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Criminal Appeal No. 50 of 1967, decided on 15th December 1967.

( On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 15th December 1965, in Criminal Appeal No. 453 of 1965).

S. 5 and Penal Code (XLV of 1860), S. 406‑Criminal breach of trust, conviction for‑Possibilities that convict was made a scape‑goat for action of another ‑ Special leave to appeal granted by Supreme Court.

S. 406 read with Prevention of Corruption Act (II of 1947), S. 5‑Criminal breach of trust-- Mere fact that prosecution witness stated at trial (3 years after incident) that he could not remember whether money was passed to accused in his presence‑Not sufficient for declaring witness hostile.

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---Criminal breach of trust‑Strong suspicion about extent of accused's participation in crime‑Circumstance taken into consideration and quantum of fine Imposed reduced -Penal Code (XLV of 1860), S. 406.

Muhammad Nadir Khan, Advocate Supreme Court for Appellant.

Ahmad Khan Kazi, Advocate Supreme Court instructed by Ijaz Ali, Attorney for the State

Date of hearing : 15th December 1967.

‑The appellant, who was at the relevant time a peon in the office of the Naib‑Tehsildar, Lahore, was tried in three separate cases under section 406, P. P. C., read with section 5 of the Prevention of Corruption Act II of 1947, by the Special Judge, Lahore, for embezzlement of Rs. 1,000, Rs. 1,800 and Rs. 2,000 respectively. The amount involved in the first case was alleged to have been entrusted to the appellant by another Tehsil peon for deposit in the treasury, but the amounts of the other two cases were said to have been entrusted with the appellant by Meo Khan, Lambardar of village Jia Bagga, as moneys collected on account of land revenue dues, for deposit in the Government Treasury. The trial Court acquitted the appellant in the first case but convicted him in both the other cases.

The appellant preferred two appeals to the High Court of West Pakistan against his convictions. In the appeal arising out of the conviction relating to the misappropriation of the sum of Rs. 1,800 said to have been entrusted on the 31st of July 1962, the High Court acquitted the appellant, because (i) the scribe of the receipt, alleged to have been granted by the appellant for this amount, was not produced, (ii) the record of the Wasil Baqi Nawis did not support the prosecution case, and (iii) it was considered unlikely for the Lambardar to entrust a further sum of Rs. 1,800 a month and a half after the amount of Rs. 2,000, alleged to have been paid on 14‑6‑1962, had not been deposited in the treasury.

The conviction of the petitioner in the case relating to the misappropriation of the sum of Rs. 2,000 was, however, upheld but the sentence of three years' rigorous imprisonment plus a fine of Rs. 2,500 was reduced. The appellant was sentenced to imprisonment for the terms already undergone plus the fine imposed.

The appellant then filed a petition from Jail for Special Leave to Appeal to this Court. Leave was granted to him, because the examination of the records gave the impression that there were possibilities of the appellant having been made a scape‑goat, for, admittedly it was not his business to take such moneys to the treasury and the Lambardar Meo Khan being an experienced man with an adult son could very well have done it himself or through his son.

The precise allegations, upon which this charge relating to the misappropriation of the sum of Rs. 2,000 was preferred, are as follows :‑

It is alleged that the Naib Tehsildar Ch. Nazir Hussain Cheema, who was on a visit to village Jia Bagga in connection with Moharram duty at or about this time, also availed of this opportunity to see to the collection of land revenue. In this connec tion he called Meo Khan, Lambardar of the village, at the village school where he was staying and enquired from him as to how much he had collected. When informed that Rs. 2,000 had been collected and that the amount would be deposited in the Tehsil Treasury the next morning he directed the Lambardar to hand over the amount forthwith to his peon, the appellant, who would deposit it in the treasury. It appears that although the rules did not permit this it had become the common practice with Tehsil Peons to collect land revenue from the Lambardars and deposit the same in the, Tehsil Treasury. Meo Khan, accordingly, with demur complied with the request and banded over the amount to the appellant, who appended his signature in token of the receipt of the amount upon a receipt written out by the Girdawar Ali Muhammad. This receipt was dated the 14th of June, 1962. The appellant, however, instead of depositing the amount in the treasury, criminal mis appropriated the same.

A month or two later the Lambardar met the Wasil Baqi Nawis at the Lahore Tehsil in connection with the deposit of some other amount of land revenue and was informed that he had also to pay Rs. 3,800. He told the Wasil Baqi Nawis that he had sent this amount in two instalments through the appellant Taj Din. The Wasil Baqi Nawis, however, maintained that these amounts had not been deposited in the treasury. The Lambardar then contacted the appellant who assured him that the amounts had been deposited and he would show him the form dakhilas. But he failed to do so on one pretext or another, although he was contacted several times by the Lambardar and his son. Ultimately the then Wasil Baqi Nawis called upon him to deposit the amount under threats of penal action. Meo Khan Lambardar then made a statement (Exh. P. F.) before the Wasil Baqi Nawis who incorporated this in his report (Exh. P. H.) to the Naib Tehsildar in July 1963. The appellant was called upon to deposit this amount, but when he failed and neglected to do so the cases were referred to the Deputy Commissioner, Lahore, in September 1963, for initiating proceedings against the appellant. The appellant was thereafter arrested on the 31st of March 1964, and put up for trial.

