' The appellant was tried for an offence under section 409, P.P.C. And section 5(2) of the Prevention of Corruption Act, 1947 by the learned Special Judge, Anti-Corruption, Sargodha. The trial Court convicted the appellant for an offence under section 5(2) of the Prevention of Corruption Act and sentenced him to undergo R.I. For two years with a fine of Rs,30,000 and in default of payment to undergo R.I. For six months vide the judgment, dated 3-6-1990. Out of the fine, if recovered, amount of Rs,27,795.40 was ordered to be paid to the Government Khalqia School, Sargodha.
2. According to the prosecution story, the appellant was employed as Headmaster in the Government Khalqia High School, Sargodha, and received a sum of Rs,38,217.40 from Musthaq Ahmad, Clerk, P.W.7 on different dates during the period from April to September, 1985. The said amount pertained to tuition fee etc. Of the students. It was further alleged that the appellant dishonestly misappropriated the said amount and thus committed an offence under section 5(2) of the Prevention of Corruption Act, 1947.
3. In support of its case, the prosecution produced seven witnesses. Mushtaq Ahmad, Deputy Director, Schools, P.W.1 had reported the matter to. The Police through his letter Exh.P.A. Whereupon the formal F.I.R. Exh.P.F. Was recorded on 20th of September, 1986 with A.C.E. Sargodha. He admitted in cross-examination that he did not issue any notice to the appellant to explain his position regarding the allegation of misappropriation. Abdus Salam P.W.2 had assumed charge of the school on 8-8-1985 form the appellant who was transferred to Government Ambala High School Sargodha. He detected the embezzlement and reported the matter to District Education Officer, Sargodha through his letter Exhs.P.B., P.C., and P.D. Khawaja Muhammad Shall P.W.3 had conducted inquiry against the appellant on the basis of the order of the Director Education Schools. He produced his inquiry report Exh.P.E. The operative part of the report is as under:-- "Report submitted with the recommendation that detailed audit of the entire tenure of Mr. Ghulam Khaliq as Headmaster Government Islamic Khalqia High School be got conducted by an audit team head by some officer.
' He did not specifically fix responsibility on the appellant qua the alleged misappropriation. P.W.4 Malik Tilla Muhammad C.O./A.C.E. Had registered the formal F.I.R. Exh.P.F. He also conducted investigation in the case and arrested the appellant on 1-11-1986. In his cross-examination, he admitted that no receipt was produced before him during investigation (regarding payment of the amount to the appellant). He further stated that he did not verify the record of the Bank to ascertain whether any amount was deposited there. He added that none of the witnesses had stated before him that he had obtained receipt from the appellant. Ghulam Muhammad, Circle Officer appeared as P.W.S. He had partly investigated the case and submitted challan after obtaining sanction for -prosecution from the Commissioner. Rana Riaz Hussain, S.S.T. P.W.6 did not support the prosecution case. He disowned the receipt Exh.P.F. (In file No,54/87). He also stated that he did not pay the amount of Rs,450 to the appellant on 21-4-1985. He was declared hostile in cross-examination. He also disowned the statement Exh.P.J. He denied the suggestion that he was won over by the appellant. Mushtaq Ahmad, Junior Clerk appeared as P.W.7 and stated that he had produced Registers Exh,P.E./17 to P.G.17 before the Investigating Officer which were secured by him, vide memo. Exh.P.G. He further stated that he had recovered fee of Rs,34,833.50 and funds of Rs,14,868.60 for the period from April, 1985 to September, 1985 from the students and paid the amount of Rs,49,702.10 to the appellant in cash. He had prepared the statement Exh.P.K. On the basis of the entries made in the Register. In cross-examination, he admitted that the register did not mention the signature of the appellant regarding receipt of the amounts mentioned in the statement Exh.P.K. He further admitted that the appellant did not give any receipt to him. As regards the procedure for receipt of money and its deposit in the Bank, he stated that the money used to remain with the Fee Clerk and the challan was signed by the Headmaster for depositing the amount in the treasury."
4. I have heard the learned counsel for the appellant and the State at length. The evidence on the record does not establish payment or entrustment of the disputed amount to the appellant. Even the Inquiry Officer Khawaja Muhammad Shafi who appeared as P.W.3 did not fix the responsibility on the appellant regarding embezzlement of the amount. He had merely recommended that detailed audit be conducted in respect of the entire period during which the appellant remained posted as Headmaster of the School. The statement made by Mushtaq Ahmad, Junior Clerk P.W.7 shows that he collected the fees and the funds from the students and his claim that he had paid the amount to the Headmaster did not appear to be convincing for more than one reason. Firstly, he did not obtain any receipt from the appellant regarding payment of the huge amount of Rs,49,702.10. Secondly, according to the procedure' followed in the school, the money used to remain with the Fee Clerk and the Headmaster simply had to sign the challan form for depositing it in the Treasury. Thirdly, the disputed amount even related to the period after 8-8-1985 when the appellant was no longer in Government Khalqia School, Sargodha. In view of the above evidence, the trial Court also observed that the offence was either committed by Mushtaq Ahmad P.W.7 or the appellant. Evidently, the trial Court was in two minds and could not give a definite finding whether the amount was received and then dishonestly misappropriated by the appellant. That being the position, there was no legal justification to convict the appellant.
5. For the foregoing discussion, this appeal is accepted and the appellant is acquitted of the charge against him. He is present in the Court on bail. His bail/surety bonds shall stand discharged.