By way of the instant appeal Muhammad Tariq appellant has called in question the judgment dated 24.7.2003 recorded by Special' Judge Anti-Corruption, NWFP, Peshawar whereby he convicted the appellant under Section 419 P.P.C. and sentenced him to 7 years R.I. with a fine of Rs, 7,51,341/. as equal to the embezzled amount. He was also convicted under Section 204 PPC and Section 5(2) Prevention of Corruption Act, 1947 and was addedly sentenced to one and two years respectively on both the sections. Benefit of Section 382-B, Cr.P.C. was, however, allowed.
2. On the basis of a letter Ex. P.W.7/1 issued by the then Deputy Commissioner, Abbottabad on 1.11.1992 the instant case was registered with reference to the report of Traffic Magistrate, Abbottabad. It was stated in the said letter that during the on going audit proceedings the appellant working as a reader in the Court of Traffic Magistrate was absent from duty which created doubt and that reportedly he had misappropriated public money. The matter was investigated and the appellant on his arrest was put to trial. He was convicted and sentenced to 10 years R.I. on 18.4.2001. However, on appeal, this Court remanded the case for trial denovo on 28.3.2002. The subsequent trial also ended in the conviction of the appellant which has been impugned by way of this appeal.
3. Brief facts of the case are that the appellant was working as reader with Special Traffic Magistrate, Abbottabad. He was statedly charged with the duty of collecting the amount of fine imposed on the violators of traffic laws. The audit of the Court of S.T.M. commenced but the appellant was absent from duty and that the was statedly reluctant to produce the relevant record before the audit party which created a doubt that he has misappropriated public money. The appellant was thus on the charge of embezzlement put to trial. The prosecution as an endeavour to prove its case examined about 7 witnesses. Israrul Haq Assistant Accounts Officers, A.G. Office N.W.F.P. was examined as P.W.1. He conducted the audit and submitted his report Ex. P.W.1/1 according to which the appellant had embezzled a sum of Rs, 8,12,461/- out of which Rs, 61,120/- were deposited by him leaving a sum of Rs, 7,51,341/- as outstanding amount. P.W.2 Mumtaz Zarin DSP registered the case and raided the Court of STM wherefrom certain record was collected.
During investigation he recorded the statements of the P.Ws., arrested the appellant and some challans produced by Haroon Muharrir of the Court of STM were taken into possession. Taj Hameed who at the relevant time was working as Special Traffic Magistrate recorded his statement as P.W.
3. He deposed that inspite of his demand on 21.10.1992 the appellant failed to produce the Fine Register and challan for verification and ultimately disappeared and as such the record could not be produced before the audit party. Haroon P.W. 4 deposed about the production of various challans to ACE Staff. Muhammad Safdar P.W. 5 was a witness to the recovery memos Ex. P.W.2/1 and Ex. P.W.2/2 through which the aforementioned challans were taken into possession. P.W.6 Haji Muhammad Farid was a marginal witness to the recovery memo Ex. P.W.2/3 vide which the I.O. took into his possession a photocopy of the report produced by Taj Hameed the Traffic Magistrate.
Muhammad Riaz was examined as P.W.7 at whose instance the case against the appellant was registered on the basis of a letter Ex. P.W.7/1.
4. The charge against the appellant precisely was that he while posted as reader to the Special Traffic Magistrate in 1992 had dominion over public money which he collected as fine imposed on traffic's laws offenders and was misappropriated and for saving his skin he concealed the register of fines which is known as Register No, 17 and the other relevant record. The appellant was examined under Section 342 Cr.P.G. He denied the commission of offence and pleaded innocence.
5. The learned counsel appearing on behalf of the appellant has vehemently argued that there is no evidence on the file to show that the appellant had received any amount of fine, therefore, the question of the alleged embezzlement does not arise at all. He maintained that no document indicating his hand writing or signature is available on the record to establish that the appellant received any amount of fine and he did not deposit the same in the public exchequer. Elaborating his view point he contended that the factum of embezzlement is to be preceded by the factum of receiving any amount. He further argued that the allegations of concealing Register No, 17 by the appellant is countered by the prosecution evidence itself which speaks that Register No, 17 was available with the audit party. Reference was made to P.W.5 namely Muhammad Safdar.
