1. Ziaul Haq, Muhammad Ishaq and Muhammad Yaqub, who were at the relevant times employed in the post of Wasil Baqi Nevis, Sheikhupura Tehsil, were convicted by the learned Special Judge. Anti- Corruption, Lahore, for offences under section 409, P. P. C., and 5 (2) of the Prevention of Corruption Act (II of 1947); on the charges of having received, in their capacity of public servants, various amounts from the lambardars on the assurance that the same would be deposited in the Treasury; but instead of depositing the amounts in the Treasury the same were misappropriated by them to their own use and thus they committed Criminal breach of trust. All three of them were sentenced under both the counts on 29-5-70. These appeals arise out of 18 cases ; three against Zisul Haq ; two against Muhammad Ishaq ; one jointly against Muhammad Ishaq and Ziaul Haq ; eleven against Muhammad Yaqub ; and one jointly against Muhammad Yaqub and Ziaul Haq The details of the convictions and sentences are given in Schedule I to this judgment. Ziaul Haq and Muhammad Istiaq have filed three appeals cub, vii. Criminal Appeals Nos. 335, 336, 337 and 347, 348 and 349 of 1970 respectively ; while Muhammad Yaqub has filed twelve Appeals Nos. 358 to 369 of 1970. As all the legal questions and most of those relating to the merits of the cases raised to these appeals are common to all of them, therefore they are being disposed of together.
2. The prosecution case is that during the years 1957 to 1962 sit times, the load of work necessitated appointment of more than one Wasil Baqi Navis. The periods relevant to these cases are: Ziaul Haq-October 1957 to September 1958; Muhammad Ishaq, August 1958 to September 1960 ; and Muhammad Yaqub---February 1958 to September 1962. The prosecution case is that lambardars of Tehsil Sheikhupura, on account of mutual confidence, sometimes used to leave with the appellants collections of Government dues including the land revenue on the assurance that the worm deposit the same after getting made in the records of other officials including the Siyaha Navis and the Treasury Office. As a guarantee in lieu of receipt, the assurance was supported by the entries of the amounts made by the appel--lants m Khatauni Registers which were maintained by them. Whenever any lambardar would ask for some kind of receipt or assurance, he would be shown the entry in the Khatauni Register. In reality however, no deposits were made by the appellants in the Treasury and they misappropriated the amounts. The total amount was about seven lacs and the matter was reported vide general F. I. R. No. 158 dated 29-12-1965.
3. Mr. Ijaz Hussain Batalyi, learned counsel appearing for Ziaul Haq appellant, gave the details of the procedure for the deposit of the Government dues by the lambardars, as follows :----- One of the duties of a lambardar is to collect Government dues including land revenue from the Zamindars. He is personally responsible to deposit the same in the Tehsil Treasury. Before the lambardar: effects the recovery the patwari prepares the dhal bachh for his use. The patwari also gives to the lambardar the arz irsal (a memorandum) showing all the amounts which are to be paid under proper heads. He presents it at the Tehsil office before the Wasil Baqi Navis who is described in the Doule's Punjab Land Administration Manual as "Revenue Accountant". The Manual shows that he having ascertained the distribution of the amounts tendered, with reference to the village Khatauni, enters them under the proper heads in the foil and counterfoil of the Receipt Register (dakhila bahi) and initials the arz irsal if it is found correct. The lambardar then takes the arz irsal to the Siyaha Navis who after making the necessary entries gives parat dakhila (Deposit Form) in triplicate to the lambardar; who then goes to the Treasury. There the Treasury Clerk handles the matter first of all and after an involved process the amounts get deposited but lambardar's ordeal does not end. The Treasury Clerk keeps one foil of parat dakhila for record, sends the second one directly or through the lambardar to the Siyaha Navis and gives the third one to the lambardar who returns to the Siyaha Navis. The second copy is kept by the Siyaha Navis while the third remains with the larnbardar. The Siyaha Navis makes ent--ries in his Register. The lambardar again conics back to the Wasil Baqi Navis who, on seeing the receipt (parat dakhila), makes entry in the Khatauni Register of the final payment and gives the particulars therein of the person making deposit.
4. The details given in paras 508 to 510 of the Punjab Land Administration Manual are slightly different.
5. Impression gained therefrom is that the Wasil Baqi Navis who is the R6venue Accountant has, in law, 'sore to do with the deposit of the Government dues and thus his responsibility is more as compared to the other officials who come in contact with the lambardar in the entire process of the collection and deposit of the amount. It is an admitted position that even after the deposit, it is the responsibility of the Wasil Baqi Navis to point out the defaults in the deposit of the Government dues whereupon complaints are prepared by him and are forwarded to the Tehsildar, entry whereof is made in the Register Tadarkat. Another impression gained from pares. 509 and, 510 is that the procedure is undoubtedly cumbersome, time-consuming and inconvenient for an ordinary villager. I may mention here that in, most of the cases either positive evidence has been led to show w at the procedure was, or information has been elicited in the Cross-examination of the official witnesses. The learned counsel appearing for -all the parties in these cases have no difference in so far as the above--mentioned procedure is concerned. It may further be mentioned that Mr. Batalvi, while giving the outlines of the procedure, him--self mentioned the above-stated paragraphs of the Punjab Land Administration Manual. Initially, he had promised to place on record a simplified vernacular version of the procedure but later on, he only mentioned the above-noted paragraphs for my guid--ance on the question of procedure and has not felt it necessary to place on record the vernacular version, prepared by him.
6. In all the cases the prosecution mainly led five items of evi--dence : first, about the service of the appellants showing their appointment and duty as Wasil Baqi Nevis ; second, evidence from the Treasury showing that the amounts were not deposited therein ; third, the lambardars concerned and/or their messengers, and in some cases some supporting witness to show that the amounts in question were in fact paid to the appellants ; fourth, witnesses to prove the entries showing payment of the relevant amounts by the concerned lambardars, in the Register Khatauni in the hand: of the appellants ; fifth, formal evidence Including the procedural matters and the investigation.
7. The plea of the appellants was of general denial with regard to receipt of amounts. They also denied that the relevant entries in the Register Khatauni were in their hand. They pleaded false implication and suggested that the lambardars in order to save their own skin were, to a very large extent, responsible for their false implication. All three of them produced defence evidence. Ziaul Haq examined the largest number of defence witnesses who mainly provided the rebuttal with regard to the identity of hand--writing ; including the statement of Mr. Zaka A. Malik, the Handwriting Expert. His witnesses also tied to show that there were regular audits and further that there was supervision of Tehsil Accounts at District level by a Committee which checks the monthly statement of account known as tarij, prepared in the Tehsil office. A Tehsidar was produced to show that the lambar--dars never made any complaint to the highest Revenue Officer in the Tehsil and further that the said accused (Zisul Haq) had good conduct. It may be mentioned here that an attempt was made by the defence to produce the relevant dakhilajats and an irsals but they were not available. The defence produced by the other two accused was on the same lines except that the number of defence witnesses was different. Yaqub appellant produced only one witness in most cases. Ishaq appellant, however, added one more item of evidence, namely, that after a considerable time the Commissioner directed that the arms licences of some of the lambardarsbe cancelled.
8. The learned trial Judge relying mainly on the statements made by the lambardars as supported by the entries made in the Regis--ter Khatauni in the hands of the appellants, and also relying on various circumstances relating to the conduct of the appellants, convicted and sentenced them under section 409, P. P. C. And section 5 (2) of the Prevention of Corruption Act.
9. In these appeals, the learned counsel appearing in support thereof raised some legal pleas and also advanced arguments based on general principles relating to appreciation of evidence which are equally applicable to all the cases. In addition to the above, Mr. Ijaz Hussain Batalvi criticised the evidence in one ease (Crimi--nal Appeal No. 337 of 1970) in detail and stated that the same type of criticisms available also in the other two appeals of his client. Mr. Khalilur Rehman Khan picked up couple of witnesses for his comment in support of the general criticism based on the principles of appreciation of evidence and did not make detailed comment on the statements made by the witnesses in the indivi--dual cases.
