' The appellant Bahadur Khan, who was a public servant at the relevant time, has been convicted by the learned Special Judge-cum-Enquir Officer Anti-Corruption, Hyderabad under section 409, P.
P. C. Read w it section 5(2) of the Prevention of Corruption Act, 1947. He has pee sentenced to five yea s' R. I. And to pay a fine of Rs, 50,000 or in defau thereof to suffer five years more R. I. The appellant being aggrieved b the above decision of his conviction and sentence has now appealed to this Court.
2. The relevant facts of the prosecution case briefly stated are them Dr. Irshad Muhammad (P. W. 6) was the Medical Superintendent of the T. B. Sanitorium, Kotri from 15-8-1966 and continued to hold that pot up to 25th August, 1969 when he was transferred. During all that period the present appellant Bahadur Khan was the Head Clerk-cum-Cashie in the office of the P. W. Dr. Irshad Mohammad in the Sanitoriun Salahuddin Ahmed (P. W. 2) was one of the Stewards in the T. B. San; torium. Abdul Majid (D. W. 2) was senior bill clerk in the Sanitorium an Abdullah (D. W. 3) was a peon of M. S P. W. Dr. Irshad Mohammad. 0 15-7-1969 Martial Law Inspection Team, Hyderabad headed by Lt.-Col. Agl Zalfiqar Ali Khan, who was the Chairman of this Inspection Team, desire to make a surprise inspection of the Kotri T. B. Sanitorium office as appears that P. W. Salahuddin Ahmed, the said Steward, had move applications which he had sent to the Director of Health and also, as appears, to the Martial Law Authorities complaining that he had lac received his leave salary Rs, 241.66 for the period 19-4-1969 to 18-5-196 when he was on leave, although he had made a demand for the salt from the office of the T. B. Sanitorium. Faqir Muhammad (P. W. 3 Sub-Inspector Anti-Corruption Establishment, Hyderabad was depute by Dy. S. P. Anti-Corruption Mr. Wazir Hussain Shah to join the said Martial Law Team in the inspection of record of the T. l Sanitorium, Kotri. Mr. Sirajuddin Ahmed Khan Inspector Police C. I. A. Had also accompanied him alongwith the Martial Law Tear Martial Law Inspection Team went to the T. B Sanitorium, Kotri whet they met the Medical Superintendent P. W. Dr. Irshad Muhammad. T1 Martial Law Inspection Team demanded the information about enchase] of the bill of Rs, 241.66 of the Steward P. W. Salahuddin. The Medic Superintendent Dr. Irshad Muhammad produced Salahuddin's file at took out office copy of Salahuddin's bill therefrom. The Medic, Superintendent sent for the Cash Book but found that there was r entry in the cash book about this bill. A Captain of the Martial La ream was also in the Team present there. The S. I. P. W. Faqir vlohammad secured the office copy of this bill of Salahuddin and also secured the cash book as per Mashirnama Exh. 7 which was attested by '. W. Dr. Irshad Muhammad and one Imdadally as mashirs. The nice copy >f Salahuddin's bill has been produced as Exh.
8. The cash book which has secured contains entries from 12-4-1969 to 14-7-1969. The monthly expenditure bill register which contained entries from 26-6.1969 to !4-7-1969 was also secured by the S. I. And has been produced as Exh.
11. ['he said S. I. Anti-Corruption did not and the relevant entry of the bill )f Rs, 241.66 of Salahuddin in the cash book on the date i,e, 16-6-1969 which book was maintained by the appellant. The S. I. Anti- Corruption as also produced the sanction of the bill of Salahuddin i,e, Exh. 8 as Exh.
9. He has then produced the cash book secured by him as Exh.
10. [hereafter he put the appellant under arrest wider the orders of the Martial Law Inspection Team and S. I. P. Anti-Corruption registered case against the appellant for defalcation of this bill Exh. 8 against the appellant and he recorded a First Report Exh. 12 in regard to this )fence. It appears from the evidence that this bill of P. W. Salahuddin or Rs, 241.66 was encashed by the appellant after getting it passed from the National Bank of Pakistan, Hyderabad which the appellant admits his statement under section 342, Cr. P. C. The S.
