1985 PLP 1015 (MLD)

Mehr Ghulam Ali Mubashir for the State. Date of hearing: 9th July, 1984. This criminal appeal arises from th6 judgment of learned Special Judge, Anti-Corruption, Lahore whereby he on 21-9-1978 convicted Muhammad Babu Khan appellant under section 409 read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to one year's R.I. and a fine of Rs.100, in default thereof to further R.I. for two months.

2. The appellant was working as Patwari Halqa Kotla Kahlwan, Tehsil Shakargarh, District Sialkot. The charge against him was that he managed to destroy register Khasra Girdawari of the year 1969-70. He denied the charge and claimed to be tried.

3. To prove its case prosecution examined 7 witnesses. Noor Muhammad Ahlmad of Settlement Officer's Office, P.W.1 produced documents Exhs.P.A. to P.F. before the police. Shafiq Ahmad P.W.2 produced some record before the Investigating Officer. Muhammad Umar P.W.3 partly investigated the case and took into possession documents Exhs.P.A. to P.F., vide memo. Exh.P.G. He arrested the accused and searched Patwar Khana and the house of the appellant but the relevant file could not be found. Wahid Ahmad Head Constable P.W.4 had recorded formal F.1.R. Muhammad Saleem Patwari P.W.5 stated that he was succeeded by the appellant. The charge list Exh. P.E. was prepared. The charge was handed over to the appellant. Register Khasra Girdawari 1969-70 of Kotla Kahlwan was handed over by him to the appellant which is also entered in Exh. P.E. at Exh.P.E. /2. Muhammad Ramzan Patwari P.W.6 stated that he took over the charge of Halqa Kahlwan from the appellant on 12-1-1974 and entered report No. 163 in Roznamcha, dated 12-1-1974. Copy thereof is Exh.P.K. which he produced before the police. Syed Muhammad Abdullah lqbal, Settlement Officer P.W.7 gave sanction for the prosecution of the accused.

4. When examined under section 342, Cr. P. C . the appellant denied all the incriminating circumstances. He stated that Khasra Girdawari was not under process, its Misal Haqiat is present. By the loss of this Khasra Girdawari nobody gained anything or lost anything. In defence he produced Muhammad Yousaf D.W.1 and Faqir Sain D.W.2. They stated that in their presence the appellant had asked Muhammad Saleem to give three registers more but he replied that registers were not available.

5. The learned counsel for the appellant contends that the prosecution has failed to prove entrustment of the registers to the appellant and as such no case of criminal misappropriation by the appellant is made out. Conversely, the learned counsel for the State has supported the judgment of the trial Court.

6. I have considered the arguments advanced by the learned counsel for the parties with care. I find that from the charge list prepared ai the time when the appellant took the charge from Muhammad Saleem Patwari, P.W.5, it is very much obvious that register Khasra Girdawari relating to years 1969-70 was entrusted to the appellant. The appellant has failed to account for that register. The defence evidence is not strong enough to rebut the prosecution case and its evidence. From the oral as well as documentary evidence produced by the prosecution. I am convinced that the prosecution has proved its case beyond reasonable doubt against the appellant. The defence evidence is not strong enough to rebut prosecution evidence.

7. This brings me to the question of sentence. The learned counsel has requested for leniency. In the circumstances of the case, I feel inclined to alter the nature of sentence, inasmuch as, the appellant has not only lost his service but also suffered agony of protracted trial. The sentence of imprisonment of one year's R.1. is altered to a sentence of Rs.5,000, in default thereof, he would suffer R.1. for cane year. The fine of Rs.100 already awarded by the trial Court is also maintained. Resultantly, the appellant shall deposit Rs.5,100 within one month, failing which, the trial Court shall issue warrants for his arrest and detention. H . A . K . Appeal partly accepted.