Appellant Mirza Mahboob Baig, who was at all material times posted as Accountant-cum-Cashier in the Office of Military Estate Officer, Karachi, has been convicted by the yearned Special Judge (Central) Karachi for an offence under section 4099, P. P. C. Read with section 5 (2) of the Prevention of Corruption Act, 1947 and sentenced to imprisonment, till rising of -the Court and in addition "to pay a fine of Rs. 00.00 on each count". In default of payment of fine he has been sentenced to suffer R. I. For two months on "each count," the substantive sentences of imprisonment to run concurrently.
2. The facts leading to this appeal briefly are as follows: - Under a scheme for` grant of land to service personnel at concessional rates at Hyderabad, Major Ghulam Farooq P. W. 3 was allotted a Plot No. 23, Survey No. 142 in Hyderabad Cantonment. This plot measuring 1,000 sq. Yds. Was leased to him on payment of a premium of Rs. 1,000.00 and a yearly rent of Rs. 62.50 for the construction of a house. The Military Estate Officer, Karachi Circle wrote to Major Ghulam Farooq informing him about this allotment and asked him to deposit the following amounts before the possession of the plot could be given to him :--
(i) Premium Rs. 1,000.00
(ii) Ground rent for half year .Rs. 31.25
(iii) Cost of plans . Rs. 15.00
(iv) Demarcation charges .Rs. - 10.00 TOTAL Rs. 1,056.25 Major Ghulam Farooq remitted an amount of Rs. 1,057.00 by two telegraphic money orders from Lahore on 5-8-1961. As these money orders reached on 10th August 1961, some two months after the due date, orders were solicited from P. W. Syed Khalil Rizvi, Military Estate Officer whether the amount should be accepted after the due date. Mirza Mumtaz C. W. 1, the Head clerk in the office of the Military Estate Officer, referred this matter with the following endorsement:- "The officer who has been posted to the S. S. D. Karachi sent money order through telegram but the same kept into deposit till 15-8-1961. May accept the amount and credited to the public fund a/c of the M. E. O., Karachi."
After the Military Estate Officer P. W. Syed Khalil Rizvi had permitted the office to receive this amount by endorsement' of word "Yes" on this note, it was marked to the appellant for necessary action as can be seen from the following words appearing on Exh. 5/A :- '
"Accountant. Notice for N. A. Pl."
This note is followed by the endorsement of the appellant in the following words: - "Payment has been received. Please arrange to hand over possession of the site."
The possession of the plot was, thereafter handed over ' to P. W. Major Ghulam Farooq, who got the lease registered through .The Registrar. The appellant was, thereafter transferred to Lahore and his successor, namely P. W. 4 Mohammad Asghar, who took over charge as Accountant-cum-Cashier on 4-10-1963, found some arrears appearing against the name of Major Ghulam Farooq: He, accordingly, sent a letter dated 3rd October 1964 (Exh. 21) to the officer concerned, calling upon him to clear the arrears. As Major Ghulam Farooq had already paid these amounts by the same money orders referred to above, lie rushed to the Military Estate Officer and made enquiries as to why he was being asked to pay the said amount again. It was then discovered that the amount of its. 1,057.00 sent by him to tile Military Estate Officer had hot been credited into the cash book at all.
Mr. Syed Khalil Rizvi then reported the matter to the Deputy Director Military Lands, Mr. Karamatullah, P W. 2, who sent for appellant at Lahore and after some difficulty succeeded in making him agree to pay back the amount which was duly deposited through Military Estate Officer. Karachi. The appellant was, thereafter charge-sheeted and departmental proceedings were also started against him. In the meanwhile, on 7-3-1966, on the basis of a report submitted by the Investigating Officer Mr. Saifullah, S. I. P. Special Police Establishment, a formal F.
1. R. Exh. 28, was registered against him. After the usual investigations were concluded the appellant a was challaned.
3. When the substance of the accusation was read over to the appellant on 12-9-1967, he stated as follows: -- "I had credited this amount on the due date. The refund had been made by me under protest. I have been involved due to enmity."
