Penal Code (XLV of 1860)--
---S.409--Prevention of Corruption Act (II of 1947), S.5(2)--Accused charged for criminally misappropriating petrol by making false entries and preparing forged issue notes on basis of indents already used- Prosecution failing to establish that petrol had been received on basis of such forged documents in order to prove that damage had been caused as envisaged in S.468, Penal Code--No evidence was available to show that accused was entrusted with any property and in that capacity he had committed criminal breach of trust--No evidence available to show that accused had himself used petrol or delivered it to some other persons--Accused, held, could not be convicted either under 5.468, P.P. C. or S.409, Penal Code, in circumstances- Conviction and sentence set aside,
Azad Bin Haider for Appellant.
Niaz Ahmed for the State.
Dates of hearing: 25th September, 23rd November,1986 and 22nd February, 1987.
AKHTAR ZAMAN VS THE STATE1987 M L D 1621[Karachi]Before Abdul Qadeer Chaudhry, JAKHTAR ZAMAN--AppellantVersusTHE STATE--RespondentCriminal Appeal Nc.65 of 1983, decided on 19/03/1987.
---S.409--Prevention of Corruption Act (II of 1947), S.5(2)--Accused charged for criminally misappropriating petrol by making false entries and preparing forged issue notes on basis of indents already used- Prosecution failing to establish that petrol had been received on basis of such forged documents in order to prove that damage had been caused as envisaged in S.468, Penal Code--No evidence was available to show that accused was entrusted with any property and in that capacity he had committed criminal breach of trust--No evidence available to show that accused had himself used petrol or delivered it to some other persons--Accused, held, could not be convicted either under 5.468, P.P. C. or S.409, Penal Code, in circumstances- Conviction and sentence set aside,
Azad Bin Haider for Appellant.
Niaz Ahmed for the State.
Dates of hearing: 25th September, 23rd November,1986 and 22nd February, 1987.
JUDGMENT
The appellant has challenged the conviction recorded against him under section 409/468 PPC read with Section 5(2) of the Prevention of Corruption Act, 1947 by the Anti-Corruption, Karachi by means of judgment dated 11-6-1983 whereby he sentenced the appellant to six months' R.1.and to pay a fine of Rs.3,000 or in default to undergo R.I. for 2 months under section 468 PPC. He was also, sentenced under Section 409 PPC read with Section 5(2) of Act II of 1947 to R.I. for one year and also to pay a fine of Rs.5,000 or in default to undergo R.I. for 3 months more. It was also ordered that the sentences will run concurrently.
The facts of the case are that P.W. Abdul Ghafoor Khan, D.S.P. Anti-Corruption lodged the report alleging therein that on 16-1-1976 Petrol Consumption Register of KMC Petrol Pump for the period 3-1-1976 to 16-1-1976 was seized in connection with the investigation of the case. The perusal of the register showed that on 3-1-1976 the appellart Akhtar Zaman, Shift Incharge of K.M.C. Petrol Pump criminally misappropriated 55 gallons of Petrol and he made false entries against issue Notes Nos.16399, 16400, 16401, 16411 and 16430 and Indents No. shown against these issue notes were utilized for supplying of petrol vide entries against issue notes Nos.16491, 16444, 16445, 16471 and 16470 respectively. The charge under section 409/471 PPC read with Section 5(2) of the Prevention Act II of 1947 was framed. The accused did not plead guilty to the charge.
The prosecution examined 11 witnesses at the trial, namely P-. W.1 Miskeen, P. W.2 Ghulam Farid, P. W.3, Humayoon, P. W.4 Dr.Farkhunda, P. W.5 Shaheen Sajjad, P. W.6 Azizur Rehman, P. W.7 Dr.Abdul Aziz, P.W.8 Najaf Khan, P.W.9 Abdul Ghafoor, P.W.10 Kazi Fatehuddin and P.W.11 Ghulam Abbas.
The accused in his statement under Section 342 Cr.P.C. admitted that he was serving as a clerk of K.M.C. Petrol Pump in the month of January, 1976. He has not admitted that he was Incharge. He has also not admitted that he had issued petrol more than one time on the same indent. He has also not admitted that he had prepared the forged issue notes. He has also not admitted that he had issued two issue notes for one indent and petrol was issued twice on such indent. The accused examined Muhammad Masood in his defence. The trial court after evaluating the evidence convicted and sentenced the appellant as mentioned above.
