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Criminal Appeals Nos. 1107 and 1108 of 1975, heard on 27th January, 198S.

---S.409‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑Accused working as cashier/ Accounts Clerk/Record Keeper in Municipal Committee‑‑Cash receipts executed by accused and entries made in different cash books‑‑Accused in his statement under S.342, Cr.P.C. admitting receipt of amounts allegedly misappropriated but failing to account for amount entrusted to him‑‑Accused failing to prove deposit of amount by him or by anybody in Bank‑‑Case against accused, held, proved beyond reasonable doubt‑‑Negligence on part of Secretary, Municipal Committee to check account daily or perform his duties properly would not entitle accused to acquittal.

Sardar Sami Hayat for Appellant.

Altaf Muhammad Khan for the State.

Khan Muhammad Bajwa for the Complainant..

Date of hearing: 27th January, 198S.

The two Criminal Appeal No. 1107 of 1975 arising from Case No. 179/2 of 1972 and Criminal Appeal No. 1108 of 1975 arising from case No. 178/2 of 1972, arises from the judgments of the learned Special Judge, Anti‑Corruption, Multan whereby he, on 29‑11‑1975, convicted the appellant under section 409, P.P.C. read with section 5(2) of the Prevention of Corruption Act and sentenced him as under:‑

"(1) In Case No. 179/2 of 1972 to three years' R.I. and a fine of Rs.8,000 in default thereof six months' R.I.

(2) In Case No.178/2 of 1972 to three years' R.I. and a fine of Rs.15,000 in default thereof R.I. for six months."

I propose to dispose of the two appeals through single judgment.

2. The charge in Case No. 179/2 of 1972 was that the appellant after having received different amounts from various persons from 10‑8‑1966 to 30‑7‑1967. The total whereof comes to Rs.7,906.84, criminally misappropriated the same.

3. The charge in Case 178/2 of 1972 was that the appellant after having received different amounts from various persons from 22‑8‑1967 to 8‑3‑1968, total whereof comes to Rs.14,383.48 criminally mis appropriated the same.

4. The appellant denied the charges and claimed to be tried. To prove Case No. 179/2 of 1972 the prosecution examined 18 witnesses. Muhammad Sabir Secretary, Municipal Committee P.W.1 stated that Bashir Ahmad appellant was working as Cashier/ Accounts Clerk/Record Keeper in Municipal Committee, Kamalia. It was his duty to receive the daily income from different heads and deposit the same in the Municipal Accounts and Funds Lyallpur Central Cooperative Bank, Kamalia and that when the accounts and daily cash book maintained by the appellant was checked, it was found that the appellant had embezzled Rs.7,906.84 received by him from 10‑8‑1966 to 20‑7‑1967. The witness also gave the details of the amount received and the receipts issued by the appellant from various persons. Mushtaq Ahmad, Sanitary Inspector, Municipal Committee, Kamalia P.W.2 stated that on 8‑2‑1968 appellant received Rs.1,013.88 from Falak Sher, Head Moharrar Octroi and signed Sadar Goshwara Exh.P.O. in his (witness) presence. Entry regarding the receipt of this amount was made by the appellant in General Cash Book Exh. P.Q. On 10‑2‑1968 the appellant received Rs.64S.56 from Falak Sher and signed Sadar Goshwara Exh. P.R. On 1‑2‑1968 Falak Sher handed over Rs.534.94 to the appellant. The appellant signed Sadar Goshwara Exh. P.T. in token of the receipt of the amount. On 18‑2‑1968 Falak Sher gave Rs.938.89 to the appellant who signed Goshwara Exh. P.V. On 25‑2‑1968 Falak Sher paid Rs.812.5 to the appellant who signed Sadar Goshwara Exh. P.Y. On 26‑2‑1968 Falak Sher handed over Rs.854.77 to the appellant who signed Sadar Goshwara Exh. P.AA. Faiz Muhammad P.W.3 stated that on 30‑7‑1967, he gave Rs.18 to the appellant who made entry in the General Cash Book. Muhammad Ishaq P.W.4 stated that he paid Rs.96, 67, 1.25, 66, 20 to the appellant from February, 1967 to July, 1967 and that corresponding entries were made in the General Cash Book. Muhammad Ali P.W.5 stated that on 29‑7‑1967 he handed over Rs.13.50 as house tax to the appellant vide entry Exh. P.J./2 in the General Cash Book. Falak Sher P.W. stated that on different dates he handed over different amounts to the appellant and that corresponding entries were made in the relevant register. Malik Abdul Ghani P.W.7 stated that he had given Rs.90 to the appellant. Muhammad Sharif P.W.8 stated that he gave Rs.1.50 to Bashir Ahmad appellant and entry was made in the General Cash Book by the appellant on 30‑7‑1967. Zulfiqar Ali Khan P.W.10 supported the statement of Falak Sher P.W.6 Barkat Ali P.W.11 stated that he paid Rs.5 as a building fee to the appellant, vide receipt Exh. P.NN. Wali Muhammad P.W.12 gave Rs.400 to the appellant vide receipt Exh. P.OO. Noor Muhammad P.W.15 paid Rs.475 to the appellant vide receipt Exh. P.VV. Chaudhry Muhammad Siddiq P.W.16 paid Rs.65 vide receipt Exh. P.SS., Rs.1,206 vide receipt Exh. P.TT. Rs.1,300 were paid vide receipt Exh. P.RR. to the appellant. Khushi Muhammad P.W.17 paid Rs.2.75 to the appellant vide receipt Exh. P.ZZ. Abdul Haq Bajwa, Sub‑Inspector investigated the case. He took into possession the receipts executed by the appellant and submitted challan against him.

