2022 P Cr (PLP)

MUHAMMAD SALEEM JESSAR, J.

The appellant is aggrieved by the judgment dated 19.08.2003, passed by Special Judge Anti-Corruption (P) Hyderabad in Special Case No.84 of 2001 (State v. Syed Muhammad Ali Shah) whereby the appellant was convicted under section 409 of the Pakistan Penal Code read with section 5(2) of the Prevention of Corruption Act of 1947 and was sentenced to suffer R.I. for three years and to pay a fine of Rs.550,000 (Rupees five lac and fifty thousand only). In case of default in payment of the fine, the appellant was to undergo further R.I. for one year. Appellant was also extended benefit of section 382-B, Criminal Procedure Code.

2. The brief facts of case are that complainant Nangar Khan, lodged FIR No.86/1992 under section 409, P.P.C. read with section 5(2) of Anti-Corruption Act, 1947 at Police Station Town, Mirpurkhas, to the effect that he was senior clerk in the office of Superintendent of Police, Mirpurkhas and was transferred to the Driving License Branch, Mirpurkhas vide Order dated 7.10.1992. He went to the Driving License Branch on the same day to take charge of his new posting. The appellant, who was posted as Senior Clerk, Driving License Branch, Mirpurkhas, informed the complainant that he will hand over the charge to him (complainant) after collecting files and record. The appellant took out history sheets and license files but did not handover the charge to the complainant upto 12.10.1992. The complainant verbally made such report to Accountant Arbab Ali and the Licensing Authority, DSP Khalil Ahmed Bajwa, who also directed the appellant to handover the charge to the complainant. On 12.10.1992, appellant locked the License Branch and went away. Such report was made to Accountant Arbab Ali and DSP Khalil Ahmed Bajwa. The Accountant Arbab Ali submitted such report to Superintendent of Police, Mirpurkhas who ordered for taking legal action against the appellant. DSP Khalil Ahmed Bajwa called an ASI from Town Police Station, Mirpurkhas who broke the locks in presence of Mashirs and secured entire record of License Branch. Oral orders were given to the complainant to prepare new record and start work. The Superintendent of Police constituted a committee, headed by DSP Haji Azizullah Brohi and consisting of Peer Mazhar of the office of Superintendent; Inspector Manjhi Khan Jamali, R.I. Police Line, Mirpurkhas and Arbab Ali Soomro, Accountant, to check up the record of the License Branch. The Committee submitted report to the Superintendent Police, Mirpurkhas that the appellant, during his tenure as Senior Clerk of Driving License Branch, Mirpurkhas, issued 3587 driving licenses but on the record and final history sheets license fee stamps worth Rs.343,837/- have not been affixed and some files are also missing from Driving License Branch General Register while record of driving licenses worth Rs.164,905/- is not available. Thus, a total amount of Rs.508,804/- was found to be missing. The complainant, under the orders of Superintendent Police, Mirpurkhas, lodged the FIR against the appellant.

3. After usual investigation, police submitted challan against the appellant before Special Judge Anti-Corruption (P) Hyderabad on 19.7.1994. After completing legal formalities charge was framed to which the appellant pleaded not guilty and claimed to be tried.

4. At the trial, prosecution examined complainant Nangar Khan as PW 1 at Exh.4, PW-2 Muhammad Saleem as Exh.5, PW-3 Allah Bux as Exh.6, PW-4 Muhammad Farooq as Exh.7, PW-5 DSP Sher Khan as Exh.8, PW-6 Manjhi Khan as Exh.9 and PW-7 DSP Khalil Ahmed Bajwa as Exh.10.

5. The trial Court, after recording evidence and hearing learned counsel for the parties, convicted and sentenced the appellant as above, hence present criminal appeal.

6. On 7.11.2019 when this criminal appeal was taken up for hearing, counsel for the appellant was not present; however, the appellant was present in person on bail. The appellant reported that his counsel has expired and argued the case in person. He submitted that he was working as clerk in the Driving License Branch, Mirpurkhas and his duty was to fill the requisite forms and then to put up the same before the licensing authority/DSP concerned for issuance of licenses. He further submits that he filed an appeal/application before concerned Deputy Inspector General of Police and an inquiry was conducted in the matter wherein he was exonerated of all charges by the departmental proceedings; however, he has been convicted and sentenced by the trial Court for the same offence. He also submitted that he has not committed any fraud whatsoever and also stated that there are many contradictions and lacunae in the prosecution case which are sufficient to discard the evidence adduced by the prosecution. He finally prayed for setting aside the impugned judgment by allowing the instant criminal appeal and further prayed that he may be acquitted of the charge.

