B. G. N. KAZI, J.--Muhammad Jamil Halepota, respondent was tried by the Special Judge-cum- Enquiry Officer, Hyderabad, for offences punishable under section! 409, P. P. C. Read with section 5
(2) of the prevention of Corruption Act,. 194T for criminal misappropriation of land revenue amounting to Rs. 14,125.74 recovered by him from various khatedars and/or their agents, of Deh Berwaari. Taluka Sinjhoro, District Sanghar, while he was posted as Tapedar of the deh between 30th July, 1973 and 19th September, 1973. He was acquitted of the charges by judgment dated 29th June, 1976, against which the instant appeal has been filed by the State.
2. It is the case of the prosecution that the respondent left Sinjhoro on 15th November, 1973 in the evening taking with himself Roznamcha, receipt book etc. For number shoomari for the year 1973-
74. He was expected to return after about one week. On 22nd November, 1973 the Mukhtiarkar, and Haji Mohammad Rahim, the Supervising Tapedar, who had gone to his beat for recovery of land revenue did not find the reason--dent there. The Supervising Tapedar made report to the Mukhtiarkar in writing on 23rd and on 29th November, 1973, lodged F. I. R. At Sinjhoro Police Station, on receiving such directions from the Deputy Commissioner and Mukhtiarkar. He reported that the respondent who had gone for number shumari with Roznamcha, receipt book etc. For recovery of land revenue on 15th November, 1973 had not returned till the time of the report. Muhammad Rahim had made enquiries from Khatedars and had come to know that the respondent had collected land revenue from several of them but actual figures were not available as the Roznamcha and receipt book were with the respondent. The D. C. Sanghar on receiving report of the absence of respondent ordered his suspension.
3. S. H. O. Ghulam Rasul who had registered the F. I. R. Submitted copy thereof to Civil Judge and F.
C. M., Sanghar. The F. I. R. Was transferred to Atiq Ahmed, C. O. A. C. E. Sanghar, through the Director Anti-Corruption, who on basis of the same registered F. I. R. On 20th March, 1974 and started investigation. He examined P. Ws Haji Muhammad Rahim, Mohib Ali, Muhammad Hashim, Muhammad Akbar, Ghulam Sarwar, Dewan Lakhmi Chand. Darya Khan, Jamal Khan, Muhammad Usman and Karam Chand. He interrogated the respondent and secured register and receipts. On 1st April, 1974 Muhammad Rahim who had received further information from Khatedars gave the same to the police regarding receipts Nos. 74 to 100 which were secured by the C. O. He finalized the case for sanction which was recorded by D. C. Sanghar on 11th November, 1974. He then challaned the respondent in the Court of Special Judge-cum-Enquiry Officer, Hyderabad.
4. At the trial the respondent pleaded not guilty. In his statement admitted that he was a public servant. He further admitted that during the period from 30th July, 1973 to 19th September, 1973 he had recovered land revenue to the tune of Rs. 14,125 from or for Khatedars named and issued receipts and that he did not credit the same in Government account. Me explained as under: - ---In fact, I suddenly fell III after recovery of this amount and during night time I came to my otaq, left my record there and was taken to my village in very serious condition. The record including receipts and Roznamcha were handed over to the Supervising Tapedar by my companion P. W.
Mohib Ali. Thereafter on my return to Headquarter I gave the amount in question to S. T: Haji Muhammad Rahim for credit.--- He admitted his handwriting and signatures on the different receipts eta.
5. A perusal of the evidence on record and the judgment recorded by the learned Special Judge, would show that there has been a misreading of the evidence which has resulted in incorrect findings on the main points raised on behalf of the accused respondent which are as under :-
(i) That the order of sanction was incorrect as correct amount misappropriated was not mentioned. It was passed mechanically without considering the explanation given by the accused, and, therefore, the accused was rightly acquitted.
(ii) That the learned Judge gave correct evidentiary value to the receipt purporting to have been given by P. W. Muhammad Rahim.
6. Mr. Muhammad Ali Shaikh, the learned counsel for the reason--dent has relied upon a number of decisions to support his contention that in case a proper sanction for prosecution is not obtained trial by Special Judge is not warranted. However, before his contention is accepted it has first to be determined whether the sanction is improper.
