Rashid Ahmad, Chairman Town Committee, Lalliani, moved a resolution (Exh. P. J:) on the 30th of April 1961, to the effect that Khushi Muhammad Akhtar Secretary of the Committee had dis-- appeared in the absence of acceptance of his resignation and he had some doubts about the misappropriation of Committee funds. Accordingly, the Committee passed the resolution (Exh. P.
J/1) wherein he was authorised to move the Government for audit of the accounts of the Committee and if after the audit some defalcation be found, the Chairman may proceed against the Secretary according to law. The accounts were audited by Abdul Aziz (P. W. 11) and his report disclosed that the Secretary had misappropriated certain amounts of the Committee. The Chairman wrote letter (Exh. P. H.) to the S. H. O. Police Station Lalliani and a formal F. I. R. (Exh. P. H./1) was registered on the 18th of October 1961. The case was investigated and the accused was challaned. He was tried by the Special Judge and convicted under section 409, P. P. C. Read with section 5 (2) of the Prevention of Corruption Act (II of 1947) and was sentenced to six months' rigorous imprisonment and a fine of Rs. 603.20. The amount of fine has already been deposited by the appellant. He has appealed against his conviction.
2. The main allegations against the appellant were that he realised the amounts. Of two cheques (Exhs. P.A. And P. B.) amount--ing to Rs. 300.00 and Rs. 308.56, respectively, for the purchase of stationery and deposit of Rs. 268.00 as amount of rent for the land leased out to the Lalliani Town Committee with the Military Estate Officer.
3. At the trial, the prosecution produced Muhammad Ismail (P. W. 2) who realised Rs. 300.00 the amount of cheque (Exh. P. A.) from the Bank and gave it to the-appellant. Similarly, Ghulam Rasul (P. W. 3) withdrew Rs. 308.56, the amount of cheque Exh. P. B. Which he handed over to the Secretary. Ghazanfar Ali, Manager, Central Co-operative Bank, Kasur, (P. W. 1) stated that cheques (Exhs. P. A. And P. B.) were cashed by his bank on the 10th of September 1960, and 9th of January 1961, and the amounts were paid to Muhammad Ismail and Ghulam Rasul, respectively, Muhammad Asghar Accountant, Military Estate Office, appeared as P. W. 4 and stated that 26 acres of land which was formerly used as camping ground were leased out to Lalliani Town Committee by the Military Estate Officer for four years at a yearly rent of Rs. 1,070.00. One of the conditions of the lease was that the Town Committee w4g to deposit Rs. 268.00 at the time of the execution of the lease deed. He received a letter (Exh. P. C.) from the Secretary of the Town Committee stating that the payment of the amount was delayed and he further disclosed that this amount was paid on the 24th of May 1961 vide pass-book (Exh. P. D.) which was pledged by the Secretary, Town Committee Mr. Afzal Husain Shah. Ilam Din Post-master of Lalliani (P. W. 5?Stated at the trial that on the 22nd of May 1961 a sum of R% 268.00 was deposited in the Saving Bank on behalf of the Town Committee for its pledge with the Military Estates. Abdul Rahman (P. W. 6), Accountant, Office of the Controller, Printing and Stationery, Lahore, produced, the ledger pertaining to the accounts of stationery Town Committee of Lalliani. At page 90 of the ledger a copy of which Exh. P. W. 6/A was produced, shows that there is only one entry dated the 23rd of December 1960, on which date the Town Committee, Lalliani deposited Rs. 118.06 for the purchase of stationery. No other amount was deposited for the year 1960-61. Mr. Muhammad Anwar, Assistant Manager, West Pakistan Government Press, Sales Depot (P. W. 7) produced the account book regarding the sale of stationery to the Local Bodies. Page No. 1672 of this register was allotted to the Town Committee Lalliani. He furnished a copy of this page (Exh. P. W. 7/A.) The entries in original were made by Syed Abbas Ali Shah whose handwriting was identified by him. This document disclosed that from 10-9- 1960 to 31-3-1961 no stationery of the amount of Rs. 300.00 in lump sum was purshased by the Town Committee, Lalliani. Afzal Husain Shah, Secretary, Town Committee, Lalliani P. W. 9) deposed that he took over as Secretary of the Town Committee on the 15th of April 1961. He found that 1/4th rent of a year amounting to Rs. 268.00 which the Committee was required to deposit according to the condition of the lease in favour of the Military Estates Officer, had not been deposited. He made report (Exh. P. E.) to the Chairman and on the 22nd of May 1961 he deposited the amount in the post office and pass-book (Exh. P. D.) was issued which was pledged with the Military Estates Officer. The case was investigated by Siraj-ud-Din A. S. I. (P. W. 12) and the accused was challaned.
