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Petitioner: ZIA UL HAQ VS Respondent: THS STATE-
Court Name: Lahore High Court Judge(s): Muhammad Afzal Zullah Title: ZIA UL HAQ vs THS STATE- Case No.: Criminal Appeal No. 335 of 1970 Date of Judgment:1972-08-06 Reported As: 1973 P Cr. L J 457 Result: Order accordingly
JUDGMENT
JUDGMENT Ziaul Haq, Muhammad Ishaq and Muhammad Yaqub, who were at the relevant times employed in the post of Wasil Baqi Nevis, Sheikhupura Tehsil, were convicted by the learned Special Judge. Anti- Corruption, Lahore, for offences under section 409, P. P. C., and 5 (2) of the Prevention of Corruption Act (II of 1947); on the charges of having received, in their capacity of public servants, various amounts from the lambardars on the assurance that the same would be deposited in the Treasury; but instead of depositing the amounts in the Treasury the same were misappropriated by them to their own use and thus they committed Criminal breach of trust. All three of them were sentenced under both the counts on 29-5-70. These appeals arise out of 18 cases ; three against Zisul Haq ; two against Muhammad Ishaq ; one jointly against Muhammad Ishaq and Ziaul Haq ; eleven against Muhammad Yaqub ; and one jointly against Muhammad Yaqub and Ziaul Haq The details of the convictions and sentences are given in Schedule I to this judgment. Ziaul Haq and Muhammad Istiaq have filed three appeals cub, vii. Criminal Appeals Nos. 335, 336, 337 and 347, 348 and 349 of 1970 respectively ; while Muhammad Yaqub has filed twelve Appeals Nos. 358 to 369 of 1970. As all the legal questions and most of those relating to the merits of the cases raised to these appeals are common to all of them, therefore they are being disposed of together. The prosecution case is that during the years 1957 to 1962 sit times, the load of work necessitated appointment of more than one Wasil Baqi Navis. The periods relevant to these cases are: Ziaul Haq-October 1957 to September 1958; Muhammad Ishaq, August 1958 to September 1960 ; and Muhammad Yaqub---February 1958 to September 1962. The prosecution case is that lambardars of Tehsil Sheikhupura, on account of mutual confidence, sometimes used to leave with the appellants collections of Government dues including the land revenue on the assurance that the
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worm deposit the same after getting made in the records of other officials including the Siyaha Navis and the Treasury Office. As a guarantee in lieu of receipt, the assurance was supported by the entries of the amounts made by the appel--lants m Khatauni Registers which were maintained by them. Whenever any lambardar would ask for some kind of receipt or assurance, he would be shown the entry in the Khatauni Register. In reality however, no deposits were made by the appellants in the Treasury and they misappropriated the amounts. The total amount was about seven lacs and the matter was reported vide general F. I. R. No. 158 dated 29-12-1965. Mr. Ijaz Hussain Batalyi, learned counsel appearing for Ziaul Haq appellant, gave the details of the procedure for the deposit of the Government dues by the lambardars, as follows :----- One of the duties of a lambardar is to collect Government dues including land revenue from the Zamindars. He is personally responsible to deposit the same in the Tehsil Treasury. Before the lambardar: effects the recovery the patwari prepares the dhal bachh for his use. The patwari also gives to the lambardar the arz irsal (a memorandum) showing all the amounts which are to be paid under proper heads. He presents it at the Tehsil office before the Wasil Baqi Navis who is described in the Doule's Punjab Land Administration Manual as "Revenue Accountant". The Manual shows that he having ascertained the distribution of the amounts tendered, with reference to the village Khatauni, enters them under the proper heads in the foil and counterfoil of the Receipt Register (dakhila bahi) and initials the arz irsal if it is found correct. The lambardar then takes the arz irsal to the Siyaha Navis who after making the necessary entries gives parat dakhila (Deposit Form) in triplicate to the lambardar; who then goes to the Treasury. There the Treasury Clerk handles the matter first of all and after an involved process the amounts get deposited but lambardar's ordeal does not end. The Treasury Clerk keeps one foil of parat dakhila for record, sends the second one directly or through the lambardar to the Siyaha Navis and gives the third one to the lambardar who returns to the Siyaha Navis. The second copy is kept by the Siyaha Navis while the third remains with the larnbardar. The Siyaha Navis makes ent--ries in his Register. The lambardar again conics back to the Wasil Baqi Navis who, on seeing the receipt (parat dakhila), makes entry in the Khatauni Register of the final payment and gives the particulars therein of the person making deposit. The details given in paras 508 to 510 of the Punjab Land Administration Manual are slightly different. Impression gained therefrom is that the Wasil Baqi Navis who is the R6venue Accountant has, in law, 'sore to do with the deposit of the Government dues and thus his responsibility is more as compared to the other officials who come in contact with the lambardar in the entire process of the collection and deposit of the amount. It is an admitted position that even after the deposit, it is the responsibility of the Wasil Baqi Navis to point out the defaults in the deposit of the Government dues whereupon complaints are prepared by him and are forwarded to the Tehsildar, entry whereof is made in the Register Tadarkat. Another impression gained from pares. 