1982 P Cr (PLP)

The charge against Mukhtar Ahmad appellant was that from July, 1974 to June, 1975, as Senior Clerk, Auqaf Department, working as Accountant Badshahi Mosque, he in collusion with Manzoor Hussain Nazar, Section Officer, Management-cum-Administrator, Badshahi, Masjid, Auqaf Department, utilized for his personal use Rs. 2,468.50 belonging to the Government and thus committed criminal misappropria tion for the said amount under section 409, P. P. C. read with section 5 (2) of the Prevention of Corruption Act, 1947. He was further charged of having made false entries in the cash book of depositing Rs. 2,696.60 for which he made a false record and finally that he made false entries i in the cash book and thus fraudulently cheated the Department to the tune of Rs. 2,696.60. Similarly, Manzoor Hussain Nazar appellant who was working as Section Officer, Management-cum-Administrator, Badshahi Mosque, Auqaf Department, from June, 1974 to June, 1975 was charged of criminal misappropriation of a sum of Rs. 2,468.50 which amount belonged to the Auqaf Department and that he made false entries in the cash book for a sum of Rs. 2,696.60. He was further charged for having misappropriated the aforesaid amount as a result of false and fictitious entries.

5. The prosecution in order to prove the aforesaid charges produced 8 witnesses in all. It was on the report of Irshad-ul-Haq Kiani (P. W. 5) that the case was registered against the appellants. He depo sed that the audit was done in order to make sure whether there was any irregularity or misappropriation. He admitted that he did not name any particular officer responsible for the misappropriation. It was a general report "against the officials and the officer responsible for the collection and deposit in the Treasury". He deposed that he made certain observation against the two appellants but before submitting his report he did not call for nor did he obtain any explanation of the two appellants. Syed Anwar Samdani (P. W. 1), an Urdu Stenographer was under a duty to issue tickets to the Khadims of Badshahi Mosque, who used to keep the shoes of the visitors to the mosque and the minarets. The price of these tickets according to him used to be deposited with Mukhtar Ahmad appellant who was, in those days, acting as Accountant of Badshahi Mosque. The trial Judge after recording some of his examination-in-chief directed that the relevant register should be produced. The witness complied with the direction and produced the register on the next date, however, his evidence is not helpful to the prosecution. Abdus Saeed Khan Chaukidar (P. W. 2) said that Mukhtar Ahmad appellant was Accountant. Samdani (P. W. t) used to give tickets to him and others for visiting the minarets as well as tickets for keeping shoes which he used to get from the Deputy Sahib. The witness as well as those who received the tickets used to give account to Mukhtar Ahmad appellant and deposit the money with him. In cross-examination, the witness admitted that when Mukhtar Ahmad appellant used to be on leave, the sale proceeds of the tickets were to be handed over to Sh. Farooq Ahmad Supervisor. Zulfiqar Ali (P. W. 3), Khadim Badshahi Mosque stated that he used to -give tickets and charged 10 paisas per pair. Every evening the entire amount collected from the sale of tickets was to be deposited with Mukhtar Ahmad appellant. In cross-examination, this witness admitted that previously it was Mukhtar Ahmad appellant who was to give tickets but then when the tickets books were sent to the Deputy Sahib, Samdani (P. W.) used to give them tickets. Muhammad Jameel (P. W. 4), Audit Officer, Auqaf Department depo sed that Ch. Sanaullah, Auditor prepared the audit report under the orders of the Deputy Secretary, Auqaf and as Ch. Sanaullah was on ex-Pakistan Duty, he proved the report prepared by Ch. Sanaullah. Muhammad Jameel P. W. being colleague of Ch. Sanaullah, identified his writings as well as his signatures. Altaf Hussain, Khadim (P. W. 6) was on Hifazat-e-Paposh duty. His version was that he used to receive ticket books of 10 paisas each sometime from Zainul Abedin and sometimes from Samdani in the morning time and the total amount collected used to be deposited with the aforesaid two officials. This witness was declared hostile and on the request by the Special Public Prosecutor, he was allowed to be cross-examined. Syed Ghulam Ali Naqi (P. W. 7), another Audit Officer, identified the signature on the audit report Exh. P. A. prepared by Ch. Sanaullah. Mahboob Elahi, A. S. I. (P. W. 8) partly investigated the case, recorded statements of the P. Ws. under section 161, Cr. P. C. as well as of the accused-appellants and formally arrested them.

