KARIM BUX Versus State
ABDUL MAALIK GADDI, J .---By this common judgment, I intend to dispose of the captioned appeals, as these appeals are related to same FIR as well as arising out of same incident.
2. By means of these appeals, the appellants have challenged the judgments dated 07.08.2018, passed by the Court of learned Special Judge Anti-Corruption (Provincial), Karachi, in Special Case No.58 of 2015, emanating from Crime No.35 of 2015, registered at ACE, Karachi, under sections 409/467/468/471/34, P.P.C., read with section 5(2) of Prevention of Corruption Act-II, 1947, whereby the learned trial Court after full dressed trial, convicted and sentenced the appellants as stated in findings of point No.2 of the impugned judgment. For the sake of convenience, it would be appropriate to reproduce the findings of point No.2 of the impugned judgment, which read as under:-
"POINT NO. 2.
In view of my findings in foregoing points, I am of the humble opinion that prosecution has been succeeded to bring the charge at home beyond any reasonable doubt. I therefore convict them under section 245(2), Cr.P.C. for the offence under section 420, P.P.C. and to suffer R.I for 03-years so also to pay fine of Rs.10,000/- or in default to suffer S.I for 03-months more. They are also convicted for the offence under section 409, P.P.C. and to suffer R.I for 03-years each so also to pay fine of Rs.20,000/- each or in default to suffer S.I for 04-months more. They are also convicted for the offence under sections 468/471, P.P.C. and to suffer R.I. for 03-years each so also to pay fine of Rs.15,000/ - each or in default to suffer S.I for 03-months more. They are further convicted for the offence under section 5(2), Prevention of Corruption Act, 1947 and to suffer R.I. for 04-years so also to pay fine of Rs.25,000/- or in default to suffer S.I. for 05-months' more. All the sentences shall run concurrently. The benefit of section 382-B, Cr.P.C. is also extended to accused. They are present on bail and taken into custody and remanded to Prison to serve out aforesaid sentences. Their bail bonds stand cancelled and sureties discharged.
Note: A copy of this Judgment be handed over to accused at free of cost.
So far as case against absconder accused/fake PST Ghulam Hussain son of Yaar Muhammad, is concerned, be kept on dormant file till his arrest or otherwise.
Before parting from this judgment, I am fortified to the letter dated 08.09.2015 issued by accountant General Sindh (Ex.12/H) to IO, wherein it was depicted that inspeate of fabricated personal number and NIC their office released the salary to the fake PST-Ghulam Hussain by issuing the salary slips (Ex.9/A to Ex. 9/C), despite of that IO knowingly as well as intentionally had not taken the action against delinquent officials of AG Sindh. Even the officer of ACE who approved the recommendation of IO in CFR arbitrarily without scrutinizing the investigation approved the same, for the reasons best known to him. Hence a copy of this judgment be sent to the Director-ACE for his information and necessary action to appreciate their slogan i.e. "SAY NO TO CORRUPTION".
3. Facts necessary for the disposal of instant appeals as per FIR lodged by the complainant are that one Karim Bux Burdi, the then ADO Education Lyari Town (now retired) have made bogus appointments of PSTs after getting bribe. Drawn loan from National Bank of Pakistan against salary advance scheme in the name of PSTs. During the course of enquiry, statements of concerned persons were recorded and photocopies of relevant record were secured. At the end of enquiry, it has been established that a case FIR No.18 of 2009 of ACE Karachi was registered regarding fake appointments. Moreover, the allegations of obtaining advance salary loan from NBP Denso Hall Branch by Aijaz Hussain Head Master in the name of his brother Ghulam Hussain who is not government servant, on the basis of fake documents i.e. salary slip, service identity card, such loan application was addressed by Ejaz Hussain, verified by Superintendent Mushtaque Ahmed and signed/ recommended by ADO Karim Bux Burdi. Thereafter, processed by Bank Manager Muhammad Mirajul Haq and Credit Officer Arif Yousuf of NBP Denso Hall Karachi. The amount of Rs.96000/- were passed and paid. The following accused were found to prepare and managed fictitious record in respect of loan drawn in fake employees Ghulam Hussain brother of Ejaz Hussain, Head Master has been proved as they with their joint hands and common intention have committed cognizable offence. i. Ejaz Hussain, Head Master GBP School Lyari Town, Karachi. ii. Karim Bux Burdi, the then ADO Education Lyari Town, Karachi. iii. Mushtaque Ahmed, Office Superintendent/ADO Lyari Town, Karachi. iv. Muhammad Mairaj-ul-Haq, Bank Manager. v. Arif Yousuf Credit Officer NBP Denso Hall Branch, Karachi. vi. Abdul Samad, Supervisor Education. vii. Aijaz Ali Abbasi, Supervisor Education. viii. Ghulam Husain son of Yar Muhammad private.
