1. This complaint 1tas been filed under section 61 of I. R.O. 1969. Facts giving rise to this complaint are that elections of New Thermal Power Station (WAPDA) Workers Union, which is also CBA, were held on 31-3-1984 and complainant was elected its President while accused No.1 was elected as General Secretary. The elections of the members of the Managing Committee were however held on 14-4- 1984. According to the complainant, it was for the accused No. 1 to notify the change in the office- bearers to the Bank Authorities to facilitate the operation of the accounts and which accounts were being operated jointly by President and the General Secretary. It has further been alleged that the out going President Muhammad Akbar Khan ceased to be the President soon after the elections on 31-3-1984 and so he could not have signed any cheque after 31-3-1984. It has also been averred that this change was never notified by the General Secretary to the concerned bank and, on the contrary, the accused continued to operate the account alongwith the ousted President and both withdrew heavy amounts on 31-3-1984 and Rs.2,500 on 5-4-1984. Since the accused did not permit the accounts to be inspected and since the name of the complainant was not notified to the bank, the complainant sent a letter dated 9-6-1984 to the accused asking him to send his signatures to the bank but with no result. Another letter dated 13-1-1985 was then sent to the present accused as also the out going President. He also made application for Registrar Trade Unions, Hyderabad but all in vain. Accordingly, he addressed a letter to the Manager United Bark Limited, Site Branch and the later intimated the complainant about the withdrawal of amount on 5-4-1984 by the accused alongwith the out going President. The complainant also asserted in this complaint that this accused is a habitual criminal and that he had, in the past, also withdrawn salary of one Ashraf by forging his signatures and so, on his apology he was reduced in grade by the Department. In the end, it has been alleged that this accused had committed a fraud and misappropriated the union funds and so he should be punished. In this complaint, the out going President Muhammad Akbar, and who was elected as Treasurer in the elections held on 31-3-1984 was also impleaded as accused No.2.
2. After holding preliminary enquiries the complaint was brought on regular file only against accused S.M. Saleem and so process was issued against him. After his appearance charge was framed and read out to him on 22-7-1986 but since this accused pleaded not guilty, he was put on trial.
3. After the evidence as aforesaid an application under section 249-A, Cr. P. C. Was moved on behalf of the accused for the dismissal of the complaint on the material already brought on record and without proceeding any further. I have accordingly heard Mr. Muhammad Bashir Awan, Advocate for the accused and Mr. Wasiullah Qureshi, learned counsel for the complainant. I have also examined the material on record.
4. Before I examine the contentions of the learned counsels, I would mention here that on 12-3-1986 a joint application was moved stating therein that the accused shall take special oath on Holy Quran to the effect that he had not misappropriated any union funds in the capacity of General Secretary and that on taking such oath the complainant would not press his complaint. The matter was fixed on 16-3-1987 for this purpose but on this date the complainant backed out and prayed that this complaint be decided on merits.
5. Mr. Awan submits that the material so far brought on record has not disclosed any offence alleged to have been committed by the accused and so this complaint is liable to be dismissed. He submits that according to the complainant, the accused had misappropriated union funds but he could not prove such misappropriation. Admittedly the accused was competent to sign the cheques alongwith the President. It is also the case of the complainant that the accused had withdrawn Rs.2,500 on a jointly signed cheque on 5-4-1984. The complainant and his witnesses have however failed to show that this amount was misappropriated or converted to his own use.
6. The entire record is available in this Court but the complainant did not refer to such records nor it has been proved from the said record that such amount was not brought in the relevant record or that the same was misappropriated. No amount said to have been withdrawn or misappropriated on 31-3-1984 or on any other date has also been disclosed anywhere. It has also been argued that the complainant also failed to prove that he ever demanded the record from the General Secretary or he was not allowed to inspect the record. The letters said to have been issued by him or his colleagues, are admittedly either never addressed to the accused, or the same were never served on him. Learned counsel also submits that in fact elections held on 31-3-1984 were approved by the General Body on 14-4-1984 and till then Muhammad Akbar continued to be the President of the union. Moreover, this accused remained General Secretary even after the elections and so he was competent to hold the record and unless it was required to be inspected by any person, he was not legally obliged to hand it over either to the complainant or anyone else. Mr. Awan also submits that as per the evidence on record, the audit of the accounts was proposed in the agenda of the meeting to be held on 19-3-1985 but the complainant himself scored of the said item of audit and thus did not permit the accounts to be audited. This clearly shows mala fide on the part of the complainant and so he cannot advance any accusation of misappropriation against the accused.
7. Finally, he urged that to convict any person on the charge of misappropriation, the actual misappropriation has to be proved without the least doubt and since the complainant has failed to disclose any misappropriation whatsoever the accused cannot be convicted merely on the oral testimony of the complainant. Mr. Awan also submitted that the mala fide of the complainant is also apparent from the fact that he had first agreed to the decision on Holy Quran but later on he backed out of the same and so in view of the dictum laid down in 1982 SCMR 1197(2), this complaint is liable to be dismissed.
