INAYAT ULLAH KHAN Versus State
1. SHAHID HAMEED DAR, J.--- Inayat Ullah Khan appellant has called in question the judgment dated 28.6.2003 passed by the learned Special Judge (Central), Faisalabad whereby he was convicted for an offence under section 409, P.P.C. and sentenced to rigorous imprisonment for seven years and fine of Rs.6,00,000/- (six lacs) or in default thereof to rigorous imprisonment for one year with the benefit of section 382-B, Cr.P.C. He was not, however convicted/sentenced under section 5(2) of the Prevention of Corruption Act, 1947 as in the wisdom of the trial court, any conviction and punishment thereunder might have led to a situation of double jeopardy.
2. Briefly stated the relevant facts giving rise to this appeal are that the District Superintendent, Post Offices, Sargodha despatched a written application (Exh.PC) to the Senior Superintendent of Police, District Sargodha vide memo No.F-2/I/99-2000, dated 22.12.1999 alleging therein that Inayat Ullah Khan (appellant), Postmaster Remount-Depot post office, Sargodha had fraudulently withdrawn and misappropriated an aggregate amount of Rs.9,47,755/- from a number of customers' accounts, maintained at the said post office, by forging their signatures; he made bogus entries in their passbooks and other relevant record in between year 1996 to 1999; he admitted his guilt during the departmental inquiry and refunded an amount of Rs.1,00,000/- to the department but he made lame excuses as to return of the balance amount, Rs.8,47,755/-. The copies of statements of the account-holders and that of his own were appended with the said letter and it was undertaken that original passbooks and payment forms would be tendered later-on. A request was made by the scribe, district superintendent, post office, Sargodha that the remaining amount (Rs.8,47,755/-) might be recovered from the accused and deposited in the treasury. List of accounts, tampered-with (Exh.PD and Exh.PD/1), was attached with the above-said letter.
2. On receipt of the application (Exh.PC), case-FIR No.4/2000, was registered on 4.1.2000 for offences under sections 409, P.P.C. and 5(2) of the Prevention of Corruption Act, 1947, at Police Station Jhal Chakian (Sargodha), which was later-on transferred to Federal Investigating Agency Faisalabad for investigation as Inayat Ullah Khan accused was an employee of the Federal Government. The competent authority directed vide memo. No.D22/Misc.-F/248/99/4134, dated 5.4.2000 that a separate case be registered against the accused by the FlA, whereon FIR No.C/13-2000 (Exh.PE/I) was recorded on 20.4.2000 for offences under sections 409, P.P.C. and 5(2) of the Prevention of Corruption Act, 1947, at police station FIA Faisalabad, by Inspector-FIA Ramzan Shahid PW (since dead), on the basis of complaint (Exh.PE), which had been scribed by Nazir Ahmad SI/FIA (P.W.29), who incidentally is the lone investigating officer of this case.
3. Initially, the Investigating Officer (PW.29) sought permission from the magistrate concerned to investigate this case and on having been accorded the permission, he recorded statements of the prosecution witnesses under section 161, Cr.P.C.; seized attested copies of the relevant record including passbooks, ledgers and vouchers, also known as warrants of payment, vide memo of recovery (Exh.PB); inspected original record of the attested photo copies; he arrested the accused on 9.2.2000 and interrogated him; he detected the modus-operandi whereby the accused-appellant misappropriated and embezzled the withdrawn amounts of money, which showed that he used to make correct entries in the passbooks of the account-holders, but not show the deposit-amounts received by him in the ledgers and in some cases he received the passbooks from the customers/PWs, got the vouchers (warrants of payment) signed by them and withdrew the money from their accounts but paid nothing to them, in certain cases, he detected that the accused made forged signatures and affixed fake thumb impressions on the record to withdraw various amounts of money through fraud; he found the accused guilty and submitted challan against him before the trial court for his trial in accordance with the law.