6. This is the entire prosecution evidence. Both the appellants denied the allegations and pleaded not guilty. Manzoor Hussain Nazar, appellant stated that he had been implicated due to enmity with Irshad-ul-Haq Kiani (P. W. 5). He admitted that Mukhtar Ahmad appellant was his subordinate and that he signed the cash book Exh. C. D. When questioned would he like to produce evidence in defence, his answer was in the affirmative. Mukhtar Ahmad appellant was also examined by the trial Court at length. He, too, pleaded not guilty and stated that he had been involved at the instance of Irshad-ul-Haq Kiani (P. W. 5). He further stated that at no stage he was required to furnish any expla nation. Even the audit was not done in his presence nor was he shown any record to prove that he was innocent. Both the appellants produced 7 witnesses in defence. Abdul Qayyum appeared as defence witness for Mukhtar Ahmad appellant. In the years 1975 and 1976 he was P. A. to Manzoor Hussain Nazar appellant. He deposed that Deputy Secretary had been giving orders to arrange for funds for functions on different occasions. 7hese orders were given verbally and later on confirmed in writing. This happened four or five times. Qasim Ahmad Kiani, Assistant in the office of Auqaf Depart ment, another defence witness for Mukhtar Ahmad appellant said that he knew both the appellants since he had been working with them. He was a Storekeeper and used to help Mukhtar Ahmad appellant in arranging the Shia-Sunni meetings. Light refreshments used to be served which included roasted chickens. Previously the Head-office had to arrange such meetings but later on this arrangement was entrusted to Badshahi Mosque but then it was for the officials of the Badshahi Mosque who acted under the Senior Officers of the Auqaf Department. Sometimes the expenses incurred were to be utilised from the income in hand which was obtained by Hifazat-e-Paposh and Sair-e-minar. Subsequently the bills used to be prepared, amounts withdrawn and necessary adjustments made. According to the witness, some of the deposited amounts which were alleged to have been misappropriated by the appellants were sanctioned by the competent authority for adjustment. Zafar Iqbal, Superintendent (D. W. 4) produced the file pertaining to Shia-Sunni Ittehad Committee for the year 1975. According to the file a sum of Rs. 1,850.85 was spent on entertainment of tea, etc. during the meetings. He admitted that there were no receipt books 169 in number regarding Sair-e-Minar and Hifazat-e-Paposh which were sum moned by the Court. Mukhtar Ahmad appellant was on leave from 6th January, 1975 to 17th January, 1975. He also admitted that there was no sanction by the higher officers for the expenditure of Rs. 1,850.85. Muhammad Imtiaz Farooqi, Supervisor, appeared as D. W. 5 do behalf of Manzoor Hussain Nazar appellant. He produced the contract file of Auqaf Department (Exh. D. A./A.) in which the relevant notings were exhibited as D.B./1 and D. C./1. These were seen by the Trial Judge and returned. Muhammad Jameel (D. W. 6) Audit Officer, Auqaf, audited the accounts of Badshahi Mosque and noticed a difference of Rs. 13,

500. During audit, some amount was deposited by the appellants and a sum of Rs. 3,400 was yet to be deposited. Muhammad Jameel was initially a prosecution witness but he was given up by the prosecution. Last defence witness is Sh. Farooq Ahmad. He stated that he was directed by the Deputy Secretary to put up the file regarding the Receptions. He stated that it were M/s. Samdani and Zainul Abedin who used to keep the tickets with them regarding Hifazat-e-Paposh and Sair-e-Minar. Both of them used to sit in the office of the Deputy Secretary, Auqaf and it was their duty to issue the tickets to the Khadimeen. He further stated that Manzoor Hussain Nazar appellant, as a matter of protest refused to sign the registers but later on at the instance of, the Audit party he put his signatures. He denied the suggestion that it were the two appellants who used to receive tickets regarding Sair-e-Minar and Hifazat-e-Paposh from Samdani and i then hand over to the Khadims. After hearing learned counsel for the parties, I am of the view that both the appeals must be allowed. The main reason for that is that although it was noticed by the trial Judge that the appellants produ ced seven witnesses in defence but I am really shocked to note that the trial Judge has neither referred to the statements of the two appellants nor did he mention a solitary word about the defence. As a matter of fact the defence was never considered. This is a glaring illegality due to which the judgment of the trial Judge cannot be upheld. I have also noticed some of the observations made whereby the weakness in the prosecution case has been ignored because "of some probability." There is no such thing as probability or possibility in a criminal case. A finding has to be based on some evidence. If the prosecution fails to produce any material evidence its benefit cannot be extended to the prosecution under the pretext of probability or possibility. Any such finding/observation by the trial Court amounts to conjecture. Before concluding, I would like to observe that the evidence produced by the prosecution is so weak that it will not be in the interest of justice to order retrial. For the foregoing reasons, I allow the two appeals of the appellants, set aside their conviction and sentences and acquit them. They are on bail. Their bail bonds stand cancelled. Appeals allowed.