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Criminal Appeal No.51 of 1983, decided on 20th October, 1986.

‑‑‑Ss. 409 & 477‑A‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑ Sentence, reduction in‑‑Accused, as a result of conviction, suffering dismissal from service as well as torture and disgrace of rigorous imprisonment‑‑Substantive sentence of three years' R.I. reduced to two years' R.I., in circumstances.

Muhammad Ali Sheikh for Appellant.

Syed Murtaza Hussain for the State.

Dates of hearing: 9th and 14th October, 1986.

This appeal is directed against the judgment of Special Judge (Central) Karachi, dated 30‑4‑1983 whereby the appellant was convicted under section 409, P.P.C. read with section 5(2) of Act II of 1947 to suffer R.I. for three years and to pay fine of Rs.5,000 or in default of payment of fine to suffer R.I. for 9 months. He was also convicted under section 477‑A, P.P.C. to suffer R.I. for one year and to pay fine of Rs.1,000 or in default to suffer further R.I. for 3 months. No conviction was recorded under section 471, P . P . C .

The charge against the appellant was that he was employed as Pay Clerk in the Office of Divisional Engineer Telephone, Larkana and as such he was responsible for preparing the pay bills and pay lists of outstation linemen of Telephone Department and he made false entries in respect of eleven persons who were not in the employment of the Telephone Department and that he misappropriated Rs.4,400 as a consequence thereof by sending the pay to different persons by money orders. The appellant had pleaded not guilty to the same.

P.W.3 Lutfullah Shah who is Cashier in the Office of Divisional Engineer Telephones stated that he knew the handwriting of the appellant and that the appellant was responsible for preparation of lists of the bills of Linemen posted outside the Headquarters who had prepared such lists Exhs. 4/1 to 4/3 for the months of May and June, 1977. He further stated that list of other outside employees was prepared by Shamsuddin. The consolidated list in respect of all the outside employees was prepared in six leaves which he produced as Exh.5. He stated that leaves Nos.5 and 6 of the consolidated list were in the handwriting of the appellant while four leaves were prepared by Shamsuddin and consolidated amount of both the lists was prepared by the appellant on the last page of Exh.5. The same showed a total amount of Rs.53,276.36. He stated that accused had prepared all money order forms of the consolidated lists and that 12 money orders Exhs.6/1 to 6/12 are in the handwriting of the appellant. He stated that a cheque for Rs.53,276.36 was prepared in the name of Postmaster, Larkana and was given to the appellant who signed on its counterfoil Exh.6/13. This witness was not cross‑examined.

P.W.2 Muhammad Anwar who is Divisional Accountant of the same Office stated that he was conversant with the handwriting of the appellant. He stated that Exh.4/1 to Exh.4/3 were prepared by the appellant and pages 5 and 6 Exh.53 were also prepared by the appellant. He further stated that on page 7 the consolidated list of amount of each page of Exh.5 was prepared and was signed by the appellant. He further stated that 12 persons out of the list of the employees prepared by the appellant, were not the employees of the department. He gave persons and the bills prepared by the appellant. Those persons were Muhammad Bux, Gul Muhammad, Rano, Mushtaq Ahmed, Suhbat Ali, Amir Ali, Ghulam Hyder, Muhabbat Ali, Saifullah, Rajab Ali, Sikandar Ali and Abdul Qadir. He also stated that the money order forms Exhs.6/1 to Exh.6/12 were prepared by the appellant and that these persons bore different names than that of the list of Pay Bills. He further stated that five money order forms Exh.6/2, 6/9, 6/10 and 6/5 were prepared in the name of Manzoor All while Exh.6/1 was prepared in the name of Rano, Exh.6/3 was also prepared in the name of Rano, Exh.6/4 and Exh.6/11 were prepared in the name of Ali Hassan, Exh.6/8 was prepared in the name of Muhabbat Ali and Exh.6/10 was prepared in the name of Abdul Qadir. In cross‑examination he stated that he had put his initials on the list prepared by the appellant but stated that it was not possible for him to scrutinize the name of each person mentioned in the bill prepared by the appellant. He stated that 700 or 800 persons were working in the Division. He denied that he was a party in misappropriating the amount or that he dictated wrong name to the accused while he was preparing the bills.

P.W.3 Nek Muhammad stated that he had helped Aftab Ahmed Money Order Issue Clerk. He had issued money order receipt Exh.22 which was produced as Exh.6/9 and the name of this receipt has been erased. He had put the name of other persons but the same was erased and instead the name of Saifullah was written. He produced various money order receipts in respect of the different money orders which have been already mentioned in the deposition of Muhammad Anwar. In cross‑examination he stated that money order forms were given to him by Aftab Ahmed and he had issued the receipts' with money orders. He stated that on receipt Exh.6/1 the sender's name is shown as Mir Muhammad and on Exh.6/2 Muhammad Murid Sheikh, on Exh.6/4 Mashooq Ali, on Exh.6/7 and Exh.6/9 Sikandar Ali, on Exh.6/10 Lal Bux and on Exh.6/11 Suhbat Khan had been shown. He further stated that the other money order forms show the sender as Divisional Engineer. He further stated that the names of sender are not written by the department concerned and it was not for them to scrutinise the same.