10. The legal arguments are that the orders passed by the appropriate authority sanctioning the prosecution of the appel--lants, though having been placed on the record, were neither properly proved not exhibited; that Mr. J. Soares, the predeces--sor-in-office of the' learned trial Judge (Special Judge, Anti---Corruption) was not competent to hold that office as he did not qualify for the same under the Criminal Law Amendment Act of 1958, therefore all the proceedings in these cases which took place before him are void ab initio ; that the trials convictions and sentences under two different definitions of offences, namely, section 409, P. P. C. And section 5 (2) of the Prevention of Corrup--tion Act for same impugned acts were, by virtue of section 26 of General Clauses Act, illegal. Mr. Khalilur Rehman Khan in this behalf placed reliance on Niaz Ali v. The State (PLD 1961 Lah. 269and Muhammad Sadiq Javeed v. The State (PLD 1969 Pesh.12). He also argued drat the splitting up of the accusations against his client, namely, Yaqub into 12 challans was in contravention of section 222, Cr. P. C. According to him, the number of cases could be reduced to six. Mr. Rafiq Ahmed Bajwa, on the other hand, contended that the splitting up of all the accusations against his client, namely, Ishaq, into three challans was not proper and because all accusations have not been tried together, therefore, according to him section 222; Cr. P. C., has not been complied with ; and lastly, Mr. Bajwa also argued that if, at all, the amount was received by his client from the lambardars for the purpose of deposit in the Treasury it was his act of grace and concession on his personal account and as in this behalf he did not act in official capacity, therefore, he has not committed any offence.
11. On merits, it was contended: that the lambardars should not be relied upon because their position is no more than that of accomplices in all matters; that without corroboration of the statements made by the lambardars the appellants could not be convicted; that, the entries in the Register Khatauni have not been properly proved to be in the handwriting of the appellants firstly because the officials who purported to prove the handwriting were not conversant with the same and secondly, no Handwriting Expert was produced by the prosecution. And additionally Mr. Ijaz Hussain Batalvi contended that stronger evidence was produced by his client, namely, Ziaul Haq in defence to show that the relevant entities were not in his hand, these entries therefore not having been proved to be in the handwriting of the appellants cannot be treated as corroboration of the statements made by the lambardars; that the conduct of the lambardars in not reporting the matter for such a long time nor producing the receipts con--tradicts their assertions that they made the relevant payments to the appellants. Mr. Ijaz Hussain Batalvi, further added that the Wasit Baqi Navis in the normal course of his duty was to come in contact With the lambardar only twice in the entire process of the deposit and that too in an innocent manner and there is no likelihood of his having received the amount for deposit, on behalf of the lambardar who, under the law, was himself responsible for making the deposit in the Treasury. The criticism of Mr. Ijaz Hussain Batalvi on the evidence in one particular case he read will be dealt with separately.
12. Mr. Rustam Sidhwa, learned counsel for the State, on the question of sanction contended that the orders being available on each file from the very start of the cases, the mere fact that they were not formally exhibited will not make any difference. However, by way of abundant caution, he made an application for recording of evidence in this Court which was accepted and Mr. Muhammad Ashfaq Beg of Deputy Commissioner's Office was examined who proved the sanction orders by making separate statements in all these appeals. Mr. Sidhwa frankly conceded that Mr. J. Soares was not qualified to be appointed as Special Judge. Anti-Corruption and, therefore, the evidence recorded by him will be excluded from consideration. He further pointed out the evidence recorded by Mr. Scares and the effect of exclusion there--of in individual cases. He also conceded that additional "punish--ment" under section 5 (2) of the Prevention of Corruption Act, which amounts to contravention of rule against double punishment for the same act, is illegal and to that extent the sentence might be set aside. On the question of splitting up of charges Mr. Sidhwa argued that the contentions raised by Mr. Khalilur Rehman and Mr. Bajwa are unfounded because, as he asserted, there is no contravention of any provision of the Criminal Pro--cedure Code relating to the joinder of the charges. On the last question relating, to the capacity of the appellants while receiving the amounts from the lamhardars or on their behalf for purpose of deposit in the Treasury, learned counsel contended that it was in no other capacity than the official one.
13. Moreover, no other capacity had been relied upon by the appellants either in the suggestions made to the witnesses or in their statements under section 342, Cr. P. C.
14. On merits. Mr. Sidhwa contended that the lambardars had no motive of their own to falsely implicate the appellants. The contrivance used was such that they could not have known that the amounts had in fact not been deposited, therefore, they did pot make any complaint in that behalf and further that there was nothing impossible in their assertion that the confidence that developed between the parties together with the entries in the Register Khatauni was a sufficient assurance for the lambardars that they were not doing anything illegal. Mr. Sidhwa further con--tended that the position of, the lambardars is not that of accomp--lices and, in any case, the prosecution has produced sufficient corroboratory evidence in the entries proved to have been made in the handwriting of the appellants as also their general conduct of commission and omission. He also contended that the prose--cution has led enough evidence to show that the entries in ques--tion were made by the appellants.
15. I had reserved the judgment to these cases so that I might go through the evidence myself as the learned counsel had chosen not to read the whole of it. After reading the entire evidence it appears that the learned counsel, in so far as the factual side is concerned, probably had some justification for not reading the evidence because if their general arguments common to all the cases are not accepted they had not much to comment on indivi--dual witnesses.
16. I will first take up the legal points. It is true that the orders of sanction were neither exhibited nor formally proved in each case. It cannot, however, be said that the said orders which were, admittedly, on the files from the very start of the proceeding against the appellants were sprung at them as surprise. The appellants are literate and they were represented by counsel who cross- examined the witnesses at length. It appears that every body presumed that the formality as to sanction has been fulfilled: The technical objection at a later stage cannot, in the circum--stances of these cases, be of much benefit to the appellants. Mr. Sidhwa cited Siraj v. The State (1970SCMR 208) in support of the con--tention that the so-called formal defect is not fatal in these cases. The ruling in so far as it goes supports the learned counsel. Bu he by way of abundant caution, examined Mr. Muhammad Ashfaq Beg from the office of Deputy Commissioner, Sheikhu--pura, who has proved all the sanction orders which have been duly exhibited. I, therefore, find no force in the technical argument raised by the learned counsel on the question of sanction.
17. In three cases, namely, Criminal Appeals kilos. 348 (by Muhammad Ishaq). 359 and 362 (by Muhammad Yaqub), the proceedings conducted by Mr. J. Soares who admittedly was not qualified to hold the office of Special Judge, Anti-Corruption have the effect of nullifying the convictions (in those cases). In the first case he examined Sh. Muhammad Aslam, Rana Muhammad Asghar and Muhammad Rashid Hussain (P. Ws. 5, 6 std 7 respec--tively). P. W. 5 made statement about the procedure while P. W. 6 proved the entries in the Register Khatauni and P. W. 7 is the Record Keeper who deposed that the amount in question was not deposited in the Treasury Without the evidence contained in the deposition of P. W. 7, it could not be held the Muhammad Ishaq, appellant, in fact, did not deposit the amount in the Treasury after having obtained it from the lambardars Therefore, if the statement of P. W. 7 is excluded as having bee incompetently recorded and not forming part of the record, the is not enough evidence to convict Muhammad Ishaq appellant in that case.