509 and, 510 is that the procedure is undoubtedly cumbersome, time-consuming and inconvenient for an ordinary villager. I may mention here that in, most of the cases either positive evidence has been led to show w at the procedure was, or information has been elicited in the Cross-examination of the official witnesses. The learned counsel appearing for -all the parties in these cases have no difference in so far as the above--mentioned procedure is concerned. It may further be mentioned that Mr. Batalvi, while giving the outlines of the procedure, him--self mentioned the above-stated paragraphs of the Punjab Land Administration Manual. Initially, he had promised to place on record a simplified vernacular version of the procedure but later on, he only mentioned the above-noted paragraphs for my guid--ance on the question of procedure and has not felt it necessary to place on record the vernacular version, prepared by him. In all the cases the prosecution mainly led five items of evi--dence : first, about the service of the appellants showing their appointment and duty as Wasil Baqi Nevis ; second, evidence from the
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Treasury showing that the amounts were not deposited therein ; third, the lambardars concerned and/or their messengers, and in some cases some supporting witness to show that the amounts in question were in fact paid to the appellants ; fourth, witnesses to prove the entries showing payment of the relevant amounts by the concerned lambardars, in the Register Khatauni in the hand: of the appellants ; fifth, formal evidence Including the procedural matters and the investigation. The plea of the appellants was of general denial with regard to receipt of amounts. They also denied that the relevant entries in the Register Khatauni were in their hand. They pleaded false implication and suggested that the lambardars in order to save their own skin were, to a very large extent, responsible for their false implication. All three of them produced defence evidence. Ziaul Haq examined the largest number of defence witnesses who mainly provided the rebuttal with regard to the identity of hand--writing ; including the statement of Mr. Zaka A. Malik, the Handwriting Expert. His witnesses also tied to show that there were regular audits and further that there was supervision of Tehsil Accounts at District level by a Committee which checks the monthly statement of account known as tarij, prepared in the Tehsil office. A Tehsidar was produced to show that the lambar--dars never made any complaint to the highest Revenue Officer in the Tehsil and further that the said accused (Zisul Haq) had good conduct. It may be mentioned here that an attempt was made by the defence to produce the relevant dakhilajats and an irsals but they were not available. The defence produced by the other two accused was on the same lines except that the number of defence witnesses was different. Yaqub appellant produced only one witness in most cases. Ishaq appellant, however, added one more item of evidence, namely, that after a considerable time the Commissioner directed that the arms licences of some of the lambardarsbe cancelled. The learned trial Judge relying mainly on the statements made by the lambardars as supported by the entries made in the Regis--ter Khatauni in the hands of the appellants, and also relying on various circumstances relating to the conduct of the appellants, convicted and sentenced them under section 409, P. P. C. And section 5 (2) of the Prevention of Corruption Act. In these appeals, the learned counsel appearing in support thereof raised some legal pleas and also advanced arguments based on general principles relating to appreciation of evidence which are equally applicable to all the cases. In addition to the above, Mr. Ijaz Hussain Batalvi criticised the evidence in one ease (Crimi--nal Appeal No. 337 of 1970) in detail and stated that the same type of criticisms available also in the other two appeals of his client. Mr. Khalilur Rehman Khan picked up couple of witnesses for his comment in support of the general criticism based on the principles of appreciation of evidence and did not make detailed comment on the statements made by the witnesses in the indivi--dual cases. The legal arguments are that the orders passed by the appropriate authority sanctioning the prosecution of