The appellant, Amanullah, was found guilty under section 409, P. P. C. Read with section 5 (2) of the Prevention of Corruption Act, 1947, by the Sessions Judge/Anti-Corruption Judge, Bannu, and convicted and sentenced to six months' R. I. And to pay a fine of Rs, 1,000 or in default to undergo further R. I. For two months, vide judgment dated 30th June, 1981. The present appeal arises out of the said judgment. Actually four cases were instituted against him by the Anti-Corruption Establishment and the learned Anti-Corruption Judge found him guilty in all the four cases and convicted him under the aforesaid offences and awarded the same aforesaid punishment in all the four cases. However, all the sentences were to run concurrently. The present appeal and appeals No, 119/81, 120/81 and 121/81 challenge the conviction of the appellant in the other three cases. The accused was also charged under sections 468/420, P. P. C , but he was given benefit of doubt regarding these offences and was acquitted of them. As all the four cases have arisen from one F. I. R., the facts and evidence are the same and although the judgments of the learned trial Court are separate in all the four cases but they reproduce the same facts and arguments, hence all the appeals are taken together and the present judgment in Criminal Appeal No, 118/81 will dispose off the aforesaid three other appeals.
2. The facts of the case are that Farooq Ahmad Jan, Circle Officer Anti-Corruption Establishment Bannu, came to know in the year 1976, that the appellant Amanullah, while employed as a Reader in the Court of Mr. Khalid Mehmood, Lawyer Magistrate, Bannu in the year 1975, had realized certain amounts as fines from convicted persons but had not deposited the same in the Government Treasury and had embezzled the same, that when the enquiry started, the appellant, out of fear of being caught, deposited an amount of Rs, 10,400 in the Government Treasury which came to light after the examination of the official record. The said Circle Officer, therefore, recorded F.I.R. No, 5 on 8th September, 1976 in Police Station, Anti-Corruption Establishment, Bannu. Investigation was carried out by the said Circle-Officer and his successors and ultimately, four c'nallans were submitted in the Court of the Anti-Corruption Judge on 18th November, 1978. These four challans pertained to the aforesaid offences committed by the appellant during the years 1973, (Challan No, 4), 1974 (Challan No, 3), 1975 (Challan No, 2), and 1976 (Challan No, 1), respectively. The appellant was charged on 3rd May, 1979 by Mr. Faqir Hussain Khan, the then Special Judge, Anti-Corruption, N.-W. F. P. Under section 409, P. P. C. Read with section 5 (2) of the Prevention of Corruption Act, 1947, for having temporarily misappropriated by absuing his official position as a Reader to the Lawyer Magistrate, Bannu , (a) an amount of Rs, 2,715 during the year 1973 ; (b) an amount of Rs, 1,165 during the year 1974 : (c) an amount of Rs, 4,185 during the year 1975 ; and, (d) an amount of Rs, 8,265 during the year 1976. The appellant was also charged for embezzlement of Rs, 50 during the year 1974, and of temporary misappropriation of an amount of Rs, 4,000 while being Reader to A. C., Bannu in the year 1976. The appellant pleaded not guilty to the aforesaid charges and claimed trial.
10 witness were examined on behalf of the prosecution while 1 defence witness was examined on behalf of the appellant. The appellant was examined on 20th October, 1979 under section 342, Cr. P.
C. Wherein he admitted that he had worked as a Reader in the Court of Mr. Khalid Mehmood, Lawyer Magistrate and Assistant Commissioner, Bannu, but he denied that he had embezzled any government money. In the meanwhile, the case was entrusted to the learned Sessions Judge/Anti- Corruption Judge, Bannu, for further proceedings and ultimately, the learned Anti-Corruption Judge convicted and sentenced the appellant as aforesaid on 30th June, 1981.
