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Criminal Appeal No. 114 of 1973, decided on 13th May 1974.

.----- Ss. 4681471 & 420 read with Prevention of Corruption Act (11 of 1947), S. 5(2)-Forgery-Cheating--Decretal amount being ordered to be refunded to decree-holder, robkar issued to Treasury Officer to intimate deposit number of amount but such robkar retained by accused Ahlmad of Court allegedly for being on leave due to his preparations for intermediate examination-Amount discovered to have been already withdrawn under forged refund voucher-No :evidence showing accused having forged or used any forged document or his having cheated anyone, or committing any misconduct-'Mere circumstance of accused having retained robkar---May be an .act of negligence but does not lead to inference of his having com mitted offences charged or being in collusion with other accused--- Nor could his absence from office be held, to have been in order to facilitate withdrawal of amount by persons concerned.

Monir's 'Law of Evidence', Vol. 1, 1956 Edn. ; Maina Mia v. The State, 'P L D 1966 Dacca 589 ; Pir Hasan Din v. Emperor A I R 1943 Lah. 56 a. 8aramat Hussain v. The State 1972 S C M R 15 ref.

Ss. 468/471 & 420 read with Prevention of Corruption Act (IV of 1947), S. 5(2)-Forgery-Cheating-Court Reader involved in offence of forgery and cheating on ground of his being supposed to keep in his custody voucher book, one of whose vouchers was used in forgery and withdrawal of amount-Vouchers book, however, not kept in safe and used to lie like ordinary stationery and recovered by police from custody of another official-Sole custody of accused not established-No link of accused with other accused persons established to show collusion-Voucher neither containing any writing of accused nor any allegation made of his having accompanied real culprits to Bank or treasury-Accused, held, could not be convicted for any , offence in circumstances.

Ss. 468/471 & 420 read with Prevention of Corruption Act (Il of 1947), S. 5(2)-Forgery-Cheating -Accused found to have written on refund voucher in question "pay Rs. 1,13,769.50 (rupees one lac thirteen thousand seven hundred sixty nine and fifty paisas") in green ink arid same signed by Treasury Officer-Printed endorsement "examined and entered" appearing on disputed voucher purporting to contain signatures of Accountant/ measurer-No evidence to show such signatures forged-Accused's green endorsement appearing beneath such entry signed by Treasury Officer-Mere endorsement of accused, held, not circumstance sufficient to incriminate accused--- Treasury Officer stating to have been satisfied of there being nothing wrong with voucher in question and Head Clerk stating the Treasury Officer's initials indicated payee's being known to him-Throwing of whole blame on accused, in circumstances, held; not justified.

Ss. 468/471 & 420-Forgery-Cheating-Mere circumstance of accused having attested account opening form of another who later withdrew money on forged voucher-Does not make such person privy or party to all what account holder may do later-No link established between accused and other accused or with account holder opening account in pseudonymous names-Accused not shown to have accompanied account holder to treasury at time of withdrawal' of amount or to have committed any other overt act showing him a culprit-.Benefit of all such vacuum, held, must go to accused and nor to prosecution-Accused, held, not guilty of any offence.

Ch. Masood Zakriya, Sh. Nisar Qutab and Sardar Sami Hayat for Appellant.

Muhammad Ashraf Azlm for A: G. for the State.

Dates of hearing : 27th, 2Sth, 29th March; 1st, 2nd, 3rd, 4th, 5th, 9th, '11th, 12th, 17th, 18th and 19th April 1974.

This judgment will dispose of three appeals, the particulars of which are as follows :--

(1) Cr. Appeal No. 114/1973 filed by Mushtaq Hussain ;

(2) Cr. Appeal No. 115/19)3 filed by Muhammad Azim and Muhammad Asiam jointly ; and

(3) Cr. Appeal No. 111/1973 filed by Rashid Ahmad Khan.

