1. ANWARUL HAQ, J.----This order will dispose of Criminal Petitions bearing Nos. 240 and 241 of 1972, which involve common questions of law and fact. They have both arisen out of a judg--ment delivered by a learned Single Judge of the Lahore High Court on 7-8-1972 in several criminal appeals filed by the petitioner Muhammad Ishaq and some other convicted persons.
2. The petitioner was working as a Wasil Baqi Navis (i.e. Revenue Accountant) in Tehsil Office, Sheikhupura, in the years 1959 and 1960, in which capacity it was his duty to keep an account of the land revenue and other Government dues recover--able from various Lambardars of the Tehsil, after they had collected the same from the individual land-owners. The prosecu--tion alleged that during the year 1959 the petitioner received a sum of Rs. 25,848.69, and during the year 1960 he received a sum of Rs. 50,502.49 from the various Lambardars of the Tehsil as well as some Tehsil peons as land revenue for deposit in the Government Treasury, but' instead of depositing the same he criminally and dishonestly misappropriated these amounts and thus committed offences punishable under section 409 of the Pakistan Penal Code and section 5(2) of the Prevention of Corrup--tion Act (II of 1947). The allegations regarding the two years in question formed the subject-matter of separate trials before the learned Special Judge, Anti-Corruption at Lahore. In the case relating to the year 1959, the petitioner was convicted on both the counts. Under section 409 of the Pakistan Penal Code he was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 26,000, and in default of payment of fine he was ordered to undergo further rigorous imprisonment for 15 months. Under section 5(2) he was awarded rigorous imprisonment for two years and a fine of Rs. 1,000, or in default to further rigorous imprisonment for six months.
3. Both the sentences were ordered to run concurrently.
4. In respect of the allegations relating to the year 1960, the petitioner was similarly convicted on both the counts, and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 50,000 under section 409 of the Pakistan Penal Code. In default of payment of fine he was directed to undergo further rigorous imprisonment for 18 months. Under section 5(2) of the Prevention of Corruption Act he was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000, or in default to undergo further rigorous imprisonment for six months.
5. The sentences on both the counts were ordered to run concurrently. It was further directed that sentences in both the cases shall also run concurrently with each other.
6. In appeal the High Court has set aside the separate convic--tions and sentences awarded by the learned Special Judge under section 5(2) of the Prevention of Corruption Act in both cases on the ground that this would amount to double punishment for the same offence. However, the convictions and sentences recorded under section 409 of the Pakistan Penal Code have been maintained.
7. Petition No. 240 of 1972 relates to the offences alleged to have been committed during the year 1960 while Petition No. 241 of 1972 relates to the year 1959.
8. In both the cases, the trial Court as well as the High Court have recorded the following concurrent findings;
(a) that during the relevant periods the petitioner was working as the Wasil Baqi Nevis of Tehsil Sheikhupura ;
(b) that the amounts in question were indeed paid to him by the Lambardars and Tehsil peons in his capacity of a public servant ; and
(c) that the petitioner had not deposited the amounts in question in the Government Treasury nor accounted for them in any other manner.
9. In support of these petitions, it is submitted by Mr. Abdul Aziz Qureshi, the learned counsel for the petitioner, that :----
(a) the Courts below have erred in law in relying upon the oral evidence of the Lambardars and Tehsil peons, as to the factum of payment of the amounts to the petitioner, as the Lambardars were at best in the nature of accomplices, who were giving evidence to save their own skins, and, therefore, they could not be relied upon without sufficient corroboration ;
(b) no such corroboration was available on the record ; and
(c) in any case even if it be held that the amounts in dispute were in fact paid to the petitioner, as alleged by the prosecution, it is clear that while receiving these amounts the petitioner was not acting as a public servant, as the procedure prescribed by the relevant rules did not contemplate the actual handling of money by a Wasil Baqi Navis.
10. After perusing the available record and hearing the learned counsel for the petitioner at some length, we have come to the conclusion that there is no merit in any of these submissions.
11. As regards the contention that the Lambardars were in the position of accomplices, the High Court has rightly observed that this is not correct. If the Lambardars had been found to be defaulters in depositing the amounts of land revenue outstanding against their names, the first step for the revenue authorities would have been to proceed against the Lambardars for the recovery of the arrears, and not to prosecute them under section 409 of the Pakistan Penal Code. In the circumstances, it is not possible to hold that the Lambardars were in the position of accomplices.
