P L D 1977 Lahore 1430 (PLP)

Ch. Muhammad Iqbal for Appellants. S. M. Mukhtar Zaidi and Advocate‑General, Punjab for the State. Dates of hearing : 30th July and 2nd August 1977, The appellants were tried by the Special Judge, Anti‑Corruption Establishment Lahore for offences under sections 419. 420, 468, 109, P. P. C. and section 5 2; of the Prevention of Corruption Act II of 1947, and convicted as below. Appellant Muhammad Munir, who was a Steno‑Typist in the Industries Department under section 5(2) of the Prevention of Corruption Act II of 1947 and abetting the offences of personation. fraud and forgery under sections 419, 420, 468 read with section 109, P. P. C. Appellant Imdad Hussain for abetting the offences of personation, fraud and forgery under sections 419, 420, 468, P. P. C. while appellant Muhammad Idris for commit ting the offences of personation. fraud and forgery under sections 419, 420 and

468. They wore sentenced to undergo 3 years' R. I. on each of the counts. The sentences however were to run concurrently. The appellants have appealed against their conviction.

2. The prosecution case in brief is that Imdad Hussain appellant was to appear in the Matriculation Examination to be held in March April 1967. With the admission form (No. 54314) photograph of Muhammad Idris was appended which was shown to be that of Imdad Hussain. The admission form is not entertained unless the photograph and its entries are attested by a Head Master. Head Mistress, Gazetted Officer or a Principal. Muhammad Munir appellant initialled the requisite certificate verifying inter alia the entries in the forms Exh. P. W. 2/A to be correct and obtained necessary attestation from Azmat Ullah P. W., the then Development Officer in the Industrial Department. He also had the photograph of Muhammad Idris attested as Imdad Hussain. Muhammad Idria appellant appeared in the examination pouring himself as lmdad Hussain. lmdad Hussain was declared successful in the examination and thus secured the Matriculation Certificate when an fact appellant Muhammad Idris personated Imdad Hussain and thus fraudulently appeared on his behalf In the examination as a private candidate under Roll No. 14590. Din Muhammad P. W. 10 resident of Village Satoki, Tehsil Kasur submitted an application Exh. P. W. 9/A to the Director of Anti‑Corruption Establishment. Lahore pointing out that Imdad Hussain appellant has obtained the Matriculation Examination Certificate by fraud. The Anti‑Corruption Establishment investigated into the matter and found that the three appellants had conspired to allow Muhammad ldris to take up the Matriculation Examination personating him as Imdad Hussain and that with a view to achieve this object they had forged the admission form and the photograph of Muhammad Idris and obtained attestation from Azmat Ullah P. W. misrepresenting before him that photograph of Muhammad Idris was that of lmdad Hussain. They were challaned and tried for the offences indicated above.

3. The appellants in their pre‑trial statements recorded under section 242 denied the allegation arid pleaded not guilty. Appellant Muhammad Munir in his statement under section 342 took up the position that Azmat Ullah P. W. was working in the Survey Wing of the Directorate of Industries as Industrial Development Officer and the appellant though employed as Steno Typist in the same Department was not immediate subordinate to him. He admitted that on or about 2411‑1966 he initialed the admission form Exh. P. W. 2/A. He however denied that he got attested the photograph of Imdad Hussain fraudulently. He explained that Azmat Ullah in fact attested two photographs and two admission forms pertaining to Imdad Hussain and Muhammad Idris. At the time of the attestation the photographs were loose and were not pasted on the forms. The photographs were not pasted on the respective forms in his presence. Aamat Ullah P. W. knew all of them prior to the attestation and that he had been falsely involved in the case as he refused to become a crown witness for the prosecution. He attempted to shift the responsibility on the co‑appellants and went on to say that Imdad Hussain and Muhammad Idris appellants came to him after obtaining attestation on the forms. Appellant Imdad Hussain stated that he got the form attested from Azmat Ullah P. W. correctly ; that the admission form was duly filled in by him in his own handwriting and that the admission forms of both the appellants were attested by Azmat Uilah. He denied to have committed any fraud and even denied to have obtained any Matriculation certificate in his name. He even denied that appellant Muhammad ldris appeared in the examination for him. Muhammad Idris appellant denied the allegations and stated that he had been involved in the case by Din Muhammad, P. W. 10 Azmat Ullah P. W. 2 and Muhammad Wazarat Ali P. W. 4 were examined at their instance under section 257, Cc. P. C. They also examined Muhammad Ishaq Superintendent Punjab, Small Industries Corporation, Multan, in their defence as D. W.

1. He stated that all the three appellants were related to Azmat Ullah P. W. and that Muhammad Munir and Muhammad Idris were appointed in the Industries Department on the recommendation of Azmat Ullah P. W.

4. The prosecution in support of its case examined 12 witnesses in all. The proceedings were initiated on the application 'of Din Muhammad P. W.

