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Petitioner: BAHADUR KHAN VS Respondent: THE STATE-
Court Name: Sindh High Court Judge(s): Imdad Ali H. Agha Title: BAHADUR KHAN vs THE STATE- Case No.: Criminal Appeal No. 426 of 1971 Date of Judgment:1972-12-15 Reported As: 1975 P Cr. L J 141 Result: Appeal allowed
JUDGMENT
JUDGMENT The appellant Bahadur Khan, who was a public servant at the relevant time, has been convicted by the learned Special Judge-cum-Enquiry Officer Anti-Corruption, Hyderabad under section 409, P. P. C. Read with section 5(2) of the Prevention of Corruption Act, 1947. He has been sentenced to five yeas' R. I. And to pay a fine of Rs. 50,000 or in default thereof to suffer five years more R. I. The appellant being aggrieved by the above decision of his conviction and sentence has now appealed to this Court. 2. The relevant facts of the prosecution case briefly stated are these. Dr. Irshad Muhammad (P. W. 6) was the Medical Superintendent of the T. B. Sanitorium, Kotri from 15-8-1966 and continued to hold that post up to 25th August, 1969 when he was transferred. During all that period the present appellant Bahadur Khan was the Head Clerk-cum-Cashier in the office of the P. W. Dr. Irshad Mohammad in the Sanitorium. Salahuddin Ahmed (P. W. 2) was one of the Stewards in the T. B. Sani--torium. Abdul Majid (D. W. 2) was senior bill clerk in the Sanitorium and Abdullah (D. W. 3) was a peon of M. S P. W. Dr. Irshad Mohammad. On 15-7-1969 Martial Law Inspection Team, Hyderabad headed by Lt.-Col. Agha Zalfiqar A.I Khan, who was the Chairman of this Inspection Team, desired to make a surprise inspection of the Kotri T. B. Sanitorium office as it appears that P. W. Salahuddin Ahmed, the said Steward, had moved applications which he had sent to the Director of Health and also, as it appears, to the Martial Law Authorities complaining that he had not received his leave salary Rs. 241.66 for the period 19-4-1969 to 18-5-1969 when he was on leave, although he had made a demand for the same from the office of the T. B. Sanitorium. Faqir Muhammad (P. W. 3), Sub-Inspector Anti-Corruption Establishment, Hyderabad was deputed by Dy. S. P. Anti-Corruption Mr. Wazir Hussain Shah to join the said Martial Law Team in the inspection
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of record of the T. B. Sanitorium, Kotri. Mr. Sirajuddin Ahmed Khan Inspector Police, C. I. A. Had also accompanied him alongwith the Martial Law Team. Martial Law Inspection Team went to the T. B Sanitorium, Kotri where they met the Medical Superintendent P. W. Dr. Irahad Muhammad. The Martial Law Inspection Team demanded the information about encashment of the bill of Rs. 241.66 of the Steward P. W. Salahuddin. The Medical Superintendent Dr. Irshad Muhammad produced Salahuddin's file and took out office copy of Salahuddin's bill therefrom. The Medical Superintendent sent for the Cash Book but found that there was no entry in the cash book about this bill. A Captain of the Martial Law Team was also In the Team present there. The S. I. P. W. Faqir Mohammad secured the office copy of this bill of Salahuddin and also secured the cash book as per Mashirnama Exh. 7 which was attested by P, W. Dr. Irshad Muhammad and one Imdadally as mashirs. The office copy of Salahuddin's bill has been produced as Exh. 8. The cash book which was secured contains entries from 12-4-1969 to 14-7-1969. The monthly expenditure bill register which contained entries from 26-6-1969 to 24-7-1969 was also secured by the S. I. And has been produced as Exh. 11. The said S. 1. Anti-Corruption did not find the relevant entry of the bill of Rs. 241.66 of Salahuddin in the cash book on the date I.e. 16-6-1969 which book was maintained by the appellant. The S.I. Anti-Corruption has also produced the sanction of the bill of Salahuddin I.e. Exh. 8 as Exh. 9. He has then produced the cash book secured by him as Exh. 10. There after he put the appellant under arrest under the orders of the Martial Law Inspection Team and S. I. P. Anti- Corruption registered a case against the appellant for defalcation of this bill Exh. 8 against the appellant and he recorded a First Report Exh. 12 in regard to this offence. It appears from the evidence that this bill of P. W. Salahuddin for Rs. 241.66 was en-cashed by the appellant after getting it passed from the National Bank of Pakistan, Hyderabad which the appellant admits in his statement under section 342 Cr. P. C. The S. I. Anti-Corruption then transferred the case of the defalcation of Salahuddin's bill to Anti-Corruption Police, Dadu. In July, 1969 Inam A.I (P. W. 4) was the Circle Officer Anti-Corruption at Dadu. He received the case papers in respect of Salahuddin's bill from Dy. S. P. Anti-Corruption, Hyderabad. He then reregistered the case at his end also. Thereafter, he came down to T. B. Sanitorium, Kotri where he examined P. W. Dr. Irshad Muhammad Medical Superintendent T. B. Sanitorium. He also examined Senior Clerk D. W. Abdul Majid and Peon D. W. Aminullah. He also interrogated the