1. Anti-Corruption .Hen transferred the case of the defalcation of Salahuddin's bill to knti-Corruption Police, Dadu. In July, 1969 Inam Ali (P. W. 4) was he Circle Officer Anti-Corruption at Dadu. He received the case papers respect of Salahuddin's bill from Dy. S. P. Anti-Corruption, -lyderabad. He then re-registered the case at his end also. Thereafter, le came down to T. B. 6anitorium, Kotri where he examined P. W. )r. Irshad Muhammad Medical Superintendent T. B. Sanatorium. He also examined Senior Clerk D. W. Abdul Majid and Peon D. W. Aminullab. Le also interrogated the appellant who was in custody already. P. W. Nam Ali then made enquiry in writing from Manager National Bank of 'akistan, Risala Road, Hyderabad by a letter to him which he has noduced as Exh.
14. He received a reply from the said Manager which tas been produced as Exh.
4. In this letter of reply the Bank Manager las stated that on 26-4-1969 three bills bearing No, (1)1723) for Rs, 241.(6, 2) bearing No, 1724 for Rs 344 and the (3) bearing No, Nil for to 40,894 27 were encashed and paid to Bahadur Khan (appellant) who rad identity card No, ;730 It might he stated here that the appellant his statement admits having cashed all these three bills just mentioned and received the total amount also just mentioned above from the National bank of Pakistan on 16-6 1969. Circle Officer P. W. Inam Ali in the meantime continued to make efforts to obtain the original bill of Salahuddin. In then received a letter from the Anti-Corruption Officer, Hyderabad ,bout the defalcation of Rs, 40,890.27. He produced this letter which vas in fact the letter written by the Director Health Services Mr. Qazi the Anti-Corruption Officer, Hyderabad on 3rd September, 1969 and me has produced this letter as Exh.
15. Alongwith this letter was also closed the copy of letter written by Medical Superintendent P. W. )r.
Irshad Muhammad dated 6-7-69 to Dr. A. M. Qazi, Director Health .Ervices, Hyderabad Region, Hyderabad. As these letters disclosed the 'defalcation of Rs, 40,894.27 by the present appellant the Circle Officer '. W. Inam All registered a case for this defalcation against the appellant. Le produced the report of this case as Exh. 26 and it was registered on. 0-10-1969 at 2-30 p.m. P. W. Inam All then made enquiries from P. W. Dr. Irshad Muhammad about the last mentioned defalcation as well as from senior clerk D. W. Abdul Majid, clerk Allah Bux D. W. 1 and peon D. W. Aminullah. He then received the three bills amounts whereof totalled up to Rs, 41,749.93. He then took all these bills of P.
W. Salahuddin and that of WAPDA which was for Rs, 40,894.27 against the T. B. Sanitorium, Kotri, and he verified these facts from all concerned. The Medical Superintendent P. W. Dr. Irshad Muhammad had been transferred by this time. P. W. Inam Ali then recorded further statement of Peon D. W.
Aminullah and D. W. Abdul Majid, senior clerk. He was himself then transferred in April 1971. He also produced in evidence two orders for permission to investigate the two registered cases of the above mentioned two defalcations detained from the Civil Judge and F. C. M., Kotri and another from Resident Magistrate, Dadu which he has produced as Exhs. 17 and 28. On 1-6-1972 Anti- Corruption Officer, Akhtar Muhammad took over charge at Dadu. He also continued the investigation of the two said cases further. He has produced in his evidence a letter of WAPDA who had reported that they had not received payment of Rs, 40,894.27. This letter he has produced as Exh.
20. He then examined P. W. Salahuddin and also produced two sanctions for prosecution orders of the appellant for the registered cases as Exhs. 21 and 22. He then challaned the appellant in these cases on 19-7-1971 to the trial Court. At the trial the prosecution examined six witnesses, namely Affan Ahmed (P. W. 1) Manager National Bank of Pakistan, Risala Road Branch, Hyderabad, Steward Salahuddin Ahmed (P. W. 2) S. I. P. Anti-Corruption, Hyderabad Faqir Muhammad (P. W. 3), Anti- Corruption Circle Officer, Dadu Inam Ali (P. W. 4), another Anti-Corruption Circle Officer Dadu Akhtar Muhammad (P. W. 5) and Medical Superintendent of the T. B. Sanitorium, Kotri Dr. Irshad Muhammad (P. W. 6) after consolidating the two cases together.
3. After the evidence of the prosecution was closed the statement on the appellant under section 342, Cr. P. C. Was recorded. The appellant denied his guilt and professed innocence. He, however, admitted that at the relevant time he was Head-clerk and Cashier as well in the office of T. B.