2. The appellants were tried by Ch. Ghulam Rasul Azhar, Special Judge Anti-Corruption, Lahore, for offences under sections 48/471 and. 420, P. P. C. read with section 5(2) of the Prevention of Corruption Act IL of 1947 alongwith two other persons, namely, Sardar Hussain and Muhammad Hussain. Sardar Hussain was acquitted and Muhammad Hussain did not appear and remained an absconder with the result that proceedings under section 87/88, Cr. P. C., were taken against him. The learned Special Judge convicted the appellants under sections 468, 471, 420, P. P. C. and section 5(2) of the Prevention of Corruption Act, 1947. The appellants were awarded sentences of seven years each for offences under sections 468, 471, 420; P. P. C. on each count separately. As regards offence under section 420, P. P. C., they were further directed to pay a fine of Rs. 50,000 each or in default of payment of fine to further undergo l years' rigorous imprison ment. Even though, as already indicated, all of them have been convicted under section 5(2) of the Prevention of Corruption Act, but it appears that-, the learned Special Judge did not pass any sentence on that count. The: order of the learned Special Judge is dated 17-2-1973. The present appeals are directed against that order.

3. The facts of the prosecution case are that on 29-2-1964 a case entitled A. Reyrolle & Co. v. Province of West Pakistan was decreed by Mr. Muhammad Hassan Sindher the then Judge, Small Cause Court (in his capacity as a Civil Judge Ist Class), Lahore, for a sum of Rs. 1, 13,769 50 against the defendant Government. In pursuance of that decree on 19-2-1965 the decretal amount was deposited in Court through a cheque bearing No. A/S 441750 which was remitted to the Treasury. Lahore, under Challan Form Exh. P. W. 2/B and was credited to the revenue account of the Court on 23-2-1965. However on 26-3-1965, learned Civil Judge directed that the decretal deposited amount should be paid to the decree-holder. On 1-4-1965, a Robkar (Exb. P. W. 9/B) was issued under the signatures of Mohammad Yousuf (not produced) the then Clerk of the Court to the Judge Small Cause Court, Lahore, addressed to the Treasury Officer, Lahore,, making an enquiry regarding the "deposit number", under which the amount may have been deposited in the Revenue Account. According to the prosecution, since the number was not being provided by the Treasury Office, therefore, on 15-5-1965, appellant Mushtaq Hussain accompanied Sajjad Hussain, Advocate (P. W. 19) to the Treasury Office to find out as to why the number was not being furnished. There they then came to know that the amount had already been paid on 29-4-1965 to two persons; namely, Muhammad Ali and Muhammad Sharif on a voucher (Exh. P. W. 6/A) allegedly issued from the Court of Ch. Abdul Rehman, Senior Civil Judge Lahore, who was not Judge Small Cause and to whose Court the deposit did not pertain. Similarly, the Refund Voucher Book (Exh. P. W. 4/A), from which voucher Exh. P. W. 6/A was taken, also did not pertain to his Court and pertained to the Court of another Civil Judge, namely, Rao Muhammad Iqbal. The true position which thus emerges is somewhat like this. The deposit pertained to the Court of the Judge Small Causes (in his capacity as a Civil Judge Ist Class). The Refund Voucher Book utilised pertained to the Court of Rao Muhammad Iqbal Civil Judge but the voucher actually wed purported to contain signatures of another Civil Judge that is Mr. C. A. Rehman. This amount was collected through Habib Bank 7 he Mall, Lahore. The aforesaid two persons had on 23-4-1965 opened an account with the Habib Bank on the attestation Exh. P W. 1 2/A/1 of Rashid Ahmed Khan accused appellant on account opening form/application Exh. P. W. 12/A. The amount from Habib Bank was then withdrawn (as per details given in Exh. P. W. 12/C in the following manner :-

S. No. Date Amount

1. 26-4-1965 Rs.

450.00

2. 1-5-1965 Rs. 1,00,00000

3. 1-5-1965 Rs. 10,200 00

4. 5-5-1965 Rs. 3,6' 0.00

Total Rs. 1,14,250.00

On coming to know of these facts, Ch. Muhammad Ilyas, who bad by that time taken over as the Presiding Officer of the Court of Judge Small Causes, wrote a letter (Exh. P. W. I/A) on 9-6-1965 disclosing the above facts on the basis of which a formal F. I. R. (Exh. P. W. 7/B) was taken down and the police started investigating the matter. Finding the accused guilty, the police put up a challan against all of them which resulted in the convictions and sentences hereinbefore mentioned. In may be mentioned that the Challan included an offence under section 419, P. P. C. as well but it appears that the learned Judge did not frame any charge about the same against the appellants.