18. Similar is the position in Criminal Appeal No. 362 filed by Muhammad Yaqub. Apart from two other witnesses Mr. J. Soares recorded the statement of Muhammad Rashi Hussain Bokhari (P. W. 8), the only witness who deposed about the non-deposit of the amount in question in the Treasury. Fn the above-mentioned reasons, the conviction in this case ale cannot be maintained. Both these appeals (Nos. 348 and 362 o 1970) are, therefore, accepted and the convictions and sentences of Muhammad Ishaq and Muhammad Yaqub therein are set aside. In Criminal Appeal No. 359 of 1970, Abdul Haq lambardsr (P. W., 2) was examined by Mr. J. Soares. He is the only witness who m this case deposed about making any payment to Muhammad Yaqub appellant for the purpose of deposit in the Treasury. There is no other, allegation therein of any otter person making any other payment to the appellant. The state--ment having incompetently been recorded does not, in law, form part of the evidence. On exclusion thereof, there is no evidence left on the file of that case to show that the appellant therein received any amount which he did not deposit. That appeal, therefore, also has to be accepted. I order accordingly and set aside the convictions and sentences therein awarded to Yaqub appellant.
19. In Criminal Appeals Nos. 358, 360, 361, 364. 365, 366 and 368 of 1970 filed by Muhammad Yaqub the amounts of Rs. 1,763, Rs. 1,778, Rs. 1,616, Rs. 715, Rs. 551, Rs. 662 and Rs. 1,300 respectively will have to be excluded from the total amount embezzled in each respective case, because the statements of the witnesses who deposed about those amounts having been paid to Muhammad Yaqub appellant were recorded by Mr. J. Soares and due to his incompetency could not be read as evidence. But the exclusion of these amounts will not make any difference in so far as the convictions are concerned because in each tine of those cases there are other witnesses who deposed about having paid amounts to Muhammad Yaqub appellant, which were not deposited by him in the Treasury, and whose statements were recorded by other Presiding Officers with regard to whom there is no such objection of incompetency. The convic--tions and sentences in those cases, subject to the decision on the question of double punishment and other questions involved in these cases, shall not be affected on account of some statements having been recorded by Mr. J. Soares which, as pointed out above, -are not the only depositions with regard to the payment of, the amounts to the appellant. In this connection, Mr. Khalilur Rehman Khan had contended that the very fact that a person who was not competent to hold the trial recorded some statements, will vitiate the entire trial. I do not agree with him. Only that part of the trial will have to be treated as void which wax held by Mr. J. Soares. There is no objection with regard to the competency of the other presiding officers including the one who convicted the appellants. There are so many decided cases where, in similar circumstances the evidence incompetently recorded was excluded and the trial was not held to have been vitiated. One such case is Alam Khan v. The Stars (PLD 1959 Lah. 331). Mr. Khalilur Rehman Khan also contended that apart from other considerations the appellant should be allowed some reduction in sentence Of fine and corresponding sentence in default of payment of fine on account of reduction in the total misappropriated amount in catch appeal. In cases of embezzlement there is some limitation in law on the minimum fine that can be imposed, but these is no such limitation on the maximum fine.
20. There is, however, some limi--tation on the sentence of imprisonment in default of payment of fine.
21. If the convictions and sentences, as awarded by the trial Judge, are maintained, no provision of law will be contravened and on merits, as will be discussed later, I do not consider these cases fit for reduction of sentence on the basis of the above argument.
22. The next argument that double punishment under both the penal Provisions, namely, section 409, P. P. C., and section 5 (2) of the Prevention of Corruption Act is not permitted by law, hall force.
23. Support for this contention can be found in Niaz Ali v. The State and Muhammad Sadiq Javeed v.
24. The State. The question, however, arises as to how the appellants in these cases have been punished twice for the same act. The substantive sentences of imprisonment under both the provisions have been directed to run concurrently. Therefore this in practical terms, is not double punishment. It was so held in the case of Niaz Ali. The sentence of fine under section 5 (2) of the Prevention of Corruption Act and the imprisonment in default of payment thereof, undoubtedly, amounts to double punishment. I, therefore, hold accordingly and set aside that sentence in the remaining 15 appeals.
25. On the question of the joining of several items of misappro--priations in individual cases, the arguments raised by Mr. Khald--ur-Rehman Khan and Mr. Rafiq Ahmad Bajwa are untenable. The reliance by the learned counsel is on the provisions contained in subsection (2) of section 222, Cr. P.
26. C. On careful study there--of, I have come to the conclusion that there is no force in their contentions. Section 222, Cr. P. C., reads as follows :--- "222.-(1) The charge shall contain such particulars as to the time and place of the alleged offence, and--the person (if any) against whom, or the thing (if any) in respect of which it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.
(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specify--ing particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234: Provided that the-time included between the first and last of such dates shall not exceed one year."
27. According to Mr. Khalilur Rehman all the amounts misappropri--ated during the period of one year could be combined together and farmed basis for one charge. He, therefore, argued that his client could have been tried in lesser number of cases than 12. He ,o-eat gave the number as Six. Mr. Bajwa, on the other hand, contended that all the items of alleged misappropriation by his client could be joined in one trial. The anxiety of the learned counsel in this behalf is understandable.
28. According to them if there would have been lesser number of trials, there would have been lesser number of sentences particularly in default of payment of fine, and by that their clients would have been benefited. The general rule is that for every distinct offence for which any person is accused, there shall be a separate charge and every such charge shall be tried separately, under section 233, Cr. P. C. Some of the exceptions to this rule are contained in sections 234, 235, 236 and 239, Cr.
29. P. C. Section 234 (1) pro--vides that when a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for any number of them not exceeding three. Even the limit of three charges, with regard to cases of criminal breach of trust or dishonest, misappropriation of money, has been done away with by subsection (2) of section 222 wherein it is provided that all items of criminal breach of trust and/or misappropriation within a period of one year could be the basis for one charge. Thus it was permissible to prosecute individual appellants for al items of misappropriation within a period of one year at of trial. The argument of the learned counsel has force in the real of possibility only. In other words, it is not mandatory but only permissible for the Court to combine several charges in one trial. The combination of several items and splitting up of all th charges into twelve (in the case of Mr. Khalilur Rehman's client and into three (in the case of Mr. Bajwa's client) is not against the main provision of law, i.e., section 233, Cr. P. C. Therefore, no illegality has been committed because, as pointed out above, this provision contains the rule while those in sections 234 (1) and 222 (2) contain only permissible exception. What is permissible is not always mandatory and this is the case here with regard to the inter-action of the provisions contained in sections 233 and "section 222 (2), Cr, P. C. As to the other aspect i.e, with regard to prejudice, there is no doubt that the splitting up the items was for the benefit of the appellants. That is probably why they did not raise any objection at the trial stage. I, therefore find no farce in this argument of the learned counsel.
30. While going through all the grounds of appeals in these cases, surprisingly I came across a contrary contention raised by Mr. Bajwa's client Muhammad Ishaq, namely, that there has been misjoinder of charges because section 222 of the Criminal Procedure Code permits the trial of offence under section 409, P. P. C., relating to sum allegedly misappropriated during one year and this provision is not applicable when the case is tried under section 409, P. P. C. And section 5 (2) of the Prevention of Corruption Act, jointly. It appears that Mr. Bajwa has abandoned this argument because the one raised by him during the arguments is clearly destructive of what is con--tained in the grounds of appeal. Otherwise too, I am of the view that there is no force in this contention either and as it has not been pressed, therefore, I am not called upon to give my reasons. Before concluding this part of discussion, I may, however, observe that mere permission under the law to combine certain items does not mean that the Court must do it. While combining such items in one charge, the question of prejudice has to be kept in mind: But on factual side, after reading the, evidence I do not find any material to show that any of the appellants was prejudiced. No such objection was raised at the trial stage. All the witnesses were thoroughly cross-examined and the questions framed are such that there was no likelihood of any embarrassment or inconvenience to the appellants and they replied to each question in accordance with the line, of cross-examination.
31. Section 537, Cr. P. C., as amended, would have cured any technical defect. However, I find none in th a cases and on .The question of pre--judice there is no materia to give a finding in favour of any of, the appellants. In the light of the above discussion. I sepal the contention based on so-called splitting up and/or misjoinder of charges.
