1993 PLP 1999 (MLD)

(a) P.W.3 Rapheal James, who stated "it is correct that accused Abdul Sattar was transferred from Central Depot in the month of August, 1976. It is correct that accused Abdul Sattar was succeeded by Abdul Baqi." (b) P.W.7 Syed Liaquat Hussain who was a blacksmith, stated "I had also signed those certificates. I produce photostat copies of four such certificates as Exhs.250 to

253. All these certificates bear my signature. The T.D.15 forms shown to me in the Court today do not bear the signatures of accused Abdul Sattar or any incharge of the section of the store." (c) P.W.2 Bashir Ahmed (Exh.233) who was a foreman in K.T.C. stated in his evidence, "if the value of the parts exceeded Rs. 1,000 then the sanction was to be accorded by the District Manager on T.D. 15 Form. After the approval was obtained, the T.D.15 Form was sent to the Head Store‑Keeper for the release of the parts from the store. The Assistant working in the Stores used to issue the required parts". (d) P.W.4, Ayoob Ali (Exh. 246), who was a mechanic in K.T.C., stated, The T.D. 15 Forms were always prepared by the clerk working in the workshop but the signature of the recipient was always taken on T.D.15 after the new parts were supplied to him". (e) P.W. 6 Ghulam Oadir (Exh. 248) was a blacksmith in K.T.C. and he stated in his evidence, "I do not know as to who used to purchase the automobile parts". (f) P.W9 Muzaffar Hussain (Exh. 256) who was Sub‑inspector ACE stated in Court "on 23‑8‑19781 had taken accused IIyas to City Courts where I had taken his specimen signature in presence of Magistrate Mr. Noor Ahmed." Mr.Halepota has, by referring to the above portions of prosecution evidence, argued that on such incoherent statements when no other witness said a word against accused Abdul Sattar, it was not safe to record conviction. Lastly it is contended that the prosecution evidence in any case was neither free of taint nor of doubt and appellant was entitled to acquittal. Mr. Nooruddin Sarki, learned Advocate for appellant Sarwar Hussain (Cf. Appeal No. 50/89) has contented that P.W.1 Imam Ali Shah (Exh.6) stated in Court that on enquiry made by him and the other members of audit party, accused Asim and Ilyas had ,admitted that they had issued T.D. Forms Exhs.8 to 21, without implicating accused Sarwar Hussain who was working at the relevant time as a Store‑keeper. It is further argued that except evidence of hand writing expert, there is no evidence to connect Sarwar Hussain with the alleged misappropriation. But such piece of evidence was not put to the accused Sarwar Hussain in his statement under section 342, Cr.P.C. so that he could have explained the same. He has referred to PLD 1952 FC 1, PLD 1955 FC 8, PLD 1955 FC 88 (129) in support of his contentions. Mr. Muhammad Rafique Khanzada, learned Advocate for the appellant Muhammad Asim (Cr. Appeal No. 46/89) has contended that except the word of handwriting expert there is no evidence that either the Bin‑cards or the TD‑15 Forms were forged by accused Asim. The admission of guilt by appellant Asim before P.W. Imam Ali Shah that he and Ilyas had forged the TD‑Forms is no evidence on which conviction could be based. As to the opinion of handwriting expert, the same was a mere opinion, but no question with regard to such piece of evidence was put to accused Asim in his statement under section 342, Cr. P.C. Mr. Zaheer Quershi, learned Advocate appearing for the State, has supported the convictions. It has been contended that prosecution relied on Bin‑cards, TD‑15 Forms and TD‑16 Forms and relevant registers showing the receipt of various parts of automobiles and issuance thereof when indented for various buses. P.W. Imam Ali Shah is an important witness who had seen TD‑15 forms Exhs.28 to 55 and Exhs.8 to 21 which were in the handwriting of absconding accused IIyas. Some of these TD‑15 Forms were in the handwriting of accused Sawar and are Exhs.26 to 35 while Exhs.8 to 21 were in the handwriting of accuced Asim as deposed by handwriting expert Ghulam Abbas Jaffery. It is also argued that these TD‑15 Forms were issued in the names of various stores, when same had to be issued against particular buses in the Depot and this act of the accused was against prevailing practice in K.R.T.C. It is also contended that none of the accused was authorised to sign TD‑15 Forms. It is also pointed out that Bin‑Cards are meant to show the quantity of spare‑parts with their prices, received in the store. These cards also show that on the basis of TD‑15 Dorms, spare7parts had been issued from the store. From the evidence it is clear that the, persons named in TD‑15 Forms, neither received spare parts nor signed said form. Further that accused Asim and Ilyas were found making entries in Exh.s.R to 21 and such forms were taken in possession by audit party. Accused Asim was also found making entries in workshop maintenance register Exh. 167 The fact of making entries m various records is fully proved by P.W. ‑Imam. All Shah. The conduct of accused Asim and Ilyas in not sending TD‑15 Forms to accounts department in June 1976 further establishes their guilt, as it was intended by them to hide their guilt. It is further contended by the learned State Counsel that although there is no direct evidence to connect appellant Abdul Sattar with the alleged offence, yet he being Head Store‑keeper, was supposed to check the working of his subordinates accused Asim, Ilyas and Sarwar and as such he is liable under section 34, P.P.C. as all accused in furtherance of their common intention, committed forgery. All that has been stated by learned State Counsel against Abdul Sattar is that he was guilty of dereliction of his duty. Overall, it is argued that prosecution