1. The appellant above-named, being aggrieved by judgment dated 30th August, 1976 of the Special Judge (Central) Karachi, in case No. 49/74, 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 one year and to fine of Rs. 15,000 or in default to suffer further R. I. For 3 years, has preferred the above appeal, on the following facts and grounds :- According to prosecution, on 2nd December, 1971, the appellant was Sub-Post-Master, Karachi University Post Office, Karachi in which Mrs. Jilani Haq deposited in her S. B, Account No. B-725 a sum of Rs. 2,000. The appellant took this amount with the deposit form duly filled in and made entry of the said amount in her Pass Book. Appellant returned the Pass Book to Mrs. Jilani. The entry about deposit of said amount was initialled by the appellant but it was put date stamp of 22nd December, 1971. This deposit of Rs. 2,000 was not mentioned in the S. B. Journal or in Sub-Office Slip of said post office dated 2nd December, 1971. In this way, said amount of Rs. 2,000 was allegedly misappropriated by the Appellant to whom it was entrusted in his capacity as a public servant. It was further alleged that on 28th December, 1971, said post once was visited by P. W. Asadulla Baig Exh. 14, Assistant Superin--tendent of post offices, who was accompanied by P. W. Rehan Aziz Exh. 5, Dy. Controller of post offices. P. W. Asadullah inspected the record of said post office on 28th December, 1971 when the appellant was missing. In the Sub-Office Slip of 28th December, 1971, P. W.
2. Asadullah found figure of Rs. 14,395/91 in the opening balance but closing balance of the same was left blank. According to his calculation, the figure in the closing balance should have been Rs.
3. 14,680.85. He found that total collection for 28th December, 1971 was Rs. 1,049.86. In this way P. W, Asadullah Baig found shortage of Rs 13.6 310.99 in said post office on 28th December, 1971.
4. Subsequently, on 1st Janu--ary, 1972 the safe of said post office was opened by the appellant in presence of P. W. Asadullab and other persons. The safe was found to contain Rs. 63, certain postage stamps, etc. The value of which including the cash was Rs. 2630,02. This amount was deducted from the shortage found on 28th December, 1971 and net shortage came to Rs. 11,000.97.
5. This amount was allegedly misappropriated by the appellant, who could not account for it. In view of this, P. W. Asadullah relieved the appellant of his duty as incharge of said post office on 1st January, 1972 and lodged the complaint Exh. 17 with police. The case was regis--tered by Pakistan Special Police Establishment, who incorporated the contents of the complaint Exh. 17 in F. I. R. Exh. 27.
6. After due investi--gation, by S P E, the case was transferred to S. H. O. New Town, who submitted challan against the appellant.
7. Under a letter dated 5th November, 1974, my learned predecessor moved the Government of Pakistan for sanction to prosecute the appellant. The requisite sanction was neither granted nor refused. Under an order dated 20th January, 1975 the requisite sanction was taken to have been granted.
8. Substance of 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. The appellant pleaded not guilty and claimed trial.
9. Prosecution examined complainant Asadullah Exh. 14 and P. Ws. Muhammad Alam Exh. 3, Rehan Aziz Exh. 5, Abdul Ghafoor Exh. 13 Mrs. Jilani Exh. 18, Muhammad Afzal Exh. 20, Muhammad Aslam Exh.
10. 21, Jamil Asghar Exh. 22, Azizur Rehman Exh. 25 and Rao Muhammad Amin Exh.
26. The prosecution was closed under statement Exh. 30.
11. In his statement Exh. 31, the appellant admitted that he was Sub Post-Master, Incharge of Karachi University-Post Office Karachi and as such a public servant during the period from April, 1971 till December, 1971. He admitted deposit of Rs. 2,000 in the account of Mrs Jilani but he contended that such deposit was made on 22nd December, 1971 and not on 2nd December, 1971. He admitted entry in pass book of Mrs. Jilani for the deposit of Rs. 2,000 on 2nd December, 1971, and also admitted his initial on that entry. He contended that said entry was bearing date stamp of 27th December, 1971.
12. He denied if said deposit was made on 7th December, 1971. He denied misappropriation of Rs. 2,000 by him. In respect of despatch of cash of Rs. 2,00j, deposited by Mrs. Jilani, to the Head Office, the appellant stated that the same was secured by the Inspector before it could be sent to the Head Office. He denied shortage of cash on 27th December, 1971 and admitted that: he was not present in said post office on 28th December, 1971. In respect of opening of the safe of said post office in his presence on 1st January, 1971, the appellant et lamed that the same was already lying open and it was not opened by him. He admitted that she sale contained the articles as per Inventory Exh 4.
