1997 PLP 935 (SCMR)

Malik Abdus Sattar Chughtai, Advocate instructed by Syed Abul Aasim Jaferi, Advocate‑on‑Record for Petitioner. Mr. Nasim, Additional Advocate‑General for the State. Date of hearing: 13th December, 1995. MUHAMMAD MUNIR KHAN, J.‑‑‑This Criminal Petition for Leave to Appeal No.412‑L of 1995 directed against order dated 20‑8‑1995 of the Lahore High Court, Lahore, arises from the facts that a case under section 409 read with section 5(2) of the Prevention of Corruption Act, 1947 was registered against the petitioner and one Farrukh Zubair an official of the Zakat Department in the Provincial Zakat Office, Lahore, alleging that Ghulam Mustafa while posted as Headmaster, Government Middle School, Tamboli, Tehsil Kamokey, District Gujranwala, personally took two forms for the award of scholarship to the two students of his school to the Provincial Zakat Office, Lahore. He met Farrukh Zubair there and presented the forms to him for grant of scholarship to those students. Farrukh Zubair retained both the forms and asked him to provide a list of more students for awarding scholarships. The petitioner then sent a list of 71 deserving students to Farrukh Zubair in October, 1989. After some time he received a cheque of Rs.56,800 issued by the Department which was deposited in National Bank of Pakistan, Kamonkey Branch. Thereafter, Farrukh Zubair told the petitioner that according to the Administrator Zakat, the Middle Schools students were not eligible for the scholarship so the amount of Rs.56,800 may be returned to him. On this the petitioner withdrew the amount from National Bank of Pakistan, Kamonkey Branch and paid the same to Farrukh Zubair vide Receipt Exh. PB executed by the latter. It so happened that Farrukh Zubair did not deposit the amount with the Government/Department concerned and an inquiry was initiated by the Assistant Administrator Zakat, Gujranwala Division, which revealed that the petitioner and Farrukh Zubair were in league with each other and had misappropriated the amount. The matter was reported to the Anti‑Corruption Establishment and after preliminary investigation, case under various sections of the P.P.C., including section 409, P.P:C., and section 2(5) of the Prevention of Corruption Act, 1947 was registered at Police Station A.C.E., Lahore Region, Lahore on the report of P.W.2 Rai Shabbir Ahmed, Deputy Administrator Zakat, Punjab, Lahore. After the occurrence, Farrukh Zubair committed suicide, so challan was submitted against Ghulam Mustafa petitioner in the Court of Special Judge Anti‑Corruption, Gujranwala, at Lahore. The petitioner denied the charge and claimed to be tried. The prosecution produced Rashid Ahmed, Assistant Administrator, Zakat P.W.1, Rai Shabbir Ahmed, Deputy Administrator, Zakat, Punjab, Lahore P.W. 2 Khalid Hussain, Accounts Officer, Zakat, Lahore P.W. 3, Muhammad Yousaf Butt, Accounts Officer, of the Office of Administrator, Zakat Punjab, Lahore P.W. 4, Anwarul Haq Bajwa, Handwriting Expert P.W.5 and Ghulam Sabir Qureshi, Assistant Director (Investigation) ACE P.W.

6. When examined under section 342, Cr.P.C., the petitioner admitted the entrustment of Rs.56,800 to him by the Zakat Department raising the plea of the return of the amount to Farrukh Zubair vide receipt Exh. P.B. He did. not produce any evidence in defence and also failed to give evidence on oath and in disproof of the charges against him.

2. On the conclusion of the trial, learned Special Judge Anti‑Corruption, Gujranwala, vide judgment dated 30‑5‑1993, convicted the petitioner under section 409, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to rigorous imprisonment for six months and a fine of Rs.10,000 or in default further R.I. for two months. He was of the view that although the petitioner had returned Rs.56,800 to Farrukh Zubair yet he was guilty of an offence punishable under section 409, P.P.C., because he will fully and dishonestly allowed Farrukh Zubair to misappropriate the same. The appeal filed by the petitioner against his conviction and sentence was dismissed by the Lahore High Court, Lahore, vide impugned order/judgment.

3. Learned counsel for the petitioner has argued that the police, the trial Court and the High Court as well, have concurrently found that the petitioner had returned full amount to Farrukh Zubair, an official of the Zakat Department, and as such there was no legal justification in convicting the accused under section 409, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947.

4. We had summoned Mr. Nasim, Additional Advocate‑General to assist us in this case. He has frankly, and rightly so, conceded that no case of criminal misappropriation punishable under section 409, P.P.C. read with section 5(2), Prevention of Corruption Act, 1947 is made out against the petitioner. On our independent assessment of the evidence on record we find that in view of the admitted fact that Rs.56,800 were actually returned by the petitioner to Farrukh Zubair vide Receipt Exh. P.B. which was found to have been signed by Farrukh Zubair by the Handwriting Expert Anwarul Haq Bajwa P.W. 5 and also believed by the two Courts below, and on account of failure on the part of the prosecution to prove that the petitioner had wilfully or dishonestly allowed Farrukh Zubair to misappropriate the amount, no case of criminal A misappropriation within the definition of section 405, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 is made out. According to the definition of "dishonesty" in section 24, P.P.C., when anything is done with the intention of causing wrongful gain to any person or wrongful loss to another person, then it is said that the act has been done dishonestly. In this case there is nothing in evidence to show that the amount of Rs.56,800 was given to Farrukh Zubair with the intention of causing wrongful gain to him or wrongful loss to the Government. The circumstance of committal of suicide by Farrukh Zubair also speaks volumes in favour of the petitioner.

5. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction and sentence of the petitioner we convert this petition into appeal and allow the same. The petitioner is acquitted of the charges and he shall be released forthwith if not required to be detained in any other case. N.H.Q./G‑544/S Appeal allowed.