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Criminal Appeal No. J-178 of 1965, decided on 7th October 1965.
Ss. 409 &468---Prosecution unable to establish basis of charge against accused--Conviction and sentence set aside.
Appellant in person.
Mrs. Salima Nasiruddin for A. A. G. for the State.
Date of hearing: 7th October 1965.
Appellant has appealed from Jail against his conviction by the learned Special Judge-cum-Enquiry Officer under sections 409 and 468, P. P. C. read with section 5 (2) of Act II of 1947, sentencing him to one year's R.I. in addition to a fine of Rs. 100 in default further R. I. for 3 months, and to six months' R. I. in addition to a fine of Rs. 100 in default further R, 1. for 3 months on each count. The sentences were ordered to run concurrently.
2. The prosecution case is that in the year 1960 the appellant was an Assistant Octroi Inspector employed in the Thatta Municipality. One of his duties was to collect wheel tax dues on the Thatta Municipal Corporation. In the month of November 1960 or 1961 alter the appellant had been discharged from service, Ghulam Hussain, an Octroi Inspector who took over from the appellant and to whom the appellant handed over the documents and registers, etc. discovered that from the list of fee (Exh. 52. (item No. 113) that a sum of Rs. 1,330 was outstanding against one Haji Khamiso towards wheel tax for his vehicle No. SNM 3586. Ghulam Hussain then contacted wali Muhammad, brother of Khamiso Khan. Wali Muhammad referred Ghulam Hussain to Allahdino, his nephew Allahdino produced two receipts, one for Rs. 30 and the other (Exh, 3) for Rs. 100, in respect of his uncle's vehicle. According to Ghulam Hussain, these receipts aroused his suspicions as there were no corresponding entries in the books of the Municipality and these suspicions were confirmed after he had verified the relevant record from which he noticed that the receipt for Rs. 30 was genuine, but there was no entry for the payment of Rs. 100. He, therefore, reported the matter to the Chief Officer. On 29-1-1961, the Chief Officer endorsed a report to the Anti-Corruption Department whereafter investigation was started in the course of which Ghulam Hussain handed over the receipt to .A. S. I. Fakir Muhammad, allegedly in the presence of Pir Muhammad Chairman of the Union Council. Thereafter the appellant was challaned.
3. The defence of the appellant was that he had recovered Rs. 30 from Haji Khamiso Khan but that. Exh. 3 was neither in his handwriting nor bore his signature, although both the handwriting and the signature were very similar to his own. He I admitted having credited 0-12-0 annas as indicated in Exh. 4 in which the handwriting and the signature were his. He contended that the prosecution witnesses were adducing against him on account of enmity with Ghulam Hussain.
Two defence witnesses were examined, Mahmood (D. W. 1) and Sadiq Ali (D. W. 2). These two witnesses have been characterised by the Special Judge as respectable witnesses and both of them to the appellant having complained to them against the conduct of P. W. Ghulam Hussain with special reference to Ghulam Hussain's brother having trespassed into appellant's house and molested his women folk. It was for this reason that the trial Court discarded the evidence of Ghulam Hussain as being interested.
4. The fact that the appellant at the relevant time was an Assistant Octroi Inspector and a public servant is not in dispute. Appellant has admitted his position in the Municipality in the year 1960.
5. The only point for determination in this appeal is whether the appellant received a sum of Rs. 100 as wheel tax from Haji Khamiso in respect of Station Wagon No. SNM 3586. The grave-man of the allegations against him was as contained in the substance of the charge read out to the appellant at the beginning of the trial, in that he had recovered this amount, vide receipt No. 2 dated 9-8-1960, this amount being due as wheel tax for Khamiso Khan's Station Wagon for the period January 1959 at the rate of Rs. 5 per month and that instead of depositing this amount, he had deposited only annas 0-12-0 as having been received from one Muhammad Ali, thus misappropriating a sum of Rs. 99-4-0.
6. The trial Court based its conviction of the appellant on three grounds. Firstly, that Exh. 3, was proved to be in the handwriting of the appellant and had been signed by him. Secondly, that this document indicated that the appellant had received a sum of Rs. 100 as wheel tax in the name of Khamiso Khan in respect of his vehicle, and thirdly, that this amount had not been deposited by the appellant and, therefore, the appellant had misappropriated the sum of Rs. 99-4-0 and forged the receipt, Exh. 4.
7. In his appeal from Jail, the case of the appellant is that Rs. 30 only were outstanding against Haji Khamiso towards wheel tax in the year 1961, he had duly deposited this amount and that there were no more outstanding against Haji Khamiso Khan when the Octroi Inspector went to make recoveries from him. He also stated that there was no evidence of Rs. 100 having been actually paid to him by Khamiso Khan.
8. I have now heard the appellant in person since he was un-represented, and had requested that he be heard in Court when the appeal is taken up for hearing. I have also been taken through the record and proceedings of this case by Mrs. Salima Nasiruddin for the State.
