MUHAMMAD AKRAM Versus THE STATE

The appellant was convicted under Section 409 PPC r/w Section 5(2) of Prevention of Corruption Act, 1947, by the learned Special Judge, Anti‑Corruption (Provincial), Karachi and sentenced to suffer R.I. for six months and also to pay a fine of Rs.10,000 or in default to suffer R.I. for six months more.

2. The brief facts of the prosecution case are that on 18‑1‑1982 Inspector Ishrat Yar Khan of Anti‑Corruption Establishment, Karachi lodged a report alleging therein that in connection with a enquiry regarding the affairs of Karachi Milk Plant and a misappropriation of Government funds a team of Commercial Auditors detailed by the Director, Commercial Audit, conducted the audit and found the following defalcation. That during the year 1978, an amount of Rs.7,330.68 was outstanding against Mohd. Akram son of Mohammad Ishaq, Junior Clerk, Karachi Milk Plant resident of Jacob Road, Hyderabad, which he did not deposit in the account of Karachi Milk Plant and misappropriated the same. After necessary investigation the appellant was challaned before the learned Special Judge, Anti‑Corruption (Provincial), Karachi, A formal charge was framed against the appellant to which he pleaded not guilty.

3. At the trial prosecution examined Mohammad Hassan P.W.1, who was working as Assistant Audit Officer in the office of Joint Director, Commercial Audit, Karachi Circle, in the year 1981. He had audited the accounts of Karachi Milk Plant from 30th July, 1981 to 23rd November, 1981. Two other persons had also worked with him. During the audit he found that sum of Rs.7,330.68 were outstanding against the Salesman Akram. This amount was neither deposited nor accounted for by Salesman Akram. He has produced the entries of the Register at pages 402 and 403 as Ex.8. He had issued Observation Memo in respect of the above shortage at Serial No.17 and its office copy has been produced as Ex.9. In cross‑examination he has denied the suggestion that he had stated in his police statement that amount of Rs.7,330 was outstanding against Malik Mohammad Ikram. He has further stated that if any milk is wasted on account of any reason in or outside the Milk Plant, no payment is made for it. He has further stated that in case the milk is wasted, a report is made and the enquiry is made for such wastage. It was incorporated that he stated before the police that amount of Rs.7,330.68 was outstanding against Malik Mohammad Akram.

4. Mohammad Qureshi P.W.2 has deposed that he was working as Plant Manager at the Milk Plant, Karachi. He knew accused Akram. He was appointed as Junior Clerk. He had also worked as Salesman. The accused had worked at the Milk Plant from 1972 to 1978 as a Salesman, and thereafter he had worked as a General Clerk till his services were terminated in the year 1980. As a Salesman it was his duty to sell the milk products of the Milk Plant, collect the cash, and deposit it in the Bank. Normally the accused was required to deposit the cash on the next day. Sometimes on account of holiday the accused used to deposit a cash on the third day or thereafter. In the year 1981 the accounts of Milk Plant were audited and it was found from the ledger that a sum of Rs.7,330.68 was outstanding against him. This amount was not deposited by the accused in the Bank. The audit party had issued observation Memo No.62 showing the other amounts including the above amount misappropriated by the present accused. The photostat copy of the observation memo. Ex.9 in the Court was received by him from the audit party. After receiving the above observation Memo, he directed the accused in writing ~to deposit the above amount, but he did not comply with my order. The above amount has not been deposited in the Bank so far. No salesman was authorised to spend any amount without. being sanctioned by the competent authority. In cross‑examination he has deposed that according to observation Memo Ex.9, the amount of Rs.7,330.68 was shown to be outstanding on 10‑1‑1980 against accused Mohammad Akram. The Milk Plant was closed down on 10‑1‑1980. The above amount pertained to the period when the accused was a Salesman. He had stated in his police statement that in the year 1977‑7n the above amount was outstanding against the accused. The amount outstanding against the accused did not pertain to the year 1975 only. He did not remember the amount which was outstanding against the accused in the year 1975. He had issued notices individually to each employees to deposit the outstanding amount. Anti‑Corruption Police had shown him photostat copy of the one application submitted by the accused to Deputy Director of the Milk Plant wherein he had stated that he had given Rs.600 to him. This application pertained to the year 1973. It is correct that amount outstanding against the accused included some amount which was not deposited by the accused in year 1972, also. He knows that the accused had stated in his application submitted by him in the year 1973 that he had given 8::.2,000 to contractor Muneer and Rs.696.60 to Riazul Haq, but the accused was not competent to give any amount to any contractor. He had stated in my police statement that it was in his knowledge that Mohammad Akram Qureshi has spent some amount for celebration of 'May tray' on the eve of arrival of Mr. P.K. Shahani, the then Adviser to the Chief Minister, Government of Sind in the year 1975, but this amount was not paid to him as the expenditure incurred was nut befitting to the occasion for which it was allowed by the Adviser Mr. P.K. Shahani He had not issued any letter to the accused wherein the accused was informed that the amount spent by him on the visit of Mr. P.K. Shahani would not be paid. To a question put by the Court, he stated that the accused was not authorised by him or by any other officer to spend any amount on the visit of Mr. P.K. Shdhani. He had not stated before the Police about the duties performed by the accused as a Salesman. He‑ did not remember if he had supplied photostat copy of the Observation Memo Ex.9 to the Anti‑Corruption Police. The memo does not show that the amount outstanding against Mohammad Akram was in respect of the year 1972 to 1978. He was not the immediate boss of accused. Marketing Officer used to work under‑ him by virtue of my being the Plant Manager. It is not correct that the accused had spent the amount on the event of visit of Mr. P.K. Shahani, the then Adviser to the Chief Minister under my instructions. ????????

