Ghulam Abbas vs The State etc.

Stereo. H C J D A 38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

Crl. Appeal No.185 of 2017 (Ghulam Abbas versus The State etc)

JUDGMENT

Date of hearing: 18.02.2020.

Appellant by: Barrister Salman Safdar, Advocate.

State by: Mr. Muhammad Latif, Assistant Attorney General for Pakistan.

Complainant by: Barrister Pirzada Aurangzaib, Advocate.

AALIA NEELUM, J:- The appellant-Ghulam Abbas son of Muhammad Iqbal, caste Bhatti, resident of Thatha Masta Pindi Bhattian, District Hafizabad, was involved in case F.I.R. No.110 of 2011, dated 07.05.2011, offence under Sections 409, 420, 467, 468 & 471 P.P.C. read with section 5(2) of the Prevention of Corruption Act 1947 registered at Police Station F.I.A, District Faisalabad and was tried by the learned Judge Special Court (Central), District Faisalabad. The learned trial court seized with the matter in terms of judgment dated 15.12.2016 convicted the appellant as under:-

1.Convicted under section 467 PPC and sentenced him to undergo rigorous Imprisonment for 10-years with the direction to pay Rs.1,82,351/- as fine and in case of default in payment thereof, to further undergo S.I for six months.

2.Convicted under section 468 PPC and sentenced him to undergo rigorous Imprisonment for 07-years with the direction to pay Rs.1,82,351/- as fine and in case of default in payment thereof, to further undergo S.I for six months.

3.Convicted under section 471 PPC and sentenced him to undergo rigorous Imprisonment for 10-years with the

direction to pay Rs.1,82,351/- as fine and in case of default in payment thereof, to further undergo S.I for six months.

4.Convicted under section 409 PPC and sentenced him to undergo rigorous Imprisonment for 10-years with the direction to pay Rs.1,82,351/- as fine and in case of default in payment thereof, to further undergo S.I for six months.

5.Convicted under section 5(2) of the Prevention of Corruption Act 1947 and sentenced him to undergo rigorous Imprisonment for 07-years with the direction to pay Rs.1,82,351/- as fine and in case of default in payment thereof, to further undergo S.I for six months.

The benefit of section 382-B Cr.P.C was also extended in favour of the appellant. Feeling aggrieved by the judgment of the learned trial court, the appellant has assailed his conviction through filing instant appeal.

2.The prosecution story as alleged in the F.I.R (Ex.PG) lodged on the complaint (Ex.PF) of Mehar Dr. Javaid Rabbani Khan (PW-14)-the complainant is that during the course of inspection of accounts, it had been found that Farrukh Farid Account Assistant (co-accused since convicted) had withdrawn Rs.911755/- from Askari Bank and Habib Bank by putting forged signatures on the stolen cheques in connivance and collusion with Ghulam Abbas Bhatti (the appellant), Superintendent accounts Branch, who was custodian of cheque books. The detail of cheque numbers and the amounts withdrawn was given in the complaint (Ex.PF).

3.After registration of case, the investigation of this case was conducted by Munir Akhtar Shah, Assistant Director FIA (PW-12) and Umer Farooq S.I. (PW-13), who found the accused/appellant guilty, prepared report under Section 173, Cr.P.C. and sent the same to the court of competent jurisdiction. On 25.01.2012, the learned trial court formally charge sheeted the appellant to which he pleaded not guilty and claimed trial. The prosecution in support of its version produced as many as fourteen (14) prosecution witnesses.

4.The learned trial court after recording evidence and evaluating the evidence available on record in the light of the arguments advanced from both sides, found the prosecution version proved beyond any shadow of reasonable doubt, which resulted into conviction of the appellant in the afore stated terms.

5.I have heard the arguments advanced by the learned counsel for the parties as well as learned law officer and have minutely perused the record available on the file.