Sanitorium, Kotri. He also admittep that WAPDA electricity bill for Rs, 40,894.27 which is Exh. 24 on record was received in the office of the T. B. Sanitorium on 31st May, 1969. The appellant denied that he had prepared the bill for payment of Rs, 40,894.27. According to him Peon Aminullah had brought the authority of this bill for encashment of the said amount at his house as he was on casual leave on 16-6-1969 and the peon had also brought two other bills as well. The appellant admitted that he got the bill for Rs, 40,894.27 encashed and he further admitted that he had got the other two bills encased as well on the same date. When questioned as to why he had not made an entry regarding this bill on payment to WAPDA in the cash book, Exh. 10, he gave his own version of the whole matter which it will be useful to reproduce in extenso in his own words and is as under:- "I was on casual leave from 14-6-1969 to 17-64969. On 16-64965 Aminullah came to me at my house. He gave these three bills one of WAPDA, second of Salahuddin Steward 241.65 and Allah Bui for 344. He informed me that these bills to be cashed as orderer by the Sahib, though I told him that I was on leave, he told me that the WAPDA will disconnect the electric connection for non. Payment of the bill. I went to Treasury Office with Aminullah My house is near the bank. I told Aminullah that I will not pay him so much money. 1 told him that he may go and inform Dr. Sahib Irshad Muhammad that the bills had been cashed and the cash was with me. Aminullah went away to Sanitorium. After one hour and half Dr. Irshad Muhammad our Sahib came to my house in his car alongwith Aminullah. He demanded the cash of the bills. I handed over the cash of these three bills to Dr. Irshad Muhammad in the presence of Aminullah. Dr. Irshad went back with all the money. I resumed duty on 17-6-1969. I wanted to make entry in the cash book on that day. I demanded the office copy of the bill and receipt of bills, for payment to all concerned. Dr. Irshad Muhammad told me that he had paid up the bill of WAPDA and after clearing the remaining two payments he will hand over the receipts to me alongwith office copies of the bills for making entries in the cash book. Dr. Irshad Muhammad asked me to make the entries in the cash book and he will sign but I did not agree to do so. 1 had made the entries on 16-6-69 for the receipts made over to me, on that day with regard to X-Ray fees amounting to Rs,
5. The M. S. Signed and initialled that entry."
4. In a further question that he had maintained the bill register but in had not made the entries of two bills namely, the WAPDA bill for ks. 40,894.27 and Steward Salahuddin's leave bill for Rs, 241.66, he eplied. That the bill register with entry Exh. 27 was maintained by the bill :Ilerk Abdul Majid. He also said that there was entry of leave salary bill in the bill register. He then stated that it was the duty of Abdul Majid clerk to stake the entries of all the bills including this bill of WAPDA. He then tided that the original bill for WAPDA for payment to WAPDA is neither nepared by him nor the Accounts Clerk Abdul Majid. In answer to a further question that he had misappropriated Rs, 40,894.27 without making the payment to the WAPDA towards electric charges he replied in the negative ind said that he had handed over the cash to Dr. Irshad Muhammad. To another question to the effect that the Martial Law Team paid the visit to the Sanitorium suddenly and called upon him (the appellant) in the presence of Medical Superintendent and directed him (the appellant) to produce .He cash book which the appellant brought under the orders of the Medical Superintendent and then he was taken into custody, he said that he Martial Law Team visited their hospital and called upon him to show he entry in the cash book which he showed to them and it was the entry an 16-6-1969 in the cash book with regard to Salahuddin. The appellant .Hen categorically admitted that he had cashed and collected the amounts an the three bills Nos. 1723 for Rs, 241.66 another bill for Rs, 344 and the third bill for Rs, 40,894.27 from National Bank of Pakistan on 16-6-1969 under Identity Card No, 1780 as revealed by Manager, National Bank of Pakistan, Risala Road, Hyderabad, Mr. Iffab Ahmed in his widened to which question he replied in the affirmative.
When asked is to why he had not entered the WAPDA bill in the Contingent Register maintained by him in the month of June, 1969 he stated that his explanation was the same as regarding the cash book for not entering his amount of WAPDA Bill in contingent register. In reply to the question as to why the prosecution witnesses deposed against him he stated that Dr. Irshad Muhammad alone has made statement to save himself and in one also had implicated him.
