This is an appeal by Sadiq Hussain against his conviction and sentence under section 409, P.P.C.
For which he was sentenced to nine months' R.I. And a fine of Rs.200 or in default three months' R.I.
By learned Senior Special Judge, Anti-Corruption, Punjab, Lahore, vide judgment dated 27-8-1975.
2. The prosecution case, is brief, is that the appellant Sadiq Hussain was Sadar Muharrir Octroi.
Municipal Committee. Narowal in which capacity he received Rs.116.50 on 14-4-1970; Rs.117.50 on 21- 4-1970; Rs.123 on E6-4-1970; Rs.128 on 25-5-1970; Rs.139.75 on 27-5-1970 and Rs.138.50 on 29-5-1970 from various Octroi Muharrirs. However, it is alleged that instead of the received amount mentioned above, he deposited Rs.118; Rs.80.25; Rs.113; Rs.120; Rs.117 Rs.135.50 respectively in the Committee account. Thus, the allegation is that he misappropriated a total sum of Re.79.50.
3. In support of its case, the prosecution examined 16 witnesses in all. P.W.1 is Muhammad Iqbal Azad Octroi Superintendent. He supported the prosecution case regarding the mis-appropriation of the above--mentioned amount by the accused. He further stated that it was the practice in the Committee that the Muharrirs of all Octroi Posts used to collect toll-tax and bring their respective collections daily to Sadiq Hussain, Head Muharrir, who used to enter the amount in the registers and then deposited the same in the National Bank of Pakistan. He further stated that the entries in the relevant cash books are in the handwriting of Sadiq Hussain accused. In cross-examination, he admitted that according to the mandatory rules the Superintendent Octroi should have checked the daily accounts after its closure. He further admitted that once a week these books were to be checked by the Administrative Officer and the Taxation Officer of the Committee. He further admitted that in the instant case, these mandatory rules were not observed/ complied with. P.W.2 Captain Waheed-ud-Din, Administrator Municipal Committee sent a report Exh. P.W.2/A for registration of the case. P.W.3 Muhammad Ismail Inspector Octroi witnessed the recovery of cash book Exh. P.W.1/A vide memo. Exh. P.W.1/P. Ijaz Hussain Muharrir (P.W.4), Khalid Maqsood Muharrir (P.W.5), Barkat Ali Muhsrrir (P.W.6), Muhammad Tufail Muharrir (P.W.7), Muhammad Saeed Muharrir (P.W.8). Muhammad Ramzan Muharrir (P.W.9), Khalid Mahmood Muharrir (P.W.10), Rssltid Ahmed Muharrir (P.W.11) and Nazir Ahmed Muharrir (P.W.12) stated that they paid their respective collections to Sadiq Hussain Head Muharrir who made entries in the cash book. No receipt was issued to them as there was no such practice. Ijaz Hussain (P.W.4) stated that the accused used to make entries in their presence. It is not stated by him that the said entries made by the accused were riot correct. Barkat All and Muhammad Tufail P.Ws. Also made similar statements.
Muhammad Saeed (P.W.8) stated that on 25-4-1970 he paid Rs.2.50 to the accused but he made entry of Rs.2 only, thus omitting to enter 0.50 paisas. Muhammad Ramzan (P.W.9) stated that the entries Exh. P.W.9/A were made in his presence by the accused. Khalid Mahmood P.W. Stated that entry Exh. P.W.l01A was made in his presence. Rashid Ahmed (P.W.12) stated that entry P.W.11/A was made in his presence. These three witnesses did not pay any amount themselves to the accused.
P.W.12 Nazir Ahmed stated that he collected paisas 75 and Rs.1.75 respectively & He paid this amount to the accused who made entries in the relevant register. P.W.13 A.S.I. Muhammad Salim partly investigated this case.
He sent the sample handwriting of the accused for comparison, by an Expert with the questioned documents and also arrested the accused. P.w.14 Bawa Masih Muharrir paid his collection of paisas 75 and Rs.2.75 to the accused who made entries in the relevant register. Similarly, P.W.15 Muhammad Anwar Octroi Muharrir paid Rs.109.50 and Rs.112.50 to the accused who made entries in, the relevant register. P.W.16 Muhammad Bashir Qureshi is the Handwriting Expert who stated that the questioned documents were in the handwriting of Sadiq Hussain accused.
4. The accused when examined under section 342, Cr.P.C. Denied the charge and pleaded innocence. He attributed this case to his enmity with Muhammad Iqbal Azad P.W. He did not examine any evidence in defence.
5. I have examined the record of this case and have also heard-- the learned counsel for the appellant. It will be noted that excepting Muhammad Saeed (P.W.8) no other witness has stated that the accused made incorrect entries in the record. According to this witness he paid Rs.2.50 to the accused while the entry was made regarding payment of Rs.2 only. It is in the evidence of P.W.4 Ijaz Hussain that the accused used to make entries in his presence. Khalid Mahmood, Rashid Ahmed and Nazir Ahmed P.Ws. Have stated that the entries were made by the accused in their presence. They have not stated that the entries were incorrectly made. The Muharrirs have also not produced any receipt of the actual amount paid by them to the accused. It is admitted by Muhammad lqbal Azad (P.W.1) that according to the rules, it was necessary for the Octroi Superintendent to check the books daily after the closure on each day. The books were to be checked by the Taxation Officer as well as the Administrator every week. He has admitted that the mandatory provisions of the rules were not complied with by them. It will be observed that there is regular audit of Local Council funds every year but never any objection seems to have been taken regarding misappropriation of any funds by the accused. The alleged occurrence took place in the months of April and May. 1970 but the case was got registered on 12-2-1973, vide letter of Administrator No. NCN/38, dated 12-2-1973. A perusal of the record would indicate that there was deficiency of deposit of paisas 50, Rs.37.25, Rs.10. Rs.6. Rs.22.75 and Rs.3. On perusal of the record, it appear to be a case of some mistake and not a case of misappropriation of any funds of the Municipal Committee. I find that the prosecution has failed to prove its case of misappropriation against the accused. He is accordingly acquitted. The appellant is on bail. His bail bond and sureties shall stand discharged.