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1967 Criminal Appeal No. 308 of 1964, decided on 28th August

, S. 47-Opinion as to hand Writ ing-Prosecution witnesses having been dealing with accused for a long time conversant with his handwriting and initials-No reason to disbelieve testimony of such witnesses regarding identity of accused' s signature.

, S, 6 Sanction_tbr prosecution of public servant-Sanctioning authority granting sanction after perusing relevant papers and consideration of all facts of case-Mere fact that sanction was not in proper form or did not contain full particulars-Held, would not lead to conclusion that no sanction was given-Typographical error in sanctioning order can be corrected by authority issuing such order--General Clauses Act (X of 1897), S. 21-Authority empowered to issue an order-Entitled to vary, amend, add to far rescind such order.

S. Sami Ahmad for Appellant.

M. Halim, A. A.-G. for the State.

Dates of hearing : 15th, 16th and 17th August 1967.

Abdul Salam appellant was convicted under section 409, P. P. C. read with section 5 (2) of Prevention of Corruption Act (Il of 1947) and sentenced to twelve months rigorous imprison ment, with a fine of Rs. 1,500 or in default to further under go rigorous imprisonment for nine months by the learned Special Judge-cum-Enquiry Officer, Hyderabad, camp at Karachi. The appellant against his conviction has preferred this appeal.

2. The facts of the case are that the appellant was working as an Upper Division Clerk and Cashier in the Motor Registration Branch of Traffic Police, Karachi, with the duties to collect taxes and fees in respect of motor vehicles K. A. A., K. A. C., K. A. K and temporary tokens and deposit the same in the Government Treasury. On the 16th of September 1960, the appellant was challaned in the Court of Special Judge-cum-Enquiry Officer Centre, Karachi for misappropriating the sum of Rs. 14,035-5-0 during the period 20th of April 1959, to 16th of July 1960. On the 2nd of February 1961, the complete. challan was received and a reference was made to the Government for the sanction to prosecute the appellant. On the 29th of March 1961; the sanction Exh. No. 9-l; was accorded by the appropriate authority for pro secuting the' appellant for having misappropriated a sum of Rs. 8,908.87 as motor vehicle taxes from different tax-payers vide receipts from the period starting from 20th'of April 1959 to 16th of July 1960. On the 25th of April 1961, an application was moved by the prosecution to split up the cases into six different cases. As a result of merger of Karachi into West Pakistan the cases were transferred to the Special Judge Centre, Karachi. On the 29th of April 1961, the accusation was put to the appellant only in one case, i.e., for misappropriating the sum of Rs. 649-4-0 and thereafter the learned Special Judge Centre proceeded to try the appellant. During the pendency of the proceedings the case was transferred to the Special Judge-cum-Enquiry Officer, Hyderabad, camp at Karachi, who received it on the 26th of. January 1963. On that very day a corrigendum Exh. No. 9-G was issued by the appropriate authority to the effect that the figure 'Rs. 14,035-5-0' be substituted for the figure 'Rs. 8,908.87' occurring in line six of paragraph 1 of the order Exh. No. 9-F, dated the 29th of March 1961, as the latter figure was a typographical error. On the 11^th of March 1963, the six cases against the appellant were again amalgamated into two cases; one for misappropriating the sum of Rs. 1,342-2-0 from the 20th of April 1959 to the 20th of April 1960, and the other for misappropriating the sum of Rs. 1,2693-3-0 from the 21st of April 1960, to the 16th of July 1960. After that the appellant was tried separately. Both the trials were held denovo. The present case is with respect to the misappropriation of Rs. 1,342-2-0.

3. The allegation against the appellant was that he, in the capacity of public servant as an Upper Division Clerk and Cashier in the Motor Registration Branch of Traffic Police, Karachi, from the 20th of April 1959 to 20th of April 1960, recovered Rs. 1,342-2-0 by issuing various receipts from various books to various persons on behalf of the Traffic Police and instead of entering the same in the Day Book and crediting the same in the Treasury, misappropriated the aforementioned amount.