7. The sanction order reads as under: - "Whereas it appears that Munshi Mohammad Jamil posted as Tapedar Tapo Berwaari, taluka Sinjhoro in the year 1973, a public servant on or about the year 1973 had recovered Land Revenue to the tune of Rs. 14,125/78 from Khatedars viz. Mst. Bano, Suhail, Niamat Khatoon, Jam Karam Ali, Mst, Shah Jehan, Jam Karam Ali Khan, Jamal Khan, Rijhoomal, Kishni Bai, Lakhmi Chand, Khemchand, Abdul Majid, Fakhra Bibi and Bibi Shakila on 30th July, 1973, 7th August, 1973, 6th September, 1973 and 19th September, 1973 vide receipts Nos. 86 to 87 and from 89 to 100 of Book No. 909 and instead of crediting the same, misappropriated Rs. 14,125.78 causing wrongful loss to Government and obtained wrongful gain for himself.
And further that he was entrusted with the entire relevant record and bad misappropriated Roznamcha, Receipt Book No. 909 and relevant record causing loss to Government.
And thereby appears to have committed offence under section 409, P. P. C. And section 5 (2), II- Act/1947.
And whereas I Fateh Muhammad A Menton, Deputy Commissioner, Sanghar am competent to dismiss the said Munshi Muhammad Jamil Tapedar.
And whereas after considering the facts constituting the offences and other circumstances of the case and the explanation of the accused I am satisfied that sanction to his prosecution is necessary and expedient.
Now, therefore, in exercise of the powers conferred oft bid by sub--section (5).Of section 6 of the Criminal Law Amendment Act, 1958, I hereby sanction the prosecution of Munsbi Muhammad Jamil Tapedar in, respect of offence specified above in the Court of Law."
8. It is clear from the perusal of the order that the amounts misap--propriated, the dates of receipt, the persons from whom the same were received and even the number of book of receipts and the numbers of the receipts issued by the accused have been clearly mentioned, in the sanction order which also expressly mentions that the explanation of the accused was considered.
9. The contention about the figure of the total amount misappro--priated being wrong is based by the learned Special Judge on the evidence of P. W. No. 2 Muhammad Hashim, who had taken charge of Tapo Berwaari. He supports the prosecution by stating that he did not get receipt book and Roznamcha of the Tapo in his charge, although the accused had taken charge of the same from Yar Muhammad in July, 1973 when he was put in charge of the Tapo. However, the witness has deposed about 7 items of receipts of land revenue in Deh 57 Jamrao totalling Rs. 8.514.40 which were deposited by the accused through challans which he produced. None of the items had any reference to the charges against the accused and, therefore, it is surprising as to why the Special P.
P. In charge of the case got the evidence with regard to these items recorded. The witness has further deposed about certain 4 items recovered by the accused and not deposited which total Rs.
9,065.59 which according to him were the only four items not accounted for by the accused. The contention of wrong figure of the total amount misapp--ropriated as mentioned in the sanction order has been built up on the evidence of this witness and is based on his statement that only with regard to the 4 mentioned items there was misappropriation.
10. However, it is also surprising as to how the learned Special Judge could depend on the aforesaid assertion of the witness who was not the investigating officer and who had deposed from the record which indeed should have been scrutinised without accepting the aforesaid assertion of the witness. There was the evidence of the receipts from Receipt Book No. 909 which were all exhibited on the record by different P. Ws. And such evidence is concerning receipts Nos. 86 to 87 and 89 to
100. P. W. 9 Mohammad Usman, employee of Murid Khan Zamindar has stated that he had made payments of Rs. 1,315.71 and Rs 5,763/69 as land assess--ment on behalf of his Zamindar to the accused who had passed to him signed receipts which he produced as Exhs. 44 and 45. Similarly, Darya Khan P. W. 3 has deposed to have made payments of Rs. 2,917.37, Rs. 486.74, Rs. 1,919.20 and Rs. 76 to the accused who passed to him receipts No. 89, 90, 91 and 92 (Exhs. 24, 23, 22 and 21). P. W.
Jamal Khan has deposed to the effect that he paid Rs. 16 to accused for which he gave him signed receipt No. 93 (Exh. 39). P. W. Haji Mohomed Hashim produced receipt No. 94 in favour of Dewan Rejhomal for Rs. 274.53, receipt No. 95 in favour Lakhmi Chand for Rs. 82.16 Kishai Bai (Exh. 30), receipt No. 96 in favour of Lakhmi Chand for Rs. 15.41 (Exh. 31); receipt No. 91 in favour of Dewan Lakhmi Chand for Rs 420 P. W. No. 6, Ghulam Sarwar who had paid to accused Rs. 313.40 as land assessm ent on behalf of his father as per receipt No. 98 (Exh. 33). Similarly there is evidence of P. W.