To establish the entrustment the prosecution have examined the Lambardar Meo Khan (P. W. 2), who paid the amount on the 14th of June 1962, on getting the receipt (Exh. P. E.) signed by the appellant. Ali Muhammad Girdawar (P. W. 8) testified to the effect that he wrote out body of the receipt (Exh. P. E.) on the 14th of June 1962, when the Naib Tehsildar was on tour in Jia Bagga. He was, there, because Jia Bagga was also in his circle. He stated that the receipt was signed by the appellant in his presence but as he could not remember whether any money was paid to the appellant by the Lambardar at the time he was declared hostile and cross‑examined by the Public Prosecutor. Even in this cross‑examination he stated that the appellant signed his name on the receipt in his presence. The receipt was, according to him, written and signed on the Verandah of the village school and at that time the Naib Tehsildar was himself sitting inside the room.

This witness had not stated that the money was not pat in his presence but all that he had stated was that he could not remember at that stage, nearly three years later, whether money had also actually passed in his presence. It was not necessary, therefore, to declare this witness hostile.

The evidence of the Lambardar has been supported by two other independent witnesses, namely, Allah Ditta (P. W. 3), and Muhammad Hussain Shah (P. W. 4). Allah Ditta was a member of the local Union Council and was a respectable member of the village community. In fact, he claimed that he smoked huqqa with the Naib Tehsildar. He clearly supported the Lambardar and maintained that he remembered perfectly that the amount of Rs. 2,000 was brought by the Lambardar, the Naib Tehsildar asked him to make it over to the appellant and the Lambardar did so. The Girdawar, who was then present, then wrote out the receipt (Exh. P. E.) and the appellant signed it. There was no suggestion in the cross‑examination of this witness that he was, in any way, hostile to the appellant. The only suggestion to him was that he was connected with Meo Khan Lambardar but he denied this.

Similarly Muhammad Hussain Shah, a retired Head Constable another wholly independent witness, stated that he had come to see the Naib Tehsildar at the village school in connection with the zuljinah procession which was to be taken out when the payment was made He fully supported the payment of the amount of Rs. 2,000 by Meo Khan, Lambardar, to the appellant and the signing of the receipt written by the Girdawar. All these, according to him, took place in his presence. There is again no suggestion that this witness had any particular motive to falsely implicate the appellant.

In addition to this; the prosecution also examined a Hand writing Expert, Shah Muhammad (P. W. 9), attached to the Forensic Science Laboratory, Lahore. He was of the view that the signature on the receipt (Exh. P. E.) was similar to the specimen signatures of the appellant which had been obtained in the presence of a Magistrate.

The prosecution did not produce the then Naib Tehsildar but he was called as a Court witness. He admitted that in July, 1962, he had gone on tour to Jia Bagga in connection with Moharram duty and that the appellant, who was a peon attached to him at that time, accompanied him. He also admitted that whenever he went out on tour in connection with other executive duties he also utilized those occasions for checking up whether the Lambardars of the villages visited by him had been regularly depositing the land revenues collected by them. He further conceded that though the rules did not permit any peon to collect land revenue from Lambardars and deposit the same in the treasury such a common practice had grown up in the department. But he could not remember whether on the occasion he went to Jia Bagga in July 1962, he had called the Lambardar Meo Khan and asked him to deposit the amount collected with his peon. He could not also identify the signature of the appellant on the receipt, as he claimed that he had never seen the appellant's writing. He, too, was declared hostile and cross‑examined.

Besides this, the only other relevant evidence is that given by Abdus Salam, who was the Wasil Baqi Ndw13 at the Lahore Tehsil in 1963. He described the procedure of making deposits by Lambardars of the land revenue collected by them. According to him, the depositor first came to his office where his assistants prepared dakhila forms in triplicate mentioning therein the date on which the dakhila is prepared and the amount required to be deposited. The depositor then goes to the treasury and deposits the amount. One copy of the dakhila form is kept by the treasury, another is given to the depositor and the third is sent to the Tehsil office. On referring to the register known as the dastwarqi he further stated that on the 16th June 1962, dakhila forms for the deposit of a sum of Rs. 2,000 were actually prepared for Meo Khan through the appellant Taj Din but since the above‑mentioned amount had not been shown as deposited in the "khatauni malguzari" he told the Lambardar in the beginning of July 1963, that the amount was due from him. On this the Lambardar informed him that he had paid the amount in two instalments to the appellant after obtaining receipts for the same. He was called upon to produce the receipts or the form dakhilas. He produced the receipts and made a statement (Exh. P. F.) to that effect. The witness then incorporated this in his receipt (Exh. P. H.) to the Naib Tehsildar. Upon the basis thereof an enquiry was held and ultimately proceedings were started against the appellant.

The rest of the prosecution evidence is of a formal character and need not be referred to.

