PLJ 2010 Cr.C. (
Present: Mrs. Qaiser
Iqbal, J.
ASKARI
HASSAN--Appellant
versus
STATE--Respondent
Crl. Appeal No. 220 of
2000, allowed on 6.3.2009.
Criminal Procedure
Code, 1898 (V of 1898)--
----S. 410--Pakistan
Penal Code, 1898 (V of 1860 (XLV of 1860), Ss. 409, 471 & 477-A--Prevention
of Corruption Act, 1947, S. 5(2)----Conviction and sentence--Appeal
against--Challenge to--Upper division Clerk of National Saving--Fraud with
Government money--Charge of--What mode should be adopted by prosecution to
adduce evidence if number of cases have arisen out of one FIR--Question of--Law
requiring adjudication of matter through evidence direct or substantial--Basic
theme of criminal justice system is that onus to prove a case lies upon
prosecution beyond all shadow of doubt--Trial should be strictly in accordance
with law where by in each case original set of documents was required to be
produced to substantiate allegations of misappropriation--In cursory manner
trial Court had recorded evidence of one witness and vibration copy has been
produced in rest of twenty two cases--Mode adopted is not in consonance with
law and has not been appreciated--Material witnesses were not
examined--Specimen signatures of account holders were taken but prosecution did
not produce sufficient evidence in proof of signatures obtained--Appellant was
examined u/S. 342 Cr.P.C, verbatim copies of statements were placed on record
on different files which does not contain full and true accounts violates mandatory
provision of S.342 Cr.P.C as law requires needs to be done in a particular
manner in which same has been produced not in any other manner--Benefit of
doubt extended in favour of appellant--Conviction and sentence awarded to
appellant were set aside--Appeals allowed. [P.
386] B, C & D
Appraisal of
evidence--
----Every criminal
proceedings (and in fact every civil proceedings) it to be decided on material
on record of that proceeding--Neither record of another case nor any finding
recorded therein should affect decision--If Court takes into consideration
evidence recorded in another case of a finding recording therein judgment is
vitiated--Finding recorded in a criminal case is not legal evidence in another
criminal proceeding--There is an express provision in evidence Act, S. 43,
which debars Court from taking it into consideration--It makes no difference
that finding is recorded by a High Court or Supreme Court, it remains
irrelevant--Court which is to determine a matter must determine matter itself
unaffected by opinion expressed in other cases. [P.
385] A
1996
P.Cr.L.J (
PLD 1981
M/s. Mehmood A.
Qureshi & Abdul Sadiq Tanoli, Advocates for
Appellant.
Mr. Muhammad Ashraf
Mughal, DAG for State.
Date of hearing:
17.10.2006
Judgment
I propose to dispose
of Criminal Appeal Bearing Nos. 220/2000, 93/2001, 92/2001, 91/2001, 90/2001,
89/2001, 88/2001, 87/2001, 86/2001, 85/2001, 84/2001, 83/2001, 82/2001,
81/2001, 80/2001, 79/2001, 02/2001, 238/2000, 237/2000, 236/2000, 235/2000,
232/2000 & 221/2000, whereby the appellant has assailed the impugned
judgments passed by Special Judge Central-II, whereby the appellant was
convicted and sentenced under Sections 409, 471 & 477-A PPC to undergo R.I.
for one year and to pay fine of Rs. 2000/-, and in default to suffer simple
imprisonment for three months. Since common question of facts and law are
involved therefore all the appeals are decided by this common judgment.
On the basis of
written complaint lodged by Haseeb Ahmed Wasti under Government of Pakistan
Finance Division Directorate of National Saving, matter was reported for fraudulent
withdrawals by the appellant while serving as Upper Division Clerk has
committed a fraud with Government money on different occasions in different
sums in National Saving Officer with written confession of appellant enclosed
thereto, immediately appellant was taken into custody. approximately
Rs. 50,000/- from different accounts were withdrawn by him which are disclosed
herein below:--
Account Nos. Account Holders
Name Found closed accounts
Forged
and-----with
SAVING ACCOUNTS
94 Mr.
Abrar Ahmed Rs.
1500/- Appx
205 Mr.
Sarkar Rs.
