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Criminal Appeal No: 490 of 1960, decided on 20th April 1963.

‑Each case stands or falls on its own legs Series of cases against same accused, heard one after another Evidence produced in any one of previous cases should not influence mind of trial Court in regard to subsequent case.

It is a fundamental maxim of Criminal Jurisprudence that each case stands or falls on its own legs and that where there are a series of cases against the same appellant, all heard one after the other, it is most essential to ensure that anyone or more of the previous cases and the evidence produced there in should not influence the mind of the trial Court in regard to the subsequent case.

; S, 420 read with Prevention of Corruption Act (11 of 1947), S. 5 (2)‑Cheating‑No evidence to show that accused derived any monetary gain horn alleged act Upholding of conviction for cheating in circumstances of case, held; unsafe.

G. M. Shah for Appellant.

R. A. Minwalla for A. A.‑G. for the State.

Dates of hearing: 11th, 12th, 16th and 17th April 1963.

The appellant Kazi Amjad Husain with two others by name Muhammad Yahya Naseem and Muhammad Idris Qureshi were challaned in the Court of the Special Judge Anti‑Corruption (Karachi) for offences under sections 120‑B, 420, P. P. C. and section 5 (2) of Act 11 of 1947 read with section 109, P. P. C. The two co‑accused were acquitted whereas the appellant alone was convicted under sections 420, P. P. C. and 5 (2) of Act II of 1947. In view of section 26 of the General Clauses Act the appellant was punished only under section 5 (2) of Act 11 of 1947 and was sentenced to undergo R. I. for two years and also to pay a fine of Rs. 1,500 or in default to undergo R. I. for six months more. The sentences in this case were to run concurrently with the sentences passed in the two previous cases bearing Nos. 10 and 11 of 1959 and now numbered as Criminal Appeals 453 and 488 of 1960. The appellant has appealed against this conviction and sentence.

2. The case for the prosecution is that between the period 15‑8‑1956 and 10‑9‑1956 the appellant was employed as an Upper Division Clerk in Section C. F. VII of the office of the A. G. P. R. Karachi. The final payment clerk during this period was actually the co‑accused M. Y. Naseem but the appellant being senior to him and having worked on this table prior to him, he bad been directed by the Section Superintendent Mr. Qamrud din Ahmad Chishti P. W. I to guide and assist M. Y. Naseem in his duties as final payment clerk. In the year 1953, the Karachi Police was separated from the former Province of Sind and the accounts of the members of this force were accordingly transferred by the Comptroller of Sind to the A. G. P. R. as per list Exh. 9. This list had become very old and torn and, therefore, the preparation of a new list became necessary and this task was assigned to the appellant assisted by another clerk named Masood Akhtar. These two clerks had to go to the office of the Comptroller Sind to compile a new list from Exh, 9 and the other ledgers maintained there and this new list so compiled by them is Exh. 11 in this case. The name of one Muhammad Aslam a police constable existed in list Exh. 9 and the number there given to it was KA/120. It is the case for the prosecution that this police constable Muhammad Aslam had ceased to be a subscriber and had already been paid up his dues of Rs. 751 on 7.3‑1953. Nevertheless, his name was again entered in the fresh list Exh. 11 under No. KAP‑B/701 which already belonged to one Mir Afzal. The appellant is alleged to have deliberately brought on to the fresh list Exh. 11 the name of this former subscriber Muhammad Aslam with the evil intent of utilising it for the purpose of drawing out moneys wrongfully from the A. G. P. R. A letter bearing No. Accounts/SPE/1123 of 1956 dated 15‑8‑1956 was alleged to have been received in the office of the A. G. P. R. Karachi purporting to come from the S. P. East Division Karachi requesting for the final payment of the general provident fund dues to P. C. Muhammad Aslam son of Khalilur Rahman Account No. KAP‑B‑701. On the strength of this letter the appellant is alleged along with the help of the final payment clerk M. Y. Naseem to have drawn up the necessary supporting documents and to have put up the final payment authority letter Exh. 14 together with the rough calculations Exh. 15 on which he obtained the signature of Syed Saghiruddin Assistant Accounts Officer P. W. 11 in this case, A copy of this final payment authority letter No. 14, the copy itself being Exh. 26, was then despatched to the Treasury Officer, Karachi, where the Additional Treasury Officer Mr. Jameel Ahmad P. W. 12 endorsed the receipt Exh. 35 standing in the name of M. Aslam and produced before him by a person who called himself Muhammad Aslam and made out a pay order on the State Bank of Pakistan for the sum of Rs. 1,253 mentioned in this receipt which pay order was duly cashed by Kazi Maqsood Hussain P. W. 7 who delivered the money to a person who signed as M. Aslam on the margin there of. Now this fraud along with others perpetrated in the same office of the A. G. P. R. came to light in August 1957 and on 17‑8‑1957 a letter of complaint was addressed by Mr. A. M. Jafri Deputy Accountant‑General (Funds) to Khan Sher Hasan Khan, Superintendent of Police, Special Police, Karachi. A formal F. I. R. as per Exh. 66 was drawn up by Mr. Muhammad Hussain then Deputy Superintendent of Police, Special Police Establishment, Karachi, against the appellant and his two co. acoused, the case was duly investigated and then after obtaining the necessary sanction challaned in the Court of the Special Judge Anti‑Corruption, Karachi.