32. The last contention on the legal side raised by Mr. Rafiq Ahmad Bajwa with regard to the official capacity of the appellant in these cases, is based on misconception of facts. Under section 409, P.
33. P. C., the requirement is of the capacity of publish servant. Public servant has been defined in section 21 of the Code. There is no dispute about the proposition that the (office of) Wasil Baqi Navis did fall under the definition of public servant. On the question whether the impugned conduct of each appellant was in has capacity as such public servant, a reference again will have to be made to section 409, P. P. C., as to what is the requirement. According to this provision ("whoever being in any manner entrusted with property or with any dominion over, property in his capacity of public servant") the requirement is of entrustment with or dominion over property in such a capacity. Undoubtedly, each accused after having received the amount from the lambardars or their representatives was trustee of that amount for the purpose of its deposit in the Treasury in the Government Account and so long it remained with him he had dominion over it. His capacity was of Wasil Baqi Navis. He was the Revenue, Accountant of the Tehsil at the relevant time. The expression "in any manner" which is prefixed to entrustment and/or dominion, is very significant in this behalf. A Wasil Daqi Navis (Accountant), whose duty is to see that all the land revenue is not only paid but property deposited as he distributes the amount under proper heads and is responsible for the correctness of the entries in the arz irsal when receiving or, retaining the amount in aid of the above purpose, does undoubtedly act in that capacity. In each case, the witness has categorically stated that the Wasil Baqi Navis (accused) concerned therein had told him that the amount shall be deposited in the Treasury in accordance with the procedure. I, therefore, repel the contention that the impugned act of the accused in these cases was not in their capacity of public servants. As I have repelled the argument on the basis of the first part of section 409, P. P. C., therefore, I have not thought it necessary to consider the question whether the act of each accused was not analogous to that of an agent and would not be covered by the second part of section 409. In the case of Ashfaq Ahmed (PLD 1968 Lah. 1124) also, the accused was a Wasil Baqi Navis who had received certain amounts on behalf of lambardars as land revenue for being deposited in. The Treasury and mis-appropriated the same. It was observed that if the appellant is that case had not, at the relevant time, held the office of Wasil Baqi Navis and were merely an ordinary citizen, few lambardars would have reposed confidence in him so as to hand over to him Government dues and thus fallen into the trap. It was obviously for this reason that delinquent public servants were sought to be dealt with more severely and promptly by creation of a special machinery for their trial. Thus the question whether he was under the rules entitled to receive the amounts or not, would be wholly irrelevant". Near the end of the discussion, after considering some authorities on the point it was also observed, with reference to some observation in Sayeed Hai v.
34. The State (PLD 1967 Kar. 768) that there it not a word therein to indicate that if committed by a public servant, the offence should be relatable to the official discharge of his functions. I, therefore, repel this argument also.
35. On the side of merits, before discussing various questions. I must mention that on account of the reason that all the learned counsel did not read all the witnesses in all the cases, I felt con-- strained to go through the entire evidence which makes a volu--minous record in all these cases in order to satisfy myself with regard to the appreciation of evidence by the learned trial Judge who, my reading of the record and judgments shows, applied full mind to the material facts in etch case. The judgments are not stereotyped. After reading the evidence and on consideration of the arguments raised, I have come to the conclusion that the appellants have rightly been convicted for the offences they were charged; excepting three cases in which I have already accepted the appeals on purely legal ground which, it appears, was not raised before the trial Court.
36. These cases are interesting example of, and throw a consider--able light on tire development of, refined means of deceit involv--ing unsuspected straightforward citizens on the one hand and officials collecting revenue/tax on behalf of the State on the other. They also provide a sad commentary on the efficiency of the supervising and auditing agencies. I have had an occasion of making some comment on the last mentioned aspect in the case of Muhammad Sadiq Javeed (at page 43 of the report). While dealing with a legal point, I have made reference to the case of Ashfaq Ahmad. That was also an instance of misappropriation by a Wasil Baqi Navis. The comparison of deceitful means in that case with those employed in these cases shows what type of improvement was made within a period of about five years (the offence in that case took plate in 1953-54 while in the present cases in 1958-59) in two adjoining Tehsils of Sheikhupura and Lahore in the same office of Wasil Baqi Navis (Revenue. Accoun--tant of the Tehsil). It is high time, I must emphasize that the Governments. Provincial as well as Central, should do something substantial including research comparable to modern human ingenuities and provide for checks and measures for, the purpose of prevention and detection of crime involving amounts which are to form part of State exchequers.
37. The contact of a lambardar,, and when I say lambardar it also includes his Sarbarah, with the Revenue Accountant is not casual. The very expression "Wasil Baqi Navis" Connotes that the official concerned has to write down the initially recoverable dues and after noting down the payments, to point out the balance recoverable as well as the parties who are at default. The Register Khatauni is so framed and columns therein are so distri--buted that the two opposing pages make pail of the same form which is divided into two parts the upper one and the lower one indicates the payments (Yadasht wasooli). At the end of the second part, totals in each relevant column are made and then the balance is struck. The totals are almost always is red ink and are over-written on rubbed rough pencil calculations. The learned counsel differed on the question as to whether the arz irsal is-prepared by the Wasil Baqi Navis but they agreed that he is that important official in the Tehsil who is duty-bound to work out the "'tire recoverable dues village-wise, lambardar-wise and head-wile. There is conflicting evidence on the question whether he, in fact, prepares the arz irsal. The Tehsildar, who appeared to give the procedure, in examination-in-chief in most of the cases clearly stated that it is the duty of the Wail Baqi Navis to pre--pare the arz irsal, but in some cases in cross-examination admitted that thapii irsal is brought by the lambardar to the Wasil Baqi Navis who checks it and signs it in token of its correctness. After studying the procedure mentioned in Doule's Land Admini--stration Manual and the practice, as deposed to by several witnesses, I have come to the conclusion that although it is the duty of the Wasil Baqi Navis to prepare the arz irsal for purpose of convenience the same is often prepared by the patwari and is invari--ably checked by the Wasil Baqi Navis for its correctness. Some--times when a punctilious patwari refuses to prepare it considering that it is the duty of the Wasil Baqi Navis and the latter insists on the practice, the lambardar in quandary even gets it prepared from some literate person giving him the information about the usual demand Head-wise and takes it to the Wasil Baqi Navis for its proper checking. Whatever the source of preparation of the arz Irsal, there is absolutely no dispute on the question that the final authenticity of the arz irsal for purpose of making pay--ment is the responsibility of the Wasil Baqi Navis. So much so that it has come in evidence that wrong arz irsal is corrected by the Wasil Baqi Navis mentioning the correct figures and the correct heads of payment. Thus for the purpose of a lambardar,Wasil Baqi Navis is the real Revenue authority in so far as the recovery and payment of Government dues are concerned. The contact between the two does not end at this stage of transmission of the arz irsal onward to the Siyaha Navis for purpose of preparation of the deposit forms on the basis thereof but continues for some time ; in that after the deposit is made in the Treasury, the lambardar passing through different channels must come back to the Wasil Baqi Navis in order to assure him that the process started by him has culminated in genuine payment. Unless the lambardar satisfies the Wasil Baqi Navis by production of one foil of the Deposit Form (parat dakhila), the latter will-- not register the payment as having been made. According to the admitted procedure, on his return from the Treasury the lambardar has to satisfy the Wasil Baqi Navis that he has made the payment. Only then he makes entry in the second part of the form of Register Khatauni (yadasht wasooli) that a particular lambardar mentioning his name has made particular payments. Even this stage does not absolve the lambardar of his submissive contact with the Wasil Baqi Navis. After noting the payment in the Register Khatauni if there is a balance due and the lambardar has failed to make the payment in time, the Wasil Baqi Navis has to play a coercive role, namely, he works out the default and in a sort of complaint brings the matter to the notice of the Tehsildar: Notices are issued to the lamberdar and if in spite of that he fails to make the payment, further coercive measures including arrest on the basis of the same original initia--tion of the Wasil Baqi Navis are taken by the Tehsildar. In other words, the Tehsildar does not move in the matter unless he is made to do so by the Wasil Baqi Navis. It is no secret in our village life that the arrest of a lambardar, even if of civil nature, in matter of payment of revenue dues brings shame and humilia--tion not only to has own person but to his entire family and is a serious matter in so far as the consequences are concerned. It is in the above background that the relationship between a lambardar and the Wasil Baqi Navis has to be judged for the purpose of considering various other questions involved in the appreciation of evidence in this case. I do not agree with Mr. Ijaz Hussain Batalvi that the only two stages when the lambardar comes in contact with the Wasil Baqi Navis are ; first, when the Wasil Baqi Navis, as he put it, "Just initials the arz irsal" ; and the second, when he has to make, as he put it, "a formal entry" in Register Khatauni of deposit of the amount in the Treasury. The above resume and the context would show that in reality it is much more and the lambardar would always try to remain in good books of the Wasil Baqi Navis. That is why, I have found an admission by some lambardars, elicited from them in cross-examination, that they had developed friendly relationship with the concerned Wasil Baqi Navis. In some cases, the lambardar stated that they were "like brothers". On the one hand, the effort of the lambardar, in the above circum-- stances, would be not to annoy the Wasil Baqi Mavis and on the other, to win his confidence. Therefore, the claim of the lambardars that it was on account of the mutual goodwill and confidence that they handed over the amounts to the Wasil Baqi Navis for purpose of deposit in the Treasury, is neither impro--bable nor exaggerated.
