P L D 1984 Peshawar 273 (PLP)

The appellant Syed Noorul Hassan was convicted under section 409/468/ 471, P. P. C. read with sections 5 (2) of the Prevention of Corruption Act, 1947 by the Special Judge (Central) Anti‑Corruption, N.‑W. F. P., Peshawar ride judgment 3‑5‑1984 and sentenced to five years' R. 1. and to pay a fine of Rupees three lacs, or in default to suffer two years' further R. I.

2. By the present appeal the appellant has challenged his conviction and sentence.

3. The facts giving rise to this case are that an F. I. R. No. 61 wan lodged on 26‑5‑1979 by Mazhar A. Noorani Assistant Collector, Headquarters, C‑ E. and L. C. Peshawar in the office of the Director, F. I. A. Peshawar, disclosing therein, that on 8‑8‑1978 Iranian Rials amounting to 48,50,000 were seized in a case of F. I. R. No. 220, dated 8‑8‑1978 by the Customs Mobile Squad No. 1 of Peshawar Cantt The said Iranian currency was deposited in the Customs Warehouse on 20‑8‑1978, of which the appellant was incharge. Subsequently, it was found that seven lac rials out of the said currency had been misappropriated by the appellant and tampering was made in the ware house deposit register in the relevant entry. After conducting preliminary inquiry, the shortage was confirmed and it was requested that the appellant be tried under section 4(9/420/468/471, P. P. C. read with section 5 (2) of the Prevention of Corruption Act, 1947. The appellant was charged under section 409/468/471, P. P. C. read with section 5 (2) of the Prevention of Corruption Act, 1947 by, the learned Special Judge (Central) on 7‑3‑1981, to which he pleaded innocence and claimed trial.

4. The State produced seven prosecution witnesses out of whom two witnesses have been produced to prove the alleged entrustment of the money to the appellant.

5. P. W. I Mumtaz Ali, Deputy Superintendent Customs has stated that be was incharge of the Customs Mobile Squad No. 1 during the year 1978 and appellant Noorul Hassan was posted in the Customs Warehouse as Inspector check. The record of the warehouse as well as the property used to be in the custody of the appellant. On 8‑8‑1978 Iranian Rials amounting to 48,50,000 and Saudi Rials amounting to 65,000 were found in the possession of one Haji Ahmad and were recovered from him in the presence of P. W. Nasiruddin Alam and Umar, Inspectors. The former entered the seized currency in the seizure register of the Mobile Squad on the same date. The amount so recovered was kept in the warehouse as deposited and on the same day an entry was made in the warehouse register which was in the custody of the appellant. However, the appellant actually received this amount on 20‑8‑1978 when it was deposited in the warehouse through P. W. Amal Habib, Sepoy. On 18‑3‑1979, the appellant went to the office of this witness and disclosed that the currency was short by 7 lac Iranian rials. This witness then checked the entries in the warehouse ‑register and found that the figures of 48,50,000 had been scored off by a line and below an amount of 41,50,000 was written. The appellant admitted the making of this entry. The matter was then brought to the notice of the higher authorities and pre liminary inquiry was conducted by this witness whereafter the F. I. R. was lodged. This witness submitted his inquiry report on /2‑4‑1979, copy of which is Exh. P. 1/2. This witness has further stated that during the proceed ing of inquiry, audit report was also received from the department and it was also received from the department and it was also taken into consideration by him in making the inquiry. This witness has further stated that the recovered currency was deposited in the warehouse by inspector Nasiruddin Alam on 20.8‑1978. He denied the suggestion that actually 41,50,000 Iranian Rials were deposted in the warehouse. P. W. 2 Amal Habib has stated that about 48 Jac Iranian Rials were recovered and were kept in the safe by P. W. Mumtaz Ali. After some days the currency was deposited in the warehouse through Nasiruddin Alam Inspector. In cross‑examination, this witness has stated that a sealed bag was taken by Nasiruddin Alam and it was deposited with the appellant in the warehouse premises. P. W. 3, Nasiruddin Alam has stated that in his presence Iranian Rials amounting to 48,5.,000 were recovered from Haji Ahmad on 8‑8‑1978 and were entered in the seizure register an the same day and the appellant was asked to make an entry in the said warehouse register about the recovery of this amount. However, he actually handed over this amount to the appellant on 20‑8‑1978. This entry was scored off by the appellant and entry about 41,50,000 was made and the appellant had also initialied this entry with the date of correctness and made a further entry that this amount was received through Amal Habib Sepoy. P. W. Nasiruddin Alam came to know of this entry and inquired from the appellant as to why be had changed the entries and finding no satisfactory answer from him, reported the matter to P. W, Mumtaz Ali. This witness has further admitted that he had not given the number and denomination of the seized currency in the seizure register‑and that from 8‑8‑1978 to 20‑8‑1978 the recovered currency remained in the safe custody of P. W. Mumtaz Ali. The other witnesses are of formal nature.

