ALI MUHAMMAD BALOCH, J.- Appellant Anwar Khan was convicted and sentenced to undergo R.I. For one year and ordered to pay fine of Rs. 1,000/-, in default whereof he had to undergo R.I. For three months more. The above judgment and sentence was passed by Special Judge (Central-I)
Karachi on 29.10.1991 for an offence punishable under section 409 PPC read with section 5 (II) of the Prevention of Corruption Act, 1947.
2. Appellant Anwar Khan has challenged the judgment and sentence passed against him by this appeal which was filed on 27.11.1991.
3. The facts of the case, in short, are that the appellant was serving as a V.P. Clerk in the Registration/Delivery Branch at Saddar Post Office Karachi. One of the functions assigned to him was to deliver V.P. Parcels to the Postman for their delivery to the addressees, and when the parcels were delivered by the postman, he used to receive the value of the parcels from the postman, enter the same in his register and send the amount to the sender of the V.P. For which he had to maintain the necessary record.
4. It was alleged that during the period December, 1983 to June, 1984 the appellant was posted as a clerk in the V.P. Branch and during that period he had received the value of the V.Ps. From the postman but instead of sending them to the persons concerned, he misappropriated the value of the V.Ps. Which amounted to Rs. 17,915/75. In some cases, he had entered lesser amount than the actual value of the parcel in the register and, thus, was found guilty of misappropriation of the Government money which was entrusted to him for safe return to the owners of that money.
5. The appellant during the trial was charged for offences punishable under section 409 P.P.C, read with section 5 (II) of the Prevention of Corruption Act, 1947. The appellant did not plead guilty and, therefore, he was put to trial. The prosecution examined witness, Syed Abdul Sami, the Assistant Post Master whose duty was to check the correspondence, as well as working of the clerks. During his checking in the year 1984 from the registers of the Registration Branch, he had found the misappropriation of the amounts relating to the values of the parcels which were given to the appellant by the Postman after delivering the parcels to the owners. The appellant was given the chance to cross-examine the witness but he did not avail the chance of cross-examination. This witness produced the necessary records of the office which showed the entries of the V.Ps. And the entries in the registers which bore the initials of the appellant. The other witnesses from the prosecution were, Farid Ahmed, Muhammad Hanif who were formal witnesses. They wee also not cross-examined. The fourth witness from the prosecution side was Mulazim Hussain. He was also an Assistant Post Master in Saddar Post Office in 1984- He had checked the record in possession of the appellant and had found that 59 cases of V.Ps. Were lying with the appellant which had not been shown to be disposed of. This witness warned the appellant to dispose of the cases within to days and return the V.Ps. To the senders in case the value of the V.Ps. Was not received by him. This witness further deposed that even after the warning, the appellant, without any justification, did not send the required money. This witness further noted that he had observed from the record that from the months of December, 1983 upto April, 1984 the amounts of the V.Ps. Were misappropriated by the appellant and, therefore, he had reported the matter to the Post Master, Saddar Post Office.
No cross-examination was made to this witness.
6. Yet another witness examined by the prosecution was Muhabat Sher, Sub-Inspector of Police of P.S. Artillery Maidan who had registered the case against the appellant and conducted the investigation, seized the record and recovered the relevant documents from the Post Office and had got the had-writing of the appellant on the relevant documents compared through an expert.
He produced such documents. The Hand-writing expert, Mr. Mouladad was also examined who gave his opinion about the handwriting and initials of the appellant on the relevant registers in positive. These witnesses were also not cross-examined by the appellant.
7. The statement of the appellant under section 342 Cr.P.C, was recorded in he denied the allegations and stated that by making entries in the registers, he might have committed such mistakes. He also submitted a written reply in his on had-writing before the Court in which he stated that he had not misappropriated any amount and that there might be certain mistakes in the entries in the registers, made by him. In reply to a question as to whether he wanted to examine himself to disprove the allegations against him on oath, he replied in the positive but surprisingly the appellant does not appear to have examined himself on oath, and there appears no explanation in the trial Court record as to why he was not examined on oath when in his statement under section 342 Cr.P.C., he had shown his willingness to be examined on oath.
8. On 30.7.1991 prosecution witness, Farid Ahmad was present and the record of the case shows that the appellant had moved an application for adjournment on the ground that his advocate was busy in High Court, such application was rejected by the trial Court and witness was examined and the appellant did not cross-examine this witness. The record further shows that another witness Asadullah Baig who was Post Master at the relevant time was examined on 10.9.1991. He to has been shown as witness No. 5, Ex.
