2020 M L D 233
[Balochistan]
Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ
MANZOOR AHMED AKHTER---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 330 and Criminal Revision No. 177 of 2017, decided on 9th August,
2019.
Penal Code (XLV of 1860) ---
----Ss. 409, 420, 466, 467, 468 & 471--- Prevention of Corruption Act (II of 1947), S. 5(2) ---
Criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery of record of court, forgery for valuab le security, forged document, using as
genuine a forged document, presumption where public servant accepts gratification other than legal remuneration ---Appreciation of evidence ---Accused was alleged to have produced
a fake/forged order of High Court for t he release of his pay with allowances ---Accused had
assailed his conviction under S.364- A, P.P.C. before the High Court, however, his counsel
had not pressed the appeal on merits and had requested for moderate reduction in sentence,
which request was allow ed---Accused, after his release, requested his department to release
his outstanding salaries on the ground that his appeal had been allowed by the High Court on the basis of compromise and he was acquitted of the charge but to the contrary his conviction was maintained by High Court ---Evidence produced by prosecution established that the
accused had got his posting and salaries till his superannuation---Accused had not disputed the acquiring of posting and salaries till his superannuation by means of acqui ttal order
(which was fake) ---Conviction and sentence awarded by the Trial Court was maintained to
the extent of Ss. 466, 468 & 471, P.P.C. and S.5(2), Prevention of Corruption Act, 1947---Appeal was disposed of accordingly.
1968 SCMR 1126; 1994 PCr.LJ 1 116 and PLD 1999 Quetta 95 ref.
Manzoor Ahmed Rehmani for Appellant (in Criminal Appeal No.330 of 2017).
Abdul Latif Kakar, APG and Wajahat Ghaznavi, State Counsel (in Criminal Appeal
No.330 of 2017).
Abdul Latif Kakar, APG and Wajahat Ghaznavi, State C ounsel for Petitioner (in
Criminal Revision Petition No.177 of 2017).
Manzoor Ahmed Rehmani for Respondent/convict (in Criminal Revision Petition
No.177 of 2017).
Mullah Muhammad Umar, Divisional Director Education and Abdul Sattar Langove,
DEO Sibi, Education Department (in Criminal Revision Petition No.177 of 2017).
Date of hearing: 31st July, 2019.
JUDGMENT
ABDUL HAMEED BALOCH, J. ---This common judgment shall dispose of
Criminal Appeal No. 330 of 2017 and Criminal Revision Petition No.177 of 2017 as both
these cases have arisen out of the same FIR.
Through Criminal Appeal No.330 of 2017 the appellant namely Manzoor Ahmed has
challenged the validity of the judgm ent dated 05.10.2017 (impugned judgment) passed by the
Special Judge Anti -Corruption Balochistan Quetta (trial court), whereby the appellant has
been convicted and sentenced in the following manner: --
Under Section 409, P.P.C. to suffer RI for ten (10) ye ars and fine of Rs.80,000/ -
eighty thousands), in default to further undergo for two months' SI.
Under Section 420, P.P.C. to suffer RI for seven years and fine of Rs.50,000/ - (fifty
thousand), in default to further undergo for two months' SI.
Under Sect ion 467, P.P.C. to suffer RI for ten years and fine of Rs.80,000/ - (eighty
thousand), in default to further undergo for two months' SI.
Under Section 468, P.P.C. to suffer RI for seven years and fine of Rs.50,000/ - (fifty
thousand), in default to further undergo for two months' SI.
Under Section 471, P.P.C. to suffer RI for seven years and fine of Rs.50,000/ - (fifty
thousand), in default to further undergo for two months' SI. and
Under Section 5(2) of Act -II of 1947 sentenced to suffer RI for four years and fine of
Rs.50,000/ - (fifty thousand), in default to further undergo for two months' SI.
All the sentences were directed to be run concurrently with benefit of Section 382- B,
Cr.P.C.
Whereas the Criminal Revision Petition No.177 of 2017 has been preferred by the
complainant against the aforesaid judgment of the trial court for enhancement of the sentence recorded against the appellant.
