1977 PLP 109 (SCMR)

HAMOODUR RAHMAN, C. J.‑‑This appeal, by special leave, is directed against the judgment and order of a ,learned Single Judge of the former High Court of West Pakistan, Lahore seat, upholding the conviction of the appel lant herein under section 409, P. P. C. and section 5(2) of the Prevention of Corruption Act, 1947, by the Central Special Judge, Lahore, only in respect of four out of eight items of charge, but reducing the sentences of imprison ment on each count to the period already suffered. The sentence of fine of Rs. 12,000 under section 409, P. P. C. has, however, been maintained. In default of payment of this fine, the appellant has to undergo further rigorous imprisonment for a period of twenty‑one months and out of the fine, when realised, a sum of Rs. 10,409 has to be paid to the Military Estate Officer, Lahore Cantonment. The appellant was at the relevant time working as the Accountant‑cum- Cashier of the Military Estate Office, Lahore Cantonment. The accusation against him was that he had, while employed in that capacity, as a public servant, committed criminal breach of trust during the year 1954 of an aggre gate amount of Rs. 10,682 made up as follows :‑ (a) Rs. 45 alleged to have been paid to the appellant on 5‑5‑1954 by one Din Muhammad (P. W. 27) as security deposit ; (b) Rs. 85 alleged to have been paid by Pir Bakhsh (P. W. 17) to Ghaffar Ahmad Khan (P. W. 6) on 27‑5‑54 and said to have been handed over on the same day to the appellant ; (c) Rs. 114 alleged to have been paid by Hamid Hussain (P. W. 15) and Ghulam Hussain (not examined) at the rate of Rs. 57 each as security deposit to Ghaffar Ahmad Khan (P. W. 6) on 27‑5‑54 and said to have been handed over to the appeal lant on the same day ; (d) Rs. 138 alleged to have been paid by Feroz Din (P. W. 13) to the appeal lant on 29‑5‑54 as security deposit ; (e) Rs. 3,700 alleged to have been paid as part of the bid money on account of a lease taken by Ghulam Qadir (P. W. 1) and Muhammad Shafi (P. W. 5) to Munir Ahmad (P. W. 4) on 19‑6‑54 and said to have been handed over to the appellant on the same day ; (f) Rs. 2,600 alleged to have been paid by Muhammad Shafi (P. W. 5) to the appellant on 21‑6‑1054 as the balance of the bid money on account of the lease referred to in (e) above ; (g) Rs. 650 alleged to have been paid by Muhammad Ramzan (P. W. 16) to the appellant on 29‑6‑1954 as security deposit ; (h) Rs. 3,350 alleged to have been paid to the appellant by Hakim Ali (P. W. 8) and Muhammad Saeed (P. W. 9) in October 1954, as lease money. The appellant, it was alleged, bad failed either to account for the above amounts in the cash book of the office or to deposit the same in the bank account of the office. The appellant admitted that he was posted as Accountant‑cum‑Cashier in the office of the M. E. O., Lahore, at the relevant time, but he denied that the above amounts were ever made over to him or entrusted with him. Hence the question of accounting for them did not, according to him, arise. The case of the appellant was that, according to the rules of the Depart ment, security deposits to the extent of 25 % of the bids in respect of auctions of grazing or other rights over or leases of Cantonment lands had to be deposited by the party in the Post Office and the deposit pledged in favour of the Military Estate Officer. Similarly, with regard to lease monies in respect of Cantonment lands leased out by the Sub‑Divisional Officer, the procedure was that the same had to be deposited with the State Bank of Pakistan. The Departmental rules (Exh. D. E.) also provided the same procedure. In any event, the auctions in the present case were actually conducted by the S. D. Os. who, in ,violation of the above rules, accepted the deposits himself. He was the person, therefore, who was accountable, and the story now set up that the money was made over to the appellant is totally false and not supported by any receipt or other documentary evidence. The prosecution examined a large number of witnesses in this case, of whom a number were merely formal witnesses. The appellant also examined seven witnesses in his defence. The trial Court considered some of the prosecution witnesses to be reliable, and since the appellant had admitted his signatures on some of the office note‑sheets in the relevant files, which purported to show the receipt of certain of the amounts of money, convicted him with respect to items (b), (c) and (e) to (h). The High Court, however, on appeal, did not find all this evidence reliable but maintained the appellant's conviction only in respect of items (b), (c), (e) and (f ). Leave was granted to the appellant, because, it was felt that even the learned Judge in the High Court had "misread the evidence" and 'fallen into error with regard to the guilt of the petitioner. Hence it was considered necessary to re‑examine the evidence thoroughly for the safe dispensation of criminal justice. Learned counsel appearing in support of the appeal has now taken us through the evidence with regard to each of the items in respect of which the convictions have been upheld. The first item is item (b) which relates to the alleged deposit of Rs.

