1991 PCr (PLP)

Nemo for the State. Date of hearing: 1st April, 1991. Muhammad Ashraf son of Nazir Ahmed was tried by Special Judge, Anti-Corruption, Sargodha, for an offence under section 409, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947. The trial Court vide its judgment, dated 16-1-1988, convicted and sentenced him under section 409, P.P.C. to 4 years' R.I. with a fine of Rs.30,000 or in default one year R.I. It was further directed that the fine if realized Rs.23,381.59 shall be paid to the agricultural department. Convict has appealed. This judgment shall dispose of the same. The prosecution story in brief is that appellant Muhammad Ashraf was employed as Field Assistant in the Agricultural Department. He was posted at Ganj Talla and he took over charge from one Bhai Khan. Subsequently he was transferred on 27-11-1977 vide order Exh. P.B., in District Mianwali. He applied for leave on 3-12-1977 which was rejected vide letter Exh.P.A./7. The appellant was also addressed a letter on 12-1-1978 directing him to hand over charge of Ganj Talla Store. The said order could not be complied with because the appellant remained absent from office and ultimately his services were terminated on the ground of being absent continuously. The allegation against the appellant further contained that the Field Assistant of Kot Amir Store had died in October, 1977. The appellant was also given charge of the said Store which he accordingly took over vide Exh.P.A./2. Ultimately the agricultural department in the presence of a Naib-Tehsildar, Magistrate and other employees of the Agricultural Department broke open the lock of the Store and prepared inventory. Articles worth Rs.1,669,14 were found short at Kot Amir Store and on the inspection of Ganj Talla Store an inventory Exh.P.A./2 was prepared. The officers were accordingly informed vide letter Exh.P.A./3 about the shortage detected in the said Store. The department asked the appellant vide letter Exh.P.A./4 on 27-1-1979 to make good the shortage within a fortnight. The appellant failed to appear before the authority. EA.D.A., Jhang vide his letter dated 2-2-1982 got a case registered against the appellant vide F.I.R. Exh. P.D. and Exh.P.D./1. The cost of articles found short at Ganj Talla Store was worth Rs.21,712.45. The appellant remained absent and did not associate in the investigation. Proceedings under sections 87 and 88, Cr.P.C. were taken against him and challan against him was submitted in Court showing him absconder. Later on he was arrested and the trial commenced. The prosecution in support of its case produced eight witnesses in all. Malik Muhammad Hassan, P.W.1, Head Constable, in the Office of EA.DA., Jhang stated that on 26-3-1983 he associated with the investigation. He produced documents before the Investigating Officer. A list of charge Exh.PA/1 and the articles which were found short Exh.P.A./2 were produced. He also produced documents Exhs.P.A./3 to P.A./6 which were secured vide memo. Exh.P.A. Maqbool Ahmed, P.W 2, E.A.D.A. stated that in the year 1982 he was posted at Jhang. It came to his notice that the appellant had not given charge of the stores at Ganj Talla and Kot Amir and had committed misappropriation, therefore vide letter Exh. P.D. he got a case registered. He had also informed the authorities vide letter Exhs.PA./1 to PA./7. Ch. Muhammad Sharif, P.W.3 was posted as Agricultural Officer from 1978 to 1981. During this period the appellant was Field Assistant posted at Ganj Talla. During those days he was transferred to Bakkar District Mianwali. The appellant locked the store and absconded. The witness with Muhammad Yousaf Assistant Plant Protection Officer and Naib-Tehsildar went to Ganj Talla Store. They unlocked the store and prepared an inventory of the articles vide memo. Exh.P.A./2 which was compared with the original Exh. P.A.A. It was signed by tire witness as well as the members of the Team P.W.4 Safdar Ali, Agricultural Officer stated that in June, 1976, he was posted at Mauza Ganj Talla. In February, 1981 he remained posted at Lalian. Stores at Kot Amir and Ganj Talla were within his jurisdiction. The appellant was Field Assistant of both the Stores and was transferred in November 1977 to Bhakkar. The appellant did not give complete charge of Kot Amir Store which was reported vide memo. Exh. P.B.B. It was also contained articles, which were found short. List Exh. P.B.B. was of his hand and bore signature. Chemical worth Rs.1,669.14 were found short in this store. The articles were handed over to the appellant which were later on found short vide memo. Exh. P.C.C. The witness kept on informing the higher officers regarding the appellant vide letter Exhs.PA./7 to P.A./11. Allah Ditta Shad, Field Assistant Agricultural Department P.W.5 stated that from 1975 to 1978 he remained posted as Field Assistant in Chiniot. One Fazal Haq, Field Assistant Kot Amir died, therefore, the charge of Kot Amir Store was handed over to the appellant in the presence of this witness along with Ch. Karamat Ali and Fazal Ahmed Field Assistant. The appellant gave charge report of Kot Amir vide Exh.P.A./12. The report was signed by the appellant as well as the witness and other persons. Muhammad Yousaf, P.W.6, Assistant Director Plant Protection Officer was posted as Assistant Plant Officer at Jhang in 1978. He remained there till May, 1981. The appellant during those days was Field Assistant at Ganj Talla. He was transferred to Mianwali in the year 1977. The appellant did not hand over the charge to the witness. Naib-Tehsildar and other employees of the department broke open the lock of the Store, which was in the charge of the appellant and prepared