In his examination under section 342, Cr. P. C. The appellant admitted that he was working as Accountant-cum-Cashier in the office of Military Estate Officer, Karachi and -that he was, therefore, a public servant. He admitted that he had a safe and that he was responsible to deposit moneys received by him in the bank or to make disbursements thereof. He, however, denied having received the amount of Rs. 1,057.00 which was sent by telegraphic money orders by P. W. 3 Major Ghulam Farooq. He stated that he later paid this amount on the assurance of P. W. Karamatullah that no harm would be done to him as he thought that if he did not pay it he would be put to trouble. He admitted having put the endorsement of "Payment has been received; Please arrange to hand over possession of the site," on Exh. 5/A but explained the same by saying that by doing so he had merely confirmed the note of the Head clerk which was required of him in routine. The appellant examined himself and one more witness, namely Mirza Mumtaz Hussain, D. W. 1, who only produced the files of Major Mumtaz and some other persons. The appellant himself stated in his deposition that the amount was never received by him and that he had made the note on Exh. 5/A on the basis of the note of the Head Clerk.
4. The facts that the appellant was a public servant working as Accountant-cum-Cashier in the office of the Military Estate Officer, Karachi; that he was incharge of the safe and the cash book in which he used to make entries regarding receipt of cash, and that he had made the note on Exh.
5/A, have not been disputed even by the learned counsel appearing on behalf of the appellant before me. Mr. Akhtar Mahmood has, however, vehemently contended that the alleged confession made by the appellant to P. W. Karamatullah would be inadmissible by virtue of the provisions of section 24 of the Evidence Act as he was a person in authority and had admittedly induced the appellant to make this confession on the promise that lie would be leniently dealt with. There is a good deal of force in the contention of the 'learned counsel but as rightly observed by the learned Special Judges the fact of the appellant having paid this amount without making any request of examining the record would no doubt be a relevant circumstance which could be used against him as evidence of conduct under section 8 of the Evidence Act. As rightly observed by the learned Special Judge, the appellant was a low-paid official who would be reluctant to part v with the sum of Rs. 1,057.00. In any case he should not have readily agreed to do so unless he knew that he had misappropriated the amount. He could at-least have insisted on the examination of the record before writing Exh. 9.
5. Apart from this circumstance what is however, conclusive evidence against the appellant is his own note, EXh. 5/A reproduced above, wherein he has clearly admitted having received this amount. Mr. Akhtar Mahmood, the learned counsel for the appellant contended that the appellant had made this note on the strength of the preceding endorsement made by the Head Clerk, namely, Mirza Mumtaz, C. W.
1. I find no force in this contention. As Mirza Mumtaz C. W. 1 has explained, the word "deposit" means in safe deposit with the Accountant. The uncertainty arose because the amount was due in June 1961, where--as Major Ghulam Farooq's money order was received on 10th of August 1961. The officer had, therefore, to seek orders from the Military Estate Officer whether to accept the amount or not. This is the substance of the note of the Head Clerk, and when the Military Estate Officer indicated by his order that this was to be accepted, the case was marked to the appellant for necessary action. This can be seen from the words: - "Acctt.
Notice for N. A. Pl.
L. C."
It was some 15 days thereafter that on 30-8-1961, the appellant made the endorsement that the payment had been received and that the possession of the site should be handed over to Major Ghulam Farooq. It is inconceivable that the appellant could have made this endorsement and acknowledged the receipt of the amount unless he had himself received the same. Being the Accountant-cum-Cashier in the office he could not be unaware of the office procedure. I have also no reason to doubt the evidence of P. W. 4 Mohammad Asghar, who succeeded the appellant on 4-10-1963, when he stated that no body except the Cashier had any concern with the cash and that it was the responsibility of the Cashier to receive the amount, to keep it, and to deposit it in the State Bank of Pakistan. The witness also stated that the Accountant who received the amount sent through post could issue receipt directly for the same. The note made by the appellant in Exh. 5/A coupled with his conduct in paying the entire amount as well as his inconsistent statements made at different stages of the proceedings leave no room for doubt that the appellant had misappropriated this amount of Rs. 1,057.00 which was admittedly not credited in the books nor deposited in the State Bank bf Pakistan.
