'JAVED IQBAL, J.--- This criminal petition for leave to appeal is directed against the judgment, dated 7-8-2001 passed by learned Single Judge of the Lahore High Court, Lahore, whereby Criminal Appeal bearing No,446 of 1994 preferred on behalf of Munawar Hussain (petitioner) has been dismissed and judgment, dated 5-9-1994 passed by learned Special Judge Anti-Corruption, Gujranwala, has been kept intact whereby the petitioner was convicted under sections 468/34, P.P.C. And sentenced to suffer R.I. For one year with fine of Rs,5,000 and in case of default to suffer R.I. For three months, under sections 471/34, P.P.C. Sentenced to R.I. For one year with fine of Rs,5,000 and in case of default to undergo three months' R.I. Under sections 409/34, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 sentenced to R.I. For three years with fine of Rs,5,000 and in case of default to undergo further R.I. For nine months. The above mentioned sentences were directed to run concurrently.
2. Precisely stated the facts of the case as enumerated in the impugned judgment are to the effect that "the prosecution case in brief is that on 1-3-1990, a cheque for Rs,98,400 was issued by the Punjab Provincial Zakat Fund in the name of Principal, Government Higher Secondary School, Pindi Bhattian. The amount was intended to be paid as scholarship to the deserving students. Munawar Hussain appellant was posted as Clerk whereas Muhammad Bashir Diwana appellant was a teacher in the school. On 17-3-1990, the Principal opened an account with the Bank and the cheque was deposited in that account on 29-3-1990. On 1-4-1990, an amount of Rs,38,000 was drawn and on 5-4-1990, another amount of Rs,60,000 was drawn from the Bank. It subsequently, transpired that the amount of Rs,98,400 remitted to the Principal was withdrawn from the Bank by the accused-persons including the appellants and no amount was paid or disbursed as scholarship to any of the students. Complaint Exh.PO was submitted by Rai Shabbir Ahmad P.W.9 on 2-1-1991 to the Additional Director, Anti-Corruption Establishment, Lahore. The Investigation was taken up by Anti-Corruption Establishment. During course of investigation, cheque Exh.PA was taken into possession by memo. Exh.P.C. On 21-1-1991, Nazir Hussain brother of Muhammad Bashir Diwana appellant produced an amount of Rs,30,000 before the Investigating Officer which was taken into possession vide memo. Exh.P.1. On the same day i.e, 21-1-1991, Zulfiqar Ali father of Munawar Hussain appellant produced an amount of Rs,30,000 which was secured vide memo. Exh.PM. On 11-2-1991, the Manager National Bank of Pakistan, Pindi Bhattian, produced before the Investigating Officer the relevant record of the Bank establishing that the amount of Rs,98,400 not deposited in an account opened at the instance of Munawar Hussain appellant and subsequently the amount was withdrawn through cheques which were got encashed by the appellants Munawar Hussain and Muhammad Bashir Diwana. On conclusion of the investigation, the appellants alongwith their co- accused Muhammad Zafar were found guilty and were sent up to face trial as stated above". The petitioner alongwith Muhammad Bashir Diwana one of the co-accused, was convicted and sentenced but on appeal Muhammad Bashir Diwana, co-accused, has been acquitted by mean of impugned judgment.
3. Heard Mr. S. M. Nazim, learned Advocate Supreme Court on behalf of petitioner who mainly contended that the conviction under section 409, P.P.C. Could not have been awarded as the amount in question was neither entrusted to the petitioner nor he had any dominion over it. It is also pointed out that no substantial loss whatsoever was accrued to the Government. It is urged with vehemence that the defence version was not kept in juxtaposition with that of prosecution evidence which resulted in serous miscarriage, of justice.
