The appellant Muhammad Rafiq who was a Process-Server in the Court of Civil Judge, Wazirabad, was convicted under sec--tions 204, 409 and 468, P. P. C. By Mr. Abdul Shakoor Qureshi, Special Judge, Gujranwala, vide his order dated 30th of June 1971, and was sentenced to three years' rigorous imprisonment each on the last two counts and one year's rigorous imprisonment under section 204, P. P. C. The sentences were ordered to run concur--rently.
2. The appellant was attached as a Process-Server to the Court of the Civil Judge, Wazirabad. On 25th of June 1969, he' was given Rs. 17 by Muhammad Bashir Naib Nazir. Out of -this amount, a sum ob Rs. '15 was to be disbursed as diet money to four witnesses including Bahawal Bakhsh and Allah Jawaya of village Dhaunkal in ease Kafaitullah v. Muhammad 'Abdullah. A sum of Rs. 2 was delivered to him to have a proclamation made by beat of drum in case Umar Daraz Khan v.
Muhammad Shafi. Service was effected on the witnesses and the report regarding proclamation was produced before Muhammad Bashir (P. W. 3) Naib Nazir on 2nd of July 1969. Muhammad Bashir found some indications of fabrication in the report regarding proclamation and asked for the explanation of the appellant. When questioned by Muhammad Bashir, the appellant told him that he had disbursed the amount of Rs. 15 to all the four witnesses. Muhammad Bashir was suddenly called by Mr. Lutaf--ur-Rehman who was the Civil Judge at Wazirabad at the relevant time and when he came back he found page 15 of the register of diet money in possession of the appellant, missing. He made a report to the Civil Judge who asked for the explanation of the appellant. The appellant in his brief reply wanted time to consider and submit his explanation. On this Mr. Lutaf-ur-Rehman talked on the telephone to the Administrative Civil Judge at Gujranwala and sent report Exh. P. A. To the police.
3. The plea taken by the appellant at the trial was that he had not disbursed the amount to Bahawal Bakhsh and Allah Jawaya and had re-deposited, the money in the treasury. No evidence was brought on record to show that. This plea taken at the trial, however, runs counter to what the appellant told Muhammad Bashir before the F. I. R. Was lodged with the police.
4. Bahawal Bakhsh and Allah Jawaya appeared as prosecu--tion witnesses and stated that they had accepted service but no money was paid to them. Muhammad Abdullah Khokhar, petition- writer, said that service was effected on him by the appellant and he received the diet money but two other villagers on whom service was effected at the same time, were not paid any thing. The non-payment of money is accepted by the appellant himself. It is not denied that the diet money was to be paid to the witness by Server. This was not done. The plea of the appellant that he had re-deposited the money has been substantiated by any evidence, any even if there were any evidence to that effect there was no escape from the conclusion that even in that case the appellant was guilty of temporary embezzlement.
5. As to the fabrication of the report of proclamation Exh. P. E. It purported to have been attested by Muhammad Ramzan Chaukidar and Nazir son of Siraj of village Chaherke. Evidence, was produced from the mouth of Muhammad Alam Chaukidar (P.W. 13) and Muhammad Husain Lambardar (P.W.14) that there was no Chaukidar by the name Muhammad Ramzan in that village nor was any Muhammad Nazir son of Siraj Din, resident of that village.
6. The disappearance of page 15 of the register of diet money of the custody of the appellant during the short interval when Muhammad Bashir had been called, has also been proved beyond any doubt. There were some Process-Servers present when the removal took place. The learned counsel argued that none of them saw the appellant removing the page of the register. This is so but Muhammad Bashir (P, W. 1) is positive that when he left his office to attend to the Court of the learned Civil Judge the page was there, but when he returned it had already been removed.
Muhammad Aslam Process-Server (P. W. 5) stated that he was busy in his work and did not see the appellant removing the page.