5. Before the statement of the appellant was recorded by the trial Court under section 342, Cr. P. C.
P. Dy. S. P. Who was handling the prosecution, made a statement in writing Exh. 28 to the trial Court to the effect that he had given up P. Ws. Allah Bux, Abdul Mak and Aminullah being, according to him, formal witnesses on the point on which evidence had already come up on record. Then appears at application having been made by counsel for the defence as Exh. 2c wherein it was requested to the trial Court that the accused (appellant would require all these three P. Ws.
Aminullah, Allah Bux and Abdul MO( for defence.
6. The appellant in fact examined these witnesses in defence who are to repeat, Allah Bux (D. W. 1), Abdul Majid (D. W. 2), and Aminullal (D. W. 3).
7. The prosecution have examined six witnesses who are Banl Manager Affan Ahmed (P. W. 1), Steward of the Sanitorium Salahuddii Ahmed (P. W. 2), Circle Officer Anti-Corruption ham Ali (P. W.
4) another Circle Officer Anti-Corruption Akhtar Muhammad (P W. 5) an( Medical Superintendent of the T. B. Sanitorium concerned Dr. Irshal Muhammad (P. W. 6). The prosecution case mainly rests on the solitar: evidence of P. W. Dr. Irshad Muhammad and other documentary evidence which relevant documents shall be referred to in discussion of the evidence presently.
8. It will be seen from the statement of the appellant Bihadur Khai as per an explanation given by him therein giving out his version that III admits having encashed three bills from the National Bank of Pakistan Hyderabad on 16-6-1969, which bills are:-
(1) Bill No, 1723 for Rs, 241.66 which were arrears of leave salar: of Steward P. W. Salahuddin Ahmed for the period 29-4-1969 to 18-5-1969 (one month's pay),
(2) Bitl No, 1724 for Rs, 344.00 which was the G. P. Fund of the employee of this Sanitorium of Allah Bux (P. W. 1), and
(3) the bill of the WAPDA electric charges without number amount in to Rs, 40,894.27; ' and they totally involved the amount of Rs, 41,479.93. At the time the appellant encashed the above referred to three bills Peon of his T. E Sanitorium, namely, Aminullah (D. W. 3) was also along with him as I was the practice of the office of the T. B. Sanitorium that when the amount of the bill was less than Rs, 1,000 00 the appellant himself used to go an draw the same from the Bank but if the amount was more than Ks. 1,000.0 to be drawn from the Bank, he had to take the peon with himself which facts have been stated by P. W. Dr. Irshad Muhammad, Media Superintendent himself in his examination-in-chief Peon D. W. Aminulla also says that he had accompanied the appellant on 16-6-1969 when all the three bills mentioned above were cashed by the latter from the Nationz Bank of Pakistan. The explanation of the appellant further is that after encasing the above three bills he brought the total amount of Rs, 41,479.9 to his house alongwith the Peon D. W. Aminullah whom be refused to give this huge amount of money as perhaps the latter was a peon and was not being trusted by the appellant with so large a sum of money. The appellant further says in his statement that he had told the Peon P. NI Aminullah that he may go and inform the doctor Sahib (Dr. Irsha Muhammad) that the bills had been cashed and the cash was with him (the appellant).
D. W. Peon Aminullah also says in his evidence that he had informed the Medical Superintendent that is Dr. Irshad Muhammad that all the three bills had been cashed and the money was lying with Bahadur Khan the appellant. Thereafter, the appellant's version is that the Medical Superintendent P. W. Dr. Irshad Muhammad himself came in his car alongwith the Peon D. W. Aminullah and recovered the entire total amount of Rs, 41,479.93 which he had encashed on the three bills mentioned above from the National Bank of Pakistan and the doctor went away in his car. The question, therefore, on this version of the case by the appellant that falls to be determined is whether the version of the appellant just mentioned above is reasonably true or are the allegations made in the prosecution case against the appellant true or correct? In deciding this question the learned counsel for the appellant has cited a case of Mir Ahmed v. The State (1), principle laid down in which cases according to him be kept in view by this Court in deciding upon the correctness or otherwise of the version of the defence as put forward by the appellant. Their Lordships of the Supreme Court in this reported case have observed as under:- "Where there is a question of the correct treatment of a plea in defence which is of the factual nature and is supported by evidence and circumstances the decision must not be taken in relation to the accused's special pleading, but must rest on examination of the entire evidence, and if thereafter the Court is of the opinion that there is reasonable possibility that the defence put forwarded by the accused might be true, this opinion reacts upon the whole case, and the accused is entitled to the benefit of such doubt, on the ground that the prosecution has not proved its case beyond reasonable doubt."