6. In this examination under section 342, Cr. P. C. the appellant Noorul Hassan has stated that on the date of the seizure of the said currency he was asked to give a D. A. number of 48,50,000 Iranian Rials on 8‑8‑1978. He did so at the direction of P. W. Mumtaz Ali, but the said amount was deposited with him on 20‑8‑1978 through P. W. Amal Habib Sepoy and when he counted the currency, he found that it was short by 7 lacs. He, therefore, wrote 41,50,000 beneath 48,50,000 and initialled the figures on 20‑8‑1978. He denied that he had embezzled any amount and further stated that actually he had received only 41,50,000 Rials and he corrected the entry in his register, after counting the currency. He has informed that the currency was short by 7 lacs Iranian Rials and so be had corrected the entires. He further stated as under :‑ "Mr. Mumtaz Ali Khan P. W. had deposed against me because while posted at Islamabad. Airport where I worked under him he had been receiving goods payments and he had been supplying goods to other officers without payment and when be came back to Peshawar I came to him regarding the payment many times but he always postponed the payment on one pretext or the other. Ultimately he also got me transferred to Peshawar. The Assistant Collector Peshawar Preventive Peshawar posted me at Nowshera but Mi. Mumtaz Ali P. W: arranged my posting as Incharge of the said Godown at Peshawar Cantt . When Ijaz Hussain Assistant Collector Preventive Peshawar was transferred from Peshawar to Islamabad. I requested him to clear his dues on 2‑2‑1078 and presented him list of goods taken by him upon which he wrote "make payment. Will be adjusted later" signed it and marked it to. Mr. Mumtaz Ali P. W. 1. produced the Photostat of the list containing the direction of Mr. Ijaz Hussain, which is Exh. D. X. consisting of two sheets. Subsequently I also continued demand ing money from'Mr. Mumtaz Ali F. W. He wrote me a letter thereupon on 24‑3‑1979, the original 1 produce for the perusal of the Court, photostat of which is Exh. D. X. 1. (Original perused and returned). I gave a reply of the said letter to Mr. Mumtaz Ali, the photostat of which is Exh. D. X.

3. The copy of the reply which was maintained by me in my record I produce the same for the perusal of the Court. (Perused and returned). On .April 4, 1979 wrote a letter to Mr. Mumtaz Ali and sent the copy of it to the Collector, Customs. Peshawar, Deputy Collector Customs Peshawar and Assistant Collector, Preventive Peshawar alongwith the cost of goods taken by the said P. W . photostat of my letter is Exh. D. X.

3. The copy of the letter and of the list which I maintained in my record, 1 produce both for the perusal of the Court. (Perused and returned). I also wrote a letter to the Assistant Collector, Islamabad and a copy to the Deputy Collector. Rawalpindi, the photostat of which is Exh. DX

4. I maintained the copy of the said letter in my record which I produce for the perusal of the Court. (Perused and returned). I was supplied by the Collector, Peshawar vide order, dated 15th April, 1979 which I produce for the perusal of the Court photostat of which is Exh. D. X.

5. I was directed to appeal before the Assistant Collector, Preventive, Peshawar to explain the position and ‑I explained to him the true facts to his satisfaction. Afterwards, the Collector, Customs Peshawar appointed Mr. H. M. Qazi, Superintendent to enquire into the matter. He gave me ten days time of the reply of his Letter No. C. No. II‑B. Esst . Conf (ii) 3/79/3449‑50, dated 20‑5‑1979. I produce the original for the perusal of the Court, the photostat of which is Exh. D. X. 6 consisting of three pages. But before I could reply, I was arrested in the present case. The Customs authorities were prejudiced against me as reflect the record produced by me today. I am innocent and falsely charged."