3. The case of the prosecution originally was that during the years 1975-76 the appellant, while posted as Reader to Mr. Khalid Mehmood, Lawyer Magistrate, Bannu, realized amounts of fines from the convicted persons but did not deposit them in the government treasury and when the enquiry started, he hastily deposited an amount of Rs, 10,400 in the year 1976 and as such he was guilty of embezzlement and temporary misappropriation of government money. But after investigation, the appellant was charged for being guilty of temporary misappropriation and embezzlement of government money, in the same capacity, during the years 1973 and 1974 as well and so four cases, each pertaining to a separate year, were instituted against him. However, the prosecution evidence recorded shows that Mr. Khalid Mehmood was posted as Lawyer Magistrate, Bannu from 16th November, 1974 to 31st December, 1974, which would show that the appellant was not working as Reader to Khalid Mehmood during the years 1973, 1975 and 1976 A statement of the period of employment of the appellant has been produced in the record of the case of Challan No, 1 pertaining to the year 1976, which shows the period of employment of different positing of the appellant as follows :-
(1) E. A. C. I Bannu, w. e. f. 1-2-1971 to 31-1-1974.
(2) E. A. C. I Bannu, w. e. f. 7-5-74 to 15-11-1974.
(3) E. A. C. 4/Lawyer Magistrate. w. e. f. 16-11-1974 to 31-12-1974.
(4) E. A. C. I Bannu w. e. f. 11-10-1975 to 23-7-1976.
(5) Assistant Commr. Bannu w. e. f. 24-7-1975 todate.
The aforesaid statement would show that the appellant never worked as Reader to the Lawyer Magistrate during the aforesaid three years and the charges of misappropriation of government money as Reader to to Lawyer Magistrate for the aforesaid three years were totally misconstrued.
This would show that the charges given to the appellant were very vague and incorrect. The appellant was also not posted as Reader to Assistant Commissioner in the year 1973 and 1974 and the mention of this circumstance in the charge-sheet was also misconstrued. The very base of the trial against the accused-appellant was wrong. The prosecution proceeded on wrong foundations and assumptions. The charges against the appellant were very ambiguous. Not only that, the appellant was also not given any detail about the amounts which he had received on any particular date. On the contrary, a charge of a general nature was preferred against him pertaining to a total amount in a particular year. The appellant could no effectively rebut the charge as he did not know as on what date he had received that amount and whether he had deposited the same or not. The very foundation of the case against the appellant was defective.
4. A list consisting of four pages, Exh. P. W. 2/D, annexed with the record of the case of challan No, I, was produced by the prosecution to prove the amounts of fines received by the appellant, but not deposited by him in the Government Treasury. The perusal of this list would show that all these amounts were received in the year 1976, and also appear to have been deposited in the Government Treasury. It shall thus be seen that the prosecution not only failed to prove any offence of embezzlement or misappropriation against the accused for the years 1973, 1974 and 1975, but also failed to prove that he committed any such offence with regard to these amounts in the year 1976. This circumstance would knock the bottom out of the prosecution case.
5. The perusal of the record of all the four challans would show that proceedings were actually carried out in only one case, i,e, Challan No, 1, pertaining to the year 1976, and the evidence recorded therein was then copied verbatim in the other cases. The evidence so recorded shows that the prosecution witnesses made depositions about the years 1975 and 1976 generally and no evidence came on the record with regard to the years 1973 and 1974, except the evidence of P. W.
Khalid Mehmood, Lawyer Magistrate who deposed that he had seen the counterfoils of receipt books of fines for the period from 19th July, 1974 to 12th September, 1974 and the counterfoils were initiated by him but he could not say that the entries in the counterfoils or the receipts executed in the receipt book pertaining to this period were in the handwriting of the accused was his Reader during that period. This evidence of P. W. Khalid Mehmood, recorded in one case, has been copied verbatim in the other three cases. The result is that there is no evidence on the record to shows if the appellant had received any amounts during the years 1973, 1975 and 1976. The practice of putting copies in other cases of evidence recorded in one case, has never been approved by the superior Courts. On the contrary, this practice has been looked with disfavour. Actually, this practice tantamounts to depriving the accused of affective cross-examination in those cases in which copies o such evidence are attached. In the present case the evidence pertained to different jyears and the mere presence of copies of that evidence in other cases not only deprived the accused to show that he was not posted with any particular judicial officer during a certain period but also that he did B not receive any amount and misappropriate the same. The consistent view of the superior Courts is to disapprove of such practice because it deprives the accused to affectively put his case before the trial Court by cross-examining the witnesses in each case separately. In this connection, reference may be made to Nur Elahi v. The State and others , Muhammad Younis v, The Crown and Noor Muhammad and another v. The State . Copying of substantial portion of evidence from one case for record of another case is an absolute illegality and vitiates trial and imports prejudice to the accused. This is a breach of mandatory provisions of section 101 of the Evinence Act and cannot be cured by the provisions of section 537, Cr. P. C.