6. On the other hand the learned Deputy Advocate General while opposing the instant appeal has argued that it is established from the audit report that the appellant had embezzled the amount of fine which he collected. He further stated that the absence of the appellant at the time of audit proceedings is a pointer towards his involvement in the offence. He further submitted that uncontrovertibly the appellant was working as a reader with a Special Traffic Magistrate during the period relating to the embezzlement of the amount. The learned Deputy Advocate General placed great emphasis on a statement showing the detail of amount received but not deposited in the public account which appears to have not been exhibited. He also relied on recovery memos Ex.
P.W.2/1 and 2/2 containing certain descriptions of the challans. The learned D.A.G. also submitted that the record is deficit because the original file was misplaced and subsequently the case file was re-constructed. He has, however, admitted that no such document about the recovery and receiving of the fine is available having the signature of the appellant.
7. I have heard and considered the rival arguments of the learned counsel for the parties. The main question for determining the guilt of the appellant would be whether the prosecution has brought any thing on the record proving the fact that the appellant had received the amount recovered from delinquents by way of fine. Register No, 17 is meant for the collection and entry of fine which is maintained in the Office of Special Traffic Magistrate. It was alleged against the appellant that he had concealed the register to save his skin. This argument of the prosecution becomes baseless in view of the statement of P.W.5 who said" It is correct that Register No, 17 was laying on the table when the magistrate concern and I alongwith P.W. Haroon were present in the Court and we were performing our usual duty". It was against said, "The audit party was busy in their work and Register No, 17 was with them in connection with audit checking". P.W.3 Taj Hameed (STM during the concerned days) also admitted in the following diction:-- "It is correct that I initialled register 17 being correct till September, 1992 and I did not find any fault with depositing of fine".
He also admitted that he cannot say as to how much fine would have been imposed for the traffic violation during the month of October when he was performing his special duty besides his duty as a Traffic Magistrate. In the above state of circumstances it would not lie in the mouth of the prosecution that the appellant had concealed the relevant register. The report of the audit party may be taken as material to indicate that some amount was misappropriated but who received such amount and misappropriated cannot be established by the report of the audit party. P.W.1.
Israrul Hal has gone to the extent in saying that the officer in charge, i,e,, a Special Traffic Magistrate was also responsible for the misappropriation. The reasons are not known as to why he was spared. Mumtaz Zarin P.W.2 also admitted that according to pare 6 of the audit report the officer in charge was also responsible for the embezzlement in the case. He said that the magistrate was not arrayed as an accused in the case because the Commissioner Hazara has passed a departmental order against him and was proceeded against departmentally to the extent of inquiry. This witness also admitted that the relevant vouchers were not sent to the expert for ascertaining the signatures thereon. The statement showing the detail of amount relied upon by the learned D.A.G. also does not contain any writing or signatures of the appellant, therefore, it cannot be used against him as evidence. Similarly, Ex.P.W.2/1 and 2/2 are merely the recovery memos prepared by the I.O. but the same too cannot establish any nexus of the appellant with the amount mentioned therein. No other document was high lighted by the learned D.A.G. where-with the nexus of the appellant could be linked. In the present circumstances the mere report of the audit party not substantiated by any document cannot be considered sufficient for recording the conviction of the appellant. It is also noted that the appellant was not confronted in his statement under Section 342 Cr.P.C. with any document to show that he had received any amount under his hand writing or signature.
8. In the above circumstances 1 am clear in my mind that the prosecution has not been able to prove its case against the appellant. Consequently, this appeal is allowed, the impugned judgment and order about his conviction and sentence is set aside. These are reasons for my short order dated 27.1.2004.