7. The learned counsel raised a legal argument. He said that A. S. I. Sanaullah of Police Station City Wazirabad, who had investigated the case, was not authorised to do so in the light of the provisions of section 5-A of the Criminal Law (Amendment) Act, 1958. Under that section, if a person below the rank of an Inspector has to investigate a case registered under the provisions of the above Act, he has to take the permission of a Magistrate to do so. There is no indication on the record of the case nor in the Zimnis that any permission was taken by A. S. I. Sanaullah to conduct the investigation. The learned counsel submitted that since the investigation was completely unauthorised, the conviction stood vitiated. The learned counsel, also, reinforced his argument by submitting that the appellant was prejudiced during the investigation because of the fact that Mr. Lutaf-ur-Rehman, Civil Judge, who appeared at the trial as P. W. 2 was inimically disposed against the appellant. He in this connection referred to para. 10 of the judgment of the learned Special Judge where he held that Mr. Lutaf-ur-Rehman was inimically disposed against the appellant but observed that this enmity did not affect the merits of the case. In the first instance I have to observe that there was no foundation whatsoever for the observation of the learned Special Judge made in para. 10 of his judgment that Mr. Lutaf-ur-Rehman was inimically disposed against the appellant. When cross-examined he was asked whether he was aware of the fact that the appellant sent application against him to the High Court or the Supreme Court. The answer of the learned Civil Judge was in the negative.
8. The appellant produced two defence witnesses, namely, Bashir Ahmad and Zialullah, Advocates as D. W, 1 and D. W. 2 respectively. Both of them are Oath Commissioners. Bashir Ahmad stated that on 2nd of July 1969, Muhammad Rafiq, Process-Server had got an affidavit attested by him which was addressed to the Chief Justice of the High Court. The witness also said that in that affidavit certain allegations had been made against Mr. Lutaf-ur-Rehman. The witness admitted that his register was unpaged in the form of loose sheets and that the entry regarding the affidavit in question was on a new sheet. He could not give the contents of the affidavit. Mr. Ziaullah Malik stated that he attested an affidavit of Rafiq appellant on 19th of July 1969, at serial No. 172 of his register. He could not say to whom the affidavit was addressed and did not remember the nature of the allegations made against Mr. Lutaf-ur-Rehman in that affidavit. It is not proved on record that these affidavits were at all sent to the High Court, or Mr. Lutaf-ur-Rehman knew anything about them. There was, therefore, no factual data before Mr. Abdul Shakoor, the learned Special Judge, to come to the conclusion that Mr. Lutaf-ur-Rehman was inimically disposed against the appellant. I have no hesitation in holding that this finding was not arrived at by any judicial process.
The question of any possible influence of Mr. Lutaf-ur-Rehman on the course of investigation due to his alleged enmity with the appellant does not therefore arise.
9. Now coming to the purely legal question, the learned counsel relied upon Feroze-ud-Din v. The Crown (PLD 1954 Bal. 1) and Sheikh Abdul Majid v. The State (PLD 1958 Kar. 86.). The view taken in these two judgments supports the contention of the learned counsel. This view, however ignores the basic principle of law that any defect, any irregularity or violation of procedure at the preliminary stage of investigation will not affect the jurisdiction of the Court with whose procedure no fault has been found by him. Reference in this connection may be made to The Crown v. Mehar Ali (PLD 1956 FC 106), The Crown v. Subhan (PLD 1956 B J 9), Sheikh Abdul Majid v. The State, Walizar and another v. The State (PLD 1960 Kar. 204) and Manzoor Elahi v. The State (PLD 1960 Kar.
607).
10. As a result of the above discussion, I find that all the offences with which the appellant had been charged have been brought home to him.
11. The learned counsel urged that the amount embezzled being a paltry sum of Rs. 10 only, the sentence is far in excess of the magnitude of the offence. The appellant as a result of the conviction shall be thrown out of his employment and this according to the learned counsel should be a mitigating circum-stance. I find force in this contention. While I maintain the conviction of the appellant on all the three counts, I reduce his sentences in respect of them to those already undergone and decide the appeal accordingly.