1977 PLP 24 (SCMR)

MUHAMMAD YAQUB ALI, J.-Habib Ullah, appellant, stands convicted under section 409, P. P. C. and section 5(2) of the Prevention of Corruption Act II of 1947 and sentenced on each count to three years' rigorous imprison ment. A fine of Rs. 1,000 has been further imposed on him under the latter enactment. Leave to appeal from the judgment and order of the High Court affirming the conviction and sentences was given to consider whether apart from the self-incriminating statement made by the appellant to the Magistrate who caught him accepting the tainted sum of Rs. 2,500 from Mumtaz Abroad P. W., there was any ether evidence on the record to sustain the conviction. The incident took place at Dera Ghazi Khan on 20th January 1966. The appellant was then posted as Store Keeper and his co-accused Inayatullah (acquitted) was Overseer Incharge of the P. W. D: (Irrigation) Workshop. On the 19th January 1966, Mumtaz Ahmad, P. W., lodged a complaint with the Anti-Corruption Department that Inayatullah had contracted to sell to him ten tons of iron bars from the Government stocks at Rs. 700 per ton. The sale price was to be paid in advance to Inayatulluh or in his absence to the appellant at the time when the iron bars were removed from the workshop. A raid party headed by Syed Riaz Hussain Jafri, Magistrate 1st Class, Dera Ghazi Khan, was accordingly arranged and the statement of Mumtaz Ahmad was recorded. On the following day, Mumtaz Ahmad reported that truck No. LI-6025 loaded with iron bars was standing inside the workshop and that the appellant would not allow it to move out until the sum of R s. 2,500 was paid to him. Mumtaz Ahmad was asked to produce currency notes of the value of Rs. 2,500 to be paid on to Inayatullah or in his absence to the appellant as part price of the iron bars. Mr. Jafri noted down the serial numbers of the currency notes and sent Mumtaz Ahmad ahead to the workshop. He was followed by the remaining members of the raid party, namely, Mr. Jafri, and Ch. Dil Muhammad, Inspector Anti-Corruption Department. As they reached near the workshop they saw a truck loaded with iron bars moving out of the workshop. Simultaneously, Mumtaz Ahmad came out the signal that the amount has been paid out to the appellant himself hurrying away towards the town. The truck was Mr. Jafri and at the pointing out of Mumtaz Ahmad, the apprehended. On interrogation, he produced from the fold of his shalwar a handkerchief in which were tied' the currency notes which bore the serial numbers which had been earlier doted down' by the Magistrate. On interrogation, the appellant made the following statement to the Magistrate;-- Both the appellant and Inayatullah were placed on trial before the Special Judge who acquitted the latter as no, evidence apart from the statement of the complainant was placed on record to connect him with the sale of the iron bars from the Government stock and passing on of Rs. 2,500 as part price thereof. The appellant was however found guilty on both the counts and sentenced as afore-mentioned. Having perused the record we find no warrant for the observations which appear in paragraph 7 of the judgment recorded by the learned Judge of the High Court that "there is not much evidence to implicate the appellant except his statement before the Magistrate who conducted the raid". Leave to appeal was, in fact, given only on the basis of this observation. Not only the receipt of Rs.2500 from Mumtaz Ahmad was admitted before the Magistrate, he also affirmed it in his statement under section 342, Cr. P. C. that he has received the sum of Rs. 2,500 in the form of currency notes Exhs. P. 1 to P. 50 for passing them on to Inayatullah, co-accused This material statement was supported by other -corroborative evidence that the amount was received as an installment of the price of ten tons of iron bait sold out of the Government stock to Mumtaz Ahmad, P. W. The Magistrate as well as Ch. Dil Muhammad, Circle Officer, deposed that when they reached near the workshop they saw 'a truck loaded with iron bars moving out. At the same time, Mumtaz Ahmad gave a signal that he had passed on the currency notes of Rs. 2,500 to the appellant. The appellant had earlier come out of the workshop and was hurrying away when the magistrate, at the pointing out of Mumtaz Ahmad, stopped him on the way. It is beyond doubt that the iron bars loaded in the truck belonged to Government. The appellant, as Store Keeper, was incharge of their custody. He did not plead that the iron bars found loaded in the truck were sent out from the workshop on Government account. If that were so there, an entry would have been made by him in the stock register showing the issue of iron bars for use in the construction of some work undertaken by the Department. Lastly, Mumtaz Ahmad, P. W. had no personal grievance against either accused to bring a false charge against them. In the light of the attending circumstances, mention above, not much imagination was required to conclude positively that the appellant had the guilty knowledge when he received the sum of Rs. 2,500 from Mumtaz Ahmad, P. W., that it was paid on account of illegal sale of Government iron bars which were entrusted to his custody as Store Keeper. At best it could be said that the primary beneficiary of the illegal transaction was Inayatullah, Overseer, who has been acquitted by the trial Judge, but this did not exonerate the appellant from being a party and a privy to the embezzlement of Government property and receiving illegal gratification. In the result, we find no proper ground to call in question the conviction and sentences imposed on the appellant by the Special Judge under section 409, P. P. C. and section 5(2) of the Prevention of Corruption Act If of 1947. The appeal is dismissed. The appellant is on bail granted by this Court on 8th January 1971. He must surrender to the bail bond and undergo the un-expired portion of his sentences. Appeal rejected.