SULTAN MAHMOOD Versus THE STATE
1. This is an application under section 561‑A, Cr.P.C. for the quashmert of proceedings pending against the applicant under section 420, P.P.C read with section 5 (2) of Act II of 1947 in Special Case No. 16/85, before the learned Special Judge Anti‑Corruption, Hyderabad at Hyderabad.
2. The brief facts giving rise to the present application are that on receipt of application, an enquiry was conducted against applicant Sultan Mehmood s/o Khushi Mohammad who was working as Primary Teacher in Hyderabad City and was posted in Government N‑Primary Memon Anjuman Primary School, Hyderabad, during which it transpired that the accused being a Government servant had joined another Government service as Instructor in Government Commerce College, Dadu, and therefore the report was lodged by Mr. Ameer Ali Arain Circle Officer, Hyderabad City, on behalf of the State on 15‑2‑1982 which reads as under:
3. "A complaint No. 198/82 of ACE Hyderabad City was lodged and open enquiry was conducted. As a result of open enquiry it has been established that accused Sultan Mehmood son of Khushi Mohammad was working as Primary Teacher in Hyderabad City and was posted in Government N‑Primary Memon Anjuman Primary School Hyderabad upto May 1981 and was paid regularly. Thereafter he was transferred to Government Primary Muslim, Urdu School Khahi Road, Hyderabad, when he reported for duty on 27‑5‑1981 and tendered resignation with effect from 3‑10‑1981. He was paid salaries upto 11‑9‑1981. At the same time accused Sultan Mehmood by misrepresentation also sought appointment as Junior Instructor at Government Commerce Institute, Dadu, and joined at Dadu on 1‑4‑1981, and continued upto 7‑9‑1981, and used to drew his pay regularly and thereafter resigned. As such it is clear that accused Sultan Mehmood son of Khushi Mohammad fraudulently draw his pay from both the institutions for a period from 1‑4‑1981 to 7‑9‑1981, and cheated the Government and committed cognizable offence. Therefore, the case was registered on behalf of the State."
4. After necessary investigation the applicant was challaned before the learned Special Judge, Hyderabad.
5. A formal charge was framed against the applicant to which he pleaded not guilty.
6. At the trial prosecution examined Mohammad Ali Supervisor Primary Education, Taluka Hyderabad PW‑1, Chaudhry Bahadur Khan Head Master Al‑Farooq Primary School PW‑2, Khair Mohammad Primary Teacher PW‑3, Mohammad Lakha Dino Primary Teacher Al‑Farooq Primary School PW‑4. Mohammad Ilyas Clerk Directorate of Education who used to prepare pay bills PW‑5, Amir Ali Circle Officer who registered the case and conducted the investigation PW‑6. Zubair Ahmed who was primary teacher‑ Al‑Farooq Primary School at the relevant time PW‑7, Mohammad Rafiq Circle Officer ACE, Hyderabad, who had challaned the accused, PW‑8 and Akber Ali who conducted part of the investigation PW‑9.
7. An application under section 249‑A Cr.P.C. was moved on behalf of the applicant on 27‑11‑1986 but the same was dismissed on 13‑12‑1987. The present application is for the quashment of the above proceedings.
8. I have heard Mr. M.M. Aqil, learned counsel for the applicant, and Mr. S. Sarfraz Ahmed A.A.‑G. for the State.
9. It was contended by Mr. M.M. Aqil, Advocate that all the witnesses named in the challan have been examined by the prosecution but there is not iota of evidence to implicate the present applicant. That the proceedings pending against the applicant were an abuse of the process of the Court, and therefore, were liable to be quashed. That the evidence brought on record was such that the proceedings would not end in conviction of the applicant.
10. Mr. S. Sarfraz Ahmed A.A.‑G. in view of the above circumstances has conceded that since there was no evidence to show that it was the applicant who had obtained two jobs and had drawn pay from two places, the proceedings were liable to be quashed.
11. I have considered the contentions of the learned counsel and have gone through the evidence, the certified copies of which have been produced in record. I would have been too slow to interfere with the pending proceedings specially when they were at its fag end, but since the application was already admitted it would not have been proper to refer the applicant back to the trial Court.
12. Mohammad Ali PW‑1 has deposed that in 1981 he was Taluka Master Hyderabad Town. He used to disburse the salaries to all the Primary Teachers of Hyderabad Town. In fact he used to pay the salaries of the teachers to their concerned Head Masters who used to distribute the same amongst the teachers. According to him D‑sheets show that one teacher Sultan Mehmood son of Khushi Mohammad had received the salary from the month of January to August, 1981, and the sheets have been produced as Ex.5‑12. The said teacher had also received pay for the month of September vide supplementary bill and the same has been produced as Ex.13. In cross‑examination he has deposed that Exs.5 to 13 were signed by the Head Masters, and by the S.D.E.O, and they do not bear his signatures.