4. In the trial court, the appellant denied the charge against him as false and claimed a trial. The prosecution produced twenty eight (28) witnesses to prove the charge against him, one out of whom, namely Muhammad Khurshid, an account-holder, was inadvertently recorded twice as P.W.2 and P.W.25, with the difference that his earlier statement as P.W.2 did not follow the cross-examination, whereas it was so done when recorded as P.W.25. The line-up of the prosecution witnesses comprised Ghulam Abbas, account-holder (P.W.1), Muhammad Khurshid, account-holder (P.W.2 and P.W.25), Sikandar Zulqarnain, postal clerk Sargodha (P.W.3), Muhammad Khalil, Assistant Superintendent, Post Offices, Sargodha (P.W.4), Mst. Kaneez Bibi, account-holder (P.W.5), Mst. Ghulam Sakina, account-holder (P.W.6), Mst. Sakeena Bibi, account-holder (P.W.7), Muhammad Iqbal, account-holder (P.W.8), Lal Khan, account-holder (P.W.9), Muhammad Zafar Iqbal, account-holder (P.W.10), Abdul Hameed, account-holder (P.W.11) Fiaz Hussain, account-holder (P.W.12), Muhammad Iqbal, account-holder (P.W.13), Liaqat Ali, account-holder (P.W.14), Khadim Hussain, account-holder (P.W.15), Muhammad Baqir, account-holder (P.W.16), Muhammad Afzal, account -holder (P.W.17), Muhammad Aslam, account-holder (P.W.18), Haji Noor Muhammad, account-holder (P.W.19), Mst. Akbar Bibi, account-holder (P.W.20), Mst. Hayat Bibi. account-holder (P.W.21), Mst. Ghulam Fatima, account-holder (P.W.22), Inspector/SHO Muhammad Pervaiz Ahmad (P.W.23), Adalat Khan, account-holder (P.W.24), Muhammad Hussain, account-holder (P.W.26), Sher Afzal, account-holder (P.W.27), Ijaz Afzal Khokhar, divisional superintendent postal services (P.W.28) and Nazir Ahmad. (Retd.) SI/FIA (P.W.29). The Inspector Legal FIA gave up five prosecution witnesses, Muhammad Boota Nazar Hayat, Ghulam Ali Zahid Imran and Tasawar Iqbal being unnecessary on 8.3.2003. He also gave up Inspector Ramzan Shahid (since dead) on 24.3.2003 and closed the prosecution evidence.
5. On his turn, the accused/appellant tendered statement under section 342, Cr.P.C. on 25.3.2003 and a supplementary statement in addition thereto on 14.6.2003. whereby he denied all the allegations against him being baseless and professed his absolute innocence in the matter. In reply to question No.27, as to why this case against him and why the PWs had deposed against him, he stated as under:-
3. "I was falsely implicated in this case due to departmental hostility with Ejaz Ahmad Khokhar P.W. who was then District Suptd. on the basis of concocted story. All the P.Ws made statements against me under the influence of the said Officer who procured private witnesses as well."
4. He did not opt to depose under section 340(2), Cr.P.C. nor he led any evidence in defence. On conclusion of his trial, learned trial court pronounced the appellant guilty of the charge and sentenced him accordingly through the impugned judgment, detail given in opening paragraph hereof.
6. Before this case/appeal be heard and decided in final terms, the appellant had served the entire sentence and released from the prison on 13.8.2007, as is manifest from the report, submitted by the superintendent, central jail, Mianwali on 30.4.2013.
7. Learned counsel for the appellant did not look much enthusiastic about this appeal and he half-heartedly argued that the appellant had already suffered a lot, having been dismissed from service despite refunding an amount of Rs.1,00,000/- to the department, besides he served eight long years in jail as a convict and it was high time that he might be shown some leniency by this court. Learned counsel could not, however explain as to what sort of lenience in the present situation could be afforded to the appellant. Feeling the hollowness of the desire, learned counsel took to the plea that trial of the appellant stood vitiated because of joinder/misjoinder of the charges, which misled him in his defence and resulted in grave miscarriage of justice. He also contended that the evidence led by the prosecution was discrepant and inadequate to sustain conviction of the appellant, therefore, he may be acquitted of the charge.
8. Learned Standing Counsel for Federal Government strongly believed that no illegality had been committed by the learned trial court by conducting one combined trial of the appellant in fourteen (14) separate cases/reports under section 173, Cr.P.C. filed by the prosecution against him. He vociferously argued that single charge for an offence under section 409, P.P.C. was sustainable and unassailable against the appellant as he did not feel prejudiced nor he raised any such objection during trial; it was a self-contradictory argument on behalf of the appellant that he had refunded an amount of Rs.1,00,000/- off the embezzled amount and for this reason he ought to be treated with leniently. Lastly contended that the appellant did not deserve any leniency so appeal in hand being misconceived may be dismissed.