P.W.1 Miskeen, Driver in K.M.C. has deposed that he took the petrol from the accused who was incharge of the Petrol Pump vide indent Ex.3 but issue note No.16444 (Ex.5) does not bear his signature.
P.W.2 Ghulam Farid has stated that Issue note No.16444 (Ex.5) pertains to indent No.58272 showing issue of 11 gallons of petrol but he had not received the office copy of this issue note Ex.5. According to issue notes Exs.4,5,2 gallons of petrol had been issued on indent Ex.3. He has further stated that 20 gallons petrol was to be issued.
P. W.3 Humayoon has deposed that issue note No.16411 as Ex.15 for issue of 12 gallons oil from K. M.C. Petrol Pump. It was prepared by accused Akhtar Zaman and bears his signature. This issue note was issued on the basis of indent No.58141. The issue note had been prepared on the basis of same indent No.58141. Thus or one indent for 12 gallons of Petrol, the accused had issued 24 gallons of Petrol. He also produced issue notes No.46401 and 16445 as Exs.17 and 18 each for issue of 10 gallons of petrol. Both the issue notes were in the handwriting of accused Akhtar Zaman and signed by him as incharge of the Petrol Pump. Both these issue notes were issued on the basis of one indent No.58137 which was for issue of 10 gallons of petrol only.
P. W.4 Dr.Farkhunda was working as Assistant Health Officer in K.M.C. She used to sign the indent as Indenting Officer. She produced three indents bearing Nos.58137 for petrol of 10 gallons, 58141 for Petrol of 12 gallons and 58142 for 12 gallons as Exs.32, 33 and 34. All these three indents were signed by her.
P.W.5 Shaheen Sajjad was working as Ledger Clerk in K.M.C. Stores in the month of January, 1976: According to his statement the appellant was shift incharge of K.M.C. Petrol Pump on 3-1-1976 and all the entries were in the handwriting of accused Akhtar Zaman. Issue notes Exs.4, 5, 8, 11 and 12 were issued by the appellant and bears his initial as incharge of Petrol Pump.
P.W.6 Azizur Rehman was working as Munshi in Health Department. He has deposed that signature of Miskeen on issue note Ex.20 for supply of 12 gallons is the forged signature. Ex.15 bears the genuine signature of Driver Najaf Khan.
P.W.7 Dr.Abdul Aziz was Assistant Health Officer in K.M.C. in the year 1976. His evidence is not important.
P.W.8 Najaf Khan, Driver in K.M.C. has stated that he cannot say if issue note Ex.15 bears his signature. He also could not say if issue note Ex.16 bears his signature. He was declared hostile by the State and cross-examined.
P.W.9 Abdul Ghafoor is witness of lodging the F.I.R.
P.W.10 Qazi Fatehuddin had carried on investigation of the case.
P.W.11 Ghulam Abbas Jafri who was working as Director, Forensic Branch, Karachi has stated that according to him, the disputed writing/initials on issue notes bearing No.16444, 16445, 16470, 16399, 16430, 16400 and 16411 were in agreement with those of specimen of the appellant Akhtar Zaman. He was also shown Exs.5, 18, 20, 16, 12, 19, 4, 17 and 15 in the Court and according to him, they are in the handwriting of the appellant.
