MUBARIK ALI Versus THE STATE

Mubarak Ali son of Fateh Muhammad, resident of Naushera Virkan, District Gujranwala, an employee of Post Office Department, has been convicted and sentenced to 5 years' rigorous imprisonment and a fine of Rs. 50,000 or in default to undergo 2 years' rigorous imprisonment, by Special Judge (Central), Lahore, vide judgment, dated 19‑2‑1986. By the same judgment, the learned Trial Court acquitted Muhammad Iqbal, another accused, giving him benefit of doubt. The convict has filed instant appeal (Criminal Appeal No. 195/86) challenging both his conviction and sentence. No State appeal has been filed against acquittal of Muhammad Iqbal.

2. Prosecution case as disclosed at the trial was that in the year 1972, Mub:jrak Ali (appellant) was posted as Incharge Gujranwala Kutchery Sub‑Post Office. On 2fi‑8‑1972, Muhammad Nawaz, Assistant Postmaster, Head Post Office, Gujranwala, (P.W. 9) sent six Defence Savings Certificates including five certificates bearing Nos. DG/341312 to DG/341316 (Exs. P.W. 2/1 to 5) valuing Rs.25,000 to the appellant through Bashir Ahmad Packer (P.W. 11), obviously for issue (sale) and depositing their proceeds in Government Treasury. Bashir Ahmad delivered the same to the appellant and obtained his signatures at the foot of invoice (Exh. P.W. 1/17). The appellant took them on stock making necessary entry in the stock register (Exh. P.W. 1/2) against the date 26‑8‑1972. Basharat Ali Mughal, Senior Auditor (P.W. 14) while carrying out audit of Gujranwala Kutchery Sub‑Post Office detected that aforementioned savings certificates had not been accounted for and reported this fact to his officers who in turn sent an audit objection to Hakim Ali, Postmaster, Head Post Office, Gujranwala (P.W. 1). At this Hakim Ali checked the record of Kutchery Sub‑Post Office on 27‑11‑1972 and found that the appellant had issued (sold) these certificates on 30‑8‑1972 for Rs. 25,000 as was shown in sub‑office account but this amount had neither been reflected under the headings "Receipts" and "Remittances" in daily account (statement) dated 30‑8‑1972 (Exh. P.W. 1/18) submitted to the Head Post Office nor had remitted this amount to that office, meaning thereby that he had misappropriated the same. Hakim Ali (P.W. 1), therefore, wrote letter (Exh. P.W. 1/1) to Station House Officer, Police Station City, Gujranwala, where formal F.I.R. (Exh. P.W. 1/2) was registered.

3. The case was partly investigated by Ghulam Qadir, Inspector of Police (since dead) and partly by S.I. Muhammad Ishaq (P.W. 18) wherein it transpired that the appellant had given the savings certificates in question to Muhammad Iqbal (the acquitted accused) after entering thereon the name of "Alt Muhammad son of Muhammad Sharif, village Rahwali", a fictitious person, and the "date of issue" as 27‑6‑1966, thereby fraudulently and dishonestly providing an opportunity to him to get the amount of price and also the amount of interest (calculated from that date) on these certificates. Muhammad Iqbal (the acquitted accused) then impersonating as "Alt Muhammad' presented the said savings certificates at the savings bank counter of Head Post Office, Sialkot, alongwith application (Exh. P.W. 2/7) requesting that the account pertaining to certificates (Exhs. P.W. 2/1 to 5) be gut transferred from Gujranwala Kutchery Post Office to Head Post Office Sialkot. Manzoor Ali Qureshi (P.W. 5) and Khalid Hussain (P.W. 6) officials of Head Post Office, Sialkot, processed this application and sent it alongwith the said certificates to Gujranwala Kutchery Sub‑Post Office for verification. The appellant returned the same duly verified to Head Post Office, Sialkot, on 16‑9‑1972, having signed and embossed the seal of his office on the back side of transfer application (Exh. P.W. 2/7). On 7‑10‑1972, Muhammad Iqbal (since acquitted) opened savings batik account with Sarhad Bank Limited, Railway Road, Sialkot, with a deposit of Rs. 14,000 in his name introducing himself as "Alt Muhammad" to Muhammad Akram (P.W. 7), a clerk of the said Bank, and signed application (F,xh. P.DV. 7.1) and the signatures card (Exh. P.W. 7/2) in Urdu as Ali Muhammad . On the basis of this acquaintance he took aforesaid Muhammad Akram P.W. with him to Head Post Office, Sialkot, where Muhammad Akram P.W. verified his particulars as "Alt Muhammad" by .putting his attestation (Exhs. P.W. 5/1 to 5) on the certificates (Exhs. P.W. 2/1 to 5) and thus Muhammad lqbal succeeded in obtaining Rs. 35,000 (Rs. 25,000 price of the certificates and Rs. 10,000 as amount of interest) from Head Post Office, Sialkot. Thereafter, Muhammad Iqbal within a week's time withdrew his almost entire amount from Sarhad Bank Limited through cheque (Exh. P.W. 7/3), dated 13‑10‑1972, (for Rs.12,000) and another cheque (Exh. P.W. 714), dated 19‑10‑1972, (for Rs. 1,950).