4. We have carefully examined the contentions as agitated on behalf of petitioner in the light of relevant provisions of law and record of the case. We have scanned the entire evidence with eminent assistance of learned counsel. The judgment impugned has been perused thoroughly. A careful scrutiny of the entire evidence would reveal that prosecution has established its case by producing worthy of credence evidence. It is immaterial how the cheque was reached to the petitioner or he was competent to receive it or not, because admittedly the petitioner had opened account in National Bank of Pakistan and the amount in question was withdrawn subsequently by means of two cheques duly issued by the petitioner. The statement of Muhammad Asghar Butt, Assistant Manager, National Bank of Pakistan cannot be discarded which has rightly been considered and relied upon by the Courts below. The statement of Mr. Anwarul Haque Bajwa (Handwriting Expert) lends full corroboration to the prosecution version by whom it was opined as follows:-- ' "The questioned signatures of accused Munawar Hussain marked as BB/1 and BB/2 on the cheque Exh.P1 and BB/3 and BB/4 on deposit slip, Exh.PF and Exh.PG were identical in characteristics with the admitted signatures of accused Munawar Hussain marked as GA/1 and GA/2 on the cheque Exh.PK/1. The points of similarity were:-- ' Initial loppe of m, initial angle of m, pining of u on m, formation of r and style of making h."
5. We have not persuaded to agree with Mr. S.M. Nazim learned Advocate Supreme Court on behalf of petitioner that no entrustment of the amount in question was ever made to the petitioner and no conviction could have been awarded under section 409, P.P.C. For the reason that petitioner had complete dominion over the amount in question which was deposited and withdrawn by him. In such background the prime A contention that the amount in question was never entrusted to petitioner hardly deserves any consideration. We are not impressed by the contention that no loss was accrued to the Government because by drawing the amount in question the Government was deprived of the use of the same and thus the petitioner cannot be absolved from criminal liability.
In this regard we are fortified by the dictum laid down in Shamsuddin Ahmed v. The State (1970 SCM R 808). The State v. Abu Raza (PLD 1959 SC (Pak.) 309). We have also examined the plea raised for the first time before this Court that the defence version was not kept in juxtaposition and we are of the view that no prejudice whatsoever has been caused to the petitioner. As mentioned above this plea was never agitated before High Court and even it does not find mention in the memorandum of Criminal Appeal bearing No,446 of 1994 preferred on behalf of petitioner before the High Court. It is well-settled by now that the pleas not raised before the High Court during hearing of appeal cannot be agitated before this Court. In this regard reference can be made to the following cases:-- ' Khairati v. Aleem-ud-Din (PLD 1973 SC 295), Ghualm Muhammad v. Abdul Qadir Khan PLD 1983 SC 68, Neelam Mawaz v. The State (PLD 1991 SC 640), Mad Ajab v. Awal Badshah (1984 SCM R 440), Mairaj Sons v. United Bank Limited (1985 SCM R 987), Muhammad Ahmed v. Aziz Begum (1985 SCM R 1962), Sardaro v. Nazran Begum (PLD 1985 SC 274), Muhammad Idrees v. Safia Begum (1986 SCMR 795), Muhammad Urfan v. N.-W.F.P. (PLD 1984 SC 253), Gul Zarin v. Faizullah' (1979 SCM R 501), S.13.
Insurance Employees' Union v. Sindh Labour Court (1975 SCM R 49), Nisar Ahmad v. Fazal Muhammad (1975 SCM R 190), Khalid Sharif v. The State (1975 SCM R 178), Begum Zahoorul Haq v.
Muhammad Younus (1985 SCM R 1657), Muhammad Ibrahim v. Allah Bakhsh (1968 SCM R 143), Ghualm Haider v. Settlement Commissioner (1972 SCM R 559) and West Pak Transport Co. v.
Transport Appellate Authority (PLD 1965 SC 248).
In the light of what has been stated above the conclusion as drawn by the learned Trial and Appellate Courts being well-based and strictly in accordance with law and settled norms of justice hardly calls for any interference. A lenient view has already been taken by the learned Appellate Court and no further leniency is called for.
' The petition being devoid of merit is dismissed.