Mirza Bashir Ahmad son of Muhammad Ibrahim caste Gondal has beer convicted by Special Judge, Multan, by order dated 28-8-1967 under section 409, P. P. C. Read with section 5(2) of the Prevention of Corruption Act. 1947, and sentenced to two years' rigorous imprisonment and a fine of Rs. 8,000, in default whereof to further undergo rigorous imprisonment for 8 months, for having embezzled 160 tons of slack-coal worth Rs. 7,040 during his employment as Overseer with Thal Development Authority at Leiah in the year 1954. Through this appeal, the convict has challenged both his conviction and sentence.
2. Succinctly stated facts of the case are that Nisar Ahmad Qureshi (P. W. 5), sole proprietor of Standard Construction and Trading Company, obtaining a contract of supplying bricks to the Thal Development Authority in the year 1953-54. The payments used to be made to him in the form of cash or material adjustable against the price of the bricks supplied.
3. It was alleged that the appellant resigned from the job and was relieved from duty on 3-8-1954 whereafter Sardar Muhammad, Divisional Accountant, Thal Development Authority (P. W. 1) prepared the fine bill of the contractor wherein price of 39716 tons of slack-coal was charged from him as it was shown to have been delivered to him on 18-3-1954 by the appellant under indent Exh.
P. A. And a receipt thereof was obtained at its back signed by the contractor. Nisar Ahmad raised an objection before the Executive Engineer that he received only 237'16 tons of coal under Indent Exh. P. A. And not 397'16 tons as shown in the record and demanded that the price of 160 tons of coal should not be realised from him. He maintained that 11. Wagons of coal were delivered him by the appellant on the basis of Indent Exh: P. A. And on its back the weight of each wagon was noted in ink, and below the detail he wrote the following words :- "Received above eleven wagons (Sd)
Nisar Ahmad Qureshi for S. C. & T. Co.". acknowledging the receipt of coal. He further claim that at the time of signing the above receipt the words ---B. F. 160--- in pencil were not present on the top of the aforementioned entries, which, according to him, were added subsequently in order to show that the total material delivered to him was "397'16 tons" as against the actually delivered coal weighing 237'16 tons. His objection was upheld and he was given the proportionate rebate, claimed. The department, therefore, presuming that aforesaid 160 tons of coal has been misappropriated by the appellant, got a case registered against him vide letter Exh. P. H. Signed by the Secretary, Thal Development Authority, which formed it basis of formal F. I. R. Recorded at Police Station Leiah and investi--gated. The appellant was arrested and after completing the necessary investi--gation he was challaned to Court.
4. At the trial, prosecution examined five witnesses of whom Muhammad Hussain, Head Constable (P. W. 2) and Muhammad Iqbal, Sub-Inspector (P. W. 3) had partly investigated the case while Sabir Hussain, Sub-Inspector (P. W. 4) who did nothing in this case was called by mistake. The prosecution case mainly rests on the testimony of Sardar Muhammad, Divisional Accountant, T. D.
A. (P.W. 1) and Nisar Ahmad Qureshi, Contractor (P.W. 5) Besides them, Afzal Hussain Shah was examined as court-witness (C. W. 1) whose evidence was considered as material for decision of the case, by the learned Court itself.
5. The accusations were put under section 242, Cr. P. C. To which the appellant made the following reply :-- ---Nisar Ahmad was carrying on his business under the firm named M./S. Standard Construction and Trading Company and coal was supplied to him by the T. D. A. For his kiln. Nisar Ahmad authorised one Afzal Hussain Shah (examined by the Court as C. W.1) to remove the coal from Station Leiah and I produce the original letter of authority dated 25-2-1954. He also sent a letter dated 23-10-1954 in continuation of the first letter and I produce it in Court. On the basis of the letter dated 25-2-1954, I handed over eight wagons of coal to Afzal Hussain on 10-3-1954 and took receipt from him in my note book. I produce this receipt in Court. The total weight of coal in these eight wagons was 160 tons. When Nisar Ahmad took delivery of the remaining eleven wagons under the indent Exh. P. A., 160 tons were shown as having been brought forward and hence the total weight was given as 397 tons and 16 c.w.d., though the total weight of coal in the eleven wagons was 237 tons 16 c.w.d. I never misappropriated any coal and will show cause against my conviction.--- After the prosecution evidence bad concluded, the appellant, in reply to question No. 5, explained his position further in the following words :-- ---In March, 1954, I resigned from service as I did not like the store duty which had been assigned to me I gave one month's notice but I was not relieved for four months. My personal file contains the relevant entry and the same is present in Court. In August 1954, I was relieved. The official who relieved me asked for the furniture shown in my charge but I told him to collect the same from the residences of the officers. On being relieved, I published a pamphlet containing mention of the irregularities committed by my superiors. I got clear--ance certificate on being relieved. I filed a suit in the Court of Senior Civil Judge, Jhelum which was decided in my favour. I pro--duce copies of the document Exh. D. O. To D. T. In support of MY plea.--- In his defence, the appellant examined Muhammad Akram Baig as D. W. 7 who being an employee of the Thai Development Authority worked as Kiln Mistri during the days of occurrence. He used to supervise the use of coal by Nisar Ahmad, Contractor, at his Kila Nos. 3 and 9. He stated that he knew Afzal Hussain Shah, who was representative of Nisar Ahmad. According to him, Nisar Ahmad, Contractor, first received eight wagons and the eleven wagons of coal, brought by Afzal Hussain Shah (obviously C. W. 1) from Railway Station Leah to the kilns of the contractor. He also identi--fied the signatures of Nisar Ahmad, Contractor, on Exh. D. A., photostat copy of a receipt purported to have been signed by the contractor acknowledging the receipt of eight wagons of slack-coal weighing 160 tons.