4. It is worth mentioning that Manzoor Ali Qureshi (P.W. 5) and Khalid Hussain (P.W. 6), officials of Head Post Office, Sialkot, and Muhammad Akram (P.W. 7), Clerk of Sarhad Bank Limited, Sialkot, picked Muhammad Iqbal in a test identification as the person who had introduced himself to them as "Ali Muhammad", but .either the Magistrate who supervised the test identification nor the proceedings recorded by him in this regard had been produced before the Trial Court. Qamaruddin Bhatti (P.W. 12), Handwriting Expert, proved his report (Exh. P.W. 12/1) wherein he opined that entries round on Defence Savings Certificates (Exhs. P.W. 2/1 to 5) were in the handwriting of Mubarak Ali (appellant) and Urdu signature "Ali Muhammad" appearing on these certificates were in the hand of Muhammad Iqbal (the acquitted accused). fie further stated that Urdu signature "Ali Muhammad" on application (Exh. P.W. 2/7) seeking transfer of account from Gujranwala to Sialkot was made by Muhammad Iqbal and that the verification appearing on the reverse of that application as well as entries in the stock register (Exh. P.W. 2/1) and the daily account sheet (Exh. P.W. 1/18) were in the handwriting of the appellant. Besides this, deposit form (Exh. P.W. 7/1), signatures card (Exh. P.W. 7/2) addressed to Sarhad Bank Limited, Sialkot, for opening savings bank account and the two cheques (Exh. P.W. 7/3, dated 13‑10‑1972, and Exh. P.W. 7/4, dated 19‑10‑1972) bearing Urdu signatures "Ali Muhammad" drawn at the said Bank, were also in the handwriting of Muhammad Iqbal.

5. Hakim Ali (P.W. 1), Manzoor Qureshi (P.W. 5), Khalid Hussain (P.W. 6), Muhammad Akram (P.W. 7), Muhammad Nawaz (P.W. 9), Bashir Ahmad (P.W. 11), Qamaruddin Bhatti, Handwriting Expert (P.W. 12), Basharat Ali (P.W. 14) and the Investigating Officer S.1. Muhammad Ishaq (P.W. 18) have proved the above‑mentioned story. Evidence of the remaining witnesses is either of formal nature or irrelevant.

6. The appellant as well as his co‑accused Muhammad Iqbal, in their statements under section 342, Cr.P.C., denied the allegations. The appellant declined to produce evidence in defence whereas Muhammad Iqbal besides stating on oath under section 340(2), Cr.P.C., that he had neither obtained the five Defence Savings Certificates from the appellant nor received their payment impersonating as "Alt Muhammad", examined Muhammad Sharif (D.W. 1) and Iqbal (D.W. 2) as his defence witnesses, who simply talked of his good character. The appellant did not produce any defence evidence, however, he himself appeared in disproof of the allegations a/s 340(2), Cr.P.C., and made highly significant statement on oath. In that he admitted that while he was posted as Incharge Kutchery Post Office Gujranwala, he had received five Defence Savings Certificates (Exhs. P.W. 2/1 to 5) from Head Post Office Gujranwala. He entered them in the stock register. Regarding their disposal he explained that Muhammad Iqbal (the acquitted accused) had obtained from him the said five certificates by misrepresenting to him that he would purchase the same on the following day after consulting another person, but subsequently he (Muhammad Iqbal) neither paid the price nor returned the certificates to him despite repeated requests made by him. When cross‑examined by Public Prosecutor, he admitted that he gave the Defence Savings Certificates in question to Muhammad Iqbal in violation of the rules and procedure regulating their disposal and that he had not made any entry in the register about their sale. He further admitted that he had not lodged any F.I.R. against Muhammad Iqbal about his having obtained aforesaid certificates ' by playing a trick with him. He conceded that he has been convicted under section 409, P.P.C. in another case and his appeal filed in that case has since been dismissed by the Supreme Court of Pakistan.

7. Learned Trial Court having considered the material on record acquitted Muhammad Iqbal observing that the Magistrate who supervised the test identification parade wherein Manzoor Ali Qureshi (P.W. 5), Khalid Hussain (P.W. 6) and Muhammad Akram (P.W. 7) identified Iqbal as "Alt Muhammad" had riot been produced and that the opinion of Handwriting Expert Qamaruddin Bhatti (P.W. 1'l.) that the Urdu signatures "Ali Muhammad" appearing on the questioned documents were in the handwriting of Muhammad Iqbal could not be acted upon as it lacked reasons. The appellant was, however, convicted under section 409, P.P.C. as, according to the learned trial Court, he had admitted entrustment of the five Defence Savings Certificates in question to him, but had failed to account for their disposal or the yeild thereof.

