1968 SCMR 580 (PLP)

HAMOODUR RAHMAN, J.--The Petition No. K-51 of 1961 is barred by 176 days but since the petitioner had already filed a Jail Petition No. Ks22 of 1967 within time, the delay in the, filing ofe this regular petition is of no consequence as both the petitions are being heard together. The petitioner was tried with six others on charges under sections 120-B, 409, 411 and 477-A of the Pakistan Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947. All the accused including the petitioner were convicted under section 120-B of the Pakistan Penal Code and in addition the present petitioner was also convicted under section 409; P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced concurrently on each count to rigorous Imprison ment for one year. He had also been fined Rs. 30.000 or in default further rigorous imprisonment for one year more. On appeal the High Court acquitted two out of the seven accused persons but upheld the convictions of the others, includ ing the present petitioner. His sentence was, however, reduced to the extent that the amount of the fine imposed on him on each count. was brought down to Rs. 15,000 and in default of payment of fine in each case, he was to- undergo a further rigorous imprisonment for only six months, instead of one year. The petitioner now seeks special leave to appeal. The main ground urged on his behalf is that the courts below have failed to notice that the prosecution had not been able to prove the entrustment of the goods with the petitioner. The prosecution case was that the accused had in furtherance of a conspiracy to misappropriate Government consignment of different commodities, after procuring them from the Karachi Port Trust against delivery orders, actually criminally misappro priated a large number of such consignments and sold them in the black market. The petitioner, who was a Checker Grade H in the office of the District Controller of Stores, Pakistan Western Railways, was at the relevant times posted at the Karachi Port Trust Sheds to receive delivery of consignments intended for the Controller of Stores, Pakistan Western Railways. The procedure for taking delivery of such goods was that on receiving intimation of shipment of stores the necessary customs documents were passed on to the Landing Inspector, who in turn, made over delivery orders with copies of the wharfage and customs bills of entry to the staff employed for clearing the goods from the Port. This person, when taking delivery, had to sign a Subsdelivery order and also the relevant wharfage bill of entry. He then took one copy of the wharfage bill of entry along with a Gate Pass which he himself prepared and gets the same initialled by the Supervisor of the Shed. Thereafter, on the strength of the Gate Pass, the person concerned removed the goods by trucks or carts and passed out of the Gate after getting the goods checked. If the goods were to be sent to up-country stations by railway wagons then no Gate Pass was necessary but goods removed under a Gate Pass were to be transported to the Railway Stores. This person then prepared his daily report of the receipts and despatches of goods and submitted the same to the Landing and Shipping Inspector who counter-signed it. In the present case, the petitioner admitted having signed on the reverse of all the subsdelivery orders but although the prosecu- tion alleged that he had also signed the wharfage bill of entry and the Gate Pass, the High Court took the view that on the material on the record it was "difficult to record a positive finding as to the identity of the signatures appearing on the reverse of these 2 sets of documents''. Nevertheless, relying on the admitted signatures on the sub-delivery orders the Courts below found no difficulty in holding that it was the petitioner who had, in fact, taken actual delivery of the goods from the Sheds at the Port. This conclusion was also found to be supported by the oral evidence of several witnesses including the Inspector of Landing and Shipping and several delivery Clerks of the Karachi Port Trust who deposed to the fact that it was the petitioner who took delivery of the goods far the railway dep trtment. It is contended on'd behalf of the petitioner that the finding of the Courts below mulot be supported as the sub-delivery orders were usually signed in' anticipation of delivery and taken along with the wharfage bill of entry to the Supervisor of the Shed. On seeing this he issued the Gate Pass which became the real authority for taking delivery. In the absence of any definite proof of the signature on the Gate Passes it cannot, it is argued, be said with certainty that the petitioner was the person who actually took delivery. The endorsements on the sub-delivery orders are, however, to the following effect:- "Received within mentioned packages from the Karachi Port Trust in good order and condition." It would thus appear that, as held by the High Court, the main document which entitled a person to take delivery from the Port was the sub-delivery order, for unless that was signed and submitted, no Gate Pass could issue. The Gate Pass as has been found by the High Court upon taking additional evidence, was intended merely for providing a double check by the Port Trust to ensure that only the goods entered in the sub-delivery order are allowed to leave the Port premises. The entry on the Gate Pass is made by the Shed Supervisor at the time of giving delivery to the consignee against the sub-delivery order. It is thus clear that without the sub-delivery order no delivery could have been obtained. Thus since the petitioner admits that it was his duty to sign this delivery order it follows that unless he signed them, the goods could not have been taken out. This evidence, therefore, establishes that the petitioner was certainly an important link in the conspiracy in so far as he came into operation at the starting point of the scheme of misappropriation of the goods and without his participation the goods could not have been taken out. The entrustment was thus clearly proved. The learned counsel next contended that his client has been prejudiced by the taking of additional evidence in the High Court but we are unable to agree that any prejudice has been caused thereby. The witnesses so-called and examined as Court witness were duly cross-examined by the accused; there was thus no question of any prejudice being caused. It has also been established that the goods taken delivery of by the petitioner never reached their destination but were taken to a house in Malir Colony and subsequently sold in the black market. Various persons to whom they were sold have been examined and we see no reason to disagree with the view taken by the High Court as to their credibility. The High Court has discussed the evidence in great detail andig we can find no reason for holding that its appreciation of the evidence is in any way open to challenge. The learned counsel has not been able to point out any serious departure from any accepted rule relating to the appreciation of evidence. In the circumstances we think that the conviction of the petitioner is based on cogent and reliable evidence which does not need any further re-appraisal by this Court, Both the petitions are accordingly dis issed, Leave refused.