1989 P Cr (PLP)

‑‑‑S. 409‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑Accused, a Patwari, received small amount from his predecessor on transfer‑‑Amount deposited in Government Treasury after about two and a half months before any demand or registration of case‑‑No evidence of any dishonest intention or converting money to his own use was available‑‑Liability was shown in the relevant register‑‑No question about dishonest intention or converting amount to his own use, put to accused under S.342, Cr.P.C: ‑Accused not afforded opportunity to explain delay in depositing money‑‑Prejudice caused to accused‑‑Acquittal ordered in circumstances. Irshad. Hussain Jaffery for Appellant. Ataullah Khan for the State. The appellant was tried for an offence under section 409, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947, by the learned Special Judge Anti‑Corruption, Sahiwal. The trial Court convicted the appellant for the said offence and sentenced him to undergo R.I. for one year with a fine of Rs.500 or in default of payment to undergo further R.I. for two months, vide judgment, dated 9‑11‑1980.

2. The brief facts of the case are that the appellant was posted as Patwari in Circle Wan Dal Singhwala on 13‑4‑1974. He was supposed to deposit the Government share of copying fee amounting to Rs.113.62 by 15‑8‑1974 but he actually deposited the same on 1‑11‑1974. In support of its case, the prosecution produced five witnesses. P.W.1 Muhammad Sharif stated that the appellant was working in the Office of Wasil Baqi Navees and that he made the deposit with the delay of two months. P.W.2 Muhammad Rafiq Mahmood was the District Revenue Accountant. He inspected the branch of Wasil Baqi Navees on 27‑12‑1974 and found that the entry regarding deposit of the amount was not available. On his report the case was got registered. P.W.3 Bashir Ahmad proved that the amount was "deposited on 1‑11‑1974. P.W.4 Shabbir Hussain Patwari proved the entries in the Roznamcha Waqiayti Exh. P.A. and the copying fee register EXh.P.2. P.W.5 Shaukat Ali had subsequently taken charge from the appellant on 19‑9‑1974.

3. When examined under section 342 of the Cr.P.C. the appellant clarified that the disputed amount was deposited with some delay due to rush of work.

4. The learned counsel appearing for the appellant contends that mere delay in depositing the amount was' not sufficient to saddle the appellant with criminal intent. He further submits that by virtue of para. 3.50 of Land Record Manual, the deposit if not made by the Patwari within the prescribed time was to be demanded by the Lumberdar within a period of two months. No such demand was made from the appellant but he made the deposit on his own on 1‑11‑1974. It is significant that none of the P.Ws. stated that the amount was retained by the appellant with dishonest intention or that he converted the same to his own use with like intention. The prosecution witnesses merely proved delay in making the deposit. The amount in question was received by the appellant from the out‑going Patwari at the time of taking the charge on 13‑4‑1974. He could deposit the same till 15‑8‑1974 as claimed by Muhammad Sharif P.W.1. The amount involved is so small that the appellant could hardly derive any benefit by retaining the same with Moreover, he had not omitted to show the liability in the relevant register at the time of taking charge from the out‑going Patwari. Much before the inspection on the branch lay P.W.2 and without any demand, he voluntarily deposited the said amount in the Government Treasury. P.W.2 Muhammad Rafiq Muhammad stated that on coming to know about the deposit having been made he as well as the Head Vernacular Clerk had reported that no case be registered against the appellant. It may be mentioned at the end that the appellant's examination under section 342, of the Cr.P.C. was highly defective. In the second question it was mentioned that he was supposed to deposit the amount on 1‑11‑1974 but had deposited it on 15‑8‑1974. Had that been the position then the appellant's reply that he had deposited the amount on 1‑11‑1974 was sufficient to exonerate him. No question was put to him that he had retained the amount with dishonest intention or that he had converted the same to his own use with a like intent. This obviously caused prejudice to the appellant, who was not even afforded an opportunity to explain his position in respect of the alleged delay in making the deposit.

5. For the foregoing reasons, this appeal is allowed, the conviction and sentence of the appellant are set aside. He is already on bail. His bail bonds are discharged. S.A./A‑704/L?? Appeal accepted.