1992 PLP 1840 (MLD)

Appellants Muhammad Zubair and Qamar Aqleem have been found guilty of commission of offences punishable under sections 420, 468 and 409, P.P.C. read with section 34, P.P.C. and section 5(2) of Prevention of Corruption Act, 1947 by the learned Special Judge, Anti‑Corruption (Provincial), Karachi. For each of the aforesaid offences, the appellants have been sentenced to suffer R.I. for three months and to pay a fine of Rs.2,000 and in case of default to suffer further R.I. for one month. However, all the sentences are to run concurrently. It may also be pointed out that in case of the recovery of fine from the appellants Rs.1,000 are to be paid to the Social Security Institution where the appellants were working and Rs.178 to sweeper Lal Masih. The accused have now filed their respective appeals against the said conviction.

2. The case of the prosecution against the appellants is that on 20‑10‑1981 a bill for arrears of salary payable to P.W. La1 Masih, sweeper had been prepared for Rs.1,153.70 which was approved by P.W. Dr. Hameeda Jalil. A voucher No.76, dated 20‑10‑1981 was prepared by appellant Zubair Ahmed who was then working as Accounts Assistant with Sindh Employees Social Security Institution. The same was signed by P.W. Dr. Hameeda Jalil and was then sent to P.W. Akbar Ali Khan, Internal Auditor for preauditing who also approved the same on 21‑10‑1981. It has been further alleged that on the said date Qamar Aqleem who was working as Accounts Officer in the said department at the relevant time brought before P.W. Dr. Hameeda Jalil a cheque bo6k and got her signature on Cheque No.540286 for Rs.1,153.70. The said cheque was made for making payment to P.W. Lal Masih. After the said cheque was signed by P.W. Dr. Hameeda Jahl, the same was also signed by appellant Qamar Aqleem. On the same day appellant Qamar Aqleem brought another cheque, No.540287 (Exh.15) which was signed and countersigned by P.W. Dr. Hameeda Jalil and appellant Qamar Aqleem respectively. The appellant told P.W. Dr. Hameeda Jalil that the other cheque had got spoiled, and therefore, the same had been destroyed.

3. In 1982, during the audit, it was discovered by Internal Auditor P.W. Akbar Ali that both the said appellants had prepared Cheque No.540287 for an amount of Rs.2,153.70 instead of Rs.1,153.70 and thus they had drawn an excess amount of Rs.1,000 and misappropriated the same. Enquiry was thereafter conducted in the matter and both the appellants as well as Dr. Hameeda Jalil were found guilty and different actions were suggested to be taken against them. Investigation in the matter was thereafter conducted by P.W. Malik Muhammad Khan, D.S.P., Anti‑Corruption, Karachi and it was found that the said cheque had been prepared by appellant Zubair Ahmed under the directions of appellant Qamar Aqleem and that appellant Zubair Ahmed had paid Rs.975 to P.W. Lal Masih. Thereafter, both the appellants were charge‑sheeted before the learned Special Judge and were convicted and sentenced as pointed out earlier.

4. It is pertinent to point out that appellant Zubair Ahmed in his statement recorded under section 342, Cr.P.C. admitted the entire case of the prosecution against him. He, however, stated that he had acted under instructions from the other appellant as he was working under him. The second appellant, however, did not admit the case of the prosecution against him although, his counter‑signature on the cheque Exh.15 was not denied by him. The same, according to him, had been made in good faith.