7, Muhammad Akhtar that he had paid to the accused on behalf of Syed Asadullah Shah Rs. 281.66 and Rs. 263.66 under receipts Nos. 99 and 100 (Exhs. 34 and 35).
11. There is statement of the accused respondent on record to have received these payments in his capacity as a public servant for depositing in Government account and further admission that the writing and signa--tures on the receipts are his. The total of these payments is rupees Fourteen thousand one hundred and odd. Assuming for the sake of argument that there is slight mistake in the total such mistake could not have prejudiced the defence of the accused as each and every payment received by him was specifically put to him.
12. The sanction order even mentions that the explanation of the accused was considered before the sanction order was passed. It is, therefore, quite clear that the sanction order was quite legal and proper and, therefore, it is not necessary to discuss the decisions relied upon by the learned counsel for the respondent on the point.
13. The only question which remains for consideration is whether the learned Special Judge has properly given evidentiary value to the receipt allegedly passed on to the accused by Supervising Tapedar Mohammad Rahim which was admitted in evidence and also whether in a case under section 409, P.P.C. Read with section 5 (2) of the Anti-Corrup--tion Act, 1947 it was necessary for the prosecution to prove actual way --in which the amount was misappropriated.
14. With regard to the evidentiary value of the receipt Exhs. 24-B and 37, the receipt reproduced verbatim reads as under :- "Receipt I the undersigned Haji Muhammad Rahim S. T. Dolor, received complete charge of the record of Tapedar Mohomed Jamil Tapo Berwari. The receipt books were compared with Roznamcha, and challan and found that full amount has been deposited. Besides it one new receipt book was received out of which no receipt has been issued.
Sd. In English (Haji Mohommad Rahim)
S. T. Dalor 13-11-70-"
At the very outset it is observed that P. W. Muhammad Rahim totally denied having given such receipt and that the original receipt was never produced. The version of the accused respondent in his statement was that the record including the receipt book, roznamcha, etc. Were delivered to Supervising Tapedar by P. W. Mohib Ali and after his return to Headquarters he gave the amount to Mohomed Rahim for credit. Firstly P. W. Mohib Ali has not supported him in the version that receipt book and Roznamchas were delivered to Muhammad Rahim and secondly the wording of the receipt is that it had been verified that receipt book compared with Roznamcha and challan showed that full amount had been deposited. The plea that the accused bad paid monies to Muhammad Rahim is not supported by the alleged receipt.
15. It may be observed that if P. W. Muhammad Rahim. Had written and given such receipt on 13th November, 1973 he could not have made report dated 23rd November, 1973. That the accused had absconded along- with the record. Again keeping the facts on record in mind the very assertion that the original receipt was taken by S. H. O. Sinjhoro cannot be accepted. F. I. R. Was undoubtedly lodged at Police Station on 29th November, 1973 but as the original endorsement on the register kept under section 157, Cr. P. C. Shows the F. I. R. Was transferred to the Anti-Corruption Authorities without taking any action and there is no trace of any such document. No question regarding the original receipt was put to C. O. A.C.E. And it is clear from his endorsement on the F. I. R. That Director. Anti-Corruption Sind, Karachi by his order dated 4th March, 1973 under section 409, P. P. C.
Which had been sent by S. P. Sanghar vide his letter dated 15th January, 1974 at the Police Station for registering case which therefore was registered accordingly. The copy of the receipt (Exh. 24-B) was allegedly attested by Achal Das, Head Munshi on 24th April, 1974 long before which date the matter was under investigation by C. O. A. C. E. And the S. H. O. Sinjhoro as already stated had not started investigation at any time. Muhammad Asghar, of Sangbar; P. W. Who was called as court witness definitely stated that no such receipt was on the record. The version that the original was required by police and therefore a copy was attested does not therefore, appear to be correct.
According to the statement of accused, original receipt was given in presence of III Class Magistrate obtaining attested copy but D.W. Achaldas does not say so. Thus, there is no proof at all that the original was given to the police. This is not, therefore, a case in which A secondary evidence relating to the said original receipt. Could be given under section 65 of the Evidence Act, 1872.