3. The appellant in his examination under section 342, Cr. P. C. admitted that he was a public servant serving as an Upper Division Clerk in the C. F. VII Section of the office of the A. G. P. R. Karachi in the year 1956. He, however, denied having prepared the final payment authority letter Exh. 14 and that the outward register Exh. 28 and the despatch register Exh. 29 bore his handwriting in respect of the three entries bearing Nos. 892, 893 and 894. He also denied having entered into any conspiracy with his two co‑accused in order to defraud the Government and further denied every other allegation put to him. He examined three witnesses in his defence, namely, Shahnawaz and Mahmudal Hasan both Superintendents in the office of the A. G. P. R. as D. Ws. 1 and 2 and Mr. A. B. Chughtai the handwriting expert as D. W. 5.

4. Now ‑the case for the prosecution against this appellant rests on the evidence of fourteen prosecution witnesses. This evidence, as in the previous cases against this appellant, also falls and can conveniently be considered under two heads: the first dealing with the laying of the background, the preparation of the supporting documents and the execution of the final payment authority letter Exh. 14 together with its copies Exhs. 26 and 27 and the second dealing with the procuring of the pay order from the Treasury Office, Karachi, and securing its encashment at the State Bank of Pakistan, Karachi. It may be mentioned here and now that in this case the evidence falling in the second compart ment or category is extremely meagre and in no way, as admitted by the learned State counsel himself, implicates the present appellant. Nevertheless, it is necessary to consider closely the evidence falling in each of these two compartments or categories.

5. Now the first witness in Category No. I is Mr. Qamruddin Ahmad Chishti the then Superintendent of the C. F. VII Section of the office of the A. G. P. R. Karachi. He, of course, knows the appellant very well who was working under him as a final payment clerk prior to the appointment of M. Y. Naseem to that table in May or June of 1956. In the year 1953 when the Karachi Police was transferred to the Centre and the accounts of the members of that Force transferred to the A. G. P. R. a list of subscribers being Exh. 9 was received from the Comptroller Sind but as it was in a torn condition and, therefore, not properly legible a fresh list had to be made which task was entrusted to the appellant and another clerk Masood Akhtar. This new list was drawn up as per Exh. 11 and it bore the name of Muhammad Aslam as per Exh. 12 in the handwriting of the appellant. In fact the entire list Exh. I 1 is in the handwriting of the appellant. On 16‑7‑1957 Abdul Wahid P. W. 9 a clerk working under P. W. 1 informed him that ledger folio bearing No. KAP‑B‑701 appeared to have been substituted because there was no account on that page and the handwriting of the name and the number appearing on that page was different from the handwriting appear ing in the rest of the ledger. The witness then sent for that list and found that final payment had already been made against Account No. KAP‑B‑701 in the name of Muhammad Aslam son of Khalilur Rahman as payee whereas this very account No. KAP‑B‑701 according to the witness belonged to one Mir Afzal. The witness then searched for the personal file of Mr. Muhammad Aslam and found that the letter of the parent department and other papers were missing from this personal file which contained only the office copy of the authority payment letter Exh, 1.4 and the rough calculations Exh, 15 mad; by and in the handwriting of M. Y. Naseem. The witness then consulted the broad sheets and found that page No. 701 of the broad sheet was torn and was not available. The witness then reported the matter to his Deputy Accountant‑General who had the necessary report made to the police. The witness further states that the body of the final payment authority letter Exh. 14 in royal blue ink is in the handwriting of the appellant Kazi Amjad. This Exh. 14 is initialled at three places by Naseem who was the then final payment clerk and it is finally signed by the Assistant Accounts Officer Mr. Saghiruddin. With regard to the outward register Exh. 28 in regard to which it is the case for the prosecu tion that entries Nos. 892, 893 and 894 are in the handwriting of the appellant the witness stated:-

"I am unable to identify the writing of the entry as it has not been written by anyone of my staff."

With regard to the despatch register Exh. 29 the witness stated that the handwriting of the appellant appears thereon against entries Nos. 892, 893 and 894.

