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Criminal Appeals Nos. 33, 34 and 35 of 1967, decided on 28th February 1968.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 16th July 1965, in Criminal Appeals Nos. "188, 789 and 790 of 1964).

S. 409---Criminal breach of trust--- Accused stating in defence that he had handed over to his superior money entrusted to him anal producing in support of his plea receipts bearing genuine signatures of his superiors---Mere remissness in duty, if any, on part of accused would not snake him an accomplice--- Conviction set aside.

Appellant in person.

Said Akbar Khan, A.G. West Pakistan (Muhammad Jafar Malik, Advocate Supreme Court with him) instructed by Ijaz Ali, Attorney for the State

Date of hearing: 28th February 1968.

--This judgment will dispose of three Criminal Appeals Nos. 33, 34 and .s5 of 196 , which have been heard together because they are between the same parties.

The appellant Habib-ur-Rahman was a junior clerk -cum-accountant in the office of the District Inspector of Schools, Multan, from the year 1959 to August 1961. During that period various funds, which had been raised by the authorities concerned for development of the village schools were entrusted to him. Upon the allegations that he hart misappropriated the said sums and had also forged certain receipts, three cases, being Cases Nos. 22/2, 24/2 and 25/2 of 1964 under section 409 read with section 5(2) of the Prevention of Corruption Act and one case, being Case, No. 23/2 of 1964, under sections 466, 471 and 477-A of the Pakistan Penal Code, were registered against him in the Court of a Special Judge, Multan. The learned Judge acquitted him of the charges in Case No. 23/2 and convicted him in all the other three cases. It each case, he sentenced him to rigorous imprisonment for three years and to a fine His sentences were to run concurrently. Three separate appeals filed by him against his convictions and sentences were dismissed by a learned Single Judge of the High Court.

In Case No. 24/2 of 1964, the charge against him was that in the year 1959 he had committed criminal breach of trust in respect of a sum of Rs. 5,749 which had been entrusted to him for the purpose of installation of hand-pumps in the village schools.

In Case No. 25/2 of 1964, the allegations against him were that in the year 1960 a sum of Rs. 10,318 was entrusted to him and he failed to deposit the said amount in the treasury and thus committed an offence punishable under section 409, P. P. C.

Similar allegations were made in Case No. 22/2 of 1964, namely, that in-the year 1961, a sum of Rs. 11,309 was entrusted to him, but he committed criminal breach of trust in respect of the said amount.

His defence was the same in all the cases, namely, that after taking receipts, Exhs. P. A. and P. B. he made over the said amounts to Mr. Anwar Hussain Hashmi, the then District Inspector of Schools. The receipt Exh. P. B. is to the following effect:--

(Sd.) Anwar Hussain Hashmi,

D. I. S., Multan."

The receipt Exh.P. A. dated the 8th August 1961, is as follows:-

"The D. I. S. is under orders of transfer. He had received from me the Cash Books and their balances in hand of the following funds for their further disposal:

1. Public Contribution for the installation of hand-pumps.

2. China Exhibition.

3. Red Cross Flags.

4. T. B. Tickets.

5. Rural Libraries."

The body of the receipts is in the handwriting of the appellant Habib-ur-Rahman. Mr. Anwar Hussain Hashmi (P, W. 9), while admitting his signatures in these receipts, stated :--

"I had never signed these documents in their present form.

Though, I have no personal knowledge, but I think that the accused had taken my signatures on some other writings which had subsequently been erased and the writings now before me were substituted for the original."

Similar was his explanation with regard to Exh. P. A. It may be mentioned here that Case No. 23/2 of 1964 under sections 466, 471 and 477-A, P. P. C., which was registered upon the allegations that the appellant had forged the writings in these receipts for the purpose of creating false evidence, ended in acquittal. In these three cases, the Special Judge found that both the writings of the signatures in these receipts were genuine. The learned Single Judge of the High Court while dealing with these exhibits observed:-

"In the present case, Mr. Hashmi (P. W. 9) failed to prove that the original writing had been chemically erased and was substituted by the present writing. As he had admitted his signatures thereon I agree with the finding of the learned Special Judge that the documents Exhs. P. A. and P. B. arc genuine. In this connection, it may be mentioned that according to the writing Exh. P. B. all the funds had been disbursed by Mr. Hashmi to the quarters concerned personally."

Thus, the above receipts furnished a complete answer to the charges levelled against the appellant.

The learned Single Judge, however, gave the following reasons for upholding his convictions:-

"The appellant was an Accountant and it was his duty to keep the Cash Book in his custody but he never informed his successor or the District Inspector of Schools who succeeded.

Mr. Hashmi at the time of the transfer that he had made over the cash and the cash book to Mr. Hashmi. The very fact that he did not disclose the handing over of the Cash Book to the successor of Mr. Hashmi lends countenance to the view that he had a hand in the misappropriation of funds."

We have really failed to appreciate how the learned Single Judge came to the conclusion that the appellant "had a hand in the misappropriation of funds". There is nothing on the record to show that it was the duty of this appellant to make a report to the successor of Mr. Hashmi, that he had made over the funds to his predecessor. No such question was put to the accused during his examination in all these cases. If it be assumed that he should have done so, even then his remissness would amount to a mere dereliction of duty. In any event, no conclusion could be safely reached from the above fact alone that the appellant was a party to the misappropriation of the funds. In view of the receipts, Exhs. P. A. and P. B., such an inference is not tenable. It will, therefore, suffice to say that the conclusions reached by the learned Single Judge lack the support of sound reasons.

In our opinion, on a true appreciation of the case, as a whole, and of all the evidence led, the learned Single Judge could not have come to any other conclusion than that no case of misappropriation had been made against the appellant.

For these reasons, we allow all the three appeals and set aside the appellant's convictions in each of these cases an acquit him. He wit be released forthwith front his bail bonds.

Appeals accepted.

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