FAZAL HUSSAIN HASHMI Versus THE STATE
These are two connected appeals arise out of a common judgment dated 18‑1Z‑1970 passed by the Senior Special Judge, Kalat, at Mastung. Criminal Appeal No. 1/1971 is by Fazal Hussain Hashmi, while Criminal Appeal No. 2/1971 is by Mohammad Anwar. These two persons along with Imam Dad (who was acquitted), were tried by the Senior Special Judge, Kalat, at Mastung on charges of criminal misconduct as public servants under sec tion 5(2) of the Prevention of Corruption Act, 1947. Appellant Hashmi was convicted on two counts and sentenced to pay a fine of Rs. 20,000 or in default of payment to suffer R. I. for two years. Appellant Muhammad Anwar was convicted on one count only and sentenced to pay a fine of Rs. 10,000 or in default of payment to suffer R.I. for one year. Both appeals will be disposed of by this judgment.
2. The prosecution case, in a nutshell, against the appellant Fazal Hussain Hashmi (hereinafter referred to as "Hashmi") and Muhammad Anwar was that in their capacity as General Manager and Clerk res pectively, of the Kalat Divisional Co‑operative. Bank Limited, Mastung and, as such public servants, in collaboration with each other, had dishonestly and fraudulently misappropriated the sum of Rs. 15,000 received by Hashmi from the Branch of the Kalat Divisional Co‑operative Bank at Bhag on 6‑7-1967 by falsely showing in the Day Book and the Ledger on 19th August 196'1 that the said amount was deposited in the National Bank of Pakistan, Mastung to the credit of the account of the Co‑operative Bank. They were also charged on a second count, viz., that Haahmi got encashed a cheque dated 23‑10‑1967 for Rs. 2,000 from the National Bank of Pakistan through Imam Dad, peon of his bank and with the help and collaboration of Muhammad Anwar and Imam Dad, they dishonestly and fraudulently misappropriated the said sum of Rs. 2,000. Both the offences with which they were charged, were offences of criminal misconduct and were punishable under section 5(2) of the Prevention of Corruption Act, 1947.
3. After examining the evidence led on behalf of the prosecution as well as that led on behalf of each of the appellants, the learned Special Judge came to the finding that the prosecution case against both the appellants with regard to the offence charged in the first count, viz., of misappropriation of the amount of Rs. 15,000 in collaboration with each other, stood proved. On the second count relating to the misappropriation of Rs. 2.000, he found Hashmi alone guilty of the offence and exonerated Muhammad Anwar of this charge. Accordingly, he convicted Hashmi on both counts and Muhammad Anwar on the first count and sentenced each of them under section 5(2) of the Prevention of Corruption Act, 1947, to pay a fine of Rs. 20,000 and Rs. 10,000 respectively or in default to suffer R.I. for periods of two years and one year respectively.
4. Taking up the appeal of Hashmi first, his learned counsel Mr. I. B. H. Hanafi, took up a preliminary point that no proper sanction for the prosecu tion of his client was given, as is required under section 6(5) of the Pakistan Criminal Law Amendment Act, 1958 and that therefore the entire proceedings taken by the Special Judge were without jurisdiction and void. His precise contention is that under the Pakistan Criminal Law Amendment (West Pakistan) Rules, 1962, the officer, competent to remove a public servant from office, is alone empowered to sanction prosecution and that in the instant case, under the Bye‑law No. 47 (d) of the Kalat Divisional Co operative Bank Ltd. (Exh. P.T.) the Board of Directors is the authority competent to remove an employee with the prior approval of the Registrar, Cooperative Societies Quetta/Kalat Region, Quetta. Whereas, according to counsel, the sanction in this case was accorded by Abdul Rashid, Chairman of the Kalat Divisional Co‑operative Bank, who incidentally also signed it in the capacity of Deputy Registrar, Co‑operative Societies Quetta/Kalat Region, Quetta. No date is mentioned in the sanction, but it must be prior to 30‑1‑1969, as it appears that sometime