4. The prosecution examined 21 witnesses in this case and salient features of their evidence are detailed below :-

P. W. 1 Mr. Muhammad Ryas.-He got registered the case vide report Exh. P. W. 1/A. His evidence is not material as he is not an eye-witness to the occurrence but he just reported the matter when it came to his notice.

P. W. 2 Mr. Abdul Wahid, Retired Reader.-During the course of investigation the file relating to the Civil suit was taken into possession by the police in his presence. Form Exh. P. W. 2/B and copies of the Register Exh. P. W. 2/C and P. W. 2; D were also taken into possession by the police in his presence and he signed the memo. Exh. P. W. 2/E. His evidence is of formal nature.

P. W. 3 Jan Muhammad, Reader to Civil Judge.---He is also a witness to ,the recovery memo. Exh. P. W. 2/E.

P. W. 4 Muhammad Bashir, Stamp Clerk.---He issued the refund voucher book Exh. P. W. 4/A to the Court of Rao Iqbal Ahmed, Civil Judge, Lahore, which was received by Muhammad Ahmed, Ahmad.

P. W. 5 Ch. Muhammad Hussain Sindher.--At the relevant time he was posted as Judge, Small Cause Court. The application for execution of the decree was filed in his Court and be ordered that Bank guarantee be filed and cheque be issued in favour of the decree holder. The order is Exh. P. W. 5/A.

P. W. 6 Muhammad Sharif, Retired Reader, Civil Court, Lahore.---After ,seeing the voucher Exh. P. W. 6/A he stated that the signatures of Mr. C. A. Rehman at Exh. P. W. 6/A/1 were not of tae Judge.

P. W. 7 Muhammad Ahmed, Ahlmad: Stated that he obtained from the Treasury refund voucher book and during the course of investigation he produced the same before the police.

P. W. 8 Abdul Ghafoor, Process Server.-In his presence the refund voucher book Exh. P. W. 4/A was taken into possession by the police. On the day when the police took into possession this book, Muhammad Aslam .accused Reader was on leave.

P. W. 9 Khuda Dost, Head Clerk.-He stated that Muhammad Azeem was .posted in the Treasury as Clerk and he dealt with repayments. He stated that he could not identify the writings on the back of voucher Exh. P. W. 6/A. He further stated in cross-examination that on receipt of such like vouchers, the papers were used to be submitted to the Treasury Officer alongwith specimen signatures of the drawing officer for comparison and passing the voucher.

P. W. 10 Ch. Abdul Rehman, Joint Secretary.-He stated that the signatures as Exh. P. W. 6/A were not signed by him. He further stated that according to rules proper caution should be taken for the safe custody of the voucher books by the Presiding Officer.

P. W. 11 Pervaiz Iqbal, Clerk. Habib Bank.-He stated that he used to carry vouchers from the Bank to the treasury and Azeem Butt accused was dealing clerk with regard to such like vouchers.

P. W. 12 Musharraf Hussain Kazmi of Habib Bank: He produced the ,account opening Form Exh. P. W. 12/A before the police which had been attested by Smart Shoe Company. He also produced voucher Exh. P. W. 6/1 before the police.

P. W. 13 Abdul Ghani Khan, D. S. P.--Partly investigated the case.

P. W 14 Allah Bakhsh, Retired Ballij.-He prepared the Challan Form Exh. P. W. 2/B.

P. W. 15 Syed Manzoor Hussain, Sub-Inspector.-He partly investigated ,the case.

P. W: 16 Syed Shakir Hussain. D. S. P.-Appeared as Handwriting .Expert.

P. W. 17 Fiaz Ahmed, Sub-Inspector.-Partly investigated the case.

P. W. 18 Nadir Hussain Abidi: Handwriting Expert.

P. W: 19 Syed So/lad Hussain, Advocate.-He was the counsel in the civil suit and applied for execution and accompanied Mushtaq Hussain accused to the Treasury wherefrom he learnt that the payment had already been made.

P. W. 20 Rao lqbal Ahmed Khan.-He stated that 'Robkar' Exh. P. W 4/E was issued under his signatures and that Muhammad Aslant accused was his Reader.