6.In the instant case, the appellant-Ghulam Abbas was prosecuted, convicted and sentenced under Section 409, 467, 468, 471 P.P.C. as well as under Section 5(2) of the Prevention of Corruption Act 1947. Thus, question arises in this case for consideration as to whether same act or omission constitutes offence under Section 409, 467, 468, 471 P.P.C. as well as under Section 5(2) of the Prevention of Corruption Act, 1947. Section 409 P.P.C. runs as follows:

"S.409 Criminal breach of trust by public servant, or by banker, merchant or agent-Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

From perusal of aforesaid provision, it appears that if a public servant is entrusted with a property and he commits criminal breach of trust with respect to the said property then he is liable to be punished under Section 409 P.P.C. Criminal breach of trust defined under Section 405 P.P.C runs as follows:

"405.Criminal breach of trust- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly,

misappropriates or converts to his own use that property, or dishonestly use or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".

Thus, if any property entrusted to a person and that person dishonestly misappropriates that property then he commits the offence of criminal breach of trust. But allegation leveled by the prosecution against the appellant in complaint (Exh.PF) was as under:-

چاھےئرچارکریمےاور چسکبےس ی ک ”وتہیوصرتاحلاسےنمآیئہکدنمرہجذلیبراوچنںیک ی ک ن ن ن فراڈاور لعجاسزیرکےتوہےئرمق، فر کی،دورسےآرسیف کمر ااکوسٹن یلعجدطختس رک ےکدوھہک ن ن ت =روےپولکناےئلںیہ۔وجکنبےکراکیرڈےسثایوہاےہہکفرخف کریدودلالغم911755/-غلبم بیبحکنب،ااکوی اٹنٹسسالمزم اھت ےنرکسعیکنب نف کریدابعس ےن وج ہک ااکوسٹنبراچن ںیموطبر ن ٹ ن ن ںیم اانپ انشیتخ اکرڈ دے رک اور دطختس رک ےک رمق ولکنایئ ےہ وج ہک ہی امتم اکروایئ نبغ فرخ ف کرید زلمم براچن لصیفآثاد اورNFC رپسڈنٹی ااکوسٹن ن ٹ ذموکر ےن ھمرراہاسزثازالغمابعس یٹھبودلدمحماابقل یلمتگھبےسیکےہ۔وجہکہلمجدوونںزلمامنبرابرےک ک “رشیجرمںیھ۔

Muhammad Sultan Butt (PW-8) deposed during examination- in-chief as under:-

"I am working in Accounts Department of NFC, IEFR, Jaranwala road, Faisalabad since December 2007. On February 2015 Muhammad Tanweer Accounts Assistant was suspended and was transferred to some other Department. The duty of said Muhammad Tanweer was to reconcile all bank accounts of NFC, IEFR. Then we appointed four employees namely Mrs. Zahira Abbas, Assistant Accountant, Zahid Aziz, Asstt. Manager Accounts, Hamayun Sharif, Assistant Accounts and Ghulam Abbas Bhatti Superintendent Accounts for the reconciliation of bank accounts. On 28.03.2011 we were reconciling, during which some forged cheques were displayed from the bank record but the said cheques were not registered in our record.------------- --Before issuance and encashment of any cheque from the bank a voucher was generated from computer in routine but for all theses cheques no

voucher was generated. It was the duty of Ghulam Abbas Bhatti accused to generate the voucher which reveals that accused Ghulam Abbas Bhatti malafidely done this act."

From above deposition of Muhammad Sultan Butt (PW-8) it reveals that Ghulam Abbas Bhatti (appellant) was appointed along with other officials on suspension of Muhammad Tanveer Accounts Assistant. Muhammad Sultan Butt (PW-8) also deposed that Dr. Shahid Raza Malik (PW-7), the inquiry officer declared Farrukh Farid (since convicted) and Ghulam Abbas Bhatti (appellant) guilty. During cross-examination conducted by the learned defence counsel on behalf of the appellant Dr. Shahid Raza Malik (PW-7), the inquiry officer deposed as under: - ت

" زلمموکوکیئازلاماعدئہنایکاھت۔P20/1-2"ہیدرسےہہکںیمےناطمبقب

Dr. Javaid Rabbani (PW-14)-the complainant deposed during examination-in-chief as under: -