after the aforesaid sanction was given by the Chairman/Deputy Registrar, he got it confirmed and ratified by resolu tion of the Board of Directors of the Co‑operative Bank passed at its meeting held on 30‑1‑1959. The submission of Mr. Hanafi is that as the Chairman had himself no power to accord the sanction before the resolution was passed by the Board, the sanction given by him initially was void and could not be saved retrospectively by the Board's ratifying resolution dated 30‑1‑1969. In this connection, he cited the judgment of the Supreme Court in Rashid Ahmad v. The State (PLD1972SC271). In that case the Executive Officer of the Wah Cantonment had accorded sanction to prosecute the appellant Rashid Ahmed, a Cashier for defalcation of accounts. On the date when the Special Judge took cognizance of the case, that is when the appellant was summoned, the Executive Officer of the Wah Cantonment had no power to accord the sanction as the sanction should have been issued by the Central Government. It was held that a notification which was published some two months after the Special Judge took cognizance, conferring such power on the Executive Officer, could not save the invalid sanction initially given. The facts of that case are distinguishable. Whereas in the instant case, as rightly pointed out by Ch. Muhammadi Yousuf, learned A.A.‑G, the Special Judge took cognizance of the case on 3‑4‑1969 on which date there was a subsisting resolution of the Board of Directors dated 30‑1‑1969 which had ratified and confirmed the sanction previously accorded by its Chairman‑cum‑Deputy Registrar (inciden tally, the powers of the Registrar, Co‑operative Societies were delegated to! the Deputy Registrar under the Notification No. SOC (I) 4‑14/66 date Id 16‑10‑1967).
5. Mr. Hanafi further contended that the sanction was defective as it was an omnibus sanction on a standard proforma, for the prosecution of three public servants without mentioning the two separate instances of the alleged misappropriation of Rs. 15,000 and Rs 2,000 respectively and without mentioning which of the persons was to be prosecuted for which of the offences. Therefore, his submission is that the sanctioning authority did not apply its mind consciously to the facts of the case. This objection was overruled by the Special Judge, who observed that although the language of the sanction order was defective, it was a valid single sanction order for the prosecution of all the three accused. I am in agreement with this view. Accordingly, this submission of Mr. Hanafi is rejected.
6. On merits of the case the submission of Mr. Hanafi is that the pro secution has failed to prove the accusation in the charge that Hashmi had received the sum of Rs. 15,000 on 6‑7‑1967 from the branch of the Kalat Divisional Co‑operative Bank, at Bhag in view of the conflicting testimony of the prosecution witnesses Abdur Rahman (P. W. 4) and Malik Ghulam Muhammad (P. W. 5). Abdur Rehman stated that he had handed over Rs. 15,000 in cash to Hashmi when the latter came personally to Bhag on 6‑7‑1967 under voucher No. 38 dated 6‑7‑1967 (Exh. P. U.). This voucher was signed by Hashmi in token of receipt of the cash. It was also signed by the witness. However, Malik Ghulam Muhammad (P. W. 5) stated in cross -examination to counsel for Muhammad Anwar, that the attendance register of the Co‑operative Bank, Mastung showed that Hashmi was present at the Bank on 5th and 6th July, 1967 and that he had put his initials (Exh. P.U/1) on the Attendance Register. Neither had he applied for leave nor drawn his T.A. & D.A.
7. Again, Abdur Rehman stated that be had taken Rs. 15,000 in cash from the Head Office at Mastung on 29‑6‑1967 while returning from home, whereas it was shown in the day book and ledger as transferred under D. D. 427198. He admitted that this entry of D.D. was not correct as it was made to avoid showing transfer by cash. On the other hand, Malik Ghulam Muhammad stated that the Bank's Ledger (Exh. PV), showed that amount of Rs. 15,000 was transferred to Bhag Branch on 9‑3‑1967 by D. D. 452365 which is an incorrect number.
