1971 P Cr (PLP)

5. The three accused persons, when examined under section 342, Cr. P. C. repeated their statements made under section 242, Cr. B. C. Allah Bakhsh Chandio made the following statement :‑ "I had been working as a peon and at first had been drawing my pay at the rate of Rs. 35 per month. Subsequently my pay was raised to Rs. 40 and I had been receiving my pay at the enhanced rate. Some amount was also paid to me as arrears, but I do not remember the amount paid as arrears." Mian Allah Bakhsh examined 9 witnesses in defence. The gist of the statements made by D. Ws. 2 to 9 was that Allah Bakhsh Chandio was duly appointed as Peon and had worked as such during the period in question.

6. The learned Special. Judge held that so far as Mian Allah Bakhsh Chairman was concerned, the sanction order (Exh. P. L.) was invalid inasmuch as the District Council, Dera v. Ghazi Khan, was not competent to authorise the Chairman of the District Council to do the needful. In consequence, the learned Special Judge held that he had no jurisdiction to proceed against Mian Allah Bakhsh Chairman and, therefore, he dropped the case against him. The learned Special Judge believed that Allah Bakhsh Chandio was duly appointed as Peon by Mian Allah Bakhsh Chairman and that the Peon regularly received his pay. In any case, Allah Bakhsh Chandio was not at fault. The learned Special Judge acquitted the Peon. As regards Mushtaq Ahmad, Secretary the learned Special Judge concluded that he forged the acquittance rolls, giving his own thumb‑impressions for thumb-impressions of Allah Bakhsh Chandio and further that he misappropriated Rs.

45. Accordingly, he convicted Mushtaq Ahmad as stated above.

7. There is ample evidence on the record to establish that Allah Bakhsh Chandio was duly appointed as Peon under the orders of Allah Bakhsh Chairman with effect from the Ist July 1962, on a salary of Rs. 35 per mensem. The budget estimate showed that the post of the peon did exist. A large number of the Members of the Union Council affirmed that Allah Bakhsh Chandio worked as Peon. The‑notices (Exhs. D. M. and D. N.) corroborated them and showed that Allah Bakhsh peon served the notices op the Members of the Union Council. Only two Members gave a different version. Karim Bakhsh Member, was examined as P. W. 6: It ‑was established on the record (vide applications Exhs. D. E., D. F., D. G. and D. H. that during the period in question Karim Bakhsh did not attend the meetings of the Union Council and, therefore; was not in a position to say whether Allah Bakhsh Chandio worked as a peon in the Union Council. The other Member is Haji Wahid Bakhsh (P. W. 7). He stated that Allah Bakhsh Chandio son of Bakhu worked as a, camel‑driver for the benefit of Mian Allah. Bakhsh Chairman. The copy (Exh. D. J.) established that Haji Wahid Bakhsh anti Mian Allah Bakhsh Chairman were on inimical terms. Haji Wahid Bakhsh explained that in 1962, he happened to inspect the registers of the Union Council and found that one Khair Muhammad was being shown as peon whereas he knew that Khair Muhammad son of Musa, a relative of the Chairman, was also employed as Khalasi of an Overseer of the Canal. He apprehended that appointment of Peon was fake and the Khalasi was also shown as Peon. Allah Bakhsh peon is son of Bakhu. The application itself showed that Allah Bakhsh was also known as Khair Muhammad and was described in the record as such. The Khalasi viz., Allah Bakhsh son of Musa is a wholly different person. The apprehension entertained by Haji Wahid Bakhsh was wholly unfounded. It is remarkable that Muhammad Ramzan (P. W. 4) and Ghulam Rasul (P. W. 5) admitted that Allah Bakhsh Chandio worked as Peon in the Union Council Jhok Utra. The learned Special Judge was, therefore, justified in holding that Allah Bakhsh Chandio was appointed as Peon and that he worked as such during the period from July 1962 to April 1963.

8. Mian Allah Bakhsh Chairman and Mushtaq Ahmad appellant stated that the peon was duly paid his salary. Allah Bakhsh Chandio admitted that he duly received his salary. The records, other than the re‑constructed acquittance rolls, were to the same effect. There is absolutely no evidence to the contrary, which could show that Allah Bakhsh Chandio was not duly paid his salary. It is true that the re‑constructed acquittance rolls (Exhs. P. B., P) C., P. D., P. E. and P. F.) showed that the thumb impressions purporting to be of Allah Bakhsh were not of Allah Bakhsh but were of Mushtaq `Ahmad appellant. The re‑constructed acquittance rolls (Exh. P. G.) did not bear any thumb- impression at all. The cash‑book, however, showed that the payments had been made as stated in the acquittance rolls. In any case, Allah Bakhsh Chandio had never complained that he did not receive the amount. Since the acquittance rolls on record are not the original acquittance rolls, it is not legitimate to conclude, on the basis thereof, that any such amount as is stated in them to have been paid to Allah Bakhsh Chandio, was no paid to Allah Bakhsh Chandio. For purposes of the present discussion, it may safely be inferred that Allah Bakhsh Chandio was paid whatever was due to him on, the basis of salary and arrears of salary.

