1988 P Cr (PLP)

Till the rising of Court and a fine of Rs. 5,000/ or in default of payment of fine, 3 months' R.I.

2. In the year 1977, Zafar Ahmad (Appellant) was working as Cashier in the Lady Aitchison Hospital, Lahore, Nadir Khan (appellant) was working as Drug Inspector, Lahore, and Dr. Zafar Iqbal Bhutta (since acquitted ) was District Health Officer, Lahore. Sh, Mazhar Shafi, complainant's father was running a medical store under the name and style "A1‑Sheikh Traders" near Lady Aitchison Hospital, Lahore. Zafar Ahmad (appellant) also opened a medicines shop under the name 'Faisal Medicos' adjacent to "AI‑Sheikh Traders" and employed Shahid Butt and Fazil as salesmen on that shop. Sh. Mazhar Shafi complained to Medical Superintendent of Lady Aitchison Hospital that Government medicines, "not meant for sale" on private shops, were sold at "Faisal Medicos". As no action was taken on his complaint, therefore, he reported the matter to Anti‑Corruption Department through F.I.R. Exh.P.W.2/1. Riaz Ahmad Bajwa, Police Inspector (since dead) arranged a raid on 8‑4‑1978 on "Faisal Medicos" under the supervision of Sh. Rashid Ahmad (P.W.3) a local Magistrate. As per programme Ihsan Zia (P.W. 6) was sent as fake customer to "Faisal Medicos" for purchasing medicines noted on a prescription initialled by the Magistrate in order to detect sale of Government medicines there. It transpired that Zafar Ahmad (appellant) was not present at the shop, therefore, the raid was postponed to the next day. On 9‑4‑1978 the fake customer again went to "Faisal Medicos" and this time too Zafar Ahmad was absent. Shahid Butt and Fazil, salesmen of "Faisal Medicos" disclosed that they were employees of Zafar Ahmad (appellant) and that "Faisal" after whose name the licence for sale of drugs had been obtained was son of Zafar Ahmad. The raiding party seized the licence (Exh.P.W.1/4) and having taking into possession 39 medicines P 1/1‑6 to P 39/1‑9, a register P40, vouchers file P.41 and ledger register P.42 under memo. Exh.P.W. 3/9 from that shop, the raiding Magistrate attempted to check the stores of Lady Aitchison Hospital on that very day but did not succeed as they had been closed. He, therefore, sealed those stores from outside and on the following day carried out their checking and seized registers P 41 to P49 from there under memo. Exh.P.W. 2/6. He recorded statements of certain officials of the hospital stores and handed over the proceedings to Police Inspector Riaz Ahmad Bajwa (since dead) for further action, whereupon the latter got a case registered vide F.I.R. P.W.2/1. D.S.P. Hamid Hassan (P.W.4) after completing investigations, challaned the appellants and Dr. Zafar Iqbal Bhutta (since acquitted) to Court.

3. The trial Court framed following charge against each accused. Charge against afar Ahmad (appellant). That while he was serving as cashier in the Lady Aitchison Hospital, Lahore, in the year 1977‑78, he was found in possession of 41 different medicines belonging to the Government and thus committed crimes under section 379, P.P.C. and section 5 (2) of Prevention of Corruption Act, 1947, and that he had got Drug Licence No. 140/ 141 issued on 9‑4‑1977 in the name of his minor son Muhammad Faisal by making wrong entries in the application form and pasting his own photograph instead of that of his son and thus having committed crimes under sections 468 and 471, P.P.C. read with section 109, P.P.C. as well as section 5 (2) of Prevention of Corruption Act, 1947. That he recommended issuance of Drug Licence No. 140/141 in the name of minor son of his co‑accused Zafar Ahmad Cashier Lady Aitchison Hospital, Lahore, and thus committed crime under sections 468 and 471 read with 109 P.P.C. and section 5 (2) of Prevention of Corruption Act, 1947. Charge against Dr. Zafar Iqbal Bhutta (since acquitted). That he issued Drug Licence No. 140/141 in the name of Muhammad Faisal who was not authorised to hold such a licence being a minor and thus committed crime under section 5 (2) of Prevention of Corruption Act, 1947. They pleaded rot guilty to the charges and claimed to be tried and the prosecution examined five witnesses, namely, Abdul Rahman (P.W. 1), Sh. Mazhar Shafi (P.W. 2), Sh. Abdul Rashid, M.I.C. (P.W.3), Hamid Hassan, D.S.P. (P.W.4) and Syed Ahsan Zia (P.W.5) to prove the charge.

