NOOR KHAN Versus STATE
This judgment will dispose of Criminal Appeal No.316 of 1991 filed by Noor Khan appellant, Junior Clerk, Deputy Commissioner's Office, Sargodha, who was convicted and sentenced by Special Judge, Anti‑Corruption, Sargodha on 16‑3‑1991 under section 420, ' P.P.C. to undergo sentence of till the rising of the Court, with a fine of Rs.1,000, in default three months' S.I. Appellant was acquitted from the charge under section 5(2), P.C. Act, 1947.
2. Brief allegation according to the F.I.R., which is Exh.PT lodged on 1‑2‑1987 was that the appellant received the salary for the months of June and July, 1982 from the Office of Overseer Irrigation Department being Tubewell Operator and also from the Office of Deputy Commissioner, Sargodha being Junior Clerk.
3. Learned counsel for the appellant has gone through the evidence recorded by the learned trial Court and also paragraphs Nos.4, 5 and 6 of the judgment of the learned trial Court. The main objection and submission which has been submitted before me by the learned counsel for the appellant is that the inquiry report which was an incriminating evidence against the appellant was not put into question to the appellant in his statement recorded under section 342, Cr.P.C. He further submits that even the report of Handwriting Expert has not been put into question to the appellant in the above said statement. He further submits that no reasoning has been given by the Handwriting Expert for the admissibility of his report. He has also relied upon 1987 PCr.LJ 363, PLD 1960 Dacca 897 and 1976 PCr.LJ 259. Lastly, he submits that appellant is a Government servant having small children, serving since 1982 and if his appeal is not accepted he will not only lose his job but his children will also face financial problems.
4. On the other hand, learned counsel for the State supports the judgment of learned trial Court and submits that Handwriting Expert had appeared before the learned trial Court and cross‑examination was made on the said witness. He submits that prosecution has proved its case against the appellant beyond any shadow of doubt.
5. I have heard the learned counsel for the parties and have also gone through the evidence recorded by the learned trial Court. Muhammad Yousaf Sub‑Engineer, who was examined as P.W.2 had admitted before the learned trial Court that he was unable to produce the pay roll of July, 1982 and the learned trial Court has also not convicted the appellant on the said charge. The question remains whether the inquiry report and the report of Handwriting Expert were put to the appellant in his statement recorded under section 342, Cr.P.C. or not, the answer is that both these reports were not put in his abovesaid statement and he was not given an opportunity to explain his position in this I regard. The occurrence in this case took place in 1982 and the F.I.R. was lodged in this' case in the year 1987. Seventeen years have passed when this occurrence took place. I do not think, that it will be advisable at this stage to remand the case to the learned trial Court in order to put these two questions to the appellant in his statement recorded under section 342, Cr.P.C. Appellant has already undergone agony of trial and appeal for seventeen long years.
6. In this view of the matter, as both these questions have not put to the appellant in his statement recorded under section 342, Cr.P.C., which were the only incriminating evidence against him and it was a lapse and negligence on the part of the learned trial Court and also on the part of Public Prosecutor and this Court cannot fill up this lacuna at this stage. I accept this appeal. Conviction and sentence awarded to the appellant by the learned trial Court is set aside. He is on bail and he is discharged from his bail bonds.
Appeal allowed
Q.M.H./M.A.K./N‑149/L