38. The next question in the same context is as to why occa--sions arose for the lambardars to hand.
39. Over the amounts to the Wasil Baqi Navis for payment in the Treasury when it is admitted on all sides that under the rules it is his own duty to make the deposit in the treasury. A11 the learned counsel laid considerable stress on this aspect of the matter. Before I deal with the explanations offered by the lambardars, I may point out that the practice is not an innovation only in these cases. Therefore, the surmise in the argument that these appellants have been falsely implicated is of no avail. The case of Ashfaq Ahmad decided by this Court already referred to above in another connection is of a Wasil Baqi Navis from another district. There also the facts indicate that the lambardars used to hand over the amounts to the Wasil Baqi Navis for deposit in Government Account. The difference, however, is only of the katcha receipt which was issued in that case by the Wasil Baqi Navis. In these cases also, official witnesses have admitted that the practice was in vogue in other Tehsils also. Not only this but the Tehsildar also added that when he took over at Sheikhupura, he noticed this practice to have crossed all limits end stopped it by his own direction.
40. He, however, candidly admitted that the lambardars even then continued following the same practice but in another way, namely, that they then started handing over the money, of course with the tacit approval of the Tehsildar, to the District Nazli. The cross--examiner did not bring out the details in this behalf whether, after the initial handing over of the amounts to the District Nazir, the same are being deposited by the District Nazir or they are then taken back by the lambardars and they themselves deposit the amounts at a time convenient to them. Therefore, whatever the requirement of law may be, it hag been established by unimpeachable evidence that for a considerable time extending over years the practice had developed that the lambardars used to deposit the Government dues through the Wasil Baqi Mavis. But when the Tehsildar in Sheikhupura stopped it, the District Nazir has been substituted for the Wasil Baqi. Navis. In the evidence, innumerable admis--sions have been made by the lambardars that many amounts, other than those involved in these cases which they gave to the concern--ed Wasil Baqi Navis, were found to have been duly deposited in the Treasury. It appears that the Wasil Baqi Navis did not gain the confidence of the lambardars in a reckless manner. He duly deposited most of the amounts and thus continuously remaining in confidence of the lambardars managed the opportunity of misappropriating only some of the sums placed in trust with him. Considering therefore the question of the rule and the practice, I do not find any force in the argument of the learned counsel that the lambardars were not supposed or likely to hand over the amounts for deposit to the Wasil Baqi Navis. As to the expla--nations offered by the lambardars for particular occasions when they had to hand over the amounts to the Wasil Baqi Navis, I have not found the same as unreasonable.
41. On most of the occasions the reason mentioned (elicited in cross-examination is majority of cases) was that the lambardar having reached the Tehsil when all the formalities could not be completed before the close of the Treasury, was constrained to hand over the amount to the accused. The formalities, briefly stated, were preparing checking of are irsal by the Wasil Baqi Navis ; making of entries in his register and preparation of Deposit Forms in triplicate by the Siyaha Navis who sometimes would get the initials of the Tehsildar also ; making of entries at several places in the Treasury ; coming back to the Siyaha Navis for completing his Registers with regard to payment ; and the attendance before the Wasil Baqi Navis for the registration of the payment. The lambardar would definitely treat it as cumbersome inconvenient and time-consuming procedure; and if at the very initial stage he is told (as some witnesses categorically deposed) by the Wasil Baqi Navis that the formalities could not be completed within particular time available to the lambardar on a particular day, the latter would strongly feel tempted to entrust the money to the Wasil Baqi Navis and go back to his village instead of spending the night at the Tehsil Headquarters at his own expense. The number of occasions when such a situation would arise can be large and those involved in these cases are not at all disproportionate to the total entries made during the relevant period in the Registers Khatauni (yadasht wasooli part).
42. The next aspect to be dealt with is the modus operandi whether it was such that a lambardar would be taken in or, to use a more straightforward expression, duped by the machination of the Wasil Baqi Navis. In cross-examination, almost every lambardar has been asked a question as to why he did not ask for a katcha receipt and if he was not given a katcha receipt why he did not make a complaint. I have made enough comment on the question of confidence between the two parties. If the lambaraars in these cases, many of whom it may be mentioned appeared in more cases than one and thus their number is not very large, had developed good relations with the Wasil Baqi Navis so as to become his friends, asking for a katcha receipt would definitely have been considered as an impolite act on the part of the lambardar and he might then have incurred "the displeasure". It was, therefore, not necessary to ask for a katcha receipt in the background disclosed in these cases. Moreover, barring few exceptions the lambardars have had numerous such transactions with the Wasil Baqi Navis and they had, for their belief, sufficient material not to suspect the bona fides of the Wasil Baqi Navis. Firstly, in most of the cases the amounts were, in fact, deposited. Secondly, the lambardar would be shown or told with confidence that an entry had been made in the Register Khatauni, therefore obviously (for the purpose of the lambardar) the amount could not vanish in the thinness of misappropriation. And thirdly, no complaints were made about the earlier payments. In other words, the Wasil Baqi Navis had (at least to their momentary satisfaction) been faithful by not declaring them the defaulters. In these circumstances, even an extra careful lambardar would not ask for a katcha receipt. I have, therefore, come to the conclusion that the conduct of the lambardars does not arouse any suspicion so as to imagine that, they have deposed something which is inherently untrue. The modus operandi, was a perfect one. That is why the crime remained undetected for a considera-- bly long time. This also answers the contention of the learned counsel that the lambardars did not report the matter to the police for a long time. Before going on to the next question, I may mention here that in one case a lambardar pointed out to the Tehsildar that he had made the payment to the Wasil Baqi Navis for the purpose of deposit in the Treasury and that the latter, after the deposit alleged to have been made by him: had not given him the Treasury receipt. The Tehsildar sent him to the Wasil Baqi Navis who satisfied him by showing the entry in the Register Khatauni. The effect of the Tehsildar's statement, when appearing in defence stating that he did not remember such an incident, will be separately considered when dealing with that particular case. This instance shows how much the Jambardars depended upon the entries which were made by the Wasil Baqi Navis about the relevant amounts, in the Register Kuatauni.