5. Abdul Rahman (P.W. 1) the Record Keeper Senior Clerk of District Health Office stated that original file pertaining to "Faisal Medicos" had been lost. He produced photostat copy (Exh. P.W./1) of the application made in Form No. 19 on behalf of Messrs Faisal Medicos for issuance of drug sale licence; photostat copy (Exh. P.W, 1/2) is of the certificate showing Zafar Ahmad (appellant) to have been enrolled as apprentice with Punjab Pharmacy Council and Photostat copy (Exh. P.W.1.3) is the inspection report of Nadir Khan, Drug Inspector, (appellant) about suitability of premises to be used for sale of medicines. He stated that on 9‑4‑1977 Dr. Zafar Iqbal Bhutta (since acquitted had issued drug‑sale licence (Exh. P.W.1 to 4, Faisal Medicos which was renewed regularly upto 1985 without any objection from any quarter. He further stated that the licensee Muhammad Faisal was minor when the said licence was issued in his name and Zafar Ahmad, appellant's photograph was pasted on the licence as 'qualified person' and that from year 1979 onward Dilber Khan's photograph was pasted on the licence as the 'qualified person'.

6. Sh. Mazhar Shafi, complainant (P.W. 2) stated the facts mentioned in his complaint Exh. P.W./1. He also stated, about the seizure of medicines and registers P 1 to P 44 by the raiding party from Faisal Medicos in his presence. He admitted that he was challaned for counterfeiting currency notes but was acquitted. He denied that he complained against "Faisal Medicos" due to business rivalry. He conceded that he had not seen Zafar Ahmad (appellant) stealing medicines from the Government stores or bringing such stolen medicines to Faisal Medicos (for sale).

7. Sh Abdul Rashid, the raiding Magistrate (P.W. 3) stated that he conducted raid on Faisal Medicos and seized medicines P 1 to P 39 and registers P 40 to P 44 from there vide memo. Exh. P.W. 2/3. He admitted in cross‑examination that the medicines secured from "Faisal Medicos" under memo. Exh. P.W. 2/3 were not claimed by Government hospitals as their property. He also admitted that no complaint had been made by any Government medical stores regarding deficiency (of medicines) in their stock.

8. Hamid Hassan D.S.P. (P.W. 4) stated that after investigations he submitted report under section 173, Cr.P.C. against the accused. He stated that Zafar Ahmad (appellant) had obtained licence in the name of his minor son in connivance with Nadir Khan Drug inspector (appellant) and Dr. Zafar Iqbal Bhutta the then DHO (since acquitted).

9. When examined under section 342, Cr.P.C. Zafar Ahmad (appellant) admitted that in the days of raid he was Cashier in the Lady Aitchison Hospital, Lahore. Mohammad Faisal his son was minor in those days in whose name drugs sale licence was obtained. He, however, denied the recovery of medicines P 1 to P 39 from Faisal Medicos saying that he was not present at the time of raid. He explained that this case had been concocted against him at the instance of Mazhar Shafi P.W. on account of business rivalry. Nadir Khan (appellant) admitted that he was Drug Inspector, Lahore in the year 1977‑78 and that he had made report about the suitability of the premises and engagement of a qualified person by the applicant (Muhammad Faisal) who applied for issuance of a drugs sale licence. He explained that he was involved in the case due to misunderstanding. Dr. Zafar Iqbal Bhutta (since acquitted) admitted that he was District Health Officer, Lahore in the year 1977 and that he had rightly issued drugs sale licence to Faisal Medicos and that he was involved in the case due to misunderstanding. Two witnesses appeared in defence. Bashir Ahmad, Head Clerk of Lady Aitchison Hospital (DW 1), stated that Zafar Ahmad (appellant) had filed a declaration of his assets (photostat copy EXh.D.l) for the year 1977. It may be mentioned that he disclosed in the said declaration that he was partner of "Faisal Medical Stores". Muhammad Maqbool Amjad (D.W. 2) explained that there was no bar to the grant of licence for sale of drugs to a firm of a minor person.

10. Learned trial Court on consideration of material on record acquitted Dr. Zafar Iqbal Bhutta DHO (accused) observing that he had issued licence of Faisal Medicos on the basis of favourable report made by Drugs Inspector, Nadir Khan, but held Nadir Khan Drug Inspector as guilty under section 468/109, P.P.C. for having helped Zafar Ahmad as co‑accused in obtaining the licence by making incorrect report observing as under‑ "The role of accused Nadir Khan is obvious and that is that it was on his report that licence was issued in the name of minor son of accused Zafar. The accused Nadir Khan manifestly helped his co‑accused Zafar Khan who was also in the Health Department by not making correct report about son of the accused and about the premises. He is therefore guilty of abetment of crime under section 468, P.P.C." Learned trial Court convicted Zafar Ahmad appellant under section 468 P.P.C. observing as under in para. 24 of the judgment‑ "I, therefore, conclude that the prosecution has established its case, as regards accused Zafar Ahmad, son of Nur Muhammad, Cashier in Lady Aitchison Hospital, Lahore, that he had suppressed the factum of Muhammad Faisal, his son being minor, as well as, wrongly showed himself to be a qualified person and application form No. 19, therefore, contained wrong facts and as such tantamounted to cheating and forgery within the meaning of section 467, P.P.C. and as such I convict him under section 468, P.P.C. to six months R.I..... Further, convicting him (Zafar Ahmad) under section 5(2) of the Prevention of Corruption Act, 1947 it observed as under: "The recovery of medicines which was actually Government property showed that he was selling Government property which was misconduct within the ambit of section 5 of Prevention of Corruption Act, 1947. I, therefore, convict him thereunder ...."