5. When examined under section 342, Cr.P.C. the appellant, while admitting the receipt of different amounts from the P.Ws., stated that after having received the money he had handed over the same to the Secretary Municipal Committee. In defence he did not produce any witness and relied on written statement Exh. D. A. filed by him in case 178/2. The rest of the evidence is of formal nature.

6. In case 178/2 the prosecution examined 26 witnesses. Muhammad Sabir, Secretary P.W.17 stated that on checking of the account book, Bank Pass Book and General Cash Book he found that the appellant had embezzled Rs.14,383.48. The witness proved different entries made and receipts executed by the appellant. Falak Sher P.W.15 stated that he gave Rs.562.88 on 22‑8‑1967, Rs.1,013.88 on 8‑2‑1968, Rs.64S.56 on 10‑2‑1968, Rs.534.94 on 17‑2‑1968, Rs.938.89 on 18‑2‑1968, Rs.812.56 on 25‑2‑1968, Rs.884.77 on 26‑2‑1968 Rs.1,032.55 on 6‑3‑1968, Rs.780.29 on 7‑3‑1969, Rs.953.46 on 8‑3‑1968 vide Sadar Jinswar Exh. P.MM., P.NN., P.OO., P.QQ., P.QQ./1, P.RR., P.SS., P.TT., P.UU., P.VV., P.VV./1, P.WW. and P.WW/1 respectively. The witness further stated that the appellant had made corresponding entries regarding the receipt of the amount in the General Cash Book. Hashmat Ali P.W.1, Muhammad Shafi P.W.2, Abdul Ghani P.W.3, Muhammad Ramzan P.W.4, Wali Muhammad P.W.5, Ghulam Ali P.W.6, Muhammad Siddiq P.W.7, Muhammad Ramzan P.W.8, Muhammad Sharif P.W.9, Shams‑ud‑Din P.W.11, Syed Manzoor Hussain P.W.12, Abdul Ghafoor P.W.13, Muhammad Ali P.W.14, Muhammad Ishaq P.W.16, Zulfiqar P.W. 21, Faiz Muhammad P.W.22, Khushi Muhammad P.W.23, Mushtaq Ahmad P.W.25, Noor Muhammad P.W. 26 appeared to prove the payment of different amounts by them to the appellant through receipts executed by him and the corresponding entries made by him in the General Cash Book.

7. When examined under section 342, Cr.P.C. The appellant denied all incriminating circumstances. While admitting the receipt of the amount allegedly misappropriated by him, he stated that he had paid the same A to the Secretary. In defence he did not produce any evidence and filed written statement Exh. D.A.

8. Learned counsel for the appellant contended that prosecution has failed to prove its case beyond reasonable doubt; that there was inordinate delay in detection of the embezzlement by the Secretary; that the Secretary failed io check‑the accounts bills as required by the Rules; that the money had in fact been paid by the appellant to the Secretary and that in view of the observations made by the trial Court against Muhammad Sabir, Secretary in para. No. 32 of the judgment. There was no legal and factual justification fox the trial Court to convict the appellant and that it should have given the benefit of doubt to him. Conversely the learned counsel for the State has supported the judgment of the trial Court.

9. I have considered the arguments advanced by the learned counsel for the parties with care. I have not been able to peruade myself to agree with the learned counsel for the appellant. I find that from the oral and documentary evidence as detailed above, the entrustment of the different amounts by the P.Ws. to the appellant total whereof comes to Rs.7,906.84 in Case No.179/2 and Rs.14,383.48 in case 178/2 has been established beyond reasonable doubt. There are receipts executed by the appellant and entries made in different Cash Books by him. The appellant in his statement under section 342, Cr.P.C. admitted the receipt of the amounts allegedly misappropriated by him, the issuance of receipt by him and the corresponding entries made by him in the different Cash Books. After having received the amount it was the duty of the appellant to deposit the same in the Bank. The material question for consideration and determination is as to whether the appellant had deposited the money in the Bank/Treasury or not or that he has successfully accounted for the amount or not. I find that the appellant has failed to account for the amount which was entrusted to him. There is nothing on record to prove that the money was given by him to the Secretary. He did not care to produce any witness in whose presence the money was given by him to the Secretary. He also failed to prove the deposit of the amount by him or by the Secretary in the Bank. The submissions made by the learned counsel do not hold any water inasmuch as the negligence on the part of the Secretary to check the account daily or perform his duties properly, may not entitle the appellant (against whom the case stands proved beyond reasonable doubt) to acquittal.

10. For what has been stated above, there being no force, the two appeals are dismissed. It is however directed that the sentences awarded by the trial Court in cases 178/2 and 179/2 shall run concurently. The appellant shall surrender himself before the learned Special Judge, Anti‑Corruption, Lahore immediately. The learned Special Judge, shall also issue warrants for the arrest and detention of the appellant.

M. A. K. Appeal dismissed.

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