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Criminal Appeal No. 64 of 1983 (Sukkur), Criminal Appeal No. 53 of 1985 (Karachi), decided on 5th November, 1986.

‑‑S. 420‑‑Prevention of Corruption Act (II of 1947), S. 5(2)‑‑Accused charged for producing a fake person for recovery of loan from bank for supply of fertilizer Application of person receiving loan was verified by accused but none of witnesses deposing that accused produced some fake person before bank officers‑‑Trial Court, drawing inferences against accused which were not supported by evidence on record‑‑Trial Court also failed to consider defence evidence in its correct perspective‑ Fertilizer was neither supplied to accused nor to some other person on his identification but was supplied to person who received loan from bank‑ Prosecution, held, absolutely failed to bring home the charge against accused Conviction and sentence set aside.

Abdul Latif Channa for Appellant.

Khan Sanaullah Khan for the State.

Dates of hearing: 3rd and 4th November, 1986.

The appellant has been convicted by the Special Judge Anti -Corruption, Sukkur, by means of order, dated 17‑11‑1983 and sentenced him to suffer R.I. for one year and fine of Rs.1,000 or in default to further R.I. for six months.

The facts in brief are that the appellant was posted as Tapedar, Tapo Vehar, Taluka Dokri in the year 1972‑73 and he recommended the loan form of Rs.2,000 of one Khan Mohammad and subsequently the same was sanctioned. An order for supplying of fertilizer to the extent of Rs.2,000 was issued and the same: was delivered to a fake person on bogus identification. After usual investigation the accused was charged under section 420/465/468, P.P.C. read with section 5(2) of Act II of 1947. The accused did not plead guilty to the charge. Assistant A.D.B.P. P.W. 2 Khan Muhammad, P.W.3 Saeed Khan, P.W.4 Ghulam Kadir Abro, Supervising Tapedar, P.W.5 Shamsuddin. Assistant Mukhtiarkar, P.W.6 Ghulam Rasool, P.W.7 Ghulam Abbas Jafferi, Handwriting Expert, P.W.8 Ghulam Mustafa, P.W.9 Akbar Ali., Circle Officer, A.C.E. P.W.10 Hassan Khan, Finger Print Expert, P.W.11 Mohammad Sharif, Officer A.D.B.P. and P.W.12 Abdul Aziz, Supervising Tapedar.

The accused in his statement under section 342, Cr.P.C. denied all the allegations made against him. He examined D.Ws. Mehar and Mohammad Ilyas in his defence.

The trial Judge came to the conclusion that the charge under sections 465 and 468, P.P.C. have not been established but he found the appellant guilty under section 420, P.P.C. read with section 5(2) of Act 1947 and convicted the appellant.

I have heard the learned counsel for the appellant and Mr. Khan Sanaullah for the State. After going through the record I am clear in my mind that the prosecution has absolutely failed to bring home the charge against the appellant. The learned trial Judge has drawn the inferences against the appellant which are not supported by the evidence on record. Adverse inferences cannot be drawn against an accused on mere presumption.

P.W.1 Abdul Mustafa has produced loan papers Khan Mohammad. He has not dealt with the loan granted by the bank. He was conversant with the signatures on Exhs. 2/A, 2/B and 2/C.

P.W.2 Khan Mohammad has deposed that he had applied for loan seed in the year 1973. He had given his loan form to the present appellant and Superivising Tapedar Ghulam Kadir. On the next day Tapedar informed him that his form has been rejected. After 1‑1/2 years he received notice for payment of Rs.2,000 loan. Then he submitted an application to the Anti‑Corruption that he had not received the loan. He had not admitted his signature on the application Exh.3‑A but it was written on his behalf by Saeed Khan. This witness has admitted that Rs.2,000 were given to him by the accused for paying loan to the bank.

P.W.3 Saeed Khan has stated that he had given the form to appellant Ghulam Kadir who informed that the loan form was rejected.

P.W.4 Ghulam Kadir Abro has deposed that he was Supervising Tapedar of Dokri in the year 1973. On Exh.2/A the appellant had given a report on 28‑11‑1973 and this application was in the name of Khan Mohammad for a loan of Rs.2,000. He had made his endorsement on that form that the surety is insufficient and he had not recommended the loan form.