P.W.4 Aftab Ahmed stated that he was M.O. Issue Clerk at Head Post Office, Larkana and it was his duty to receive money order forms. On 1‑6‑1977 Manzoor Ali appellant, present in Court, had brought list of 145 persons alongwith money order forms in their names for remittance and had brought a cheque of Rs.53,276.36 in favour of Postmaster, Larkana. He had directed Nek Muhammad P.W.3 to issue receipts in respect of 145 money orders. He stated that he knows Manzoor Ali who used to remit the money to the concerned employees of the Post Office through money orders at their Post Office. He was not seriously cross‑examined by the appellant. He stated that it was not his duty to check whether the name of Divisional Engineer Telegraph was written on the money order or not as these columns were being filled in by the concerned Office and that he had only checked the amount shown on each money order form and had tallied the same with the cheque handed over to him.

P. W.6 Ali Ahmed had investigated the case. He produced the sanction for prosecution as Exh.54. He stated that he had recorded the statements of different witnesses and seized the documents under Mashirnama. P.W.7 Nazir Ahmed, Mukhtiarkar stated that he took specimen writings of the accused Manzoor Ali on nine sheets in different speed motions and produced the same as Exh.57/1 to Exh.57/9.

P.W.8 Muhammad Din, Handwriting Expert stated that he had worked for 20 years as Handwriting Expert. He received the questioned documents Exh.9 to Exh.20 and he had compared the same with Exh.57/1 to Exh.57/9. His report is at Exh.60. He gave the reasons in support of his report and stated that the questioned documents and the specimen handwritings were written by one and the same person

In his examination under section 342 of Cr. P . C . the appellant Manzoor Ali admitted that he was Pay Clerk in the Office of Division Engineer Telephones, Larkana and that it was his duty to prepare the Pay Bills of Linemen. He further admitted that he prepared Exh.4/1 to Exh.4/3 but stated that he had prepared the same on the orders of Accountant Muhammad Anwar. Answering to another question he stated that he had inserted the names in the Pay Bills Exh.4/1 to Exh.4/3 of different persons who were not the employees of the Telephone Department and those names were supplied to him by the S. D.O. of the Division and the amounts were checked by Muhammad Anwar who had initialled the same. He had denied that pages 5 and 6 of the list Exh.5 were in his handwriting. He denied that he had calculated the total amount on page 7 of Exh.5 and denied that it bore his signature. He also denied that he had received Rs.53,276.36 and also denied his signature on the counterfoil Exh.6/13. He also denied that he had prepared the money order forms for remitting the pay to Linemen. He also denied that he had prepared the money order forms in the name of his own people by preparing the money order forms Exh.6/1 to Ex h.6/12. It was also put to him that five money order forms were prepared by him in his own name. He denied the same. He denied that he had prepared the money order forms. He also denied that he had misappropriated the amount of Rs.4,400. He stated that P.Ws had deposed in order to save themselves.

D.W.1 Shamsuddin stated that Manzoor Ali prepared Exhs. 4/1 and 4/2 which were countersigned by Muhammad Anwar and were passed by Divisional Engineer. He stated that the bills were prepared on the strength of the statement given by the Assistant Divisional Officer Headquarters and the accountant marked the same to the concerned clerk for preparation of the said bills and the‑ clerk concerned after preparing the bills presented same before the Accountant who got the sanction from Division Engineer. D.W.2 Nawaz Ali supported the statement of Shamsuddin.

After having perused the statements of different prosecution witnesses with the help of Mr. Muhammad Ali Sheikh, I have no doubt left in my mind that the appellant was the person who had prepared the Pay Bills and he had also sent the money orders Exh.6/1 to Exh. 6/12 as well as other money order. The very fact that the appellant has denied having sent the money orders shows his guilty mind. The two Post Office employees Nek Muhammad and Aftab Ahmed have to enmity with the appellant and they have stated that the money orders in question were prepared by the appellant. The two department employees namely Lutfullah and Muhammad Anwar have stated that it was the responsibility of the appellant to prepare the Pay Bills and Pay Lists and to send the pay of the outside Linemen by money orders. They have identified his signature on the cheque counterfoil Exh.6/13. They have also identified his signature on page 7 of Exh.5 and the appellant himself had admitted that he had prepared the Lists Exh.4/1 to Exh.4/3.

Moreover the most important fact which has been proved by production of Exh.6/1 to Exh.6/12 is that five money order forms are in the name of the appellant himself while two are in the name of Rano and other two are in the name of Ali Hassan. The money orders are in the names of eleven persons and even the lists prepared by the appellant Exh .4/ 1 to Exh.4/3 contain the names of the persons who were not the employees of the department. Sending of five money orders to Manzopr Ali, the appellant, clearly establishes the misconduct of the appellant. I have, therefore, no doubt in my mind that the appellant has been rightly convicted and this appeal deserves to be dismissed and is hereby dismissed. However, on the plea of Mr. Muhammad Ali Sheikh that the appellant has to suffer the dismissal from the department as well as the torture and disgrace of rigorous imprisonment, therefore, I have reduced the substantive sentence of three years' R.I. under section 409, P . P . C . to two years' R.I. plus fine of Rs . 5 , 000 but in default of the payment of fine the appellant shall have to suffer further R.I. for two years. The imprisonment in default of fine has been increased by me in order to induce the appellant to pay the fine. The other sentence under section 477‑A is maintained. The two substantive sentences would be concurrent but the sentence in lieu of non‑payment of fine will be consecutive. The appellant, however, will be entitled to benefit under section 382‑B of Cr.P.C. as ordered by me on 14‑10‑1986 by a short order.

S . G . D . Order accordingly.

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