10. He deposed that both Muhammad Idris and Muhammad Munir appellants are his relations and the residents of his village. Azmat Ullah who attested the admission form was examined as P. W.

2. He stated that in the year 1966 while he was posted as Industrial Development Officer Directorate of Industries Poonchh House, Lahore Muhammad Munir appellant, a Steno‑Typist in his office on 24‑11‑66 produced before him a person (now Muhammad ldris) showing him as Imdad Hussain and got attested from him the admission form Exh. P. W. 2/A and the photograph Exh. P. W. 2/B. He stated that he acted on the identification by Muhammad Munir who had also initialled the admission form at his instance. In cross‑examination he admitted to have attested the photograph Exh. D. A. that of Imdad Hussain appellant. He was not even cross‑examined on the point, as token up by Muhammad Munir appellant in his statement under section 342, that he attested the two forms simultaneously, one of Muhammad Idris and the other of lmdad Hussain. In re‑examination he clarified that Muhammad Munir appellant got attested a number of photographs from him on various occasions and that photograph Exh. D. A. might have been got attested from him on a subsequent occasion. Gul Muhammad Butt, Assistant Incharge. Board of Secondary Education, Lahore P. W. 3 produced admission form of Imdad Hussain P. W. 3/A before the Investigation Officer. P. W. 1 Faiz Hussain Shah, Inspector partly investigated the case. P. W. 4 Muhammad Wazarat Ali. Assistant Establishment Branch, Directorate of Industries and Mineral Development Punjab. Lahore produced some office record to show that Muhammad Munir appellant had been working since 1961 as Steno‑Typist and Muhammad Idris as‑Junior Clerk from 1‑6‑6'1 to 1‑3‑71 in the office of Director of Indusrties. He also identified the initials of Muhammad Munir appellant on the admission form. He was not cross‑examined. P. W. 5 Muhammad Islam, Assistant, Board of Intermediate and Secondary Education Lahore stated that he produced before the Investigation Officer admission form Exh. P. W. 2/A, photograph Exh. P. W. .2/B, Roll No. Slip P. W. 5/A and the answer books of various papers which were also exhibited. P. W. 6 Muhammad Aslam Pervaiz, a Junior ' Clark of the Board of Secondary Education, Lahore stated that the admission form in caw of a private candidate appearing in the examination is filled in and a photograph of the candidate duly attested by a Gazetted Officer is attached and then submitted alongwith the receipt of examination fee to the Controller of Examination Board of Secondary Education. He testified that admission form P. W. 2/A with photograph P. W. 2/B were duly received in the office and after due scrutiny roll number slip P. W. 5/A bearing Roll No. 14590 was issued in the name of Imdad Hussain appellant. Jan Muhammad P. W. 7 A. S. I. partly investigated the case and took into possession certain documents. P. W. 8 Syed Mahmud Ali Shah is also a Police Officer who conducted the inquiry. P. W. 9 Mehr Muhammad Nawaz who was Inspector A. C. E. Directorate, Lahore initiated inquiry on the application Exh. P. W. 9/A submitted by Din Muhammad P. W.

10. Formal N. I. R. Exh. P. W. 9/D was recorded on his report Exh. P. W. 9/B. P. W. 11 Ghulam Muhammad, resident of village Sattoki stated that on the asking of Imdad Hussain appellant he brought the result card P. W. 7/C from his house and produced the same before the police. P. W. 12 Examiner of Questioned Documents Intelligence Bureau, Government of Pakistan, Lahore stated that the signatures on the admission form were not those of Imdad Hussain, but had been forged. He also gave opinion that the writing in the answer books were not in the hand of Imdad Hussain but in the hand of Muhammad Idris appellant.

5. Learned counsel appearing for the appellants half heartedly, argued that the prosecution has not been able to establish beyond doubt that any act of personation was committed by appellant Muhammad Idris or that he forged the admission form. He argued that the entries in the admission form gave the correct particulars of Imdad Hussain and he appeared in the examination. According to him the photograph of Muhammad ldris appel lant might have been placed on the admission through the mechanism of some interested person. According to him reliance cannot be placed on the opinion of the Handwriting Expert. I am not prepared to accept this contention of the learned counsel. The prosecution hag fully established that Muhammad Idris posed himself as Imdad Hussain before Azmat Ullah P. W. who had attested his photograph. He got his own photograph appended with the admission form. He sat in the examination personating himself as Imdad Hussain. There i9 no reason to disbelieve the statement of the Handwriting Expert that the answer books were in the band of Muhammad idris appellant. Muhammad Idris appellant forged the admission form and personated Imdad Hussain. He was, therefore rightly convicted for offences under sections 419, 420 and