4. It appears from the record that after investigation, an interim charge sheet was submitted by Assistant Director, Abdul Jabbar Kaim Khani of ACE South Zone Karachi, wherein the accused Ejaz Hussain and Ghulam Hussain were shown as absconders, whereas, accused Karim Bux Burdi and Abdul Samad were shown in custody and accused Muhammad Mairaj-ul-Haq and Aijaz Ali Abbasi were shown on bail. He also submitted final charge sheet, wherein accused Ejaz Hussain and Ghulam Hussain were shown as absconders and accused Muhammad Mairaj-ul-Haq, Arif Yousuf, Aijaz Ali Abbasi and Mushtaq Ahmed were not sent up for trial, whereas, accused Karim Bux Burdi and Abdul Samad were shown on bail.
5. The formal charge was framed against the appellants/accused Karim Bux Burdi and Abdul Samad on 09.05.2016 at Ex.2, to which they pleaded not guilty and claimed to be tried vide their pleas at Exs.3 and 4 respectively, as co-appellant namely, Ejaz Hussain was shown as absconder.
6. At trial in order to substantiate the accusation against the appellants, prosecution had examined the following witnesses:-
(i) PW-1 Haji Jalal Shah being Head Master (lyari town) at Ex.5;
(ii) PW-2 Shaikh Muhammad Nadeem being School Teacher (new Karachi) at Ex.6;
(iii) PW-3 Muhammad Waseem being School Teacher (Lyari town) at Ex.7;
(iv) PW-4 Muhammad Saeed being Primary School Teacher at Ex.8, who produced attested copy of advance salary performa, attested letter of opening of salary account, attested copy of application for advance salary-loan, ADOE letter dated 15.07.2005 addressed to Manager NBP for said Ghulam Hussain, his application for account opening, attested photocopy of service card of said Aijaz and Ghulam Husain at Ex.8/A to Ex.8/E respectively;
(v) PW-5 Hussain Bux being Supervisor Jamshed Town at Ex.9, who produced copies of salary slips of Ghulam Hussain at Ex.9/A to Ex.9/C respectively;
(vi) PW-6 Waseemul Hassan being mashir at Ex.10, who produced copy of mashirnama of arrest and personal search of accused Abdul Samad at Ex.10/A;
(vii) PW-7 Ghulam Sabir Ali being mashir of arrest at Ex.11, who produced copy of mashirnama of arrest of accused Karim Bux Burdi at Ex.11/A;
(viii) PW-8 Abdul Jabbar Khan being author of FIR as well as investigating officer at Ex.12, who produced letter for lodging of FIR, FIR, letter to Manager NBP Denso-Hall Branch, letter to AG Sindh, Karachi, copies of service certificate, salary certificate, bank certificate dated 25.11.2009 and accounts branch of AG Sindh letter dated 08.09.2015 at Ex.12/A to Ex.12/H respectively.
These witnesses were cross-examined by the Counsel for the appellants and thereafter, prosecution had closed its side vide statement at Ex.13.
7. It also appears from the record that during proceedings before the trial Court, co-appellant namely, Ejaz Hussain surrendered before the trial Court and joined the trial on 05.01.2018 by obtaining pre-arrest bail, which was confirmed on 01.02.2018 and after supplying of copies to him at Ex.14, an amended charge was framed against all three appellants/accused at Ex.15, to which they pleaded not guilty and claimed to be tried vide their pleas at Exs.15/A to 15/C respectively. Thereafter, learned APG for the State filed statement at Ex.16 and learned advocate for the accused-Ejaz Hussain, who joined later, wherein he adopted the chief as well as cross-examination of the PWs already recorded by this Court, upon notice, learned defence advocate also adopted the same except cross-examination of PWs-4 and 8, same was allowed by learned defece advocate for accused Ejaz. After that, prosecution again closed the side vide statement at Ex.17.
