MUSLIM COMMERCIAL BANK LTD. Versus ASSETS DEVELOPERS (PVT.) LTD
Through this criminal appeal, the appellant has challenged the judgment, dated 28‑5‑1988 passed by the learned Special Judge, Anti Corruption, Bahawalpur whereby he was convicted under section 409, P.P.C. and sentenced to suffer R.I. for two months and a fine of Rs.500 in default whereof to undergo further R.I. for one month. He was also convicted under section 5(2) of the Prevention of Corruption Act, 1947 and sentenced to two months' R.I. and a fine of Rs.200 in default whereof to undergo R.I. for one month.
2. The prosecution case as given in the F.I.R. Exh.P.W.8/A (No.495, dated 24‑i1‑1977 Police Station Civil Lines, Bahawalpur) is that during appellant's posting from 21‑1‑1976 to May, 1977 as Rent Controller of the Auqaf Department, he received rent of the shops belonging to the department from the tenants amounting to Rs.30,000 and did not deposit the same in the Bank account of the department. From August, 1975 to September, 1977 he had deposited an amount of Rs.8,013 out of the afore‑referred amount whereafter he was called to deposit the remaining one and on his failure, the case was registered. As the embezzled amount was relatable to more than one transactions, five challans were submitted in the learned trial Court and the amount embezzled in the instant case was Rs.214.
3. During trial, the prosecution produced nine witnesses. P.W.1 is Muhammad Shafi Akhtar who was, at the relevant time, posted as Head Clerk in the Auqaf Department. He produced Exh.P.1 to Exh.P.5 and Exh.P.W.2/A which were taken into possession by the Investigating Officer vide memo. Exh.P.W.2/B. Habib Ahmad Ghauri (P.W.5) was the District Manager of the Auqaf Department. He submitted that out of the total embezzled amount, after scrutiny, it was found that an amount of Rs.14,434 had already been deposited and Rs.16,366 were outstanding against the appellant. He presented his report in writing to the Investigating Officer which is Exh.P.W.A/2. A detailed break‑up of the amount received alongwith the relevant challan numbers were also produced by him before the Investigating Officer which are marked as Exh.P.W.3/A, Exh.P.W.3/B and Exh.P.W.3/C. Ghulam Mustafa S.I. appeared as P.W.6. Islamuddin appeared as P.W.2. He stated that he paid the rent amount of Rs.56 to Asghar Ali appellant and the appellant acknowledged the same by issuing receipt Exh.P.W.2/A. Similarly Abdul Ghafoor (P.W.3) stated that he paid Rs.22 to the appellant as a rent of the shop and he was issued receipt Exh.P.W.3/A. P.W.4 Shamshad Ali stated that he paid Rs.136 and was issued receipt Exh.P.W.4/A by the appellant. Mian Sanaullah appeared as P.W.7. Haji Muhammad Abdullah appeared as P.W.8 and Abdul Haq appeared as P.W.9. These are more or less formal witnesses.
4. When examined under section 342, Cr.P.C. the appellant denied the prosecution story and denied having received the amount in question. He attributed false implication to inter se rivalry within the department.
5. The learned counsel for the appellant has made following submissions in support of his appeal:‑‑
(i) That the so‑called receipts produced by P.W.2 Islamuddin, P.W.3 Abdul Ghafoor and P.W.4 Shamshad Ali are photostat copies and the prosecution has neither produced the original receipts nor receipt books without which it is not proved beyond a shadow of doubt that these were genuine receipts evidencing payment 'of the rent to the appellant;
(ii) P.W.1 and P.W.5 admitted that out of the embezzled amount i.e. Rs.30,800, an amount of Rs.14,434 already stood deposited and that only Rs.16,366 remained to be accounted for. However, there is nothing on record to indicate that the rent paid by P.W.2, P.W.3, P.W.4 which is the subject‑matter of this case, is part of the embezzled amount which remains to be accounted for; and
(iii) That the case was registered as far back as 1977 and since then the appellant is suffering the agony of trial and uncertainty.
6. The learned State Counsel has not seriously opposed this appeal and submits that the prosecution has not been able to point out as to when the amount was embezzled and as to whether the amount embezzled, which is the subject‑matter of this case, is not part of the amount which already stood deposited i.e. Rs.14,434.