7. On the other hand, learned DPG opposed the appeal and supported the impugned judgment. He prayed for dismissal of the appeal and maintaining of the conviction and sentence against the appellant.

8. I have heard the appellant in person and learned DPG for the State and have perused the record with their assistance.

9. A perusal of the impugned judgment reveals that the trial Court has held as under: "Accused has produced Photostat copy of the order passed by the Deputy Inspector General of Police, Mirpurkhas Range, Mirpurkhas (Exh.18/E) on record which speaks that according to the register of issuance of the driving licenses 1903 driving licenses were issued on which the stamps worth rupees three lac twenty eight thousand five hundred seventy were to be affixed. The burden shifted upon the accused to prove that the stamps as required were recovered and affixed on all the driving licenses issued by him."

10. In view of the above finding, the appellant has been convicted under section 409, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947 for criminal breach of trust and criminal misconduct.

11. Section 409, P.P.C. which, deals with criminal breach of trust, reads as under: "

409. Criminal breach of trust by public servant, or by banker, merchant or agent. Whoever being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." 12. "Criminal misconduct" has been explained in section 5(1)(a) to (e) of the Prevention of Corruption Act, 1947. For the sake of convenience, subsections (1) and (2) of section 5 of Prevention of Corruption Act, 1947 are reproduced hereunder: "

5. Criminal misconduct: (1) A public servant is said to commit the offence of criminal misconduct. (a) if he accepts or obtains, or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the Pakistan Penal Code, or (b) if he accepts or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business, transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, or (c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any person to do so, or (d) if he, by corrupt or illegal means, or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage, or (e) if he, or any of his dependants, is in possession, for which the public servant cannot reasonably account of pecuniary resources or of property disproportionate to his known sources of income. Explanation: In this clause, "dependant" in relation to a public servant, means, his wife, children and step-children, parents, sisters and minor brothers residing with and wholly dependent on him. (2) Any public servant who commits or attempts to commit criminal misconduct shall be punishable with imprisonment for a term which may extend to seven years or with fine or with both."

13. Section 409, P.P.C. and section 5(1) of Prevention of Corruption Act, 1947 speaks of entrustment of property and its misappropriation by the person to whom such property is entrusted. Now, it will be examined whether any property capable of being misappropriated was ever entrusted to the appellant.

14. The question which requires examination is whether any 'property' was entrusted to the appellant which has been misappropriated by him, thereby exposing himself to the charge under section 409, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947.

15. The complainant, during his cross-examination, has given detailed process for issuance of driving licenses. He had stated that an applicant desirous for issuance of a driving license is required to submit a test form along with photo copy of his national identity card and two photographs. The applicant is also required to affix on the test form the prescribed fee in the shape of stamps for issuance of the private license. This test form is placed before the competent authority for issuance of driving license. Thereafter, the competent authority conducts three separate tests i.e. oral test, written test and field test and when an applicant is successful in all the three tests, the DSP concerned writes down in three different registers that the applicant has passed the tests and he becomes eligible for issuance of private driving license. The matter does not end here. The DSP is also required to cancel the stamps affixed on the test form. The approved application form for driving license is then handed over to the Clerk of the Driving License Branch who prepares the driving license and places it before the competent authority for signature. Thereafter the driving license is issued to the applicant.

16. The complainant admitted in his cross-examination that it is not possible for the DSP, Head Quarter to order for issuance of driving license to an applicant unless proper stamp fee is affixed on the application and it is further admitted by him that after passing the order for issuance of the driving license, the DSP is required to cancel the stamps to render it not useable again. It was also stated by the complainant that there are two kinds of seals. One of these is called Ombus (emboss) seal which is in the possession of the DSP Head Quarter who affixes the Ombus (emboss) seal along with round seal of DSP then the driving license is to be issued to the applicant. PW-4 Muhammad Farouk (Exh.7) has also stated in his cross-examination that the emboss seal was always in the possession of the DSP, Head Quarter, who was the licensing authority.

17. In a simple way, it can be said that until and unless orders are issued by the Licensing Authority orders for issuance of driving licence to an applicant after cancelling the stamps on his application; the driving license cannot be issued to the applicant. This leads us to an inevitable conclusion that the stamps affixed by an applicant on his application as driving license fee can only be used once, where after the same are cancelled by the Licensing Authority and are only kept on the file as part of the record. Thus, the stamps affixed on test forms become worthless after they cancelled by the Licensing Authority. Accordingly, the stamps which are affixed on the test form and are cancelled by the Licensing Authority before they are handed over the Clerk of the Driving License Branch cannot be termed as 'property' at all as the same have no pecuniary value.