So that in view of the above principle enunciated by the supreme Court it is to be seen whether the defence of the appellant might be true or not?
9. In the defence version put forward by the appellant the appellant does not stand alone on his own explanation under section 342, Cr. P. C. But he has led defence evidence of three witnesses, whose names have already been mentioned above and he stands corroborated by the defence evidence also as will be discussed presently.
10. It is admitted by P. W. Dr. Irshad Muhammad, the Medical Superintendent of the Sanitorium in his cross-examination that the WAPDA electricity bill of Rs, 40,894.27 was not prepared by the appellant, but it was prepared by one of the clerks either Abdul Majid (who has been examined as D. W. 2), or Qureshi Yousaf Ali. But D. W. Abdul Majid in his evidence says that he was the senior bill clerk and used to prepare the bills for making various payments but he has not prepared the WAPDA electric bill in question. The appellant also in his statement denies that he himself has prepared the WAPDA electricity bill in question. In fact D. W. Abdul Majid also says that he had prepared the other two bills, namely, regarding the payment of arrears of salary to P. W.
Salahuddin and that of G. P. Fund of Allah Bux and these two bills were also not prepared by the appellant. So that all the three bills which have been {{FOOT NOTE}}
(1) PLD 1962 SC 489 {{FOOT NOTE}} ' admittedly cashed by the appellant on 16-6-1969 from the National Bank of Pakistan at Hyderabad have not been prepared by the appellant. In fact the duty for preparing the bills for payment in the Sanitorium was of D. W. Abdul Majid, who has stated so in his evidence.
10A. It is also an admitted position as deposed to by P. W. Dr. Irshad Muhammad that on 16-6-1969 when the three bills in question were encashed by the appellant the latter was on casual leave. In fact the appellant appears to have been on Casual Leave from 14-6.1969 to 17-6-1969 when on the last mentioned date he resumed his duty as explained by him in his statement under section 342, Cr. P. C. In support of this fact that he was on Casual Leave on these three days, Allah Bux (D. W. 1) has produced casual leave Account Register and the relevant entry regarding the casual leave taken by the appellant in that year which entries are made at page 44 of this Register and these relevant entries on this page are produced by him Exh.
33. On this page appears the entry that the appellant was on casual leave from 14-6-1969 to 17-6- 1969 and bears the initial of P. W. Dr. Irshad Muhammad, the Medical Superintendent. D. W. Allah Bux has also said that this entry is in the handwriting of Dr. Irshad Muhammad himself who has put initial against all the entries on this page No, 44 including this relevant entry of the three days casual leave of the appellant in question so that as the appellant was on casual leave on the 16-6- 1962 he would naturally be at his house and not attending to any work in the office. Peon of the T. B.
Sanitorium D. W. Aminuallah has, inter alia, deposed in his evidence that he was asked by Dr. Irshad Muhammad, Medical Superintendent to sign the WAPDA bill of electricity and took the three bills to Bahadur Khan (appellant) at his house. He was given three bills to get the cash from the Bank after getting the same passed from the Treasury. According to him the Medical Superintendent also told him that the appellant was on leave at that time and that he should hand over the bills to the appellant to get them passed and cashed as the WAPDA was to be paid the bills immediately for there was danger of disconnection of light. This witness goes on further to say that he met the appellant at his house near Karachi Hotel which was also near the National Bank of Pakistan, Hyderabad and handed over the three bills in question to him. The appellant signed the three bills and then he got these bills passed and encashed. The cash was taken in charge by the appellant and was not handed over to this witness, who was told by the appellant that he may inform the Medical Superintendent that the cash was lying with the appellant. This witness then left the appellant at his house with the cash. Thereafter, this D. W. Aminullah peon says that:- "I went to Sanitorium Kotri. I informed the M. S. That all the three bills had been cashed, and the money was lying with him. The M. S. Put me in the car and took at the house of the accused. He called accused Bahadur. The accused gave all the money to the M. S. Dr. Irshad Muhammad. We returned to the Sanitorium."
