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Criminal Appeal No. 6 of 1985, decided on 25th November, 1986.

‑‑‑S. 409‑‑Prevention of Corruption Act (II of 1947), S. 5(2)‑‑ Misappropriation‑‑ Entrustment of property‑‑Accused allegedly collecting Rs.9,315 from students of school as Board Examination Fee but not depositing same with Board‑‑Accused allegedly confessing by letter to Minister of not depositing amount as his and his wife's salary for about 9 months was not paid by Department‑‑‑ Accused denying his responsibility to collect examination fee and forms from students‑‑Headmaster or class Teacher being responsible for collecting examination fee and forms neither Headmaster nor class teacher produced as witnesses‑‑No documentary evidence proving actual receipt of money by accused‑‑Letter of accused on basis of which report lodged, not admitted by‑ him‑‑Enmity alleged against complainant‑‑No evidence produced to substantiate entrustment of money and its misappropriation by accused‑‑Prosecution, held, had failed to prove case against accused beyond all reasonable doubt Accused acquitted by giving him benefit of doubt.

Abdul Qadir Halepota for Appellant.

A.I. Qurani for the State.

Date of hearing: 26th November, 1986.

The appellant has been convicted under section 409 P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947 by the judgment dated 7‑1‑1985 and sentenced to 6 months R.I. and to a pay a fine of Rs.10,000 or in default to undergo R.I. for two months more.

2. The facts in brief are that on 11‑6‑1977 complainant Wasiullah Qidwai, District Education Officer sent an application to the S. H .O. Malir Extension Police Station stating therein that accused Nizamuddin was incharge of Chaman Faiz‑e‑Alam Lower Secondary School, Malir Colony, Karachi. There being no secondary school in the locality, secondary classes were started in the building of Chaman Faiz‑e‑Alam Lower Secondary School on the strength of Arman Secondary School. The appellant was directed to supervise these classes as well. The appellant collected a sum of Rs.9,315 from regular students of IXth class during the month of September/ October 1976 as Board Examination, fee. He was required to deposit this amount with the Board of Secondary Education immediately on receipt. The appellant did not deposit the, amount but instead he returned all the examination forms of the students with a letter dated 6‑6‑1977 addressed to the Minister of Education, Government of Sind wherein he has confessed that he has not deposited the amount as his pay was not paid by the department for about 9' months. It is further alleged that the salary of his wife who was peon in the school was also not paid. After the registration of the case the investigation was conducted and the challan was submitted in the Court. The appellant was challaned under section 409 P.P.C. read with section 5(2) of the Act II of 1947. The accused denied the allegations.

3. The prosecution examined Wasiullah Qidwai P.W.1, Farzana Naz P.W.2, Shahnaz Akhtar P.W.3, Asma Begum P.W.4, Jaweed Mahmood P.W.5, Rukhsana P.W.6 and P.W.7 A.S.I. Muhammad Alam. The other prosecution witnesses cited in the challan namely, Surrya Shakoor, Akhtar Jehan, Muhammad Waris, Muhammad Irfan, Muhammad Younus, Muhammad Usman, Muhammad Siddiq, Miss Nina and Sirajuddin were given up by the prosecution. Either they were not available or they did not volunteer to come to the Court. The appellant did not plead guilty to the charge and stated that one Mr. Asad was the Head Master of Arman Secondary School and it was his responsibility to collect the examination forms from the students of IX Class and he was to certify the examination forms and that the examination fee is not collected by him. It was further stated by the appellant that in the month of September, he was transferred from Chaman Faiz‑e‑Alam School. The appellant produced four witnesses in his defence namely, Kareem Adil, Raees Ahmad Khan, Fareed Shah and Ahsan Ahmad Qureshi. The learned trial Judge convicted the appellant as stated above.

4. The case of the prosecution rests on the depositions of P.Ws. Shehnaz Akhtar, Asma Begum, Farzana Naz and Rukhsana. They have deposed that each of them had paid Rs.45 each to the appellant as examination fee. P.W 6 Rukhsana has stated that the accused has collected Rs.45 each from other students but she does not say that she has made., any payment. However, Rukhsana has admitted that it was the practice that the fee was to be deposited in the office.

D.W. Rais Ahmad Khan has deposed that Allauddin was class teacher and he collected the examination fee under the direction of Mr. Asad who was the Head Master of Arman Secondary School.

D.W.4 Ahsan Ahmad has said that he paid the examination fee to Mr. Allauddin. Thus, D.Ws. Rais Ahmad and Ahsan Ahmad have deposed in favour of the appellant. They were also students of Arman Secondary School. In the ordinary course the amount should have been paid to a functionary of the Arman Secondary School, either it should have been paid to the Head Master or to the class teacher. It has been deposed by the two D.Ws. that the amount had been paid to Master Allauddin under the direction of Head Master. Mr. Asad was also cited as a prosecution witness but the prosecution did not examine the witness. Prosecution also did not examine Allauddin, the incharge of the class. Naturally, the presumption would be against the prosecution. P.W. Asma Begum has not supported the prosecution as according to her, she paid examination fee only once and P.W. Rukhsana had admitted that fee was deposited in the office of the school. No documentary evidence has been produced to prove that the amount was actually received by the appellant. The report was lodged on the basis of Exh.3. stated to be a letter addressed by the appellant to the Secretary of Education in which it is stated that as his salary has not been paid, therefore, he is withholding the examination fee received by him from the students. The accused has not admitted this letter and the learned trial Judge has discarded Exh.3 from consideration. The prosecution has not led any other evidence to substantiate that the appellant has been entrusted with the property and that he misappropriated the same. The learned trial Judge has not considered the fact that the appellant has alleged enmity against Wasiuilah Qidwai P.W.1 and it is stated that this case was registered at his instance and he was inimical to him. The witness has admitted that the pay of the wife of the accused was withheld but he was not in a position to say that it was withheld for 8 months. He also admitted that he did not write any letter to the accused to receive his pay. He cannot say if he kept the pay of the accused for about 13 months with himself for three years and did not pay him. He also admitted that examination forms are certified by the Head Master and the accused was not competent to certify the forms. In these circumstances, it is clear that the prosecution has not been able to prove the case against the accused beyond all reasonable doubt. It was the duty of the prosecution to have produced the Head Master of Arman Secondary School to show that the forms were verified by the appellant. Even the forms have not been produced. As the appellant had no connection with Arman Secondary School, therefore, it is doubtful whether he had received the amount. The learned trial Judge has not considered the defence evidence. There are two sets of witnesses. The girl students say that they made payment to the appellant whereas the boys say that they made payment to the incharge of their class Mr, Allauddin.

5. Keeping in view of the above facts, the appeal is accepted as the appellant is entitled to the benefit of doubt. The conviction and sentences recorded against the appellant are set aside. He is on bail. His bail bonds are discharged.

S . A . Appeal accepted.

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