ADMINISTRATOR, MUNICIPAL COMMITTEE Versus SHAMIM AKHTAR

Muhammad Ramzan son of Muhammad Usman, Senior Clerk in Education Department, Mianwali was tried by Special Judge Anti‑Corruption, Sargodha, for an offence under sections 409, P.P.C. and 5(2) of Prevention of Corruption Act, 1947. The learned trial Court vide Judgment dated 14‑5‑1988 convicted him under section 409, P.P.C. and sentenced to 7 years' R.I. and a fine of Rs.60,000 or in default thereof 2 years' R.I. It was directed that the fine, if realized, Rs.8,658 be paid to the legal heirs of Nawaz, deceased; Rs.19,489 to the legal heir of Moqarrab deceased, and Rs.19,729 to the legal heirs of Maqbool Hussain. deceased. He was also given the benefit of section 382‑B, Cr.P.C.

2. The prosecution story, in brief, is that the appellant was working as Cashier in the Education Department. Muhammad Nawaz, Muqarrab Khan and Maqbool Hussain were employed as Teacher in the Education Department, Mianwali. Maqbool Hussain died on 25‑4‑1986, whereas Nawaz and Moqarrab died on 2‑9‑1986 in an accident. In the G.P. Fund account of Nawaz, deceased, there were Rs.8,658 in the G.P. Fund account of Moqarrab were Rs.19,489; and in the account of Maqbool were Rs.19,729. The legal heirs of the three deceased made applications for the payment of amount. Muhammad Iqbal P.W. prepared the bills with regard to the drawal of the amounts of G.P. Fund on 26‑11‑1986 in respect of the above‑said three deceased and gave the same to the appellant. The said bills were passed by the District Accounts Officer on 3‑12‑1986, on presentation by the appellant. The appellant received the above‑mentioned amounts from the National Bank of Pakistan, but did not pay the same to the legal heirs of the above‑mentioned deceased. The deeds of the appellant came to light and a case was got registered by Aftab Ahmad, P.W., District Education Officer on 7‑5‑1387, on the basis of which F.I.R. Exh.P.J. was registered.

3. After usual investigation the case was submitted in Court again‑the accused. The prosecution in support of its case has produced 11 witnesses in a1. P.W.1 Sadar‑ud‑Din has proved the amount available in G.P. Fund account o; each deceased, mentioned above. He has also stated that on the application of the widows of the deceased he enquired from Ramzan appellant, who informed that he had drawn the amount but would make the payments later. P.W.2 Muhammad Iqbal, Junior Clerk in the Office of D.E.O. proved the register regarding the payment of G.P. Fund. He hay also stated that he prepared the G.P. Fund bills with regard to the above‑mentioned three decease which are Exh.P.A./1, Exh.PA./2 and Exh.P.A./3. P.W3 Allah Dad, Senior Clerk took over the charge of Cashier from the appellant on 15‑1‑1987. P.W.4 Aftab Ahmad has stated that on 30‑12‑1986 he was working as District Education Officer, Mianwali. The widows of the deceased persons gave applications that they had not received the G.P. Funds of their husbands. On verification, he found out that the amount in question was drawn by the accused but did not pay the same to the widows of the deceased persons. He was given a notice to make good the payment but failed to do so. P.W.5 Jameel Akhtar Shah has stated that Maqbool Hussain deceased was his father‑in‑law; he met the appellant in connection with the payment of G.P. Fund of said Maqbool Hussain, who informed him that he had drawn the amount from the Bank and would make the payment. He has ‑further stated that he met the appellant number of times but on each occasion he made promises but never made the payment. P.W.6 Khalid Saifullah is son of Moqarrab Khan deceased. He has stated that the appellant drew the amount from the Bank but did not make the payment to them. P.W.8 Muhammad Farooq Bhatti C.O./A.C.E. partly investigated the case and submitted the challan in Court. P.W.9 Raza Muhammad has stated that Moqarrab Khan deceased was his friend, therefore, he used to meet the appellant for the payment of G.P. Fund of Moqarrab Khan deceased to his legal hears but the appellant did not make the payment. P.W.10 Ahmad Nawaz is son of Muhammad Nawaz deceased. He met the appellant number of times for the payment of G.P. Fund of his father but he did not make the payment. P.W.11 Ch. Muhammad Ashiq registered the case on 7‑5‑1987 against the appellant. He recorded the statements of the witnesses, arrested the accused and secured the record pertaining to the case, and thereafter he was transferred.