468. P. P. C, There is also no doubt that the remaining two appellants abetted Muhammad Idris in the commission of the offences. No exception can be taken to their conviction also. 5‑A. Learned counsel for the appellant, then, questioned the legality of the trial itself. He argued that even if the facts as presented are taken as proved, no offence punishable under section 5(2) of the Prevention of Corrup tion Act II, 1947 is made out against Muhammad Munir appellant. Offences under sections 419, 420, 468, P. P. C., fall under clause (A) of the Schedule to Pakistan Criminal Law Amendment Act of 1958 (hereinafter referred to as the Act). These offences can be tried by a Special Judge under the Act only if they and as attempts, abetments and conspiracies in relation thereto or connected therewith are committed by any public servant as such or by any person acting jointly with or abetting or attempting to abet or acting in conspiracy with any public servant as such. He elaborated that in the instant case, it was not one of the official duties of Mohammad Munir appellant, to have the form attested from his superior and, therefore, while obtaining attestation of the form from Aamat Ullah P. W. he was not acting as a public servant. Misconduct has been defined in section 5 of Act Il of 1947. The allegations at best are that Muhammad Munir appellant by abusing big position as a Steno‑Typist obtained attestation on the admission form and in doing so he cannot be said to have obtained any gratification as mentioned in section 161, P. P. C. or any valuable thing without consideration or fox inadequate consideration nor had he misappropriated or converted to his own use any property or obtained for himself or far any other person any valuable thing or pecuniary advantage etc. The case against the appellant would not be covered by any of the enumeration contained in clauses (a) to (e) of section 5(1) of the Prevention of Corruption Act. He referred to Zainal Abedin v. The State P L D 1958 Dacca 167 , Muhammad Ramzan v. The State P L D 1958 Lah. 655, Sayeed Hai v. The State P L D 1967 Kar.

768. Rana Muhammad Afzal Khan v. The Sate P L D 1962 S C 397 and Ganhwar v. The state P L D 1975 Kar. 239.

6. The learned Advocate‑General argued that a private candidate cannot appear in the examination unless he has submitted a form appended with his photograph duly attested inter alia by a Gazetted Officer. It may be not one of the official duties of every Gazetted Officer to attest such forms or photo graph yet he enjoys that privilege on account of his being a Gazetted Officer. If his subordinate, therefore, initials the entries in the form based on his personal knowledge and misrepresents before the attesting officer as to their correctness, be will be doing so in his capacity as a public servant. In this process if he commits an offence enumerated in paragraph 'B' of the Schedule, such offence will be triable by a Special Judge. He then argued that under section 5(1) the Special Judge trying an offence under the Act may also charge with and try other offence not so triable with which the accused under the provisions of Code of Criminal Procedure relating t‑ the joinder of charge be charged at the same trial. In his submissions the appellant, Muhammad Munir in so far as he obtained attestation of the form by misrepresenting facts, committed an offence of criminal misconduct under clause (d) of section 5(1) of Act II of 1947. Submission of an attested form alongwith a photograph being a condition precedent to appear in the examination, such a form in terms of this clause is a "valuable thing'". The offence of criminal misconduct if committed by public servant as such is exclusively triable by the Special Judge as embodied in clause (c) of the Schedule. He referred to Sh. Mujibur Rehman and another v. The State P L D 1964 Dacca 330.