6. The second witness for the prosecution falling in this category is Muhammad Abdul Subhan a despatcher and diarist in the office of the A. G. P. R. Karachi who despatched the copy of Exh. 1.4 namely Exh. 26 meant for the Treasury to the Treasury through the peon book Exh. 30. He cannot say how he received this authority letter and added that it was quite possible that somebody may have placed it in his drawer and on finding it there he despatched it in the ordinary routine without making further enquiries about it. The third witness in this category is Mr. Hasan Afzal Jafri P. W. 4 also a diarist in the C. F. VII Section and whose evidence is principally directed against the co -accused M. Y. Naseem. The next two witnesses are the then Superintendent of Police, East Division, Mr. Sayed Muhammad P. W. 5 and his accountant Mr. Abdul Wahid Khan P. W. 6 who merely stated that letter No. Accounts/SPE/1123 of 1956 dated 5‑8‑1956 was never issued from their offce. There was no Muhammad Aslam son of Khalilur Rahman in the East Division of Karachi Police. In fact, their outward register shows that their letter No. Accounts/SPE/1123.of 1956 was dated 21‑5‑1956 and had been issued by them in respect of one Allahditta son of Alamdin and not of Muhammad Aslam.

7: The remaining prosecution witnesses falling in this first category are Mr. Sherwani P. W. 8 an examiner in the office of the A. G. P. R. Section C. F. VII who at that time examined the rough calculations on Exh. 15 which was brought to him by M. Y. Naseem and found them to be correct. He also states that the writing in blue ink on Exh. 14 is that of the present appellant and Exhs. 26 and 27 are in the handwriting of M. Y. Naseem. P. W. 9 Abdul Wabid Khan is the ledger folio clerk who first reported the irregularity in this case to his Superintendent Mr. Qamruddin Ahmad Chishti, P. W. 1. This witness who has worked along with the appellant in the same section and, is, therefore, familiar with his handwriting has also stated that Exhs. 14, 28 and 29 in this case all bear the handwriting of the present appellant. Syed Saghiruddia P. W. 11 the Assistant Accounts Officer signed the letter Exh. 14 and also testified that the body of it is in the hand writing of the appellant as well as the entries bearing Nos. 892, 893 and 894 in the outward register Exh. 28 and the despatch register Exh. 29. One last witness whose evidence might also be considered in this category though not of any consequence is P. W. 10 Muhammad Yaseen a card board box maker who resides in Quarter No. 343 Block V, Lalookhet. He was examined because it was his address which was shown in Exh. 14 as the address of the fictitious Muhammad Aslam son of Khalilur Rahman. He has merely said that he knows no Muhammad Aslam and that no such person ever lived either with him or near him in his Quarter No. 343/Block V, Lalukhet.

8. The prosecution witnesses falling in the second compart ment or category are Rahat Hussain P. W. 3, who in September 1956, was working as Sub‑Accountant in the Public Accounts Department of the State Bank of Pakistan where he received the treasury voucher in favour of one M. Aslam through a person who signed as M. Aslam. He then signed a pay cash order and returned the voucher together with the scroll book to the counter clerk from where it went to the Cash Department for cash payment. P. W. 7 Kazi Maqsood Hussain is the next witness in this category who in September 1956, was employed as a Teller in the Cash Department of the local office of the State Bank of Pakistan and who on receiving the voucher Exh. 35 together with token No. 243 paid the amount of Rs. 1,253 to the person who signed himself as M. Aslam on the margin of the voucher Exh. 35. The third and last witness in this category is Mr. Jameel Ahmad P. W. 12 the Additional Treasury Officer before whom the receipt Exh. 35 was produced by a person who called himself Muhammad Aslam. The witness made an endorsement on the voucher passing it for payment. None of these three witnesses P. Ws. 3, 7 and 12 are able to identify the person who appeared before them under the name of Muhammad Aslam.

9. There remains the evidence of the handwriting expert Dr. Shameem P. W. 13 and the Investigating Officer P. 1. Najmul Hasan P. W. 14. The evidence of Dr. Shameern is that Exh. 14, 28 and 29 are in the handwriting of appellant Kazi Amjad. The Investigating Officer P. I. Najmul Hasan investigated the case and challaned the appellant. He admits in cross‑examination that throughout the investigation of this case he had at no time secured the specimen handwriting or signatures of the appellant. In addition to these remaining two witnesses for the prosecution there are on the record of this case three defence witnesses examined by the present appellant but the evidence of D. Ws. 1 and 2 Mr. Shahnawaz and Mahmoodul Hasan both Superinten dents of the office of the A. G. P. R. is not of much assistance to the appellant's case. D. W. 5 is Mr. A. B. Chughtai the handwriting expert who has given reasons for his opinion that Exhs. 14, 28 and 29 are not in the handwriting of the present appellant.

