' JUSTICE (R) SAGHEER AHMED QADRI, CHAIRMAN---The petitioner Muhammad Asif Chisti Secretary General Al-Takbeer KAPCO Employees Union (Regd.) District Muzaffargarh has preferred this revision petition under section 47(5) of PIRA, 2010 against the judgment dated 30.04.2014 passed by the learned Labour Court No,11, D. G. Khan whereby Inam-ul-Majeed Khan Senior Plant Operator KAPCO was acquitted of the charges under section 69 read with Section 70 of PIRA, 2010 whereby he allegedly misappropriated an amount of Rs,1,90,000/- from the employees union's account being its Pattern in Chief.
2. The fAs necessary to dispose of this revision petition are that the petitioner filed a complaint under section 69 of PIRA, 2010 mentioning the facts that the respondent Inam-ul-Majeed Khan Senior Plant Operator KAPCO being Pattern in chief was operating unions account No,0477- 0014375203 of Al-Takbeer Union in H.B.L. KAPCO branch Mouza Hala; that said account was a joint account to be operated by the respondent Inam-ul-Majeed Khan along with Finance Secretary of said union; that the respondent with mala fide intention misusing his authority on 11.01.2013 issued two cheques worth Rs,1,25,000/- and Rs,65000/- (Total Rs,1,90,000/-) and got it transferred to his personal account No,04773332638701 in the same branch of the said bank; that when this fact transpired to the petitioner and other members of the Executive Body of the union they demanded back said amount from the respondent but he refused and later on resigned as office bearer of the .Union on 28.02.2013. He submitted copies of the cheques along with account sheet. He further mentioned that an application in this respect was moved to the Registrar Trade Union, Muzaffargarh who directed that complaint be lodged before the learned Labour Court. Prayed that respondent be summoned and action be initiated accordingly.
3. Learned trial court after recording the preliminary evidence summoned the respondent who put in appearance and was charged on 12.03.2014 under section 69 read with section 70 of PIRA, 2010 for the above mentioned allegations/ charges of misappropriation of Rs,1,90,000/- after getting issued two cheques and transferring the same into his personal account from account of the said union.
4. The respondent Inam-ul-Majeed Khan denied the charge and claimed the trial vide statement dated 12.03:2014.
5. The learned trial court recorded the statement of Muhammad Asif Chisti/complainant/petitioner as PW-1 who reiterated his stand mentioned in the complaint Ex. P.1 mentioned above and further getting exhibited copies of cheques Ex.P.2 and Ex.P.3 along with account sheet of the union Ex.P.4, an application moved to the Registrar of Trade Union Ex.P.5. He was cross-examined. PW-2 Mohammad Ayyaz Finance Secretary appeared and stated that he being Finance Secretary of Al- Takbeer Union KAPCO issued cheques Ex.P.2 and Ex.P.3 being cosignatory of the respondent which were got issued by the respondent under the pretext to institute a case regarding charier of demand of KAPCO as fee to be paid to an advocate but later on said respondent did not adjust the amount even when requested and he resigned from his post as Chief Pattern of the union. He was cross-examined.
6. The learned trial court recorded the statement of the respondent Inam-ul-Majeed Khan under section 342, Cr.P.C. And put the incriminating circumstance to him which he refuted. He although opted to lead defence evidence but did not produce later on any such evidence and learned trial court after hearing the parties vide impugned judgment dated 30-04.2014 dismissed the complaint and acquitted the respondent of the charges mentioned above. Feeling aggrieved the complainant/ petitioner has preferred this revision petition.
7. Learned counsel for the respondent/ accused at this stage out rightly raised the objection that as the respondent was acquitted by the learned trial court vide impugned judgment dated 30.04.2014, therefore, this revision petition was not maintainable. Learned counsel for the complainant/petitioner while arguing about the maintainability of the revision petition submitted that there is no provision available enacted in PIRA, 2010 to challenge the legality and propriety of an order passed under sections 69 and 70 meaning thereby that no appeal is provided under this law, hence under section 47(5) of the Act ibid a revision is maintainable against any order passed by the learned trial court, hence this revision petition is, maintainable.
7. I have heard learned counsel for the parties about maintainability of the revision petition and found the arguments advanced by the learned counsel for the petitioner as plausible, hence it is declared that this revision petition is maintainable before this Tribunal.
8. As far as the merits of the revision petition are concerned, the learned counsel for the petitioner/ complainant argued that through the statement of the complainant Muhammad Asif Chisti who appeared as PW-1 further corroborated by the statement of the PW-2 the Finance Secretary Muhammad Ayyaz as well as documentary evidence in the shape of cheques Ex.P.2, Ex.P.3 and the statement of account Ex.P.4, it is clear beyond any shadow of doubt that the amount of Rs,1,90,000/- was transferred from unions account to the respondent's personal account which fact he himself has admitted in his own statement before the court; that the above mentioned evidence is clear proof of misappropriation/ embezzlement of the amount of the union but the learned trial court did not consider these aspects and extending benefit of doubt, dismissed the complaint. Prayed that in these circumstances while allowing this revision petition the impugned judgment passed by the learned trial court be set aside and respondent be penalized accordingly.
9. Learned counsel for the respondent has vehemently opposed the arguments advanced by the learned counsel for the petitioner on merits while referring the statement of the PW-2 Muhammad Ayyaz the Finance Secretary who admitted that he himself transferred the said amount in the account of the respondent as there was previous practice that the respondent being Chief Pattern of the union used to spent money of his own due to any urgent requirement and that amount subsequently was used to be reimbursed in his account. Learned counsel argued that the learned trial court rightly reached at a conclusion, hence while exercising the revision jurisdiction the impugned judgment cannot be set-aside. Prayed that this revision petition be dismissed.