evidence was trust worthy and a lenient view was taken by the trial Court in awarding short sentence in view of lengthy and protracted trial and no interference is called for. The arguments of the learned counsel were heard at length and entire evidence, documentary as well as oral, has been perused. During trial 2 words have been frequently used and these were `Bin‑Card' and `TD‑15 Forms', which are said to have been forged and resultantly, logs of Rs. 2,15,114.75 was caused to K.R.T.C. `Bin‑Cards' is a card maintained at the Stores Department of Depot showing the spare parts received at the Depot and also issuance of such parts for various buses of K.R.T.C. if indented. It is in fact a record of receipt and issue of various parts in the Depot together with their price. `TD‑15' Forms are such forms as include the indent, demand or requirement of various parts made for different vehicles, after such part of a particular vehicle becomes unserviceable. `TD‑15' Forms are also in the nature of issue vouchers. The allegation in the case was that although `Bin‑Cards' contained the name, number and price of each part received in the Head Store, their issuance for various buses was forged and no parts were either indented, or issued but such parts were sold in the market, resulting into financial loss to K.R.T.C. For this loss, appellant Abdul Sauar being Head Store‑keeper, appellant Asim and Sarwar being Store‑keepers were liable as it is they, with connivance of absconding accused Ilyas that forgery was committed and they derived wrongful gain and caused wrongful loss to K.R.T.C. Prosecution case, as evident from charge Exh.2 is that forgery for the purpose of cheating, criminal breach' of trust or using as genuine as forged documents,' is confined to period' between 15‑6‑1976 to 22‑6‑1976 i.e. total period of 7 days. This when came to the justice of higher ups in the organization of K.R: T.C., an audit party was framed, comprising of P.W, Imam Ali Shah, Atiqul Hassan and Muhammad Shah Jukhari, who submitted their enquiry report Exh.7, on the basis of which F.I.R was registered. Apart front securing the documents i.e Bin‑Cards and TD‑15 Forms, during enquiry, apppellant Asim and absconding accused Ryas arc said to have recorded their statements of guilt Exhs.26 and 29 in which both of them confessed their guilt. A detailed perusal of Exhs. 26 and 27 shows that Asim and Ilyas made these statements on an assurance by P.W. Imam Ali Shah that he would save them if they made such statements. V.W. Imam Ali Shah was conducting the enquiry and was man in authority capable to save Asim and Ilyas. These statements are ruled out of consideration as the same are inadmissible under Article 37, Qanun‑e‑Shahadat, 1984. In order to prove charge under section 409 of P.P.C., it was incumbent on the prosecution, to prove entrustment of the spare‑parts, details of which were entered in Bin‑Cards, whereafter alone it could be said that the appellants or for that matter anyone holding charge of the Stores, committed breach of trust. More entries of the parts in Bin‑Cards and issuance of such parts through TD‑15 Forms, even though bearing handwriting of some of the accused, would not make out a case of breach of trust by a public servant as required under section 409 of P.P.C. In the instant case the learned trial Court has based its finding of criminal breach of trust by appellants on an assumption that since the spare‑parts were entered in the Bin‑Cards, it is the accused who could be held liable for breach of trust if issuance of such parts is not established through entries in Bin‑Cards or TD‑15 Forms. The burden of proof has been shifted to the accused, which was not a correct approach. Further charge against the appellants was that they committed forgery for the purpose of cheating, punishment for which is provided under section 468 of P.P.C. The perusal of entire evidence does not make out that the appellants forged the Bin‑Cards or TD‑15 Forms for the purpose of cheating. Allegation against the appellants is that they forged entries in the Bin‑Cards and showed issuance of various parts when no such parts were indented through TD‑15 Forms. For the purpose of establishing this charge prosecution has taken support from the evidence of P.W. Ghuiam Abbas Jaffery, Handwriting Expert. The evidence of Handwriting Expert is in the nature of opinion and unless corroborated by other independent evidence, it could not be made the sole basis of recording conviction. In Rafiq Ahmed v. The State PLD 1958 SC (Pak.) 317 it was held by the Hon'ble Supreme Court that the mere fact that the writing therein contained all the peculiarities of the handwriting of the approver does not by itself exclude the possibility of a person knowing the approver's handwriting and being clever at forging documents having forged his writing. Keeping above rule in view, there is no hesitation to holding that on the 11 basis of opinion of handwriting expert that certain characteristics of handing writing of accused in the disputed documents, were similar to the characteristics of their admitted handwriting and signatures, a finding of guilt cannot be recorded. Only a presumption may be drawn against accused which could not be sufficient to hold them guilty of charge. I have also gone through statements of appellants recorded under section 342 of Cr.P.C. No question was put to them that they had forged certain entries in the Bin‑Cards or TD‑15 Forms. A general question is put to accused Sarwar Hussain that he in furtherance of common intention with accused Asim and Abdul Sattar prepared forged TD‑15 Forms and obtained signature of Muhammad Ilyas Foreman who was Works Manager. It was not `put to accused Sarwar Hussain