an inventory vide memo. Exh.P.A. The said document was signed by the witness and the other who had accompanied him. They also prepared a shortage list of the articles, which were short vide memo. Exh.P.A./3. Rai Ahmed Yar, Inspector, P.W.7, had submitted challan in red ink as the appellant could not be arrested. Rana Aman Ullah, Inspector, P.W.8 was posted as S.C.O./A.C.E., Jhang. On 23-8-1983 on the receipt of complaint Exh. P.D. He recorded the formal F.I.R Exh.P.D./1 and investigated the case. At the conclusion of the prosecution evidence the appellant was examined without oath. He pleaded innocence by refuting the prosecution allegations. He, however, admitted that he had taken charge of Ganj Talla Store from one Bhai Khan vide memo. Exh. P.A. and signed the same. In answer to a question he submitted that he did not hand over the charge of the store of Ganj Talla when transferred because his officer told him that his charge was correct. He further admitted that charge of Kot Amir Store was also with him. He, however, stated that he had signed the charge report in respect of Kot Amir Store vide memo. Exh.P.A./12 in the office. The appellant refused to produce any defence in his plea of innocence. However, the appellant when examined on oath in his defence he refuted the prosecution allegations. He was cross-examined at length wherein he had to admit that he had taken charge of the store in dispute. He had further admitted that he did not hand over the charge. It was contended by learned counsel for the appellant that the case against the appellant was not proved. Submitted that the case was got registered with an unexplained delay of about three years, which casts serious doubt on the prosecution case. Submitted that the appellant could not be burdened with shortage found at the store when he was not even associated at the time of checking of the store. Lastly it was contended that the appellant was removed from service, which in itself was great punishment, therefore the sentence of imprisonment may be reduced to the period already undergone. Contentions were opposed by learned counsel for the State. I have heard the learned counsel and gone through the evidence with his assistance. The appellant was serving as Field Assistant at Ganj Talla and Kot Amir Stores in his official capacity is accepted by both the sides. Similarly it has been accepted by the appellant in his statement that at the time when he took over charge he had signed the charge report in respect of both the Stores. The prosecution had also produced evidence along with the charge report to prove the same. In these circumstances it is established that the appellant had taken charge of the abovesaid two stores and the reports bear his signatures. It is also established from the prosecution evidence as well as statement of the appellant that he was transferred from Bhakkar to Mianwali. Keeping in view the admitted facts between both the sides the only question, which remained to be determined was whether any shortage was found in the stores at Ganj Talla and Kot Amir after the transfer of the appellant from the said stores. As discussed above the appellant had admitted having received charge of Ganj Talia and Kot Amir vide Exhs. P.A.A. and P.B.B. respectively. The said charge report indicated that some property was entrusted to the appellant in his capacity as a public servant. It is also established that the appellant when transferred did not hand over the charge of the above stores. Letters Exhs.PA./9 and PA./10 were accordingly proved directing the appellant to hand over the charge which did not do. Both the abovesaid letters have been duly proved by the witnesses. It has also been proved that the appellant's application for leave was rejected vide order Exh.P.A./7 yet he did not join, therefore, his services were terminated vide order Exh. P.C. Both the documents have been proved by the witnesses. It has also been proved from the statements of the witnesses that on physical checking of both the stores articles worth Rs.21.712.45 at Ganj Talla and Kot Amir were found missing. In spite of repeated opportunities to the appellant he had neither joined the department at the time of breaking the lock nor could furnish any explanation. The appellant remained throughout incharge of the abovesaid stores in his capacity as Officer of the Agricultural Department. It was admitted by him that he had taken charge of the above-said stores. He at no stage asserted that the articles were utilized or handed over to any other person in his official capacity. In such circumstances the only conclusion would be that the articles found missing remained throughout in his charge and custody. The witnesses were cross-examined at length but it was not even suggested to any of them that they f6r any ulterior motive has prepared list indicating shortage of articles. In the absence of anything on the record to indicate otherwise, I feel absolute reliance can be placed on the statements of the P.Ws. For what has been discussed above, it is established beyond doubt that the appellant was guilty of criminal misappropriation of articles entrusted to him in his official capacity. The prosecution has been able to prove its case beyond any doubt. Therefore, I do not find any force in the appeal, which is accordingly dismissed. I have considered the question of quantum of sentence but I am not inclined to reduce the same because the appellant remained as absconder throughout the investigation. In these circumstances, I dismiss the appeal. The appellant who is on bail shall be taken into custody to serve the remaining period of his sentence. N.H.Q./M-2795/L Appeal dismissed.