S. ABDUL JABBAR KHAN (CHAIRMAN).-Muhammad Akbar No. 2 has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, against the order of District Judge, Lahore, dated 9th February, 1981, whereby the appeal preferred from the order of dismissal passed by Respondent No. 2 was rejected.
2. By virtue of this appeal, he has prayed that the order be set aside and he may be re-instated with all back benefits.
3. Brief facts of the case are that Muhammad Akbar appellant, was charge-sheeted for having embezzled and misappropriated diet money of Rs. 5,713.50, entrusted him for payment to the witnesses in various cases. The appellant filed his written statement and submitted that he had actually disbursed all the diet money to the witnesses in the concerned cases and had actually handed over the note book which contained the record of the same to Naib-Nazar. An Enquiry Officer was appointed to conduct a probe into the matter who only found the appellant guilty of this misappropriation. Learned Senior Civil Judge the competent authority in this case, vide his order dated 24th November, 1980, dis--missed the appellant from service and also directed that the money be recovered from him as arrear of land revenue. He filed an appeal against this order before the learned District Judge who upheld and maintained the order of the Senior Civil Judge, by dismissing the appeal of the appel--lant vide his order dated 9th February, 1981. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as learned District Attorney and have perused the record of this case care--fully with their assistance.
5. Learned counsel for the appellant has argued that the charge of misappropriation against the appellant was based on conjecture and sur--mises, as there was no complainant; in the field to say that he had not paid the diet money. According to learned counsel for the appellant to hold a person guilty for misappropriation only on the assumption that he has failed to produce positive evidence in his favour to establish that every penny has been paid to the witnesses could be contrary to the law of Evidence. According to learned counsel the presumption in this country so far is that unless and until prosecution proves that a person is guilty, no body can be convicted on the score that he had failed to pro--duce evidence in his defence. Presumption would always remain in favour of an accused unless it is fully proved without any shadow of doubt that he was responsible for commission of such offence. It has been vehemently argued that the incident relates to the year 1974-75, and under the rules, in force, every note book vas to be checked regularly by the Clerk of Court in accordance with the Chapter of High Court Rules and Orders and by the learned Senior Civil Judge, after every quarter, but in this case there was not a single report against the appel--lant and no action was even initiated during this long period of four years.
6. We have taken every care of all the arguments so advanced, as we have fully gone through the contents of the appeal and have also attended to the reasons given for dismissal of the appellant both by the Senior Civil Judge as well as District Judge. What we find in this case is that the appellant was entrusted with the diet money in 1974, and it was only in the year 1977, that a Civil Judge Sh. Razir Ahmad found that the Note Book containing the record of disbursement of the said diet money was not forthcoming. However, there is nothing on the record to show that any person came forward during this long period of more than 3 years to make a complaint about his not receiving the said diet money. This is a matter of common knowledge that the sums dis--bursed in civil cases is always small ranging from Rs. 5 to Rs. 50 and thus the recipients of these sums would be large in number, therefore, it would not be possible to accept that hundreds of people who had been cheated, decided not to come forward of their right. On the other hand it would give rise to a strong presumption claim in favour of the stand taken by the appellant that he had disbursed the diet money to the wit--nesses, so claimed by him.
7. While dealing with the Inquiry Report so conducted by Civil Judge, we find that this important aspect of the case has been left un--attended. Learned Enquiry Officer was only influenced by the absence of the Diary which according to him should have been produced by the appellant to prove his innocence. To our mind the learned Enquiry Officer fell into error by following the French, Law of Evidence that was for the appellant to prove his innocence by producing the Diary and not the prosecution to establish his guilt. The Law in the country is still unchanged and is governed by the Law of Evidence in vogue and by virtue of the same, we have to see that it is for the prosecution to establish the guilt of the person and if it fails to do so, the result is that benefit goes to accused of the said failure. Keeping in view the golden principle of law of Evidence, we are not satisfied with the way inquiry had been conducted as well as two judgments delivered by the learned Senior Civil Judge and District Judge on the basis of the said inquiry. We have also examined the statement of Jaffar Hussain, Naazar, to see as to what he has stated in the matter. The only stand taken by him is that he did not receive the diary back as claimed by the appellant but at the same-time we find that he also failed in his duty to check the diary which he was under obligation to check or to get it checked by the Clerk of Court in accordance with the orders of the High Court as mentioned above.
We also find that the Senior Civil Judge also failed to perform his obligation which enjoined upon him to check such diary after every quarter and to issue a certificate to that effect.
8. In these circumstances when senior and learned people like Clerk of Court and Senior Civil Judge were failing in their duties, it would be too much to expect from a person of a status of Process Server to keep his account so meticulously and carefully. We are also not oblivious pf the working of the human mind when we find Jaffar Hussain, Naazar, disowning his responsibilities and throwing the blame on the shoulders of a person less fortunate than himself. It would be not out of place to mention that the appellant has brought on' record the judgment of the learned District Judge sitting in appeal over a similar matter, in which one Muhammad Islam, Process Server was involved with a similar charge of misappropriation. Learned District Judge has almost given identical arguments which we are giving today in favour of the appellant. The judgment has been placed on the record, as the same was produced before us. However, we do not want to sit in judgment over the said judgment as that lis is not before us but we can safely say that the same argument can well be advanced in favour of the appellant as well. However, taking independent view of the situation we are fully satisfied with the argument that the prosecution has failed to have produced any iota of evidence either before the Enquiry Officer or before the competent authority to show that the money so entrusted to the appellant was actually misappropriated. What is on the record is that the appellant has failed to produce the Note Book which contained the thumb impres--sion or signature of the recipients of diet money. At the present juncture it would not be possible to condemn the appellant on the solitary statement of Jaffar Hussain who has denied the receipt of the Diary as claimed above by the appellant. The charge of misappropriation has its own significance and implication. One has first of all to prove in such the cases, that man has been entrusted with Government money and then to prove in a positive manner that the trust so placed on him was not discharged and the money was misappropriated. In this case, as men--tioned earlier, there is nothing on the record, therefore, we are absolutely sure in our mind that the charge of misappropriation has not been proved in any manner whatsoever.
9. In view of the above analysis of the evidence on the record coupled with the judgment of learned District Judge so placed on record of this case, and the circumstances of this case, we are of the considered opinion that the case of misappropriation against the appellant has not been established at all. The result is we proceed to accept the appeal, se aside the impugned order and direct that he be re-instated is service with all back benefits. There will be no order as to costs.