P L D 1982 Lahore 754 (PLP)

The appellant Allah Yar (aged 30 years), an employee of the Irrigation Department, was convicted under section 5 (2) of the Prevention of Corruption Act, 1947 and sentenced to imprisonment till rising of the Court and also asked to pay a fine of Rs. 1,000 or in default to receive rigorous imprisonment for six months, by a learned Special Judge, Anti‑Corruption at Lahore, vide his judgment dated the 1st August, 1978. He has failed an appeal against his conviction and sentence.

2. The appellant was a Fitter in the Tubewell Section, Sub‑Division Nankana Sahib, District Sheikhupura. One Muhammad Rafiq was a Foreman while Muhammad )qbal absconder was the Overseer and Muhammad Aslam (P. W. 6) was the Well‑borer of the Servicing Gang. On the 21st April, 1974, Muhammad Aslant (P.W. 6) by. application Exh. PM laid information before the Anti‑Corruption Department to the effect that the Servicing Gang and the machine parts requiring repairs were transported on official vehicles or the transport provided by the local zamindars but Muhammad Rafiq Foreman and the appellant in collusion with Muhammad Iqbal Overseer used to prepare bogus bills and draw the amount from the Government Treasury, On the basis of the application, formal FIR Exh. PM/1 was registered with Police Station Anti‑Corruption, Sheikhupura on the 17th November, 1974 recorded by S. I. Manzoor Hussain Shah (P. W. 7).

3. S. I. Manzoor Hussain Shah (P. W. 7), after obtaining the necessary permission, investigated in case. He took into his possession 52 vouchers along,vith the receipts pastcd on their backs from Muhammad Anwar (P. W. 2), Accounts Clerk. Of those, 3 vouchers Exh. PA/1 and PA/2 were for Rs. 30, 9 vouchers Exhs. PB, PB/1 to PB/8 for Rs. 110, 12 vouchers Exhs. PC, PC/1 to PC/5, PD, PD/1 to PD/5 for Rs. 120, 5 vouchers Exhs. PE, PE/1 to PE/4 for Rs. 50, 9 vouchers Exhs. PF, PF/1 to PF/8 for Rs. 68, 6 vouchers Exhs. PG, PG/1 to PG/5 for Rs. 70, 5 vouchers Exhs. PH, PH/1 to PH/4 for Rs. 44 and 3 vouchers Exhs. PJ, PJ/1 and PJ/2 for Rs.

28. The total amount of all these vouchers comes to Rs. 520.

4. The appellant pleaded not guilty to the charge and denied the allegations against him. He led 7 witnesses in the defence.

5. The material witnesses examined by the prosecution are only Wali Muhammad (P. W. 5) and Muhammad Aslant (P. W. 6). But Muhammad Aslant took a somersault and set up an entirely different story from the one given in the F. I. R. He stated that new machinery parts for replacement of defective parts were purchased by the zamindars from their own pocket but the appellant and Muhammad Rafiq Foreman in collusion with the Overseer used to show their purchase by the Department by preparing bogus receipts. Wali Muhammad (P. W. 5) who, at the relevant time, was the S. D. O. Incharge of the Sub‑Division, stated that the vouchers were passed by him on the basis of the receipts pasted on their backs for the work done for shifting gangs and material necessary in connection with the repairs of the defective tubewells. He asserted that the receipts were genuine as the work had been done.

6. The prosecution has failed to produce any evidence whatsoever to show that the receipts were bogus or the work was not, in fact, done or the amounts were not actually paid to the recipients. There was no evidence before the trial Court to come to a finding that the appellant had dishonestly or fraudulently misappropriated any amount of the Department and, therefore, it could not be said that he had committed criminal misconduct. Muhammad Rafiq Foreman who was separately tried, and convicted was acquitted by this Court, vide judgment dated the 4th February, 1980 passed in Criminal Appeal No. 806 of .1978.

7. For the reasons stated above, it is not possible for me to maintain the conviction and sentence of the appellant. Accordingly, I set aside his) conviction and sentence and acquit him. M. Y. H. . Appeal accepted.