MUNIR AHMAD Versus STATE
Munir Ahmad appellant who was Coolie WASA, Faisalabad Development Authority was tried by Mian Muhammad Nawaz Nekokara, Special Judge Anti‑Corruption, Sargodha under section 5(2)47 of Prevention of Corruption Act. He was found guilty and sentenced to six months' R.I. and a fine of Rs.5,000 in default whereof to undergo further R.I. for three months.
2. The prosecution story as narrated in F.I.R. (Exh.PC) lodged by Muhammad Ali,(P.W.1) through his application (Exh.PA) to Anti‑Corruption Establishment is that the appellant received Rs.500 each from him and from P.Ws. Tufail Ahmad, Jan Muhammad and Abdur Razzaq for installing water connection. It is alleged that the appellant did instal connections but he neither issued any receipt against payment of the aforementioned amount nor he deposited the same in the Government treasury. On 25‑2‑1989 P.Ws. recorded formal F.I.R. (Exh.P3) on the basis of a complaint (Exh.PA). The direction for registration of case was issued by Deputy Director, ACE vide Exh.PB. The investigation of the case was conducted by Mumtaz Khan (P.W.8) and having obtained sanction for prosecution vide Exh.PE the challan was submitted in the learned trial Court.
3. During trial, the prosecution examined ten witnesses. Muhammad Ali (P.W.1) deposed that he, Abdur Razzaq, Jan Muhammad, Tufail Ahmed and Sarfraz paid the water connection charges to the appellant but he did not issue any receipt. He stated that he paid Rs.500 but after the filing of complaint (Exh.PA) the appellant provided him a photostat copy of receipt for payment of Rs.468 only. He, however, admitted in cross‑examination that he had a quarrel with the appellant as water connection of others had been installed and the appellant did not pay any attention to him. P.W.2 Saadullah Khan stated that he recorded formal F.I.R. (Exh.PC) on the basis of complaint Exh.PA. According to P.W.3 Tufail Ahmed an amount of Rs.635 was given to the appellant for installation of water connection but he gave the receipt of the said amount only after the complaint was filed against him. In cross‑examination he stated that he did not remember the date of the payment of the money but volunteered that probably he made the payment to the appellant in February, 1989. P.W.4 Jan Muhammad also stated that he paid Rs.500 to the appellant but he did not give any receipt regarding deposit of the said amount in the WASA account. In cross‑examination he failed to point out the date of either the payment of money or the supply of water connection. Abdul Hameed alias Abdul Ghafoor appeared as P.W.5 and stated that Tufail Ahmed P.W. paid an amount of Rs.635 to the appellant whereas Abdul Razzaq, Jan Muhammad and Muhammad Ali paid Rs.500 each to the appellant. During cross examination, he stated that he did not remember the date of payment but he admitted that the payment was made in the year 1989. Abdul Razzaq (P.W.6) stated that he paid an amount of Rs.500 but the appellant gave him the receipt of Rs.468 only. In cross‑examination, he stated that he made the payment to appellant in June, 1988. He admitted that none else was present when he made the said payment to the appellant. P.W.7 appeared to state that Abdul Razzaq, Muhammad Ali and Tufail Ahmed P.Ws. did make payments to the appellant but he was not aware as to how much was paid by each witness. P.W.9 Mumtaz Khan is the Investigating Officer. He stated that on 26‑3‑1990 Nazir Ahmed Clerk of WASA produced vouchers Exhs.PD/1, PD/2, PD/3 and PD/4 evidencing deposit of Rs.468 by Jan Muhammad, Abdul Razzaq, Tufail Ahmed and Muhammad Ali P.Ws. respectively. P.W.9 Azhar Ali is Cashier in the Habib Bank. He deposed that the aforementioned vouchers were written by him in token of the deposit of the amount in the WASA account.