16. With regard to the contention that requirements of an offence under section 400, P.P. C. Have not been fulfilled, as actual misappropriation by the accused has not been proved, it may be observed that the respondent was charged with the offence under section 409. P. P. C. Read with section 5 (2) of the Anti-Corruption Act, 1947. Undoubtedly he had received the monies for being credited to the Account of the Government which was part of his duty. Dishonest or fraudulent misappropriation of any property entrusted to a public servant as such amounts to criminal misconduct punishable under section 5 (2) of Act II of 1947 and there would appear to be no reason that in the circum--stances the accused respondent could not have been charged under section 409,. P.P.C. As well. The entrustment of the amounts as land revenue paid by Khatedars for being credited to Government account has been admitted and there is also evidence with regard to the same.
In decision of Criminal Petition A. B. N. Dos Convict-Petitioner v. The. Crown (PLD 1951 Bal. 36) it was inter alia observed that it was not incumbent upon the prosecution to show exactly how a person who has misappropriat--ed money has made use of its and if a relatively long period elapses during which time an accused person is unable to give an account of the money a presumption would be raised to the fact that since he was unable to account for it or to pay it to Government; he had misappro--priated it. Similarly in decision of Criminal Acquittal Appeal, The Additional Advocate. General, West Pakistan v. Tahir Beg (PLD 1965 Kar. 155), it was observed as under ;- "The next question is whether the accused misappropriated 13,000 Ibs. Of yarn or any part thereof. It is true that there is no direct evidence of physical appropriation of this yarn or its conversion. But the absence of such direct evidence does not necessarily absolve the accused. It often happens that misappro--priated property is not found or traced, but if the fact of misappropriation is otherwise satisfactorily established accused would still be liable for breach of trust - if he had been entrusted with or had dominion over that property."
It was further observed as under :- "There is no doubt that the prosecution has to prove not only entrustment of or dominion over property but also that accused either dishonestly misappropriated the property or converted it to his own use or disposed it of himself or wilfully offered the same to other person to do so.
However, it is not the duty of the prosecution to prove by direct evidence the fact of actual misappropriation, conversion, disposal or use."
17. In Syed Shahir Hussain v. The State (1968 P Cr. L J 1712), (Petition for Special Leave to Appeal), the petitioner admitted withdrawal and receipt of certain amounts but contended that he had thereafter made over the same to one Abdul Hamid for depositing the same but no such suggestion had even been made when Abdul Hamid was giving evidence, the courts below had held that the entrustment of the amounts had been established. The Supreme Court observed the once it was admitted that the amounts had been withdrawn by petitioner he was entrusted with the amounts and was legally bound to have them appropriately disposed and since he had not done se both the entrustment and misappropriation were proved.
18. In Zille Hasnain Kazmi v. The State (1969 SCMR 481) the Supreme Court held that dishonest or fraudulent misappropriation of property by public servant which constituted misconduct punishable under section 5 (2) of Act III of 1947, was no bar to accused being charged under section 409, P. P. C. r J.
19. Under the circumstances we find that each and every item of misappropriated amount was put to him and that since he admitted the writing in the receipts mentioning each of. The amounts in words and figures and his signatures on the same, any miscalculation in the total of the amount should not have been made a ground for the finding that the order of sanction was improper or mechanical and any such obvious error should not have been made a ground for non- appreciation or misappropriation of the clear evidence on record.
20. Since there is admission of the accused respondent with regard to the entrustment of the amounts by or on behalf of the khatedars which it was his official duty to deposit in the account of Government, which it is the case of the State were never so deposited, it can be presumed under the law that the amounts with regard to which there is clear evidence of date of receipt by him and which have not been accounted for, for such a long time were criminally misappropriated for his personal use and therefore in such case there was no duty cast on the prosecution to trace each and every such account to show how it was ultimately spent or utilized.
21. Mr. Muhammad Ali Shaikh, the learned counsel for the accused respondent has drawn our attention to the fact that he was acquitted a long time ago.
22. Under the circumstances stated since the decision involved non---reading and misreading of evidence against him the fact that there has been delay in the Vision of the appeal due to reasons sometimes attribut--able to him or the convenience of his learned counsel should not weigh in his favour. The decision cited are distinguishable and are of no help to the respondent.
23. For the reasons given, we allow the acquittal appeal and set aside the order of acquittal. The accused respondent is convicted under section 409, P. P. C. Read with section 5 (2) of Act 11 of 1947 and sentenced to suffer R. I. For three years and pay a fine of Rs. 15,000 or in default to suffer further R. I. For one year.