7. I have considered the arguments of the learned counsel for the parties and have also gone through the oases cited at the bar. Section 5 of the Act provides that the offences specified in the Schedule shall be exclusively triable by a Special Judge. The Schedule is divided into three categories. Offences mentioned in category (a) and category (c) and as attempts, abetments and conspiracies in relation thereto or connected therewith are, in any case triable by the Special Judge. However, offences falling in category (b) and as attempts, abetments etc., can be tried by a Special Judge only committed by a public servant as such or by any person acting jointly with or abetting or attempting to abet or acting in conspiracy with any public servant as such. If the offences, therefore, falling under category (b) am not committed by a public servant so such or by a person acting jointly with the public servant as such, they cannot be tried by a Special Judge and would be triable by the ordinary Criminal Court. In P L D 1958 Dacca 167, the Head Clerk misappropriated certain amount of 'Drum Tax' levied by Bhirab Union Board. It was ultimately found that the Union Hoard had no authority to impose the 'Drum Tax.' It was, therefore, contended by the defence that as the Union Hoard had no authority to impose the drum tax, the appellant who was entrusted with the collection of the 'Drum Tax' could not be said to be doing an act in the discharge of his public duties and therefore he could not be tried under the provisions of the Act. This argument was repelled and it was held that the work was done by the appellant as a public servant and it would be a dangerous principle to lay down that a public servant is not criminally liable if he misappropriates the amount collected by him on behalf of the Govern ment or a public authority if the realization or the imposition ultimately turned out to be illegal or not justified under the law. In P L D 1958 Lah. 655 the question of the jurisdiction of the Special Judge to try an offence falling under clause (b) of the Schedule was not directly raised. The validity of the sanction to prosecute the appellant for offence under section 161, P. P. C. was a moot point in that easy. In P L D 1967 Kar. 768, S was tried jointly with other co‑accused who were public servants under section 120‑8, P. P. C. and under section 5(2) of the Prevention of Corruption Act II of 1947. All the co‑accused were acquitted but S was convicted under section 420, P. P. C. It was found that the offence of cheating was neither committed by S as a public servant nor in the commission of this offence he abetted the commission of the offence by a public servant as public servants involved had, ultimately, been acquitted. In P L D 1962 S C 397 the appellants R representing himself to be a Magistrate induced in turn a municipal Commis sioner, the Tehsildar and the Deputy Commissioner to attest a certificate that one S, a (student) was a resident of a certain city intending thereby to enable S, to get admission to a college against one of the reserved seats for residents of that city. R was tried by the Additional Sessions Judge under sections 182, 182/109, 40, 420 and 41,9/109, P. P. C. He was acquitted of the charge under section 182 on the ground that there was no complaint by the officer concerned, but was convicted under the other charges. Examining the validity of his conviction under section 420 their Lordships found that the conviction was not legal. In their Lordships' view the word 'property', involves even in its widest sense the ownership of a legal right. 'Legal right' is defined in jurisprudence as an interest recognised and protected by a rule of right. It is any interest, respect for which is a duty and disregard of which is a wrong. Unless and until the effect of the certificate was that in consequence somebody was legally obliged to do something or to refrain to do something it could not be said that the certificate would carry with it any legal right. It is not sufficient for being included within the term 'property' that the thing concerned may be of some help to a person or that he may put some value on it. It is necessary that it should have a forcing consequence. Every report, every recommendation, every statement of fact made by a public servant which favours a person is of value to the person concerned. Hut it certainly is not property for that reason alone. It was found that the certificate was of no help to S because before the offence was committed, the rule regarding reserving seats in College for the city was altered and the reserved seats were allocated to the excluded areas of that particular district instead of to the city. It Was also observed that the officer who Issued the certificate did not suffer any harm or at any rate, a remote harm, to his reputation by granting certificate in question. In their Lordships final view' the trial of R could have been held under section 182, P. P. C. In P L D 1975 Kar. 239, A submitted an application against M, an Executive Engineer to the Martial Law authorities and the Anti Corruption Directorate. A was to be examined by the authorities in regard to the application when he approached M stating that on payment of Rs. 4,000 he would disown the application. A trap however, was laid against him in which he was arrested accepting this amount. He was convicted for offence under section 5(1) (if) of Act II of 1947 as punishable under section 5(2). It was held that A did not accept the amount as a public servant, as on the test suggested in this authority that an offence would fall under section 5(I)(d) of Act 11 of 1947 if the act of misdemeanour bears relation or connection to his status as a public servant or performance of his duty as such a public servant, lodging a complaint with Martial Law authorities was not one of the official functions of A.

8. It will be seen that all these cases proceed on their own facts and it will be difficult to bold that any inflexible rule had been laid down. The appellant initialled the admission form and thus induced his superior to accord attestation as to the correctness of the entries. He made the officer believe that the photograph that he was attesting was that of Imdad Hussain. He abusing his position as a subordinate of Azmat Ullah P. W. succeeded in obtaining the attestation without which the form could not have been entertained by the Intermediate Board and the candidate permitted to take part in the examination. In the light of rule laid down by their Lordships of the Supreme Court, in P L D, 1962 S C 697, it was a valuable thing and the appellant, therefore committed an act of criminal misconduct as defined in section 5(1) (d) of Act 11 of 1947. The offences of personation and forgery were also abetted by Muhammad Munir appellant in. his capacity as a public servant, As noticed above it may not be one of the official duties of Azmat Udah P. W. to attest the form, yet he enjoyed this privilege being a gazetted officer. Muhammad Munir appellant, therefore by initialing the form also, acted in the discharge of his official duties as a Steno‑Typist in the Industries Department. The trial of the appellant by the Special Judge was with jurisdiction and no exception can be taken to it. The point raised by the learned counsel for the appellant, questioning the legality of the trial, therefore, has no force.

9. Learned counsel for the appellant lastly contended that the appellants were convicted in 1973 They were bailed out in July 1974. They had also buffered a protracted trial. If the remissions earned are counted they have undergone almost half the sentence awarded. The ends of justice will be met if the sentence awarded is reduced to already undergone. I am inclined to agree with this submission of the leas tied counsel. I, therefore, while maintaining the convictions, reduce the sentences awarded in each count to already under gone. The sentences under orders of the trial Judge had already, run concurrently. The appeal otherwise has no force and is dismissed. The bail bonds of the appellants shall stand discharged. S. A. H. Appeal dismissed.