent authority, still on merits, the prosecution does not seem to have proved its case beyond reasonable doubt. The facts on the record show that initially in the normal course the appellant had signed a cross cheque in the name of Riaz Hussain complainant. The complainant himself made an application in writing for converting the cheque into a bearer one as he urgently needed money. The complainant denied having made the application Exh.P.H. but the report (Exh.P.R.) of the Forensic Science Laboratory confirms that it bears the signatures of the complainant. A mere comparison of signature of Riaz Hussain complainant appearing on the application Exh.P.H. with his specimen signatures borne on Exhs.P.L. to P.L./5 clearly confirms the correctness of the opinion of the expert. The appellant appears to have allowed the application in good faith and scored off the words "payees account" under his signatures. It is significant to mention that after obtaining the cross-cheque the complainant presented it in the Bank and again he presented the bearer cheque for encashment. This can be fairly gathered from the statement of Syed Shabbir Akhtar P.W.1 who stated that the person who had come to the bank with the cross-cheque had again come with the bearer cheque in the company of the appellant. Obviously, the crossed cheque could not be presented in the bank by any person other than the complainant himself. After it was converted into a bearer cheque the appellant, out of abundant caution accompanied the complainant so that he may witness himself that the amount was withdrawn by the complainant. Had he been a party to some fraud or cheating he would never have accompanied the person who had taken the bearer cheque to the bank. There is no evidence on the record to show that the appellant had impersonated for some other person, cheated the complainant or the Bank officials or personally derived some benefit. According to the prosecution case initially set up it was one Hamid Jalil who got the cheque encashed. At the trial, it was alleged that Muhammad Ashraf co-accused got the cheque encashed and received the amount and that the appellant had abetted Muhammad Ashraf. Muhammad Ashraf co-accused has already been acquitted by the trial Court. Therefore, the allegation of abetment levelled against the appellant also fails. The possibility that the appellant was falsely roped in due to political rivalry cannot be ruled out.

9. For the foregoing discussion, this appeal is allowed and the appellant is acquitted of the charge against him. He is present in Court on bail. His bail/surety bonds shall stand discharged. N.H.Q./M-1745/L Appeal allowed.