' This appeal has been directed against the judgment, dated 14-1-1998 passed by the learned Senior Special Judge, Anti-Corruption, Lahore, whereby he convicted the appellant Ashiq Hussain under section 5 of the Prevention of Corruption Act, II of 1947, in case F.I.R. No,57 of 1993, dated 26-5- 1993, under section 5(2), P.C.A., 1947 registered with Police Station A.C.E., Sheikhupura and sentenced him to 3 years' R.I. With a fine of Rs,1,00,000 and in case of default of payment whereof to further undergo R.I. For 9 months.
2. After registration of case investigation was conducted and upon finalization of investigation challan was submitted in the trial Court. Trial was concluded and the abovementioned sentence was passed by the learned trial Court against the appellant vide the abovesaid judgment. Hence this appeal.
3. Learned counsel for the appellant contends that the appellant had actually resigned from the job of Tubewell Operator from the date 23-5-1985 but the department did not accept the same with mala fide intention and the officials of the department continued receiving salaries of the appellant and misused the same. It is further contended that the photo copies have been received and accepted during the trial by the learned trial Judge, which cannot be read as a part of the evidence as has been done by the trial Court while passing the impugned judgment, hence the impugned judgment has been passed on the basis of illegal evidence which could not be considered. The judgment has been passed on the basis of surmises and conjectures and is liable to be set aside. Learned counsel for the appellant further contended that the prosecution has miserably failed to prove the case against the appellant for receiving salaries and the learned trial Judge has failed to appreciate evidence available on the record and defence version produced by the appellant during the trial. It is also contended that the appellant is innocent and has been involved with mala tide intention due to the acts of officials of his previous department, who have been receiving salaries of the appellant and also misused the same. It is further contended that the prosecution in this case has miserably failed to prove guilt of the appellant.
4. On the other hand learned counsel for the appellant has opposed this appeal on the grounds that the prosecution has succeeded in making out a case against the appellant and it is incorrect that he has not received any salaries of the petitioner at the same from both the departments. He has been rightly convicted under section 5 of the P.C.A. II of 1947 by the trial Court.
5. I have heard arguments of learned counsel for the parties and perused the record carefully.
Appellant was appointed as Tubewell Operator at Outfall Drain Recalmation w,e,f, 1-1-1983 vide appointment Letter Exh.P.W.7/1 and the accused/appellant joined duty as such. Subsequently he applied for appointment as P.T.C. Teacher and vide appointment letter Exh . P. W.7/2, dated 11-3- 1983 he was appointed as P.T.C. Teacher. The appellant joined as P.T.C. Teacher w,e,f, 24-3-1985.
Thereafter, in the year 1992 Syed Altaf Hussain (P.W.2) the then Headmaster in Government Middle School, Jivanpura, District Sheikhupura discovered that the appellant was not only drawing his salary as P.T.C. Teacher but he was also drawing his salary as Tubewell Operator. He sent complaint to the Additional Director, A.C.E., Lahore for necessary action against the appellant. The appellant has denied the allegations and has taken stance that he has resigned from the post of Tubewell Operator before joining the service as P.T.C. Teacher. The resignation was not accepted by the departmental authorities and the amount of his salaries were being misused by the officials of the department. The only question in this case is whether the appellant was drawing the salaries as Tubewell Operator as well as being a P.T.C. Teacher at the same time or not, from 24-3-1985 to 31-12-1992. Other facts are admitted by the appellant that he joined as P.T.C. Teacher and he also submitted that he was earlier appointed as Tubewell Operator and served in the said department.
It appears that the appellant continued his service as Tubewell Operator even after joining the Education Department, being, posted as P.T.C. Teacher and continued drawing salaries. The prosecution has produced Muzher Ail Gil, P.W.3, who was Sub-Engineer from 1990 and the appellant served under him as Tubewell Operator for a period of 1-1/2 years and received salaries. Muzher Ali Gil has stated in the cross-examination that he has himself paid salaries to the appellant and some salaries were paid to Nazir Ahmed Foreman. It is also stated by this P.W. That the appellant was never found absent from the duty as no complaint was made by his immediate boss for his negligence. The question was raised by the appellant that Log Book has not been produced. In reply to this question the witness has stated that Log Book is destroyed after every three years and no attendance register is maintained for maintaining record of the attendance of Tubewell Operators. P.W.4 Khaliq Ahmed another S.E who was posted after the appellant has also stated in clear words that the appellant was receiving salaries as Tubewell Operator from him. He denied suggestions put to him that the appellant has resigned from service as Tubewell Operator from 24- 3-1985. The other witnesses are regarding the service of the appellant a P.T.C. Teacher from the said date, which has been brought on the record and is also admitted by the appellant. Record has been produced, the photo copies of which have been accepted. The main objection of the learned counsel for the appellant is that the record could not be obtained and could not be accepted by the trial Court.
6. 1 have noticed that the abovesaid objection was not opposed by the appellant at the time of production of evidence before the trial Court. It is also an admitted fact that the appellant in his statement under section 342, Cr.P.C. Has replied that the Exh.P.W.7/1 and Exh.P.W.7/2 are correct copies. The appellant has not moved any application before the trial Court for the production of original record. Now he cannot claim that the photo copies were produced. The only question of this case is whether the appellant has resigned from service and has received salaries from 24-3- 1985 to 31-12-1992 or not. The headmaster has reported that the appellant was drawing double salaries. This fact has been fully proved on the record by the statements of P.W.3 and P.W.4, who are Sub-Engineers, under whom the appellant was serving. I have found no discrepancy or contradiction in their statements regarding drawing the salaries by the appellant and the payment being made to him for his service as Tubewell Operator during this period. Though they were subjected to a lengthy cross-examination but I have noticed that during the cross-examination P.W. Muzher Ali has replied to question and asked him that: ' I used to make payment of his salary through Foreman Nazir Ahmed and...."
' He denied the suggestion that during this period the tubewel remained closed. He has stated that he visited the tubewell many times and whenever he visited the tubewell the appellant was present there. Similarly P.W.4 Khaliq also made following statement during cross-examination:-- "I have been paying him salary every month up to November, 1992. I came to know in 1992 that he was also working as a Teacher in a Primary School."
' It is also stated by him that he whenever visited the Tube well the appellant was found there. The prosecution due to the above said statement has succeeded in proving factum of receiving salary from 24-3-1985 to 31-12-1992 as Tube well Operator and the defence version that he has submitted resignation which was not accepted and the salary had been misappropriated by the officials of the previous department of the appellant. The appellant has also not mentioned the time and year of submission of resignation. The prosecution has fully succeeded in proving that the appellant had been drawing salary at the same time as a Tube well Operator and P.T.C. Teacher, hence case against him under section 5 of the Prevention of Corruption Act, II of 1947 has been proved. The trial Court has rightly convicted the appellant. Accordingly the appeal is dismissed having no merits.