8. Mr. Wasiullah submitted that on 31-12-1983 a sum of Rs.3,496/02 was shown to be available in the cash book but as per the bank pass book only Rs.83.06 were in bank. He also submits that according to the constitution of the union the General Secretary was not empowered to keep more than Rs.50 in cash and since heavy amount was always kept by the General Secretary, he had violated the constitution. Moreover, he had admittedly withdrawn Rs.2,500 from the bank on 5-4- 1989 and this withdrawal itself being in violation of the constitution amounts to misappropriation particularly when neither its approval was obtained from the Managing Committee nor its expenditure was shown despite demand. He also submitted that the accused did not permit the inspection of the record nor he handed over the charge nor he produced any vouchers and so he would be deemed to have committed misappropriation. Learned counsel also submits that even if the record was not demanded from the accused, he was legally obliged to handover the same to the President on his election and further that after 31-3-1985, when he ceased to be office-bearer of the union, he was bound to handover the record by himself. He however failed to handover the same till date and so the presumption should be raised against him. Lastly, he submits that the accused has not yet been examined under section 342, Cr.P.C. Nor he has been subjected t to cross-examination by the complainant and so the application under section 249-A, Cr.P.C. Is premature and is to be dismissed on this score.
9. I have given my anxious consideration to the arguments advanced by the parties hereto.
10. Application ,under section 249-A, Cr.P.C. Can be moved at any time when the accused considers that no evidence is likely to come on record to connect him with the offence. Accordingly, it cannot be urged on behalf of the complainant that unless the accused is examined and cross-examined, this D application is not maintainable or is premature. In fact, this application has been moved on the material already on record and further that no further material is likely to come against him. In fact, the onus to prove the guilt of the accused is on the complainant and if he has closed his evidence, such evidence can be discussed to find out if the material brought on record even if it is not rebutted, would constitute an offence. I would accordingly repel the submission of Mr. Wasiullah Qureshi and hold that this application is maintainable.
11. On merits, I am of the view that the complainant has not been able to substantiate any offence against the accused and so the accused is not required to rebut the same. It is the allegation of the complainant that the accused had withdrawn union funds jointly with Muhammad Akbar on 31- 3-1984 and 5-4-1984 and that firstly such amount was unauthorisedly withdrawn, and, secondly, the same was not accounted for. Admittedly the complainant could not disclose what amount was withdrawn by the accused on 31-3-1984. On the contrary, the pass book P/8, also does not disclose any withdrawal on 31-3-1984. The second alleged withdrawal is of 5-4-1984. According to the complainant, the accused has withdrawn Rs.2,500. This withdrawal has not been disputed. The evidence however shows that the audit of the union funds was proposed by the General Secretary viz; the present accused as per the agenda issued for General Body Meeting to be held on 19-3- 1985. This preliminary meeting as also the general body meeting was presided over by the complainant himself and admittedly this item of audit was deleted by the complainant himself and in this way the accounts offered by the General Secretary for audit were not permitted to be audited by the complainant himself. Accordingly, it does not lie in the mouth of the complainant now to urge after more than one year of the alleged withdrawal that the accused had illegally withdrawn such amount and had not accounted for- the same. This all shows mala fide on the part of the complainant.
12. It has been alleged that the accused did not handover the record of the union despite repeated demands. The accused has denied this allegation. A number of letters said to have been sent by the complainant have been exhibited in this case but admittedly the service of these letters on the accused has not been proved in any manner. Therefore, this allegation of the complainant also appears to be false.
13. The allegation of the complainant is that immediately on the election held on 31-3-1984, Muhammad Akbar ceased to be the President and was succeeded by the complainant and so the General Secretary could not have withdrawn the amount on 5-4-1984 alongwith the out going President. The contention of the accused however is that Muhammad Akbar continued to be President upto 14-4-1984 when the elections of 31-3-1984 were approved by the General Body. This plea of the accused has explicitly been admitted by the complainant in his cross-examination accepting further that the change of office-bearers was notified to the Registrar even after the approval accorded by the general body in its meeting held on 14-4-1984. This being the position, the complainant cannot allege that Akbar was not competent to act as President on 5-4-1984 or that the present accused was bound to intimate the signatures of the complainant to the Bank immediately on 31-3-1984. The factual position referred to above further confirms that the withdrawal on 5-4-1984 was perfectly legal and justified and the complainant cannot show any grievance against such withdrawal.
14. Assuming that the signatures of the complainant were not notified to the bank by the accused, such action of the accused cannot be pleaded to be an act of misappropriation. The charge of misappropriation means that any amount of any person is ceased unauthorisedly by another person in custody thereof. There is not an iota of any evidence to show that the accused has converted any amount of union into his own use and caused any loss to the union. Accordingly, he cannot be prosecuted and convicted for such an offence.
15. The evidence on record disclosed a personal annoyance of the complainant with the accused and perhaps this was the back ground to drag the accused unnecessarily into this case otherwise there was neither any material with the complainant nor there was any justification for the prosecution of the accused. Perhaps this was the reason that the complainant himself though first agreed to the special oath but later on backed out from the same. It may be pointed out that the accused was throughout prepared to both the alternate proposals, viz; either he be administered the special oath or the complainant may take special oath but the complainant for his own reasons, backed out of his written agreement. Though the authority relied upon by Mr. Awan is not directly applicable to the facts of this case but still inference can be drawn against the integrity of the complainant.
16. A.E./953/Lb.S