5. Mohammad Khalid P.W.3 has deposed that' he; used to work as Accounts Clerk in the Milk Plant Karachi from 1975 to 1978. He used to maintain ledger‑book in respect of Karachi Milk Plant. The milk products supplied to the Salesman and the amount recovered and deposited in the Bank was mentioned in the ledger‑book, Accused Mohammad Akram used to work as Salesman in the Milk Plant. Whatever milk products were supplied to the accused and whatever the amount was collected by him and deposited in the Bank was mentioned in the ledger‑book. He had mentioned the account in respect of accused Mohammad Akram in ledger‑book Article "C" According to entries made at page 403 of the ledger, amount of Rs.7,330.68 was outstanding against the accused on 3‑6‑1978. The amount was brought forward by him from the ledger‑register of the last year. So long he remained in service in the Milk Plant, accused did not pay the above amount. He has produced the photostat copy of the entries made at page 403 of the Ledger Article "C" as Ex.12. He used to make entries in the ledger‑register on the basis of cheque‑sheet and the challans submitted by each Salesman before him. In cross‑examination he has deposed that in the year 1975‑76 amount of Rs.15,295.34 were outstanding against the accused. In the year 1976‑77 Rs.3,600.31 were outstanding against the accused. The remaining amount was paid by the accused. In the year 1977‑78 amount of Rs.7,330.68 were outstanding against the accused. He used to send the report to the Accounts Officer in respect of the amount outstanding against the Salesman and he remember that no action was taken by the authorities concerned for realisation of the amount outstanding against a particular Salesman. Voluntarily states that in some cases the Salesman were either transferred or they were relieved of their duties. The accused was promoted in the year 1978 and was posted as General Clerk. As far as he recollects in August, 1978 he had left the service. It is correct that some entries in the ledger‑book Article "C" are made in the hand of Israrul Hassan.

6. Ishrat Yar Khan P.W. 4 has deposed that on 18‑1‑1982 he was Inspector A.C.E. at Karachi. On that date he had registered the F.I.R. on behalf of the State against accused Mohammad Akram for misappropriation of Rs.7,330.68 of Karachi Milk Plant. He has produced the copy of F.I.R. as Ex.14. The Commercial Audit Party had audited the accounts of Karachi Milk Plant in the year 1981 and had issued on observation Memo No.62 which is Ex.9 in the Court and it was pointed out that accused Mohammad Akram had misappropriated Rs.7,330.68. This entry was shown in the observation memo. Ex.9 at Serial No.17 on 21‑1‑1982. He recorded the statement of Mohammad Hassan, Accounts Officer, who was the Member of the Audit Party. On 27‑1‑1982 he recorded the statement of Khalid Mehtab. On 1‑6‑1982 he was transferred and posted as Inspector Karachi Range Police Headquarters, Karachi and he handed over the police papers of this case in the office of Superintendent of Police, A.C.E., Karachi and thereafter this case was investigated by Malik Mohammad Khan.

