ABDUL HAQ Versus STATE
1. Appellant abovenamed, being aggrieved by judgment dated 30th August, 1976 of the learned Special Judge (Central) Karachi, in case No. 48/76, whereby appellant has been convicted under section 409, P. P. C. and section 5 (2) of the Prevention of Corruption Act, 1947 and sentenced to suffer R. I. for 1 year and to fine of Rs. 3,000 or in default to suffer R. I. for 3 months, has preferred the above appeal, on the follow ing facts and grounds : ‑
2. According to prosecution, the appellant was Sub‑Postmaster of Karachi University Post Office, Karachi from April, 1971 to December, 1971. P. Ws. Muhammad Momin Yawar Hussain and Muhammad Azam had S. B. A/c in said post office. On 28th December, 1971, P. W. Muhammad Momin deposited a sum of Rs. 800 in his S. B. Account No. 456812. On 21st May, 1971, P. W. Yawar Hussain deposited Rs. 1,800 in his S. B. Account No. 463150 with said post office. The amounts deposit ed by said persons on said dates were duly received by the appellant in his capacity as Sub‑Postmaster and he made such entries in the respective pass books under his initial but did not make corresponding entries in the Sub -Office Account of said post office. In this way, the appellant was alleged to have misappropriated Rs. 800 entrusted to him on 28th December, 1971 and Rs. 1,800 entrusted to him on 21st May, 1971 as a public servant. The Pass Book of Yawar Hussain was taken from him by the appellant on 21st May, 1971 and in token of that, he had given a Receipt Exh. 9, wherein the last credit balance of Rs. 2511.75 paisas including the amount of Rs. 1,800 deposited on 21st May, 1971 was shown. The appellant was further alleged to have fraudulently withdrawn a sum of Rs. 50 from S. B. Account No. 503721 in name of Muhammad Azam on 3rd January, 1972. All this was detected on 21st February, 1972 when P. W. Asadullah Baig Exh. 3 received a report from Muhammad Mustafa, Inspector of post offices, Karachi. On the basis of said report, he lodged complaint with Police.
3. Contents of the complaint were incorporated in 154, Cr. P. C. book by Pakistan Special Police Establishment on 15th April, 1972. The case was investigated by Rao Muhammad Amin, Inspector, P. S. P. E. Sub sequently, the investigation was transferred to S. H. O., New Town Police Station, who challaned the appellant, after registering a separate F. I. R. at his Police Station.
4. Under a letter dated 5th November, 1974, trial Court moved the Government of Pakistan for sanction. Requisite sanction was neither re ceived nor withheld. Trial Court under an order dated 20th January, 1975 took the sanction to have been granted.
5. Substance of the allegations Exh. 2 was read over and explained to the appellant, who was called upon to show cause as to why he should not be convicted for the offence with which he was charged. The appellant pleaded not guilty and claimed trial.
6. Prosecution examined complainant Asadullah Baig Exh. 3, P. Ws. Yawar Hussain Exh. 8, Muhammad Momin, Exh. 10 Jamil Akhtar Exh;
11. Azizur Rehman Exh. 13, Rao Muhammad Amin Exh. 14 and Muhammad Alam Exh.
18. The prosecution was closed under statement Exh. 19.
7. In his statement Exh. 20, the appellant admitted being a Sub‑Post master of Karachi University Post Office from April, 1971 to December, 1971 but he denied that Rs. 800 were deposited with him by P. W. Muhammad Momin on 28th December, 1971 or if Rs. 1,800 were deposited with him by Yawar Hussain on 21st May, 1971. He stated that P. W. Iv4uhammad Momin requested him on 27th December, 1971 to accept deposit of Rs. 860 in the date 28th December, 1971. That be refused the request as the time was over. The appellant admitted that the entry dated 28th December, 1971 in Pass Book Exh. 7 of P. W. Muhammad Momin was made by him and it was bearing his signature. He went on to say that he was yet to make entry in respect of Rs. 800 in other record on 28th Decem ber, 1971 but the record was taken over by the Inspector on said date. The accused denied if receipt Exh. 9 was issued by him to Yawar Hussain. The appellant denied having committed criminal breach of trust in respect of the amount of Rs. 800 and in respect of Rs. 1,800 and in respect of Rs. 50, allegedly withdrawn by him from the account of P. W. Muhammad Azam.
