' On the conclusion of the hearing of this appeal on the 9th November 1973, I had by a short order allowed this appeal and acquitted the appellant and I now proceed to record my reasons for the same.
2. The appellant. Muhammad Hassan was tried by the Special Judgecum-Enquiry Officer, Hyderabad on charges under sections 409 and 477-A, P. P. C. Read with section 5(2) of the Prevention of Corruption Act, 1947. The Special Judge by a judgment dated 28th March 1972, convicted the appellant on each one of these charges and sentenced him to undergo 12 months' R.
I. On each count namely under sections 409 and 477-A, P. P. C. And also sentenced him to pay a fine of Rs, 200, on each count viz., a total fine of Rs, 400, and in default in payment thereof to suffer further R. I. For three months on each count. Nbseeparate sentence was passed under section 5(2) of the Prevention of Corruption Act, 1947. The appellant has filed this appeal through Mr. Azizullah K.
Shaikh wbo has appeared for him and the State has been represented before by Mr. Haider Raza Naqvi.
3. Briefly stated the facts of the prosecution case are that on the 1st June 1970, which is the date of commission of the offence in this case the appellant was a tappedar holding charge of Tapo Rup in Tehml Dadu. One Sher Muhammad Jatoi, was a Zamindar of this tapa and he was liable to pay a sum of Rs, 5,859, for assessm ent. It is the prosecution case that on the 1st June 1970, this amount that was due from Sher Muhammad Jatoi was paid, and a receipt (Exh. 4) was issued in his favour.
This receipt bears No, 89 and has been issued from Book No, 2634, a receipt book which admittedly had been issued to the appellant for collection of land assessment. It seems that Ghulam Mustafa Jokhio, the Mukhtiarkar, Dadu; ordered Sher Muhammad Shaikh, the Supervising Tapedar to check the record of the appellant. The Supervising Tapedar on checking the record found that triplicate of Receipt No, 89 from Book No, 2634 shoWed collection of a sum of Rs, 60, and that from one Haji Muhammad Umar. On that basis Sher Muhammad Shaikh, the Supervising Tapedar made a report on the 27th June 1970, to Ghulam Mustafa Jokhio, the Mukhtiarkar of Dadu. It is further the case of the prosecution that this amount of Rs, 5,859, had not been shown in the Roznarneha (daily book) maintained by the appellant.
' The prosecution story then is that Ghulam Mustafa Jokhio, the Mukhtiarkar called the appellant and the latter admitted having collected a sum of Rs, 5,859, from Sher Muhammad Jatoi, the zamindar assessee and thereafter the appellant deposited this amount in the treasury vide receipt which is Exh. 6 on the record. In short according to the prosecution this was a case of temporary misappropriation.
' On the 9th July 1970 Ghulam Mustafa Jokhio, the Mukhtiarkar of Dadu sent a letter to the Circle Officer, Anti-Corruption, Dadu alleging the commission of an offence of misappropriation and falsification of record by the appellant. This report that was submitted by Ghulam Mustafa Jokhio on the 9th July 1970, was incorporated in the First Information Reports register and Mr. Loam Ali, the Circle Officer Anti-Corruption started investigation into the case. After completion of investigation he obtained a sanction for the prosecution of the appellant from the Assistant Commissioner of Dadu, and thereafter sent up the appellant to stand his trial in the Court of Special Judge, which has resulted in his conviction and sentence as aforesaid.
4. At the trial the prosecution examined Ghulam Mustafa Jokhio, the Mukhtiarkar, Sher Muhammad Shaikh, the Supervising Tapedar, Sher Mohammad Jatoi, the Zamindar assessee and Mr. Barn Ali, the Circle Officer, Anti-Corruption.
' The appellant was examined under section 342, Cr. P. C. And he denied having collected the sum of Rs, 5,859, from Sher Muhammad Jatoi towards the land revenue assessment. He also denied having issued the receipt (Exh. 4) to Sher Muhammad Jatoi or in his name. He admitted having issued a receipt for Rs, 60 to Haji Muhammad Umar from whom he had collected the said sum of Rs, 60 towards the land revenue. He further admitted that Receipt Book No, 2634 had been issued to him. He alleged that Sher Mohammad Shaikh, the Supervising Tapedar had collected this amount from Sher Muhammad Jatoi and he had misappropriated the same. It was further stated by the"appellant that the said amount was paid through Chutal, a servant of Sher Muhammad Jatoi. He denied having made any extra-judicial confession before Ghulam Mustafa Jokhio, the Mukhtiarkar and further denied having deposited this amount of Rs, 5,859 in the treasury under the challan (Exh. 6).
' The appellant examined two witnesses in his defence. The first was Haji Muhammad Umar, the assessee from whom the appellant had on his own admission collected a sum of Rs, 60 towards the land assessm ent, and the other witness was Baharuddin, also a Tapedar, who stated that Exh. 4 which is the receipt in the name of Sher Muhammad Jatoi was not in the handwriting of the appellant.