13. Chaudhry Bahadur Khan PW‑2 has deposed that he had been serving as Head Master in Al‑Farooq Primary School from 1978. He did not know accused Sultan Mehmood. He had not served as Teacher in their school. Somebody else used to draw the salary in his name. He himself used to distribute the salaries amongst the teachers, except the teacher Sultan Mehmood who had proceeded on leave. He was declared hostile and was cross‑examined by the PDSP, but nothing substantial was brought out from him. He has further stated that the staff of Taluka office used to pay the salary to the said teacher Sultan Mehmood, and that they used to simply obtain his signature on the certificate and D‑sheets. He has admitted that one Mohammad Ali Bhatti was Taluka Master, and his services were terminated on the charge of preparation of false D‑sheets.
14. Khair Mohammad P.W.3 has deposed that he served as Primary Teacher in Qazi Akber Primary School, Hyderabad from 1974. He worked as bill clerk upto 1982, in the office of S.D.E.O. Boys, Hyderabad. He did not know Sultan Mehmood personally but there was one teacher by name Sultan Mehmood who was transferred from Memon Anjuman School to Al‑Farooq Muslim School. The latter school and its affairs were being looked after by him. He had received his joining report from the Head Master perhaps in the month of July. He had attached the joining report with the pay bill. The copy of bill for the month of June, 1981 shows that Sultan Mehmood had joined the school on 27‑5‑1981. The said teacher Sultan Mehmood had drawn salaries for the month of June, 1981 and he (witness) had prepared such bill which he has produced as Exh.17. He was also paid the bill for the month of July, August and September, 1981 and the bills have been produced as Exhs. 18, 19 and 22. Later on Sultan Mehmood had gone on medical leave and such note had been put on the bill itself. Subsequently their office had received application for medical leave from 20‑9‑1981 to 31‑10‑1981, and the same has been produced as Exh.21. The S.D.M.O. had granted leave to Sultan Mehmood on full pay and the same was paid through a bill which has been produced as Exh.22. They had also received an application for grant of medical leave prior to the application Exh.21, and the same has been produced as Exh.23. In cross‑examination he has deposed that it was not within sphere of his duty to deal with leave applications.
15. Mohammad Lakha Dino P.W.4 has deposed that he is working as Primary Teacher in Al‑Farooq Primary School, Hyderabad since 1981. He did not know the accused present in Court. He did not know his name. However, he knew that one person was serving in A1‑Farooq Primary School and he was being called as Sultan Mehmood but he was a different person.
16. Mohammad Ilyas P.W.5 has deposed that in 1981 he was posted as clerk in the office of S.D.E.O., Hyderabad, and used to prepare the pay bills of the Nationalized Schools of that area. In fact Taluka Master was to distribute the salaries of the teachers to all the Head Masters of the Taluka who used to distribute the same to the concerned teachers, but he could also make direct payment to the teachers. He has produced two bills as articles B and C and entries as Exhs.29 and 30. In both the entries Sultan Mehmood is shown as son of Khushi Mohammad. He was posted in the Memon Anjuman Primary School No.l. In cross‑examination he has stated that personally he had no knowledge about the teachers working in those schools.
17. Ameer Ali, Circle Officer P.W.6 has deposed that on 27‑7‑1982 he was Circle Officer A.C.E., Hyderabad, when he received application from Ali Murad through S.P., A.C.E., Hyderabad containing allegations against Sultan Mehmood about his double service. He has produced the application as Exh.32, and the covering letter as Exh.33. He was directed through the said covering letter to hold enquiry, and after holding enquiry and recording statements of witnesses he lodged the F.I.R. on behalf of the State, which has been produced as Exh.48. He had also obtained specimen signature of accused Sultan Mehmood before Assistant Mukhtiarkar and A.C.M., Hyderabad. In cross -examination he has deposed that he had never seen that the accused Sultan Mehmood had been working and drawing salaries from the two schools, one at Dadu, and another at Hyderabad for the same period. He did not record the statement of Ali Murad as he was not traceable. He had made efforts to trace him out. It was the provision of law to record the statement of informant. He handed over the charge to Mr. Shafi Rana on 13‑11‑1982, who handed over the same to Mr. Akber Ali.
18. Zubair Ahmed ‑P.W.7 has deposed that in 1981 he was Primary Teacher in Al‑Farooq Muslim School, Hyderabad. Chaudhry Bahadur was Head Master of that school at that time. About 10‑12 other teachers were working in that school. There was one teacher by name Sultan Mehmood but according to him the accused present in Court was not amongst those teachers.