2. Brief facts leading to file the instant appeal are that on 04.05.2017, complainant IP
Anti Corruption Sibi Abdul Qayyem lodged an FIR No. 01/S/2017, with Police Station Anti corruption Sibi, alleging therein that Manzoor Ahmed Akhtar SST (G) fraudulently produced a fake/forged judgment order of Hon'ble High Court of Balochistan Sibi Bench and got his pay with allowances. It is also evident from record that the departmental procedure adopted
in respect of verif ication implies grave negligence on the part of Superintendent Nazeer
Ahmed of Judicial Branch Directorate of (Schools) Education Department Balochistan
Quetta.
3. After completion of investigation the challan was submitted before the trial court,
whereby charge was framed and read over to the appellant as well as co -accused Nazeer
Ahmed to which they did not plead guilty and claimed trial. Thereafter the prosecution led its
evidence to substantiate the charge. On completion of prosecution evidence the appe llant and
co-accused Nazeer Ahmed were examined under Section 342, Cr.P.C. wherein they once
again professed their innocence. They did not record their statements on oath as envisaged under Section 340(2), Cr.P.C. nor produced any witness in their defence. However co -
accused Nazeer Ahmed produced some documents i.e. Ex -D/1 (appreciation letter), Ex- D/2
application for payment of salaries, Ex -D/3 to Ex -D/6 (minutes of meetings of District
Education Authority District Kohlu). The co- accused Nazeer Ahmed also produced
documents i.e. Art -P/70, Art -P/26, Art -P/29, Art -P/91, Art -P/92, Art -P/94, which had already
been produced by the prosecution. On conclusion of the trial the accused Nazeer Ahmed was acquitted of the charge by extending benefit of doubt, however t he appellant was convicted
in the aforesaid terms. Hence this appeal.
4. Learned counsel for the appellant contended that the impugned judgment passed by
the trial court is based on surmise; that the prosecution has failed to collect any incriminating mate rial to establish the charge against the appellant; that the impugned judgment suffers
from misreading and non- reading of the evidence; that there is contradiction amongst the
statement of witnesses which creates doubt in the prosecution case and it is adm itted
principle of criminal administration of justice that benefit of doubt goes to accused. He relied upon the cases reported in (1968 SCMR 1126) (1994 PCr.LJ 1116) and (PLD 1999 Quetta 95).
5. Conversely, learned APG defended the impugned judgment on the ground that the
prosecution has succeeded to establish the case against the appellant; that the appellant prepared and submitted a forged/fake judgment of this Hon'ble Court and on basis of said fake judgment succeeded to got posting, released his salari es till superannuation and caused
loss of Rs.2711483 to the government exchequer. He therefore urged for dismissal of the appeal and prayed for an order for recovery of the referred amount from the appellant.
6. Heard. Record perused. It is the case of the prosecution against the appellant that vide
FIR No.11.2011, under Section 364 -A, P.P.C. lodged with Levies Thana Sibi, the appellant
was convicted and sentenced which was challenged by the appellant by filing appeal before this court at Circuit Bench Sibi vide Criminal Appeal No.55 of 2012, however the learned
counsel for the appellant did not press the appeal on merits and requested for moderate reduction in the quantum of sentence. The request so made was allowed and the sentence was reduced from three y ears to that of two years and fine of Rs.50000 to that of Rs.10000/ -. The
appellant after serving his sentence was released from Central Jail Mach. Since the appellant was serving as SST (G) in the education department and after being released from the jai l, he
moved an application to the Director Education (School) Balochistan Quetta requested for release of his outstanding salaries on the ground that the appeal filed by him against his conviction in a criminal case was allowed by the High Court on the bas is of compromise and
he was acquitted of the charge, but contrary to the above his conviction was maintained by
the High Court Circuit Bench Sibi in Criminal Appeal No.55/2012.
The record revealed that the forge/fake acquittal order bearing Criminal Appeal
No(s).15/2012 of High Court Circuit Bench Sibi was received to the office of Deputy
Director (Judicial) Directorate of Education of Balochistan Quetta which was processed by Nazir Ahmed on the direction of District Education Officer, Sibi. The DEO Sibi c onverted
the absence period of the appellant into earned leave. Finally, the appellant succeeded in getting his posting and salaries till his superannuation. Meanwhile Rehmatullah and Numan filed a complaint before the Assistant Director Anti Corruption Sibi submitting therein that the appellant has got his reinstatement by committing forgery. The inquiry so initiated by the anti-corruption was converted into investigation and an FIR No. I/S/2017 was registered
against the appellant on 4.5.2017 by the Anti Corruption Establishment. The trial court after
due course of trial, convicted and sentenced the appellant.