that the handwriting and entries in TD‑15 Forms were forged by him or that the same were in his handwriting. Similarly no specific question in that respect was put to accused Abdul Sattar in his statement Exh.297. Even appellant Muhammad Asim was not asked such question. The requirement of section 342 of Cr.P.C. is that for the purpose of enabling the accused to explain any circumstances appearing in evidence against him, the Court may at any stage of any enquiry or trial, without previously warning the accused, put such questions, to him as the Court considers necessary. If there was any circumstances appearing in evidence against the accused with regard of their having forged the Bin‑Cards or TD‑15 Forms, such a question should necessarily have been put to the accused. In Abdul Wahab v. The Crown PLD 1955 FC 88 it was held as under: ‑‑ "Where `the circumstances appearing in evidence against him' are not put to accused and his explanation is not taken thereupon, it cannot be said that the purpose of section 342 has been fulfilled. It is not a mere formality, but is an essential part of the trial that the accused should be given notice of the point or points which he must meet in order to exonerate himself. In Abdus Salam Molla v. The Crown PLD 1955 FC 129 it was held: ‑‑ "Compliance with section 342 of the Criminal Procedure Code is absolutely essential in accordance with its terms, and where this is not done, the conviction might be quashed, or the trial might be set aside, if some prejudice appears to have been caused to the accused. Particular care should be taken that the important elements in the prosecution case which need some explanation from the accused should be put to him in a succinct form and his Reply recorded. It is wholly against the provisions of the Criminal Procedure Code or the demands of natural justice that a person should be convicted on the basis of something, of which he was not given any notice, and to which he was never required to give his own reply." In Rahim Bakhsh v. The Crown PLD 1952 FC 1, it was held: ‑‑ "It would be most unfair to the accused, and it would amount to a violation of a fundamental principle of natural justice if he is convicted solely on the basis of an admission alleged to have been made by him without calling his attention to the admission and asking for his explanation when he was examined in Court:" In view of the rule laid down in the above judgments, omission by the trial Court to have put all circumstances appearing in case against each c accused has caused ‑prejudice to them and on that score alone the accused can be acquitted or their retrial could be directed. Appellant Abdul Sattar produced Exhs. 301 to 304 in his statement on oath and these are certificates which were also produced by P.W.7 S. Liaquat Hussain. These documents clearly show that Abdul Sattar handed over charge of the store to his successor Mr. Abdul Baqi Siddiqui on 28‑8‑1976. Perusal df these certificates shows that Abdul Sattar was given a clean slate and nothing was found due against him. At the time when enquiry was conducted by P.W. Imam Ali Shah and others, appellant Abdul Sattar was not even called to explain various entries purporting to have been made in Izin‑Cards or TD‑15 Forms during the time he was Head Store‑keeper. The trend of arguments of learned Advocate for the State was that although there were no entries in the handwriting of Abdul Sattar, yet he being Head Store‑keeper, was duty bound to check the performance of his subordinates and failure on his part to do so, would mean his collaboration in the act and that he is also equally liable with other accused under section 34, P.P.C. I am afraid such is not the spirit of section 34, P.P.C. It has to be proved by evidence that appellants Asim and Abdul Sattar had committed acts of forgery and that appellant Abdul Sattar could also be held liable with them and that such acts of forgery were done in furtherance of the common intention of all. There is no evidence in that behalf and appellant Abdul Sattar could not have been held guilty under section 34 of P.P.C. I have gone through the entire record and hove observed that the trial Court took nearly 10 years to complete the trial announce the impugned judgment. Although I have found from the case certain lacuna which I have pointed out earlier that circumstances appearing against each accused were not put to them during their statements under section 342 of Cr.P.C. and the case could have been remitted back for retrial, but in view of the fact that from the date of F.I.R. registered on 24-5-1977, a period of 15 years is taken to conclusively determine the fate of the accused, I would not direct retrial of the accused, but would decide the appeal on the evidence available on record. Prosecution, in my view, failed to prove guilt of the appellants beyond reasonable doubt. Neither there was sufficient evidence to prove criminal breach of trust by appellants nor forgery of forged documents. Since the main charge under sections 468, 409, 471 and 34, P.P.C. was not proved, a ppellants cannot be held to have misconducted themselves as provided under section 5(2) of Act Il of 1947. The evidence on record is shaky, incoherent and untrustworthy. The trial Court did not even deal with the documentary evidence produced by each of the appellants in their statements under section 342 of Cr.P.C, These documents clearly exonerated the appellants of t, the charge but' in any case it was a case of doubt should have been given to the accused. For the aforesaid reasons, while giving benefit of doubt to the appellants, I accept their appeals set aside the conviction and sentence and I direct their acquittal. . N.H.Q./S‑978/K Appeals accepted.