the appel--lants, though having been placed on the record, were neither properly proved not exhibited; that Mr. J. Soares, the predeces--sor-in-office of the' learned trial Judge (Special Judge, Anti---Corruption) was not competent to hold that office as he did not qualify for the same under the Criminal Law Amendment Act of 1958, therefore all the proceedings in these cases which took place before him are void ab initio ; that the trials convictions and sentences under two different definitions of offences, namely, section 409, P. P. C. And section 5 (2) of the Prevention of Corrup--tion Act for same impugned acts were, by virtue of section 26 of General Clauses Act, illegal. Mr. Khalilur Rehman Khan in this behalf placed reliance on Niaz Ali v. The State (PLD 1961 Lah. 269and Muhammad Sadiq Javeed v. The State (PLD 1969 Pesh.12). He also argued drat the splitting up of the accusations against his client, namely, Yaqub into 12 challans was in contravention of section 222, Cr. P. C. According to him, the number of cases could be reduced to six. Mr. Rafiq Ahmed Bajwa, on the other hand, contended that the splitting up of all the accusations
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against his client, namely, Ishaq, into three challans was not proper and because all accusations have not been tried together, therefore, according to him section 222; Cr. P. C., has not been complied with ; and lastly, Mr. Bajwa also argued that if, at all, the amount was received by his client from the lambardars for the purpose of deposit in the Treasury it was his act of grace and concession on his personal account and as in this behalf he did not act in official capacity, therefore, he has not committed any offence. On merits, it was contended: that the lambardars should not be relied upon because their position is no more than that of accomplices in all matters; that without corroboration of the statements made by the lambardars the appellants could not be convicted; that, the entries in the Register Khatauni have not been properly proved to be in the handwriting of the appellants firstly because the officials who purported to prove the handwriting were not conversant with the same and secondly, no Handwriting Expert was produced by the prosecution. And additionally Mr. Ijaz Hussain Batalvi contended that stronger evidence was produced by his client, namely, Ziaul Haq in defence to show that the relevant entities were not in his hand, these entries therefore not having been proved to be in the handwriting of the appellants cannot be treated as corroboration of the statements made by the lambardars; that the conduct of the lambardars in not reporting the matter for such a long time nor producing the receipts con--tradicts their assertions that they made the relevant payments to the appellants. Mr. Ijaz Hussain Batalvi, further added that the Wasit Baqi Navis in the normal course of his duty was to come in contact With the lambardar only twice in the entire process of the deposit and that too in an innocent manner and there is no likelihood of his having received the amount for deposit, on behalf of the lambardar who, under the law, was himself responsible for making the deposit in the Treasury. The criticism of Mr. Ijaz Hussain Batalvi on the evidence in one particular case he read will be dealt with separately. Mr. Rustam Sidhwa, learned counsel for the State, on the question of sanction contended that the orders being available on each file from the very start of the cases, the mere fact that they were not formally exhibited will not make any difference. However, by way of abundant caution, he made an application for recording of evidence in this Court which was accepted and Mr. Muhammad Ashfaq Beg of Deputy Commissioner's Office was examined who proved the sanction orders by making separate statements in all these appeals. Mr. Sidhwa frankly conceded that Mr. J. Soares was not qualified to be appointed as Special Judge. Anti-Corruption and, therefore, the evidence recorded by him will be excluded from consideration. He further pointed out the evidence recorded by Mr. Scares and the effect of exclusion there--of in individual cases. He also conceded that additional "punish--ment" under section 5 (2) of the Prevention of Corruption Act, which amounts to contravention of rule against double punishment for the same act, is illegal and to that extent the sentence might be set aside. On the question of splitting up of charges Mr. Sidhwa argued that the contentions raised by Mr. Khalilur Rehman and Mr. Bajwa are unfounded because, as he asserted, there is no contravention of any provision of the Criminal Pro--cedure Code relating to the joinder of the charges. On the last question relating, to the capacity of the appellants while receiving the amounts from the lamhardars or on their behalf for purpose of deposit in the Treasury, learned counsel contended that it was in no other capacity than the official one. Moreover, no other capacity had been relied upon by the appellants either in the suggestions made to the witnesses or in their statements under section 342, Cr. P. C. On merits. Mr. Sidhwa contended that the lambardars had no motive of their own to falsely implicate the appellants. The contrivance used was such that they could not have known that the amounts had in fact not been deposited, therefore, they did pot make any complaint in that behalf and further that there was nothing impossible in their assertion that the confidence that developed between the parties together with the entries in the Register Khatauni was a sufficient assurance for the lambardars that they were not doing anything illegal. Mr. Sidhwa further con--tended that