P. W. Humayoon has admitted that the drivers come and deliver two copies of indent to the shift incharge at the Window and the shift incharge on the basis of indent prepares 3 issue notes and makes entry of the notes and the indent in the Petrol Consumption Register and out of three copies of the issue notes, the shift incharge delivers one copy to the driver for its presentation before the person incharge of the Petrol hump forgetting the supply of the petrol. He has also admitted that some bogus indents were recovered from their office. P. W. Azizur Rehman has stated that Ex.15 is the genuine signature of Najaf Khan, Driver. Najaf Khan, Driver was examined and he has not supported the Prosecution. P. W Dr. Abdul Aziz has stated that it is not permitted to take extra petrol tin. The petrol would only be issued on each indent. P.W. Qazi Fatehuddin, Investigating Officer has admitted that there was no record of specimen signature, neither of the drivers nor of the indent issuing officers. In this case the Prosecution has not produced the Petrol Consumption Register and the ledger. There is also no evidence that the accused has taken the petrol on the alleged forged issue notes. It is an admitted fact that P.W.1 had received the petrol vide indent No.68272 (Ex-3) and issue note No.16400 (Ex.4). It is stated that this indent (Ex.3) was also used and forged on the basis of which issue note No.16444 (Ex.5) was prepared. It is alleged that issue notes 16491, 16444, 16445, 16471 and 16470 are the forged issue notes. The prosecution has only proved that issue note No.16444 (Ex.5) is a forged document and issue notes No.16491 (Ex.13) and 16471 (Ex.l6) are the forged issue notes and these issue notes relate to indent No.58269 and 58141. On Ex.13 there is signature of one Ishaque and it is not alleged that this Exhibit is in the handwriting of the appellant. P. W. Najaf Khan did not say if any of the Exs.15 and 16 bears forged signatures. Indent No.58137 relates to Exs.17 and 18 but in the charge there is no mention of it. Issue note No.16445 Ex.18 relates to Indent No.58137.
As stated above there is no evidence that the appellant had received petrol on the basis of forged issue notes. The forgery is defined in Section 463 PPC which reads as under: -
"Whoever makes any false document or part of a document, with intent to cause damage or injury, to the public or any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
Therefore in order to bring home the charge under Section 468 PPC, it must be shown that a false indent is prepared with intent t commit fraud. Now in this case it is alleged that these false issue notes were prepared on the basis of indent already used but the basic element of Section 468 that a damage has been caused is missing in this case as it has not been established that petrol has been received on the basis of such forged documents. He has also bee convicted under Section 409 PPC and the ingredient of Section 40 PPC are: -
"Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a Public servant or in the way if his: business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine."
It has not been shown that the appellant was entrusted with property and in that capacity has committed criminal breach Criminal breach of trust has been defined in Section 405 PPC according to it "Whoever, being in any manner entrusted with or with any dominion over property, dishonestly misappropriates converts to his own use that property, or dishonestly uses or of that property, in violation of any direction of law prescribing mode in which such trust to be discharged, or of any legal express orimplied, which he had made touching the discharge such trust, or wilfully suffers any other person so to do, "criminal breach of trust". There is no entrustment of the appellant was not incharge of the Petrol pump. He has either himself used the petrol or delivered it to some other. There is no evidence on this point. Now when the prosecution failed to prove the entrustment or the criminal breach of trust respect of Petrol in question, then the appellant could not be convicted under Section 409 P.P.C. The allegation of the prosecution is that these documents are forged in order to procure the Petrol but it has not been established that the appellant had-taken petrol on the basis of these issue notes.---He cannot--be--convicted either-under Section 468 or Section 409 PPC. The appeal is accepted. The conviction an sentence recorded against the appellant is set aside. He is on bail. His bail bond is discharged.
M.Y.H./A-72/KAppeal accepted.
The appellant has challenged the conviction recorded against him under section 409/468 PPC read with Section 5(2) of the Prevention of Corruption Act, 1947 by the Anti-Corruption, Karachi by means of judgment dated 11-6-1983 whereby he sentenced the appellant to six months' R.1.and to pay a fine of Rs.3,000 or in default to undergo R.I. for 2 months under section 468 PPC. He was also, sentenced under Section 409 PPC read with Section 5(2) of Act II of 1947 to R.I. for one year and also to pay a fine of Rs.5,000 or in default to undergo R.I. for 3 months more. It was also ordered that the sentences will run concurrently.
The facts of the case are that P.W. Abdul Ghafoor Khan, D.S.P. Anti-Corruption lodged the report alleging therein that on 16-1-1976 Petrol Consumption Register of KMC Petrol Pump for the period 3-1-1976 to 16-1-1976 was seized in connection with the investigation of the case. The perusal of the register showed that on 3-1-1976 the appellart Akhtar Zaman, Shift Incharge of K.M.C. Petrol Pump criminally misappropriated 55 gallons of Petrol and he made false entries against issue Notes Nos.16399, 16400, 16401, 16411 and 16430 and Indents No. shown against these issue notes were utilized for supplying of petrol vide entries against issue notes Nos.16491, 16444, 16445, 16471 and 16470 respectively. The charge under section 409/471 PPC read with Section 5(2) of the Prevention Act II of 1947 was framed. The accused did not plead guilty to the charge.