appellant who was in custody already. P. W. Inam A.I then made enquiry in writing from Manager National Bank of Pakistan, Risala Road, Hyderabad by a letter to him which he has produced as Exh. 14. Ho received a reply from the said Manager which has been produced as Exh. 4. In this letter of reply the Bank Manager has stated that on 26-4-1969 three bills bearing No. (1)1723) for Rs. 241.66, (2) bearing No. 1724 for Rs. 344 and the (3) bearing No. Nil for Rs. 40,894 27 were en-cashed and paid to Bahadur Khan (appellant) who had identity card No. 1730. It might be stated here that the appellant in his statement admits having cashed all these three bills just mentioned and received the total amount also just mentioned above from the National Bank of Pakistan on 16-6.1969. Circle Officer P. W. Inam A.I in the meantime continued to make efforts to obtain the original bill of Salahuddin. He then received a letter from the Anti- Corruption Officer, Hyderabad about the defalcation of Rs. 40,894.27. He produced this letter which was in fact the letter written by the Director Health Services Mr. Qazi to the Anti-Corruption Officer, Hyderabad on 3rd September, 1969 and he has produced this letter as Exh. 15. Alongwith this letter was also enclosed the copy of letter written by Medical Superintendent P. W. Dr. Irshad Muhammad dated 26-7-69 to Dr. A. M. Qazi, Director Health Services, Hyderabad Region, Hyderabad. As the letters disclosed the defalcation of Rs. 40,894 27 by the present appellant the Circle Officer P. W. Inam A.I registered a case for this defalcation against the appellant. He produced the report of this case as Exh. 26 and it was registered on 10-10-1969 at 2-30 p.m. P. W. Inam A.I then made enquiries from P. W. Dr. Irshad Muhammad about the last mentioned defalcation as well as from senior cleric D. W. Abdul Majid, clerk Allah Bux D. W. 1 and peon D. W. Aminullah. He then received the three bills
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amounts which totalled up to Rs. 41,749.93. He then took all these bills of P. W. Salahuddin and that of WAPDA which was for Rs. 40,894.27 against the T. B. Sanitorium, Kotri, and lie verified these facts from all concerned. The Medical Sup:riutendent P. W. Dr. Irshad Muhammad had been transferred by this time. P. W. Inam A.I then recorded further statement of Peon D. W. Aminullah and D. W. Abdul Majid, senior clerk. He was himself then transferred in April 1971. He also produced in evidence two orders for permission to investigate the two registered cases of the above mentioned two defalcations detained from the Civil Judge and F. C. M., Kotri and another from Resident Magistrate, Dadu which he has produced as Exhs. 17 and 28. On 1-6-1972 Anti-Corruption Officer, Akhtar Muhammad took over charge at Dadu. He also continued the investigation of the two said cases further. He has produced in his evidence a letter of WAPDA who had reported that they had not received payment of Rs. 40,894.27. This letter he has produced as Exh. 20. He then examined P. W. Salahuddin and also produced two sanctions for prosecution orders of the appellant for the registered cases as Exhs. 21 and 22. He then challaned the appellant in these cases on 19-7-1971 to the trial Court. At the trial the prosecution examined six witnesses, namely Affan Ahmed (P. W. 1) Manager National Bank of Pakistan, Risala Road Branch, Hyderabad, Steward Salahuddin Ahmed (P. W. 2) S. 1. P. Anti --Corruption, Hyderabad Faqir Muhammad (P. W. 3), Anti-Corruption Circle Officer, Dadu Inam A.I (P. W. 4), another Anti-Corruption Circle Officer Dadu Akhtar Muhammad (P. W. 5) and Medical Superintendent of the T. B. Sanitorium, Kotri Dr. Irshad Muhammad (P. W. 6) after consolidating the two cases together. 3. After the evidence of the prosecution was closed the statement of the appellant under section 342, Cr. P. C. Was recorded. The appellant denied his guilt and professed innocence. He, however, admitted that at the relevant time he was dead-clerk and Cashier as well in the office of T. B. Sanitorium, Kotri. He also admitted that WAPDA electricity bill for Rs. 40,894.27 which is Exh. 24 on record was received in the office of the T. B. Sanitorium on 31st May, 1969. The appellant denied that he had prepared the bill for payment of Rs. 40,894.27. According to him Peon Aminullah had brought the authority of this bill for encashment of the said amount at his house as he was on casual leave on 16-6-1969 and the peon had also brought two other bills as well. The appellant admitted that he got the bill for Rs. 40,894.27 encashed and he further admitted that he had got the other two bills encashed as well on the same date. When questioned as to why he had not made an entry regarding this bill of payment to WAPDA in the cash book, Exh. 10, he gave his own version of the whole matter which it will be useful to reproduce in extenso in his own words and is as under:- "I was on casual leave from 14-6-1969 to 17-6-1969. On 16-6-1969 Aminullah came to me at my house. He gave these three bills one of