7. Malik Mohammad Khan P.W. 5 has deposed that on 1‑6‑1982 he was D.S.P. Anti‑Corruption Establishment at Karachi. On that day the investigation of this case was entrusted to him and he received the police papers from Inspector Ishrat Yar Khan, who had registered this case. On 20‑9‑1982, he had verified the statements of witnesses recorded by Ishrat Yar Khan. He also recorded further statement of P.W. Mohammad Qureshi. After having completed the investigation of this case he sent the papers to Superintendent of Police A . C . E. for placing the same before the Anti‑Corruption Committee for prosecution. The sanction was accorded by the Anti‑Corruption Committee No.III which he has produced as Ex.17. On 3‑2‑1983 he submitted challan before the Court. Since the accused was not available, he showed him as absconder. The accused was granted bail by the Court on 2‑2‑1983.

8. After close of the prosecution case statement of the appellant was recorded under section 342, Cr.P.C. in which he denied the allegations and has further stated that he had spent the above amount on the party arranged in honour of P.K. Shahani. He had spent the above amount under the order of Mr. Nasrullah Bijrani, who was Project Director in the Milk Plant. He has further stated that he is in possession of the receipts in respect of the amount spent by him. He has produced the receipts and other connected papers in 8 leaves as Ex.21, according to which there were no dues against Mohammad Akram son of Mohammad Ishaq Junior Clerk of Karachi Milk Plant. He examined witnesses Dhani Bux Ex.24, Mohammad Siraj Ex.25 and Mohammad Ikram as Ex.26 in his defence.

9. I have heard Mr. Azizullah K. Shaikh learned counsel for the appellant and Mr. A . K . Jatoi learned counsel appearing for the State.

10. It was contended by Mr. Azizullah K. Shaikh that the appellant has lost his job and has suffered agony of protracted trial. He is prepared to deposit the amount, alleged to have been misappropriated and therefore, this Court may take a lenient view against him.

11. Mr. A . K. Jatoi, learned counsel appearing for the State has contended that since the appellant was working as a Clerk, he has lost his job, and is prepared to deposit the amount of fine, the Court may take lenient view against him.

12. In view of the above contention of the learned counsel Mr. Azizullah K. Shaikh appearing for the appellant it is not necessary to consider the evidence led by the appellant in his defence. The learned counsel appearing for the appellant has not challenged the prosecution evidence, and the conviction and sentence on merits. I have gone through the evidence led by the prosecution and I am satisfied that the prosecution has proved its case against the appellant beyond reasonable doubt, and therefore, the judgment of the trial Court does not call for interference.

13. In view of the fact that the appellant has lost his job, and has suffered agony of protracted trial from 1983 till today, I am of the considered view that the ends of justice will meet if the sentence, of imprisonment awarded to the appellant is reduced. In this connection I will refer to a Division Bench' decision of this Court reported in PLD 1985 Kar. 630.

14. In view of my above discussion, I reduce the sentence of imprisonment awarded to the appellant from six months to till rising of Court, but the sentence of fine of Rs.10,000 and in default to undergo R.I. for six months is maintained. The appellant is present and he is directed not to leave the Court till the Court hours are over. The appellant shall pay the fine within weeks, and if he fails to deposit the amount of fine, the learned trial Judge will issue non‑bailable' warrants against him so that he should undergo the sentence awarded to him in default of payment of fine. With this modification the appeal is dismissed.

I had disposed of this appeal on 7‑5‑1987 by a short order and these are the reasons for the same.

S.G.D./M‑313/K ???????????????????????????????????????????????????????????????????????????????? Order accordingly.