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Criminal Appeal No. 563 of 1978, decided on 21st October, 1981.

-- S. 409 and Prevention of Corruption Act (l1 of 19:7), S. 5 (2) Criminal breach of trust-School fans allegedly used by accused headmaster in his house and shop-Such fans not produced in Court-Recovery witnesses declared hostile - Accused claiming fans to be his own - Fans not bearing any special mark of Municipal Corporation or Primary School-Fans of usual shape easily available in market-Confessional statement on oath by accused before Magistrate immediately after raid-Inadmissible in evidence-Prosecution, held, failed to bring home charge to accused-Conviction and sentence set aside.

Zafar Iqbal Chaudhry for Appellant.

Abdul Naeem Qureshi for the State.

Date of hearing : 21st October, 1981.

Muhammad Ramzan son of Shahab-ud-Din and Khuda Bakhsh son Of Farid Bakhsh, residents of Faisalabad, were tried under section 409, P. P. C, read with section 5 (2) of the Prevention of Corruption Act, 1947, by the learned Senior Special Judge Anti-Corruption, Punjab, Lahore who, by his judgment dated 13th May, 1978, acquitted Khuda Bakhsh by giving him the benefit of doubt but convicted Muhammad Ramzan on the said charge and sentenced him to undergo imprisonment till the rising of the Court and a fine of Rs. 500 or in default in the payment there of to suffer rigorous imprisonment for six months. The convict has appealed.

2. The prosecution story as can be gathered from the file of the trial Court is that on 14th July, 1975, Abdur Rehman P. W. Teacher, M. C. School No, 2, Peoples Colony, Faisalabad, made application (P. W. 3/A) before the Administrator, Municipal Committee, Faisalabad, inter alia, alleging that the electric fans belonging to the said School were being used at the house and shop of the Headmaster of the said School, namely, Muhammad Ramzan appellant. The Administrator forwarded the application to Mr. Abdul Hamid Khan Durrani, Magistrate First Class, Faisalabad, who formed a raiding party comprising himself, Abdul Rehman, Mukhtar Ahmad A. S.-I., Mustafa and Ata Muhammad constables. The raiding party raided the house of the appellant situated in Mohallah Muhammad Abad, Peoples Colony, Faisalabad. The appellant was present in the house. The Magistrate recovered two ceiling fans from his house vide memo. Exh. P. W. 2/A. After the recovery, the Magistrate recorded the statement of the appellant Exh. P. W. 4/B. The raiding party also raided the house of acquitted accused Khuda Bakhsh but he was not available. The Magistrate drafted the complaint Exh. P. W. 4/A on the basis of which formal F. I. R. Exh. P. W. 6/A was recorded at the Police Station Peoples Colony, Faisalabad. After completing the investi gation and the necessary formalities, the appellant and his co-accused were sent up for trial.

3. In support of its case the prosecution examined nine witnesses, including Abdur Rehman complainant, Abdul Hamid Khan Durrani, Magistrate First Class, and Mukhtar Ahmad A. S.-I.

4. The appellant pleaded not guilty to the charge. He admitted that in the year 1975 he was posted as Headmaster, M. C. Primary School No. 2, Faisalabad, and that two ceiling fans were recovered by a police party from his house but added that those belonged to him. He further stated that the Magistrate remained on the road-side and never visited his house. When asked whether he made statement Exh. P. W. 4/ B before the raiding-Magistrate, he stated that he was taken to a nearby Police Station where he was asked to sign a statement, which was prepared by the police party and the-Magistrate. When asked why this case against him, he made the following statement:-

I was falsely involved in this case on a baseless complaint of P. W. Abdur Rehman a school teacher who served under me and 1 had taken action against him due to his wilful absence from duty and even-an enquiry was held against him and ultimately it was observed by the Taxation Officer/Enquiry Officer that the casual leave of the delinquent official be sanctioned to regularise the position and for coming late and causing indiscipline, he suggested that the adminis trator might pass the orders as he deemed fit. I place on record a photostat copy of the charge-sheet and show-cause notice Exh. D .A, given to Abdul Rehman aforementioned and report of the Enquiry Officer Exh, D. B. dated 5th May, 1975 made in this connection by the Enquiry Officer as referred to above. Thus, Abdur Rehman aforementioned nursed a grouse against me and involved me falsely alongwith the co-accused".

He examined three witnesses in his defence, namely,, Muhammad Shard, Abdul Ghafur Chaudhry, Advocate and Nazir Ahmad Teacher, M. C. Primary School No. 2, Peoples Colony, Faisalabad.

Muhammad Sharif stated that he had sold two ceiling fans of 48" size for Rs. 300 each to the appellant through Receipt Exh. D. W. I/A.

Mr. Abdul Ghafur Chaudhry, Advocate (D. W. 2) stated that in July, 197 when he returned from the District Courts, Faisalabad, to his house, he saw a Police Officer with two constables near his house. Mr. Durrani (Magistrate) was present near them in a jeep and two fans were lying on the road side. The appellant .was also with the police.. The witness further stated that he inquired from the appellant as to what the matter was and he told him that the said two ceiling fans, which were his personal property, were got removed from his house and a false raid had been conducted on him at the instance of a teacher. According to the witness, these facts were disclosed by the appellant in the presence of the raiding Magistrate. The witness further stated that he told the Magistrate that the appellant was a pious person and that he (the witness) could swear for his innocence, upon which the Magistrate promised that he would look into the matter. The witness further stated that later on he met the Administrator of Municipal Committee, Faisalabad, and the D. S. P. who told him that a false case had been cooked up against the appellant.

Master Nazir Ahmad stated that M. C. Primary School was issued six ceiling fans out of which three were in use and the remaining were taken by the police from the School.

5. The learned counsel for the appellant contended that the confes sional statement allegedly made by the appellant immediately after the raid was recorded on oath, therefore, it is inadmissible in evidence. He further submitted that there is no evidence on the record that the appellant had taken the fans belonging to the School to his house; the fans which were recovered from the house of the appellant bore no identification marks regarding the ownership of the Municipal Corporation or the School and were never produced in Court, therefore, it is a case of no evidence. The learned State counsel conceded that except statement Exh. P. W. 4/B made by the appellant before the Magistrate, there is nothing on the record to show that the fans were property of Municipal Corporation or the School. He also conceded that statement Exh. P. W. 4/8 having been recorded on oath, is not admissible.

6. Having gone through the evidence, I find that the contention raised by the learned counsel for the appellant are well-founded. There is nothing on the record to show that the fans in question were ever produced in Court. The prosecution examined Akbar Ali and Nazir Ahmad in support of the recovery but they did not support its version and were declared hostile. The recovery of two fans is, however, admitted by the appellant but his case is that the said fans belonged to him. Except the confessional statement Exh. P. W. 4/B made by the appellant before the Magistrate immediately after the raid, there is nothing on the record to A show that the fans recovered from the house of the appellant were the property of the School or the Municipal Corporation. The Magistrate stated that he was not in a position to say whether the fans bore any identification mark of the Municipal Corporation. Abdur Rehman P. W. admitted that both the fans were "of usual shape as available in the market and did not bear any specific identification marks relating to the ownership of those fans by the Municipal Corporation", and they also bore no special mark with regard to the Primary School. The statement Exh. P. W. 4/B was recorded on oath and is, therefore, inadmissible in evidence. I am, therefore, of the view that the prosecution has not been able to bring home the charge to the appellant.

7. For the foregoing reasons, I allow this appeal, set aside the con viction and sentence of the appellant and acquit him of the charge. The fine, if recovered, shall be refunded to him.

M. Y. B. Appeal allowed.

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