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Criminal Appeal No. 72 of 1979, decided on 6th October, 1983.

---S.409-- Criminal misappropriation-- Sentence-- Mitigation-- Accused deriving no benefit from amount temporarily misappropriated by him but refunded later on-- Accused also no more in service whereas case about 12 years old-- Sentence of one year's R.I. and fine of Rs. 21,000 reduced to imprisonment till rising of Court and fine of Rs. 5,000 in circum stances.--[Sentence].

Dawood Hashim v. The State Criminal Appeal No. K-4/66, dated 22-2-1967 (Unreported) ref.

Muhammad Hayat Junejo for Appellant.

S. Murtaza Hussain for the State.

Date of hearing: 28th September, 1983.

This appeal is directed against the Judgment, dated 4-3-1979 of learned Special Judge Anti-Corruption, Sukkur in a Case No. 25/76, were by he convicted Ali Hussain Shaikh (hereinafter referred to as appellant) under section 409, P.P.C. read with section 5 (2) of Act 11 of 1947 and sentenced him to suffer R.I. for 12 months and pay fine of Rs. 21,000 or in default R.I. for 3 months.

Briefly the facts of the prosecution case are that appellant was Octroi Clerk in people Municipality, Larkana. He used to receive amounts of Octroi collection from Naka Munshis but he misappropriated amount of Rs. 20,025.79 between July, 1971 to November, 1971. The Audit Party detected the misappropriation. The matter was reported to Anti-Corruption Department. However, in the meanwhile appellant deposited Rs. 20,022.79 between July, 1972 to August, 1972. He was sent up for trial before Anti-Corruption Judge, who convicted him.

2. Appellant in his statement under section 342, Cr.P.C. which is at Exh. 27 has denied the allegation of misappropriation but admitted to have deposited Rs. 20,022.79 on 26-7-1972, 1-8-1972 and 22-8-1972 in three instalments. He has further stated that he used to pay the entire octroi tax to Nematullah, Cashier but he did not deposit the amount. His contention is that he was involved at the instance of Chief Officer Mr. Ghori and Accountant Hajeno Amir Bux. Appellant examined Roshan Ali Shah Exh, 30 and Imdadali Shah Exh. 30 in his defence. Both have stated that Nematullah Head Munshi, used to deposit the amount of octroi and some time accused used to deposit the amount himself.

3. At the trial prosecution examined Allah Bux Exh. 2, Muhammad Ibrahim Exh. 3, Habibullah Exh. 4, Ghulam Kadir Exh. 5, Najmuddin Exh. 7, Dost Muhammad Exh. 8, Ali Muhammad Exh. 9, Karim Bux Exh. 10, Khan Muhammad Exh. 11, Qurban Ali Exh. 12, Ali Hussain Exh. 13, Abdul Ghafoor Exh. 14, Muhammad Bachal Exh. 15, Illahi Bux Exh. 16, Pir Bux Exh. 17, Chuttal Shah Exh. 18, Abdul Rehman Exh. 19, Naimatullah Exh. 20, Rasool Bux Exh. 21 and Hyder Shah Exh. 22. All these witnesses who are mostly Naka Munshi and employees of the Municipal Committee, Larkana have stated that the appellant collected octroi fee from them and his signatures were obtained on challan as token of receipt. They have produced copies of challans duly signed by appellant which he has not challenged in cross-examination and even no explanation is given by him in his statement. Abdul Wahab Exh. 6 was Deputy Commissioner and Controlling Authority. He has produced audit report alongwith audit Notes Exh. 6 and Exh. 6-B. He has stated that Administrator Larkana Municipality persuaded appellant to deposit the amount and he deposited Rs. 20,022.79. P.W. 22 Ram Chand Exh. 23 stated that he was Deputy Accountant Municipal Committee from 1968 to 1975 and appellant was Recovery Munshi and it was his duty to receive amount of octroi collected by Naka Munshi and enter in Roznamcha. He had to prepare the challan and deposit the amount with cashier. P.W.23 Khalil-ur-Rehman Exh. 24 was Assistant Director Local Fund who conducted Special Audit and produced the original Audit Report Exh. 24-B. Malik Dino Exh. 26, was Head Constable A.C.E. and produced order of sanction Exh. 26-A and F.I.R. Exh. 26-B.

Mr. Muhammad Hayat Junejo, the learned counsel for the appellant has not challenged the prosecution evidence but contended that appellant had paid the amount to Naimatullah but he had not deposited and that appellant subsequently refunded the amount and not derived any benefit from this amount, therefore, he be acquitted.

Mr. Murtaza Hussain the learned Advocate appearing on behalf of State argued that prosecution has proved the case beyond doubt, therefore, he supports the judgment. He has no objection if lenient view is taken but fine of Rs. 21,000 be maintained and according to him under section 9 of the Act which is mandatory :he fine cannot be reduced.

There is sufficient Evidence against the appellant and it is proved that he received the amount of Rs. 20,025.79 from Naka Munshi which he had not deposited till misappropriation was detected. The evidence of Defence witnesses is not helpful and is irrelevant.

There is a case of 1971 and from the statement it appears that, appellant is no more in service. He has refunded the amount of Rs. 20,022.79 in 1972. I am inclined to take lenient view in the circumstances mentioned above.

As regards the contention of Mr. Murtaza Hussain I agree with him under section 9 of the Act it is imperative that the fine to be imposed on an accused person under this sentence is not to be less than the gain fund to have been derived by him but in the present case no evidence has been led by prosecution that appellant derived any gain from that amount when the plea taken by appellant is that he paid the amount to Naimatullah Cashier though he has failed to prove but the reasonable possibility cannot be overruled that he had not derived any benefit from the amount which he temporarily misappropriated but refunded later on.

In Full Bench, Supreme Court decision in a Criminal Appeal No. K-4/66, dated 22nd February, 1967, Dawood Hashim v. State (Unreported) provides guidelines while considering the mandatory provision of section 9 of the Act. Hon'ble Judges observed "in view of the fact that said sum of money was seized on the spot from the possession of accused, it cannot be said that he derived any gain by the commission of the offence".

For the foregoing reasons, I reduce the sentence from 12 months' R.I. and fine of Rs. 21,000 to imprisonment till rising of Court and order to pay fine of Rs. 5,000 or in default to suffer 3 months' R.I. With the above modification in sentence, I dismiss this appeal.

S.G.D. Order accordingly.

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