1985 P Cr (PLP)

This criminal appeal arises from the judgment of learned Special Judge Anti‑Corruption, Lahore whereby he on 4‑11‑1984 convicted Maqbool Ahmad appellant under section 409, P.P.C. and sentenced him to imprisonment till the rising of the Court and a fine of Rs.5,000, in default thereof further 3 months' R.I.

2. The appellant was a Conductor in Government Transport Service, Saddar Depot, Lahore. The charge against him was that he received 3 R.P.T. Books No. 781 to 783 but did not deposit Rs.1,650, the fare charge received by him from the passengers. He denied the charge and claimed to be tried.

3. To prove its case prosecution examined 8 witnesses out of whom statements of Muhammad Ashraf P.W.1, Bashir Ahmad P.W.3 and Habib Ahmad P.W.5 are relevant. Muhammad Ashraf P.W.1 stated that 3 R.P.T. Nos.781, 782 and 783 were issued to Maqbool Ahmad Conductor appellant. Subsequently on checking it was found that the amount relatable to book No.781 had not been deposited in the treasury and that book No.781 also could not be traced out. He, therefore, prepared report Exh. P.W.1/A sent it to Manager for necessary action. Bashir Ahmad, Senior Ticket Issue Clerk, P.W.3 stated that on 13‑9‑1981, he handed over R.P.T. books to the appellant containing tickets Nos.156001 to 156200. On 30‑9‑1981, the appellant returned Book No.781 entry about which was made in the relevant register. Thereafter, the book was handed over to Audit Clerk and his signatures were obtained. In cross examination he stated that books Nos. 782 and 783 were also received back from the appellant. He also stated that there is pre‑audit first, then cash is deposited and thereafter the books are deposited. Habib Ahmad Sub‑Head Auditor P.W.5 stated that he had checked the accounts pertaining to R.P.T. book No.781. He found that the cash of the same was not deposited as per record. The book was received by Ibne Hassan Audit Clerk and the same was not available on record, and that there was some tampering with T.T.2 as well. The rest of the evidence is of formal nature.

4. When examined under section 342, Cr.P.C., the appellant denied au the incriminating circumstances. He stated that after having sold the tickets, he had deposited the amount of Rs.1,

976. In defence he did not produce any witness.

5. The learned counsel for the appellant submits that the prosecution has failed to prove criminal misappropriation or breach of trust by the appellant beyond reasonable doubts. On the other hand, the learned counsel for the State supported the judgment of the trial Court.

6. I have considered the arguments advanced by the learned counsel for the parties with care. The entrustment of R.P.T. books and sale of the tickets being proved as well as admitted facts, the question for determination is as to whether the amount received from the sale of tickets of book No.781 was misappropriated by the appellant or not. I find that the plea of the appellant that he had deposited the amount finds support from the statements made by P.Ws. 3 and

5. The deposit of the book with the Auditor shows that the money had actually been deposited by the appellant before he could deposit the book. In his cross‑examination P.W.5 stated:‑ "It is correct that the R.P.T. Books are deposited by the Conductors after sale of tickets. It is correct that before the said books are taken back from the Conductor, the Auditor signs for the payment of cash and that it is correct that without his signatures the same cannot be deposited." Bashir Ahmad P.W. stated that on 30‑9‑1981, the appellant had returned Book No‑781 entry about which was made in the relevant register. In cross‑examination he stated:‑ "It is correct that there is pre‑audit first, then cash is deposited and thereafter the books are deposited."

7. For what has been stated above, I am of the view that the prosecution has failed to prove criminal misappropriation /breach of trust, against the appellant beyond reasonable doubts. Giving him the benefit of doubt, the appellant is acquitted of the charge. M.A.K. Appeal accepted.