Appellant above-named, being aggrieved by judgment dated 30th August, 1976, of the learned Special Judge (Central) Karachi, in case No. 3/76, by which, he convicted the appellant under section 40), P. P. C. And under section 5 (2) of the Prevention of Corruption Act and sentenced him to suffer R. I. For six months and to pay fine of Rs. 500 or in default to suffer further R. I. For six months, has preferred the above appeal, on the following facts and grounds :-
2. According to prosecution, the appellant was postman in Head post office. Hyderabad during the months of November and De--cember, 1967. In his capacity as a postman. The appellant was given on 11th December, 1967 Money Order No. 4999 along with cash of Rs. 100 for delivery to payee Munawar Ali at Wahadat Colony. Hyderabad. This money order was booked on 9th December, 1967 at Jehlum and its remitter was Dr. Muzaffar Ali Zaidi. Similarly on 24th November, 1967 the appellant as a postman, was given Money Order No. 1287, alongwith cash of Rs. 200 for delivery to payee Sadaruddin resident of Giddu. This money order was booked on 22nd November, 1967 at Pattoki by Ewaz Khan, as its remitter. Again on 15th December, 1967 the appel--lant as a postman was entrusted with Money Order No. 4848 alongwith cash of Rs. 200/- for delivery to payee Mistri Allahrakhio resident of Giddu. This money order was booked on 12th December, 1967 at Miro Khan by remitter Muhammad Pannah. The appellant entered these money orders on different dates in the postman's book and misappropriated the amount of all the money orders as alleged. Each of the money order paid vouchers was signed by appellant, showing thereby, that each of the money orders was delivered to the payee mentioned in it, along with cash. The Money Order paid vouchers also bear signatures purporting to have been made by the respective payees. The payee of the M.
O. No. 1287 viz Sadruddin complained to the Postmaster, Head. Post Office, Hydera--bad, that the Money Order of Rs. 200 sent to him from Pattoki had not been delivered to him. Similar complaints were also made by Muhammad Munawar, payee of money order No. 4999 and Allahrakhio, payee of M. O. No. 4848. In view of this, the matter was enquired by Nazir Muhammad, Inspector of Post Offices. He conducted enquiry in respect of M. O. No. 4848 and submitted his report to P. W. Wahid Bux. Post--master, who lodged complaint with Pakistan Special Police Establish--ment. The case was investigated by Inspector Ainul Hassan, who after obtaining sanction for prosecution from the Government, the appellant was shown as absconder. The appellant surrendered before the Court of Sessions, Hyderabad on 19th December, 1973 and moved for bail before arrest.
3. Sanction order for prosecution of the appellant was produced as Exh. 17.
4. Charge Exh. 2 containing prosecution allegations was read over and explained to the appellant in Sindhi and he was asked whether he admitted commission of the offence with which he was charged. The appellant pleaded not guilty.
5. Prosecution examined complainant Wahid Bux Exh. 3, and P.W.s Sad4ruddiq Exh. 9, Allahrakhio Exh. 10, Nazir Muhammad Exh. 12, Muhammad Pannah Exh. 14 and Ainul Hassan Exh.
15. Prosecution was closed under statement Exh. 19.
6. In his statement Exh. 20, the appellant admitted that he was postman in H.P.O. Hyderabad in November and December, 1967 and was a public servant. The appellant also admitted, that on 11th December, 1967 and 15th December, 1967 he was, in his capacity as a postman of Beat No. 28, Hyderabad Town, entrusted with M. O. Nos. 4999, 1287 and 4848 along with cash of Rs. 100, Its. 100, and Rs. 200 respectively for delivery to the concerned payees. He admitted, that in the Postman's Book, he bad made entries about receipt of the three money orders men--tioned above on the said dates. The appellant denied having misappro--priated the amount of said money orders and denied the allegation, that he bad not delivered the amount of these three M. Os to the genuine payees. He added, that the amount of all the three money orders was duly paid to the respective payees. He admitted his signatures on the money order paid vouchers Exh. 5, 6 and 7 concerning said three money orders. The appellant denied that he absconded after commission of the offence and stated that he was ailing. In respect of the prosecution witness were purchased by the department appellant examined Muhammad Ramzan Exh. 21 and 22.
7. The learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellant above-named as hereinbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo of appeal.
8. As learned Advocate for the appellant was seeking adjournments on one ground or the other since 16th July, 1980, I, by order dated 20th October, 1982 directed, that notice for next date of hearing be also sent to the appellant, under registered post acknowledgment due, so that above appeal, which is pending since 1976, could be beard and disposed off on the next date of bearing.
Accordingly notice for bearing for 10th Novem--ber, 1982, was sent to learned Advocate for the appellant as well as appellant. As usual a telegram was received from the learned advocate for the appellant for adjournment on the personal ground. Appellant was called absent. In view of this, I beard the above appeal, with the assis--tance of the learned Advocate for the State, who took me through Record and proceedings of the learned trial Court and impugned judgment.
9. The learned Advocate for the State submitted, that he fully sup--ports the impugned judgment for the reasons given by the learned trial Court in its judgment, as in his opinion prosecution by statements of P. Ws. Had established its case against the appellant, beyond reasonable doubt.
10. I have gone through the statements of all witnesses examined before the learned trial Court.
11. The main ground taken by the appellant in above appeal is, that he had delivered these money orders in question to genuine persons and as such the learned trial Court ought to have sent the signatures of payees on money order receipts, with admitted signatures of the said payees to the Handwriting Expert, which was not done. In the alterna--tive the learned trial Court itself should have compared the disputed signatures of P.W. 2 Sadruddin and P.W. 3, who alone were examined by prosecution in respect of their respective money orders (payee of third money order was not examined), with their admitted signatures in accordance with the provisions of section 73 of the Evidence Act and thereafter itself should have come to conclusion about the genuineness or other 'visa of the signatures of P.W. 2 and P.W. 3, but this was not done.
12. Keeping in view the main above ground urged by the appellant n memo. Of appeal, I have carefully gone through the impugned judgment of the learned trial Court as well as R & P of the learned trial court. Prosecution did not consider necessary to examine Handwriting Expert in respect of disputed signatures of P. Ws. 3 and 4 on money orders receipts, it is also clear from the impugned judgment, that the learned trial Court did not exercise its powers under section 73 of the Evidence Act and compare the disputed signatures with the admitted signatures of P.Ws. 3 and 4, by obtaining their signatures in Court. In the face of the statement of appellant under section 342, Cr. P. C., that he delivered the money orders in question to genuine payees, it was absolutely necessary for prosecution to nave examined Handwriting Expert and/or it was duty of the learned trial Court to act in accordance with the provisions of section 73 of Evidence pct, in respect of disputed signatures and ought to have come to its own conclusion to respect thereof.
In view of my above conclusions and observations, I am of the pinion, that prosecution has failed to prove beyond reasonable doubt, that honey orders receipts Exhs. 5 and 7 do not bear the signatures of P. Ws. 3 and 4 respectively, as alleged by them, which was necessary in order to establish guilt of the appellant, in the face of his statement under section 42, Cr. P. C., before the learned trial Court, as mere reliance on he statements of P.Ws. In question, when the names of their fathers are not mentioned in said money orders would be unsafe, in my opinion, keeping in view statements of defence witnesses.
14. Therefore I allow the above appeal and set aside conviction and sentences awarded to appellant and acquit him by giving him benefit of doubt and discharge the bail bon3s executed by the appellant.