10. Having set out above all the evidence available on the record of this case, it now remains for me to examine this evidence closely in order to reach a conclusion whether it con clusively establishes the. guilt of the present appellant. Before doing so I would like to emphasise that it is a fundamental maxim of Criminal Jurisprudence that each case stands or falls on its own legs and that where there are a series of cases against the same appellant, all heard one after the other, it is most essential to ensure that anyone or more of the previous cases and the evidence produced therein should not influence the mind of the trial Court in regard to the subsequent case. I am, therefore, proceeding to examine the evidence both for and against the appellant in this case wholly uninfluenced, unhampered and untouched by all that I have heard in the three previous appeals decided by me and wholly uninfluenced by any impressions the facts of those previous appeals may have made upon my mind. Mr. R. A. Minwalla summing up the case for the prosecution emphasised the fact that the writing in blue ink constituting the body of Exh. 14 is in the appellant's handwriting which fact has been testified to as, he said, by P. Ws. 1, 8, 9 and 11. In like manner, the handwriting of the outward and despatch registers Exhs. 28 and 29 are also in the handwriting of the present appellant as deposed to by P. Ws. 9 and 11 so far as Exh. 28 is concerned and P. Ws. 1, 9 and I l so far as Exh. 29 is concerned. The third point urged by the learned State counsel against the present appellant is that he prepared the fresh list Exh. 11 from the list Exh. 9 from which he knew that Muhammad Aslam's account had been closed and he himself paid off on 7‑3‑1953. Exh. 11 is prepared three years later in 1956 end yet the appellant deliberately brings forward the name of Muhammad Aslam on to the fresh list prepared by him. These are the three pieces of evidence emphasised by the learned State counsel when consider ing the total evidence appearing against the appellant falling under the first compartment or category. But, it seems to me, that however strong the evidence falling within Compartment No. 1 may be against the appellant, the case against him must be considered as a whole and, therefore, unless there is satisfactory evidence in Compartment No. 2 to show that the appellant derived monetary gain as a result of the irregularities found from the evidence of the witnesses of Category No. 1, it would not be safe to uphold his conviction in this Appeal. Now with regard to the evidence falling in Category No. 2, the learned State counsel has frankly conceded that it is very meagre and wholly insufficient to connect the appellant with the encashment of the pay order or voucher Exh. 35. A3 has been noticed above, there are only three witnesses whose evidence comes in this second category and not one of them has been able to identify Muhammad Aslam who appeared before them with the vouchers or token and who received the sum of Rs. 1,253. There is nothing to indicate that the present appellant was either seen with this Muhammad Aslam or was associated with him in any way.

11. The substance of accusation Exh. 6 against the appellant is as under: ‑

"That you Kazi Amjad Husain, being a public servant, at Karachi, entered into criminal conspiracy with Muhammad Idris Qureshi and M. Y., Naseem, between 15‑&1956 and 10‑9‑1956 to cheat the Government of Pakistan in respect of a sum of Rs. 1,253, by you and M. Y. Naseem preparing and passing illegally the final payment order and Muhammad Idris Qureshi attesting the false signature of Muhammad Aslam on the treasury receipt and thus obtained dishonestly pecuniary advantage as G. P. Fund of fictitious Muhammad Aslam bearing Account No. KAP‑701 by using forged authorisation purporting to be from the Superintendent of Police East Division, Karachi. That you Kazi Amjad Hussain between the said period at Karachi in pursuance of the said conspiracy prepared office copy of the final payment authority and made entries of the same in Issue and Despatch Register at S. L. Nos. 892, 893 and 894 signing the same for fictitious Muhammad Aslam to show that he had received the copy while you had nothing to do with the G. P. fund branch and thus abetted the commission of the offences of cheating and criminal misconduct by M. Y. Naseem and thereby committed the offences under section 120‑8, 420, P. P. C. and section 5 (2) of Act II of 1947 read with section 109, P. P. C."

12. It would be observed from a perusal of this Rub Kari or substance of accusation that the main allegation against the appellant is that he entered into a criminal conspiracy with his two co‑accused to cheat the Government of Pakistan of the sum of Rs. 1,253 and towards that end prepared the office copy of the final payment authority letter and made entries in the Issue and Despatch Registers. Now, the two co‑accused having been acquitted by the trial Court, this charge of conspiracy against the appellant must of necessity fail. Moreover, it is alleged against the appellant that he prepared the final payment authority letter and made entries of the same in the Issue and Despatch Registers with the object of cheating the Government of the sum or Rs. 1,253. Now, when there is no evidence at all to show that this appellant derived any monetary gain in this matter it seems to me that a substantial ingredient of the charge against him thu4 failing it would be unsafe to uphold his conviction, in this appeal.

13. Therefore, giving him the benefit of the doubt I would allow this appeal and set aside his conviction and sentence.

Appeal allowed.

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