4. Before proceeding with the facts of this particular case it will be better to reproduce the procedure for collection of taxes, etc. If a person wants to pay tax for a vehicle, he hands over his papers to the peon of that counter. The peon takes out the tax index card of that vehicle and hands over the papers to the assess ment clerk, who verifies the validity of the tax. Thereafter he assesses the amount due in the tax card and then makes entries in the registration certificate and also prepares the token for the period for which the taxes are accepted and then passes all the papers to the Cashier. The Cashier accepts the amount from that person and signs in the registration book and issues the original receipts to the person concerned. These receipts are bound in a book in serial numbers and also paged. The counter-foils of those receipts remain in the book. The Cashier then signs the registration book, the tax index card and the token and then hands over the registration book and token to the person concerned, but retains the index card. The counter closes at 11a.m. every day. The Cashier then has to make entries in the day books with regard to the receipt numbers, the book number, the number of the vehicle and the amount and the date of receipt by reference to the counter-foil. Then the Cashier has to pass on the amount along with the daily cash book to the head Cashier, who after checking the same, signs the day book and the receipt book. The tax index cards are retained by the Cashier. Then these books are sent to the Accountant, who again checks and signs them. Thereafter the day books are taken by the Cashier to the Deputy Superintendent of Police for his signatures and then the books are retained by the Cashier. The receipt books during the period, under consideration, were indented by the . Cashier directly and after detection of the crime they were being indented through the Accountant. The Stationery Clerk issues the receipt books after obtaining the signature of the Cashier in the register maintained by him. Each receipt book contains 100 receipts in duplicate. No one checks as to whether at the time of indenting the new receipt book, the previous receipt book was fully used. At the particular time when the offence is alleged to have been committed Ahmad Husain (P. W. 1) was the Accountant, Abdul Rafique (P. W. 5) was the Head Cashier, Aman Ullah (P. W. 6) was the Assessment Clerk and Sultan Ahmad (P. W. 7) was the Stationery Clerk and Mr. Sami Muhammad Khan was the Deputy Superintendent of Police.

5. In July 1960, application Exh. 2-A for the transfer of Vehicle No. K. A. A. 9077 was received by Ahmad Husain (P. W. 1), who forwarded it to the Deputy Superintendent of Police for his final orders. The Deputy Superintendent of Police matte endorsement "tax position should be verified" on the 19^th of July 1960, on the said application and sent it back to Ahmad Husain P. W., who asked the appellant to put the number of the receipt, which he did with reference to the K.M.C. receipt. The said number is encircled- with blue ink. After that the said application was sent to Assessment Clerk Aman Ullah Khan P. W. for further verification from the day book. Two or three days later the Assessment Clerk brought the application to Ahmad Husain P.W. with his endorsement that the tax position had been verified-from the day book. This endorsement is dated 20th of July 1960. Ahmad Husain P. W. himself wanted to verify as the endorsement had been made by the D. S. P. and so he asked the appellant to produce the day book. After the perusal of the said book it was found that there was no such entry as mentioned by him. Ahmad Husain P. W. thereafter asked the appellant to produce the relevant receipt book No. 196) as mentioned by him. The appellant became confused and promised to make a search, but did not bring the receipt book. Since he failed to bring the receipt book, Ahmad Husain P. W. reported the matter to the D. S. P. and when the appellant was sent for, it was found that he had run away. There after the D. S. P. and Ahmad Husain P. W. reported the matter to the Superintendent of Police Traffic, who asked Ahmad Husain P. W. to make a report in writing, which he did. The said report is Exh. 2-B, dated the 23rd of July 1960. On the basis of the said report .formal first infor mation report was drawn up by Station House Officer Munawar Ali, Incharge Police Station Kharadar and the case was registered, The certified copy of the first information report is Exh. 9-A. On the 6th of September 1960, the case was entrusted for investi gation to Sub-Inspector Alamdar Husain (P. W. 8), who tried to locate the appellant but was only able to arrest him on the 15^th of October 1 960. The Sub-Inspector then took into his possession the relevant documents in this case and also recorded the state ments of the prosecution witnesses, and finally on completion of investigation, a challan was put in Court.

6. The appellant denied his guilt and stated that he was falsely implicated by Ahmad Husain P. W. with whom he had previous enmity. He did not claim that the receipts Exhs. 2E-1 to 2E-27 were issued or initialed by him. He also denied that the index cards Exhs. 2F-1 to 2F-16 bore his initials. He, how ever, admitted that the entries in the day books Exh. 2-G and Article 'A' were made by him and bore his initials. He also admitted that the initials Exh. 2-Dxin the attendance register Exh. 2-C showing that he was present to the office on the 23rd of July 1560, were made by him. He further admitted that on the 26th of October 1959, vide register 'Exh. 8-A, 25 receipt books commencing from Serial Nos. 726 to 750 Exh. 8-B and on the 6th of August 1959, 25 receipt books commencing from Serial Nos. 501 to 525 Exh. 8-C were issued to him by Stationery Cle clerk, Sultan Ahmad P. W., and that he (the appellant) had initiated the relevant enries in the register. 1n his defence he examined Asmat Ullah (D. W. 1), Ahmad Ullah (D. W. 2) and Muhammad Khalil Khan handwriting expert (D. W. 3). Asmat Ullah D. W. stated that he was conversant with the handwriting and initials of the appellant. Figures and initials on receipts Exhs 2E-1 to 2E-2, and index cards Exhs. 2F-1 to 2F-16 were not in the hand writing of the appellant. Ahmad Ullah D.W. stated that the receipts Exhs. 2E-1 to 2E-27 and the writings on tile index cards Exhs. 2F-1 to 2F-16 were not in the handwriting of the appellant. The handwriting expert Muhammad Khalid Khan D. W. after comparing the handwritings and the initials in the day books Exh. 2-G and Article 'A' and attendance register Exh. 2-C, which are admittedly in the hand of the appellant, with the receipts Exhs. 2E-1 to 2E-27 and index cards Exhs. 2F-1 to 2F-16 found that they were not in the hand of the same person. In other words the writings and the initials on the aforementioned receipts and the initials on the index cards were not in the hand of the appellant.