85. This amount was, according to the prosecution case itself, given by Pir Bakhsh (P. W. 17) to Ghaffar Ahmad Khan, S. D. O. (P. W. 6) on 27‑5‑54 and the latter handed over the same to the appellant. Ghaffar Ahmad Khan (P. W. 6) is the S. D. O. He stated that on 27‑5‑54 he auctioned the lease of survey No. 256/A in Lahore Cantonment to Pir Bakhsh (P. W. 17) at Rs. 330 per annum. The auction‑purchaser paid Rs. 85 to him byway of security deposit in addition to the said sum of Rs. 330, and he made over both the amounts to the appellant. The appellant received the entire amount and gave a receipt (Exh. P. J./1) for the same on the office file. The appellant, however, only accounted for Rs. 330 and mis appropriated the balance of Rs.

85. He was asked in cross‑examination whether under the rules he was authorised to accept this payment. He stated that he could do so, only if the appellant was away from the office at the relevant time. As already pointed out, the rules in Exh. D. E. provide as follows :‑‑

"(8) The lessee shall also be required to deposit in the Post Office Saving Bank Account a security equal to 1/4th of one year's rent. at the rate bid by him for due performance of the, conditions of the lease." This was also supported by Muhammad Asghar (P. W. 24), the Accountant of the Military Estate Office, Lahore Cantonment. He admitted in cross -examination that "according to Departmental rules, .it is the job of the lessee to get the amount deposited in the Post Office pledged to the Military Estate Office." The Military Estate Officer (P. W. 18) himself also admitted in cross-examination that "according to rules the security is to be deposited by the contractor in the Post Office and pledged to the M. E. O." and that "the lease money is deposited in the State Bank of Pakistan". The purchaser, P. W. 17 Pir Bakhsh, himself also admitted in cross-examination that he personally "did not pay any amount to the accused", nor did he make any complaint in writing to any authority regarding the non -furnishing of any proper receipt for the said alleged payment. It is not without significance that according to this witness, he paid two separate amounts, Rs. 330 as the lease money and Rs. 85 as security deposit. Both these payments were made to the S. D. O. and not to the appellant. Ha received a proper receipt for Rs. 330 (Exh. P. W. 17/A) but he never received any receipt foe Rs. 85 paid by him by way of security deposit. Exh. P. J. is an endorsement at page 29 of the note‑sheet of the office file showing that an amount of Rs. 330 on account of bid money and Rs. 85 oil account of security deposit had been received from Ch. Pir Bakhsh one A 27‑5‑

54. Underneath this is the signature of the appellant (Exh. P. J./I) but he denies that the total amount of . Rs. 415 mentioned alongside the Word "Recd." therein is in his handwriting. It appears that on the other side of this signature is also written "Cashier Rs. 330 only" (vide Exh. P. J./2). The Courts below have taken the view that since the signature on Exh. P. J./I is admitted by the appellant, the amount mentioned therein is also admitted, and this has established the entrustment of this amount. The only oral evidence in support of this entrustment is that of the S. D. O. (P. W. 6) who had no business, according to the Departmental rules, to accept any money at all by way of security or lease. The security money had to be deposited in the Post Office and the pass book produced before the Military Estate Officer. Similarly, the lease money had to be deposited with the State Bank of Pakistan. It is also not without significance that the receipt for Rs. 330 (Exh. P. W. 17/A) was issued under the signature of the Military Estate Officer on a printed form. If this could be done for the bid money, then why could not this be done also for the security deposit if, in fact, as alleged by the Sub‑Divisional Officer (P. W. 6), the security deposit had also been paid at the same time. We are not satisfied that the reasons given by the Courts below, for accepting that the amount of Rs. 415 mentioned in Exh. P. J./1 is in the handwriting of the appellant, are cogent. He denied that this was in his hand yet no handwriting expert was examined, nor was this writing compared with any of his admitted writings. In the circumstances, we are unable to agree with the Courts below that the entrustment has been established beyond any reasonable doubt. It is based on pure surmise. The next item (c) consists of two sums of Rs. 57 said to have been paid by Ghulam Hussain and Hamid Hussain as security for the auctions of two wood stalls in the Lahore Cantonment along with the bid monies of Rs. 225 and Rs. 230 respectively on the 27th of May 1954. Here, again, Hamid Hussain (P. W. 15), who is the only witness examined, states that the amounts were paid to Ghafar Ahmad Khan, the S. D. O. (P. W. 6). Ghafiar Ahmad Khan, however claims that he handed over the receipt with regard to the lease money,' but gave no receipt for the security deposit. Ghaffar Ahmad Khan also says that he made over this money along with the lease money to the appellant and in support of this assertion relies on Exh. P. H./l. The is also apt endorsement at page 39 of the note portion of the office file. In this case too the signature of the appellant is beneath the words "Rs. 225 only" and "Rs. 230 only". Unlike the endorsement in Exh. P. J./1, the tota amount including the security deposit is not entered, in this case, by the side of the signature. This evidence is, therefore, of a weaker nature than the evidence earlier discussed and, therefore, for the same reasons, we think that the reasons for not accepting this evidence are more cogent. With regard to the other two items (e) and (f), which are said to have been paid on 19‑6‑54 and 21‑6‑54 respectively by Ghulam Qadir and Muhammad Shaft to Munir Ahmad, another S. D. O. (P. W. 4), we find that apart from the evidence of Munir Ahmad (P.'W. 4), the S. D. O. concerned, there is no other reliable evidence. Admittedly Munir Ahmad received the lease monies and issued kutcha receipts for the same. He says that later he made over the amounts to the cashier in the presence of Rashid Ahmad (P. W. 2). The evidence of Ghulam Qadir (P. W. 1) is that he handed over Rs. 3,700 out of the auction money to Munir Ahmad, S. D. O., at Ghakkar, where the auction was held, against a receipt and shortly after that the balance of Rs. 2,600 was deposited by Shafi at the Military Estate Office, Lahore. Muhammad Shafi (P. W. 5), it is also said, deposited a further sum of Rs. 1,600 by way of security. As against this, Muhammad Shall (P. W. 5) stated that when he paid the balance of Rs. 2,600 the appellant gave him a typed receipt for the full amount of Rs. 6,