6. Learned trial Court discarded the defence theory and having believed the case of the prosecution found the appellant guilty of the charge under section 409, P. P. C., read with section 5(2) of the Prevention of Corruption Act, 1947, from which the present appeal has arisen.
7. The pivotal question to be decided in this appeal is, war I4er, or not, the appellant had delivered 8 wagons of slack-coal, weighting 160 tons to Nisar Ahmad P. W.'s firm through his agent Afzal Hussain Shah (C. W. 1?) The appellant's plea is mainly dependent on the oral evidence of Afzal Hussain Shah (C. W. 1), a receipt Exh. D. K., dated 10-3-1954 issued by Afzal Hussain Shah on behalf of his employer Nisar Ahmad (P. W. 5), a photostat receipt Exh. D. L. Dated 10-3-1954 purported to have been issued by Nisar Ahmad relating to the aforesaid 8 wagons and the receipt dated 18-3- 1954 on the back of indent Exh. P. A.
8. Learned Special Judge while dealing with receipt Exh. D. K. (photo--stat copy) excluded it from consideration being inadmissible in evidence because it did not satisfy the conditions laid down in section 6 of the evidence Act and could not be read as secondary evidence even. Learned trial Judge was right in declaring the receipt Exh. D. A. As inadmissible in evidence but the matter does not end here, because the oral evidence of Afzal Hussain Shah C. W., his receipt Exh. D. L. Being on record deserved a careful analysis to see if the plea of the appellant is reasonably probable before it is rejected.
9. In this regard first comes the evidence of Afzal Hussain Shah (C.W. 1) and the receipt (Exh. D. L.) purported to have been issued by him in favour of the appellant acknowledging receipt of eight wagons of coal on 10-3-1.954 on behalf of the contractor. Afzal Hussain Shah (C. W. 1) has stated that he was employed as Munshi at the brick-kiln of Nisar Ahmad. Contractor (P. W. 5) in the year 1954, and Mirza Bashir Ahmad, appellant, was the Overseer in those days who used to supply coal to his employer's firm. On 25-2-1954, Nisar Ahmed gave him an authority letter Exh. D. H. With his signatures which was meant for the appellant, authorising him (Afzal Hussain Shah) to collect coal from Railway Station Leiah. Pursuant to that letter, he received eight wagons of coal on 10-3-1954 from the appellant and give a receipt Exh. D. L. To the appellant under his signature where the numbers of all the eight wagons were also noted down. He removed that coal from 11ailway Station.
Leiah to the brick-kiln of Nisar Ahmad (P. W. 5). He confirmed that receipt Exh. D. L. Pertained to 160 tons of coal. In cross--examination be admitted that by mistake he wrote his employer's name as "Qureshi Nasir Ahmad" instead of "Qureshi Nisar Ahmad" on the receipt because some of the visitors used to call him as "Nasir Sahib". More or less, in the same strain spoke Muhammad Akbar Baig (D. W. 1) who, as admitted by Nisar Ahmad P. W., used to work as Kiln Mistri though appointed by the Thal Development Authority during the days of occurrence.
10. While discussing the statement of Afzal Hussain Shah (C. W. 1), the learned trial Court rejected his evidence on the grounds, that he did not appear before the police during the investigation that the receipt Exh. D. L. Bears the name of "Qureshi Nasir Ahmad" as his employer although his actual name is "Nisar Ahmad Qureshi"; and that the appellant did not put any question to Nisar Ahmad, complainant, regarding the execution of receipt Exh. D. L.
11. Having perused the statement of Nisar Ahmad Qureshi (P. W. 5) may express at the outset that it was not at all necessary for the appellant to put any question to this witness about the receipt Exh.
D. L. Which bore the writing and signatures of Afzal Hussain Shah (C. W. 1) only. I have failed to understand the logic of the learned trial Court in considering this omission on the part of the appellant as an implicating circumstance against him. Again, his observation, that since Afzal Hussain Shay failed to appear during the investigation, therefore, he was not reliable, is also not correct. It may be noted that the prosecution did not ask, the witness, if he ever appeared before the police during the investigations and all none of the Investigating Officers, who entered the witness-box, have stated that, this witness did not appear before them. Non-appearance of a witness during investigation does not always lead to an inference that he is a false witness., It is the intrinsic value of the statement of a witness, made before the Court, which forms basis to hold him reliable or unreliable. It is true that to certain cases non-appearance of a witness during investigation does entertain doubts about his varacity. But this principle is not of universal applica- -tion because there may be cases where the police deliberately avoids to examine or to make a mention about appearance of a witness during the investigation. In the instant case Afzal Hussain Shah was neither offered as a prosecution witness nor as a defence witness, rather he was called by the Court in view of the importance of his evidence, to appear and depose about certain facts.
