1997 PLP 1723 (MLD)

Issardas for Addl. A.‑G. for the State. Date of hearing: 19th September, 1996 Abdul Aziz the appellant was convicted by the Special Judge, Anticorruption Larkana Division on 4‑4‑1993 and sentenced to suffer R.I. for two years and fine of Rs.5,

000. In default of payment of fine he was ordered to suffer S.I. for three months more.

2. The appellant was working as a Cashier at Municipal Committee, Shikarpur at the relevant time. The charge against the appellant related to the fact that on 16‑12‑1982, he was paid a sum of Rs.5,000 in cash to spend on the occasion of visit of the Governor of Sindh. Again on 25‑10‑1982 he was paid another sum of Rs.1,000 to be spent on the Muharram Day. He was accused of the fact that he did not furnish the details of the expenditure nor returned the amount and, therefore, it was presumed that he had dishonestly mis‑appropriated the above stated sums of money and thereby caused wrongful loss to the Municipal Committee of Shikarpur. The appellant was said to have committed an offence punishable under section 409, P.P.C. read with section 5(2) of Act II of 1947.

3. The prosecution in support of their case had examined the witnesses Khair Muhammad Deputy Accountant of M.C., Shikarpur, Sadaruddin Office Superintendent of M.C., Shikarpur, Amanullah, Chief Officer M.C., Larakana, Haji Ziauddin, Chairman, M.C., Shikarpur, Ghulam Nabi, Accounts Officer and one Ghulam Sarwar also employee of the Anti‑Corruption Department. As far as the question of payment of the above amounts to the appellant, the same are not denied by the appellant in his case before the trial Court, but his defence was that he had actually spent those amounts for the purpose for which the same were advanced to him and had submitted the vouchers thereof in the Municipal Office but before the said vouchers could be adjudged to be correct or incorrect the prosecution case was completed and judgment was pronounced against him and he was convicted.

4. The learned counsel for the appellant as well as the learned counsel for State have assisted me to go through the depositions of tile witnesses recorded by the trial Court in this case. All these depositions of the witnesses show that the amounts were actually entrusted to the appellant and that the appellant had actually submitted the vouchers showing the expenditure. All the witnesses have admitted that the vouchers were under the process and they were pending for the purpose of approval. The trial Court in the judgment has held that since the vouchers have been submitted late, in matter of time, it was presumed that the appellant had misappropriated the amount and submitted the vouchers only after complaint had been lodged against him.

5. I have considered the arguments of the learned counsel as well as gone through the record. The very fact that vouchers were entertained by the Municipal Committee, Shikarpur and they were under scrutiny and pending for approval, suggested that those vouchers could be approved or disapproved. In any case if, at a later stage the vouchers were found to be correct, then the conviction of the appellant would be groundless. In my view the trial Court should have under these circumstances given the benefit of doubt to the appellant as the allegations against the appellant were not proved beyond reasonable doubt, at the stage of the judgment.

6. Under the circumstances, giving benefit of doubt to the appellant I accept the appeal and set aside the judgment and the sentence. The appellant is on bail, his bail bonds stand discharged. N.H.Q./A‑62/K Appeal accepted.