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the position of, the lambardars is not that of accomp--lices and, in any case, the prosecution has produced sufficient corroboratory evidence in the entries proved to have been made in the handwriting of the appellants as also their general conduct of commission and omission. He also contended that the prose--cution has led enough evidence to show that the entries in ques--tion were made by the appellants. I had reserved the judgment to these cases so that I might go through the evidence myself as the learned counsel had chosen not to read the whole of it. After reading the entire evidence it appears that the learned counsel, in so far as the factual side is concerned, probably had some justification for not reading the evidence because if their general arguments common to all the cases are not accepted they had not much to comment on indivi--dual witnesses. I will first take up the legal points. It is true that the orders of sanction were neither exhibited nor formally proved in each case. It cannot, however, be said that the said orders which were, admittedly, on the files from the very start of the proceeding against the appellants were sprung at them as surprise. The appellants are literate and they were represented by counsel who cross- examined the witnesses at length. It appears that every body presumed that the formality as to sanction has been fulfilled: The technical objection at a later stage cannot, in the circum--stances of these cases, be of much benefit to the appellants. Mr. Sidhwa cited Siraj v. The State (1970SCMR 208) in support of the con--tention that the so-called formal defect is not fatal in these cases. The ruling in so far as it goes supports the learned counsel. Bu he by way of abundant caution, examined Mr. Muhammad Ashfaq Beg from the office of Deputy Commissioner, Sheikhu--pura, who has proved all the sanction orders which have been duly exhibited. I, therefore, find no force in the technical argument raised by the learned counsel on the question of sanction. In three cases, namely, Criminal Appeals kilos. 348 (by Muhammad Ishaq). 359 and 362 (by Muhammad Yaqub), the proceedings conducted by Mr. J. Soares who admittedly was not qualified to hold the office of Special Judge, Anti-Corruption have the effect of nullifying the convictions (in those cases). In the first case he examined Sh. Muhammad Aslam, Rana Muhammad Asghar and Muhammad Rashid Hussain (P. Ws. 5, 6 std 7 respec--tively). P. W. 5 made statement about the procedure while P. W. 6 proved the entries in the Register Khatauni and P. W. 7 is the Record Keeper who deposed that the amount in question was not deposited in the Treasury Without the evidence contained in the deposition of P. W. 7, it could not be held the Muhammad Ishaq, appellant, in fact, did not deposit the amount in the Treasury after having obtained it from the lambardars Therefore, if the statement of P. W. 7 is excluded as having bee incompetently recorded and not forming part of the record, the is not enough evidence to convict Muhammad Ishaq appellant in that case. Similar is the position in Criminal Appeal No. 362 filed by Muhammad Yaqub. Apart from two other witnesses Mr. J. Soares recorded the statement of Muhammad Rashi Hussain Bokhari (P. W. 8), the only witness who deposed about the non-deposit of the amount in question in the Treasury. Fn the above-mentioned reasons, the conviction in this case ale cannot be maintained. Both these appeals (Nos. 348 and 362 o 1970) are, therefore, accepted and the convictions and sentences of Muhammad Ishaq and Muhammad Yaqub therein are set aside. In Criminal Appeal No. 359 of 1970, Abdul Haq lambardsr (P. W., 2) was examined by Mr. J. Soares. He is the only witness who m this case deposed about making any payment to Muhammad Yaqub appellant for the purpose of deposit in the Treasury. There is no other, allegation therein of any otter person making any other payment to the appellant. The state--ment having incompetently been recorded does not, in law, form part of the evidence. On exclusion thereof, there is no evidence left on the file of that case to show that the appellant therein received any amount which he did not deposit. That appeal, therefore, also has to be accepted. I order accordingly and set aside the convictions and sentences therein awarded to Yaqub appellant.