' He also further says that they went to the office where D. W. Allah Bux asked him about the bill. He (this defence witness) gave him the information that the bill was cashed and collected and the money was lying with the Medical Superintendent. This defence witness Aminullah Peon in his cross-examination has not been questioned as to the fact whether in fact the total amount in question was not handed over by the appellant to P. W. Dr. Irshad Muhammad and that the latter had not gone with him to the house of the appellant. On this aspect of the matter he has not at all been cross-examined. His entire cross-examination clearly leaves an impression on my mind that his credit has not been shaken at all and, therefore, there appears no reason why he should not be relied upon. In fact he was a prosecution witness cited in the challan sheet and given up by the Prosecutor by his application Exh. 28 which has also been referred to earlier therefore, in my opinion, he continues to retain the character of a prosecution witness as well. In fact the investigating police has bungled in the investigation by not getting the statement of this defence witness Peon Aminullah recorded under section 164, Cr. P. C. As otherwise if he was not telling the truth he would have been cross-examined with that pre-trial statement of his and could have been shown to be a witness who was not telling the truth. But in the absence of such a statement and his evidence that has gone on record it leaves a clear impression on the mind of this Court by reading his evidence that what he says might well be true and this supports and corroborates the version of the appellant that he has given the entire money of the three bills cashed by him to the Medical Superintendent P. W. Dr. Irshad Muhammad.
11. In order to corroborate this defence version further the learned counsel for the appellant has pointed out certain two more facts on record which also go to corroborate this version, in my opinion. The first of these facts is that D. W. Allah Bux whose bill No, 1724 for G. P. Fund of Rs, 344.00 was also encashed by the appellant, this amount was paid by the Medical Superintendent P. W.
Irshad Muhammad to this witness as the witness himself says this in his evidence. On this aspect he deposes that he was to get his G. P. Fund bill of Rs, 344.00 in June, 1969 and it was passed and encashed on 16-6-1969. He was paid this amount on 16-6..1969. He produced the office copy of this bill as Exh. 34 which is signed by him as he admitted, in token of having received the payment. He further continues, when Aminullah (Peon) returned on that day (16-6-1969) from the Treasury this witness asked him for his bill. He (Aminullah) told him that his bill was passed. This witness then went to Dr. Irshad Muhammad at about 12-00 to 12-30 in the office. His Sahib Dr. Irshad Muhammad on demand of the bill by him asked him to sign the office copy of the bill and he complied with that direction. Dr. Irshad Muhammad then promised to give him the amount of the bill. This witness signed the bill in token of acknowledgement. His Sahib (Dr. Irshad Muhammad) told this witness to wait for sometime for payment. This witness then went back to his office and the office time was over. His Sahib (P. W. Dr. Irshad Muhammad) had left the office and this witness returned to his quarter. He then went to the Sahib at his bungalow at 2-30 or 3-00 p.m. He knocked the door and Nawab came out. He was working with his Sahib. This witness told Nawab to inform the Sahib about his arrival to receive the amount of the bill. Nawab returned after sometime with the money mounting to Rs, 344.00. He received his dues and departed. It has Seen admitted by P. W. Dr. Irshad Muhammad that D. W. Allah Bux 'as living in the same colony as his. That is why it appears that D.
W. Allah Bux had been able to go to the bungalow of P. W. Dr. Irshad Muhammad for receiving the amount of his bill of G. P. Fund. The Toss-examination of this defence witness is also such that his credit has iot been impeached and, therefore, what he says appears quite believable and true. His evidence, therefore, goes to show that unless P. W. Dr. Irshad Muhammad had received the total amount from the appellant as alleged by the latter P. W. Irshad Muhammad would not have paid D.
W. Allah Bux the amount of the latter's G. P. Fund bill. In fact there is an entry in the expenditure bill register Exh. 11 which shows that G. P. Fund of D. W. Allah Bux was paid to him and this bears the initial of P. W. Dr. Irshad Muhammad in the column for initial of the Medical Superintendent which fact was put in cross-examination to P. W. Dr. Irsl,ad Muhammad and he admitted that this initial on Exh. 27 was his. This answer also corroborates that the G. P. Fund amount on the bill of D. W. Allah Bux was paid by P. W. Dr. Irshad Muhammad which fact appears to be reasonably true and believable and this, I hardly need repeat, goes to corroborate the version of the defence. In fact P.
W. Dr. Irshad Muhammad in his cross-examination says:- "I do not remember if this payment of Rs, 344.00 was made in the absence of the accused by me to Allah Bux."