11. I have heard learned counsel for the parties and perused the records minutely.
12. Admittedly, complaint under section 69 read with section 70 of PIRA, 2010 was filed by the petitioner under the allegation that the respondent Inam-ul-Majeed Khan issued two cheques worth Rs,1,90,000/- got it signed by co-signatory, Muhammad Ayyaz the Secretary Finance PW-2 and those cheques were deposited in his own account. Before further proceedings Sections 69 and 70 of PIRA, 2010 are hereby reproduced under which the respondent was charged by the learned trial court: "69. Penalty for embezzlement or misappropriation of funds.---Any office-bearer or any employee of a registered trade union, guilty of embezzlement or misappropriation of trade union funds, shall be liable to a fine, double the amount found by the Labour Court to have been embezzled or misappropriated and upon realization, the Labour Court may reimburse the amount of fine to the trade union."
"70. Penalty for other offences---A person who contravenes, or fails to comply with, any of the provisions of this Act shall, if no other penalty is provided by the Act for such contravention or failure, he shall be punished with fine which may extend to five thousand rupees."
13. If the above mentioned provisions of Act ibid are seen, these provisions provide punishment/ penalty for embezzlement or rmisappropriation of trade union funds or violation of any other provisions of the Act if no penalty otherwise is provided. Only fine is provided as punishment for the commission of said offences. Mere perusal of these provisions the proceedings to implement these provisions a labour court/a magistrate has to conduct quasi criminal proceedings and same procedure was adopted by the learned trial court.
14. The main ingredient of Section 69 which actually/basically applicable in the facts and circumstances of the case as allegation had been levelled against. The respondent for misappropriation of union funds and converting it as into his own property. At this stage in order to understand the basic ingredient of Section 69 the definition of misappropriation as provided under section 403 of Pakistan Penal Code is conveniently can be referred: "Dishonest misappropriation of property. Whoever dishonestly misappropriates or converts to his own use any movable property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
' Although the word embezzlement is used in Section 69 of PIRA, 2010 under which the respondent was charged, however, the definition of criminal breach of trust as provided under section 405, P.P.C. Is also relevant to further understand the charge levelled against the respondent thus it is hereby reproduced: "Criminal breach of trust. Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly use or disposes of that property, in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person sb to do, commits "criminal breach of trust."
15. The both of the offences misappropriation/embezzlement and criminal breach of trust in the light of above definition contained element of Mens Rea as integral ingredient of these offences.
16. Here in this present controversy the allegation levelled against the respondent are that he along with Finance Secretary PW-2 Muhammad Ayyaz issued two cheques Ex: P.2 and Ex.P.3 worth Rs,1,90,000/- in total and deposited the same in his own account, thus deprived the union of its valuable property/cash and committed the alleged offence of misappropriation/embezzlement.
The co-signatory Muhammad Ayyaz, PW-2 the Finance Secretary in his own statement during cross-examination admitted: "Cheque books etc of the account of the union are with me. Prior to the issuance of disputed cheques, P2 and P3, there have never been any such problem. When there is any function etc. Of the union the expenses are incurred by the Chief Pattern. When I issued the disputed cheques, I knew the purpose for which said cheques were being issued. I deposited said cheques P2 and P3 by myself in the bank. Cheques P2 and P3 bearing signature my signature P2/A and P3/A, were signed by me in the office whereas I got the signatures of the accused on said cheques from his house."
' If the statement of the respondent/accused recorded under section 342, Cr.P.C. By the learned trial court is seen, he while replying the question No,2 specifically stated: "Answer: I was the Chief Pattern of said union on said dates and remained in that capacity for about more than 15 years. I have also personal account in said branch and said amount was also transferred from the account of said union to that of mine but the fact of the matter is that all the expenses of the union were used to be born by the Chief Pattern from his personal pocket and later on, said amount incurred by the Chief Pattern, was transferred to his account or otherwise reimbursed. In this case, since a case of COD was to be filed, I bore all the expenses and as per the settled practice, later on, the Finance Secretary of the union, the co-signatory of the cheques, after getting my signatures as well on disputed cheques, Ex.P2 and Ex.P3, himself deposited said cheques in my account of his own.
Admittedly, co-signatory Muhammad Ayyaz Pw-2 in his statement while appearing before the learned trial court stated that he himself got signed the cheques Ex.P.1 and Ex.P.2 from the respondent Inam-ul-Majeed Khan and deposited the cheques in the respondent's bank account himself. It is also admitted by the PW-2 that there was previous practice prevailing that the respondent Inam-ul-Majeed Khan being Chief Pattern used to spent the amount required to cope with any situation from his own pocket and later on was to be reimbursed to him accordingly. It is also on record that at the relevant time when both the cheques mentioned above were issued there was a requirement for the payment of fee of an advocate for initiation of certain proceedings before certain authorities.
17. Keeping in view of the circumstances, when. The learned trial court which had the jurisdiction to entertain and try the complaint, under sections 69 arid 70 of PIRA, 2010 reached at a conclusion after applying its judicial mind that offence as alleged was not committed by the respondent. This Tribunal while exercising the revision jurisdiction F cannot reach at another conclusion as it is not an appeal against acquittal. The learned trial court had the jurisdiction to entertain and try the complaint and jurisdiction has been exercised as mentioned above in judicial manner extending the benefit of doubt to the respondent, hence, there are no merits in this revision petition, it is hereby dismissed. File be consigned to the records room after its due completion.