8. But, as rightly observed by the learned Special Judge, the source from where the sum of Rs. 15,000 was received by Hashmi is immaterial. In his section 342, Cr. P. C. statement, Hashmi has clearly‑admitted as correct that he has signed the voucher No. 38 dated 6‑7‑1947 in token of receipt of Rs. 15,000. Therefore, the entrustment must be accepted as established despite the conflicting testimony of the two P. Ws. above mentioned with regard to its receipt at Bhag. Again, the cash book recovered, shows no entry with regard to this amount received from Bhag Branch or its deposit in the National Bank of Pakistan on 19‑8‑1967, while the lay Book and the Ledge Book show entry of deposit on that day. The transfer voucher No. 4 on the basis of which the Day Book and Ledger were entered by Muhammad Anwar on 19‑8‑1967 is missing from the vouchers taken custody of from Hashimi and appears to have been suppressed by him. It was in his own handwriting, and its production would have exposed the falsity of his accusation that Muhammad Anwar had misappropriated the amount. It may well be that the torn corner Exh. PQ/2 recovered by Malik Ghulam Muhammad (P. W. 5) was part of the missing voucher which has been suppressed. Therefore, even if receipt of the money from Bhag Branch and entrustment to Hashmi is doubtful, the fact remains that whereas Hashmi had through a transfer voucher got entries made in the Day Book and Ledger by Muhammad Anwar that Rs. 15,000 were deposited in the National Bank of Pakistan no such deposit was actually made. In this view of the matter, in my opinion, he was rightly convicted by the Special Judge on the charge of "converting for his own use money under his control as public servant" under section 5(1)(c) of the Prevention of Corruption Act, 1947. In the result, the appeal of Fazal Hussain Hashmi is dismissed.
9. With regard to the appeal of Muhammad Anwar, the submission of his counsel, Khawaja Safdar Rashid is that the learned Special Judge erred in convicting him on the grounds, firstly, that he bad falsely made entries in Day Book and Ledger on 19‑8‑1967 with regard to the alleged deposit of Rs. 15 000 in the National Bank of Pakistan and, secondly, that having received National Bark's monthly statements after September 1967 and debit interest vouchers, be must have come to know of the alleged fraud, but did not report the matter to his superiors and thereby "allowed" Hashmi to misappropriate the amount. With regard to the first ground, it was not denied by Muhammad Anwar that he made the entries in Day Book and the Ledger on 19‑8‑1967 but he stated that he did so on the basis of the transfer voucher prepared by Hashmi, that this was the procedure adopted by the Bank is supported by the testimony of Muhammad Karim (P, W. 6) the Accountant. It is true that Muhammad Anwar should not have trade the entry in the Day Book and Ledger without seeing the original receipt of deposit of Rs. 15,000 in the National Bank of Pakistan. But this can only mean that he had been negligent towards his duties. However, the case set up by him which is supported by the P.W. Muhammad Karim is not inconsistent with his innocence. With regard to the second ground, Muhammad Anwar admitted that he had received the bank statements and the debit vouchers. But mere receipt is not proof of knowledge of contents. It was not put to him in his section 342, Cr. P. C. statement whether he opened the sealed envelops containing the bank's statements and compared them with the ledger account immediately on their receipt, so as to establish his knowledge of the fraud, in which case alone he would be guilty of "allowing" Hashmi to commit the fraud under section 5(l)(c) of the Prevention of Corruption Act, 1947. In this connection, Khawja Safdar Rashid referred to Mustafa Shah v. The State (1968 P Cr. L J 358) in which Muhammad Afzal Ckeema, J. (as he then was) while considering the expression "allows another person to do so" under section 5(i)(c) of the Prevention of Corruption Act, 1947, observed that a person cannot be held guilty of criminal misconduct unless he deliberately allowed some one else to do so. That presupposes knowledge of the fraud by Muhammad Anwar and his deliberate silence thereafter. However, as stated earlier knowledge has not been proved, although it may be said that Muhammad Anwar suspected some foul play some months later on 5‑10‑1967 after he received a debit interest voucher. At that time he questioned Hasbmi about it, but was put off. He was only a clerk in the bank while the cash, the cheque book and the cash book were in the custody and were being maintained by Hashmi, whereas he was acting on directions of his superior officer. In my opinion, therefore, the conviction of Muhammad Anwar for the reasons maintained by the learned Special Judge in paragraphs 14 and 15 of his judgment, cannot be supported.
10. In the result, his appeal is alloyed and his conviction and sentence is set aside.
S. A. H Order accordingly.