4. During the trial Khushi Muhammad Akhtar tendered a sum of Rs. 603.20, the amount alleged to have been embezzled, and stated that he never embezzled any amount and in order to save himself from defending the case he had made this deposit. He further stated that be would move the authorities for the withdrawal of the case, After the close of the evidence statement of the appellant was recorded under section 342, Cr. P. C. He denied to have misappropriated a sum of Rs. 4.14 out of Rs. 26.00 which he obtained on the 14th of August 1960 for the expenditure on the celebration of the Independence Day vide voucher Exh. P. L. He stated that he spent the entire amount. The further denied to have misappropriated Rs. 11.81 from the impress amount of Rs. 36.00 on the 28th of August 1960. He stated that he spent the whole amount of Rs. 36.00 and left receipts in the office. He admitted to have received the amount Rs. 300.00 on the 10th of September 1960 from the Central Co-operative Bank vide cheque Exh. P. A. For the purchase of stationery, but he stated that he purchased the stationery. He also admitted that he received the amount of Rs.
308.56, which was withdrawn on the 9th of January 1961 vide cheque Exh. P. B. From the Central Co- operative Bank, Kasur, but he handed over the amount to the Chairman. He further stated that he did not deposit the security personally as it was not his duty to do so. The money was given to the Chairman for the deposit of security. He denied to have misappropriated any amount from the postal charges. He admitted to have withdrawn Rs. 47.23 for the purchase of stamps. He purchased the stamps and left Vie charge of the stamps with the Chairman. He admitted that the cash-book (Exh. P. C.) was in his hand, but denied the criminal misappropriation of Rs. 603.20 and stated that he was implicated on account of the party fiction in the Town Committee. He produced Muhammad Bashir (D. W. 1) and Abdul Karim (D. W. 2), the two members of the Town Committee in his defence. Both of them stfited that the appellant tendered his resignation on the 31st of March 1961 and he settled the accounts with the Chairman. Some money was found due from the appellant which he paid to the Chairman.
5. Rashid Ahmad Chairman (P. W. 10) admitted in his cross-examination that he did receive some money from the appellant at the time of his resignation which amounts were deposited in the bank, but he did not remember how much money was deposited. Exhs. P. R/l, P. R/2 and P. R/3 disclose that Rs. 600.00, Rs. 978.09 and Rs. 344.00 were deposited in the Bank. The first amount was deposited on the 21st of March 1961 while the rest of the two sums were deposited on the 25th of March 1961. These amounts coincide with the statement of the Chairman wherein he has stated that he realised certain amounts from the appellant at the time of his resignation. It was not the duty of the Chairman to accept the resignation of the Secretary. He referred it to competent authorities. Meanwhile, he suspected some defalcation in the accounts and moved a resolution in the Committee for the proper audit of the accounts and action against the Secretary in case any amount was found short. The accounts were audited by order of the competent Authority and it was found that a sum of Rs. 603.20 was short and the accused was proceeded against.
6. After going through the evidence in the case, there is no escape from the conclusion that the appellant misappropriated different amounts of the Committee totalling to a sum of Rs.
603.20. Learned counsel appearing on behalf of the appellant submitted that even if it was a misappropriation it was not a criminal misappropriation and as such, no offence was committed.
He cited Emperor v. Stewart (1) and Lala Baoji Mahale v. Emperor (2) in support of his submission that mere retention of the amount is not enough for conviction of a person. I am afraid, this view expressed by the learned counsel is not tenable. It was held in The State. v. Abu Raza (3) that prosecution was
(1) AIR 1927 Sind 28(2) AIR 1928 Bom. 205
(3) 'PLD 1959 SC (Pak.) 309 not bound to prove that the money received by the accused was actually converted to his own use. Various sums of money remained with the appellant. The obvious inference is that he converted them to his own use. The mere fact that the total amount was paid during the trial will not absolve him from his criminal liability. The defence version is of no assistance to the appellant in the case.
7. It is unfortunate that the appeal has come up for hearing practically after four years. It is undesirable to send back the appellant to jail after four years. While maintaining the conviction I reduce his sentence to one already undergone by him. With this modification the appeal stands dismissed.