1968S3197 (PLP)

S. 409‑--Public servant failing to account for Rs. 1,000 out of money entrusted to him‑Bare statement in defence that amount had been delivered by him to certain other officers‑Nothing on record to prove such payment

Conviction, held, proper‑Special leave to appeal refused by Supreme Court. Petitioner in person. Nemo for the State. Date of hearing: 31st May 1968. S. A. RAHMAN, C. J.‑‑The petitioner, Riaz Hussain, who was a Flood Relief Clerk, in the office of the Deputy Commissioner, Jhang, was tried under sections 409 and 468 of the Pakistan Penal Code by a Special Judge, who acquitted him of these charges. On a State appeal, preferred under section 417 .of the Code of Criminal Procedure, a Division Bench of the High Court of West Pakistan set aside the acquittal and convicted the petitioner under section 409 of the Pakistan Penal Code sentencing him to three months rigorous imprisonment together with a fine of Rs. 1,000 in default of payment of fine, the petitioner was directed to undergo rigorous imprisonment for a further period of six months. He now seeks special leave to appeal from the order of the High Court. The facts are that in the year 1958 Jhang District was afflicted by floods. The Deputy Commissioner, as a temporary measure, ordered payment of Rs. 2,000 out of Red Cross Funds, to the District Nazir to meet the expenditure on the emergency. Riaz Hussain (P. W. 5), Head Clerk to the District Health Officer, Jhang, at that time, delivered a cheque for Rs. 2,000 to the petitioner. The latter got it encashed, through Manzoor Hussain (P. W. 6), a Punkha Cooly, from the Central Co operative Bank and duly received the money. On the 27th of October 1958, out of this amount he made over Rs. 1,000 to Ahmad Shah, District Nazir (P. W. 1). The prosecution case was that he had failed to account for the remaining Rs. 1,

000. A subsequent audit prevailed that the disbursement of that Rs. 1,000 was not evidenced by any documents. Enquiries resulted in a case being registered against the petitioner on the 15th of December 1952. The petitioner in his statement in the trial Court admitted that he had received Rs. 2,000 as the result of encashment of cheque for that amount through Manzoor Hussain. He, however, pleaded that he had handed over the entire amount to Ahmad Shah, the then District Nazir, Jhang, on the 31st of August 1958. This plea appears to be inconsistent with the alternative plea that he had paid Rs. 400 each to the Tehsildars, Jhang and Shorkot, and Rs. 200 to the Tehsildar, Chiniot, thus accounting for Rs. 1,000 by way of contingent expenses. He had mentioned this fact in a report (Exh. P. A.) which he made to the Relief Officer. The report, however, was not principally directed towards this point but asked for sanction of return of Rs. 2,000 to the Red Cross Society. The Relief Officer sanctioned that return. That order could not have been meant to endorse the report of the petitioner to the effect that he had paid Rs. 1,000 to three Tehsildars for contingent expenses. The petitioner has appeared in person before us and admits that he should have obtained receipts from the three Tehsildars for the payments made, as the payments were made in cash. He suggests that the receipts existed, but he failed to call for them during the trial or to produce them even at the High Court stage. He also failed to call the three Tehsildars or their concerned officials to prove that actual payment bad been made to them. On the contrary, the prosecution produced witnesses from the officers of one or two of these Tehsildars to prove that no such money had been received in those offices. If any money had been sent to the Tehsildars as contingent expenses, that should have been entered in some registers maintained by the Tehsildars. No such registers were called in defence by the petitioners at the trial or the appellate stage. The onus clearly vested on him to show that he had duly disbursed the money. He signally failed to discharge that onus. In these circumstances, we do not consider that any case has been made out for grant of special leave to appeal from the order of the High Court. The petition is dismissed. Leave refused.