ںیم وطبر ڈابررٹکی انیعتت اھت۔ ےھجم ااکئ ن ٹNFC وک ںیم لصیف آثاد40/40/11”ومرہخ وی ن ت ےکڈیہاطلسن ٹ چاجریےیکںیہاناکتقب الکنبیکفرامہ یےناالطعدیہکاوہنںےنوج ی ک ت چ وج ہک رکسعی کنب اور دعد ی ک11 چ اہےئ ےس رکا کثا ایگ سج ںیم ےس رک دہ ٹسل ثای ی ک وی ےک اسھت دصتقی ہن وہ ےکس سج یک لیصفت ںیم ےن بیبح کنب ےک ےھت مہارے ااکئ ن ٹ ت “ےہ۔Ex. PNرحتبریکوجہک دروخاسںیم ک

It was the case of the prosecution that all cheques were in the custody of the appellant. Muhammad Sultan Butt (PW-8) placed on the record duties (Exh.P-19) of the appellant. The detail of duties of the appellant as per Eh.P-19 are as following:-

1.Preparation of payments and deal with creditors of the institute.

2.Preparation of payments of visiting teachers.

3.Checking of medical bills of employees.

4.Preparing Financial Statements of the Company.

5.Maintain bank book alongwith detail of fixed investments.

6.Prepare cheques.

7.Calculation of profits on saving accounts.

8.Calculation of profits on fixed investments.

9.Other misc. duties which are assign to me from time to time e.g. working for budget, deal with auditors of the company, opening of bank accounts, etc. etc.

Hamayun Sharif (PW-6), Superintendent Accounts, deposed during cross-examination as under: -

"I have made in my statement before the police that my duty was to make the payments to the contractors and that I alongwith Zahid Aziz used to go to Ghulam Abbas Bhatti accused and fill cheque books in his presence. It is correct that in the office apart from me Zahid Abbas, Zahid Aziz and Ghulam Abbas were used to prepare cheque for making payment to different parties.-------------------- ---I have joined the departmental inquiry conducted by Dr. Shahid Raza Malik. I have told to the inquiry Officer that all the cheque books were in the possession of Ghulam Abbas Bhatti accused. The Inquiry Officer recorded my statement on which I scribed my signatures after reading the same. Confronted with Exh.DC where it is not so mentioned. At this stage PW pointed out that Exh.DC is not the statement given by him to the I.O. rather, it is questions and answers written by the Inquiry Officer which also bears his signatures."

The evidence of Hamayun Sharif (PW-6), Superintendent Accounts is hearsay evidence about the appellant. Hamayun Sharif (PW-6), Superintendent Accounts, deposed during examination-in-chief as under: - "Upon the reconciliation of accounts it came into my knowledge that Ghulam Abbas and Farrukh Farid prepared some bogus cheques and misappropriated the amount of said cheques illegally and unauthorisedly. The said cheques were prepared by them during the year 2010-2011."

A close examination of the entire evidence and documents does not reveal any material, worth mentioning for fastening the appellant with the offence of criminal breach of trust punishable under Section 409 PPC. Further, there is no evidence that there was any conspiracy or concert of minds of the appellant and his co-accused (since convicted) or any pre- arranged plan between them to commit the offence or offences complained of.

7.The other question before this court is whether from the averments of the complaint if assuming to be true make out the ingredients of the offences punishable either under Section 467 or Section 471 of Penal Code. Section 467 PPC (in so far as it is relevant to this case) provides that whoever forges a document which purports to be a valuable security, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Section 471 PPC, relevant to the purpose of this case, provides that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document. Section 470 PPC defines a forged document as a false document made by forgery. The term "forgery" used in these two sections is defined in section 463 PPC, which provided that whoever makes any false document or part of a document, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery. Section 464 PPC defining "making a false document" is extracted below:

"464. Making a false document.--A person is said to make a false document:- First.--Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or a

part of document was made, signed, sealed, executed by, or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at time at which he knows that it was not made, signed, sealed or executed; or

Secondly.--Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part thereof, after it has been made or executed either by himself or by any other person, whether such person be living or dead at the time of such alternation; or Thirdly.--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document, knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practiced upon him, he does not know the contents of the document or the nature of the alteration.

Explanation 1 - A man's signature of his own name may amount to forgery.

Explanation 2 - The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery.