9. From the evidence led it transpires that Inayat Ullah Khan appellant was postmaster of the Remount-Depot post office, where many a persons of the area, inclusive of the prosecution witnesses (Nos.1, 2, 5 to 22 and 24 to 27) recorded and some given up, had opened saving accounts so as to preserve their savings. It was a two man office (Remount-Depot post office), other being the naib qasid, who was not made to join the investigation nor any suspicion was ever shown against him during investigation by the post office department. Being the postmaster, his duty involved not only collection and transmission/ deliverance of the mail but also open and maintain accounts of the customers/depositors, besides keeping the relevant record of receipts and withdrawals in relation thereto up-dated single handedly. In other words, he was all in all there and did an ommium-gatherum sort of duty, which required him to show unimpeachable and aboveboard character, but he could not resist the lure of minting easy money by freely toying with the saving-accounts. According to the allegations, he inserted false and bogus entries in the passbooks of the depositors and in the ledgers of the office so as to withdraw various amounts of money, aggregating Rs.9,47,755/- between years 1996 to 1999. He committed criminal breach of trust by misappropriating money and negotiating bogus entries in saving-accounts. Detail of the accounts tampered with and amounts of money misappropriated enlisted in Exh.PD and Exh.PD/l, formed an integral part of the application (Exh.PC), submitted by the deputy superintendent post office, Sargodha for registration of case against the appellant, which is reproduced hereunder:-
5. Sr.No.
6. Account No.
7. Name of account holder.
8. Date of withdrawal
9. Amount withdrawn/ misappropriated
10. 1.
11. SSA3384
12. Liaqat Ali
13. 24.3.1998 6.4.1998
14. Rs.40,000/-
15. 2.
16. 199480
17. Mst. Kaneez Bibi
18. 20.6.1998
19. Rs.9,000/-
20. 3.
21. SSA3547
22. Ghulam Sakina
23. 10.02.1998 14.02.1998
24. Rs.61290/-
25. 4.
26. 209531
27. Muhammad Baqir
28. 12.03.1998
29. Rs.10,000/-
30. 5.
31. 210665
32. Abdul Hameed
33. 30.06.1999
34. Rs.7,000/-
35. 6.
36. SSA9594
37. Fayyaz Hussain
38. 08.09.1998 29.05.1999
39. Rs.32460/-
40. 7.
41. 214946
42. Muhammad Iqbal
43. 27.02.1998 11.03.1999
44. Rs. 11000/-
45. 8.
46. SSA10777
47. Akbari Begum
48. 05.01.1998 22.06.1999
49. Rs.50,000/-
50. 9.
51. SSA7105
52. Muhammad Aslam
53. 19.01.1999
54. Rs.45,000/-
55. 10.
56. SSA7511
57. Ghulam Abbas
58. 27.05.1999
59. Rs.25,000/-
60. 11.
61. 186875
62. Ghulam Fatima
63. 13.06.1998
64. Rs.3500/-
65. 12.
66. SSA14419
67. Sher Afzal
68. 15.01.1999
69. Rs.30,000/-
70. 13.
71. SSA7157
72. Lal Khan
73. 20.08.1997 07.09.1997 14.02.1998 24.08.1998 20.10.1998 21.09.1998
74. Rs.76,375/-
75. 14.
76. 199654
77. Muhammad Afzal
78. 27.06.1998
79. Rs.80,000/-
80. 15.
81. 190022
82. Hayat Bibi
83. 02.06.1998 04.09.1998
84. Rs.30,000/-
85. 16.
86. 14734
87. Zafar Iqbal
88. 13.02.1999 03.04.1999
89. Rs.70,000/-
90. 17.
91. SSA 10004
92. Muhammad Hussain
93. 06.04.1998
94. Rs.20,000/-
95. 18.
96. SSA 14403
97. Muhammad Khursheed
98. 07.06.1999 08.06.1999
99. Rs.37,400/-
100. 19.