P. W. 21 Gut Hussain Bukhart. Treasury Ofcer.-He stated that ha passed the refund voucher Exh. P. W. 6/A.

Mohammad Aslam appellant alone led defence evidence. He produced D. W. 1 Muhammad Lai tif who tendered in evidence Enquiry Report Exh. D. W. 1/A and the report of the D. S. P. (C. I. A.), Lahore Exh. D. W. 1/B. He placed the enquiry file on record which was not marked with any exhibit. 'The aforesaid enquiry was held under orders of the High Court by Mr. Mohammad Amir Malik, Civil Judge, Lahore, who opined in Exh. D. W. i/A that the officials of the Civil Courts were not criminally involved and at the most what could be held against them was that they were negligent in the discharge of their duties. In the enquiry file were contained statements of various witnesses-(including appellants Mushtaq Hussain and Mohammad Aslam). The learned Special Judge made free use of that file and those statements without formally bringing them on record or proving them or without confronting the concerned appellants with those statements or that evidence. This procedure adopted by the learned Special Judge was obviously in violation of law and the said statements and evidence, therefore, shall have to be kept out of consideration.

Re : Mushtaq Hussain appellant

5. The sole evidence against Mushtaq Hussain appellant, who was. Ahlmad to the Judge Small- Cause Court at the relevant time, is that he received 'Robkar- Exh. P. W. 9/B on 1-4-1965 which was addressed to the Treasury for the purpose of enquiring as to what was the deposit number of the amount in dispute therein. Mushtaq Humain appellant retained this Robkar' with him from 1-4-1965 to 15-5-1965 and did not send or take it to the Treasury. On 15-5-1965 Sajjad Hussain, P. W. 19, Advocate (counsel for the decree-holder) contacted him whereupon both the appellant and the counsel went to the Treasury alongwith the 'Robkar' hereinbefore mentioned to find out the deposit number wherefrom they learnt that the amount in dispute had already been paid over to two persons, namely, Mohammad Ali and Mohammad Shanf on 29/4/1965. The learned Special Judge has held that the aforesaid conduct of the appellant Mushtaq Hussain, shows that he was in collusion with the other accused and the aforesaid collusion facilitated the withdrawal of the amount from the Treasury in the meantime. Learned counsel for the appellants has drawn my attention to the various sections of law under which the appellant has been convicted. He refers to section 468, P. P. C. which deals with an offence of forgery for the purpose of cheating, section 471 P. P. C, deals with the offence which pertains to using as genuine a forged document, section 420, P. P. C. deals with offence of cheating and dishonestly inducing delivery of property and section 5(2) of Prevention of Corruption Act, 1947 deals with misconduct on the part of a public servant in accepting illegal gratification. Learned counsel for the appellant has argued that there is no evidence worth the name the appellant forged any document or that he used as genuine any forged document or that he cheated any body or that be accepted any illegal gratification. The contention seems to have merit. There is not an iota of evidence to bring the case of Musbtaq Hussain under any of the provisions of law under which he has been convicted. The mere circumstance that the appellant retained the 'Robkar' with him may be an act of negligence on his part but it in no way can refer to the inference that he had committed the offences hereinbefore mentioned. As to whether he was in collusion with safely inferred merely from the aforesaid the other accused cannot also be safely inferred merely from the aforesaid conduct especially when there is no other overt act against him on the present record. Monir in his Law of Evidence' Volume I (1956 Edition) writes as follows on the circumstantial evidence:--

"Ordinarily, circumstantial evidence cannot be regarded as satisfactory as direct evidence. The circumstances may lead to particular inferences and the relationship to true facts may be more apparent than real. The value of circumstantial evidence has to be assessed on consideration that it must be such as not to admit of more than one solution, and that it must be inconsistent with every proposition or explanation that is not true. If these conditions are fulfilled, circumstantial evidence may approximate to truth and be preferred to direct evidence. For proof by circumstantial evidence four things are essential :--- .

(i) That the circumstances from which the conclusion is drawn be fully, established.

(ii) That all the facts should be consistent with the hypotheses.

(iii) That the circumstances should be of a conclusive nature and tendency.