8. Statements of appellants/accused were recorded under section 342, Cr.P.C. at Exs.18 to 20 respectively, in which they denied the allegations as levelled against them and claimed to be innocent and prayed for justice. However, appellants neither examine themselves on oath, nor, they led any evidence in their defense.
9. Learned Counsel for the appellants contended that appellants are innocent and have been falsely implicated in this case; that the impugned judgment passed by the trial Court is against the law and on facts; that the FIR has been lodged after the delay of about ten (10) years, but the prosecution was miserably failed to explain such delay; that as per statement of Bank Manager, the loan amount was returned to the concerned bank on 24.07.2007; that Ghulam Hussain son of Yaar Muhammad having CNIC No.42301-0746262-3, account No.5814-8, National Bank of Pakistan, Denso Hall Branch, Karachi, has already paid the loan amount mentioned in the FIR; that learned trial Court has failed to consider the documentary evidence available on record; that the impugned judgment is based upon erroneous and incorrect exposition of fact as well as law, therefore, the same is liable to be set-aside being bad in the eye of law; that the impugned judgment has been passed by the trial Court in hot haste and hurry manner, which is contrary to the law on the point as well as fact and as such is not tenable in the eye of law, therefore, the same is liable to be set-aside; that the evidence so brought on record by the prosecution witnesses are contradictory to each other on material particulars of the case. During the course of arguments, learned Counsel for appellants have taken to me towards the evidence of prosecution witnesses and highlighted the number of contradictions, infirmities and lapses in between the statements of prosecution witnesses, therefore, according to them, on the basis of contradictory evidence, conviction could not be maintained, hence, prayed for acquittal of appellants.
10. In contra, learned Additional Prosecutor General, Sindh for the State has supported the impugned judgments passed by the trial Court and contended that all the PWs have fully supported the case of prosecution. He further contended that the offence committed by the appellants are serious and heinous in nature, thus, appellants are not entitled for any relief.
11. I have given my anxious thoughts to the contentions raised at the bar and have also gone through the case papers so made available before me.
12. After going through the record, I have come to the conclusion that the prosecution has failed to establish its case against the appellants for the reasons that the alleged incident took place during the year 2005, whereas, the FIR of the said incident was lodged on 26.08.2015 after the delay of about ten (10) years by the Assistant Director, ACE South Zone, Karachi, for which no explanation has been furnished, therefore, on this ground alone, false implication of the appellants in this case with due deliberation could not be ruled out. It is noted that in this case FIR was lodged by the complainant Abdul Jabbar Kaim Khani, Assistant Director, ACE South Zone, Karachi, but on perusal of challan sheet, it appears that the said complainant himself was also the investigating officer of the case. In such situation, in my view, no doubt that no specific bar exists under the law against complainant, who is the investigating officer of the case but being complainant himself and investigating officer of the case, it cannot be expected that he will collect any material which goes against the prosecution or gives any benefit to the accused. In such circumstances, evidence of such officer therefore, appears to be weak piece of evidence and for sustaining a conviction it would require independent corroboration which is lacking in this case. In this regard, I am supported with the cases of Nazir Ahmed v. The State reported in PLD 2009 Karachi 191 and Muhammad Khalid v. The State reported in 1998 PCr.LJ 808.