43. The strongest argument, rather the main stay of the learned counsel for the appellants, was that the lambardars are accompli--ces ; therefore, their statements should tot be accepted without strong corroboration. They further argued that the entries in the Registers Khatauni have not been sufficiently proved as being in the hand of the accused ;therefore, it should be held that there is no corroboration. Initially I thought that the lambardars would be in the position of accomplices and that very strong corro--boration would be needed to make them worthy of belief. But after reading the evidence, and in fact the more I read their statements the more I got convinced, I am of the view that even without the proof of the handwriting in the Registers Khatauni conviction can be based on the statements of the lambardars without any so-called technical corroboration because their depositions, in the background of all the attending circumstances, are most convincing. I have already held in so many cases that the question of corroboration is not a mere technicality. It all depends upon the circumstances of each case whether corrobora--tion, and that too of what type and from what source, is needed or enough to come to a conclusion that a particular witness has told the truth. In strict sense, the lambardars are not accompli--ces. If the appellants had not been prosecuted for the misap--propriated amounts, the lambardars could have been proceeded against only for the recovery of the amounts. At the most, notices would have been issued to them and that too for the first time, for the payment of the relevant amounts 'there was no question of their "prosecution". They can be assumed to have known that the normal procedure would have been applied and at best they could be declared as defaulters. Otherwise too, if the lambardars wanted to misappropriate the amounts, it was easier for them to have said that they had not received the same from the land-owners (baqidars). It would be unimaginable for so many lambardars to falsely accuse a number of Wasil Baqi Navis of misappropriation and then to prove it. Some of them, to whom a suggestion was made that they had falsely implicated the appellants in order to save their own skin, have courageously stated that there was no question of their saving the skin because they were not' proceeded against by anybody at any stage and that it was only for the first time that they realized that some amounts had not been deposited in the Treasury when the police contacted them with the query whether particular amounts mentioned in Register Khatauni were, in fact, deposited by them. On straining their memories and checking with other colleagues and some odd notes on their own dhal bachhs (all elicited in cross- examination), they gave answers to the police on the basis of which the appel--lants have been challaned with regard to particular items. Their entire conduct does not at all indicate as if they deposed against the appellants on account of any fear of criminal involvement. As to 'whether they would have gone to the extent of falsely accusing important officials and taking future risks only for the sake of saving payments of the dues they had recovered, the fact that the lambardars have appeared in these cases against the three appellants cannot be ignored. It is not a stray case of an indivi--dual lambardar, trying to save himself from depositing small amount or, in order to cover up some misappropriation by him, accusing a small petty official like a peon. It is in evidence that on many occasions the Tehsil peons (some of those appeared as P. Ws.) used to collect the dues from the lambardars. The latter, therefore, could very easily accuse the peons of misappropriation, making them scapegoats The statements made by the lambardars have impressed me and I have no reason to come to a conclusion that in these cases the lambardars are to be treated as accomplices or that they have, for the above discussed reasons, falsely impli- -cated the appellants or that they had any motive to do so including that of making scapegoats of them in particular. That being so, I am of the view that no technical corroboration of usual type is necessary so as to believe the statements of the lambardars.
44. Having come to the above conclusion, it is not really neces--sary to consider the question whether, if need be there is any corroboration available to support the statements of the lambar--dais.
45. However, without conceding that corroboration is needed, I am of the view that there is enough and strong corroboration of their statements an to far as the material particulars are concerned.
46. Before dealing with the various items of corroboration, I may make mention here of an argument raised by all the learned counsel on the basis of a definite line of cross-examination on all the lambardars, that it was not possible for them to have remembered after such a long time as to what particular amounts were paid by them to particular accused persons. I have already, in the above background, noted the answer given by the lambardars in this behalf, that on the questioning by the police with regard to particular items they strained their memories and as the ques--tion involved was ascertainable at least with reference to dhal bachh they were able to recollect these particular amounts and then having been further told that they are not entered in the Treasury registers the instances got fixed in their mind and that is how they were able to remember these particular amounts, with this explanation, their answers displaying ignorance about particular questions relating to other specific amounts or occasions become explainable and convincing. In some cases, the larnbardars were asked further questions as to the time and other particulars of the relevant payment to the Wasil Baqi Navis and they gave definite answers. I, therefore, repel the argument of the learned counsel that, in the circumstances of these cases, the lambardars could not or were not capable of recollecting the amounts con--cerned paid to the Wasil Baqi Navis.
47. One other argument raised by the learned counsel may also be noticed here. According to them, the fact that the Supervisory Committee at the District level and the Audit parties did not point out the defalcation for a long time, can be taken due benefit of by the accused. Firstly, this argument is misconceived because the statements made by the Treasury officials showing that the amounts concerned had not been deposited have not been challenged before me. There is no other positive evidence that the amounts were in fact deposited. On the other hand, the defence evidence produced by one of the accused shows that even till the trial stage the amount of about rupees six/seven lacs which included the amounts in question was being shown as outstanding against Sheikhupura Tehsil. Therefore, the fact that the Audit parties or the Supervisory Committee did not detect the defal--cation does not show that it did not take place. Secondly, a witness appearing from the Audit side of the Revenue Department disclosed that the procedure for the audit in the Tehsils was not lambardari-wise. Therefore, if the Wasil Baqi Navis did not want the Audit party to detect a certain defalcation it would be possible that the Audit party might have been hoodwinked.
48. Thirdly, as the learned trial Judge has aptly remarked, the Wasil Baqi Navis is a king pin in the Tehsil administration. He was responsible for the preparation of the monthly statements of accounts.
49. Even though the same were to be prepared with reference to the record of the Treasury and of the Wasil Baqi Navis, as the latter was responsible for the preparation of the statements for the scrutiny of the Committee, he could very easily show the accounts of the Treasury as representing the latest position and thus would 'have saved from disclosure the entries made by him of the disputed amounts in his own record, namely, Register Khatauni. And lastly, I, for one, would not raise a legal presumption that the District Committee, or, for that matter, the Audit parties were so, efficient as to have neces--sarily detected the defalcation in spite of the machinations of the Wasil Baqi Navis, nor can I credit them with all the good qualities of a sound administrative machinery. Therefore, this argument is also without any force.
50. At this stage, I must make mention of the impression formed by the learned trial Judge of the depositions made before him by the lambardars. He distinctly held that it did not appear to him that the lambardars were under any pressure while making the statements against the appellants ; that they had any ulterior motive to do so ; that they stood the test of, as he put it, lengthy and scanty cross-examination ; and that they have "ring of truth".
51. While deciding individual cases, the Earned Judge has also dealt with some stray instances of added reliability. For example in case of one lambardar, the accused subsequent to the detection of the crime tried to placate him (the lambardar) by transferring souse. Land to his father-in-law. I may add to all these considera--tions and these noted in the earlier parts of this judgment, that if the lambardars needed only a scapegoat and were for that season deposing against the accused, there is no reasonable explanation as to why they have implicated the three Wasil Baqi Navis and not one, when it is evident that they worked in the same office. Moreover, the entries having been found in the Registers Khatauni of the Wasil Baqi Navis, if the lambardars were dishonest and needed only some scapegoat, these entries could have been utilized by them, against someone else more particularly a Treasury-mars or, for that matter, the Siyaha Navis who could lie made scapegoats with considerable case.