13. The appellant denied shortage of Rs. 1,000.97 paisas in said post office and stated that no transaction took place in said post office on 28th December, 1971. The appellant did not wish to examine himself in his defence. In his defence, the appellant gave names of four persons, out of whom two were given up while D. Ws. Muhammad Mustafa Khan Exh. 34 and Azizullah Exh. 35 were examined and the defence was closed vide statement Exh.
38. On the date of recording the defence evidence, the counsel for the appel--lant moved for an Handwriting Expert to be summoned after he inspected the questioned and admitted documents. This request, having been made at a late stage, could not be accepted.
14. The learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellant above named as hereinbefore mentioned and consequently appellant has filed the above appeal, on the grounds mentioned in the memo of appeal.
15. The learned Advocate for the appellant in support of the above appeal submitted as under:-
(a) That Exh. 14 the alleged inventory of the safe prepared was not established as correct, as P. W. 1 Muhammad Aslam, the Mashir of the said inventory did not support the prosecution and was declared hostile and as such prosecution has failed to prove alleged misappropriation of the said amount of Rs. 11,000 beyond reasonable doubt.
(b) That P. W. 5 Mrs. Jilani was not sure about the date of the deposit of Rs. 2,000 by her in the said account and as such the statement of the Appellant under section 342, Cr. P. C. That she deposited the said amount on 27th Dec5mber, 1971 and not on 2nd December, 1971 ought to have been accepted.
16. (c)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 mouths 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 SCMR 36, PLD 1965 SC 179, 1975 Pak. Cr. L J 634 and PLD 1962 SC 489.
17. The learned Advocate for the State on the other hand submitted, that in view of the appellant's own answer, which is falsified by Pass Book of P. W. Mrs. Jilani, the prosecution case in respect of sum of Rs. 2,000 at least stands fully proved against the appellant. The learned counsel for the State further submitted, that the prosecution has also established its case beyond reasonable doubt in respect of the sum of Rs. 11,000 misappropriated by the appellant, by the statements of the prosecution witnesses and consequently, he supports the impugned judgment.
18. 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 and the impugned judgment. Prosecution case regarding alleged breach of Criminal Trust of a sum of Rs. 11,000 rests on the statements of P.
19. W. 1 Muhammad Alam (Mashir of the Inventory), who was declared hostile, P. W. 2 Rehan Aziz. P. W. 3 Ghafoor Khan, P- W. 4 Asadullah Baig, P. W. 6 Muhammad Afzal, P. W. 7 Muhammad Aslam, and P.
20. W. 8 Jamil Akhtar Kayani. I have carefully gone through their statements, and in my opinion their statements do toot prove beyond reasonable doubt alleged shortage of Rs. 11,000 in the safe of the Post Office and furthermore, the inventory of the said safe is also not established as correct beyond reasonable doubt.
21. As far as misappropriation of the sum of Rs. 2,000 deposited by P. W. 5 Mrs. Jilani in her account, I find that appellant has admitted entry of the said amount in the Pass Book of the said witness, but stated, that the said amount was deposited on 27th December, 1971, whereas the Pass Book shows in the handwriting of the appellant, that the said amount was deposited on 2nd December, 1971, but the seal of the Post Office against the said entry is dated 22nd December, 1971 and not 27th December, 1971 as alleged by the appellant. In the face of appellant own admission, that the date 2nd December, 1971 in the Pass Book of B P. W. 5 is in his handwriting. Prosecution by the statement of P, W. 2 Rehan Aziz has established, that the said amount which was deposited on 2nd December, 1971 was not shown in the S. P. General of the said Post Office Exhs. 9 and 10, by the appellant on the said date. In view of this I am of the opinion, prosecution has established charge in respect of this amount against the appellant, beyond reasonable doubt, as I find that assertions made by P. W. 2 Rehan Aziz were not challenged in his cross-examination by the appellant.
22. Therefore, in view of my above conclusions, in my opinion, prosecu--tion has failed to establish its charge in respect of misappropriation of Rs. 11,000 against the appellant. However, the charge of misappropria--tion in respect of Rs. 2,000 deposited by the P. W. 5 Mrs. Jilani in her account on 2nd December, 1971 has been established by her statement as well as by the statement of P. W. 2 Rehan Aziz, beyond reasonable doubt.
23. Therefore, while dismissing the above appeal in respect of the said amount of Rs. 2000 deposited by P. W. 5 Mrs. Jilani, I maintain the conviction of the appellant only on this account and consequently reduce the sentence of imprisonment awarded to him from 1 year, to period already under gone by him and also reduce the fine imposed on the appel--lant from Its. 15,000 to Rs.
24. 4,000 and in default of payment of said fine to suffer R. I. For 1 year. However, I allow 3 weeks, time to the appellant to pay the said fine, failing which the learned trial Court is directed to issue non bailable warrants for the arrest of the appellant and on his arrest to remand him to judicial custody to serve out sentence awarded to him in lieu of fine, by this judgment.
25. The above appeal stands dismissed in the terms of the above order.