1984 P Cr (PLP)

Qureshi Muhammad Hafeez for Appellant. Sheikh Afzal Hussain for the State. Date of hearing : 10th March, 1982. Muhammad Rashid Agha appellant, during his posting as Bill Clerk in the Punjab Government Printing Press Lahore, was alleged to have cheated the Government by preparing false bill, Temporary Technical N. T. B., Part 11, for the month of October, 1965, in which an excess amount of Rs. 1,000 (Rupees one thousand) was shown and on the basis of which, an amount of Rs. 1,000 (Rupees one thousand) was drawn in excess and misappropriated. He was convicted by Special Judge, Anti -Corruption, Lahore-1, on 22nd February, 1977, under section 420, P. P. C. and section 5 (2) of the Prevention of Corruption Act, 1947, and sentenced to imprisonment till rising of Court and a tine of Rs. 1,000 (Rupees one thousand), or in default in payment of fine to undergo rigorous imprison ment for six months.

2. Mr. Shahid Hussain Rizvi, Manager Works, Punjab Government Printing Press, Lahore, got suspicious about the genuineness of the bills and he started checking of the bills. He detected that in some bills amount had been drawn in excess and the total amount was found as Rs. 3,000 (Rupees three thousand). A case was registered under section 409, P. P. C. and section 5 (2) of the Prevention of Corruption Act, 1947, on 30th August, 1967, at Police Station Old Anarkali, Lahore. Five separate challans were submitted in Court and separate trials were held The present case pertains to the amount of Rs. 1,000 (Rupees one thousand), which had been drawn in excess in the month of October, 1965, on the basis of pay bill Exh. P. D.

3. The prosecution examined eight witnesses in support of the case. Ameer Hussain was examined as a Court witness.

4. It stood proved from the record that the appellant had prepared bill of the present case. It was the duty of the Bill Clerk to prepare the bill. Thereafter, it is checked by the Assistant Accounts, then by Super intendent Accounts, who gives a certificate to the effect that the total had been checked. Thereafter, Manager Works verifies the bill and checks the total. Then it is submitted to office of Accountant-General. After the bill is passed, the amount is received and disbursed by the Cashier. Mr. Michael Clements Superintendent gave the method of the preparation of the bill and the method of its checking. He further stated that it is the duty of the Cashier to receive the cash and disburse it to persons concerned. Muhammad Sharif (P. W. 6) was Cashier during those days. He admit ted to have received the amount of the bill in question. According to him, he handed over the amount to Ameer Hussain, Senior Clerk, for disburse ment. Ameer Hussain; while appearing as Court witness, contradicted the statement of Muhammad Sharif (P. W. 6) by stating that the amount of the bill was never given to him for disbursement by Muhammad Sharif Cashier. It stood proved from the record that the amount of this bill was not received by the appellant but by the Cashier. The trial Court rightly observed that Muhammad Sharif Cashier should have been challaned in this case and should not have been cited as the prosecution witness. The learned Special Judge came to the conclusion that the appellant had joined hand with Muhammad Sharif to cheat the Government by drawing the excess amount. But there was no evidence to show that the appellant was in any manner in league with Muhammad Sharif Cashier. The observation of the learned Special Judge was without any material on the record. It was rightly contended by the learned counsel for the appellant that even if it was admitted that the bill had been prepared by the appellant includ ing the totalling of the bill there was no evidence to record the judgment of conviction. The learned counsel for the appellant took me through the entire record. The trial Court mainly relied upon the document Exh. P. W. 3/A (on the file of case No. 174/2). It was a document signed by the appellant stating that: - "I gave a sum of Rs. 3,000 (Rupees three thousand only) drawn in excess in different pay bills, due to mistotalling which may kindly be deposited in the proper Head in the Government Treasury." As regards this document, it was submitted that it was prepared on 26th July, 1967 under coercion and duress and antedated as 25th July, 1967, whereas the amount had been deposited in the Treasury, by Muhammad Sharif (P. W. 6), on 25th July, 1967. He drew, my attention to the state ment of Abdul Karim (P. W. 3), wherein he stated that on 25th July, 1967 Shahid Hussain Rizvi; Manager Works, called the appellant and Muhammad Sharif Cashier in his office and directed to make up the loss of the Government immediately, failing which the matter, would be reported to the Police and on the next day Mr. Shahid Hussain called me in his office, where the appellant was present and told me that he had received Rs. 3,000 (Rupees three thousand) from the appellant and be gave me a document Exh. P. W. 3/A written by the appellant. He further stated that on this very document he recorded note, dated 25th July, 1967 to the effect that the Cashier should enter the amount in the cash register and deposit the same in the Government Treasury. It was evident from his statement that he had received the document Exh. P. W. 3/A, on 36th July, 1967, and not on 25th July, 1967. He was contradicted by Shahid Hussain Rizvi, who stated in Court that on the following day; the Cashier Mr. Muhammad Sharif put up note Exh. P. W. 3/A made by the accused alongwith challan for an amount of Rs. 3,000 (Rupees three thousand) for depositing in the Treasury. Mr. Shahid Hussain Rizvi did not men tion in his statement that the accused had written note Exh. P. W. 3/A in his presence. He did not show his presence at all. According to his state ment Muhammad Sharif Cashier gave him the note Exh. P. W. 3/A stating that it was made by the appellant. During the cross-examination, Muhammad Sharif (P. W. 6) admitted that Shahid Hussain Rizvi called the appellant in his office in his presence and asked him to deposit Rs. 3,000 (Rupees three thousand) and to give a writing Exh. P. W. 3/A, threatening the appellant that he would be handed over to the Police, if he did not comply with the said direction. It supported the version of the appellant that document Exh. P. W. 3/A was obtained under duress. The prosecution only succeeded in proving that the disputed document had been prepared by the appellant and nothing beyond it. It failed to prove that the appellant had any connection with Muhammad Sharif P. W. who was then Cashier and who had drawn the amount of this case and whose duty was to make disbursement among the persons concerned. In view of the contradictions in the statements of Abdul Karim (P. W. 3) and Shahid Hussain Rizvi (P. W. 7) and the admission on the part of Muhammad Sharif (P. W. 6) that document Exh. P. W. 3/A was obtained under duress, the said document could not be used against the appellant.

5. No reliance could be placed on the statement of the defence wit nesses for the reason that their names had not been suggested to the pro secution witnesses nor their names appeared in the statement of the appellant recorded under section 342, Cr. P. C. They also did not make any statement during the investigation of this case.

6. It was the duty of the prosecution to prove this case independent of the defence evidence. The prosecution miserably failed to bring home the guilt of the appellant. The appeal is accepted and the impugned judgment is set aside. The appellant is acquitted of the charge. The appel lant is stated to have deposited the fine, which shall be refunded to him, if deposited. S. G. D. Appeal allowed.