' Ali Ahmad Sabir, appellant, a Clerk in the Excise & Taxation Department was tried by the learned Special Judge, Anti-Corruption, Lahore, on the charges under section 409, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947. The learned trial Judge, found the appellant guilty on the said charges, and accordingly, vide his judgment dated 19-11-1974, convicted the appellant and sentenced him to undergo R.I. For a period of three years and to pay a fine of Rs, 3,000 or in default, to undergo two years' R.I.
2. The allegations against the appellant were that while posted as a clerk in the Excise & Taxation Department, he had misappropriated an amount of Rs,2,481, which he had received from various persons as agricultural tax on behalf of the Government.
3. At that trial, the prosecution produced Muhammad Ishaq P.W.2, Muhammad Sharif Lambardar P.W.3 and Muhammad Din P.W.4. All these witnesses were the agriculturists from whom the appellant had received various amounts. The witnesses did not support the prosecution and were declared hostile and were cross-examined by the public prosecutor. In addition to these witnesses Ghulam Muhammad, Hassan Din and Nishan Ali witnesses were given up having been won over while Fazal Din and Qamar Din witnesses were reported to be dead. All these witnesses were cited to prove that the appellant had received various amounts from them.
' Nazir Hussain P.W.5, supported the prosecution version and deposed that in 1967/68, the appellant had received Rs, 700 from him as agricultural tax but no receipt was issued. It was further stated by the witness that he was summoned by the Excise & Taxation Department for the payment of the tax and thereupon he disclosed that he had already made such payment to the appellant.
Muhammad Bashir P.W.6, a cousin of Nazir Hussain P.W.5, corroborated the version of Nazir Hussain P.W.5, who deposed that the amount of Rs, 700 was paid to the appellant as agricultural tax. It was further stated by these witnesses that certificate Exh. P.W.5/A was issued to them by the appellant.
According to the witnesses they again paid the amount of tax to the Department. Jalal Din P.W.7, also supported Nazir Hussain P.W.5, since in his presence, the said amount of Rs, 700 was paid to the appellant. Muhammad Ilyas P.W.8 stated that in 1967/68, he was called upon by the appellant to pay the agricultural tax and accordingly, he paid a sum of Rs, 519 to the appellant. Subsequently it transpired when a notice was issued to him by the Department, that the amount already paid by him to the appellant had not been deposited in the Government Treasury. Muhammad Yahya P.W.9, also made a similar statement and alleged that he had also paid an amount of Rs, 295 as agricultural tax to the appellant, which had not been deposited in the Government Treasury. The witness further stated that on the receipt of notice by the Department, he contacted the appellant who returned the amount to him. Ali Muhammad P.W.10, also made a statement that in the year 1967/68, the appellant had twice received a sum of Rs, 213 on account of agricultural tax from the witness, but the same was not deposited in the Treasury. The witness further deposed that on the issuance of a notice he met the appellant who promised to return the amount but the appellant failed to do so. Zaheer Ahmed Khan P.W.11, S.I. Excise & Taxation Department also entered into witness-box and stated that he had issued notices to the defaulters. He further deposed that certificates Exhs. P.W.5/A, P.W.7/A and P.W.11/A were produced before him by the defaulters which were found to be forged. Muhammad Shafi P.W.13 supported Ali Muhammad P.W.10 on the question of the payment of the agricultural tax to the appellant. Muhammad Sharif P.W.15 Excise and Taxation Sub-Inspector produced the record to state that the entries made with regard to the payment of agricultural tax were not in his hand and the receipts issued thereunder were also not in his hand. Muhammad Iqbal P.W.16, a Clerk, also produced the record to show interpolations and the forgeries. Muhammad Yaqoob Butt P.W.17, Handwriting Expert, was produced by the prosecution to prove that the certificates Exhs. P.W.5/A and P.W.7/A were in the hand of the appellant. Ghulam Qadir P.W.18, Central Demand Clerk, deposed that as against the accounts of the defaulters/witnesses, no money had been shown to have been deposited as agricultural tax.
Masood lqbal P.W.19, Accounts Clerk Treasury Office, Lahore, supported Ghulam Qadir P.W.18 Central Demand Clerk.
4. The appellant, in his statement recorded under section 342, Cr.P.C., denied the charges and shifted the blame on another Clerk, namely; Rana Muhammad lqbal P.W.16. The appellant stated that it was the duty of Rana Muhammad lqbal to collect the agricultural tax who had failed to perform his duties. The appellant further stated that on taking over the charge from Rana Muhammad lqbal P.W.16, he issued notices to the defaulters who in connivance with the aforesaid Rana Muhammad lqbal, had made false charges against him and due to enmity of Rana Muhammad lqbal P.W., he had been involved in this case.
5. I have gone through the entire evidence on the record and have heard the learned counsels at length. The learned counsel for the appellant, in the first instance, assailed the mode of trial and the framing of the charge. He submitted that a joint trial of fifteen various charges of misappropriation, was illegal and the appellant had been prejudiced. According to the learned counsel, under section 234, Cr.P.C. a joint trial exceeding three transactions of misappropriation, could not have been held.
6. I have considered the contention raised by the learned counsel for the appellant and I find no force in it. Under section 537, Cr.P.C. The defect in the mode of trial or framing of the charge, can only be considered if it causes prejudice to the appellant. It has to be further seen if the objection as to the mode of trial was raised at an early stage. I have carefully gone through the entire record and I find that no prejudice, at all, was caused to the appellant nor objection to the mode of trial was raised at any stage.
Coming to the merits of the case, I find that the prosecution witnesses were truthful, and they had no motive to level false allegations against, the appellant.The supporting evidence is not lacking in the case to substantiate the truth of the allegations. The defence plea taken by the appellant is frivolous and no significance can be attached to it and thus, in my view, the prosecution had succeeded to establish its case beyond any shadow of doubt.
7. It was next contended by the learned counsel for the appellant that the occurrence took place in the year 1967/68, whereas, the appellant was convicted on 19-11-1974, the sentence of the appellant was suspended by this Court on 27-11-1974 and, therefore, at this stage it will be too harsh to send the appellant back to jail.
8. I find force in the contention and in my view the sentence already undergone by the appellant would meet the ends of justice but I would enhance the amount of fine, from Rs, 3,000 to Rs, 5,000.
The appellant shall pay Rs,5,000 as fine within two months of the passing of this order failing which he shall suffer R.I. For a period of two years. With these observations this appeal is dismissed.