11. I have heard learned counsel for the appellant as well as for the State and also perused the record carefully.

12. It may be at once stated that conviction of Zafar Ahmad appellant under section 5(2) of Prevention of Corruption Act, 1947 for having been found as selling the medicines owned by the Government is absolutely without basis. Not a single prosecution witness had stated that the medicines Exh. P.1 to P.39 recovered from "Faisal Medicose" were Government property or that sale of those medicines on private medical shops was prohibited. Therefore, even if the recovery of these medicines (though denied by the appellant) is believed it cannot be said by any stretch of imagination that the medicines Exh.P.l to P.39 are "owned by the Government" which are "not meant for sale on private shops". Consequently, I set aside the conviction and sentence of Zafar Ahmad appellant recorded by the trial Court under section 5(2) of Prevention of Corruption Act, 1947.

13. Now, I proceed to determine whether Zafar Ahmad's conviction under section 468, PPC and !hat of Nadir Khan, Drug Inspector under section 468/109, PPC is justified? As indicated above the learned trial Court found that Zafar Ahmad (appellant) in order to obtain licence for the sale of drug "had suppressed the factum of Muhammad Faisal his son being minor" and also wrongly showed himself "to be a qualified person" in application Form No. 10 and thus convicted him for committing offence of forgery for purpose of cheating. I have seen the application Form No. 19 (Exh. P.W. 1/1) said to have been submitted on behalf of Muhammad Faisal for obtaining the licence. This application does not contain any column requiring the applicant to disclose if he is major or minor, Furthermore, this application has been submitted on behalf of a Firm and not Muhammad Faisal in his individual capacity. As for the entry made therein showing Zafar Ahmad (appellant) as 'qualified person', it may be mentioned that at Serial No. 2 of application Exh. P.W.1/1 it is required to state the "name" and the "qualifications" of the person who would supervise the "premises" to be used for "the sale of drugs". In these columns Zafar Ahmad's name has been entered and his "qualification" is mentioned as "Apprentice". The document Exh. P.W.1/2 is a certificate issued by Punjab Pharmacy Council, Lahore, certifying that Zafar Ahmad (appellant) had been enrolled as "Apprentice" with the council. This would show that while filing in the application Form No. 19 (EX. PW 1/1) neither any information had been suppressed nor any wrong information had been entered. There was actually no need to suppress the factum of minority of Muhammad Faisal because no rule had been referred to before me disqualifying a minor from obtaining a licence for the sale of drugs. Admittedly the licence had been issued in the name of aforesaid Firm. Muhammad Maqbool Amjad (DW) clearly stated that there is no bar to the issuance of such a licence to a minor or a Firm. Similarly, there is not an iota of evidence to show that Zafar Ahmad appellant who has been enrolled as "Apprentice" with Punjab Pharmacy Council, Lahore, vide certificate (Exh. P.W.1/2) was not a "qualified person" to supervise a premises used for sale of medicines. In the circumstances, I am constrained to hold that there is no evidence whatsoever showing that Zafar Ahmad, appellant, was not a "qualified person" or that he had suppressed the fact of minority of his son to cheat the authorities for obtaining a drug sale licence. Likewise there is no material on record to show that Nadir Khan, Drugs Inspector had made a wrong report favouring his colleague Zafar Ahmad, co‑appellant.

14. It is nobody's case that the application on Form No. 19 (Exh. P.W.1/1) and the licence (Exh. P.W.1/4) issued in the name of "Faisal Medicos" are not signed by the persons they purport to be, therefore these documents cannot be held as forged ones in the meaning of section 463/464 P.P.C. Zafar Iqbal Bhutta, co‑accused (since acquitted) has rather admitted to have genuinely issued the said licence. The evidence on record has, therefore, not satisfied the essential ingredients of section 468 P.P.C. for abetment thereof for which the appellants have been convicted by trial Court. Resultantly both appeals are accepted, the convictions and sentences of both the appellants are hereby set aside and they are acquitted. They are on bail. They are discharged from their bail bonds. S.A/2‑58/L Appeals accepted.