8. Learned counsel for the appellant has vehemently argued that since there is no evidence to show that the appellant had, in any manner, converted the proceeds of the Defence Savings Certificates in question, to his own use, therefore, the charge of "criminal breach of trust" cannot be taken to have been proved against him. Reliance has been placed on Mir Ahmed's case P L D 1962 S C 489 in this regard.

Learned counsel appearing on behalf of the State has supported the impugned judgment.

9. I have carefully considered the contentions of learned counsel for the parties and also perused the record.

10. Muhammad Iqbal, co‑accused of the appellant, has been acquitted by the learned Trial Court ignoring the testimony of Muhammad Akram (P.W. 7), a Clerk of Sarhad Bank, Sialkot, an independent witness who stated that Muhammad Iqbal had introduced himself to him as "Alt Muhammad" and opened his savings account in Sarhad Bank with a de sit of Rs. 14,000 on 7‑10‑1972 by signing aunt opening form (Exh. P.W. 71) and signatures card (Exh. P.W. 7/2) as Ali Muhammad; that he presented the Defence Savings Certificates "Exhs. P.W. 2/1 to 5) at Head Post Office, Sialkot, posing himself as Ali Muhammad and also received payment (Rs. 35,000) from there on 7‑10‑1972 on his (witness's) attestation and ultimately withdrew Rs. 14,000 (his entire deposit) from Sarhad Bank through two cheques, namely, Exh. P.W. 7/3 dated 13‑10‑1972 and Exh. P.W. 7/4 dated 1.9‑10‑1972 signing them as "Alt Muhammad". Muhammad lqbal thus had obtained Rs. 35,(X)00 from Head Post Office, Sialkot, fraudulently acting under a fictitious name of Ali Muhammad, knowing full well that he was not genuine purchaser of said Defence Savings Certificates. The question is that how these certificates fell into his hands? Whether he got them by, cheating Mubarak Ali (appellant) as pleaded by him or the appellant had deliberately and dishonestly given these certificates to him? The appellant admitted entrustment of five Savings Certificates in question (worth Rs. 25,OOo) to him while posted as Incharge Post Office Kutchery, Gujranwala. He also admitted that in violation and disregard of the rules regulating their disposal he had handed over the defence savings certificates in question to Muhammad 1qbal, his co‑accused, without any consideration obviously causing wrongful gain to Muhammad Iqbal (acquitted accused) and wrongful loss to the Post Office Department. Plea of the appellant that Muhammad Iqbal obtained the certificates in question from him by playing a trick with him, I would say, is without any basis. Had it been so then the appellant would have got a case registered against Muhammad Iqbal when he refused to return the certificates to him or pay their price. The appellant admitted that he had not lodged F.I.R. against Muhammad Iqbal when the latter, neither returned those certificates nor 1 paid their price to him. This silence on his part is culpable. Again, the appellant did not cross‑examine Muhammad Iqbal when he appeared as his own defence witness before the Trial Judge. Furthermore, the appellant receiving application (Exh. P.W. 2/7) seeking transfer of account from Gujranwala Kutchery Post Office to Sialkot dishonestly verified under his signatures the purchase 1~ Defence Savings Certificates (Exhs. P.W. 2/1 to 5) to Ali Muhammad and thus, helped Muhammad Iqbal, the impostor, to receive payment of Rs. 35,000. Had lie not done so the fraud could not have been perpetrated. All this shows that the appellant was a party to this fraud throughout. The act of the appellant looking from whatever angle clearly falls within the mischief of section 405, P.P.C. which says that whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly disposes of th4t 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 wilfully suffers any other person so to do, commits criminal breach of trust. Mir Ahmed's case relied upon by the appellant does not help him at all since it proceeds entirely on different facts as in that case the Hon'ble Judges of the Supreme Court had acquitted the accused/appellant because the plea raised by him was not properly considered by the Courts below although his plea was reasonably probable. As for the case in hand, the defence plea of the appellant as discussed above is not found as reasonably probable, rather he consciously committed the offence of criminal breach of trust. Muhammad Iqbal (since acquitted) also appears to be equally guilty but the State has not challenged his acquittal by way of appeal and therefore following the well-established practice of this Court that it seldom interferes with an order of acquittal in the exercise of the revisional jurisdiction, I refrain from doing so.

11. For what has gone above, I find that the conviction of the appellant under section 409, P.P.C.. recorded by the trial Court is justified and is hereby maintained. The sentence awarded by the Trial Court too being appropriate does' not call for interference. In the result, this appeal is dismissed.

S.A./M‑890/L Appeal dismissed