4. The appellant made statement under section 342, Cr.P.C. twice. One statement was made after the statement of P.W.7 had been recorded, wherein he admits that he submitted bills Exh.P.C., Exh.P.D. and Exh.P.E. to the National Bank of Pakistan for the drawl of the amount of Rs.19,4799 Rs.8,658 and Rs.19,729 and received cash in respect of the above‑said bills because he was authorised by the then District Education Officer to receive the payments. Thereafter, at the conclusion of the prosecution case, he again made a statement denying the prosecution. In answer to a question he stated that he had drawn the amounts in question from the National Bank of Pakistan and thereafter handed it over to Shaja‑ud‑Din, the then District Education Officer who retired on 15‑12‑1986 and took away the said amounts with him to Karachi.

5. It is contended by learned counsel for the appellant that the only evidence against him is that he drew the amount from the Bank, but there is no evidence that he misappropriated the same. Contends that it has come in the evidence that the appellant was only authorized to draw the amount The function of disbursing the amount was retained by the District Education Officer, therefore, he cannot be saddled with the responsibility of misappropriation. Submits that Shaja‑ud‑Din, the then District Education Officer was never associated with the investigation of this case and thereby the case of the appellant has been prejudiced. Learned counsel for the State has controverted the contentions of the learned counsel for the appellant.

6. I have heard the learned counsel and gone through the evidence with their assistance. As far as the question of drawing the amount from the Bank for the legal heirs of the three deceased teachers is concerned, I need not comment upon it, as the prosecution has produced three witnesses in support of it and the appellant has also admitted having received the amount from the Bank. The only question to be determined for the decision of this appeal is whether the appellant after drawing the amount gave it to the then District Education Officer or retained it himself. The statement made by the appellant on 4‑4‑1988 at the conclusion of the statement of P.W.7 is to the effect that he received the amount in question from the Bank. in that statement he has not said a word that he passed it on to the then District Education Officer. Similarly, it has come in evidence that he had received the amount in respect of G.P. Fund of one of the deceased on 15‑12‑1986, whereas it is also in evidence that the said District Education Officer retired on 15‑12‑1986. In these circumstances, it is unimaginable that the appellant would hand over the amount to an officer who is retiring the same day. Jami1 Akhtar, P.W.5, son‑in‑law of Maqbool Hussain, deceased, was cross‑examined, wherein he said that he met the then District Education Officer twice as well as the appellant, but they suggested to seek them after 2/4 days. Similarly, Khalid Saifullah, P.W.6, son of Moqarrrab (Chain, s deceased, stated that he also met the District Education officer m connection with the payment of the G.P. Fund who promised to make the payment, which as never done. From the trend of cross‑examination, it is clear that at no stage any of the witnesses were suggested that when they came in contact with the appellant, he informed them that he had already given the amount in question to the Distract Education Officer. Absence of this suggestion to any of the witnesses; is conspicuous. The test time the appellant takes up the plea that he had given the amount to the District Educations Officer, in his statement under section 342, Cr.P.C. at the conclusion of the prosecution evidence. In these circumstances, it can safely be held that the plea is an after though arid ago reliance can be placed on it.

For the reasons discussed above, I am of the view that the prosecution evidence inspires confidence and can safely be relied upon. Therefore, the appeal fails which is, accordingly, dismissed.

M.Y.H./M‑1116/L Appeal dismissed.