The condition precedent for an offence under Sections 467 and 471 PPC is forgery. The condition precedent for forgery is making a false document. Therefore, the question is whether the appellant, executed false and forged cheques (Exh-P-4 to P-23) in collusion with the other accused. An analysis of Section 464 of Penal Code shows that it divides false documents into three categories. That is, a person is said to have made a `false document', if (i) he made or executed a document claiming to be someone else or authorized by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses. As per prosecution case forged signatures of Muhammad Sultan Butt (PW-8) and Dr. Javaid Rabbani (PW-14)-the

complainant were affixed upon the cheques (Exh-P-4 to P-23). But no material evidence has been laid by the prosecution to establish connection of the appellant with the forgery or co-accused. It is undoubtedly the duty of the prosecution to lay before the Court all material evidence. There is a fundamental difference between a person executing a forged cheques and a person executing cheques by impersonating the concerned officers or falsely claiming to be authorized or empowered by the authority, to execute the cheques on behalf of Muhammad Sultan Butt (PW-8) and Dr. Javaid Rabbani (PW-14)-the complainant. In the instant case prosecution witnesses failed to prove that the forged signatures of Muhammad Sultan Butt (PW-8) and Dr. Javaid Rabbani (PW-14)-the complainant were affixed by the appellant. Muhammad Behzad Safdar, S.I. (PW-11)-investigating officer deposed during examination-in-chief that:-

"I also filed an application as Exh.PK before Ilaqa Magistrate for taking permission of specimen signatures of the accused person."

On perusal of application for obtaining specimen signatures (Exh.PK), it reveals that Muhammad Behzad Safdar, S.I. (PW-11)- investigating officer moved said application for obtaining specimen signatures of accused Farrukh Farid (since convicted). However, during investigation none of the investigating officer obtained specimen signatures of the appellant. If what is executed is not executed by the appellant, it cannot be said that the appellant affixed forged signatures and used them as genuine. If there is no forgery conducted by the appellant, then neither Section 467 nor Section 471 of the Code are attracted.

8.It is not out of place to quote section 5(2) of the Prevention of Corruption Ac, 1947, for better appreciation, which is as under:

"5.Criminal misconduct.---(1)----------------------

(a)----------------

(b)----------------

(c)----------------

(d)----------------

(e)------------------

(2)Any public servant who commits or attempts to commit criminal misconduct shall be punishable with imprisonment for a term which may extend to seven years or with fine or with both.

Thus, on joint reading of aforesaid provisions, it is clear that if a public servant dishonestly misappropriates property entrusted to him and converts it to his own use, he can be punished for the said offences. Under the said circumstance, the same act or omission i.e. dishonest misappropriation of property by a public servant constitutes offence both under Section 409 P.P.C. as well as under Section 5(2) of Prevention of Corruption Act, 1947. From perusal of entire evidence available on record, I find that there is absolutely no evidence to show that the appellant-Ghulam Abbas was entrusted with the cheque books. There is no evidence to show that the appellant-Ghulam Abbas misappropriated Rs. 911755/-. Thus, in view of aforesaid circumstances, offences under Section 409, 467, 468, 471 P.P.C. as well as under Section 5(2) of the Prevention of Corruption Act 1947 are not made out against the appellant. From perusal of entire evidence adduced by prosecution, I find that there is nothing to show that appellant- Ghulam Abbas has misappropriated Rs. 911755/- and affixed forged signatures on the cheques, thus, offences under Section 409 467, 468, 471 P.P.C. as well as under Section 5(2) of the Prevention of Corruption Act, 1947 are not made out. In the instant case, as noticed above, the learned court below prosecuted, convicted and sentenced the appellant under Sections 409, 467, 468, 471 P.P.C. as well as under Section 5(2) of the Prevention of Corruption Act 1947. Thus, by doing so learned court below, in my view, has committed serious illegality.

9.In view of the discussions made above, I find that the impugned judgment dated 15.12.2016 to the extent of the appellant qua conviction and sentence suffers from serious illegality, therefore, cannot be sustained in this appeal. In the result, appeal No.185 of 2017 is allowed and as a result whereof Impugned judgment dated 15.12.2016 to the extent of the appellant regarding conviction and sentence is set aside. The appellant is acquitted

from the charges leveled against him. The appellant is in custody. He (the appellant-Ghulam Abbas), is directed to be released forthwith, if not required in any criminal case.

(AALIA NEELUM)

Judge Ikram*

Approved for reporting

JUDGE