' HASNAT AHMAD KHAN, J.---Through this appeal the judgment, dated 5-4-2006 passed by learned Special Judge Central, Multan, whereby, the appellant was found guilty under section 409, P.P.C.
And was sentenced to undergo seven years' R.I. And to pay a fine of Rs,20,000 in default whereof to undergo R.I. For six months, has been assailed.
2. Brief facts of the case are that Mst. Yasmeen Bibi widow of Nisar Ahmad lodged the F.1.R. With the local police station alleging therein that after the death of her husband she deposited G.P. Fund of her deceased husband amounting to Rs,1,85,401 in the Post OfficeNo,279 TDA in the Account No,345 and according to her the appellant had been dealing with her account in the Post Office. She further alleged that after some time she visited the Post Office and came to know that accused had been transferred from the said post office and the concerned clerk disclosed that no amount was credited in her account. Thereafter she contacted the appellant who admitted misappropriation of her amount and promised to return the same and issued two receipts to satisfy her. In the event of his refusal to return the said amount the complainant lodged the F.I.R. On 16-7-2004 under section 409, P.P.C.
3. After the investigation challan against the appellant was submitted and he was tried by learned Special Judge Central Multan. During the trial the prosecution opted to produce five witnesses. Mst.
Yasmeen complainant appeared as P.W.1 and supported her case. However, during her statement she mentioned the misappropriated amount as Rs,3, 40,000 instead of Rs,1,85,401. She further corroborated the contents of the F.I.R. By stating that on the demand of the return of the misappropriated amount the accused/appellant had stated that his services have come to an end and he had no money to pay to the complainant and to ensure the repayment of the misappropriated amount, he executed two pro notes in the sum of Rs,2,70,000 and Rs,70,000 respectively but the said amount was never repaid by him. Ghulam Qadir while appearing as P.W.2 stated that in his presence an amount of Rs,3,40,000 was paid by the complainant to the appellant.
He further stated that the appellant obtained thumb-impression of the complainant on the relevant papers and afterwards it was revealed that said amount had never been deposited in the account of post office. According to said P.W. The appellant confessed his guilt before a panchayat and executed two pro notes in favour of the complainant. Khizar I-layat appeared as P.W.3 and supported the version of the complainant in all respects. Muhammad Sharif, A.S.-I. Appeared as P.W.4 and deposed about details of his investigation. Abdul Hameed retired S.-I appeared as P.W.5 and gave the detail of investigation conducted by him. According to him he had recorded supplementary statements of the complainant, Khizar Hayat and Ghulam Qadir witnesses.
4. After the closure of the prosecution evidence, the statement ofthe appellant under section 342, Cr.P.C. Was recorded and thereafter he produced three witnesses in defence.
5. After the conclusion of the trial he was found guilty undersection 409, P.P.C. And sentenced as mentioned above.
6. Learned counsel for the appellant has contended that the story of the F.I.R. Is different from that as stated before the learned trial Court; no record of the post office was produced; at the most it is a case of civilliability, on the basis of the pro notes Exh.PD and Exh.PE the complainant had already filed a suit. He has maintained that from the facts of the case section 409. P.P.C. Is not made out. In the alternate he has prayed for reduction of the sentence.
7. Learned State counsel has opposed this appeal.
8. Arguments heard. Record perused.
9. As far as the contradictions regarding amount in question are concerned it is observed that the complainant is an illiterate lady and it could not be expected from her that she would give the details of the misappropriation committed by the appellant with exactitude; broad features of the allegations given by her were corroborated by the other witnesses produced by her. Most material aspect of the case is that during the trial the prosecution produced two pro notes Exh.P.D. And Exh.P.E. In the sum of Rs,2,70,000 and Rs,70,000 respectively which had been executed in favour of the complainant and for execution of said pro notes no valid reason has been put forward by the appellant. Had there been no case of misappropriation there would have been no occasion for the appellant to execute said pro notes in favour of the complainant as no business terms were going on between the appellant and complainant. The execution of said pro notes lends support to the case of the prosecution.
10. As far as the defence version is concerned that is found to be totally devoid of any force.
According to the appellant his son was engaged with the sister of the complainant who thereafter demanded that the appellant should contract marriage with her and on his refusal to do so she opted to get present case registered against him. Said defence version does not appeal to reason and seems to be funny and afterthought and as a matter of fact instead of defending himself he tried to assassinate the character of the lady/complainant.
11. If some lacuna was left in the prosecution version, the defence witnesses came to support the same and filled said lacuna. Ashiq Hussain who is son of the appellant while appearing as D. W.1.
Admitted in his cross-examination that the complainant was running a pension account in the post office and she used to visit the post office in connection with pension account. He further admitted that his father had also been posted as Sub-Postmaster at Village Chobara. Most material answers given by him during the cross-examination are reproduced as under:-- "I do not know as to whether my accused father present in the Court had committed an offence of embezzlement and in consequence thereof, his service was gone to an end. I do not know as to whether my father had deposited the embezzledamount and he was reinstated in the service. I do not know as to whether Mst. Yasmin had entrusted an amount of Rs,3,40,000 to my accused father present in Court so as to deposit the same in the account of the complainant but the said amount was misappropriated. I do not know as to whether my accused father present in Court deposited the amount of Rs,3, 40,000 in earlier case of embezzlement having been taken place at Chobara".
' The said part of the statement of the son of the appellant clearly shows that he could not specifically rebut the suggestions made to him and tenor of his replies makes one to believe that the prosecution version was indirectly admitted. His evidence proved to be a last nail in the coffin of defence version.
12. As far as the contentions of the learned counsel for the appellant that the offence under section 409, P.P.C. Is not made out, is also devoid of force. The appellant had received the embezzled amount from the complainant in his capacity of public servant/banker and as such ingredients of section 409, P.P.C. Are fully attracted to the facts of the case and said contentions of the appellant is spurned.
13. As far as the contention regarding the non-production of the relevant record from the post office is concerned that has also little force. During the cross-examination Abdul Hameed, S.-I.
P.W.5 submitted that he had checked the record of the post office but the concerned authorities had refused to issue the copies of the record. He further deposed that during his checking it was found that an amount of Rs,1,50,000 was debited from the amount of the complainant and on pages Nos.61 and 75 there were entries of credit and debit of the account of the complainant. The said statement of the Investigating Officer further strengthen the case of the prosecution and shows that she was maintaining some account in the post office from where certain amounts were debited.
14. For all the reasons stated above, I have no doubt in my mind that the prosecution had succeeded to prove its case beyond any shadow of doubt.
15. As far as the last contention of the appellant regarding the quantum of sentence is concerned that has got some force. Keeping in view the age of the appellant and the fact that the complainant has got a chance to recover the misappropriated amount from the appellant on the basis of pro notes executed by him in her favour and a civil suit filed by the appellant is pending disposal the sentence awarded to the appellant seems to be a bit on higher side. As such, same is reduced from seven years to four years' R.I. Rest of the sentence in shape of fine and in default thereof would remain intact. However, the appellant would getbenefit of section 382-B, Cr.P.C. With the said modification of the sentence, this appeal is disposed of.
Sentence Reduced.