WAPDA, second of Salahuddin Steward 241.66 and Allah Bux for 344. He informed me that these bills to be cashed as ordered by the Sahib, though I told him that I was on leave he told me that the WAPDA will disconnect the electric connection for non--- payment of the bill. I went to Treasury Office with Aminullah, My house is near the bank. I told Aminuliah that I will not pay him so much money. I told him that he may go and inform Dr. Sahib Irshad Muhammad that the bills bad been cashed and the cash was with me. Aminullah went away to Sanitorium. After one hour and half Dr. Irshad Muhammad our Sahib came to my house in his car alongwith Aminullah. He demanded the cash .Of the bills. I handed over the cash of these three bills to Dr. Irshad Muhammad in the presence of Aminullah. Dr. Irshad went back with all the money. I resumed duty on 17-6-1969. I wanted to make entry in the cash book on that day. I demanded the office copy of the bill and receipt of bills, for payment to all concerned. Dr. Irshad Muhammad told me that he had paid up the bill of WAPDA and after clearing the remaining two payments he will hand over the receipts to me alongwith office copies of the bills for making entries in the cash book. Dr. Irshad Muhammad asked me to make the entries in the cash book and he will sign but I did not agree to do so. I bad made the entries on 16-6-69 for the receipts made
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over to me, on that day with regard to X-Ray fees amounting to Rs. 5. The M. S. Signed and initialled that entry." 4. In a further question that he had maintained the bill register but be had not made the entries of two bills namely, the WAPDA bill for Rs.40,894.27 and Steward Salahuddins leave bill for Rs. 241.66, he replied that the bill register with entry Exh. 27 was maintained by the bill clerk Abdul Majid. He also said that there was entry of leave salary bill in the bill register. He then stated that it was the duty of Abdul Majid clerk to make the entries of all the bills including this bill of WAPDA. He then added that the original bill for WAPDA for payment to WAPDA is neither prepared by him nor the Accounts Clerk Abdul Majid. In answer to a further question that he had misappropriated Rs. 40,894.27 without making the payment to the WAPDA towards electric charges he replied in the negative and said that he had handed over the cash to Dr. Irshad Muhammad. To another question to the effect that the Martial Law Team paid the visit to the Sanitorium suddenly and called upon him (the appellant) in the presence of Medical Superintendent and directed him (the appellant) to produce the cash book which the appellant brought under the orders of the Medical Superintendent and then he was taken into custody, he said that the Martial Law Team visited their hospital and called upon him to show the entry in the cash book which he showed to them and it was the entry on 16-6-1969 in the cash book with regard to Salahuddin. The appellant then categorically admitted that he had cashed and collected the amounts on the three bills Nos. 1723 for Rs. 241.66 another bill for Rs. 344 and the third bill for Rs.40,894.27 from National Bank of Pakistan on 16-6-1969 under Identity Card No. 1780 as revealed by Manager, National Bank of Pakistan, Risala Road, Hyderabad, Mr. Iffab Ahmed in his evidence to which question he replied in the affirmative. When asked as to why he had not entered the WAPDA bill in the Contingent Register maintained by him in the month of June, 1969 be stated that his explanation was the same as regarding the cash book for not entering this amount of WAPDA Bill in contingent register. In reply to the question as to why the prosecution witnesses deposed against him he stated that Dr. Irshad Muhammad alone has made statement to save himself and no one also had implicated him. 5. Before the statement of the appellant was recorded by the, trial Court under section 342, Cr. P. C. P. Dy. S. P. Who was handling the prosecution made a statement in writing Exh. 28 to the trial Court to the effect that he had given up P. Ws. Allah Bux, Abdul Majid and Aminullah being, according to him, formal witnesses on the point on which evidence had already come up on record. Then appears an application having been made by counsel for the defence as Exh. 29 wherein it was requested to the trial Court that the accused (appellant) would require all these three P. Ws. Aminullah, Allah Bux and Abdul Majid for defence. 6. The appellant in fact examined these witnesses in defence who are to repeat, Allah Bux (D. W. 1), Abdul Majid (D. W. 2), and. Aminullah (D. W. 3). 7. The prosecution have examined six witnesses who are Bank Manager Affan Ahmed (P. W. 1), Steward of the Sanitorium Salahuddin Ahmed (P. W. 2), Circle Officer Anti-Corruption Inam A.I (P. W. 4), another Circle Officer Anti-Corruption Akhtar Muhammad (P. W. 5) and Medical Superintendent of the T. B. Sanitorium concerned Dr. Irshad Muhammad (P. W. 6). The prosecution case mainly rests on the solitary evidence of P. W. Dr. Irshad Muhammad and other documentary evidence which relevant documents shall be referred to in discussion of the evidence presently. 8. It will be seen from the statement of the appellant Bahadur Khan as per an explanation given by him therein giving out his version that he --admits having encashed three bills from the National Bank of Pakistan, Hyderabad on 16-6-1969, which bills are:--- (1) Bill No. 1723 for Rs. 241.66 which were arrears of leave salary, of Steward P. W. Salahuddin Ahmed for the period 29-4-1969 to 18-5-1969 (one month's pay), (2) Bill No. 1724 for Rs. 344.C0 which was the G. P. Fund of the employee of this Sanitorium of Allah Bux (P. W. 1), and
