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Criminal Appeal No.634 of 1984, heard on 29th January, 198S.

‑‑‑S.409‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑Accused not paying salaries to prosecution witnesses in time but paying same before registration of case‑‑Held, a case of temporary retention and not of criminal misappropriation‑‑Accused acquitted in circumstances.

Ghiasud Din for Appellant.

Noor Muhammad Paris for the State.

Date of hearing: 29th January, 198S.

This criminal appeal arises from the judgment of learned Special Judge, Anti‑Corruption, Lahore, Camp at Sialkot whereby he on 13‑11‑1984 convicted Naseer Ahmad appellant under section 409, P.P.C. as well as section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to 6 months' R.I. and a fine of Rs.2,000, in default thereof further R.I. for 2 months:

2. The appellant was Headmaster of a Primary School. The charge against him was that lie criminally misappropriated the salaries for the months of June of six teachers. He denied the charge and claimed to be tried.

3. To prove its case, prosecution examined 10 witnesses. Liaqat Ali P.W.3, Muhammad Shafi P.W.4, Muhammad Akram P.W.5, Shaukat Ali P.W.6, Noorul Hassan P.W.7 and Muhammad Nawaz P.W.9, the teachers appeared to prove non‑disbursement of their salaries by the appellant. Noorul Hassan P.W.7 did not support the allegations against the appellant. Liaqat Ali, Muhammad Shafi, Muhammad Akram, Shaukat Ali and Muhammad Nawaz P.Ws. stated that their salaries were not paid to them by the appellant in time. They, however, admitted to have received the salaries before the registration of the case. The rest of the evidence is of formal nature.

4. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. He stated that he had disbursed the salaries to the P.Ws. in time. In defence he produced Muhammad Yousaf D.W., who stated that according to the Acquittance Roll Register of the year, 1979, Liaqat Ali, Muhammad Shafi, Muhammad Akram, Shaukat Ali, Noorul Hassan and Muhammad Nawaz had received their salaries for the month of June, 1979 under their signatures.

5. Learned counsel for the appellant submits that the prosecution evidence accepted at its face value, no case of criminal misappropriation/ breach of trust within the meanings of section 409, P.P.C. is made out. Conversely, the learned counsel for the State has supported the judgment of the trial Court.

6. I have considered the arguments advanced by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the appellant. I find that from the prosecution evidence and the judgment of the trial Court, a case of temporary retention of the salaries of the teachers is made out. The leatned trial Court in para. No.19 of the judgment has stated that:

"It was a temporary retention of the salaries of his colleagues."

7. For what has been stated above, I am of the view that the prosecution has failed to prove the charges of criminal misappropriation and misconduct against the appellant beyond reasonable doubts. Giving him the benefit of doubt, the appellant is acquitted of the charge.

M. A. K. Appeal accepted.

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