This is an appeal against the order of Special Judge Anti-Corruption, Karachi dated 28th April, 1975, whereby the appellant was convicted under section 409, P. P. C. Read with section 5(2) of Act II of 1947 and sentenced to suffer six months' R. I. And pay a fine of Rs. 500 or in default to suffer further three months' R. I.
2. The appellant was serving in Malaria Eradication Control Depart--ment, as Drawing and Disbursement Officer and in May, 1967, a report was made against him, to the Anti-Corruption Police Exh. 6, to the effect that the appellant had failed to render an account of the moneys entrusted to him and had embezzled an amount of Rs. 3,445:87 and thus he had abused confidence reposed in him. He was also alleged to have caused damage of Rs. 4,157.75 to a vehicle No. KAD 4157 and had also mala fide instructed Court View Service Station to issue 300 gallons. The report was lodged by Lt.-Col. Muhammad Khurshid Akhtar, Provincial Chief of the Department. 1t is not necessary in this appeal to consider the lengthy documents and depositions filed and made by the P. Ws. In this case as the learned Special Judge has found the accused/ appellant guilty of only two misappropriation of Rs. 80 in respect of salary of choukidar Ashraf for the month of. April, 1966 and a sum of Rs. 50 misappropriated during November, 1966 amounting to Ah total sum of Rs.
130. I would, therefore, deal with these two amounts only as the appellant had appealed against his conviction and the Government has not filed any appeal against the acquittal of the appellant in respect of other items.
3. In respect of misappropriation of the salary which was to be paid to choukidar Muhammad Ashraf, the case of the prosecution is based upon Exh. 11 /32, which is the voucher - for the payment made to choukidar Muhammad Ashraf, but the same does not bear his-.Signature. It was proved by P. W. Moinuddin Khan that the appellant had been paid Rs. 80 for disbursing the same to Muhammad Ashraf, choukidar and the accused /appellant has admitted in his statement under section 342, Cr. P. C. That he did receive the salary of choukidar Muhammad Ashraf from the A G. V.
R. For disbursement. However, the accused/appellant has stated (at page 120 of the paper book) that he had actually paid this amount to choukidar Muhammad Ashraf and had obtained his signature on the second sheet of the bill Exh. 11/32, which had been kept behind. Therefore, the main basis of the allegation in respect of this misappropria--tion is merely the failure of the signature of choukidar Muhammad Ashraf on Exh. 11/32, but in view of the fact that choukidar Muhammad Ashraf... Has not been examined it could not be said with certainty that the appellant had not paid the amount of Rs. 80 to Guard Muhammad Ashraf Ali for the month of April, 1966. It may be noted here that Ashraf Ali had not made any complaint to any one in the Department that his salary for April, 1966 was not paid to him, and since, there was no such complaint between May, 1966 to November, 1966, therefore, the statement of the appellant that he had paid the salary to choukidar Muhammad Ashraf Ali may be true. In any case, on account of the failure to examine choukidar Muhammad Ashraf Ali on this point the case of misappropriation of Rs. 80 on account of the salary of choukidar Muhammad Ashraf has not been positively brought home against the appellant and I do not find him guilty for the same.
4. The case of misappropriation of Rs. 50 in November, 1960 is based upon certain documents. Exh.
46 is the cheque of Rs. 863.23, which was issued by the A. G. P. R. On Ist November, 1966 and it bears the signature of the appellant, and the appellant himself admits in h1rs statement under section 342, Cr. P. C. That he had received the amount of Rs. 863.23 of the said cheque. However, in Exh.
11/1.4, which is the statement made by the appellant, he had shown an amount of Rs. 813.33 on account of this cheque, which is obviously wrong. The appellant say; that it was by mistake that this discrepancy was made. This Exh. 11/14 is a statement which was prepared by the appellant at the end of November, 1966 and was sent to A. G. P. R. The cash balance in the statement shown by the appellant is Rs. 72.99, which is again short by Rs. 50 as it should have been Rs. 112.99.
5. P. W. Ghulam Mohiuddin stated that he had detected this embez--zlement as found from the statement Exh. 11/14. The explanation offered by the appellant in this regard is that the figure in Exh.
11/14 has already been corrected, but Mr. Mohiuddin had made a definite statement that the figures have been corrected by him, and therefore, the statement of the appellant on that account cannot be accepted as no cross-examination is directed against P. W. Mohiuddin on this account.
6. I, therefore, find that misappropriation to the extent of Rs 50 is clearly established from Exh. 11/14, which is signed by the appellant himself, and since this statement was signed by him after one month of the actual receipt of Rs. 863.23 by him, therefore, it appears to be a deliberate action and not a mere mistake particularly on account of the fact that even the cash balance of Rs. 72.99 is found to be short by B Rs.
50. If there had been no embezzlement of amount by the appellant at least the cash should have been found existing in the amount of Rs. 112.99. Consequently, I find that .The appellant has not explained this shortage of Rs. 50, and therefore, on this account the conviction to the extent of misappropriation of Rs. 50 could be justified.
7. Mr. Mohiuddin contended that in view of the fact that original amount of embezzlement alleged against the appellant was Rs. 3,4-15.87, but the ultimate result has found him guilty of only Rs. 50 as the misappropriated amount, therefore, the prosecution was guilty of having made exaggerations in the case and the appellant had been harrassed on that account, and therefore, the appellant should have been sentenced to a minor penalty instead of the heavy sentence of six months.
8. The Special Judge had found that the appellant absconded from duty and he was having no fixed residence and therefore, he presumed that the appellant is an educated criminal, type person.
9. I am, however, of the view that since serious allegations, which have been ultimately found to be false had been levelled against the appellant, therefore, he may' have tried to abscond from the results of such false allegations. Consequently, I would reduce the sentence of six months to the one already undergone plus a fine of Rs. 50 or in default R. I. For one week.
10. The appeal is thus disposed of.
11. Mr. Niaz Ahmed Khan, Advocate appearing for the State had supported the appellant in respect of the misappropriation of Rs. 80 and had submitted that the same should be disbelieved on account of the failure to examine choukidar Muhammad Ashraf Ali.