Ihsanullah vs State

Judgment Sheet

IN THE PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

JUDGMENT

Cr.A No.44-P of 2015 Date of hearing......04/03/2015

Ihsan Ullah Vs The State.

Appellant(s) by..................................................................

Respondent(s) by................................................................

ABDUL LATIF KHAN, J:- This appeal has been preferred against judgment and order dated 26.01.2015, passed by learned Special Judge, Anti-Corruption (Provincial), KPK, Peshawar whereby the appellant involved in case FIR No.09 dated 09.09.2004 u/s 409 PPC/ 5(2) PC Act/ 512 Cr.PC, P.S. ACE, Peshawar, was convicted and sentenced as under “U/S 409 PPC for a term of 02 years RI with a fine of Rs.20,000/- or in default thereof to undergo SI for six months,

U/S 5(2) of the Prevention of Corruption Act, for a term of 02 years R.I with a fine of Rs.20,000/- or in default thereof to undergo SI for six months.

2.As per prosecution case, vide letter No.6214/EC dated 03.09.2004, Commandant FRP,

Peshawar reported to the Provincial Police Officer, Peshawar regarding embezzlement of huge amount during audit of accounts of SP FRP, Peshawar Range for the year 2001-2002, in leave with pay head, sports fund, mosque funds, medical insurance scheme (total amount of Rs.8,64,375/-) which were detected against the appellant/convict. After conducting inquiry and other legal proceedings, permission for registration of case was granted by Director ACE against appellant/convict and his arrest. Consequently instant FIR was registered against the appellant/convict.

3.After completion of investigation, initially challan u/s 512 Cr.PC was submitted against the appellant/convict as he was avoiding his lawful arrest and on conclusion of trial in his absentia, he was declared Proclaimed Offender. After his arrest, supplementary challan was submitted against the appellant and in order to prove its case, the prosecution examined as many as 8 witnesses.

4.Arguments heard, record perused.

5.Perusal of record reveals that

appellant/convict has been charged for misappropriation of Rs.8,64,375/- from different heads while serving as Accountant in FRP, Peshawar. The star witnesses of prosecution are Muhammad Younas (PW.3) who

conducted investigation in the instant case; PW.8 Khurshid Hassan DSP, who conducted inquiry in respect of the matter against the appellant. Both these witness collected sufficient material against the appellant in the shape of affidavit Ex.PW.3/1 submitted by appellant regarding deposit of embezzlement amount, directive of registration of criminal case Ex.PW.3/2, audit report Ex.PW.3/3, according to which actually embezzlement has been made in different heads by the appellant.

6.The plea that matter reported with

considerable delay is misplaced, as embezzlement amount was deducted by the Audit team and audit report clearly links the convict/appellant with the commission of offence. The appellant failed to rebut the allegations of embezzlement leveled against him by prosecution which is duly affirmed by the affidavit Ex.PW.3/1 submitted by the appellant to the concerned officer for deposit of embezzled amount but he deposited only Rs.1,50,000/- despite undertaking to adjust all the amount embezzled however failed to deposit the same, meaning thereby that he has admitted his guilt by submitting said affidavit and partial adjustment of amount. He was admittedly serving as Accountant at the relevant time which fact has not been denied by the appellant nor he produced any cogent or

strong evidence in his defence regarding his innocence.

Besides, there exists sufficient material available on file connecting the appellant with the commission of offence.

All the prosecution witnesses were cross examined at length by the defence but nothing beneficial from their mouths were brought out which could be made basis for acquittal of appellant. The appellant has also failed to produce any defence in support of his innocence even in his statement u/s 342 Cr.PC, he could not offer any plausible explanation regarding his involvement in the commission of offence but only answered that he is innocent and falsely been charged. He did not opt to be examined on oath or to produce defence evidence in support of his plea of innocence. He also failed to point out any ill-will or enmity with the complainant or prosecution witnesses due to which he was falsely implicated in the instant case. The prosecution has successfully proved its case against the appellant by producing cogent, confidence inspiring evidence and the burden to discharge the same, lies on the shoulder of appellant but he failed to do so by producing any defence in support of his contention. No illegality or irregularity has been pointed out by the defence in the impugned judgment which needs no interference.

Therefore, the appellant was rightly held guilty for the

crime and his conviction is based on sound reasons and proper appraisal of evidence.

7.In view of what has been observed above, the instant criminal appeal being devoid of merit is dismissed and conviction and sentence awarded to the appellant by trial Court vide impugned judgment is maintained.

8.It is pertinent to mention that in the instant case, accused was granted bail till disposal of appeal by this Court with the direction to appear on each and every date of hearing. Today in the early hours the appellant was present in Court at the time of arguments but when the case was again called, he did not turn up. Repeated calls were made but he did not appear which shows that he is intentionally avoiding his lawful arrest therefore, he is declared Proclaimed Offender. Perpetual warrant of arrest be issued against him under the law.

Announced Dated: 04.03.2015.

JUDGE

“A.Qayum”