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Criminal Appeal No.82 of 1980, decided on 4th March, 1984.

---S. 408/409/511--Prevention of Corruption Act (II of 1947), S.5(2)- Misappropriation--Prosecution witnesses either not supporting prosecution case or their statements not at all straightforward, convincing or against accused and they were not declared hostile--First Information Report lodged after four years of alleged incident for which no explanation given by prosecution--Prosecution witnesses whose signatures allegedly forged by accused not examined by prosecution--Statement of handwriting expert not reliable--Held, evidence available being not sufficient to convict accused, prosecution thus failed to establish its case against accused- Conviction and sentence set aside.

Sammiuddin Sami for Appellant. Rashid Akhtar for Respondent. Date of hearing: 1st March, 1984.

Appellant abovenamed being aggrieved by judgment dated 27th March, 1980 of the Special Judge, Anti-Corruption, Karachi in Case No.29/75, by which appellant has been convicted under section 408/409/511, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced to suffer R.1. for 2 years and to pay fine of Rs.6,000 or in default to suffer further R.I. for 6 months, has preferred the above appeal, on the following facts and grounds.

The case of the prosecution shorn of its trimmings can be stated to that in the year 1965 appellant Muhammad Ali was posted as Cashier in Civil Defence Organisation, Karachi as a public servant.

In the month of November/ December, 1965 the appellant dishonestly and fraudulently forged the signature of Mrs. Salahuddin proprietor of Asian Rubber Works by obtaining duplicate copy of cash memo. No.208 for Rs.870 pretending that the original cash memo. of the same amount issued by the Asian Rubber Works was lost and by preparing a bill by which withdrawing an amount of Rs.870 and thereby criminally misappro priating the said amount.

Again in the month of November/ December, 1965 the appellant prepared a bogus bill of Rs.4,968 in favour of Jubilee Engineering Works, Karachi and forged the signatures of Ali Muhammad Depot Superintendent and thereby attempted to misappropriate the said amount but for timely detection made by Mr. Badrul Hassan Farooqui due to which the evil designs of the appellant were detected and he could not succeed in withdrawing a huge sum of Rs. 4,968.

The matter was reported to Anti-Corruption Establishment Karachi. Police after usual investigation including obtaining the opinion of Handwrit ing Expert and prosecution section of the appellant from the competent authority challaned the appellant.

When the substance of accusation was read over and explained to the appellant by my learned predecessor, the appellant pleaded not guilty and claimed to be tried.

Prosecution in support of its case examined P.W.1 Jamshed Ali Khan Exh.2, P.W.2 Badrul Hassan Exh.3, P.W.3 Allauddin Exh.9, P.W.4 Noor Muhammad Exh.11, P.W.5 Shah Muhammad Exh.26, P.W.6 Salahuddin Exh.26, P.W.7 A.Z.Muhammad Umer Exh.33, P.W.8 Muhammad Ali son of Muhammad Zaki Exh.34, P.W.9 Muhammad Ali son of Muhammad Umer Exh.36, P.W.10 Iqbal Kazi Exh.40, P.W.11 Abdul Majid Exh.42 and P.W.12 Syed Ghulam Sibtain Exh.45.

That learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellant abovenamed as hereinbefore mention and consequently appellant has filed the above appeal, on the grounds mentioned in the memo of appeal.

Learned Advocate for the appellant in support of the above appeal submitted as under:-

(a) That there was delay of 4 years in lodging of F.I.R., which has not at all been explained in F.I.R.

(b) That in F.I.R. Exh. 47 name of the appellant is not at all mentioned and no reference to charges for which appellant has been convicted was made.

(c) That culprits named in F.I.R. Exh. 47, were made P.Ws. against the present appellant and were late off by department.

(d) That appellants explanation given in departmental report vide Exh.15, dated 20th December, 1965 was accepted by department and consequently no F.I.R. was at all filed against the appellant and he was reinstated.

(e) That F.I.R. Exh. 47 gives false date of alleged incident, so as to explain the delay of 4 years.

In view of above submissions, the learned counsel for appellant stated, that prosecution has failed to establish its case beyond reasonable doubt.

The learned Advocate Mr. Rashid Akhter appearing for the State, at the outset submitted, that he was not supporting the impugned judgment of the learned trial Court in view of submissions of learned counsel for appellant, which are fully supported by the record of the learned trial Court.

I have carefully considered the above submissions made by the learned Advocates before me and have gone through R & P of the learned trial Court and impugned judgment.

P.W.1 Jamshed Ali did not support prosecution case and was declared hostile. P.W.2 Badrul Hasan statement is not at all straight-forward and convincing. He no doubt denied signature of Ali Muhammad Superintendent on Exh.8/1, but prosecution did not examine P.W. Ali Muhammad, in N support of this. In his cross-examination this P.W. admitted that he was not sure about signatures on Exh.8/1 and in his report for suspension of appellant, he had mentioned that these signatures could be that of appellant. He further admitted that during the period in question, there was heavy rush in office with him and appellant. He also admitted that appellant after his explanation Exh.15, was reinstated vide Exh.23 on 3rd October, 1967. P.W.3 Allauddin in his statement before the learned trial Court had not said a word against the appellant, in support of prosecution case. P.W.5 Shah Muhammad is formal witness about death of P.W. Muhammad Ali. P.W.6 Salahuddin has not at all supported prosecution case against present appellant, but was not declared hostile. P.W.7 A. Z. Ahmed has not said a word against present appellant. Statement of P.W.8 Muhammad Ali son of Muhammad Zahir is not at all straightforward and convincing and in view of enmity suggested against him, no reliance can be placed on his statement without independent corroboration, which is not at all available. P.W.9 Muhammad Ali son of Muhammad Umer, is Magistrate in whose presence specimen signatures of appellant were taken. P.W.10 Muhammad lqbal Qazi is also Magistrate, who took specimen signatures of appellant and other P.Ws. P.W. 11 Abdul Majid is Handwriting Expert and has supported prosecution case, that signatures on cash memo. 208 are that of appellant. P.W.12 S. Ghulam Sibtain I.O. of case, who challaned the appellant on 30th May, 1975. In my opinion, it would be unsafe to connect the appellant on basis of above evidence only, specially as F.I.R. was lodged after 4 years of alleged incident, for which no explanation at all has been given by prosecution Exh. 23, shows that appellants explanation was accepted and he was reinstated and Exh.47 F.I.R. is based on report of P.W.8 Muhammad Ali son of Muhammad Zahir, who himself had admitted, that he had sent said report without approval of his superior officers. P.W. Ali Ahmed, whose signature appellant is alleged to have forged was not at all examined by all prose cution, before learned trial Court and as such reliance on the statement of Handwriting Expert alone, (which too is sent convincing) would be unsafe in view of the facts and circumstances of present case. In view of this, I find that prosecution has failed to establish its case beyond reasonable doubt against the appellant.

Therefore I allow the above appeal and set aside conviction of the appellant and sentences awarded to him by impugned judgment and awarded him by giving him benefit of doubt and discharge the bail bonds executed by appellant in above appeal.

M. Y. H. Appeal allowed.

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