The appellant in his examination denied that he had ever received the said amount of Rs. 2,000 or any other amount from the Lambardar Meo Khan or granted the receipt (Exh. P. E.). In support of his case he also examined three witnesses. Of these the first was the Naib Tehsildar who succeeded Nazir Ahmad Cheema and was the Naib Tehsildar even at the time he gave evidence. He merely gave a certificate to the effect that he had never heard any complaint against the appellant regarding his integrity, but he too admitted that although the rules did not permit, peons did collect moneys from Lambardars for depositing the same in the treasury.

The second witness examined by the appellant was a fellow -peon who denied that the receipt (Exh. P. E.) bore the signature of the appellant.

The third was a private band‑writing expert. He opined that the signature on the receipt (Exh. P. E.) did not tally with the specimen signatures of the appellant obtained before the Magis trate. But it appears that he was questioned by the Court at some length and it was elicited that this witne3s had only a month before given evidence in a Passport forgery case before the same Court and been disbelieved.

In the face of this evidence the learned counsel appearing for the appellant found it difficult to contend that the prosecu tion story regarding the payment of the amount to the appellant on the 14th of June 1962, and the signing of the receipt (Exh. P. E.) by the appellant was false. We have also ourselves examined the signature on the receipt (Exh. P. E.) with the specimen signatures and there can be no manner of doubt that the similarities pointed out by the Government Expert are present. We are also unable to find any reason why either the Lambardar, the Girdawar, or the other two independent witnesses, namely, Allah Ditta and Muhammad Hussain, should be disbelieved. The last two had no reason whatsoever to falsely implicate the appellant. It is furthermore clear that although the rules did not permit any Tehsil Peon to collect the revenue from the Lambardars such a practice had grown up and it was commonly being done. In the circumstances, it is not unlikely that Nazir Hussain Cheema (C. W. 1) and Taufiq Hussain (D. W. 1), denied that they had ever asked any peon to make such collections to avoid any suggestion that they too condoned such irregularities. Nazir Hussain Cheema's denial that he asked Meo Khan to deposit the amount with the appellant is, therefore, clearly made to avoid any culpability on his part. Learned counsel appearing for the appellant has, of course, contended with some force that this denial should not be accepted, for, it would be well nigh impossible for a peon to have the audacity to accept payment of such a large sum in the presence of his officer and then misappropriate the same. The direct evidence of the Lambardar, the Girdawar. Allah Ditta and Muhammad Hussain establish beyond doubt that when the money was paid on the Verandah of the village school the Naib Tehsildar was sitting inside the room. This, it is contended, could not have been done without being detected earlier. The money, it is argued, must, therefore, have been misappropriated either by both the appellant and the Naib Tehsildar himself or at least with his connivance and knowledge.

Learned counsel has, of course, gone to the extent of sug gesting that he can find no other explanation for the fact that no notice was issued to the Lambardar to deposit the land revenue which he had admitted to have collected on the 14th of June 1962, or to the appellant, when it was found that the amount had not been deposited in the Tehsil Treasury. No action, it appears, was taken for this non‑deposit until July 1963, when Abdus Salam, the Wasil Baqi Nawis made his report (Exh. P. H.).

This contention of the learned counsel is not without force, for, it is difficult to appreciate why the Naib Tehsildar did not see to it that the money collected in‑ his presence, if not, at his instance was not duly deposited in the treasury or why such a large sum was entrusted with the Tehsil Peon. There also appears to have been no urgency for requiring Meo Khan to forthwith deposit the amount with the peon when he had himself stated that he would be depositing it in the local treasury the next morning. Jia Bagga is only ten miles allay from Lahore and we have it in evidence that though the Lambardar himself is an old man of 70 years he has an able‑bodied son who could easily have made the journey to Lahore to make the deposit on his father's behalf. But as we have no other definite evidence on the record we do not wish to come to any conclusion on this question on the basis of surmises or to say anything more than this that it is unlikely that the appellant could alone have misappropriated this large sum.

Be that as it may, on the evidence on record it is clear beyond any doubt that the amount was entrusted with the appellant on the 14th of June 1962, for deposit in the Tehsil Treasury but he did not do so and misappropriated, if not the whole, at least a part of the amount. In the circumstances, he was rightly convicted.

Learned counsel has next urged that even if this suspicion cannot absolve the appellant of his guilt it is a circumstance which can be taken into account in determining the measure of the punishment. Even the High Court, it is pointed out, muss have had some such suspicion in its mind when it reduced the appellant's sentence of imprisonment to the period already suffered. The sentence of fine is still, however, according to him. excessive, for, the appellant could not surely have benefited to the extent of the entire amount alleged to have been mis appropriated. In the impression that we have formed we are inclined to agree with him that the benefit actually received by the appellant as a result of the misappropriation was considerably less than that represented by the amount alleged to have been misappropriated. We accordingly, dismiss this appeal and maintain the sentence of imprisonment imposed by the High Court but to meet the ends of justice reduce the fine to Rs. 500 only. In default he will undergo further rigorous imprisonment for six months.

Appeal dismissed.

Fine reduced.

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