(iv) That the circumstances should, to moral certainty, actually exclude every hypotheses but the one proposed to be proved. "In Maina Mia v. The State (P L D 1966 Dacca 589) it was held that in cases where the evidence is wholly circumstantial, the rule is that in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt. It was further observed that there was subtle but fundamental distinction between the degree of certainty required in cases where the burden of proving a fact is on the prosecution and those where the burden of proof is on the accused. When the burden of proof is on the prosecution, the case must be proved beyond any reasonable doubt. Where, however, the burden of an issue is on the accused, he is note required to prove it beyond a reasonable doubt or in default to incur a verdict of guilty ; it is sufficient for him if he succeeds in proving a prima facie case, for then the burden of proving such issue is shifted to the prosecutions which has still to discharge its original and major onus that never shifts i.e that of establishing on the whole case guilt beyond a reasonable doubt. To the same strain is Pir Hasan Din v. Emperor (A I R 1943 Lah. 56 ). In Karamat Hussain v. The State (1972 S C M R 15 ) it was held that in circumstantial evidence the rule is that n 3 link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypotheses other than the guilt of the accused. Respectfully following the aforesaid principles and examining the present case on that basis, my opinion is that the circumstance brought on record against the appellant is not sufficient to, Prove his guilt beyond all reasonable doubts. The appellant had given an explanation that he was taking up Intermediate Examination and was on leave from duty from 14-1965 to 24-4-190 when the examination ended No doubt, he had attended the office on one or two days in between but the broad fact still remains, as he submitted, that he was busy with his examination-preparation and after he joined office on 25-4-1965 he remained busy with certain backlogs which had in the meantimes accumulated. The plea of absence from duty has not been disbelieved by the learned trial Judge. It is to be noticed that the amount was withdrawn from the Treasury not during the period when the appellant had remained absent on leave but on 29-4-1965 i.e. four or five days after his examination ended and after he had joined duty. I cannot, therefore, to these circumstances, safely hold that his absence from the office was in order to facilitate the withdrawal of the amount by the quarters concerned. Because, had that been so the amount would have been withdrawn during the period the appellant was absent and not after he had actually joined the office Finding neither any direct nor any corroborative evidence against the appellant regarding the offences for which he has been convicted I have no option but to accept his appeal and acquit him. I order accordingly. His appeal is accepted and his conviction and sentences of imprisonment/fine are hereby set aside.

Re : Mohammad Aslam, appellant

6. This appellant on the relevant date was working as a Reader is the Court of Rao Iqbal Ahmed, Civil Judge Ist Class, Lahore. The material evidence against him consists of the statements of P. W. 1, P. W. 7, P. W. 10 and P. W. 20. The sum total of the statements of these witnesses is that Mohammad Ahmed, P. W. 7, received a Refund Voucher Book bearing No. 1012 from the Treasury on 16-2-1965 and handed the same over to the appellant. This Refund Voucher Book is actually, to state generally, sort of Cheque Book with the difference that it does not contain any counterfoil. It contained 100 sheets or vouchers each of which had a serial number. This book hat been marked as Exh. P. W. 4/A. Voucher which bore serial No. 18 and which was utilised by Mohammad Ali and Mohammad Sharif pertained to this book. This refund voucher is Exh. P. W. 6/A. 'his voucher contains the forged signatures of Mr. C. A Rehman, Civil Judge, lst Class. Lahore. It was on the basis of this voucher that the amount was taken away from the Treasury. As earlier indicated this voucher was presented by (the not procured accused) Mohammad Ali and Mohammad Sharif to the Habib Bank Ltd. who remitted the same to the Treasury where it was cleared and the amount was sent to the Habib Bank wherefrom it was later on taken away by the aforesaid two persons. The learned Special Judge has taken the view that the Voucher Book in the ordinary course of business was supposed to remain in the custody of Mohammad Aslam appellant and if any voucher from that book has been utilised then the appellant must be involved in the case and should, therefore be held guilty of the offences for which he has been convicted. The explanation of the appellant was that the aforesaid Refund Voucher Book was not being kept in any safe and rather used to lie in the room like ordinary stationery books The learned counsel for the appellant argued that the responsibility for the safe custody, if any of this book was equally of the Civil Judge concerned and if the mere fact that a voucher of such a book had been utilised by certain culprits was not a circumstance enough to involve the aforesaid Civil Judge it by no means could be a circumstance to involve him as well. I must say that it has not been established on the present record as to whose duty it was to take care that the book should remain in safe custody. Even the sole custody of Mohammad Aslam appellant has not been established on the record, because, it was taken into custody by the Police from Mohammad Ahmed, P. W. 7, when the appellant was on leave. The mere circumstance, therefore, that the book was, according to P. W. 7, on receipt from the Treasury delivered to the appellant is not enough to find him guilty in this case especially when even otherwise there is no evidence that it was he who alone used to deal with this book. The prosecution has taken no steps to connect the link of Mohammad Aslam with any other accused. For instance the learned Special Judge was of the view that Mohammad Aslam had acted in collusion with Mushtaq Hussain appellant. There is nothing on the present record to establish such a collusion. I have already found Mushtaq Hussain not guilty of any offence and the question of Mohammad Aslam being in collusion with him in these circumstances does not arise. It has not been established that the Refund Voucher Exh. P. W. 6/A contained any endorsement or entry in the hand of Mohammad Aslam appellant. There is no proof that he on any day accompanied Mohammad Ali and Mohammad Sharif (the accused not procured so far by the police) to the Bank or to the Treasury. There is no evidence that he was an acquaintance of the aforesaid two persons or had any connection or dealing with them. Even the recovery of voucher book was not made from him. In these circumstances, it is not possible to hold him guilty of either forging any document or using as genuine a forged document or of cheating or dishonestly inducing delivery under section 420, P. P. C. or of receiving any illegal gratification under the Prevention of Corruption Act. The result is that his appeal shall have to be accepted and his conviction and sentence of imprisonment or fine will have to be set aside. I order accordingly.

