' Instant appeal is directed against the judgment dated 14-4-1999 passed by the learned Special Judge Central, Rawalpindi whereby he convicted the appellant under section 409, P.P.C. And sentenced him to undergo 7 years R.I. And to pay a fine of Rs,2,65,555.20 or in default thereof to undergo S.I. For six months. He further convicted the appellant under section 5(2) 47, P.C.A. And to pay a fine of Rs, 20,000 or in default thereof to undergo S.I. For six months.
2. Briefly stated the facts of the case are that appellant had been posted as Lower Division Clerk in Federal Government Girls High School Lala Zar, Rawalpindi during the period from March, 1983 to February, 1988. During the said period he was entrusted an amount of Rs,3,15,976.50 on account of tuition fee, admission fee, attendance fee, late admission fee and school leaving certificate fee.
Instead of depositing the said amount he deposited a sum of Rs,50,421.30 and as such embazzled a sum of Rs,2,65,555.20 Accordingly an enquiry was conducted into the said affair and consequently Mrs. Iffat Hussain, Principal F.G. Girls Public High School, Rawalpindi addressed a complaint to the Senior Superintendent of Police, Rawalpindi Exh. P.A. For the registration of case against the appellant. Resultantly F.I.R. No, 448 of 1988, dated 9-9-1988 under section 409, P.P.C.
Was registered against the accused/appellant.
3. After usual investigation the case was sent up for trial in the Court of Special Judge, Central, Rawalpindi.
4. A charge under section 409, P.P.C. Read with section 5(2) 47, P.C.A. Was framed against the accused/appellant to which he pleaded not guilty and claimed trial.
5. To prove its case prosecution examined P.W.1 Hussain Ahmad Mohssan, P.W.2 Mrs. Iffat Hussain, P.W.3 Muhammad Irfan Inspector and P.W.4 Muhammad Nawaz, A.S.I. Learned P.I. Closed the prosecution case vide his statement, dated 24-11-1997.
6. When examined under section 342, Cr.P.C. The accused/appellant denied the prosecution version and stated that he had not embezzled any amount and had been involved in this case at the instance of Lt.-Col. Sikandar Khan with whom he had exchanged hot words as the former had insulted him. He recorded his own statement under section 304(2), Cr.P.C. And thereafter, closed his defence evidence vide statement dated 23-2-1998.
7. After going through the evidence produced by the parties the trial Court convicted the appellant vide judgment under appeal.
8. Arguments have been heard and record perused.
9. Learned counsel for the appellant has assailed the judgment on various grounds. His first contention is that the very registration of case is not in accordance with law as local police was not competent to register the case in respect of an offence having been committed by an employee of Federal Government. His second contention is that prosecution has failed to adduce evidence to prove the factum of embezzlement on the part of appellant as no witness has deposed specifically that he ever entrusted any amount to the appellant. His third contention is that even the trial Court has not conducted the trial in accordance with law. While elaborating his last contention he contended that even the statement of accused recorded under section 342, Cr.P.C. Has not been recorded as required by section 364, Cr.P.C. As the same does not bear any certificate in the hand of learned Presiding Officer. He further contended that he was also prosecuted for the same offence and was acquitted and as such instant conviction was in violation to the provision of section 403, Cr.P.C. He thus submitted that appeal may be accepted and appellant be acquitted.
10. Conversely the impugned judgment has been supported by the learned counsel for the State.
11. The appellant has been sent up to face trial for committing misappropriation of an amount to the tune of Rs,2,65,555.20. The stand of prosecution is that during the period from March 1983 to February 1988 he had been posted as L.D.C. In the F.G. Girls Public High School Lalazar, Rawalpindi and had been collecting the tuition fee etc., that during the said period he was entrusted a sum of Rs,3,15,976.50 but he deposited only a sum of Rs,50,431.30 and as such misappropriated the remaining amount of Rs,2,65,555.20. To prove this contention prosecution has brought on record the statement of Hussain Ahmad Mohssan (P.W.1) who has brought on record report Exh. P.W.1/1-12 which is the copy of report prepared by a Committee constituted to check the record of the said School and to submit his report. The said Committee consisted of P.W.1 Hussain Ahmad Mohassan, Ch. Lal Hussain, Principal F.G. Public High School, Rawalpindi as its Chairman, Muhammad Abdullah Awan Barsar, and Malik Fateh Khan Accountant Of F.G. Public School Mehfooz Road, Rawalpindi. This report Exh.P.W.1/1-12 contained a full account of the dispute pertaining to the involvement of the present appellant in committing embezzlement of the stipulated amount. This report also contains an admission on the part of appellant regarding certain amounts having not been deposited in the Bank. The statement of P.W.1 further reveals that he has not been cross-examined regarding the factum of appointment of appellant in the said School as well as entrustment of the amount on his part. This non cross-examination of the said witness clearly shows that appellant has admitted that he was entrusted the amount referred in the report Exh. P.W.1/1-12.
12. Learned counsel for the appellant has vehemently stressed that prosecution has failed to examine independent officials of School to prove that appellant was entrusted the embezzlled amount. There is no doubt that prosecution has not examined any teacher of the School to prove that a specific amount was given by him to the accused/appellant. But this fact does not make any difference as the entrustment of the amount in question has not been controverted or denied by him while cross examining P.W.1 who is a member of the Committee who conducted verification of the account maintained by the appellant. Thus the contention of the learned counsel for the appellant is devoid of any force.
13. So far as the question of registration of case by the local police is concerned, there is no denial of this fact that jurisdiction of ordinary police has not been barred by any specific provisions relating to the matter in issue. Even otherwise this point was never agitated by the appellant before the trial Court. It is fact that after the registration of this case by local police the challan has been submitted in a Court of competent jurisdiction and as such this objection also loses its weight.
14. Learned counsel for the appellant has also argued that trial Court has not recorded the statement of accused under section 342, Cr.P.C. In accordance with the provisions contained in section 364, Cr.P.C. His contention is that it was incumbent upon the trial Court to give a requisite certificate on the statement of accused in his own hand. This contention of the learned counsel for the appellant is also devoid of any force as the statement contains a certificate in the form of a seal which bears the signature of the Presiding Officer.
15. The trial Court has convicted the appellant under section 409, P.P.C. And sentenced him to R.I.
For 7 years and fine of Rs,2,65,555.20 or in default thereof to undergo S.I. For two years. He has further been convicted under section 5(2) 47, P.C.A. And sentenced R.I. For two years and a fine of Rs,20,000 or in default thereof to undergo S.I. For six months. The case in hand pertains to the years 1983 to 1988 and the F.I.R. Was lodged on 9-9-1988. The accused/appellant has been undergoing the agony of trial for more than a decade. Keeping in view the agony. Of the trial to which the appellant has been subjected to, the sentence awarded to the appellant under section 409, P.P.C.
Is hereby reduced from 7 years R.I. To 4 years R.I. However the fine imposed is maintained. The sentence awarded under section 5(2) 47, P.C.A. Is also maintained. However it is ordered that both the sentences shall run concurrently. With this modification in the sentence awarded to the appellant, appeal is hereby dismissed.