9. On the above premises, whatever was entrusted to the appellant for purposes of payment to Allah Bakhsh Chandio on the basis of pay and arrears of pay, was duly paid to him. There was no breach of trust or‑ misappropriation within the meaning of section 409, P. P. C. or section 5 (2) of the Prevention of Corruption Act, 1947. The conviction of the appellant under the said sections is, therefore, untenable.

10. The acquittance rolls (Exhs. P. B., P. C., P. D., P. E., P. F. and P. G.) are not the original acquittance rolls. They are either forged documents, as alleged by the prosecution, or re‑constructed documents, as alleged by the appellant. According to the appellant, the original documents were found missing and, therefore, they were re‑constructed after Mian Allah Bakhsh Chairman had been fully informed about their loss. Mian Allah Bakhsh supported the appellant in this respect. It has been held above that whatever was due to Allah Bakhsh Chandio by way of salary, had been duly paid to him. Under these circumstances, the appellant had not misappropriated any amount, had no committed any offence and, therefore, did not require to forge the documents to cover his guilt. Section 464, P. P. C. provides as follows:‑ A person is said to make a false document-- "First‑Who dishonestly or fraudulently makes, signs, seals, or executes a document. . . with the intention of causing it to be believed that such document . . . . . . . was made, signed, by a person, . . . . . . by whom he knows that it was not made, signed . . . ." The expressions "dishonestly" and "fraudulently" have been, defined in sections 24 and 25, P. P. C. as follows :‑ "

24. Whoever, does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly."

25. A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise." The word "defraud" has not been defined in the Pakistan Penal Code. It connotes the act of committing "fraud". The expression "intent to defraud" implies conduct coupled with an intention to deceive and thereby to injure in other words, `defraud' involves two conceptions, namely, deceit and injury to the persons deceived, that is, an infringement of some legal right possessed by him, but not necessarily deprivation of property. In this connection reference may be made to the case reported as Surendra Nath Ghose (I L R 38 Cal. 75), The statutory import of "fraud" may be gathered from the definition of word "fraud" in section 17 of the Contract Act, 1872. While that definition may not be pressed into service in interpreting "fraudulently" or "defraud" as used in section 25 of the Pakistan Penal Code, yet that definition goes a long way to indicate the nature of "fraud." In the instant case, the appellant, who had duly paid the amounts concerned to Allah Bakhsh Chandio, found the acquittance rolls missing and decided, with the permission of the Chairman, to reconstruct them. He did not have any possible intent to cause injury to the Government, the Union Council, the. Chairman or Allah Bakhsh Chandio prima facie his intention was to keep on record reconstructed documents in place of the documents lost. Apparently, he had no mens rea. There is no evidence to suggest, much less to establish, that the aforesaid original acquittance rolls did not exist or had been designedly misplaced or fraudulently replaced. Since Allah Bakhsh Chandio made no grievance on the foot of non‑payment or short‑payment during the period from July 1962 to January 1964, there is no warrant for the inference that the appellant had a motive to replace the original documents. When the, appellant reconstructed the c documents (Exhs. P. B., P. C., P. D., P. E. and P. G.) he did not do so "dishonestly" or "fraudulently". These documents, were not "false documents" within the meaning of section 464, P. P. C. It is true that some of these documents bore the thumb-impression of the appellant instead of the thumb‑impressions of Allah Bakhsh Chandio. These documents, being re‑constructed documents, did not require to be thumb‑marked by Allah Bakhsir Chandio. Perhaps an effort was made to give the semblance that these were "original documents", although apparently the inters was to reconstruct the documents only. The attempt by the appellant to thumb‑mark these documents in order to show than they had been thumb‑marked by Allah Bakhsh Chandio, though irregular in law, did not indicate mens rea or that his conduct was "dishonest" or "fraudulent". The irregular or imprope conduct may call for a departmental action but cannot constitute the offence of forgery. In this connection reference may be made to the cases reported as Queen‑Empress v. Girdhari Lal (I L R 8 All. 653) and Ram Sarup v. Empress (A I R 1918 Pat. 640). It, therefore, follows that he appellant's conduct did not fall under section 466, P. P. C.

11. Lastly, the learned counsel for the appellant contended that no loss or gain having been caused to anybody, including the Government and the Union Council, the offence, at the worst, was of a technical nature. In this connection he referred to the case reported as Nga Po Thein and another v. Emperor (A I R 1933 Rang. 114). The learned counsel also argued that the lapse or irregularity was due, not to criminal intent,, but to want of proper training. It has been admitted that the appellant received the departmental training some time after the occurrence in question.

12. In view of what has been stated above, the conviction under sections 466 and 409, P. P. C. read with section 5 (2) of the Prevention of Corruption Act, 1947, is not sustainable. The appeal is accepted, the conviction and sentences are set aside and he is acquitted of all the charges. The appellant is on bail and he is discharged of the bail bonds. Appeal accepted.