7. I have heard learned counsel for the appellant as well as for the State and have also gone through the record.
8. P.W.1 Muhammad Shafi, Head Clerk of the Auqaf Department in his cross‑examination admitted that after the alleged embezzlement came to light, the appellant gave an application to the department for settlement of accounts and it was found that an amount of Rs.14,434 had already been deposited. He further admitted that the appellant had made an application to the department that the bank statement with regard to deposit of rent be requisitioned. The bank did not send the same despite being asked by the department again and again. He stated that the bank expressed its regret for not sending the requisite statement. Similarly Habib Ahmad Ghauri (P.W.5) who was the District Manager of the Auqaf Department admitted that after checking the record it was found that out of the embezzled amount an amount of Rs.14,434 already stood deposited and the remaining amount was embezzled by the appellant. In cross‑examination he admitted that after registration of the instant case, the appellant had given an application to the department for settlement of accounts and after the settlement it was found that the afore‑referred amount (Rs.14,434) had already been deposited. He conceded that he was not aware as to whether any prior, verification was made from the concerned Bank about the outstanding/embezzled amount of Rs.16,366. When Investigating Officer, Ghulam Mustafa (P.W.6) was cross‑examined, he admitted that he did not verify from the bank about the deposit or non‑deposit of the amount outstanding against the appellant. So far as the settlement of accounts are concerned, according to the Investigating Officer, the same was done by Muhammad Shari Akhtar, a Head Clerk of the Auqaf Department (P.W.1) and he (the Investigating Officer) was never associated with the same.
9. The aforegoing analysis of the prosecution evidence would indicate that the case was got registered in haste and when the appellant moved an application for settlement of accounts, it was found that an amount of Rs.14,434 already stood deposited and the only amount which remained to be accounted for was Rs.16,366. About this amount the Investigating Officer merely relied upon the opinion of P.W.1 Muhammad Shafi Akhtar (Head Clerk) who was entrusted with the assignment of settlement of accounts and he I admitted that he was neither associated with this exercise nor he made any' investigation of his own. In cross‑examination, he further stated that he did not even check the concerned Bank account qua the non‑deposit of the afore referred amount. The admission of P.W. Muhammad Shah that during settlement of accounts, the appellant had requested that the Bank statement be requisitioned and despite reminders to the Bank, the same was not supplied to the department further proves that the so‑called settlement of accounts was neither fair nor conclusive as the only unrebuttable document for deposit or non‑deposit of the embezzled amount would have been the Bank statement with regard to deposits.
10. Notwithstanding the quality of the exercise carried out in the name of the settlement of accounts the prosecution has failed to prove that the payments made through Exhs.P.W.2/A, P.W.3/A and P.W.4/A were part of the amount which was not deposited in the Bank account of the department. This amount could very well be part of the amount of Rs.14,434 which stood already deposited in the account.
11. The case was registered on 24‑11‑1977 and the learned trial Court convicted the appellant on 28‑5‑1988 i.e. almost eleven years after registration of the case. The appeal against the said conviction is being disposed of almost after seventeen years and that too on an evidence which failed to build up the edifice of the prosecution case strong enough to face a judicious scrutiny.
12. The statement of the appellant recorded under section 342, Cr.P.C. shows that the same was recorded in a slipshod manner. The prosecution witnesses admitted that out of the total embezzled amount (Rs.30,800) Rs.14,434 had already been deposited. It should have been put to the appellant that the embezzled amount which is subject‑matter of this case was not part of the amount already deposited. Neither the deposit slips nor Bank statements were put to him with a view to enable him to explain his position with regard to the charge.
13. For what has been discussed above, the prosecution has failed to prove its case beyond a shadow of doubt against the appellant to sustain a conviction under section 409, P.P.C. and 5(2) of the Prevention of Corruption Act, 1947.
Resultantly, this appeal is allowed and the judgment, dated 28‑5‑1988 passed by the learned Special Judge, Anti‑Corruption, Bahawalpur, is set aside and the appellant is acquitted of the abovesaid charges. He is already on bail and shall be discharged of the bail/surety bonds.
N.H.Q./A‑899/L Appeal allowed.