8. The PW- 1 produced recovery memo Ex- P/1-A, documents as Art -P/1 to Art -P/103.
Para- 3 of Art -P/44 as well as Art- P/49 to Art -P/51 prove that fake j udgment of this court was
produced in the concerned office by the appellant for getting service benefits. The evidence produced by the prosecution establishes that the appellant got his posting and salaries till his superannuation. The appellant has not di sputed the acquiring of posting and salaries till his
superannuation by means of acquittal order (which is fake). It is not attracted to a prudent mind that a convict is not aware of the outcome of hearing. The final order passed by this court in Criminal Appeal No.(s).55 of 2012 is very clear in respect of maintaining the conviction of the appellant, concluding paras whereof are reproduced herein below:
"5. It is also a fact that the appellant is facing the trial since his arrest i.e. on 27th
September, 2 011 and during this period, he approached this Court twice. The
appellant has already suffered a lot by facing the agony of long trial and the appellant seems to be the first offender. The grounds raised by the counsel for the appellant, I am inclined to r educe the sentence of three (03) years to that of two and half years (2 -
1/2) years R.I. and also reduced the amount of fine from Rs.50,000/ - to that of
Rs.10,000/ - As far as the amount of fine is concerned, admittedly, the victim namely,
Ali Nawaz being st udent, was disgraced, suffered mental torture and agony due to the
act of the convict/appellant, therefore, he is ordered that out of the fine amount of Rs.10,000/ -, (rupees ten thousand only) the convict/appellant shall pay an amount of
Rs.8,000/ - (rupees eight thousand only) to the victim. He shall not be released till the
realization of the compensation amount. The remaining .fine amount of Rs.2,000/ -
(rupees two thousand only) shall be paid to the government, in default whereof he shall suffer S.I. for a period of two (02) months.
With the above modification and reduction in the quantum of sentence of imprisonment, the appeal being devoid of substance, is dismissed with the benefit of Section 382 -B, Cr.P.C."
9. The concluding paras of the forged order a re reproduced herein below:
"7. In view of above discussed diverse factors voluntarily nature and truthfulness of confessional statement has become highly doubtful and no implicit reliance could be placed upon such statement for sustaining conviction on a capital charge.
For the foregoing reasons we are inclined to set aside the judgment dated 18.10.2102
rendered by Sessions Judge Sibi, to the extent of conviction recorded under
section 365- A, P.P.C."
10. The defence plea taken by the appellant that he had engaged Mr. Muhammad Zaman,
Advocate for pleading his case and that he managed the acquittal order for him is not proved by the appellant.
11. Being teacher, the appellant was related to noble profession and it was the duty of the
appellant to spread education, create awareness and teach morality to the students. If the teacher is involved in such like offence of forgery for monetary benefits, his act cannot be condoned.
12. As far as the case laws as relied upon by learned counsel for the appellant is
concerned, the same are distinguishable from the fact and circumstances of the instant case, therefore cannot be considered in the instant case.
13. In the facts and circumstances of the case and the evidence produced b y the
prosecution it is concluded that Sections 409, 420 and 467 are not attracted in the instant case and Section 466, P.P.C. is attracted with Sections 468, 472, P.P.C., 5(2) of Act II of 1947.
14. For the above reasons the conviction and sentence of the appellant awarded by the
trial court vide impugned judgment under Sections 409, 420 and 467, P.P.C. is set aside.
While maintaining the conviction and sentence of the appellant under Section 468,
471, P.P.C. read with Section 5(2) of Act -II of 1947 the a ppellant is also convicted and
sentenced under section 466, P.P.C. to suffer RI for seven years with fine of Rs.1,00,000/ -
and in default thereof to further suffer SI for two months' S.I. All the sentences are ordered to run concurrently with benefit of se ction 382 -B, P.P.C.
The department is held at liberty to initiate proceedings against the appellant for
recovery of gain derived by the appellant.
Criminal Appeal No.330 of 2017 and Criminal Revision Petition No.177 of 2017 are
disposed of in the above t erms.
SA/81/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.