5. The case of the prosecution against the appellants is based on the evidence of Lal Masih P.W.1, Dr. Hameeda Jalil P.W.2, Syed Hyder P.W.3, Muhammad Aslam P.W.4, Abdul Latif P.W.5, Akbar Ali P.W.6, Mr. Taj Muhammad Qureshi P.W.7 and Malik Muhammad Khan P.W.8. However, the conviction of the appellants has been based mainly upon the evidence of P.Ws. Lal Masih, Dr. Hameeda Jalil and Akbar Ali. P.W. 1 Lal Masih was the sweeper working with the said Institution who had received his salary for three months on 20‑10‑1981. According to him, appellant Zubair Ahmed who was the Cashier at the relevant time had paid him only Rs.975 and obtained his L.T.I. on the voucher ,after payment of the said amount to him. The same was produced by him as No.12. Dr. Hameeda Jalil, P.W. 2 stated that appellant Zubair Ahmed had placed before her the voucher Exh.12 for Rs.1,153.70 which had also been signed by her. The voucher was once again put up before her after pre‑audit for issuance of cheque. Appellant Zubair Ahmed who had prepared a cheque for Rs.1,153.70 had brought the same to her which was then signed by the witness. The cheque was also countersigned by appellant Qamar Aqleem. Thereafter, according to the witness, the cheque book remained in the custody of appellant Qamar Aqleem who after 40 or 45 minutes again went to her and told her that the cheque had got spoiled on account of overwriting thereon. He, therefore, handed over another cheque to her on which she put her signature. She produced counterfoils of Cheque No‑540286 (Exh.14) and another cheque for Rs.2,153.70 (Exh.15) respectively. The witness further explained that when Exh.15 was handed over to her for her signature she was busy in examining patients and believing appellant Qamar Aqleem she signed the same. P.W.6 Akbar Ali is another important witness whose evidence further corroborates that given by P.W. Dr. Hameeda Jalil. According to this witness, while pre‑auditing voucher No.12 he discovered that figure of 1,153.70 had been altered as 1,153.70` in respect of Cheque No.540286. He further discovered that the same entry had been subsequently cancelled and another cheque for Rs.2,153.70, Exh.15 had been prepared. The witness further confirmed that entry at page 10 in the cheque register had been made in the handwriting of appellant Zubair Ahmed which showed that Cheque No.540286 for Rs.1,153.70 had been issued. However, this entry was subsequently amended and an amount of Rs.2,143.70 was entered and the said entry had been signed by appellant Qamar Aqleem. Corresponding entries had also been made in the ledger at page 323 which has been produced as Exh.41. Entries were also made in the cash book showing that an amount of Rs.1,153.70 had been paid to Lal Masih but subsequently the figure was altered to Rs.2,153.70 at page No.50 thereof. Entries had also been made in the subsidiary register, Exh. 43 by appellant Zubair Ahmed showing payment of Rs.1,206.26 to P.W. Lal Masih but the same had been altered and shown as Rs.2,206.25.

6. It is pertinent to point out that P.W. Dr. Hameeda Jalil who was one of the main witnesses in the case made certain statements favourable to appellant Qamar Aqleem as she resiled from the earlier statement made by her in the examination‑in‑chief, according to which, she had stated that appellant Qamar Aqleem had got her signature on the second cheque within 40 or 45 minutes after signing the first cheque. She admitted in her cross- examination that Exh.15 had been produced before her on the next day after issuance of the first cheque. She also resiled from her further statement made earlier, according to which, appellant Qamar Aqleem had told her that there was overwriting on the first cheque and, therefore, the same could not be encashed.

7. On the basis of the aforesaid evidence, the learned trial Court has found both the appellants guilty of the respective offences with which they had been charged. Although the learned trial Judge was of the view that the evidence given by P.W. Dr. Hameeda Jalil against appellant Qamar Aqleem was not believable, however, according to him, even if such evidence was excluded, there still was evidence that as Accounts Officer appellant Qamar Aqleem had countersigned the cheque Exh.15 because it was in excess of an amount of Rs.1,000 and required the counter‑signature of the Accounts Officer, appellant Qamar Aqleem. He further held that the said appellant was duty bound to examine the cheque and to tally the same with voucher Exh.12 before putting his signature thereon. The learned Judge was, therefore, of the view that the offence had been committed with the connivance of the said appellant. The learned Judge also took into consideration the fact that appellant Qamar Aqleem had counter‑signed the entry in the cheque register Exh.19 which 'showed over writings. So far as the case against co‑accused appellant Zubair Ahmed is concerned, the learned trial Court held that since he had admitted the entire prosecution case and all the entries on the relevant documents were admittedly in his handwriting and the appellant had also admitted the over writings to be in his handwriting and had further admitted to have disbursed the salary to P.W. Lai Masih who had received only Rs.975 from the appellant, the case of the prosecution against the appellant was, therefore, fully established. He consequently convicted and sentenced the appellants as pointed out earlier.

