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Criminal Appeal No. 633 of 1984, heard on 24th March, 1985.

‑‑‑S. 5(2)‑‑Penal Code (XLV of 1860), Ss. 409, 420 &415‑‑ Misappropriation‑‑Accused charged under S. 409, P.P.C. on allegation of criminal misappropriation but convicted under S. 420, P.P.C. Accused having not been convicted under S. 409, P.P.C. deemed to have been acquitted of that charge‑‑No evidence of fraudulent /dishonest inducement within meaning of S. 415, P.P.C. against accused found on record‑--Execution of receipts by accused at time of receiving money negating dishonest intention on his part in very beginning‑‑Important ingredients of offence of cheating punishable under S. 420, P.P.C., held, not made out‑‑Accused given benefit of doubt and acquitted in circumstances.

‑‑‑S. 5(2)‑‑Penal Code (XLV of 1860), Ss. 409 & 420‑‑Accused allegedly receiving certain amount from two persons and misappropriating same‑ Trial Court convicting accused under S. 420, P.P.C. High Court giving benefit of doubt to accused ‑and acquitted him‑‑Accused not claiming amount allegedly recovered from him‑‑High Court directing to pay amount allegedly recovered from accused to effected persons.

Muhammad Nawaz Kharral for Appellant.

Bashir Baig for the State.

Date of hearing: 24th March, 1985.

This criminal appeal arises from the judgment of learned Special Judge Anti‑Corruption, Lahore whereby he on 17‑11‑1984 convicted Muhammad Yaqub appellant under section 420, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to 6 months' R.I. and a fine of Rs.1,000 in default thereof one month's R. I.

2. The appellant was Naib‑Qasid. The charge against him was that he criminally misappropriated Rs.2,550 received by him from Jan Muhammad P.W.1 and Faqir Muhammad (not produced). He denied the charge and claimed to be tried.

3. To prove its case prosecution examined 8 witnesses. They supported the prosecution case.

4. When examined under section 342, Cr. P. C. the appellant denied all incriminating circumstances. While admitting his signatures on receipts Exhs. P.F. and P.G. he explained that the same were obtained through pressure. In defence he produced three witnesses.

5. Learned counsel for the appellant submits that there was no evidence of any cheating against the appellant, therefore, he could not have been convicted under section 420, P.P.C. Conversely, the learned counsel for the State supported the judgment of the trial Court, on the ground that the learned Special Judge after having framed charge under section 409, P.P.C. was quite competent to convict the appellant under section 420, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947.

6. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the appellant. I find that the appellant was charged under section 409, P.P.C. on the allegation of criminal misappropriation of Rs.2,550 received by him from Jan Muhammad and Faqir Muhammad: that he having not been convicted under section 409, P.P.C. is deemed to have been acquitted of that charge; that there is no evidence of fraudulant/dishonest inducement within the meanings of section 415, P.P.C. against the appellant and that the execution of receipts Exhs. P.F. and P.G. by him at the time of receiving the money negates dishonest A intention on his part in the very beginning. Since from the evidence brought on record, important ingredients of offence of cheating punishable under section 420, P.P.C. are not made out, therefore conviction of the appellant under section 420, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 cannot be sustained.

7. For what has been stated above, giving him the benefit of doubt, the appellant is acquitted of the charge.

8. The appellant has not claimed Rs.2,550 allegedly recovered from him and that 'Taqavi Loan' of Rs.2,550 was deposited by Jan Muhammad and Faqir Muhammad during investigation of the case, I would, therefore, like to direct that the amount allegedly recovered from the appellant be paid to Jan Muhammad P.W.7 and legal heirs of Faqir Muhammad equally. The learned trial Court shall summon Jan Muhammad P.W. and also legal heirs of Faqir Muhammad and pay them the amount under intimation to the Registrar of this Court.

H. A. K. Appeal accepted.

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