7. The prosecution in order to prove its case examined Ahmad Husain Accountant (P. W. 1), Abdul Rafique, Head Cashier (P. W. 5), Aman Ullah Khan (P. W. 6), Sultan Ahmad Stationery Clerk (P. W. 7), Fazal Bai (P. W. 2), Muhammad Husain (P. W. 3), Muhammad Rehmat Ullah (P. W. 4) and Muhammad Ali (P. W. 9). Ahmad Husain Accountant P. W. stated that in July 196(3, application Exh. 2-A for the transfer of vehicle No. K.A.A. 9077 came before him, which he forwarded to the Deputy Superintendent of Police for final order. On the said application the D. S. P. made endorsement that the tax position should be verified. Ahmad Husain P. W. then asked the appel lant to put the number of the receipt, which he did. The said number is encircled in blue ink. After that the application was handed over to Aman Ullah, Assessment Clerk, P. W. for verification. He on the 20th of July 1960 made -the endorsement that the tax position had been verified from the day book. On account of the endorsement of the D. S. P. Ahmad Husain P. W. himself wanted to verify. He, accordingly, asked the appellant to bring the day book, which he did and on perusal it was found that there was no such entry as mentioned by him. The appellant was then asked to produce receipt book No. 1960, which he failed to produce. Ahmad Husain P. W. then informed the D. S. P. and they both then reported the matter to the Superin tendent of Police. The appellant, in the meanwhile ran away. Under the instruction of the Superintendent of Police Ahmad Husain P. W. made written report Exh. 2-B on the basis of which formal first information report teas drawn up, the certified copy of which is Exh. 9-A. Ahmad Husain P. W. Produced. the attendance register Exh. 2-C showing that the appellant was present on the 23rd of July 1960. His initials are Exh. 2-D, which fact is even admitted by the appellant. Ahmad Husain P. W. produced 27 receipts Exhs. 2E-1 to 2E-27 and 16 index cards Exhs. 2F-1 to 2F-16. These receipts were issued to various persons, who had paid the tax. After checking up it was found that the amounts of all the receipts were not accounted for in the day books Article 'A', which commences from 8th of July 1959 to 23rd of February 1960, and Exh. 2-G commencing from 24th of February 1960.to 31st of August 1960. Ahmad Husain P. W. stated that he was conversant with the handwriting and initials of the appellant. He found that all the aforementioned receipts were in the handwriting of tire appellant and the initials there on were also .his. Similarly the initials against the entries in the index cards were also that of the appellant. Fazal Bat P. W. stated that he was the representative of the Karachi Automobile Association and that he on behalf of its members used to pay taxes, and that with the exception of five receipts. i.e. Exhs. 2E-23 to 2E-27, the rest of the receipts were issued to him by the appellant, who wrote them in his presence and the amount shown in these receipts were paid by him (this witness) to the appellant. He also added that he had been visiting the office since 1959 in order to pay taxes, and that he not only knew the appellant, but was also conversant with his handwriting. According to him the aforementioned receipts were in the handwriting of the appellant: Muhammad - Husain P. W. stated that his company owned Car No. K.A.A. 8543 in 1959 and that he had been paying tax to the appellant for which the appellant had issued receipt Exh. 2E-25 after accepting the money. Muhammad Rehmat Ullah P. W. stated that in 1959 he paid tax for his company's Car No. K.A.A. 2738 to the appellant, who issued the receipt Exh. 2E-27. According to him the receipt was written out by the appellant in his presence. He also added that he could identify the signatures and handwrit ing of the appellant, but when he was shown page 178 of the day book Exh. 2-G, he stated that he could not identify the handwriting thereon. The learned counsel for the appellant contended that all the entries made in the day books are admit tedly in the handwriting of the appellant and since he (this witness) could not identify the handwriting on page 178 of the day book no reliance should be placed on his testimony. I have perused page 178 of the said day book and find that all the entries thereon were made by one Sadiq Cashier and not by the appellant and, therefore, how could this witness have identified the handwriting. Under these circumstances there is no force in the contention of the learned counsel. Abdul Rafique, Head Cashier, P. W. stated that he was conversant with the handwrit ing, signatures and initials of the appellant and that the receipts Exhs.2E-1 to 2E-27 were in his handwriting and bore his initials. He also stated that the initials against the entries on the index cards Exhs. 2F-1 to 2F-16 were also that of the appellant, and that the amounts in these receipts were not mentioned in the day book. Aman Ullah Khan, Assessment Clerk, P. W. stated that he was conversant with the handwriting, signatures and initials of the appellant, ,and that receipts Exhs. 2E-1 to 2E-27 were in his handwriting and bore his initials. He also stated that the initials on the index cards Exhs. 2F-1 to 2F-16 were also that of the appellant. Sultan Ahmad, Stationery Clerk, P. W. stated that he issued receipt books to the appellant after making entries in the cash book Exh. 8-A and obtained his signatures on it. Entry dated the 26th of .'October 1959, Exh. 8-B, showing that 25 receipt books were issued to the appellant commencing from serial Nos. 726 to 750 were initialed by the appellant. He had also issued 25 receipt books to the appellant on the 6th of August 1959 commencing from serial Nos. 501 to 525 Exh. 8-C and got his initials thereon. These initials are admitted by the appellant as his. Muhammad Ali P. -W. stated that he paid tax for Car No. K.A.A. 3381 to the appellant, who issued receipt Exh. 2E-24 to him. The learned trial Judge examined Alley Ahmad, handwriting expert as a Court witness, who stated that although the entries and the initials on receipts Exhs. 2E-1 to 2E-27 and the initials on the index cards Exhs. 2F-1 to 2F-16 were of the same person, he was doubtful as to whether the; were of the appellant. The learned counsel for the appellant counted that in view of the statement of Alley Ahmad C. W. and Muhammad Khalil Khan (D. W. 3) no reliance should be placed on the testimony of the P. Ws. and as such the appellant is entitled to an acquittal. I have carefully examined all the relevant rec,4pts and the index cards as well as the initials against the entries ;n the day books, attendance register and cash book issuing register and find that all of them appear to be of one and the same pet con. The first receipt Exh. 2E-1 is dated the 3rd of September 1959 and bears No. 24 and the number of the receipt book is given as 502. In the day book Article A' on that date entries shore that the receipts were issued from book No. 508 and the numbers of the receipts start from 43 to 61. Similar is the case with the other entries in the day book on the relevant dates on which the receipts in question were issued. This shows that none of these receipts were entered in the day book. In other words on those relevant dates the appellant entered receipts issued from different receipt books and not from the receipt books in question. It is admitted that the receipt books out of which the receipts in question mere issued were received by the appellant from the Stationery Clerk. The learned counsel for the appellant also argued that the Accountant, Assess ment Clerk and the Cashier, whose duty it was to see that" the entries were made in the day book, did not find any thing wrong, and so they were also party to the misappropriation. 1, however, find no force in this contention because the counter-foils of the relevant receipts and the index cards were never shown' to them and, therefore, they could not have known that the appellant, had issued receipts, which were not entered in the day book. The P. Ws. have been dealing with the appellant for quite a long time and, therefore, it cannot be said that they were not conver sant with his handwriting and initials and, as such there is no reason to disbelieve their testimony. Since I have also found that the admitted initials in the attendance register, cash book issuing register and the day book tally with the initials on the relevant receipts and index cards, I am satisfied that all these receipts were issued by the appellant.