6. Mr. Akhtar Mahmood, the learned counsel for the appel--lant, lastly contended that this amount was already deposited and, therefore, no offence of misappropriation had taken place. `In this connection the learned counsel has invited my attention to Exhs. 21 * 4 and 1 &. Exh. 21 is a letter dated 3-10-1964 addressed to Major Ghulam Farooq by Mr. Syed Khalil Rizvi, Military Estate Officer.
What the learned counsel which to emphasise is that as in this letter only a demand, for Rs. 125 which amount was due on account of rent, was made; it would necessarily imply that the premium of Rs. 1,000.00 as well as the demarcation charges and cost of plan had already been deposited.
Similarly, according to the learned counsel, Exh. 4, which was a letter dated 2-12-1964 led to the same conclusion. The learned counsel also emphasised that in the letter dated 5-8-1961 (Exh. 18)
Major Ghulam Farooq had mentioned the fact of having remitted Rs. 1,057 and this letter could not have been kept on record if some one had misappro--priated the amount. I find no force in this contention as the position, that this amount was not entered into the books nor deposited in the Treasury or the State Bank of Pakistan, has not been disputed at all in this case. If the amount had been deposited, surely this fact would have been mentioned in the cash book and it would not have been deposited for a second time after the receipt of this amount from the appellant. Besides the letters relied upon by the learned counsel do not necessarily lead to the inference that he wishes to draw from them. If it was not pointed out to Mr. Rizvi that this amount was outstanding, naturally he would presume that the same had been paid. Moreso, in view of the endorsement of the appellant himself to this effect and the subsequent delivery of the possession of the site to Major Ghulam Farooq on the basis of this endorsement.
7. After considering the entire evidence on record as well as the arguments advanced by the learned counsel for the appellant, I have not the slightest hesitation in coming to the conclusion that the appellant has been rightly convicted for an offence under section 409, P. P. C.
8. The learned Special Judge has, however, convicted the appellant "under section 409, P. P. C. Read with section 5 (2) of the Prevention of Corruption Act, 1947" and sentenced him to imprisonment till rising of the Court and a fine of Rs. 800.00 "on each count", or in default of payment of fine to suffer R.
1. A for two months on "each count". As there was only one conviction "under section 409, P. P. C.
Read with section. 5(2) of Act II of 1947", the learned Special Judge was not justified in awarding two separate sentences. Even if the appellant had been convicted for two distinct offences arising out of the same facts, the learned Special Judge was not justified in awarding two sentences as can be seen from the clear language of section 26 of the General Clauses Act. As the appellant has paid back the entire amount which was misappropriated by him he has not "derived any gain" from this offence. It is, therefore, riot necessary that he should be sentenced to fine not less than the amount misappropriated, namely, Rs. 1,057.00 as provided under section 9 of the Pakistan Criminal Law Amendment Act, 1958. The contrary view expressed in State v. Nazir Husain (PLD 1964 Lah. 73) and Dawood Hashim v. The State (PLD 1965 Kar. 579) is no longer good law as the latter decision was reversed by the Supreme Court in Dawood Hashim v. The State Criminal Appeal No. K-4 of 1966.
9. In view of what has been stated above I would maintain the conviction of the appellant under section 409, P. P. C. And maintain the sentence of imprisonment till rising of the Court and a fine of Rs. 800.00 or in default R. I. For two months. The other sentence is set aside. If the appellant has already paid the entire amount of fine amounting to Rs. 1,600.00, Rs. 800.00 shall be refunded to him
10. With this modification in the sentence the appeal stands dismissed.