4. When examined under section 342, Cr.P.C., the appellant denied the charge and attributed false implication to enmity with the P.Ws. He produced D.W.1 Muhammad Tariq who deposed that he knew the appellant quite sometime and that the appellant is not in the habit of getting bribe.
5. The learned counsel for the appellant, while arguing his case, has raised following pleas:‑‑‑
(i) That the amount was paid by the P.Ws. in February, 1989 and the vouchers are also of the same month. This indicates that there was no misappropriation.
(ii) That the WASA of Faisalabad Development Authority made no complaint qua the non‑deposit of the amount in question which fact is borne out from the statement of their official who appeared as P.W.10.
(iii) That the money was deposited in the bank on 19‑2‑1989 whereas the case was registered on 25‑2‑1989.
6. The learned State Counsel has supported the impugned judgment and has submitted that the appellant is guilty of temporary embezzlement as he received the amount from the complainant and other P.Ws. in the year 1988 while deposited the same in treasury in February, 1989.
7. Having heard the learned counsel for the parties and having perused the record I am of the view that the judgment of the learned trial Court is not sustainable in law for following reasons:‑‑‑
(i) That none of the prosecution witnesses including the complainant has been able to point out the date on which they made the payment for installation of water connection to the appellant. In fact there is a material contradiction in their statements qua the date and month of payment. For instance P.W.5 in cross‑examination stated that the payment was made in the year 1989 whereas the complaint Exh.PA is dated 31‑10‑1988. P.W.6 states that he made the payment in June, 1988 whereas per complaint dated 31‑10‑1988 (Exh.PA) he made payment six months prior to complaint. P.W.3 Tufail Ahmed states that he made the payment in February, 1989. Thus, the prosecution story is not clear as to when the payment was made to the appellant. In this background of inconsistency qua the date of payment the factum of money having been deposited vide Exhs.PD/1 to PD/4 stands established. The charge of misappropriation or embezzlement therefore, has not been proved beyond a shadow of doubt.
(ii) That there is nothing in evidence to suggest that the money received from P.Ws. for installation of water connection was deposited in the treasury after the registration of case. In fact the evidence is to the contrary. The vouchers of the deposit of the amount in question i.e. Exhs.PD/1 to PD/4 are dated 19‑2‑1989 whereas the case was registered on 25‑2‑1989.
(iii) That two witnesses were mentioned in the complaint (Exh.PA) in front of whom the payment of Rs.500 was allegedly made to the appellant. Only one of them i.e. Rashid Ahmed (P.W.7) was produced and he could not tell as to how much amount was paid by Abdul Razzaq, Muhammad Ali or Tufail Ahmed P.Ws. In this view of the matter, the allegation that the appellant received Rs.500 and deposited only Rs.468 in the treasury remains uncorroborated. P.W‑3 Tufail Ahmed and P.W.5 Abdul Hameed negate Exh.PA in saying that the payment was made by the P.Ws. in the year 1989.
(iv) That in fact the statement of Tufail Ahmed P.W. that the appellant was given money in February, 1989 supports the defence plea as the vouchers (Exhs.PD/1 to PD /4) qua the deposit of the amount in question prove that the said amount was duly deposited in February, 1989 and there was no misappropriation.
(v) That no official of the WASH of the Faisalabad Development Authority appeared in Court to state that the amount in question was misappropriated or temporarily embezzled by the appellant. The learned counsel for the State has frankly conceded that the amount was duly deposited which is evidenced by Exhs.PD/1 to PD/4.
8. For what has been discussed above, the charge of misappropriation of the amount in question has not been proved beyond a shadow of doubt to sustain conviction under section 5(2)/47, Prevention of Corruption Act. I, therefore, set aside the impugned judgment dated 18‑11‑1992 passed by the learned Special Judge Anti‑Corruption, Sargodha and acquit the appellant. He is already on bail. He shall stand discharged from bail/surety bonds.
N.H.Q./M‑1924/L Appeal accepted.