1990 PLP 205 (SCMR)

‑‑‑S.409‑‑‑Prevention of Corruption Act (11 of 1947), S.5(2)‑‑‑Misappropriation of fare‑‑‑Whole prosecution evidence was based on hearsay‑‑‑None of the passengers was produced at the trial‑‑‑Accused while denying charge deposed that in fact tickets were distributed by helper and money was also received by him‑‑‑Prosecution witnesses admitting presence of helper with tickets in his hand‑‑‑Such helper was not produced as prosecution witness‑‑‑Held, case made out against accused was not free from doubt‑‑‑Accused acquitted in circumstances. Sardaf Muhammad Ishaq Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Appellant. M. Nawaz Abbasi, Assistant Advocate‑General, Punjab for the State. Date of hearing: 10th May, 1989. ALI HUSSAIN QAZILBASH, J.‑‑This appeal by leave arises from the judgment of a learned Single Judge of the Lahore High Court, Rawalpindi Bench, dated 30‑1‑1989.

2. The appellant was serving as a conductor in Government Transport Service, Rawalpindi. On 5‑9‑1985 he was travelling as a conductor in bus No. L.H. 6590 (G.T.S.) from Lahore to Rawalpindi. It was alleged that during the journey he collected fare from three passengers who boarded the bus at Gujrat for Rawalpindi but did not issue tickets to them and thus by abusing his official position misappropriated a sum of Rs.36.75. He also allegedly issued 28 tickets to the passengers on receiving a sum of Rs.428 from them but on the duplicates he had shown to have received Rs.77 only and thus misappropriated the sum of Rs.351. The alleged criminal breach of trust was detected by a raiding party consisting of Nazir Shah and Nowsherwan, Ticket Examiners, who checked the aforesaid bus at Gujar Khan at 3‑30 p.m.

3. The matter was reported by Nazir Hussain Shah and an F.I.R. Ex. PW1/D was drawn against the appellant. Nazir Hussain Shah also took into possession R.P.T. books Exs. PWl/F and PWl/G and TT 2 Exs. P.Wl/H1 to H

3. After the completion of the investigation, the appellant was tried by the Special Judge Anti‑Corruption, Rawalpindi, where the prosecution in support of its case produced six witnesses. The appellant in his statement under section 342, Cr. P.C. denied the charge and deposed that in fact the tickets were distributed by the helper and the money was also received by him. Mirza Muhammad Hassan, Traffic Manager, also appeared in the Court as ‑C.W.1. The trial culminated in the conviction of the appellant under section 409, P.P.C. read with section 5(2) of the Prevention of Corruption Act. The learned Special Judge Anti‑Corruption as per his order dated 22‑2‑1988 sentenced the appellant to two years' R.I. plus a fine of Rs.2,000 or in default to six months' further R.I. The appeal filed by the appellant was dismissed as per the impugned judgment.

4. Leave in this case was granted to consider whether there is any evidence of actual entrustment of money realized as fare to the appellant.

5. The learned counsel for the parties heard and the record gone through. The learned counsel for the appellant has vehemently decried the conviction imposed upon and the sentence awarded to the appellant. He submitted that not only the prosecution has failed to prove its case against the appellant but the whole evidence produced by it is based on hearsay and as such the findings arrived at by the Courts below are bad in law and cannot be sustained.

6. After considering the arguments of the learned counsel for the appellant in the light of the record we think his arguments must prevail. It is the case of the prosecution that at the relevant time two students and a passenger who had boarded the bus at Gujrat for Rawalpindi were travelling without tickets. The appellant had received a sum of Rs.36.75 from them. Besides the above, 28 passengers had paid fare to the appellant amounting to Rs.428 but the appellant had shown only a sum of Rs.77 on the duplicate copies of the tickets. The whole evidence produced in support of the above, is, however based on hearsay in that none of the students or any of the passengers was produced at the trial to prove the above. The prosecution has even failed to produce the helper in support of its case. Further, the two witnesses, namely Nazir Hussain Shah and Norwsherwan and on whose depositions the prosecution has raised the edifice of it, case, have in very clear words admitted: Thus, as the case stands, we are of the view that the case made out against the appellant is not free from doubt and as such acquit him of the delict. The appellant is on bail and his bail bonds are discharged. M.A.K./M‑1049/S Appeal accepted