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Criminal Appeal No. 377 of 1980, decided on 6th November, 1984.

---S. 409--Prevention of Corruption Act (II of 1947); S. 5(2)--Evidence, appreciation of--Criminal breach of trust- -Entrustment of amount to accused as well as criminal breach of trust by him proved--Prosecution witnesses quite independent--Execution of receipts and signatures of accused on relevant documents not only proved but also admitted a', facts--Accused not denying receipt of amount from witnesses taking plea that he had passed on money so collected but leading no evidence in defence--Mere statement of accused that he had handed over money, held, not sufficient to prove plea raised--Accused rightly convicted air circumstances.

Nisar Qutab and Rashid Ahmad Ch. for Appellant.

Muhammad Siddiq for the State.

Date of hearing: 6th November, 1984.

This criminal appeal arises from the judgment of learned Special Judge, Anti-Corruption, Lahore whereby he on 5-4-1980 convicted Shafi Muhammad appellant under section 409, P.P.C. and section 5(2) of vie Prevention of Corruption Act, 1947 and sentenced him to 3 years' R.I on each count and a fine of Rs.10,000 collectively, in default therer.4 to further R.I. for 11 years with the direction that the sentence would run concurrently.

2. The appellant was a junior clerk/cashier in housing and Physical Planning Department, Lahore. The charge against him was that fro obtained receipt book No. 1090 in which he dishonestly showed less number of receipts and received instalments of plots from different persons during 29-12-1961 to 29-9-1962 and ultimately misappropriated Rs. 5,099.47. He denied the charge and claimed to be tried.

3. To prove its case prosecution examined 11 witnesses Muhammad Bashir P.W. 1 stated that he was allotted shop in Sodiwal scheme in the year 1960. He paid Rs.300.75 vide receipt Exh. P.A. and 85.109.25 ; vide Exh. P.B. as instalment of the price thereof to the appellant. He produced receipt Exhs. P.A. and P.B. executed by the appellant before the Investigating Officer, Abdul Ghafoor P.W. 2 stated that he paid Rs.719.90 towards final adjustment of the price of his plot to the appellant vide receipt Exh. P.D. executed by him. He produced receipts before the police, Sarfaraz Ahmad Khan P.W. 3 was Accounts Officer. He conducted enquiry against the appellant and submitted his enquiry report Exh. P.F. He further stated that from stock register Exh. P.C, he came to know that receipt book No. 1090 was issued to the appellant against entry Exh. P.G./1. He identified signatures of the appellant. He also stated that he had compared receipts Exhs. P.A., P.B., P.D., P.H., P.J., and money order coupons Exhs. P.K. to P.Y. with cash book and found that none of these receipts or money order coupon. were accounted for in the cash book Exh. P.Z., He identified that signatures of the appellant on money order coupons and also his initials below the rubber stamps. According to the witness, the aforesaid receipt were in the hand of the appellant, Qazi Muhammad Afzal P.W. 4 was Deputy Secretary. He deputed Sarfaraz Ahmad Khan P.W. Ls Enquiry Officer. On receipt of enquiry report he forwarded the same to Director. Anti-Corruption, Raza Rizvi Inspector, P.W. 5 prepared formal F.I. R. Exh. P.A.B./2 and took into possession receipts and other documents Sh. Muhammad Ahmad P.W. 6 was income-tax Officer. He stated that quarter No. 265 was allotted to him for Rs.3,062 to be paid in instalments. He paid first instalment of Rs.500 and got possession of the plot, Thereafter, he sent 9 instalments which after having received, the appellant did not enter in the relevant record. He produced money order coupons before the police. Malik Muhammad Rafiq P.W. 7 was allotted plot No. 428. He stated that he paid Rs.540 to the appellant vide receipt Exh. P.H. executed by him. The department, however, issued notice to him whereon he protested that he had already paid this amount to the appellant. He produced receipts before the investigating Officer. Muhammad Yaqoob, Handwriting Expert, P.W. 8 compared the signatures of the appellant on receipt Exhs. P.A., P. H., P.J. and on money order coupon Exh. P.K. to P.Y. and also stock register page 63 marked Exh. P.G./1. In his opinion, the signatures on the documents in question and sample of the signatures Exhs. P.A.F. and P.A.F./1 were of one and the same person. Mehboob Alam P.W. 9 stated that he was allotted Plot No. 463 in Rehmanpura. He paid Rs.1,881 to the appellant vide receipt Exh. P.J. which he subsequently produced before the police. Basharat Ali P.W. 10 was a Clerk in the same department. He stated that it was the duty of the appellant to collect cash from the allotees, to prepare receipts, to get the receipts signed from the Officer concerned and to deposit the money in the treasury. The witness further stated that receipt Exhs. P.A., P.B., P.D., P.H., P.J. and cash book Exh. P. 2 were prepared and signed by the appellant. According to the witness, the receipts and coupons which should have been entered in the cash book Exh. P. 2 were not entered by the appellant. Mian Muhammad Akram P.W. 11 partly investigated the case. He took into possession money order coupons.

4. When examined under section 342, Cr. P.C. the appellant admitted the execution of receipts Exhs. P.A., P.B., P.D., P.H., P.J. and his signatures on coupons Exhs. P.Y. and P.Z. His plea was that he gave the amount so collected to Basharat Ali Head Clerk. In defence he did not produce any evidence.

5. The learned counsel for the appellant contends that the prosecution witnesses are not reliable and that the prosecution has failed to prove misappropriation of the amount by the appellant. Conversely, the learned counsel for the State supported the judgment of the trial Court.

6. I have considered the arguments advanced by the learned counsel for the parties with care. I have not been able to persuade myself to agree with the learned counsel for the appellant. I find that there is ample oral as well as documentary evidence to prove the entrustment of the amount to the appellant as well as criminal breach of trust by him. The prosecution witnesses are quite independent witnesses. They have successfully stood the test of cross-examination. I do not see any inherent infirmity in their statements. The execution of receipts and his signatures on money order coupons are not only proved but also admitted facts. The appellant has not denied the receipt of the amount from the witnesses. His plea was that he passed on the money so collected to Basharat Ali but he did not lead any evidence to prove his plea. Mere statement of the appellant that he had handed over the money to Basharat Ali is not sufficient to prove the plea raised by him. After having received the embezzled amount it was for the appellant to account for the same which he has not been able to do. For all these reasons, I am convinced that the- appellant has. rightly been convicted by the trial Court. In the circumstances of the case, I feel inclined to reduce the sentence from 3 years' R.I. to 1i years' R.I. on each count. The fine of Rs.10,000 and imprisonment in default thereof) is, however, maintained.

M . A . K .

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