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(3) the bill of the WAPDA electric charges without number amounting; to Rs. 40,894.27; and they totally involved the amount of Rs. 41,479.93. At the time the-- appellant encashed the above referred to three bills Peon of his T. B. Sanitorium, namely, Aminullah (D. W. 3) was also along with him as it was the practice of the office of the T. B. Sanitorium that when the amount of the bill was less than Rs. 1,000 00 the appellant himself used to go and draw the same from the Bank but if the amount was more than Rs. 1,000.00 to be drawn from the Bank, he had to take the peon with himself which facts have been stated by P. W. Dr. Irshad Muhammad, Medical Superintendent himself in his examination-in-chief Peon D. W. Aminullah also says that he had accompanied the appellant on 16-6-1969 when all the three bills mentioned above were cashed by the latter from the National Bank of Pakistan. The explanation of the appellant further is that after encashing the above three bills ha brought the total amount of Rs. 41,479.93 to his house alongwith the Peon D, W. Aminullah whom be refused to give this huge amount of money as perhaps the latter was a peon and was not being trusted by the appellant with so large a sum of money. The appellant further says in his statement that he had told the Peon P. W. Aminullah that he may go and inform the doctor Sahib (Dr. Irshad Muhammad) that the bills had been cashed and the cash was with him (the appellant). D. W. Peon Aminullah also says in his evidence that he had informed the Medical Superintendent that is Dr. Irshad Muhammad that all the three bills had been cashed and the money was lying with Bahadur Khan the appellant. Thereafter, the appellant's version, is that the Medical Superintendent P. W. Dr. Irahad Muhammad himself came in his car alongwith the Peon D. W. Aminullah and recovered the entire total amount of Rs. 41,479.93 which he had encashed on the three bills mentioned above from the National Bank of Pakistan and the doctor went away in his car. The question, therefore, on this version of the case by the appellant that falls to be determined is whether the version of the appellant just mentioned above is reasonably true or are the allegations made in the prosecution case against the appellant true or correct? In deciding this question the learned counsel for the appellant has cited a case of Mir Ahmed v. The State (PLD 1962 SC 489), principle laid down in which cases according to him be kept in view by this Court in deciding upon the correctness or otherwise of the version of the defence as put forward by the appellant. Their Lordships of the Supreme Court in this reported case have observed as under:- "Where there is a question of the correct treatment of a plea in defence which is of the factual nature and is supported by evidence and circumstances the decision must not be taken in relation to the accused's special pleading, but must rest on examination of the entire evidence, and if thereafter the Court is of the opinion that there is reasonable possibility that the defence put forwarded by the accused might be true, this opinion reacts upon the whole case, and the accused is entitled to the benefit of such doubt, on the ground that the prosecution has not proved its case beyond reasonable doubt." So that in view of the above principle enunciated by the supreme Court it is to be seen whether the defence of the appellant might be true or not? 9. In the defence version put forward by the appellant the appellant does not stand alone on his own explanation under section 342, Cr. P. C. But he has led defence evidence of three witnesses, whose names have already been mentioned above and he stands corroborated by the defence evidence also as will be discussed presently. 10. It is admitted by P. W. Dr. Irshad Muhammad, the Medical Superintendent of the Sanitorium in his cross-examination that the WAPDA electricity bill of Rs. 40 894.27 was not prepared by the appellant, but it was prepared by one of the clerks either Abdul Majid (who has been examined as D. W. 2), or Qureshi Yousaf A.I. But D. W. Abdul Majid in his evidence says that he was the senior bill clerk and used to prepare the bills for making various payments but he has not prepared the WAPDA electric bill in question. The appellant also in his statement denies that he himself has prepared the WAPDA electricity bill in question. In fact D. W. Abdul Majid also says that he had