8. So far as the case of the prosecution against appellant Zubair Ahmed is concerned, I find that the conclusions arrived at by the learned trial Judge in respect of the same are not open to exception. Not only the evidence of the prosecution witnesses has fully implicated him but he has himself owned all the entries made in the relevant documents produced in evidence against him before the Court and has further owned the overwriting made in the voucher. This evidence is further corroborated by the counterfoil Exh.l4 which showed issuance of the first cheque which, according to the prosecution evidence, had been destroyed subsequently on account of over writings. It has also been admitted by the accused that he only gave Rs.975 to P.W. Lai Masih instead of the full amount withdrawn by the cheque in question. His exculpatory explanation that he was acting under instructions from co‑accused appellant Qamar Aqleem was rightly discarded by the learned trial ‑Court as the said appellant under the circumstances enumerated was fully responsible for the commission of the said offences.

9. So far as the case against appellant Qamar Aqleem is concerned, the prosecution has mainly relied upon the evidence of P.Ws. Dr. Hameeda Jalil and Akbar Ali besides the documentary evidence Exhs. 15 and 19 respectively. The evidence given by Dr. Hameeda Jalil against the said appellant cannot be fully relied upon in view of the admissions made by her in the cross -examination reference to which has been made earlier in this judgment. Even the learned trial Court has not attached much credence to her evidence on that account. Furthermore, the evidence of the said witness has to be considered with great caution as originally she was herself charge‑sheeted on account of her alleged complicity in the said fraud together with the two appellants. However, the learned trial Court has relied upon the other evidence which was found by it to be sufficient to bring home the guilt to appellant Qamar Aqleem, Reference in this regard has been made to the counter‑signatures admittedly made by the appellant on the cheque Exh.15 and the cheque register Exh.19. So far as the evidence in regard to the appellant's signature on the cheque register Exh.19 is concerned, it is pertinent to point out that the same was not put to him by the trial Court in statement recorded by it under section 342, Cr.P.C. Consequently, such evidence cannot be considered against the appellant in any case. However, whatever be the case, admittedly the entries were made in the cheque register by co‑accused Zubair Ahmed. According to the evidence of the witnesses, the entry on the cheque register was only initialled by appellant Qamar Aqleem and P.W. Dr. Hameeda Jalil. It may be pointed out that mere initial or signature of the said appellant on the entry in the cheque register alongwith that of P.W. Dr. Hameeda Jalil cannot be used as incriminating evidence against the appellant unless mens-rea is established. The fact that P.W. Dr. Hameeda Jalil who had also put her' signature against the said entry was not charge‑sheeted before the learned Special Court is sufficient to absolve the appellant from criminal liability in this regard. The only other evidence produced by the prosecution against the appellant which remains to be considered is his counter‑signature on the cheque Exh.15. The said cheque, according to the explanation of the appellant in his statement recorded under section 342, Cr.P.C., had been signed by him in good faith as the same had already been signed by P.W. Dr. Hameeda Jalil and had also been audited. The fact that the cheque had been first signed by P.W. Dr. Hameeda Jalil gets further support from the statement made by her during her cross‑examination, according to which, all the cheques which were in excess of Rs.1,000 were first to be signed by her and then to be countersigned by appellant Qamar Aqleem. It is again pertinent to point out that notwithstanding the fact that the cheque was signed by appellant Qamar Aqleem, the onus to establish mens rea was still on the prosecution. The question of criminality of the said act would once again depend upon the intention of the accused. If the counter‑signature on the cheque was put by the appellant with an intention to commit fraud or misappropriation, the appellant would be guilty of an offence with which he was charged. In absence of such proof no presumption can be drawn by the Court against the accused in this regard. It would thus appear that there is no reliable evidence against the appellant on the basis of which he could be convicted for the said offence. However, as pointed out earlier, the case against the other appellant has been fully established by the prosecution.

10. In the result, although Criminal Appeal No.6/89 filed by appellant Zubair Ahmed is dismissed and the conviction and the sentence awarded to p him by the learned trial Court are maintained, however, Criminal Appeal No.15/89 filed by appellant Qamar Aqleem is allowed and the appellant is ordered to be acquitted of the offence of which he has been convicted. The appellant may be released forthwith and the bail bonds furnished by him are discharged. N.H.Q./Q‑65/K Order accordingly.