The prosecution examined 11 witnesses at the trial, namely P-. W.1 Miskeen, P. W.2 Ghulam Farid, P. W.3, Humayoon, P. W.4 Dr.Farkhunda, P. W.5 Shaheen Sajjad, P. W.6 Azizur Rehman, P. W.7 Dr.Abdul Aziz, P.W.8 Najaf Khan, P.W.9 Abdul Ghafoor, P.W.10 Kazi Fatehuddin and P.W.11 Ghulam Abbas.
The accused in his statement under Section 342 Cr.P.C. admitted that he was serving as a clerk of K.M.C. Petrol Pump in the month of January, 1976. He has not admitted that he was Incharge. He has also not admitted that he had issued petrol more than one time on the same indent. He has also not admitted that he had prepared the forged issue notes. He has also not admitted that he had issued two issue notes for one indent and petrol was issued twice on such indent. The accused examined Muhammad Masood in his defence. The trial court after evaluating the evidence convicted and sentenced the appellant as mentioned above.
P.W.1 Miskeen, Driver in K.M.C. has deposed that he took the petrol from the accused who was incharge of the Petrol Pump vide indent Ex.3 but issue note No.16444 (Ex.5) does not bear his signature.
P.W.2 Ghulam Farid has stated that Issue note No.16444 (Ex.5) pertains to indent No.58272 showing issue of 11 gallons of petrol but he had not received the office copy of this issue note Ex.5. According to issue notes Exs.4,5,2 gallons of petrol had been issued on indent Ex.3. He has further stated that 20 gallons petrol was to be issued.
P. W.3 Humayoon has deposed that issue note No.16411 as Ex.15 for issue of 12 gallons oil from K. M.C. Petrol Pump. It was prepared by accused Akhtar Zaman and bears his signature. This issue note was issued on the basis of indent No.58141. The issue note had been prepared on the basis of same indent No.58141. Thus or one indent for 12 gallons of Petrol, the accused had issued 24 gallons of Petrol. He also produced issue notes No.46401 and 16445 as Exs.17 and 18 each for issue of 10 gallons of petrol. Both the issue notes were in the handwriting of accused Akhtar Zaman and signed by him as incharge of the Petrol Pump. Both these issue notes were issued on the basis of one indent No.58137 which was for issue of 10 gallons of petrol only.
P. W.4 Dr.Farkhunda was working as Assistant Health Officer in K.M.C. She used to sign the indent as Indenting Officer. She produced three indents bearing Nos.58137 for petrol of 10 gallons, 58141 for Petrol of 12 gallons and 58142 for 12 gallons as Exs.32, 33 and 34. All these three indents were signed by her.
P.W.5 Shaheen Sajjad was working as Ledger Clerk in K.M.C. Stores in the month of January, 1976: According to his statement the appellant was shift incharge of K.M.C. Petrol Pump on 3-1-1976 and all the entries were in the handwriting of accused Akhtar Zaman. Issue notes Exs.4, 5, 8, 11 and 12 were issued by the appellant and bears his initial as incharge of Petrol Pump.
P.W.6 Azizur Rehman was working as Munshi in Health Department. He has deposed that signature of Miskeen on issue note Ex.20 for supply of 12 gallons is the forged signature. Ex.15 bears the genuine signature of Driver Najaf Khan.
P.W.7 Dr.Abdul Aziz was Assistant Health Officer in K.M.C. in the year 1976. His evidence is not important.
P.W.8 Najaf Khan, Driver in K.M.C. has stated that he cannot say if issue note Ex.15 bears his signature. He also could not say if issue note Ex.16 bears his signature. He was declared hostile by the State and cross-examined.
P.W.9 Abdul Ghafoor is witness of lodging the F.I.R.
P.W.10 Qazi Fatehuddin had carried on investigation of the case.
