Appellant above-named, being aggrieved by judgment dated 20th Decem--ber, 1976 of the learned Special Judge Central, Karachi, in a case No. 8 of 1976, by which appellant has been convicted under section 409, P. P. C., read with section 5(2) of Act II of 1947 and sentenced to suffer R. I. For a period of one month and to pay fine of Rs. 3,000 or in default of payment of fine to suffer further R. I. For 6 months has preferred the above appeal, on the following facts and grounds :-
2. As per F. I. R. Appellant Muhammad Qasim was Secretary, Union Council, Mirwah in District Mirpurkhas in December, 1971. Appellant was also assigned the duties as Branch Postmaster, Dano Dhandhal in same District. In his capacity as Postmaster, the appellant on 7-12-1971 carried Rs.
7,297-82 belonging to Postal Department from Dano Dhandhal to Nagar--parkar for deposit in Government Treasury. While reaching near Nagar--parkar the appellant came to know about fall of Nagarparkar and hence appellant proceeded to Mithi in same District, where he deposited Rs.
5,000 only in the post office. It was alleged, that in his capacity as Postmaster, the appellant committed criminal breach of trust, in respect of an amount of R s. 2,29782. It was added that as a Postmaster, the appellant could not keep with 4imself more than Rs. 10 as cash.
3. Such report was lodged by the Superintendent of Post Offices, Mirpurkhas with Superintendent of Police, Anti-Corruption, Hydera--bad and subsequently on 31-12-1971, F. I. A., Hyderabad registered the case.
4: The case was investigated by Inspector Mushtaq Ahmad of F. I. A., Hyderabad, who incorporamd complaint of Sajid Ali in 145, Cr. P. C. Book. On completion of investigation, he challaned the appellant.
5. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant above named, as herein-- before mentioned and consequently appellant has filed the appeal, on the grounds mentioned in the memo. Of appeal.
6. The learned Advocate for the appellant in support of the above appeal submitted, that there is no documentary evidence brought on record to prove alleged entrustment of the amount of Rs.
2,29782 to the appellant and as such the question of misappropriation on the part of the appellant does not arise at all. The learned Advocate for the appellant further submitted, that this is admitted position, that Dano Dhandhal village was occu--pied by the Indian Army during the crucial period and as such appellant's statement under section 342, Cr. P. C., that all the money including his own money, documents and papers relating to his office were left behind him in his office at the said village, as he had first gone to Nagarparkar and then ultimately to Mithi, where he deposited a sum of Rs. 5,000 belonging to the post office, cannot be ignored. In view of this the learned Advocate for the appellant submitted, that in the absence of any documentary evidence, that the appellant had in fact received a sum of Rs. 2,297'82 in his capacity as the Postmaster of Dano Dhandhal village and keeping in view appellant's statement under S. 342, Cr. P. C., the prosecution has failed to establish its case against the appellant, beyond reasonable doubt.
7. The learned Advocate appearing for the State conceded, that the village in. Question was occupied by the Indian Army during the crucial period and that the appellant in fact had deposited Rs. 5,000 at Mithi and was unable to return to Dano Dhandhal village as the same was occupied by the Indian Army in his absence and in the absence of any documentary evi--dence brought on record by prosecution, that the appellant in fact bad received Rs. 5,29782 in this capacity as the Postmaster of the village in question, the prosecution has failed to establish its case against the appellant beyond reasonable doubt and as such he does not support the impugned judgment;
9. I find that prosecution has led no evidence beyond reasonable doubt to establish, that the appellant has actually misappropriated a sum of Rs. 2,297'82 as alleged, as neither there is documentary evidence to establish receipt of such amount by the appellant nor there is any evidence to show that the said amount was really misappropriated by the appellant. On the contrary the assertion of the appellant shows, that some amount belonging to the post office, which was in his possession exceeding Rs. 5,000 which he deposited at post office Mithi, the same was left by him at the, village post office for distributing the money orders, which were received at the said village, but before he could do so on his return from Mithi, village in question was occupied by the Indian Army and as such not only said amount, but his personal money as well as other belongings and documents were lost on account of said occupation and as such there is no question of any misappropriation done by him, cannot be ignored, as it is an admitted position, that the village in question, was occupied by the Indian Army as asserted by the appellant in his statement under section 342, Cr. P. C. And consequently the explanation given by the appellant is plausible. In addition to this I find that in the letters written by the appellant in reply to inquiries from him, in connection with this alleged misappropriated amount, there is no clear cut admission on his part to have either received the said amount or that the said amount or any other amount which was in his possession and left by him at the village in question was misappropriated by him.
10. It is pertinent to note, that appellant did deposit Rs.- 5,000 at Post of Ice Mithi, which corroborates his statement under section 342, Cr. P. C. And as such it does not seem plausible, that the remaining amount, whether it was Rs. 2,297-82 or less was misappropriated by him. In view of these conclusions of mine, I am of the opinion that the prosecution has failed to establish beyond reasonable doubt, that the appellant bad misappropriated the amount in question
11. Therefore I allow the above appeal and set aside the conviction o the appellant and sentences awarded to him and acquit him by giving him benefit of doubt. The appellant is on -bail and as such his bail bonds are discharged.