101. SSA 14547
102. Nazar Hayat
103. 1999
104. Rs.10,000/-
105. 20.
106. 192176
107. Muhammad Boota
108. January, 1999
109. Rs.20,000/-
110. 21.
111. SSA9893
112. Tasawar Iqbal
113. 14.02.1998
114. Rs.50,000/-
115. 22.
116. SSA13542
117. Khadim Hussain
118. 01.03.1999
119. Rs.30,000/-
120. 23.
121. 198540
122. Noor Muhammad
123. 01.05.1999
124. Rs. 12,000/-
125. 24
126. SSA8648
127. Noor Muhammad
128. 16.11.1997 02.06.1999
129. Rs.35,000/-
130. 25.
131. SSA9198
132. Adalat Khan
133. 12.05.1998
134. Rs.20,000/-
135. 26.
136. 200272
137. Muhammad Iqbal
138. 08.07.1997
139. Rs.3500/-
140. 27.
141. SSA3739
142. Sakina Bibi
143. 16.08.1997 05.12.1998 02.06.1999
144. Rs.87,675/-
145. 28.
146. SSA952
147. Zahid Imran
148. 01.02.1999
149. Rs.24080/-
150. 29.
151. 199589
152. Zahid Imran
153. 07.01.1996 19.03.1998
154. Rs.7300/-
155. 30.
156. SSA5158
157. Ahmad Ali
158. 13.01.1997
159. Rs.10,000/-
160. Though, the Investigating Officer (P.W.29) said nothing in his statement as to having prepared fourteen (14) separate reports under section 173, Cr.P.C. for trial of the accused yet it could be so found from paragraph 2 of the impugned judgment. It can be deciphered from the record that the accused had been separately charge-sheeted in all fourteen (14) cases by the learned trial court for offences under sections 409, P.P.C. and 5(2) of the Prevention of Corruption Act, 1947 on 22.4.2002 for his separate trial in each of the said cases, but it did not happen as such, for, learned trial court reconsidered the strategy and amended the charge on 21.1.2003 by bringing all the cases/transactions under one umbrella so as to conduct his trial under section 235, Cr.P.C. in one go. Learned trial court has elaborated this fact in paragraph 3 of the impugned judgment by showing the emphasis that the parties did not object to the "consolidated trial".
10. It would be an important question as to whether conviction and sentence of the appellant were sustainable in the eye of law when thirty (30) transactions of the same nature were tried in a single charge, apparently in contravention of section 234, Cr.P.C., which underlines that three offences of the same kind committed within one year may be charged together. It is Chapter XIX of the Criminal Procedure Code, 1898 which relates to framing of charge for commencing trial of an accused and it runs from sections 221 to 240, which provide specifications as to how a charge should be framed and what would be the essentialities thereof. The language and narration of the charge must specify the offence by name and if it has got no name, the definition of such offence be described so as to enable the accused to fully understand, what offence he was being charged with. The constituents of the charge include time, place and manner, in which the alleged offence was committed. There may appear some error or omission as regards particulars of the charge framed but it shall not be regarded as material unless the indictee was misled by it or such error or omission resulted in failure of justice, as envisaged by section 225, Cr.P.C. A court may alter the charge in view of some exigency under section 227, Cr.P.C. and if such alteration has been effected, section 228, Cr.P.C. would come into play which provides that charge-framed, if altered or amended or given an addition thereto, would still keep exclusive discretion of the court intact to proceed with the trial believing it to be the original charge, notwithstanding the alteration or amendment made. The court stands empowered under section 229, Cr.P.C. to direct a new trial alter addition or alteration to the charge if in its opinion the continuation of the trial after the said change(s) in the charge would cause prejudice to the accused. The witnesses may be recalled for their examination under section 231, Cr.P.C., when charge is altered. In exercise of their revisional jurisdiction, the High Court or the Court of Session or the appellate court may direct a new trial, if it emerged that accused had been misled in his defence by the absence of a charge or by error in the charge. For every distinct offence, there shall be a separate charge as contemplated under section 233, Cr.P.C. and every such charge shall be tried separately except in cases mentioned in sections 234, 235 and 239, Cr.P.C. The definitions of all four provisions of the Code (sections 233, 234, 235 and 239, Cr.P.C.) are advantageously reproduced hereunder:-
161. Section 233, Cr.P.C.
162. "Separate charges for distinct offences. For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235, 236 and 239."