Re : Mohammad Azim, appellant

7. Mohammad Azim appellant was a clerk in the Treasury. Learned counsel for the State referred to the evidence of P. W. 9, Khuda Dost, Head Clerk, P. W. 10 C. A. Rehman. Civil Judge, P. W. 11 Pervez Iqbal, Clerk of the Habib Bank P. W. 16 Syed Shakir Hussain, Handwriting Expert. P. W. 19 Syed Sajjad Hussain, Advocate, and P. W. 21 Gul Hassan Bokhari, Treasury Officer. The sum total of the prosecution evidence against him is that on the payment (refund) voucher Exh. P. W. 6/A this accused wrote the words "Pay Rs. 1,13,769.50 (rupees one lac thirteen thousand seven hundred sixty nine and fifty paisas)" in green ink which was signed by Gul Hassan Bokhari, Treasury Officer. At this place so far as the role of the Treasury Officer is concerned, it is necessary to mention that in the Refund Voucher Exh. P. W. 6/A there is one endorsement which is printed thereon which reads as "examined and entered" This endorsement purports to contain signatures of Accountant/ Treasuer. No evidence has come on record that the signatures under this endorsement are forged. Beneath this is the endorsement in green ink mentioned above. The said endorsement is signed by the Treasury Officer, Gul Hassan Bokhari. The learned Special Judge has considered the aforesaid green endorsement as a circumstance sufficient to incriminate Mohammad Azim. However, the statement of Gul Hassan Bukhari. P. W. 2/1, is that "when 1 signed the refund voucher Exh. P. W. 6/A, I was satisfied that prima facie there was nothing wrong with this refund voucher'". Similarly P. W. 9 Khuda Dost Head Clerk Incharge Treasury Office, stated that "the initial of the Treasury Office indicated that the payee was known to him and that he was satisfied with his genuineness". In the Lee of the aforesaid evidence which tends Rio show that it was on the satisfaction of Accountant/Treasurer who had "examined and entered" the voucher and in view of the statement of P. W. 2/1 Gul Hassan Bokhari, Treasury Officer, who deposed that the payment was made after seeing that there was prima facie nothing wrong and also in view of the statement of P. W. 9 that the direction of Treasury Officer to pay indicated that the payee was known to him, to throw the whole blame on the present appellant is not justified. It is pertinent to mention that in refund voucher Exh. P. W. 6/A there are certain Columns Nos. 4 and 5 which are meant for showing the name of the Court and the name of the person for whom the amount had earlier been deposited and that these columns in the instant case were not filled up. The appellant was questioned as to why he failed to get the aforesaid columns filled up and his reply was that the aforesaid columns are filled up by the civil Court. Another circumstance used against the appellant was that he unauthorisedly disclosed the deposit number of this amount which facilitated the illegal withdrawal and misappropriation. His reply was that the suggestion put to him was incorrect and that on the whole of the record there was no such evidence against him to show that he ever disclosed the deposit number to anybody. The record has been checked with the help of the learned counsel for the parties and the reply of the appellant seems to be correct that there is not an iota of evidence to show that he ever disclosed the deposit number to anybody. The prosecution has not brought on the present record any incriminating evidence regarding the aforesaid two questions put to the appellant. When the Treasury Officer owns the green writing mentioned above and the evidence of the Treasury Accountant "examined and entered" has not proved to be forged its result is that the said writings become the writings of the Treasury Officer and the Treasury Accountant and it was for them to explain them and not the present appellant. To suggest, therefore, that the appellant forged any document or misused any forged document on made any misrepresentation or misappropriated the money is not justified as there is no evidence that he did any of these things. The result is that the appeal of this accused/appellant will also have to be accepted and his convictions and sentences shall have to be set aside. I order accordingly.

