Rashid Ahmad, Bashir Ahmad and Fateh Muhammad appellants were convicted for an offence under section 409/34, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 vide judgment dated 16-2-1995 rendered by the learned Special Judge, Anti-Corruption, Gujranwala and were sentenced to rigorous imprisonment for four years each and a fine of Rs.2,50,000 each or in default of payment thereof to undergo rigorous imprisonment for one year each. The benefit under section 382-B, Cr.P.C. Was extended to the appellants. Rashid Ahmad and Bashir Ahmad appellants have challenged their convictions and sentences before this Court through Criminal Appeal No.49 of 1995 whereas Fateh Muhammad appellant has filed Criminal Appeal No.71 of 1995 before this Court in that regard. I have heard both these appeals together and I propose to decide the same together through the present consolidated judgment.
2. The allegation leveled by the prosecution against the appellants was that Rashid Ahmad appellant in his capacity as the President of Dehi Traqiati Council of Village Ballo Nau, Bashir Ahmad appellant in his capacity as Chairman, Zakat and Ushr Committee, Village Ballo Nau and Fateh Muhammad appellant in his capacity as Chairman, Zakat and Ushr Committee, Garhi Androon had unauthorizedly transferred some Zakat fund from one account in a bank to another account in another bank, had utilized the said fund for a purpose different from that for which the said fund had been allocated and had misapropriated the said fund in collaboration with each other. Upon a complaint in respect of that allegation submitted by one Nazir Ali on 13-6-1994 the Administrator Zakat, Punjab, Lahore had got an inquiry conducted into the said complaint and then upon an initiative of the said Administrator F.I.R. No.379 was registered at Police Station City, Hafizabad on 6-7-1994 against the appellants for offences under sections 409/420/468/471, P.P.C.
And section 5(2) of the Prevention of Corruption Act, 1947.
3. After completion of investigation of the above mentioned criminal case a challan was submitted before the learned trial Court and a charge was framed against the appellants in that regard to which they pleaded not guilty and claimed a trial. During the trial, the prosecution produced seven witnesses in support of its case against the appellants. In their statements recorded under section 342, Cr.P.C. The appellants denied and controverted the allegations leveled against them by the prosecution and professed their innocence. They, however, opted not to make any statement on oath under section 340(2), Cr.P.C. And instead they produced four witnesses in their defence. At the conclusion of the trial the learned trial Court found the prosecution's case against the appellants to have been proved beyond reasonable doubt and, thus, the appellants were convicted and sentenced as mentioned and detailed above. Hence, the present appeals before this Court.
4. I have heard the learned counsel for the appellants as well as the learned counsel for the State and have gone through the record of this case with their assistance.
5. It has been argued by the learned counsel for the appellants that the prosecution had failed to prove its case against the appellants beyond reasonable doubt and. Therefore, the convictions and sentences of the appellants recorded by the learned trial Court, warrant their setting aside. As against that it has been maintained on behalf of the State that the prosecution had succeeded in proving the guilt of the appellants to the hilt and, therefore, the convictions and sentences of the appellants recorded by the learned trial Court do not call for any intereference by this Court.
6. After hearing the learned counsel for the parties and going through the record it has straightaway been noticed that although some prosecution witnesses had made a bold allegation that the appellants has misappropriated the relevant Zakat Fund but no concrete evidence whatsoever had been produced by the prosecution to the effect that the said fund had actually been misappropriated by the appellants or by anybody else. As a matter of fact the evidence available on the record shows that the said fund had actually been utilized for development work in the area although the same had initially been allocated for disbursement amongst flood victims.
Thus, in the absence of any proof regarding misappropriation of the said fund by the appellants or by anybody else there are only two questions left to be decided in this case, i.e. Whether the said fund could be transferred from one account of a bank to another account of another bank and also whether the said fund could be utilized for a purpose other than the original purpose for which the said fund had been allocated. In their statements recorded under section 342, Cr.P.C. The appellants had categorically maintained that the fund in question had been transferred from one account of a bank to another account of another bank under specific authorization in that regard given by the Chairman of the District Zakat and Ushr Committee. This assertion of the appellants was supported. By the documents brought on the record in the shape of Exh.D.A. And Exh.D.B. And the said aspect of the matter had been duly proved by Shahid Pervaiz, Manager, Allied Bank Limited, Hafizabad (D.W.4). It is, therefore, quite clear that transfer of the fund in question from one account of a bank to another account of another bank had been undertaken under express authorization of the higher authorities and, therefore, no legitimate exception could be taken to such a transfer. As regards utilization of the fund in question for a purpose other than its original purpose it is available on the record that through Exh.D.D. The Administrator Zakat, Punjab, Lahore had stopped payment of the said fund to the flood victims and through Exh.D.C. a permission had been sought for utilization of that fund for development activity in the area which permission had indeed been. Granted. In this view of the matter even utilization, of the relevant fund for a purpose other than the original purpose could not be objected to with any degree of seriousness.
7. In view of what has been observed above I have entertained no doubt that the prosecution had failed to prove its case against the appellants beyond reasonable doubt and consequently both these appeals are allowed, the convictions and sentences of the appellants recorded by the trial Court are set aside and the appellants are acquitted of the charge. The appellants have already been admitted to bail by this Court by suspending their sentences of imprisonment during the pendency of these appeals. Their bail bonds and sureties shall stand discharged.