9. I must say at the very outset that there is no basis for the finding that Exh. 4 is either a forged receipt or that it was falsely prepared. This receipt refers to an item of 0-12-0 annas paid by one Muhammad Ali towards hand cart dues as have been received on the 25th August 1960, in the challan, Exh. 16, for the deposit of an amount of Rs. 3'2 made on the 27th August 1960. The appellant has pointed out that the entry on page 12 of Article B of a total deposit of Rs. 32 includes the item of 0-12-0 annas referred to in Exh. 4. In the break down of the amounts received on the 25th and 26th of August, item No. 2 on the page opposite to that of page 12 on Article B refers to 0-12-0 annas recovered from Muhammad Ali towards the hand cart dues up to September 1960. Clearly, therefore, Exh. 4 is a genuine document.
10. Passing on to the primary consideration whether a sum of Rs. 100 was in fact received by the appellant, it was for the prosecution to establish that such a sum was in fact due from Haii Khamiso Khan before the burden can shift on the appellant to show that he had in fact received this amount and had not deposited in the Treasury. Primarily, the Court below has fallen into an error in relying on item No. 113 in Exh. 5 from the assessment register as relating to a sum of Rs. 130 as being due from Haji Khamiso Khan If only the items above and below item 113 had been totalled, it would have been manifest that item No. 113 is for Rs. 30 and not Rs. 130. The misleading circumstance is the manner in which the figure "3" has been written by the accused. He does so by elongating the lower tail and of this figure to a line in front of the figure. This characteristic will be noticed in all items written by him, specially 40 to 43, 71, 101, 202, 205 to 217 and 232 in Exh. 5, and its curious that while the amounts of Rs. 130 in each of the items Nos 111, 112 and 113 are written in an identical manner, items Nos. I11 and 112 have been accepted each for Rs. 30 only item No. 113 has been taken to indicate a sum of Rs. 10 Haji Khamiso Khan, Exh. 11, is the owner of the Station Wagon and Allahdino. Exh. 12, is his nephew. Haji Khamiso states that although he is the owner of the Station Wagon in question he does not remember if he has paid any wheel tax in respect of his vehicle in Thatta, and that his brother looks after, his business. P. W. Allahdino states that he looks after his uncle's business, that he knows Ghulam Hussain and P W. Fakir Muhammad, she A. S. I, of the Anti-Corruption that they had come to him, 011 demand from them, he had given them, only one receipt for the wheel tax in respect of his uncle's Station Wagon. On being shown Exh. 3, he could not say whether or not that was the receipt he gave to Ghulam Hussain and Fakir Muhammad. That receipt was, according to him, given to P, W. Ghulam Hussain in the presence of Pir Mahmood, the Chairman of the Union Council. The evidence of these two witnesses nowhere establishes that Rs. 100 were in fact paid to the appellant or indeed that the receipt P. W, Allahdino gave to Ghulam Hussain and the A. S. I. Fakir Muhammad was for this sum. Pir Muhammad in whose presence a receipt is alleged to have been given. has not been examined by the prosecution. It is admitted that Exh. 3 which is alleged to be the incriminating receipt, was seized by the A. S. I. Anti-Corruption without preparation of a mashirnama and not in the presence of any independent witnesses. Furthermore, Khamiso Khan and Allahdino have not been questioned precisely whether in fact any wheel tax outstanding were due from them to the Thatta Municipality. The learned counsel for the State rightly contends that on this aspect the prosecution should have secured all receipts of payments made by Khamiso and Allahdino to indicate what amounts were due from them and what payment had been made by them to the past. There is in addition nothing to substantiate that Exh. 3 is in fact the receipt which P. W. Allahdino gave to P. Ws. Ghulam t _Hussain and Fakir Muhammad.
11. The evidence of P. W. Ghulam Hussain has been discarded by the learned Special Judge and quite rightly for the animus of this witness against the appellant has been established by the testimony of two defence witnesses who have been characterised as respectable witnesses by the trial Court.
12. Appellant has explained with the assistance of the documents exhibited before the Court that Rs. 30 recovered for Khamiso Khan's vehicle he deposited in the Treasury. P. W. Ghulam Hussain (Exh. 13) has admitted that on checking one of the receipts given by P. W. Allahdino with the registers to the Municipal Office, he found that the receipt for Rs. 30 was a genuine document, and this amount had been duly deposited by the appellant.
13. For these reasons it is quite clear that the prosecution have been unable to establish the basis of the charge against the appellant. The charges on both the counts are unfounded. The prosecution having failed to establish that Rs. 100 were in fact due from Khamiso Khan, the question of any explanation from the appellant does not arise nor indeed of a consideration of Exh. 3, or of the evidence of the Handwriting Expert. In my view no case either under section 409 or 468. P. P. C. has been made out against the appellant and, therefore, none under section 5 (2) of Act II of 1947.
14. I, therefore, allow the appeal, set aside the conviction and the sentence of the appellant, and order that he be set at liberty if not required in any other case.
Appeal accepted.
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