10. He was also not cross- examined by the appellant.
9. It appears from the record that the appellant who was a clerk in the post office neither cross- examined any of the witnesses himself nor he had utilised the services of a counsel. Therefore, it became the duty of the Court to examine the evidence on record with caution and care before announcing the judgment.
10. The learned counsel for the appellant, while arguing the case did not assign any reason as to why the witnesses were not cross-examined during the trial but he led stress only on one aspect of the case i.e. He challenged the validity of the necessary sanction for the prosecution. The learned counsel contended that sanction for prosecution under section 6(5) of the Pakistan Criminal Law Amendment Act, 1958 had not been filed with the challan and therefore the Court had to address a letter to the concerned department/ministry and in case of refusal or non-receipt of the sanction, it was to be deemed by the Court that the sanction had been accorded. The learned counsel pointed out that in this case the learned trial Court had addressed the letter dated 21.10.1987 to the Secretary, Ministry of Interior, Government of Pakistan, Islamabad and according to the learned counsel, this was not addressed to the proper Ministry as, according to him, the appellant was serving under the Ministry of Communication, while the letter sent by the learned trial Court was addressed to the Ministry of Interior and, therefore, it should not be .Presumed that the sanction was deemed to have been accorded, after expiry of sixty days period of such letter as required by law. The learned counsel for the appellant in support of his contention relied on the case of Syed Afaq Ali v. The State and 3 others, reported in 1983 P. Cr.L.J. Page 897. In this case it was held that when an accused was working in Postal "Department his relevant authority was the Ministry of Communication and, therefore, the writing of the letter to the Secretary of Ministry of Interior was not proper, consequently failure on the part of the Government to reply to such letter, could not be deemed to be proper communication from trial Court and, therefore, the sanction had not been accorded, as such trial vitiated, and hence the appellant was entitled to acquittal.
11. I do not agree with the point raised by the learned counsel for the appellant, as in a subsequent case, Muhammad Arshad Jawaid v. The State, decided by a Division Bench of this Court reported in 1985 P. Cr.L.J, page 310, the point relating to the sanction of prosecution under section 6(5) of Pakistan Criminal Law Amendment Act, 1958 was minutely examined and the expression "appropriate Government" was held to be the relevant Government with regard to the service of the accused i.e. Federal Government or the Provincial Government, as the case may be. It was also held that work of the anti-corruption law had been assigned to the Ministry of Interior by the Federal Government "and, therefore, in case of Federal Government employees, the learned Special Judge Anti-Corruption had to address his letter to the appropriate Government i.e. Federal Government, through the Ministry of Interior, for the prosecution of the public servants of grade-16 and below. The appellant in this case is admittedly a public servant below grade-16, and, therefore, it is evident that the Ministry of Interior, Government of Pakistan was the competent authority to accord sanction for prosecution as held in the above reported case. The contention of the learned counsel for the appellant, therefore, has no substance to hold that the sanction presumed to have been accorded, was not legal.
12. The learned counsel for the State as well as the learned A.A.G, who appeared in this case on different dates had both supported the judgment of the trial Court and contended that sanction had been rightly presumed as necessary letter to Ministry of Interior had been sent by the trial Court, and for a period of sixty days no reply was sent refusing the sanction.
13. After giving careful consideration to the arguments of the learned counsel for the parties and also scrutinising the evidence recorded by the trial Court and being conscious of the fact that appellant had not cross-examined any of the witnesses nor he had used the services of any counsel at the time of examination of the witnesses, I do not find anything wrong with the assessm ent of the evidence by the trial Court in arriving at the conclusion that the appellant was guilty of misappropriation of the Government money which was entrusted to him. The substance of the evidence of the employees of the Post Office makes it clear that appellant was working at the relevant desk at the relevant time and the entries in the registers concerned were made in his had and bore his initials. The handwriting expert's opinion on this point also lends support to the evidence of the prosecution witnesses and he evidence is also supported by the documents.
14. The witnesses have made it clear that the appellant had misappropriated the amount and the appellant has not been able to either show it from his defence that he had in fact paid back that amount to the relevant persons or had not misappropriated the same. The appellant had not challenged the evidence recorded before the trial Court, as such I do not find any reason compelling me to disagree with the judgment of the trial Court. Consequently, this appeal fails.
The appeal is dismissed and the judgment passed and sentence awarded by the trial Court is maintained.