52. I now come to the corroboratory items of evidence in thesc cases. They are as follows :-
(1) The lambardars have categorically stated that no notice were sent to them for such a long time for the recovery of the amounts in question nor were they declared defaulters in that behalf. No rebuttal is found of this assertion either in the prosecution evidence or that the defence. Had notices been sent to the lambardars in this behalf and/or they had been declared defaulters or proceeded against, it was not difficult to prove this fact. The absence of any such proceedings for such R long time is, therefore, a strong corroboration of the assertion of the lambardars that the Wasil Baqi Navis assured them that the amounts had been deposited and they, on their own part, felt assured because they were not proceeded against for the recovery of those amounts. I have already mentioned that a Commissioner, at one stage, directed that the arms licences of the some of the defaulter lambardars should be cancelled. But that is not a relevant piece of evidence and it is not at all proved that the default was in respect of the amounts in question or that it related only to the recovery of the land revenue. It appears from the evidence that some lambardars were proceeded against for other reasons. An attempt was made by Yaqub appellant (in challan No. 1 out, of which Criminal Appeal No. 367 of 1970 has arisen) t o show that the lambardar concerned therein, namely, Ghulam Muhammad was declared a defaulter to the extent of Rs. 7,504 (See statement of Rana Amir Ahmad . W. 3), Apart from the fact that the witness admitted in cross- examination that the parentage and caste of Ghulam Muhammad lambardar is not written is the Register tadarkat (D. W. 3/1) which he produced in support of his statement, the fact remains that it is not at all shown whether the amount of Rs. 1,700, which according to Ghulam Muhammad (P. W.
53. 8) was paid to Yaqub appellant and was entered, according to Rana Muhammad Asghar (P. W. 6), in the Register Khatauni at page 9 against parat dakhila No. 259, dated 15-4-1957, was included in this total of Rs. 7,504 outstanding against the lambardar according to the Register tadarkat. Had it been true that the amount of Rs. 1,700 was included in the amount mentioned in the Register tadarkat, it was not difficult to prove the same by reference to the initial complaint by the accused before the Tehsildar and issuance of notices, etc., in that behalf. I am, therefore, of the view that even in that solitary case, out of all the items of misappropriation there is no evidence to come to a conclusion that the lambardar, when he stated "I was never served with a notice in respect of the disputed land revenue", was making a false statement. In other cases, either the lambardars asserted in examination-in---chief that they were not served with such notices nor were they proceeded against or the same assertion was elicited by the defence in cross-examination.
(2) The lambardars asserted that a mutual confidence had developed as a result whereof it was not unusual for them to make payments to the Wasil Baqi Navis for deposit in the Treasury. This assertion is supported by independent evidence of the Tehsildar who admitted that before he took over the charge, such a practice was prevalent in Tehsil Sheikhupura and that he tried to stop it.
54. Many lambardars have deposed that other amounts paid by them in similar circumstances to the Wasil Baqi Navisis were, in fact, deposited in the Treasury. All this shows that in a material particular with regard to the practice in the Tehsil and the conduct of the appellants qua the lambardars, the statements made by them are supported by independent evidence.
(3) Apart from the question of proof of the disputed writings (in Registers Khatauni) being in the band of the appellants, the fact that entries in these Registers were found to have been made contemporaneously with or soon after the payments were made to the appellants, is, by itself, a very strong corrobora--tion of the statements made by the lambardars. I have already dealt with, in some detail, the modus operandi of the accused. Formal assurance, according to the lambardars, about the deposits was given to them by the accused "by showing: or telling them about the entries having been made in the Regis--ters Khatauni" of the accused. Some lambardars stated that they, at the instance of the accused, saw the relevant entries in the Registers within a couple of days of the payments. Simi--larly, others stated that they were illiterate and their compa--nions saw the entries on their behalf in the Registers and yet another set of lambardats stated that when questioned about the receipt (parat dakhila) the Wasil Baqi Navis concerned told them that the entry had been made in the Register Khatauni therefore, they need not worry. If this would have been the bare statement of the lambardars, it could not have been treated as corroboration of their own statements qua the pay--ments. But there are some independent circumstances showing that the entries did exist in the Registers much before the dispute about the payments arose. Firstly, the persons who took charge from the accused of the office of the Wasil Baqi Navis also received the Registers in question in their charge. There is no indication in the entire evidence nor any suggestion was made that when they took the charge, any of the disputed entries was not found in the Registers. On the contrary, Rana Muhammad Asghar, who is one of the successors-Wasil Baqi Navis, emphatically stated in cross-examination that the entries existed in the Register when he took over the charge (See Criminal Appeal No. 358 of 197fl). Secondly, the Regis--ters were in the custody of the accused. If during that period someone else, say the lambardar or anyone on his behalf, would have surreptitiously made any entry in the then current Register Khatauni, the Wasil Baqi Navis would have very easily detected it.
55. But no such assertion has been made even is suggestion in the cross-examination. Thirdly, most of the totals made in red ink which for the purpose of working out the balance recoverable month- wise or in any case crop-wise, are such that the disputed entries appear to have been made before the total amounts were written in red ink. I asked all the learned counsel and Ziaul Haq appellant who was present in person being on bail, to point out any total which could show that any disputed amount was not taken into account in working out that total, but none of them pointed out any such discrepancy. Ziaul Haq also did some practical work in the Court room but was unable to show any discrepancy other than those of few paisas or rupees which, admittedly, were not material and could be due to mistakes in counting. This response from the defence side is despite the fact that in some cases there are erosions on totals and in some others, more totals than one are mentioned in red ink which, it has been explained, is due to normal differences, mistakes and correc--tions in accounts. I myself got some sample totals worked out by my staff. In almost all the cases, where there are some discrepancies, they are not relatable to the amounts in question. One or two, which could be imagined so relatable, are neutra--lized by other independent evidence; for example, the placing of the entry on the page at such a place that interpolation was impossible or the failure of the defence to challenge the statements made by the witness in that behalf. In Criminal Appeal No. 335 filed by Ziaul Haq, arising out of Challan No. 3, such discrepancy appears on page 93 of the Register Khatauni, but the handwriting when compared to the other similar entries appears to be the same. Moreover, the witness concerned, namely, Noor Ahmad Sarbrah lambardar (P. W. 4) was not cross-examined by the defence. I, therefore, assume that the discrepancy must be due to genuine mistake. This assumption is further strengthened by the fact that Ziaul Haq was present during the hearing of these appeals and he, after working out the total, categorically stated that there was no discrepancy ; and also by the fact, as already noted, that there was no cross-- examination presumably because the witness admitted that the appellant had given him a receipt for this amount. All this obviously shows that the entry in dispute was, in fact, made in the Register Khatauni on or about the day that the payment was made to the accused, arid that the discrepancy in the total is by sheer mistake.
56. Fourthly, it has not even been suggested in cross-examination, in statements under section 342, Cr.
57. P. C., or in defence evidence, as to who, if not the accused made the disputed entries. Seen in the light of the fact that normally the Registers were in the custody of the accused, if there is no assertion that the handwriting is of another definite person, it shows that the accused having known about the entries failed to show who made them. It appears likely that the accused must have used them for assuring the lambardars. In this connection, it may be mentioned that a suggestion was made to the Investigating Officer that the disputed entries were forged during the investigation. The points mentioned at firstly to thirdly all go against such a suggestion aid supposition. The officer categorically denied the suggestion and there is nothing to the contrary to show that the entries were in fact forged during the investigation. The Registers were duly taken into possession by the police from responsible persons. It is un--imaginable that they would have been forged by the police at such a large extent as to include all the disputed items of pay-- ments. In this connection, I , may mention here that Mr. Khalilur Rehman pointed out the fact that some of the entries give the appearance as if they were interpolated as some of them have been made in the same column where an entry already existed. He also pointed out the ink differences in respect of some other entries and I myself have found some (but very few) of these entries with some amount of over-writings. None of these circumstances is enough to rebut all the above inferences as they only show that the entries were originally, so made by the persons responsible for them. The true reason must be found in the mind of the accused concerned but visualization of some possibilities will not be out of place. A clever shrewd culprit might have made the entries at the initial stage in such a way as to give an appearance of inter--polation to make use of it subsequently ; or the culprit might have felt it necessary in particular cases to insert the entry at available place only when an occasion arose to satisfy a persistent lambardar. There is, at least, one example of a lambardar having pointed out to the Tehsildar that he was not given a receipt and when he was referred back to the Wasil Baqi Navis, on his insistence the latter satisfied him with reference to the entry in the Register. So many other possibi--lities can be visualized. Same would apply to the use of ink or the erasers. Considering all the above circumstances, I am of the firm opinion that the entries were made in the Registers Khatauni at or about the time that the payments were made by the lambardars to the accused concerned and that they existed much before the disputes arose. This, circumstance is a very strong corroboration of the statements made by the lambardars.