12. Nisar Ahmad, Contractor (P. W. 5), however has been cross-examined at length on the point, whether Afzal Hussain Shah was his employees that did he ever act as representative of his firm ; and whether or not he (Nisar Ahmad) issued authority letter Exh. D.. H. Dated 25-2-1954 authorizing Afzal Hussain Shah to get delivery of coal from the appellant from Leiah Railway Station and remove it to his kiln ? While answering these questions he experienced a few very tense moment. At times he vacillated and evaded to answer the question in a straight forward manner. He was rather at pains to deny that Afzal Hussain Shah was his employees or that he never issued any authority letter authorising him to remove coal from Railway Station Leiah to his kiln No. 3. To have a glimpse of his demeanour, I am reproducing hereunder a paragraph from his cross--examination :- ---I received coal in wagons through the accused only once. I did not give any letter of authority to Afzal Hussain Shah authorising him to receive coal on my behalf. I had seen the photostat copy letter of authority Exh. D. H., dated 25-2-1954 during the investigation. Unless I am shown the original letter of authority, I cannot say if the same is in my hand or not I do not know any Afzal Hussain Shah. I had never given any letter of authority to him anybody else to receive coal from the T. D. A. On my behalf. I allowed Barkat Ali Munshi to remove the coal on my behalf. 'I never asked Afzal Hussain Shah to do so.--- When pressed further and the original authority letter Exh. D. H. Was shown to him then only finding himself in a tight corner he broke-down and made following admissions :- ---I have seen the original letter of authority Exh. D. H. Which is in my hand. By this authority I allowed Afzal Hussain Shah to remove coal from Railway Station Leiah to kiln No. 3. Ex-dated 23-3- 1954 is also in my hand.---
13. The above quoted two paragraphs taken from to cross-examination of Nisar Ahmad (P. W. 5) when looked by putting them in juxtaposition, hardly requires a second thought to declare him a liar, who made brazen-faced denials of course, to conceal the receipt of 160 tons of coal from the appellant. He refused even to recognise his employee Afzal Hussain Shah (C. W. 1) and denied the issuance of the authority letter Exh. D. H. Persistently till he was confronted with the original authority letter Exh. D. H. Which he owned lock, stock, a barrel, after great reluctance. In the circumstances, Afzal Hussain Shah---s claim that under authority letter Exh. D. H. He received eight wagons of coal weighing 160 tons on 10-3-1954 from the appellant under receipt Exh. D. L. (which bears the particulars of wagons also; appears to be correct. It further appears to be reasonable that the appellant added up this weight into the weight of the consignment comprised eleven wagons weighing "237-16" tons delivered subsequently to the contractor i.e. On 18-3-1954, again entry "BF-160"-making total as "397-' 16" tons. The prosecution--has not stated that the authority letter Exh. D. H. Pertained to some consignment other than eight wagon weighing 160 tons. Nisar Ahmad (P. W. 5) also kept silence on this point. The only inference which flows from these circumstances would be that authority letter Exh. D. H. Dated 25-2-1954 related to the delivery taken by Afzal Hussain Shah on 10-3-1954 and none else. This letter is, therefore, intimately connected with received Exh. D. L. Dated 10-3-1954 which fur--nishes sound proof to the appellant's plea.
15. It may also be mentioned that at one stage the Thal Development Authority had instituted proceedings for the recovery of a sum of Rs. 24,400.75 from the appellant through Collector, Sargodha, which include the cost of afore-mentioned 160 tons of coal allegedly misappropriated by him by having falsely shown its delivery to Nisar Ahmad, contractor. These proceedings were challenged in the Court of Senior Civil Judge, Jhelum, through a declaratory suit filed by the appellant against the Thal Development Authority and obtained a decision against the Thal Development Authority vide judgment dated 10-4-1967, copy Exh. D. S., produced before the trial Court. In para. 13 of the judgment of the learned Senior Civil Judge, it was held :- ---There is not a single word in this document which could provide me with a basis for finding that the plaintiff was liable to pay an; amount.--- In the succeeding paragraph he further held :- ---I do not find anything in the record of this case to justify the Thal Development Authority action with regard to the recovery of any amount from the plaintiff. I would, therefore, hold that the orders passed by Chairman, Thal Development Authority with regard to the recovery of the amount from the plaintiff, as also the proceedings started by the Collector to carry those orders, are illegal, without jurisdiction and arbitrary.---
16. In view of the above discussion, I am clearly of the view that the prosecution did clot succeed to substantiate its allegation; against the appellant that be instead of delivering 160 tons of slack- coal to Nisar Ahmad P. W had misappropriated by preparing wrong record of delivery to the contractor The record, in my view, rather speaks otherwise. The result is that the appeal succeeds.
The conviction and sentence recorded by the learned Judge by his order under appeal is set aside.
The appellant is acquitted. H is on bail. He is discharge of his bail bond.