Said Alam son of Muhammad Din, a Clerk/Cashier in the Workshop, Agricultural Department, Sialkot, was sent up for trial by Police Station Saddar, Sialkot, for an offence under section 409, P.P.C.
Special Judge, Anti-Corruption, Lahore, Camp at Sialkot, vide his Judgment, dated 15-7-1986 convicted and sentenced him to six months' R.I. And a fine of Rs.5,000, or in default six months' R.I.
The accused has appealed. This judgment shall dispose of the same.
2. The prosecution story in brief, as given in F.I.R. Exh.P.W.-3/2 lodged on 31-5-1981 by Fazal Karim, Assistant Agricultural Engineer, was to the effect that Said Alam was employed as a Clerk/Cashier in his office. He had applied for leave from 11-5-1981 to 12-5-1981. On 13-5-1981 he sent another application for one day leave. On 14-5-1981 he did not come to the office without intimation.
Fifteenth of May was Friday, but he did not come even on 16-5-1981. The first informant sent him a letter directing him to report in the office within two days but he did not appear. In the meanwhile, on verification of the accounts it transpired that he had misappropriated Rs.40,956. The F.I.R.
Further revealed that it had been learnt that said Seed Alam had given this money to his father Muhammad Din and brother-in-law Muhammad Hanif The first information had also annexed a list giving details of the money misappropriated by the appellant.
Feroze Din, A.S.I., Police Station Saddar, Sialkot, on receipt of complainant Exh.P.W.3/1 registered the formal F.I.R. Exh.P.W.3/2 and investigated the case. He took into possession the receipt produced by Muhammad Din, father of the accused, photo copy, which was secured vide memo. Exh.P.W.2/1. The Investigating Officer demanded the money from the complainant, which had been paid by father of the accused, but the same was not done by the first informant. The complainant was also challaned. After usual investigation, he challaned the accused.
3. The prosecution in support of its case produced four witnesses in all. P.W.1 Barkat Ali, Constable, stated that he could not execute the warrants of arrest as Said Alam was not available.
Muhammad Bashir, P.W.2 did not support the prosecution case and was declared hostile. P.W.3 Feroze Din, A.S.I. Police Station Saddai, Sialkot, stated that he recorded the formal F.I.R. And investigated the case. According to him, the complainant in the case was also an accused. P.W.4 Fazal Karim, Assistant Agricultural Engineer stated that the appellant was Cashier in his office. He on leave on 11th and 12th of May, 1981. He sent another application on 13th of May for leave.
Thereafter, till 16-5-1981 he did not attend the office without any intimation. He sent a letter to him at his residence directing him to appear, when it was learnt that he had left for abroad. On checking, it transpired that he had misappropriated Rs.40,956. When he contacted the father of the appellant, he paid the entire amount back.
The appellant at the conclusion of the prosecution evidence was examined without oath. He refuted the prosecution allegations and pleaded innocence.
4. It was contended by learned counsel for the appellant that the case has not been proved at all.
Submitted that the prosecution has not produced documents to show that the money in question was entrusted to the appellant. Contended that no register was produced to show his involvement.
Submitted that a list attached with the F.I.R. Indicates that he had received money on 12-5-1981, whereas the allegation against him is that he was on leave on 11th and 12th of May, 1981. Contended that if the father of the appellant had paid the entire amount, the same remained with the complainant and was never produced in Court.
5. I have heard the learned counsel and gone through the evidence with his assistance. In the instant case, except for the Statement of Fazal Karim, P.W.4, no other witness has supported the prosecution case. Even the Investigating Officer has not supported the prosecution case instead he stated that it was the complainant who was responsible for the misappropriation. The complainant stated that his father paid the amount, which was alleged to have been misappropriated, and never produced in Court or handed over to the Investigating Officer. No document whatsoever has been produced to show that the appellant had withdrawn any amount from the bank on the relevant dates. There is also nothing on the record to show when he was given by any other employee of the Department any money in his capacity as Cashier. There is no explanation available how he could have withdrawn the money from the bank on 12-5-1981 when admittedly he was absent from the office. All these things, if taken together, lead to irresistible conclusion that the prosecution has failed to prove its case at all.