1. FAKHRUDDIN G. EBRAHIM. J. This judgment will dispose of Criminal Appeals Nos. 87 and 88 of 1973.
2. The facts giving rise to these appeals are that the appellant Inamul Haq was challaned to stand trial for offences punishable under sections 409/420/468, P. P. C. Read with section -5(2) of the Prevention of Corruption Act, 1941 in two separate cases. The accusation was that the appellant, while serving the State as a Junior Clerk in the office of Commercial Institute, Kohat, during the years 1964-65 and 1965-66. Mis--appropriated several sums of money in the manner following :- (i)that the contingent Bill No. 198 dated 17-12-1964 which was for a sum of Rs.87.48 was altered by insertion of an additional figure of Rs.500, thus making it a Bill for Rs.587:43 (Exh. P. W. I/D).
3. (ii)That the contingent Bill No. 245 dated 22-2-1965 which was for a sum of Rs.49 was altered by insertion of an additional figure of Rs.1,000 thus making it a bill for Rs.1,049.
4. (iii)That the contingent Bill No. 25 dated 1-4-1965 which was for a sum of Rs.43/81 was altered by insertion of an additional figure 'of Rs.500 thus making it a bill for Rs.1443 in support of which a bogus Voucher No. 138 was prepared (Exh. P. W. 1/G).
(iv) That the contingent Bill No. 86 for April 1965 which wag for a sum of Rs.385/81 was altered by insertion of an additional figure Rs.2,000 thus making it a bill for Rs.2385.91 (Exh. P. W. 1/C).
(v) That the contingent Bill No. 64 for December 1965, which was for a sum of Rs.235 was altered by insertion of an additional figure of Rs.1,000 thus making it a bill for Rs.1235.10 (Exh. P. W.
5. (vi)That the contingent Bill No. 198 for January 1966 which was- for a sum of Rs.290 was altered by insertion of an additional figure of Rs.2,000 thus making it a bill for Rs.2,290 (Exh. 1/B).
6. Thus it was alleged that during the year 1964-65 the appellant had, in the manner aforesaid, misappropriated a total sum of Rs.2,000 and in the year 1965-66 the amount misappropriated was Rs.5,000.
7. The appellant was tried by a Special Judge, Anti-Corruption Peshawar. In both the cases the appellant was found guilty, In the first case relating to the year 1964-65 the punishment awarded was 18 months R. I. And also a fine of Rs.2,000 or in default to suffer six months further R. I., and in the second case relating to the year 1965-66 the appellant was sentenced to undergo' 2 years R. I. - and also to pay a fine of Rs.5,000 or in default to suffer 6 months further R. I. Both the convictions were maintained by the then learned Chief Justice in the High Court of Peshawar vide separate judgments dated 26-9-1972 and dated 27-9-1972. ` Leave was granted by this Court in both the, cases vide order dated 12-7-1973.
8. Mr. Ijaz Hussain Batalvi the learned counsel for the appellant contended that the impugned convictions can be maintained only if the evidence discloses, in no uncertain terms, that the appellant inflated the contingency bills,' presented the bills to the Treasury and got them passed for payment and received payments thereunder. The learned counsel contended if there was any break in this chain of events, the appellant's conviction cannot be sustained in law.
9. As to the preparation of the contingency bills, the appellant's case was that it was not any part of his duty for he was only a Junior Clerk in the Institute. P. W. 10 Ghulam Nabi, the Senior Instructor in the Institute who was an independent witness deposed that though it was not the assigned duty of the appellant, he, being the only employee in the office at the relevant time, used to prepare contingency bills, maintain accounts and keep the requisite registers. The question, however, is whe--the the inflated bills in question were prepared by the appellant. For this there is no direct evidence except perhaps of P. W. 1 Muhammad Asghar Butt the Principal of the institute, who deposed that the bills in question were prepared by the appellant but not in his presence. This witness as was found by the two Courts below cannot be believed without corroboration for he bad not only animus against the appellant but also for the reason that the trial Court was pursuaded to remark against this witness that but for his negligence there would have been no occasion for misappropriation by the appellant. The animus of this witness against the appellant was that the appellant's brother had divorced his wife who was sister-in-law of this witness. We have also noticed that no attempt was made to prove through a handwriting expert that the inflated bills were in fact prepared by the appellant.
10. Next comes the question of the presentation of inflated bills to the Treasury by the appellant and having them passed for payment. P. W. 5 Qureshi Abdul Hai who was at the relevant time a Clerk in the Treasury Kohat stated that the appellant had presented the bills Exh. P. W. 1/D, P. W. I/F, P. W. 1/C, P. W. 1/G, P. W. I /A which bills were initiated by him and were passed on to the Treasury Officers. P.
11. W. 6 Ahmad Saeed an Assistant in the Treasury Office, Kohat, stated that the bills Exhs. P. W. 1/C and P. W. I/B and P. W. 1/A were presented by the appellant and passed by him, P. W. 4 Sikandar Hayat Khan stated that the bills P. W. 1/C, P. W. 1/B and P. W. 1/F were handed over to him by the appellant on which he had made payment orders and the appellant had the authority to receive payment of bills from the Treasury Office.
12. We agree with the High Court that there was no reason to disbelieve these witnesses but at best what is proved is that the inflated bills were presented by the appellant to the Treasury Office and the appellant got them passed by the Treasury Officers and further that the appellant had the authority to receive the payments under these bills.
13. The third and the final link in the chain is the most vital and that is the receipt of payment under the inflated bills by the appellant. Mr. Bashirullah Khan, A. A.-G. For the respondent conceded that such payments could not have been made without obtaining the signatures of the payee, who was allegedly the appellant. This evidence, however, was withheld by the prosecution. The presumption will, therefore, be that this evidence if forthcoming, would have been favourable to the appellant. It was for the prosecution to prove that payments under the inflated bills were in fact received by the appellant and having failed to do so, the fact that these bills were presented by the appellant to the Treasury Office for having them passed, coupled with the absence of proof that the same were actually prepared by the appellant, would hardly go to establish the appellant's guilt.
14. Faced with this situation, the learned counsel for the State sought to place reliance on the alleged confession of the appellant and the cheque for Rs.5,000 said to have been given by the appellant to P. W. Muhammad Asghar Butt. We may observe firstly that the High Court has not been pleased.
15. To advert to this aspect of the case and it may, therefore, be assumed that the evidence relating thereto was not found to be worthy of credence by the High Court. As to the appellant's confession, there is material discrepancy in the evidence of the witnesses. According to P. W. I the confession in the hand of the appellant was delivered by the appellant in the presence of P. Ws. Nawab Khan, Syed Mumtaz Ali Shah and Asghar Butt but out of these gentlemen at least two or one were not prepared to say so in their deposition. As to the cheque, there was no proof that the appellant had a bank account nor was the dishonoured cheque proved. The possibility cannot be overlooked that the cheque may have been delivered by the appellant not by way of admission of guilt, but with a view to avoid unfavourable publicity The upshot of the above discussion is that there was no reliable evidence that the appellant had prepared the inflated bills in question, though these bills may have been presented by him to the Treasury Office for their sanction but that will hardly result in the appellant's conviction in the absence of proof that payments under these bills were in fact received by the appellant. Suspicion howsoever strong cannot take place of proof.
16. We are, therefore, of the view that in the circumstances of the case the appellant is entitled to tae benefit of doubt and accordingly these appeals are accepted and the appellant's conviction in both the cases is set aside.