6. The statement of the appellant recorded under section 342, Cr. P. C. Would show that this statement was recorded in a most perfunctory manner. He was not asked any question regarding any particular amount received by him on any particular date. Moreover, during the years 1973, 1975 and 1976 the appellant did not serve as Reader to Lawyer Magistrate and Assistant Commissioner and the questions in this respect were misconstrued and very ambiguous. The appellant was not given any chance to explain his position with regard to the allegation of receipt of amount of fines by him in any particular year. It appeared to be a very casual examination of the accused and has caused great prejudice to him. In such circumstances, the superior Courts have been setting aside the conviction. In this connection, reference may be made to Abdus Salam1 2 3 Molla v. The Crown , Din Muhammad v. The Crown , Khaliq Hussain v. The Crown , Aminul Hoque v. Crown and Arif Nawaz alias Goldy and 2 others v. The State .
7. It appears that the case of the prosecution ultimately was that the appellant was guilty of retaining the amounts for a certain period of time which tantamounted to temporary misappropriation. The prosecution failed to prove that the accused had retained these amounts with any guilty intention, it was also not proved as on what dates he had received the fines and on which dates he had deposited them. Actually the prosecution filed a list of 4 pages showing the amount of fines received by the appellant on different dates but the same list show that these amounts were deposited in the treasury. The appellant had been submitting applications to the District Magistrate that an official of the Accounts Department be deputed to thoroughly go through the record and confirm whether any amounts received by the appellant were deposited in the treasury or not. Ultimately, P. W. 5, Rashim Gul Accountant, Bannu Treasury was deputed in 1977 to verify the amounts and he stated that certain amounts could not be verified but he also admitted that sometimes amounts are misposted under incorrect head of account. This would show that the prosecution had failed to pinpoint any particular amount which the appellant had received but had not deposited. The whole drama of this case started when one Saifullah was posted as Moharrir to Mr. Khalid Mahmood, Lawyer Magistrate, Bannu. He pointed out that the entries of challan in the register of receipt of fines were doubtful. But the said Saifullah was neither produced as witness nor the alleged doubtful or bogus challans were taken into possession by the Investigating Officer, nor the appellant was confronted with the said bogus challans. It would, therefore, show that the evidence produced in the trial was also not sufficient to bring home the guilt of the appellant.
8. The upshot of the above discussion is that the prosecution failed to prove the guilt of the accused beyond any shadow of doubt and many illegalities and irregularities were also committed during the trial whereby the appellant was not only prejudiced but the whole proceedings were vitiated. The learned counsel for the State contended that a retrial should be ordered, but this contention cannot be accepted, because, there is neither any sufficient evidence on the record to prove the guilt of the accused beyound reasonable doubt, nor the illegalities and irregularities committed in the trial are curable under section 537, Cr. P. C., as the same have, in fact, occasioned a failure of justice. I would, therefore, accept all the aforesaid four appeals and acquit the appellant of the offences with which he has been charged. He is on bail and his bail bonds are also discharged. P L 0 1966 SC 708 P L 0 1953 Lab. 321 PLD 1981 Lab. 60 PLD 1955 FC 129 1969 SCM R 777 PLD 1956 (W.P) Kar.212 PLD 1952 FC 63 P LD 1983 Lah. 594