19. Mohammad Rafiq Inspector A.C.E. P.W.8 has deposed that in 1983‑84 he was Circle Officer A.E.C., Hyderabad in August 1984. He received papers of this case from his predecessor Akbar Ali for further investigation. He recorded the statements of P.Ws. Mohammad Riaz, Mohammad Lakha Dino, Zubair Ahmed and Ghulam Qadir. Thereafter, he challaned the accused before the Court.
20. Akbar Ali P.W.9 has deposed that on 27‑12‑1.982 he was Circle Officer A.E.C., Hyderabad City. On that date he received case papers of this case for further investigation. On 3‑4‑1984 he verified the statement of P.Ws. Mohammad Ali Bhatti, Mohammad Ilyas and Khair Mohammad. On 5‑4‑1984 he verified the statement of Bahadur Khan Head Master. On the same day he brought on record the statement of P.W. Anwar Ali the Principal of Commercial Training Institute, Dadu. On 29‑2‑1984 he received the original order of the appointment of accused Sultan Mehmood as Junior Instructor in Commercial Institute, Dadu. This he had received from the Director Technical Education, Karachi. He has produced the letter and the appointment letter as Exhs.54 and 55. On 5‑7‑1984 he recorded further statement of P.W. Bahadur Khan regarding handwriting and signature of accused Sultan Mehmood. On 20‑7‑1984 he handed over the papers of this case to his successor Mohammad Rafiq.
21. The perusal of the above evidence shows that none of the witnesses have implicated the present applicant in the above case. The witnesses who have been examined from the Education Department have even refused to identify the present applicant. The teachers as well as Head Master Ch. Bahadur Khan have clearly stated that present applicant was not the person who had worked in the two schools at Hyderabad as Sultan Mehmood. Even no witness has been examined from Technical College, Dadu, to show that the present applicant was the person who was appointed as Instructor there. So far as the evidence of P.Ws. Mohammad Rafiq, Akbar Ali and Ameer Ali is concerned it is formal in nature inasmuch as they do not know anything personally that it was the accused who had obtained appointment in respect of two posts during the same period and had drawn double pay from the Government. The certified copy of challan produced alongwith quashment application shows that no other witness remains to be examined which is clear even from the case diary, dated 13‑1‑1987 which shows that P.D.S.P. had requested for time' to close his side. The evidence which has been led by the prosecution does not prove any offence against the applicant and the case is not going to end in conviction. In Moula Bux and others v. The State and 2 others 1977 S C M R 292 it was observed by their Lordship of the Supreme Court that:‑ "in view of this position the learned counsel for the State was willing to concede that there was no possibility whatsoever of a conviction to be recorded against these appellants who were not identified by the officials of the Coast Guards and against whom there was no evidence at all.
22. The proceedings pending against those six appellants before the Court of learned Special Judge were, therefore, quashed."
23. In Khushi Mohammad and another v. The State 1973 P Cr. L J 609 it was observed that:‑ "prosecution eye‑witnesses not supporting prosecution case but completely exonrating accused /petitioners."
24. Proceedings were quashed.
25. In Mst. Zaitoon v. The State and another 1979 P Cr. L J 279 it was observed by this Court that:‑ "in this state of evidence I am of the opinion that the charge is not likely to succeed and the accused is bound to be acquitted and, therefore, continuation of the prosecution would be an exercise in futility.
26. It was further observed that:‑ "all evidence which the complainant relies upon even if it is believed would not disclose a commission of an offence by the petitioner. and the proceedings were therefore, quashed. In this case, well known decision of his Lordship late Mr. Tufail Ali Abdur Rehman, C.J. (as he then was) reported in P L D 1973 Kar. 478 was relied upon.
27. In Zaheer Ahmad and 2 others v. The State P L D 1979 Kar. 168 Sajjad Ali Shah, J. has observed that:‑ "interference by way of inherent jurisdiction is permitted only in limited cases where it is found that proceedings impugned, if allowed to continue, would defeat the ends of justice. In the instant case it is my irresistible conclusion that prosecution case has no legs to stand on and is bound to end in acquittal if permitted to continue. Such proceedings before the trial Court would only cause harassment to an innocent party to bring about unnecessary and undue delay which clearly would amount to abuse of the process of the Court."
28. In view of the above discussion and the legal position, I am of the considered view that the proceedings pending against the applicant are not going to end in conviction, and therefore, it will be an abuse of the process of the Court if the same are allowed to be continued with. I, therefore, allow this application, and quash the proceedings pending against the applicant under section 420, P.P.C. read with section 5(2) of Act II, 1947 before the learned Special Judge, Hyderabad.
29. I had allowed this application on 22‑11‑1987 by a short order, and these are the reasons for the same.
30. M.Y.H./S‑195/ K Petition allowed.