P.W.5 Shamsuddin, Assistant Mukhtiarkar, Kamber, has deposed that he had signed the loan form and he did not know whether the loan form was sanctioned or not. Tapedar had identified Khan Mohammad.

P.W.6 Ghulam Rasool has deposed that Khan Mohammad had applied for loan and he had identified him on the loan form. The appellant told him that his form was rejected. After that, they came to know that Tapedar got the loan and misappropriated the same.

The statement of P.W. Ghulam Abbas Jafferi. Handwriting Expert and P.W. Hassan Khan, Finger Print Expert are not relevant for the disposal of the present appeal.

P.W. Ghulam Mustafa has stated that he had signed the form of Khan Mohammad and stood the surety. P.W. Akbar Ali was Investigating Officer.

The statements of the witnesses mentioned above would make it clear that none of the witnesses has deposed against the appellant. It is an admitted fact that the application for grant of loan was submitted by Khan Mohammad and it was verified by the appellant. P.W. Ghularn Kadir had not recommended the loan form but P.W. Shamsuddin, Assistant Mukhtiarkar had recommended the loan form. None of these witnesses has stated that the appellant had produced some fake person before the bank. It is also not stated by any witness that accused had received the amount of loan from the bank.

P.W. Muhammad Sharif is an important witness. He was working in the bank during the year 1972‑73. He has deposed that Khan Mohammad had demanded fertilizer of Rs.2,000. The name of the surety was Ghulam Murtaza and the names of the witnesses were Mehar and Nasrullah. He passed an order as under:‑

"Sanctioned Rs.2.000 without sport investigation on the recommendation and identification of the Tapedar for the purchase of fertilizer recoverable just after the harvest with seven per cent and after clue date:"

He has admitted that the loan was paid in the presence of revenue staff. The loan form was signed by Mukhtiarkar. The witness has admitted that he had also signed on the loan form and he had shown the solvency of the surety to the extent of Rs.5,000. He did not accept the surety and there were also signatures of Mukhtiarkar and Tapedar Supervisor. This witness has not stated that fertilizer was supplied to the appellant. He has also not stated that appellant was a person who had identified Khan Mohammad. Thus, the prosecution has not established either that the accused had received the fertilizer or that he had produced some fake person before the bank officers. It cannot be said with certainty that the appellant had produced some fake person before the bank employee. The trial Court has not considered the defence evidence in its correct prospective.

D.W. Mehar has stated that he accompanied. Khan Mohammad for obtaining Agriculture loan. The witness has further stated that he had signed the loan form as a witness. The accused signed the loan form and returned the same to them. Then they took them to Mukhtiarkar Dokri, who also signed the same, the loan was sanctioned. Khan Muhammad had received the fertilizer from the depot of Mohammad Ilyas.

D.W. Mohammad Ilyas has stated that he owned a fertilizer depot. On 28‑11‑1973 one Khan Mohammad brought the supply order to him from A.D.B.P. for the supply of fertilizer for Rs.2,000 and he supplied the fertilizer to Khan Mohammad.

These two witnesses were prosecution witnesses but the prosecution had not examined them and they have been examined by the defence. The depot holder has categorically stated that fertilizer was supplied to Khan Mohammad. He has not stated that the same was supplied to the appellant or to some other person on the identification of the appellant. According to Khan Mohammad amount was paid to him by the appellant for paying loan to the bank. On this aspect there is solitary statement of Khan Mohammad and not supported by any witness. Ghulam Murtaza is his landlord who has also not supported the complainant but has given an obliging statement in favour of the appellant. The material links in the case of the prosecution are missing. It was presumed that as Khan Mohammad had not received the fertilizer, therefore, the appellant who had made recommendation must have produced the fake person of Khan Mohammad.

The upshot of the above discussion is that the prosecution has absolutely failed to prove the case.

The appeal was disposed of by the short order, dated 4‑11‑1986. The aforesaid are the reasons for the same.

M.Y.H./G‑24/K Appeal accepted.

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