7. The important facts which came to light from the extracts of the prosecution witnesses are that Iranian Rials amounting to 48,50,000 were recovered from one Haji Ahmad on 8‑8‑1978 by Customs Mobile Squad and this currency was noted down in the seizure register of the squad. The appellant was also asked to note down in the warehouse register, the seizure of this amount. At the time of making this entry, in the warehouse register, the actual amount was not handed over to the appellant. It was only on 20‑8‑1978 that the amount was actually handed over to him in a sealed bag. There is no evidence that this amount was actually counted when it was handed over to the appellant Neither any receipt for handing over this actual amount was obtained from the appellant. It is, therefore, doubtful whether actually the appellant was entrusted 48 50,000 Iranian Rials. He was only banded over a sealed bag and when be counted the money, he found it short by 7 lac Iranian Rials. The prosecution had, therefore, failed to prove that they had entrusted the amount of 48,50.000 Iranian Rials to the appellant. Not an iota of evidence has come on the record to prove that the appellant was actually entrusted with that much amount. It has also been proved that the amount, before being banded over to appellant, was in the custody of one prosecution witness for 12 days. It cannot, therefore, be said that the appellant embezzled or misappropriated any amount. In arriving at this conclusion, I find support from the case of Syed Muhammad Riavi v. The State (1973 P Cr. L J 1015).

8. It is noteworthy that if the appellant had the intention to mis appropriate or embezzle the amount, then he would not have scored off the original entry and made a fresh entry attested by his owe initials and date thereon. He could have simply removed the actual figures by any chemical method. ‑Nowadays, many chemicals are available by which entries made in ink can be safely removed. If the intention of the appellant was to embezzle this amount, then he would not have adopted the course which he had. He had actually signed the new entry which proves beyond any reasonable doubt that he made the new entry regarding the amount which he had actually received. This circumstance alone would go along way in proving the bona fide intention and innocence of the appellant.

9. There is yet one more important factor in the case and that is that after the adjudication pf the case by the Collector, the owner was returned 41,50,000 Iranian Rials and he accepted that amount without making any protest. There is no evidence on the record to show that the owner of the currency had refused to accept lesser amount than what was allegedly recovered from him.

10. The prosecution bas also failed to prove proper and legal entrust ment of the money to the appellant At the most, they were able to prove that they handed over a sealed bag to him without obtaining any receipt, or without counting the money in his presence. As such, there was no proof of entrustment of 48,50,000 Iranian Rials to the appellant. The allegation of mere disappearance of money without any actual entrustment by the appellant can also not bring home the offence of misappropriation In this connection, reference may be made to the case of Syed Mustafa Shah v. The State (1968 P Cr. L J 368).

11. The judgment of the learned trial Judge would reveal that be has firstly relied upon the alleged preliminary inquiry made by P. W. Mumtaz Ali and, secondly, he has not taken into consideration the explanation furnished by the appellant. It has come on record that the appellant was not associated with the said preliminary inquiry. Moreover, the appointment of P. W. Mumtaz Ali as Inquiry Officer was also improbable because before being handed over to the appellant, the currency was lying in his possession for 12 days. It was also a one‑sided inquiry and the appellant was not associated with it. Even on that score, this inquiry could not be looked into by the learned trial Judge and he improperly used it as a piece of evidence against the appellant against all norms of criminal law and justice. An accused person, who is not associated with any inquiry before trial, cannot be convicted on its basis for the sample reason that it tantamounts to mere investigation and conviction or acquittal would depend upon the evidence actually produced before the Court about which the accused is given an opportunity to cross examine the witnesses. It shall be seen that the appellant was not provided with any opportunity to challenge the preliminary inquiry report. Insofar as the explanation of the appellant under section 341, Cr. P. C. is concerned the impugned judgment would show that the learned trial Judge did not take the trouble of even looking it not to say of believing or disbelieving it. The appellant had produced documents to show that some transactions regard in warehouse goods had been taking place between him and P. W. Mumtaz Ali, and other superior officers and he had been demanding the price of those goods and in that connection he had been writing letters to his officers including P. W. Mumtaz Ali. He had a plausible explanation to offer regarding prejudice of the prosecution witnesses against him but the learned trial Judge did not consider this aspect of the case and acted with material irregularity. The criminal Courts are expected to take into consideration the defence plea of factual nature and if they fail to properly appreciate that plea, such omission reacts on the whole case and it can he said that the prosecution case is not proved beyond reasonable doubt. In this connection. reference may be made to the case of Mir Ahmad v. The State (PLD 1962SC489).

12. For the aforesaid reasons, I have come to the irresistible conclusion that the prosecution had failed to prove their case against the appellant beyond any doubt, and his conviction was unwarranted. I would, therefore, accept this appeal, set aside the conviction and sentence of the appellant and acquit him of the offence with which he has been charged. He shall be set at liberty forthwith if not wanted in any other case. M. Z. M. Appeal accepted.