' Therefore, it can very well be said that even P. W. Dr. Irshad Muhammad does not deny categorically having paid G. P. Fund bill amount to D. W. Allah Bux which also strengthens the defence evidence of this witness Allah Bux.
12. The next fact which according to the defence makes the appellants' version probably true is that according to it as admitted by P. W. Dr. Irshad Muhammad in his cross-examination as he has said that there was entry in the cash book on page 3 dated 12 4-1969 showing the cash in hand of Rs, 32,714 14 towards Miscellaneous amount. According to the doctor this amount had accumulated to Rs, 39,230.64 by 25-6-1969. The doctor has also said in his evidence that he through his cashier was not supposed to keep big amounts in hand of the cash and they were to be deposited in the Treasury. The doctor in his further cross-examination has said that they deposited all the amounts on 26-6-1969 under the advice of Martial Law Authorities, that means the amount of Rs, 39,213.64 included. Thus, the defence taking advantage of this fact advances the plea that this huge amount of money was already misappropriated by Dr. Irshad Muhammad and in order to make good this loss he had substituted the amount of money secured by him from the appellant which the latter alleges he gave to him on 16-6-1969 when the doctor had come to his house to collect the amount covered by these three bills in question. However, I think this insinuation to my mind, may not be true. Therefore, this circumstance is of no avail to the defence nor corroborates its version.
13.According to the learned counsel who appeared on behalf of the State before me and the learned trial Judge the appellant when he was called by the Medical Superintendent P. W. Dr. Irshad Muhammad at the time when the Martial Law Tedm had visited the Sanitorium on 15-7-1969 i,e, after the date of encashment of the three bills in question, the appellant at that time had not disclosed to the Martial Law Authorities that he had paid the amount encashed by him on the three bills in question to P. W. Dr. Irshad Muhammad, therefore, his silence on this part was an adverse conduct against him which goes to prove his guilty mind and the present criminal act alleged against him. But against this argument the contention has been advanced by the learned counsel for the appellant that this conduct of silence alleged against the appellant at the time when he Martial Law Team visited the Sanitorium has not been put to the appellant for his explanation to him under section 342, Cr. P. C. When his statement was recorded, therefore, this circumstance of conduct as alleged cannot be taken as an incriminating circumstance against the appellant as le might well have given an acceptable and reasonable explanation of this alleged conduct of his if it had been specifically put to him by way of a lefinite question. I agree with the contention of the defence as such this conduct of silence on the part of the appellant cannot be taken as an incriminating circumstance against him as contended by the (appellant's Next the learned counsel for the State has argued that the vledical Superintendent P. W. Dr. Irshad Muhammad would not go to the house of the appellant and also take his peon with himself so that the attar might appear as a witness against him when he wanted to have the amount of money from the appellant as alleged by the latter in his lefence version, therefore, this story ought not to be believed. I am afraid see nothing wrong in P. W. Dr. Irshad Muhammad's going to the house )f his subordinate in his own car alongwith his peon P. W. Aminullah as t might well have been feared by P. W. Dr. Irshad Muhammad that if he appellant keep away with himself a huge amount of money like it. 41,479.93 in his house it might be stolen at night time and he seems on have taken the peon with himself in order to show to him the house of the appellant the location of which could riot have been known to P. W. )r. Irshad Muhammad himself earlier, therefore, the version of the defense this aspect of it appears to be quite probable as this contention has been Lelvanced by the learned counsel for the appellant.
14.Considering the defence version as supported by the defenc evidence and other circumstances as discussed above I think the defence person put forward by the appellant might well be true and, therefore to is entitled to be acquitted for the charge for which he has been convicted.
15.There is, however, one small aspect in the statement of the appellant regarding a circumstance of fact which I might refer to and Which needs explanation so as to completely accept the version of the defence s put forward by the appellant. That fact is that the appellant in his statement towards the end has stated:- "I had made the entries on 16-6-1969 for the receipts made over to me on that day with regard to X-Ray fees amounting to Rs, 50.00. The M. S. Signed and initialed that entry." 'his entry of the said date appears in the Cash Book on the dated 16-6.1969 and relying on this entry the learned trial Judge in his judgment has observed that on the fateful day, that is on 16-6-1969, when the three bills 'ere cashed by the appellant he seems to have come to the office of the '. B.
Sanitorium, therefore, he has made this entry of receiving the X-raises as entered in the Cash Book.