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In Criminal Appeals Nos. 358, 360, 361, 364. 365, 366 and 368 of 1970 filed by Muhammad Yaqub the amounts of Rs. 1,763, Rs. 1,778, Rs. 1,616, Rs. 715, Rs. 551, Rs. 662 and Rs. 1,300 respectively will have to be excluded from the total amount embezzled in each respective case, because the statements of the witnesses who deposed about those amounts having been paid to Muhammad Yaqub appellant were recorded by Mr. J. Soares and due to his incompetency could not be read as evidence. But the exclusion of these amounts will not make any difference in so far as the convictions are concerned because in each tine of those cases there are other witnesses who deposed about having paid amounts to Muhammad Yaqub appellant, which were not deposited by him in the Treasury, and whose statements were recorded by other Presiding Officers with regard to whom there is no such objection of incompetency. The convic--tions and sentences in those cases, subject to the decision on the question of double punishment and other questions involved in these cases, shall not be affected on account of some statements having been recorded by Mr. J. Soares which, as pointed out above, -are not the only depositions with regard to the payment of, the amounts to the appellant. In this connection, Mr. Khalilur Rehman Khan had contended that the very fact that a person who was not competent to hold the trial recorded some statements, will vitiate the entire trial. I do not agree with him. Only that part of the trial will have to be treated as void which wax held by Mr. J. Soares. There is no objection with regard to the competency of the other presiding officers including the one who convicted the appellants. There are so many decided cases where, in similar circumstances the evidence incompetently recorded was excluded and the trial was not held to have been vitiated. One such case is Alam Khan v. The Stars (PLD 1959 Lah. 331). Mr. Khalilur Rehman Khan also contended that apart from other considerations the appellant should be allowed some reduction in sentence Of fine and corresponding sentence in default of payment of fine on account of reduction in the total misappropriated amount in catch appeal. In cases of embezzlement there is some limitation in law on the minimum fine that can be imposed, but these is no such limitation on the maximum fine. There is, however, some limi--tation on the sentence of imprisonment in default of payment of fine. If the convictions and sentences, as awarded by the trial Judge, are maintained, no provision of law will be contravened and on merits, as will be discussed later, I do not consider these cases fit for reduction of sentence on the basis of the above argument. The next argument that double punishment under both the penal Provisions, namely, section 409, P. P. C., and section 5 (2) of the Prevention of Corruption Act is not permitted by law, hall force. Support for this contention can be found in Niaz Ali v. The State and Muhammad Sadiq Javeed v. The State. The question, however, arises as to how the appellants in these cases have been punished twice for the same act. The substantive sentences of imprisonment under both the provisions have been directed to run concurrently. Therefore this in practical terms, is not double punishment. It was so held in the case of Niaz Ali. The sentence of fine under section 5 (2) of the Prevention of Corruption Act and the imprisonment in default of payment thereof, undoubtedly, amounts to double punishment. I, therefore, hold accordingly and set aside that sentence in the remaining 15 appeals. On the question of the joining of several items of misappro--priations in individual cases, the arguments raised by Mr. Khald--ur-Rehman Khan and Mr. Rafiq Ahmad Bajwa are untenable. The reliance by the learned counsel is on the provisions contained in subsection (2) of section 222, Cr. P. C. On careful study there--of, I have come to the conclusion that there is no force in their contentions. Section 222, Cr. P. C., reads as follows :--- "222.-(1) The charge shall contain such particulars as to the time and place of the alleged offence, and--the person (if any) against whom, or the thing (if any) in respect of which it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.
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(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specify--ing particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234: Provided that the-time included between the first and last of such dates shall not exceed one year." According to Mr. Khalilur Rehman…
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