8. The learned counsel for the appellant also argued that the sanction for the prosecution of the appellant was not proper on the following ground :--

(1) That it was not in proper form as it did not contain full particulars and the facts by which it could be ascertained that the sanctioning authority was posted with all material facts ; and

(2) that the sanctioning authority could not have amended the previous order of sanction by substituting Rs. 14,035-5-0 in place of Rs. 8,908.87 occurring in line 6, para. I of the said order.

I have perused the order dated the 29th of March 1961, Exh. 9-F, and find that the numbers of all the receipts issued by the appellant for motor vehicle taxes are mentioned. It is also laid down in the said order that the sanctioning authority had granted sanction after perusing all the relevant papers and consideration of all the facts of the case. In any case the mere fact that the sanction was not in a proper form as it did not contain full particulars would not lead to the conclusion that in fact no sanction was received for the prosecution of the appellant. Secondly by virtue of section 21, General Clauses Act (X of 1897) the authority which can pass an order is entitled to vary, amend, add to or rescind that orders. In the present case a typographical error had crept in the order Exh. 9-F because instead of figure Rs. 14,035-5-0 the figure Rs. 8,908.87 had been mentioned. In view of the above I find no force in the arguments of the learned counsel. The appeal is, accordingly, dismissed. The appellant, who is on bail, should be taken into custody to undergo the un expired term of his imprisonment.

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