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Criminal Appeal No. 905 of 1979, decided on 19th September, 1984.

‑‑‑S. 409‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑Misappropriation‑‑Accused Sub‑Inspector Market Committee admitting receipt of money but giving explanation that out of money secured he paid certain amount to Administrator of Committee‑‑Accused not producing evidence to prove his plea‑‑Accused hopelessly failing to account for amount misappropriated by him‑‑Prosecution witnesses having no enmity with accused and standing test of cross‑examination‑‑Handwriting Expert proving signatures of accused on relevant documents‑‑Charge of misappropriation proved by oral as well as documentary evidence‑ ---Conviction of accused maintained by High Court but sentence of one year reduced to only fine of Rs.5,000 taking into consideration that accused lost his service and has suffered agony of protracted trial.

S.M. Abdul Wahab for Appellant.

Dil Muhammad Tarar for the State.

Date of hearing: 19th September, 1984.

This criminal appeal arises from the judgment of the learned Senior Special Judge, Anti‑Corruption, Lahore, whereby he on 29‑8‑1979 convicted Nasar Hussain appellant under section 409 read with section 5 of the Prevention of Corruption Act, 1947, and sentenced him to one year's R.I. and a fine of Rs.5,000 in default thereof to further R.I. for nine months.

2. The appellant was working as Sub‑Inspector Market Committee, Lahore. The charge against him was that he collected Rs.7,590 from various persons out of the same he misappropriated Rs.4,040. He denied the charge and claimed to be tried.

3. To prove its case, the prosecution examined seven witnesses Muhammad Nasar, Secretary, Market Committee, stated that the appellant had collected Rs.7,590 from various persons through receipts issued by him but out of the same he failed to deposit Rs.4,040, the Rs.1,700 were deposited on his behalf by Ghazanfar Ali, Inspector Market Committee and that Rs.1,750 were recovered from him by the police which were deposited with the cashier of the Market Committee. He further stated that the accused vide application Exh.P.W.1/E had requested for permission to deposit the cash collected by him on 9th and 10th December, 1977, but he failed to deposit Rs.4,040 out of the amount collected by him on those dates. P.W.2 Tariq Latif, Cashier made almost a similar statement. P.W.3 Iftikhar Ahmad detected the misappropriation and got the case registered with the police. P.W.4 Taj Din stated that the appellant had given him Rs.2,700 and whey, the appellant was arrested and detained in the jail, he got it back vide Ruqqa Exh.P.W.4/A. P.W.5 Muhammad Rashid A.S.I. had investigated the case. P.W.7 Qamar Ahmad Bhatti, Handwriting Expert had compared the signatures of the appellant on the two applications with specimen signatures and he gave positive report.

4. The accused when examined under section 342, Cr.P.C. admitted to have collected Rs.7,590 from various persons as alleged by the prosecution. He raised the plea of false implication. While accounting for the amount received by him he stated that Rs.5,500 collected by him on 9‑12‑1977 were handed over by him to the Administrator, Market Committee to meet the construction expenses and that the amount collected by him on 10‑12‑1977 could not be deposited because of Anti‑Corruption raid on him. He, however, did not lead any evidence in defence.

5. The learned counsel for the appellant submitted that the prosecution has failed to prove its case beyond the reasonable doubts and that there is reasonable possibility of the correctness of the plea raised 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 find that the assertions of the prosecution that the appellant received Rs.7,590 from various persons has been admitted by the appellant and that his explanation that the amount i.e. A Rs.5,500 collected by him on 9‑12‑1977 were given by him to the Administrator, Market Committee, has not been proved by him. He did not care to lead any evidence to show that he had given amount to the Administrator. In fact he had hopelessly failed to account for Rs.4,040 allegedly misappropriated by him. From the oral as well as documentary evidence brought on record I am fully convinced that the charge that the appellant had misappropriated Rs.4,040 is fully brought home to the appellant. The witnesses have no enmity with the appellant. They have stood the test of cross‑examination. The Handwriting Expert has proved the signatures of the appellant on the relevant documents. For all these reasons I am convinced that the trial Court has rightly convicted the appellant under section 409, P.P.C.

7. This brings me to the question of sentence. The learned counsel for the appellant has requested for leniency. In the circumstances that the appellant has lost his service and that he has suffered the agony of protracted trial, I am of the opinion that it may not be proper to send him back to jail. I, therefore, alter the nature of sentence from one year's R.I. to a fine of Rs.5,000 (Rupees five thousand only), in default thereof the appellant shall suffer R.I. for one year. The fine of Rs.5,000 (Rupees five thousand only) already awarded by the trial Court is maintained. Resultantly, the appellant shall deposit Rs.10,000 (Rupees ten thousand only) with the trial Court within three months, failing which the trial Court shall issue warrant for his arrest and detention.

H. A.

Sentence altered.

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