P.W.11 Ghulam Abbas Jafri who was working as Director, Forensic Branch, Karachi has stated that according to him, the disputed writing/initials on issue notes bearing No.16444, 16445, 16470, 16399, 16430, 16400 and 16411 were in agreement with those of specimen of the appellant Akhtar Zaman. He was also shown Exs.5, 18, 20, 16, 12, 19, 4, 17 and 15 in the Court and according to him, they are in the handwriting of the appellant.
P. W. Humayoon has admitted that the drivers come and deliver two copies of indent to the shift incharge at the Window and the shift incharge on the basis of indent prepares 3 issue notes and makes entry of the notes and the indent in the Petrol Consumption Register and out of three copies of the issue notes, the shift incharge delivers one copy to the driver for its presentation before the person incharge of the Petrol hump forgetting the supply of the petrol. He has also admitted that some bogus indents were recovered from their office. P. W. Azizur Rehman has stated that Ex.15 is the genuine signature of Najaf Khan, Driver. Najaf Khan, Driver was examined and he has not supported the Prosecution. P. W Dr. Abdul Aziz has stated that it is not permitted to take extra petrol tin. The petrol would only be issued on each indent. P.W. Qazi Fatehuddin, Investigating Officer has admitted that there was no record of specimen signature, neither of the drivers nor of the indent issuing officers. In this case the Prosecution has not produced the Petrol Consumption Register and the ledger. There is also no evidence that the accused has taken the petrol on the alleged forged issue notes. It is an admitted fact that P.W.1 had received the petrol vide indent No.68272 (Ex-3) and issue note No.16400 (Ex.4). It is stated that this indent (Ex.3) was also used and forged on the basis of which issue note No.16444 (Ex.5) was prepared. It is alleged that issue notes 16491, 16444, 16445, 16471 and 16470 are the forged issue notes. The prosecution has only proved that issue note No.16444 (Ex.5) is a forged document and issue notes No.16491 (Ex.13) and 16471 (Ex.l6) are the forged issue notes and these issue notes relate to indent No.58269 and 58141. On Ex.13 there is signature of one Ishaque and it is not alleged that this Exhibit is in the handwriting of the appellant. P. W. Najaf Khan did not say if any of the Exs.15 and 16 bears forged signatures. Indent No.58137 relates to Exs.17 and 18 but in the charge there is no mention of it. Issue note No.16445 Ex.18 relates to Indent No.58137.
As stated above there is no evidence that the appellant had received petrol on the basis of forged issue notes. The forgery is defined in Section 463 PPC which reads as under: -
"Whoever makes any false document or part of a document, with intent to cause damage or injury, to the public or any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
Therefore in order to bring home the charge under Section 468 PPC, it must be shown that a false indent is prepared with intent t commit fraud. Now in this case it is alleged that these false issue notes were prepared on the basis of indent already used but the basic element of Section 468 that a damage has been caused is missing in this case as it has not been established that petrol has been received on the basis of such forged documents. He has also bee convicted under Section 409 PPC and the ingredient of Section 40 PPC are: -
"Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a Public servant or in the way if his: business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine."
It has not been shown that the appellant was entrusted with property and in that capacity has committed criminal breach Criminal breach of trust has been defined in Section 405 PPC according to it "Whoever, being in any manner entrusted with or with any dominion over property, dishonestly misappropriates converts to his own use that property, or dishonestly uses or of that property, in violation of any direction of law prescribing mode in which such trust to be discharged, or of any legal express orimplied, which he had made touching the discharge such trust, or wilfully suffers any other person so to do, "criminal breach of trust". There is no entrustment of the appellant was not incharge of the Petrol pump. He has either himself used the petrol or delivered it to some other. There is no evidence on this point. Now when the prosecution failed to prove the entrustment or the criminal breach of trust respect of Petrol in question, then the appellant could not be convicted under Section 409 P.P.C. The allegation of the prosecution is that these documents are forged in order to procure the Petrol but it has not been established that the appellant had-taken petrol on the basis of these issue notes.---He cannot--be--convicted either-under Section 468 or Section 409 PPC. The appeal is accepted. The conviction an sentence recorded against the appellant is set aside. He is on bail. His bail bond is discharged.
M.Y.H./A-72/KAppeal accepted.
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