12. The trial Court as well as the High Court have placed full reliance on the oral testimony of these Lambardars, and have observed that it is impossible to imaging that such a large number of Lambardars would come forward to depose falsely against the petitioner. We have no reason to differ from this assessm ent of their evidence.
13. However, the oral evidence of the Lambardars and others does not stand alone. The High Court has spelt out a number of corroborative circumstances available on the record, which are :----- ,
(a) although it was the duty of the petitioner as Wasil Baqi Marts to proceed against the defaulting Lambardars by bringing the matter to the notice of the Tehsildar yet no such action was initiated by him, thus showing that the petitioner had received the amounts in question ;
(b) there was evidence to show that the practice of paying the amounts in cash to the Wavil Baql Navis had developed over the years, and there were instances in which the amounts so paid to the Wasil Baqi Navis had in fact been deposited in the Treasury, thus confirming the oral assertions made by the Lambardars that they were following this practice ;
(c) the entries by the petitioner in the register khatoni, maintained by him in his official capacity, had been proved, by the evidence of his colleagues, to have been made by him, and these entries supported the oral evidence of the Lambardars. These entries purported to show that the amounts in question had been cleared by the Lambardars, although there were no supporting treasury counterfoils. The Courts below have held ire this connection that the production of a Handwriting Expert was not necessary for the purpose of proving the identity of the handwriting, in view of the evidence of persons who were familiar with the petitioner's writing.
14. It seems to us that the corroborative circumstances relied upon by the Courts below were indeed such as to lend certainty and credence to the oral evidence of those who had paid the amounts to the petitioner. The prosecution had thus clearly succeeded in showing that the amounts had been paid to the petitioner, but he had not in turn deposited them in the Government Treasury.
15. Coming now to the last contention that in receiving the amounts in question the petitioner was not acting as a public servant, we find that it is correct that according to the procedure given in paragraphs 508 to 510 of the Punjab Land Administration Manual, the Lambardars were required to deposit the amounts ill the Treasury and then furnish the Treasury counterfoil to the Wasil Baqi Navis. In other words, it was not one of the prescribed official duties of the petitioner to receive the amounts in cash direct from the Lambardars. However, it has been found, as a fact, that a practice had grown for the Lambardars to pay the amounts in cash to the Wasil Baqi Navis instead of taking the trouble of going through the formalities themselves. The high Court has observed that if the petitioner had not held the office of Wasil Baqi Navis aril was merely an ordinary citizen, few Lambardars would have reposed confidence in him so as to hand over to him the Government dues collected by them from the land-owners. The High Court has further taken note of the fact that according to section 409 of the Pakistan Penal Code the ingredient of the offence is entrustment of the property to the public servant in any manner. The learned Judge has found support for his view in an earlier decision of a Single Judge o that Court in Ishfaq Ahmad v. The State (PLD 1968 Lah. 1124).
16. Section 469 of the Pakistan Penal Code opens with the words "whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant, . . . ."
17. The question is whether the words in his capacity of a public servant" necessarily relate to the written charter of hi duties as such public servant, or whether they would embrace even those actions which have come to be performed by the public servant in accordance with the accepted practice of the post, appointment or department concerned. It seems to us that there is no rational basis for drawing a line between the entrustment which takes place in accordance with the prescribed duties, and that which is made in accordance with the accepted practice relating to the post or appointment held by the public servant. In both cases the entrustment takes place in his capacity of a public servant dealing with the property in question in relation to his official functions. Both situations would thus be covered by the provisions of section 409 of the Code. The section would not of course extend to entrustment of property which has no connection whatsoever with the official capacity of the public servant as such.
18. Now, in the present case the entrustment by the Lambardar was clearly connected with the official duties of the petitioner as a Revenue Accountant of the Tehsil, irrespective of the fact that the written procedure did not contemplate the handing over of cash to the petitioner. The Courts below were therefore right in thinking that the matter was covered by section 409 of the Pakistan Penal Code.
19. For the foregoing reasons, we see no justification to interfere in the matter. The petitions are therefore dismissed.