1983 PLP 1449 (PCRLJ)

Appellant abovenamed, being aggrieved by judgment dated 29th September, 1980 of the learned Special Judge, Anti‑Corruption, Karachi, in special case No. 66/79, whereby appellant has been convicted under section 409, P.P.C. and sentenced to suffer imprisonment till rising of the Court and fine of Rs. 200 or in default to suffer further R. I. for 2 months has filed the above appeal, on the following facts and grounds The case of the prosecution briefly put is, that appellant Sibte Hasnain was serving as Head Master Government Boys Secondary School, Post and Telegraph Colony, Karachi, when on 1st February 1977 be received cash from D.D.O. Mr. Zaheeruddin Ahmed as per pay bill No. 56/76/77 for his staff including, the pay of Rs. 270/75 of teacher Muhammad Basheer, when the appellant forged the signature of Teacher Muhammad Basheer, who was on leave and misappropriated the amount of Rs. 270.75. Similarly it is also the case of prosecution, that again on 4th July 1977 the appellant received the cash from D.D.O. as pet bill No. 64/76/77 amounting to Rs. 270.75 towards the arrears of pay of teacher Muhammad Basheer for the month of December 1976 for disbursement, but he forged the signature of Muhammad Basheer and misappropriated the amount of Rs. 270/75. When the charge was framed against the appellant under section 468/ 471/409, P. P. C. read with section 6(2)‑II‑1957, the accused pleaded not guilty and wished to be tried. The learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellant abovenamed as herein before mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo. of appeal. The learned Advocate for the appellant submitted, that no criminal misappropriation of the alleged amount has been established at all. It is an admitted position, that no loss was caused to the Government and the amounts in question were received by the person concerned and as such prosecution has failed to establish its case against the appellant completely and therefore the impugned judgment cannot be sustained. The learned Advocate appearing for the State at the outset submitted, that he was not supporting the impugned judgment as prosecution has failed to establish its case against the appellant, in view of the statements of the prosecution witnesses which are on record. I have carefully considered the above submissions and have gone through the R & P of the learned trial Court as well as the impugned judgment. I have carefully gone through the statements of the prosecution witnesses specially the statement of P. W. Muhammad Bashir, who has admitted, that salary for the month of December, 1976 and January, 1977 were paid to him on 1st February, and 4th July, 1977 respectively. Exh. 14 shows, that P. W. Muhammad Bashir had proceeded on leave from 23rd August, 1976 upto 20th January, 1977. In support of these contentions document produced by P. W. Muhammad Bashir, is Exh. 24, which clearly shows that the question of appellant having misappropriated the amounts in question did not arise. This position is also admitted by P. W. 5 Ghulam Mustafa in his cross‑examination. In the face of this evidence on record, I fail to see how the learned trial Court has come to conclusion, that the amounts in question were misappropriated by the appellant, so as to attract the provisions of section 409, P. P. C The question of temporary misappropriation also does not arise, in the present case, as admittedly P. W. Muhammad Bashir was on leave during the period in question and as such delayed payments made to him by the appellants has been duly explained by the appellant, in his statement under section 342, Cr. P, C. The learned Advocate for the State has rightly conceded, that pro secution has‑ failed to establish its case against the appellant beyond reasonable doubt. I am also of the opinion, that the prosecution has B failed to establish its case under section 409, P. P. C. against the appellant beyond reasonable doubt, in view of the statements of P. W. Muhammad Bashir and P: W. Ghulam Mustafa. Therefore I allow the above appeal and set aside conviction and sen tences awarded to the appellant under impugned judgment and acquit him by giving him benefit of doubt and discharge the bail bonds executed by the appellant in the above appeal. I also dismiss S. M. Ref. 2 of 1983 and withdraw show‑cause notice issued to the appellant in this connection. Appeal allowed.