1. ' This appeal has been filed by Muhammad Arshad Javed, against the judgment, dated 31st January, 1976, of Special Judge (Central), Karachi whereby he convicted the appellant under section 409, P.P.C. Read with 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to suffer R.I. For 3 months and to pay fine of Rs,4,000 or to suffer further R.I. For one year.
2. ' Briefly stated the facts of the prosecution case are that on 12-8-1969 appellant was Sub- Postmaster of Garden Post Office, Karachi while deceased Yar Muhammad was S.B. Accounts Clerk.
3. On that day an amount of Rs,2,000 was withdrawn from Pass Book number 220133 of Abdul Jalil.
4. The said amount was alleged to have been misappropriated, and no corresponding entry were in the pass book of the account-holder. It is also alleged that for the abovesaid purpose a warrant of payment was also forged with fictitious signature of Abdul Jalil. On 19-8-1969 account-holder deposited Rs,300 in his account. The then Sub-Postmaster P.W. Allah Bux of Garden Post Office sent deposit slip for auditing purpose to General Post Office where it was found that withdrawal of Rs,2,000 was shown on 12-8-1969 in the S.B. Journal but it was not entered in the pass book. P.W.
5. Allah Bux made enquiries and submitted his report to the Controller of Post Offices. Asadullah Baig an Inspector of Post Offices, conducted enquiry and submitted his report to Deputy Controller. In the meanwhile he was transferred and Muhammad Mushtaque took charge who lodged the complaint with the police.
6. ' Deputy S.P. Ziaul Hassan of Anti-Corruption Establishment registered the case. The case was investigated by Inspector, Muhammad Amin, S.I.P. Masroor Ahmed and S.I.P. Abdul Waheed.
7. Subsequently case was transferred to Garden Police Station. S.I.P., Nizamuddin verified the investigation and then challaned the accused.
8. ' Prosecution in support of the case examined complainant Muhammad Mushtaque Exh.12, P.W.
9. Khaki Jan Exh.3, Asadullah Exh.6, Allah Bux Exh.10, Abdul Haq Exh.14, P.W. Maqbool Alam, Exh.25, P.W.Muhammad Ainin Exh.31, Masroor Ahmed Exh.36 and Nizamuddin Exh.39.
10. ' Appellant in his statement under section 342, Cr.P.C. Exh.43 stated that in the month of August, 1969 he was Sub-Postmaster, Garden Post Office, Karachi. He denied having forged warrant of payment Exh.5 and also denied to have made entry about withdrawal of Rs,2,000 from the account in S.B. Journal on 12-8-1969. He stated that said .Entry was made by Yar Muhamamd S.B. Clerk. He admitted his initials on the said entry and warrant of payment. He has taken the plea that on 12-8- 1969 he had gone from Garden Post Office to Karachi University and in his absence an amount of Rs,2,000 was withdrawn by the accountholder. On his return in good faith he signed the papers.
11. Appellant examined Mirza Aziz Baig Exh.45, Shawkat Ali Exh .46, Afzal Hussain Exh.47, Muhammad Asim Exh.48 and Zafar Abbas Exh.49 in his defence.