2950/-
248 Mr.
Muhammad Wasti Rs.
3900/-
273 Mr.
Muhammad Qamar Rs.
4300/-
363 Mr.
Abdul Rashid Rs.
2800/-
491 Mr.
Khalid Hasan Rs.
1950/-
309 Mr.
Qamar Rs.
4800/-
Rs.
22200/-
KHAS DEPOSIT ACCOUNTS
Mr. Jabbar Rs.
300/-
Mr. Shaheen Nazir Rs.
10340/-
Mst. Khurshid Jahan Rs.
7040/-
Mr. Muhammad Ummer Rs.
9260/-
Rs.
29640/-
Inspector Ata Muhammad
SHO of P.S. Drigh Colony registered the cases after usual investigation by
Federal Investigating Agency, the charge sheets were filed.
Learned trial Court
has proceeded to frame the charge on 25.10.1981, the appellant had denied the
allegations levelled and the statements of nine witnesses viz. P.W.1 Rafiullah
Shaikh Exhibit 3, P.W. 2 Rao Muhammad Ashraf Exhibit 9, P.W. 3 Syed Mehmood Ali
Exhibit 11, P.W.4 Muhammad Yahya Siddiqui Exhibit 14, P.W.5 Abdul Karim Shaikh
Exhibit 46, P.W.6 Muhammad Ashraf Exhibit 132, P.W.7 Haji Atta Muhammad Exhibit
135, P.W.8 Abrar Ahmed Khan Exhibit 136 and P.W.9 Shaikh Muhammad Din Exhibit
137 were recorded. After the prosecution has closed the side the statement of
the appellant was recorded under Section 342 Cr.P.C. He denied the allegations
levelled against him, neither examined himself on oath
nor lead any defence evidence. Learned trial Court for determination of the
controversy had formulated the following points for determination:--
(1) Whether accused S. Askari Hassan was
serving as Upper Division Clerk in the National Saving Centre Drigh Colony,
(2) Whether the accused by abusing his
official position dishonestly and fraudulently destroyed the genuine ledger
card of closed Account No. SA-94 in the name of account holder Abrar Ahmed Khan
and replaced with forged ledger card which he knows to be forged one and made
fictitious deposit entries therein and withdrawn the amount of
Rs. 150/- through
forged withdrawal Slip No. 367143 dated 23.12.1976 and misappropriated the said
amount thereby causing loss to Government and wrongful gain to himself?
(3) What offence has been committed by
the accused.
Consequent thereupon
the appraisal of the evidence adduced by the prosecution the appellant was
convicted as stated above. He has resorted to file appeal in terms of Section
410 under Criminal Procedure Code.
Learned counsel for
appellant did not controvert the controversy and has mainly contested the
conviction awarded to the appellant under Sections 409, 471 and 447-A PPC read
with Section 5(2) of PCA-1947. It is urged that sentence awarded to the
appellant comprising of R.I. for one year under each count directed to be run
concurrently is not in consonance with law. The appellant was sentenced under
Section 409 to pay fine of Rs. 2000/- and in default of payment of fine undergo
S.I. for three months. It is next urged that original documents were exhibited
in Criminal Case No. 294/81 whereas upon bifurcation of the cases, the record
comprising of documents in original was not produced materially the requirement
of law has not been fulfilled. It is next urged that the burden of proof rested
upon the prosecution. The conviction is based upon the sole evidence of hand
writing expert without corroborative evidence cannot be sustained. The
prosecution did not produce the Magistrate during trial before whom the specimen signatures of hand writing of the
appellant were obtained during trial which cast shadow in the prosecution case.
The question of entrustment of money as required under Section 409 CPC is
missing in the prosecution evidence.
It will be appropriate
to embark that the documents seized already under exhibit 15 by P.W.4 Muhammad
Yahya Siddiqui were not produced before the Court in cross-examination, it was
admitted that the documents were not available with the prosecution, the
conviction is thus based upon the weak evidence. It is next urged by the
learned counsel for appellant that in FIR No. 295/81 in the similar
circumstances upon appraisal of the evidence trial Court had recorded
conviction till rising of the Court.