18. In this view of the matter, if there is any suspicion that the appellant has removed stamps from some test form and reused them, thereby causing loss to the Exchequer and making illegal personal gains, then collusion of the Licensing Authority cannot be ousted as the clerk of the Driving License Branch alone cannot do this at his own. It has come from the mouth of the complainant himself during his cross-examination that after an applicant is declared successful in the three tests; the Licensing Authority orders for issuance of the driving license to him and cancels the stamps. Therefore, if it is alleged that the stamps on the test forms of the successful applicants were not cancelled and were removed with ulterior motive, then it would naturally come to mind that why such stamps were not cancelled by the Licensing Authority.

19. One cannot rule out possibility of human error if one or two cases are found where the Licensing Authority, due to inadvertence, may not have cancelled the stamps; however, such human error cannot be in such a huge number. It is not the case of the prosecution that cancelled stamps were reused after some manipulation as in that case the appellant could have been held responsible for the same.

20. It is also noteworthy that the stamps are issued by the Post Office with one monogram of one year and the same stamps cannot be used in another year meaning thereby that stamps issued in the year 2003 cannot be used in the year 2004 or 2005.

21. It was also admitted by the complainant that Inspector Stamps of the Sindh Revenue Board conducts audit of Driving License Branch every year. However, no adverse report has been placed by him on record. The complainant; however, refuted the suggestion he himself removed the stamps and falsely implicated the appellant in the case.

22. From the above, it is clear that it is not a case where some valuable stamps were entrusted to the appellant and the same were misappropriated or lost by him. Therefore, provisions of section 409, P.P.C. and section 5 of the Prevention of Corruption Act, 1947 are not attracted.

23. There is yet another aspect of the case. It is an admitted fact that the record of the Licensing Branch, which allegedly was under the custody of the appellant, was checked in the absence of the appellant and, as per the admission of the complaint made during his cross-examination, no Magistrate was called to oversee the breaking open of the locks and checking of the record. Therefore, on the sole deposition of the complainant, who can be termed as an interested witness, cannot be relied to record conviction against the appellant.

24. The appellant also examined himself on oath and in his deposition he stated that on 6.10.1992 he was suspended and was directed by SSP, Mirpurkhas to report in the English Branch and one Mr. Imdad was posted in the Driving License Branch. He also produced various documents in support of his defense. During cross-examination the veracity of the documents produced by the appellant during his deposition was not questioned; however, only one question was put to him that these documents were not produced by him before the I.O. In case the appellant was not suspended on 6.10.1992 and the suspension order produced by the appellant as Exh.18/A was not genuine, then the prosecution should have challenged the veracity of such document by simply producing the alleged author of the document whose simple denial to the effect that he did not sign/issue such order would have been enough. All these documents are from the office of the Superintendent Police, Mirpurkhas, therefore, in absence of any evidence to the contrary, the same are to be relied.

25. It is a trite law that in criminal cases, that the prosecution is required to prove the guilt of the accused beyond any reasonable doubt. This element is missing in the instant case as the allegation is that some stamps from the driving license applications were found missing. In case those stamps were cancelled by the Licensing Authority i.e. the DSP concerned, then the stamps were worth nothing as the same cannot be re-used in any manner after cancellation and if, for the sake of argument, it is presumed that the stamps were not cancelled then the Licensing Authority is also to be held responsible for such act. So far as the finding of the trial Court, that 1903 licenses were issued by the appellant on which stamps worth Rs.328,570/- were to be fixed and the burden was on the appellant to prove that such stamps were affixed on the driving licenses, was on the appellant, is concerned, it may be clarified that, as discussed above and admitted by the complainant himself in his cross-examination, without affixing proper stamps towards prescribed fee it is not possible that DSP Head Quarter will pass order for issuance of driving license, in such case the blame lies at the door of the Licensing Authority as to why he passed orders for issuance of driving licenses when no proper fee in the shape of stamps was affixed on the application. It is not the case of the prosecution that forged driving licenses were issued by the appellant without approval of the Licensing Authority.

26. Vide short order dated 08.02.2019, instant criminal appeal was allowed, the impugned judgment dated 19.08.2003, passed by Special Judge, Anti-Corruption (Provincial), Hyderabad was set aside and the appellant Syed Muhammad Ali Shah was acquitted of all charges. The appellant was present on bail, his bail bonds were cancelled and surety was discharged.

27. Above are the reasons for my short order dated 07.11.2019. JK/M-86/Sindh Appeal allowed.