8. The appellant added, that P. W. Yawar Hussain had not paid him any amount, and that the prosecution witnesses were postal employees.
9. The appellant did not wish to enter in witness box, as a witness in his defence.
10. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant abovenamed as herein before mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo of appeal.
11. The learned Advocate for the appellant in support of the above appeal submitted as under:‑
(a) That prosecution failed to produce accounts of Sub‑Post Office in question in order to establish, that sum of Rs. 1,800 alleged to have been received from Khawaja Yawar Hussain and 21st May, 1971 was not credited in the receipts of the said date, in the said Sub Post Office. Similarly the prosecution failed to produce the accounts of the said post office dated 28th December, 1971 to show that a sum of Rs. 800 received from Mr. Muhammad Momin were also not credited in the receipts account of the said Sub‑Post Office on the said date and as such prosecution has failed to establish its case in respect of these two accounts completely. As for as a sum of Rs. 50 alleged to have been withdrawn by the appellant from the S. B. Account of Muhammad Azam on 3rd January, 1972, prosecution did not examine the said account holder nor has proved such withdrawal beyond reasonable doubt.
(b) In the alternative, the case is of 1971 and the appellant had to face a long trial and furthermore he remained in custody in all for over 3 months and as such this is a fit case, where the sentence awarded to the appellant be reduced to one already undergone by him. In support of this contention the learned Advocate for the appellant relied upon cases reported in 1973 S C M R 36, P L D 1965 S C 179, 975 P Cr. L 1 634 and P L D 1962 S C 489.
12. The learned Advocate appearing for the State on the other hand submitted, that the prosecution has established his case beyond reasonable doubt against the appellant by the evidence adduced by it and as such he fully supported the impugned judgment.
13. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R. & P. of the learned trial Court as well as the impugned judgment.
14. I have gone through the statement of P. W. 2 Yawar Hussain which only proves, that he did deposit a sum of Rs. 1,800 in his Saving Account on 21st May, 1971 and the appellant made such entry in his pass book. This witness however, stated that he returned the pass book to the appellant for getting entries regarding the interest accrued to him and the appellant gave him Exh. 9 as a receipt, but unfortunately he stated, that till that date he had not received back his pass book. The statement of this witness does not prove, that the appellant did not deposit the said amount in the receipts of the Post Office for the said date even if it was read by him. Furthermore appellant in his statement under section 342, Cr. P. C. has denied issue of Exh.
9. In spite of the prosecution has led no evidence to prove, that Exh. 9 is in the handwriting of the appellant. It may further be noted, that this witness has made no complaint whatsoever, that his account does not show credit of Rs. 1,800 deposited by him on 21s May, 1971 nor he complained about non‑return of his pass‑book at all for long time and as such no reliance can be placed on his statement, without in dependent corroboration in my opinion is not at all available.
15. P. W. 2 Muhammad Momin also in his statement before the learned trial Court stated, that he deposited Rs. 800 on 28th December 1971 in his Saving Bank Account and the appellant made such entry in his pass book. This statement of this P. W. does not prove, that the appellant did not credit the said amount in the receipts account of the Sub‑Post Office on said date. The appellant in his statement under section 342, Cr. P.C has given explanation, that before he could make entry of the said amount in the record of the said Sub‑Post Office, the said record has taken away by Inspector. It may further be noted, that this witness . has also not filed any complaint or even stated, that amount in question was not credited to his account in the records of the said Sub‑Post Office.
16. That in respect of the alleged withdrawal of Rs. 50 from the account of Muhammad Azam, prosecution has not examined the said account holder, but has examined P. W. 7 Muhammad Alam a clerk of the said Sub‑Post Office. I find the statement of this witness cannot be taken into account as it is an hearsay from Mr. Azam, who has not been examined. In addition to this I do not find sufficient evidence on record to prove the charge in respect of Rs. 50 beyond reasonable doubt.
17. In view of my above appraisal of the prosecution evidence brought on record and in the absence of the production of account books or receipt book of the said Sub‑Post Office in respect of the relevant dates, in my opinion prosecution has failed to establish its case beyond reasonable doubt, against the appellant in respect of all the three charges.
18. Therefore, I allow the above appeal and set aside the conviction of the appellant and sentences as awarded by impugned judgment and acquit him by giving him benefit of doubt and discharge the bail bonds executed by the appellant in the above appeal.
19. Appeal allowed.