According to the learned trial Judge his fact also belies the defence version. But regarding this circumstance he learned counsel for the appellant has argued that the learned trial Judge has not correctly taken down the statement of the appellant by writing, "I had made the entries on 6-6- 1969 for X-rays fees of Rs, 50.00," s according to him, the learned trial Judge in his anxiety as to the rosecution case to be proved has become hostile and written down the date as 16-6-1969 for having made the entries of the X-rays receipt book. The learned counsel also further argued that this entry could have been made by the appellant on the next day that is 17-6-1969 when he resumed his duty after the casual leave was over and making such entries on the days when the appellant was on casual leave regarding receipts of money in the cash book is also supported by other entries on similar days of casual leave on which the appellant was on those days. In support of this contention of his he has referred to page 44 of Exh. 33 of the casual leave Register which is the casual leave account of the D. W. Allah Bux that all these entries of casual leave have been made by P. W. Dr. Irshad Muhammad himself and some of these entries show that the appellant was on causal leave on 9-5-1969, 16-5-1969, 25-5-1969, 28-5-1959, 5-6-1969 and again on 12-7- 1969. The learned counsel has shown in the cash book which has been maintained by the appellant from 12-4-1969 that on these dates of casual leave specified just above he had made entries of receipts of amounts as shown by him in the entries on all these dates of his casual leave.
This circumstance also supports the explanation as put forward by the learned counsel for the appellant as to how the entry of X-rays fees amounting to Rs, 50.00 appears in the Cash Book on the fateful day dated 16-6-1969. This aspect of the defence also, in my opinion, appears to be quite correct and, therefore, this part of the statement of the appellant under consideration cannot be treated as an incriminating circumstance against him.
17. Before I sign the judgment I like to remark that a huge amount of the two bills of Rs, 241.66 including the WAPDA electricity bill of Rs, 40,894.24 has been lost to the Government on account of the negligence of P. W. Dr. Irshad Muhammad as is clear from the evidence on record. The evidence shows that this WAPDA electricity charges bill was sent by the WAPDA on 22-5-1969 to the T. B. Sanitorium where it was received on 31-5-1969. The endorsement on this WAPDA Bill Exh. 24 shows that it was passed for payment of the amount demanded in it by P. W. Dr. Irshad Muhammad on 2-6-1969. After this date the bill for payment of these charges of the WAPDA bill was prepared subsequently and P. W. Dr. Irshad Muhammad seems to have forgotten about having the bill for payment been prepared as he says in his report which is a letter Exh. 38 dated 26-7-1969, even after the date when the three bills aforesaid were encased by the appellant in this case, that the bill of Rs, 40,894.27 (WAPDA Bill) was not at all in his knowledge and there was no office copy of this bill in the record of his office. This letter he has sent to Dr. A. M. Qazi Director Health Services, Hyderabad Region, Hyderabad, that is on the said date that is 26-7-1969 which is even after the date when the Martia Law Team visited the T. B. Sanitorium office on 15-7-1969, and I do no understand how Dr. Irshad Muhammad had forgotten about the payment of the Bill of the WAPDA charges after he had sanctioned payment fan it from 2-6-1969 onwards although he says in his own examination-in-chief that it was brought to his notice by the Martial Law Team that other bill of Rs,-40,894.27 was also drawn by the appellant. In any case it appear that he has remembered about this bill after 26-7-1969 which conduct on his appears to me to be suspicious.
It is alleged on this account by till learned counsel for the appellant that this suspicious conduct of the doctor also supports the version of the defence. However that may be, it I quite plain and patent that there has been gross negligence on the part on Dr. P. W. Irshad Muhammad in not seeing that the WAPDA Electricity bill of Rs, 40,894.27 was paid in due time and he is to be responsible for it. In my opinion, thereby he has exposed himself to departmental action which I recommend should be taken against him for the defalcation of such a huge amount of Government money. However, on the evidence and circumstances appearing on record of the prosecution as well a defence it is quite clear that the appellant is entitled to the benefit of doubt.
18. For the foregoing reasons I acquit the appellant and set aside I is conviction and sentence. He is in jail and shall be released forthwith 11- unless required to be detained in connection with any other matter.
' Copy of this judgment will be sent to the Secretary, Health Department, Government of Sind for taking such action against P. W. Dr. Irshad Muhammad as is thought fit and proper.