5. The first point that deserves consideration in this case is whether the appellant received a sum of Rs, 5,859, from Sher Muhammad Jatoi. He has been examined and he has stated that he had sent the amount through his Munshi Muhammad Chutal. Munshi Muhammad Chutal has not been examined, but Sher Muhammad Jatoi has stated that his Munshi Chutal had informed him that he had left the amount with the Supervising Tapedar Sher Muhammad Shaikh; because the Tapedar who is the appellant was absent from the Headquarters. According to the evidence of Sher Muhammad Jatoi, Munshi Muhammad Chutal had told him that Sher Muhammad Shaikh, the Supervising Tapedar had asked him to come after two days and collect the receipt. In cross- examination Sher Muhammad Jatoi has further stated that Chutal brought the receipt and the latter had informed him that he had obtained the receipt from the Supervising Tapedar. It is abundantly clear that the assessee Sher Muhammad Jatoi does not state that the amount of Rs, 5,859, was paid by him or his Munshi Chutal to the present appellant. In fact the assessee stated that the amount had been paid to Sher Muhammad Shaikh, the Supervising Tapedar.
6. The prosecution case then stands only on the point of issuance of receipt Exh. 4 in the name of Sher Muhammad Jatoi and the Challan Exh. 6 whereby the appellant is said to have subsequently deposited the amount in the treasury. In regard to the issuance of receipt by the appellant I find that the evidence is very doubtful. Sher Muhammad Shaikh, the Supervising Tapedar, who by the nature of his duties was supposed to check the receipt books of the various Tapedars who were working under him, and for that reason would be in a position to identify the handwriting of the appellant has stated in cross-examination that he could not say definitely if the original receipt (Exh. 4) issued to Sher Muhammad Jatoi was written by the appellant. However, he added that after seeing the other writing on the documents produced before him, he found that the handwriting on this receipt was identical with the handwriting of the appellant. Such statement by Sher Mohammad Shaikh, the Supervising Tapedar, clearly shows that the witness was not certain whether the receipt issued in the name of Sher Muhammad Jatoi was in the handwriting of the appellant. The defence witness Baharuddin is also a Tapedar and he has worked with the appellant in various Tehsils. He stated that he was in a position to identify the handwriting of the appellant and on seeing the receipt Exh. 4 which had been issued to Sher Muhammad Jatoi he stated that the same was not in the handwriting of the appellant. In cross-examination of this witness nothing has been brought out to indicate that he was obliging the appellant or was giving false evidence.
On the other hand Ghulam Mustafa Jokhio, the Mukhtiarkar clearly stated that he could not say whether the handwriting on the receipt issued in favour of Sher Muhammad Jatoi (Exh. 4) was of the appellant. No handwriting expert has been examined in this case and the position is that in regard to the writing of A the receipt, authorship has become very doubtful. All the prosecution's witnesses expressed that either they did not identify the handwriting of the appellant or they were not in a postition to identify his handwriting. On the other hand defence witness Baharuddin has clearly stated that the disputed document was not in the handwriting of the appellant. The appellant himself of course has denied having issued this receipt.
7. The only other piece of evidence against the appellant consisted of his having made extra- judicial confession in regard to collecting this amount from Sher Muhammad Jatoi towards the land assessm ent. Such fact of the appellant's admission has not been mentioned by Ghulam Mustafa Jokhio, the Mukhtiarkar in his first information report. This alleged admission on the part of the appellant further loses all its force on account of assertion in the prosecution case that the appellant had deposited this amount in the treasury after the defalcation was detected. The prosecution in that behalf relied on the evidence of Ghulam Mustafa Jokhio the Mukhtiarkar, and the original challan showing deposit of this amount. Ghulam Mustafa Jokhio, the Mukhtiarkar had not stated in the first information report that this amount had been deposited by the appellant.
What is more that even on a casual observation of this document viz., Exh. 6 whereby the appellant is alleged to have deposited the amount collected by him from Sher Muhammad Jatoi, a distinct disparity in the handwriting is visible. The signatures appearing on Exhs. 4 and 5, which are respectively the receipts alleged to have been given to Sher Muhammad Jatoi and proved to have been given to Haji Muhammad Umar, are markedly different. It is very learn even by a bare look that the handwriting on the challan whereby this amount of Rs, 5,859, was deposited later in the treasury is not in the handwriting of the appellant. Even the learned State counsel conceded that position. Ghulam Mustafa Jokhio, the Mukhtiarkar had also admitted in his cross-examination that he could not say as to who had written this challan viz. Exh. 6 whereby the amount was deposited in the treasury.
8. On a consideration of the facts of this case I find that there is no evidence whatsoever of the appellant having received this amount, and on the other hand Sher Muhammad Jatoi, the assessee has stated that Chutal, his Munshi, who had gone and deposited the Government dues had come and informed him that the amount had been collected by Sher Muhammad Shaikh, the Supervising Tapedar and not the appellant, what is more that the handwriting on Exh. 4 which is a receipt given to Sher Muhammad Jatoi is not established to be that of appellant. With regard to admissions alleged by the prosecution to have been made by the appellant to the Mukhtiarkar I have already stated that the same find no mention in the first information report. Even the challan, whereby the amount alleged to have been collected by the appellant was deposited subsequently in the treasury, is not in the handwriting of the appellant.
9. For all these reasons I am of the view that the conviction of the appellant is not maintainable. In fact it appears to be a case of no evidence and I have entertained grave doubts as to the veracity of the evidence of Sher Muhammad Shaikh, the Supervising Tapedar. In all probability it was Sher Muhammad Shaikh, the Supervising Tapedar who had collected the amount and had deposited the same in the treasury after the defalcation came to light.
10. For all these reasons the conviction and sentence imposed on the appellant is hereby set aside and his appeal is allowed. The appellant is on bail and he need not surrender. His bail bond shall stand cancelled.