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prepared the other two bills, namely, regarding the payment of arrears of salary to P W. Salahuddin and that of G. P. Fund of Allah Bux and these two bills were also not prepared by the appellant. So that all the three bills which have been admittedly cashed by the appellant on 16-6-1969 from the National Bank of Pakistan at Hyderabad have not been prepared by the appellant. In fact the duty for preparing the bills for payment in the Sanitorium was of D. W. Abdul Majid, who has stated so in his evidence. 10A. It is also an admitted position as deposed to by P. W. Dr. Irshad Muhammad that on 16-6-1969 when the three bills in question were encashed by the appellant the latter was on casual leave. In fact the appellant appears to have been on Casual Leave from 14-6-1969 to 17-6-1969 when on the last mentioned date he resumed his duty as explained by him in his statement under section 342, Cr. P. C. In support of this fact that he was on Casual Leave on these three days, Allah Bux (D. W. 1) has produced casual leave Account Register and the relevant entry regarding the casual leave taken by the appellant in that year which entries are made at page 44 of this Register and these relevant entries on this page are produced by him Exh. 33: On this page appears the entry that the appellant was on casual leave from 14-6-1969 to 17-6-1969 and bears the initial of P. W. Dr. Irshad Muhammad, the Medical Superintendent. D. W. Allah Bux has also said that this entry is in the handwriting of Dr. Irshad Muhammad himself who has put initial against all the entries on this page No. 44 including this relevant entry of the three days casual leave of the appellant in question so that as the appellant was on casual leave on the 16-6-1962 he would naturally be at his house and not attending to any work in the office. Peon of the T. B. Sanitorium D. W. Aminuallah has, inter alia, deposed in his evidence that he was asked by Dr. Irshad Muhammad, Medical Superintendent to sign the WAPDA bill of electricity and took the three bills to Bahadur Khan (appellant) at his house. He was given three bills to get the cash from the Bank after getting the same passed from the Treasury. According to him the Medical Superintendent also told him that the appellant was on leave at that time and that he should hand over the bills to the appellant to get them passed and cashed as the W APDA was to be paid the bills immediately for there was danger of disconnection of light. This witness goes on further to say that he met the appellant at his house near Karachi Hotel which was also near the National Bank of Pakistan, Hyderabad and handed over the three bills in question to him. The appellant signed the three bills and then he got these bills passed and encashed. The cash was taken in charge by the appellant and was not handed over to this witness, who was told by the appellant that he may inform the Medical Superintendent that the cash was lying with the appellant. This witness then left the appellant at his house with the cash. Thereafter, this D. W. Aminullah peon says that:-- "I went to Sanitorium Kotri. I informed the M. S. That all the three bills had been cashed, and the money was lying with him. The M. S. Put me in the car and took at the house of the accused. He called accused Bahadur. The accused gave all the money to the M. S. Dr. Irshad Muhammad. We returned to the Sanitorium." He also further says that they went to the office where D. W. Allah Bux asked him about the bill. He (this defence witness) gave him the information that the bill was cashed and collected and the money was lying with the Medical Superintendent. This defence witness Aminullah Peon in his cross-examination has not been questioned as to the fact whether in fact the total amount in question was not handed over by the appellant to P. W. Dr. Irshad Muhammad and that the latter bad not gone with him to the house of the appellant. On this aspect of the matter he has not at all been cross-examined. His entire cross-examination clearly leaves an impression on my mind that his credit has not been shaken at all and, therefore, there appears no reason why he should not be relied upon. In fact be was a prosecution witness cited in the challan sheet and given up by the Prosecutor by his application Exh. 28 which has also been referred to earlier therefore, in my opinion, he continues to retain the character of a prosecution witness as well. In fact the
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investigating police has bungled in the investigation by not getting the statement of this defence witness Peon Aminullah recorded under section 164, Cr. P. C. As otherwise if he was not telling the truth he would have been cross-examined with that pre-trial statement of his and could have been shown to be a witness who was not telling the truth. But in…
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