12. ' P.W.3 Allah Bux Exh.10 has stated that on 19-8-1969 he was posted as Sub-Postmaster, Garden Post Office when Abdul Jalil accountholder came and deposited Rs,300 in his account. He handed over the pass book to Yar Muhammad for depositing the aforesaid amount. He initialled the deposit slip and sent to the General Post Office for auditing. He was informed that withdrawal of Rs,2,000 has not been entered in the pass book. On verification he found that no such entry was mentioned in the pass book, therefore, he made report to the Controller Post Office. He has produced the report Exh.11. He has stated that this discrepancy in the pass book occurred on 12-8-1969 when appellant was working as Sub-Postmaster Garden Road, Karachi. In his cross-examination he has stated that Yar Muhammad Clerk told him that Abdul Jalil account-holder had withdrawn amount but he had forgotten to make the entry in the relevant record. P.W.1 Khaki Jan Exh. 3 has stated that he is conversant with his signatures and initials of the appellant and entry in the registered S.B. Journal at page 197, dated 12-8-1969 bears the initials of the appellant. P.W.2 Asadullah Exh.6 has stated that he was Inspector Post Offices, in Nazimabad Sub-Division, in the year 1969. He conducted enquiry in respect of Saving Bank Pass Book No,220133 regarding withdrawal of Rs,2,000 from the said account. He has stated that no such entry was made in the Pass Book and he submitted enquiry report to Deputy Controller Post Offices West Division, Karachi. He has also stated that at the time of enquiry Yar Muhammad was Clerk concerned who is dead. P.W.4. Muhammad Mushtaque Burney has stated that he took over charge as Inspector, Post Offices Nazimabad in July, 1970 and in May, 1970 he lodged report of this case with the police. He has produced F.I.R. As Exh.13. He has stated that entry of Rs,2,000 was not shown in the Pass Book. P.W. Abdul Haq Exh.14 has stated that on 14-9-1971 he was Assistant Superintendent Post Offices, West Division, Karachi.
13. On that day he handed over 3 warrants of payment alongwith a letter, dated 13-9-1971 under memo. To police and produced letter, dated 13-9-1971 Exh.18. P.W. Muhammad Amin Exh.31 and P.W.
14. Nizamuddin Exh.39 are the Investigating Officers. They secured the record as stated above.
15. In the present case it is an admitted position that at the relevan time applicant was public servant and working as Sub-Postmaster, Garde Post Office, Karachi and on 12-8-1969 an amount of Rs,2,000 wa withdrawn from the S.B. Account of Abdul Jalil. The documents wer A initialled by the appellant as Sub-Postmaster. The concerned clerk Ya Muhammad died 8 (eight) days after the incident. He was the perso who prepared all relevant forms. The appellant stated that he ha gone to University for admission and transaction took place in his absence and on is return he signed the papers in good faith. This explanation is hardly believable. He has not produced any documentary proof about his admission. He had taken leave from his superiors. There appears to be discrepancy but appellant has not been convicted for the offence under section 471, P.P.C.
16. Though charge was framed. He stands convicted for the offences punishable under section 409, P.P.C. Read with section 5(2) of Act II of 1947.. The prosecution ha not been able to prove the case for the offence under section 409, P.P.C. The account-holder Abdul Jalil has not been examined. Tw persons namely appellant and Clerk Yar Muhammad were responsibl for payment. Both of them signed and initialled documents. There I no sufficient evidence to prove that appellant had withdrawn Rs,2,00 from the Saving Book Account of Abdul Jalil.
17. ' Mr. Muhammad Ibrahim Memon learned Additional A.-G. Submitted that appellant is liable for conviction under section 5(2) of Prevention of Corruption Act, 1947. Any public servant who commit or attempts to commit criminal misconduct shall be liable for punishment under section 5(2) of the Act. In this case charge for misappropriation has not been proved. The learned Special Judge in his judgment stated that prosecution has not proved beyond doubt that application for withdrawal was a forged document and there is no direct evidence to show that accused forged the application Exh.5, therefore, by giving benefit of doubt he has come to the conclusion that appellant has not committed any forgery. Therefore, his case does not come under the purview of section 5(2) of the Act. The charge against the appellant was framed under section 409/471, P.P.C.
18. Read with section 5(2) of Prevention of Corruption Act, 1947 but he was convicted under section 409, P.P.C. Only. In my view prosecution has failed to prove the case under section 409, P.P.C. Read with section 5(2) of Act II of 1947, therefore, I allow the appeal acquit the appellant. He is on bail. His bail bond stands cancelled. Before parting with this judgment it is made clear that it is open to the Department to hold departmental enquiry against appellant if they like for discrepancies pointed out in the record as discussed above.