163. Section 234, Cr.P.C.
164. "Three offences of same kind within one year may be charged together. (1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, and number of them not exceeding three.
(2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Pakistan Penal Code or of any special or local law:
165. Provided that, for the purpose of this section, an offence punishable under section 379 of the Pakistan Penal Code shall be deemed to be an offence of the same kind as an offence punishable under section 380 of the said Code, and that an offence punishable under any section of the Pakistan Penal Code or of any special or local law shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence."
166. Section 235, Cr.P.C.
167. "Trial for more than one offence . (1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
(2) Offence falling within two definitions. If the act alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.
(3) Acts constituting one offence, but constituting when combined a different offence. If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for, the offence constituted by such acts when combined, and for any offence constituted by anyone, or more, of such acts.
(4) Nothing contained in this section shall affect the Pakistan Penal Code, section 71."
168. Section 239, Cr.P.C.
169. "What persons may be charged jointly. The following persons may be charged and tried together, namely:
(a) persons accused of the same offence committed in the courses of the same transaction:
(b) persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence.
(c) persons accused of more than one offence of the same kind, within the meaning of section 234 committed by them jointly within the period of twelve months;
(d) persons accused of different offences committed in the course of the same transaction;
(e) persons accused of an offence which includes theft, extortion or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of property possession of which is alleged to have been transferred by any such offence committed by the first named persons, or of abetment of or attempting to commit any such last named offence;
(f) persons accused of offences under sections 411 and 414 of the Pakistan Penal Code or either of those sections in respect of stolen property the possession of which has been transferred by one offence; and
(g) persons accused of any offence under Chapter XII of the Pakistan Penal Code relating to counterfeit coin, and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges."
170. Remaining sections 236 and 240, Cr.P.C. relate to the situations in which it is doubtful what offence has been committed by the accused and whether a person charged with one offence can be convicted of another, and when withdrawal of remaining charges on conviction of the charged person on one of several charges may be effected with the consent of the court. It all shows that the Criminal Procedure Code has laid down an elaborate procedure for framing of the charge and the rationale behind it is that the accused should know the exact nature of the accusation made against him and that he may not be misled by any vagueness in the charge and that no miscarriage of justice should result due to any flaw therein. Besides the specific provision of section 225, Cr.P.C., there is section 537, Cr.P.C. which inter alia lays down that no finding or sentence or order passed by the court of competent jurisdiction shall be reversed on account of any error in the charge or joinder of charges and that to determine whether any error, omission or irregularity in this regard has occasioned failure of justice. A constituent of afore-noted provision of the Code tells that, "the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
11. The appellant did not object to the act of the court when it formulated composite/joint/amended charge on 21.1.2003, after having separately charged him once, on 22.4.2002 for the same offences in fourteen (14) separate cases/challans, having been submitted against him by the police-FIA. Even afterwards, he did not claim to have been misled in his defence nor he incorporated any plea in the instant appeal that consolidation of charges had resulted in miscarriage of justice. He was charged by the trial court for similar offences, i.e. under section 409, P.P.C. and 5(2) of the Prevention of Corruption Act, 1947 on both the occasions, hence, new/amended charge against him certainly remained same. Learned trial court interviewed him again at the time of amending the charge and recorded his statement in Q n' A form separately, but he said nothing as to having been misled by the amended charge. The allegation against the appellant was explicit and could not be described as vague. He did not show any anxiety nor he raised any objection as to the said proceedings of the court and he felt contended for most part of the trial and even in his statement under section 342, Cr.P.C, when he had all the time in the world to come up with any sort of objection as to framing of composite-charge and his "joint-trial" by the learned trial court, he said nothing in relation thereto. He, however raised a couple of objections in this regard before the trial court at the stage of final arguments, which have been meticulously dealt with, vide paragraphs 47 to 50 of the impugned judgment. The incumbent situation could not be deemed to have resulted in any sort of prejudice or injustice to the appellant. The Hon'ble Supreme Court of Pakistan while discussing an identical situation in Shah Nawaz v. The State, reported as 1992 SCMR 1583, has held as under:-
171. "11. Legal position, correctly and aptly stated in the case of Nadir Shah, supra, by the Supreme Court is that while three offences/items are permitted to be combined under one charge as contemplated by section 234, Cr.P.C., such limitation is not applicable in the case of criminal breach of trust in which several offences committed within a period of one year, are permitted to be combined under one charge as is allowed under section 222(2), Cr.P.C. Another rule laid down is that errors committed in stating either offence or particulars of charge or omissions in such behalf are not material unless accused is misled by such errors or omissions and failure of justice is occasioned. Considering the instant case in the light of legal position stated above, we find that in the charge framed in the trial Court, six items of misappropriation have been cited jointly showing total amount misappropriated and to that extent single charge for offence under section 409, P.P.C. is sustainable and unassailable particularly, when we find that appellant in this case was not prejudiced and no such objection was raised by him in the trial Court as is apparent from the record. To that extent charge is separated and saved as legal and proved on the basis of evidence and punishment awarded under that count is upheld."