13. It is also noted that in this case, eight (8) accused have been nominated in the FIR, including present appellants, whereas, during investigation, the accused Mairajul Haq, Asif Yousuf, Ijaz Ali and Mushtaq Ahmed have not been challaned because of insufficient evidence against them, whereas record also shows that the allegations against the present appellants and those accused, who have not been challaned are appeared to be same. The whole case of the prosecution is based upon the documentary evidence i.e. Ex.8/A to Ex.8/E respectively (alleged attestation of these documents by appellants through their signature) produced by the PW-4 namely, Muhammad Saeed, who according to the prosecution case, was well conversant with the signature of the appellant Ejaz Hussain. Even otherwise, it is the case of prosecution that the present appellants are involved in committing cheating and forgery as the appellants have facilitated and attested the documents of accused Ghulam Hussain and in this connection, prosecution has produced the evidence of PW-4 namely, Muhammad Saeed, who during his evidence has produced the documents i.e. Ex.8/A to Ex.8/E respectively. These documents pertaining to allege attestation by the appellants in favour of Ghulam Hussain for advance salary. It is noted that accused Ghulam Hussain has been declared as proclaimed offender, but it is pointed out by the learned Counsel for the appellants that said Ghulam Hussain has been died by his natural death. This position has also not been disputed by the learned Additional Prosecutor General, Sindh. On perusal of these documents i.e. Ex.8/A to Ex.8/E on record of trial Court, it reveals that allegedly the attestation and verification of these documents were made by appellants. The signatures on these documents have been seriously disputed by the learned Counsel for the appellants and submits that these signatures do not belong to appellants, but learned trial Court while delivering the judgment accepted this evidence without referring the documents to handwriting expert for comparison and opinion.
14. There is no second cavil to these propositions that there are allegations against the appellants that they attested forged documents, including Ex.8/A to Ex.8/E, which are application form of National Bank of Pakistan for advance salary, letter to Manager National Bank of Pakistan for opening of salary account, application for account opening issuance of terms deposit receipt, documents to be obtained from various types of customers/account holder(s) under regulations form and rules and regulations, but it is an admitted fact that the prosecution has failed to procure the report of handwriting experts to establish forgery on the part of the appellants on the basis of false attestation through signature of the appellants, but herein this case, neither Presiding Officer of the learned trial Court himself compared the signatures over these documents, nor sent the same to the handwriting experts for its opinion, as envisaged under Articles 59 and 84 of the Qanun-e -Shahadat Order, 1984. As observed above, learned trial Court accepted the evidence of PW-4 Muhammad Saeed, who only allegedly was well conversant with the signatures of the appellants, although, professional jealousy has been alleged by the appellants against him. However, learned trial Court accepted the evidence of PW-4, which appears to be very weak evidence in nature. I have gone through the case of Mian Muhammad Noorul Haq v. State reported in PLD 1958 Dhacca 341, wherein it has been observed that the reliance of comparing of the signature by the Court with admitted signatures would be dangerous without aid of an experts and conviction on such comparing was declared unsafe. In this regard, I am also supported the cases of Muhammad Arif v. The State and another reported in 2014 PCr.LJ 1556, Muhammad Irfan v. The State and 3 others reported in PLD 2015 Lahore 78, and Muhammad Anwar v. State reported in 1984 PCr.LJ 1320.
15. After going through the evidence on record and after perusing the impugned judgment, it appears that the learned trial Court before believing the signatures of the appellants on said documents, did not follow the said Articles. Neither Presiding Officer of the learned trial Court obtained the specimen signatures of the appellants present before him in Court for comparing the same himself, nor he sent their signatures to the handwriting experts for verification. Under the circumstances, it could not be safe to hold that the signatures on the said documents i.e. Ex.8/A to Ex.8/E pertains to the appellants or otherwise; this aspect of the case creates seriously doubt in the prosecution case. It is also noted that the alleged loan amounting to Rs.96,000/- obtained by the accused Ghulam Hussain has also been returned to the National Bank of Pakistan, Denso Hall Branch, Karachi on 24.07.2007 even before the registration of the FIR, but the learned trial Court while handing down the impugned judgment did not discuss this aspect of the case and convicted and sentenced the appellants as stated in the introductory para of the impugned judgment. Even, this fact has also not been mentioned in the challan. It is also noted that no departmental inquiry was initiated against the present appellants, which also makes the case of prosecution to be doubtful one. When all these lacunas, infirmities and lapses were confronted to learned Additional Prosecutor General, Sindh for reply, he has no satisfactory answer with him.
16. Keeping in view of the above, I am of the firm view that the Presiding Officer of the learned trial Court acted erroneously, in the matter, with misconception and misinterpretation and dispose of the matter purely on non-appreciation and non-application of the required norms of law and that of justice. Consequently, I allow these appeals, set aside the impugned Judgment dated 07.08.2018 and acquit the appellants from the above charge. Appellants are present in Court on bail, therefore, their bail bonds are cancelled and sureties stand discharged.
SA/K-5/Sindh Appeals allowed.