300. No such receipt has, however, been produced. Rashid Ahmad (P. W. 2), before whom the amount is alleged to have been paid, stated that the entire money was handed over to the appellant in his presence and then Sultan Ahmad (P. W. 3), another clerk in the office, at the request of the appellant, typed out the receipt. After it was typed out it was signed by the appellant and then made over to the S. D. O. Munir Ahmad. This story of Rashid Ahmad is not supported by either Muhammad Shafi or Sultan Ahmad, the clerk. According to them, Rs. 3,700 were paid at Ghakkar but the typed receipt was issued when, two or three days later, Muhammad Shafi visited the office and deposited the balance of Rs. 2,

600. According to Sultan Ahmad (P. W. 3), two such typed receipts were issued, one when the amount of Rs. 3,700 was made over to the appellant and again when the balance of Rs. 2,600 was made over. According to Muhammad Shafi, the receipt of the full amount of Rs. 6,300 was made over when the balance of Rs. 2,600 was paid. Another witness Murad Ali (P. W. 22), who is said to have accom panied Muhammad Shafi to the office of the M. E. O. stated that even the sum of Rs. 3,700 was paid at the office and the appellant issued only a kutcha receipt for the same. No such receipt, however, was produced. In any event, the story is entirely false, because, even according to Munir Ahmad, the S. D. O., this amount was paid at Ghakkar, and the katcha receipt was issued by him, as has been admitted by Ch. Muzaffar Ali (P. W. 23). In this state of conflict in the evidence, it is difficult to appreciate how the High Court could come to the conclusion that the S. D. Os. Ghaffar Ahmad Khan and Munir Ahmad were truthful witnesses or that their evidence had been corroborated by other reliable evidence. There is no material on the record to corroborate their evidence. In our opinion, the evidence is extremely self‑contradictory and wholly unconvincing. There was no reason at all for these persons to make the alleged payments to the appellant, for, according to the rules, the payments of security deposit had to be made in the Post Office and the lease monies had to be deposited in the State Bank of Pakistan. There is no explanation as to why the S. D. Os. took upon themselves the responsibility of accepting monies. If the appellant was the receiving authority, then they should have directed the payees to go the appellant in the office and make the necessary payments. The alleged receipts relied upon by the S. D. Os. to establish the story of the alleged entrustment are wholly unreliable. It cannot be said from them that the amounts alleged to have been misappropriated were, in fact, entrusted to the appellant without any doubt whatsoever. Learned counsel appearing on behalf of the State himself felt some difficulty in supporting this judgment of the High Court and had to frankly concede that the Courts below had wrongly shifted the onus on the appellant to prove his innocence being influenced mainly by the fact that he had admitted his signatures on the note‑sheets proved as receipts for the alleged entrustment of the monies. In these circumstances, we are of the view that the prosecution has hopelessly failed to bring home the guilt of the accused upon the evidence on the record. This appeal is accordingly allowed, the appellant is acquitted of all charges, and the fine, if already recovered, is to be refunded to him. Appeal allowed.