172. It cannot be assumed that prejudice is possible in this case nor would it be inferable that trial stands vitiated in the backdrop of the amended-charge. In these circumstances, it would not be advisable to annul the impugned judgment on this score alone. The fortification in this regard may be sought from a judgment of the Indian Supreme Court, in Moti Das and others v. The State of Bihar (AIR 1954 SC 657). wherein at page 659, it was observed, "but a mere imperfection in the charge cannot he used to over-throw a conviction unless prejudice can be shown. The irregularity is curable both under section 225 and section 537 of the Criminal Procedure Code." The appellant cannot be considered to have been prejudiced in any manner due to consolidation of charges and his single trial thereunder, as contemplated under section 537, Cr.P.C. The objection taken by the learned counsel for the appellant in this context is rejected.
12. Coming to the facts and circumstances of the instant case, we note that the appellant accumulatively misappropriated Rs.9,47,755/- from as many as thirty (30) saving-accounts and on detection of the wrong-doing, he refunded a sum of Rs.1,00,000/- to the department of the twenty eight (28) prosecution witnesses, twenty three (23) happened to be the account-holders, who deposed about, almost identically, in terms that they maintained saving-accounts at post office Remount-Depot, Sargodha, where Inayat Ullah Khan (appellant) worked as the postmaster, who forged their signatures or affixed their fake thumb impressions and fraudulently debited their accounts to withdraw certain(specific) amounts of money, which he himself made use of and misappropriated them all. The accused did not cross-examine Ghulam Abbas (P.W.1), so his statement and allegation contained therein would be deemed to have been accepted by him. The statements of the other account-holders have also not been seriously challenged by the accused, though he had cross-examined them. Sikandar Zulqarnain, postal clerk. Fraud-Branch, GPO Sargodha (P.W.3) produced the relevant record (Exh.P1 to P3 and Exh.P4 to P240) before the Investigating Officer, who took it into possession vide memo. of recovery (Exh.PB). He testified it being marginal witness thereof. His statement was recorded by the court in two parts, firstly, on 21.1.2003 and secondly, on 30.5.2003. When he deposed for the first time, the original version of the record produced was not before him therefore, learned trial court marked production thereof as Mark-1 to 237 and on his second appearance, the original documents were presented, so the above-said unattested photo copies were legally admitted as secondary evidence after their comparison inter se. All the documents (Exh.P4 to P240) bear the signature and stamp of the learned trial court. The said documents included copies of the passbooks, vouchers and that of the ledgers. Muhammad Khalil, assistant superintendent post office, Sargodha (P.W.4) initiated inquiry against the accused on receipt of complaints from Mst. Akbari Begum (P.W.20) and Muhammad Aslam (P.W.18) as to defalcation of certain amounts of money by him from their accounts, opened with Remount-Depot post office, whereafter a full fledged inquiry was conducted by him and he, on checking the relevant record concluded that the accused (appellant) had embezzled/misappropriated an amount of Rs.9,47,580/- from thirty (30) accounts. He admitted to have scribed the inquiry report, which has been tendered in evidence as Exh.PA. He stated to have recovered Rs.1,00,000/- from the accused, but he did not prepare any memo of recovery in this regard. He voluntarily added in his statement that the amount recovered had been credited to the relevant head. The volunteered portion of his statement was not challenged by the accused, hence, it shall be deemed a true fact. Ijaz Ahmad Khokhar, district superintendent post office, Sargodha (P.W.28), as he then was, contended in his statement that he got an inquiry conducted into the misdeeds of the accused, which unearthed embezzlement of Rs.9,47,755/- by him. He prepared complaint (Exh.PC) and list of accounts, tampered with (Exh.PD and Exh.PD/1), which formed basis for registration of FIR. (Exh.PE/1). Nazir Ahmad SI/IO (P.W.29) investigated the case and took to various measures, including seizure of attested copies of passbooks, ledgers and vouchers vide memo. Exh.PB: arrested the accused (appellant) and interrogated him, brought to light the modus-operandi, through which the accused made illegitimate withdrawals from the accounts and misappropriated the funds. He found the accused fully involved in the occurrence and submitted challan before the court.