Re : Rashid Ahmed Khan, appellant

8. Taking up the case of Rashid Ahmed Khan the evidence against him is that he attested Exh. P. W. 12/A the account opening form on the basis of which Mohammad Ali and Mohammad Sharif opened an account in the Mall Branch of the Habib Bank. This account form was meant, as it appears from a seal affixed thereon for Anarkali Branch of the Habib Bank but it has not been clarified on the record as to how the account was opened in or transferred to the Mall Branch. The fact that Exh. P. W. 12/E ,was attested by the accused is admitted by him in his statement before the -trial Court. The learned Special Judge is of the view that the fact that Rachid Ahmed Khan attested the account form lends to the irresistible conclusion that he was a party and privy to the whole affair. The appellant in his statement before the learned Special Judge staled that he produced Muhammad Hussain the real culprit before the police. Though not so specifically stated but if attended to carefully his statement indicated that he himself had also been rather duped when he was made to attest the account opening form. Later on when be was joined in the investigation he produced Muhammad Hussain who according to him was the man who got attested from him the said account opening form. The said Muhammad Hussain is an absconder. The police, it appears, satisfied itself by getting declared him as an absconder and it is not clear from the file as to what further concrete steps were taken to apprehend him. Appellant Rashid Ahmad Khan was at one stage treated as a prosecution witness inasmuch as the police made him an attesting witness of the memo. : Exh. P. W. 17/C whereby the various papers mentioned therein were taken into custody by Faiz Ahmed S. L, (P. W. 17). Later on it seems the police changed its mind and showed this appellant as an accused and challaned him. The mere circumstance that person attested as account opening form of another does not necessarily mean that he is a privy or party to all that what that other later on may do. The prosecution hag nut tried to establish any connection of the appellant with Mohammad Ali and Mohammad Sharif or those who posed themselves as Mohammad Ali and Mohammad Sharif and opened account in the Baakj in psudonyinous names. The learned Special Judge was of the view that attestation of Exh. P. W. 12/A could not be a mere matter of coincidence and that it definitely meant that Rashid Ahmed Khan was guilty of the offences for which he has been convicted. The view taken by the learned Special Judge cannot be sustained. There is no evidence that toe appellant accompanied anybody to the Treasury when the money was withdrawn or did any overt act which may show that he himself was also a culprit. He has not been connected with any of the other appellants and no evidence of his conspiracy with anybody else has been produced. He, as already indicated attested Exh. P. W. 12/A account opening form for Anarekali Branch and it has not been shown that he did anything of the kind whereby the account was transferred to the Mall Branch where the further transactions took place. The benefit of all this vacuum and doubt must go to him and not the prosecution. In my opinion the prosecution has not been able, to prove its case beyond reasonable doubt against this appellant as well with the result that his appeal must also be accepted. I order accordingly and setting aside his conviction and sentences acquit him.

9. Before parting with this case I will observe that the Investigating Agency (or officers who have been dealing with this case) do not seem to have taken any serious pain to connect the various chains of the prosecution case. They have not been able to apprehend Mohammad Hussain the alleged absconder and nor they have shown as to what connection who had with him. They have not been vigilant enough to get proper things brought on the record. Since it is not my domain to state as to how investigation should have been carried out and what material should have been brought in what manner I will not dwell on this subject any further and will close this judgment by simply observing that if such a serious crime has gone unpunished the blame is only of the Investigating Officers and agency and none else.

S. A. K Appeals accepted

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