In case of Noor Elahi
vs. The State and 2 others (PLD 1963 SC 708) it is well propounded law is that,
every criminal proceedings (and in fact every civil proceeding) is to be
decided on the material on record of that proceeding and neither the record of
another case nor any finding recorded therein should affect the decision. If
the Court takes into consideration evidence recorded in another case of a
finding recording therein the judgment is vitiated. The finding recorded in a
criminal case is not legal evidence in another criminal proceeding. In fact
there is an express provision in the evidence Act, that is, Section 43, which
debars the Court from taking it into consideration. It makes no difference that
the finding is recorded by a High Court or the Supreme Court. It remains
irrelevant. The Court which is to determine a matter
must determine the matter itself unaffected by opinion expressed in other
cases. The above proposition was also reiterated in case of Ghulam Hussain and
others vs. The State (1996 PCr.LJ Karachi 514) as well as reliance has been
placed in case of Noor Muhammad and others vs. The State (PLD 1981 Lahore 60),
Zaman Shah vs. The State (PLD 1967 Peshawar 191), Ijlees Ahmed and another vs.
The State (1988 MLD 161), Hassan Gul vs. The State (1975 P.Cr.L.J. 437), The
State vs. Qalandar Khan (PLD 1971 Pesh. 119), Khawaja Muhammad Anwar vs. The
State (1983 P.Cr.L.J. 2070), Siddiq Ali and another vs. Rex (AIR 1950 All.
119), Syed Abdul Waheed vs. The State (1968 P.Cr.L.J. 776), Mazhar Hussain Shah
vs. The State (1990 P.Cr.L.J. 868), certified copies of the judgments of Cases
No. 316/81, 317/81, 313/81, 315/81, 314/81, 339/81, (The State vs. Syed Askari
Hassan).
From the resume of the
above cases the well propounded law is that evidence recorded in one case its
copy cannot be placed on the record of every case nor the evidence of one
witness could be produced from one case into the file of other case without
appearance of the witnesses as wall as without recording examination-in-chief
and cross examination of the witnesses, its failure is a serious prejudice to
the defence tentamounts to be an illegality which vitiates trial and cannot be
cured under Section 537 Cr.P.C.
Mr. Muhammad Ashraf
Mughal learned Deputy Attorney General has conceded to the effect that
conviction awarded to the appellant be modified till
rising of the Court but the sentence by way of fine be maintained.
I have considered the
arguments advanced at bar. Moot point for consideration is that what mode
should be adopted by the prosecution to adduce evidence if number of cases has
arisen out of one FIR. Law requires adjudication of the matter through evidence
direct or substantial. The basic theme of criminal justice system is that the
onus to prove a case lies upon the prosecution beyond all shadow of doubt. The
trial should be strictly in accordance with law whereby in each case the
original set of documents was required to be produced to substantiate the
allegations of misappropriation. In cursory manner the learned trial Court had
recorded the evidence of one witness and verbatim copy has been produced in
rest of twenty two cases. The mode adopted is not in consonance with law and
has not been appreciated.
I have compared the
evidence of prosecution witnesses in all 23 appeals, examination in chief as
well as cross examination are verbatim copies, the requisite documents were
produced and exhibited in one case whereas in rest of the cases documents as
required were not produced. Non compliance of established procedure of Criminal
Trial vitiates the trial and the conviction could not be maintained.
On the merits, of the
case the learned counsel for appellant has stated that the material witnesses
were not examined. The specimen signatures were obtained before the Magistrate,
investigating officer has also obtained specimen signatures of the account
holders, prosecution did not produce sufficient
evidence in proof of the signatures obtained of the holders. The appellant was
examined under Section 342 Cr.P.C verbatim copies of statements were placed on
record on different files which does not contain full and true accounts
violates mandatory provision of Section 342 Cr.P.C. as the law requires needs
to be done in a particular manner in which the same has been produced not in
any other manner. At this juncture I am inclined to extend benefit of doubt in
favour of the appellant after reappraisal of legal and
factual position therefore impugned judgments are not maintainable in
law. Accordingly all the twenty three appeals are allowed, conviction and
sentence awarded to the appellant are set aside. He is already or bail, his
bail stands cancelled and surety stands discharged.
(Sh.A.S.) Appeal allowed.