(4) The relevant entries are proved to have been made in the handwritings of the appellants. I may repeat here that eve if it would not have been so proved, the other items of corroboration, particularly the preceding one, would have bee sufficient. But ample evidence has been produced to show the appellants did make the disputed entries. Rana Muhammad Asghar and Ghulam Jilani, the colleagues of the appellants, appeared as prosecution witnesses to prove the handwritings.
58. Despite some obviously concessional statements made by Ghulam Jilani, the fact remains that both of them must have received documents purporting to be written by the accused in the normal office routine and, in any case, in the ordinary course of office business such documents must have been habitually submitted to them. The case is fully covered by section 47 of the Evidence Act which makes the opinion of such a person, who is acquainted with the handwriting of an accused person by whom the questioned document is supposed to be written or signed, a relevant fact. The present cases are also covered by the illustration under this section. I may add that with regard to Ziaul Haq, the specimen writings are available on the record. Despite an effort at disguise in the specimens, it can be seen even through naked eye that the handwriting is the same.
59. Ghulam Jilani P. W. Worked with Yaqub, appellant, so he must be fully acquainted with his handwriting ; and Rana Muhammad Asghar took charge from Yaqub therefore he must have come across innumerable writings in the hand of the latter at the time of and also after taking over of the charge. Therefore, both of them were fully qualified to give evidence about the handwriting of Yaqub appellant. Ghulam Jilani took charge from Ishaq appellant and deposed that he was conversant with his handwriting and that he was positive shat the writings in question were in the hand of Ishaq. The reasons given by the learned trial Judge for rejecting the defence evidence in this behalf are unexceptionable. After having carefully seen the disputed writings and considering the evidence in that behalf, I am of the view that the prosecution has proved them to be in the hand of the concerned accused persons. This, therefore; is also a strong corroboration of the statements made by the lambardars.
60. The above discussion would show that if corroboration would have been necessary in these cases, it is available in abun--dance. Looked at from whatever angle, there is overwhelming evidence against the appellants.
61. In Criminal Appeal No. 337 of 1970 Mr. Ijaz Hussain Batalvi pointed out that Allah Bakhsh lambardar (P. W. 3) claimed to have made a complaint to Tufail Haider Shah, Tehsildar but he has been contradicted by the latter when he appeared in defence. A careful reading of the statement made by Syed Tufail Haider Shah (D. W. 1 Challan No. 1 against Ziaul Haq) reveals that he could not, after such a long time, "recollect if ever any lambardar came" with a complaint against the accused. He also stated so far as I recollect there was no complaint against the accused about his integrity and honesty" and probably, in a similar way, also stated "no lammardar ever came to me to inform that he was leaving the amount of land revenue with Wasil Baqi Navis, as the Treasury time was over".
62. One thing is certain from the statement of Sh. Muhammad Aslam, Tehsildar (P. W. 5) that it was the practice not only in this. Tehsil but in so many Tehsils, that the Wasil Baqi Navisis "have been receiving land revenue". It is, therefore, not possible to accept the statement that no lambardar would have ever told Tufail Haider Shah, Tehsildar, that he had given the amount of land revenue to the Wasil Baqi Nevis. About the other matter, namely, the failure of Tufail Haider Shah to recollect any lambardar having come to him with a complaint against the accused, it would suffice to remark that Allah Bakhsh (P. W. 3) had not stated that he had preferred any formal complaint before the Tehsildar against the accused. He only stated "I had complained orally to the Tehsildar when the accused did not give me Treasury Deposit Receipt. Tufail Shah was the Tehsildar. I did not again go to the Tehsildar after the accused had told me that he had shown deposit of this amount in his register." The matter was so trivial that it was almost impossible for Tufail Haider Shah to have remembered it. I, therefore, find no force in the argument of the learned counsel that the statement of Allah Bakhsh has, in a material particular, been contradicted by Tufail Haider Shah. Learned counsel also contended that 'the statement made by Samuel, Sarbarah lambardar (P. W. 6) in the same case (Challan No. 1 against Ziaul Haq accused), that when he gave the amount to the accused Latif Fazal Din, the son of his lambardar, was present, has been contradicted by the latter who, when appearing as P. W. 7, categorically stated that Samuel "never entrusted any amount of land revenue to the accused" fn his presence. In another case also, Samuel appeared as a witness and made similar statement about presence of Latif Fazal Din but explained that subsequent to the transactions in question there were some disputes and he fell from the grace of the lambardar and that there was no more mutual confidence between Samual, the Sarbarah, and the family of the lambardar. Thus the rebuttal of the statement of Samual by Latif Fazal Din would become understandable. In these circumstances whether the statement of the son of the lambardar can be preferred over that of the Sarbamh lambardar, particularly when the latter is supported by entry in the Register Khatauni and other strong circumstances would have been a very serious question for consideration. But the factum of estrangement between the lambardar and the Sarbarah has not been brought in the cross-examination on the witness in this file (Challan No. 1). Therefore, I consider it safe to exclude the items of the amount (Rs. 1,680+ 80066=Rs. 2,480) mentioned by Samuel in his statement against Ziaul Haq in Challan No. 1. But, as is presently shown, this will not make any difference in so far as the offences charged and sentences are concerned. In this case, there is other evidence that the accused did misappropriate other amounts deposited by Shah Muhammad lambardar (Rs. 600) and Allah Bakhsh lambardar (Rs.2,150). I have already noted that there is no limit on the maximum sentence of fine. The reduction of the above amount qua Samuel, in the circumstances of the case, does not in my view entitle Ziaul Haq accused to any reduction in the sentence not even of fine. In coming to this conclusion, I have also taken into account the fact that the sentence of fine imposed by the trial Judge for offence under section 5 (21 of the Prevention of corruption Act has been set aside by me in these appeals. A possible argument that if the reduction of some amounts in some of the cases as a result of these appeals would have been present in the mind of the trial Judge he might have awarded a lesser sentence of, at least, fine, is neutralized by the fact that the learned trial Judge had himself awarded separate sentences of fine under the second count. Even if the correct position would have been before him, it is not necessary that he would have imposed a lesser amount of fine for offence under section 409, P. P.
63. C.
64. The next question is of the sentence in all the cases. The technical aspects thereof relating to the offence under section 5 (2) of the Prevention of Corruption Act and the sentence of fine vis-a-vis the exclusion of certain amounts from the main charge in some cases against the accused persons have already boon dealt with. On merits, I do not agree with the learned counsel that the facts that one of the appellants was allowed bail by this Court and the others have served a substantial part of their sentences, are sufficient grounds for reduction of sentence in these cases.
65. In my view, the sentences awarded by the learned trial Court are legal and proper. I may, however, remark that in such like cases, sentences of heavy fine as distinguished from excessive fine, should normally be imposed in addition to sentences of rigorous impri--sonment and subject to any order otherwise, the Court must immediately proceed to recover it. Sections 386 to 389, Cr. P. C., or, for that matter sections 63 to 70, P. P. C., are no bar to such an action. The Government should also, if not earlier now start making use of the provision contained in the Criminal Law Amend--ment Ordinance (XXXVIII of 1944) in order to safeguard the State exchequer and if need be, amendments in section 70, P. P. C. And section 386, Cr. P. C. May be initiated on the lines of the pro--visions contained in the said Ordinance. A copy of this judgment be sent to the Provincial Government.
66. In the light of the above discussion of all the relevant points involved in these cases and subject to the question of fine under section 5(2) of Prevention of Corruption Act, 1947, I find no merit in these appeals (other than the three-Nos. 348,359 & 362/1970--already accepted) which are accordingly dismissed. A formal summary of the result in these appeals is contained in Schedule II to this judgment.