13. Learned trial court appeared to have dealt with the matter painstakingly as it took up each entry of embezzlement/misappropriation of funds one by one discussed it in the light of deposition(s) of the prosecution witness concerned, by referring to relevant entries of Exh.PD and Exh.P4 to P240 and drew well based conclusions as to veracity of the allegations against the accused. It may be learnt from the impugned judgment that prosecution could establish the charge against the appellant to the extent of Rs.5,39,500/-, as against alleged misappropriation of Rs.9,47,755/-. The break-up of the proven embezzled-amount and names of the effected account-holders have been given in paragraph 62 of the impugned judgment, which is, in fact, a gist of exhaustive discussion, made by the trial court on twenty three (23) allegedly embezzled-accounts, in paragraphs 15 to 41 of the impugned judgment. The accused was not held guilty in respect of certain entries of embezzlement/defalcation, which fact has been elaborated with equal clarity and argumentativeness in relevant paragraphs of the impugned judgment.
14. So far as admission of Photostats of the ledgers, passbooks and vouchers in (secondary) evidence (Exhs.P4 to P240) is concerned, there can hardly be found any legal flaw in it, as correctness thereof had obviously been ascertained by comparing them the original. This is how secondary evidence has been led by the prosecution under Articles 74 and 76 of the Qanun-e-Shahadat Order, 1984.
15. The defence plea of the accused that he had been falsely involved in this case due to departmental rivalry with Ijaz Ahmad Khokhar (P.W.28), the district superintendent post office, Sargodha and that he engaged a troop of private witnesses to depose against him, is nothing but a mere gossip. He ran the affairs of Remount-Depot post office single-handedly and there was no one else in his office to oppose him. The only other staff, a naib qasid could hardly pose any threat to him in the discharge of his duties. The district superintendent (P.W.28) is an important prosecution witness, who tendered crucial evidence during trial without showing any soft corner for him. It may be for this reason that he has been targetted and shown as a villain by the accused. No importance can be attached with the plea of the accused, which is rejected being non-sensical.
16. It could not be believed that it was not the appellant, who had misappropriated the money. He was the postmaster and incharge of the said post office with only one staff-member, the peon/naib qasid, who had nothing to do with the active business of the said office. His duty might have included cleansing of the office, moving a few files hither and thither administering some drinks and serving tea etc. to the postmaster in a day's business and nothing else. The accused, was the only person, responsible for accounting of money, hence, he was the one who had misappropriated the same. He admittedly received the sums from the prosecution witnesses and posted fraudulent entries in their accounts as well as in the ledgers of the office to digest the amounts withdrawn. The defalcation relates to a large number of items spread over a period of three years and during this period he remained posted there in the said capacity. The appellant cannot claim by any argument that he was a menial staff. The circumstances of this case are incompatible with the innocence of the appellant, which led to the inescapable inference that he had misappropriated the moneys himself alone. I have no hesitation in holding that the appellant was admittedly entrusted with the public monies in his capacity of a public servant and he had committed criminal breach of trust in respect thereof and an offence under section 409, P.P.C. had been proved against him beyond any reasonable doubt. I would, therefore, uphold the judgment and sentence passed by the learned special judge (Central), Faisalabad. In effect, I dismiss this appeal.
173. ZC/I-32/L Appeal dismissed.