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Criminal Appeal No. 232 of 1970, decided on 2nd March 1973.

---S. 409 read with Prevention of Corruption Act (II of 1947); S. 5 (2)‑Criminal misappropriation‑Record seized from appellant showing shortage of petrol belonging to Government‑‑Contentions that appellant received some gallons short at time of taking over charge from his predecessor; some gallons evaporated, some gallons were shown in excess by fast reading of meter, and some gallons were issued to an officer without indent on verbal request, not supported by evidence‑‑Conviction and sentence maintained in circumstances.

Manzoor Hussain for Appellant.

Nemo for the State.

Date of hearing: 26th February, 1973.

This is an appeal against tire judgment of the Spatial Judge/inquiry Officer. Sukkur, convicting the appellant for an offence under section 409, P. P. C. section 5(2) of the Prevention of Corruption Act, 1947 and sentencing him to undergo R. I. for 9 months and pay a fine of Rs. 3,900 or in default to undergo R. I. for 9 months. The appellant was tried along with Andal Khan but tire latter was acquitted.

The appellant was a junior store-keeper in the office of the Agricultural Engineer. Khairpur while Andal Khan was the senior store‑keeper. The third man, who was said to be in conspiracy with them, was Miskeen, truck driver, and he is absconding. It is the case of the prosecution that the appellant in collusion with the other two misappropriated 1309 gallons of Government petrol worth Rs. 3.900 from the stores of the workshop between 7‑12‑62 to 15‑1‑63. This offence came to light when there appeared an article in the daily 'Nawai Sindh' dated 24‑12‑62 regarding misappropriation of petrol, in Agricultural Workshop, Khairpur. The investigation was taken up by Mr. Sirajul Haq, Inspector after obtaining the necessary permission. He picked up Agha Allahdino, Headmunshi and Third Class Magistrate, Khairpur and proceeded to the Agricultural farm on 15‑1-63. One mashie Dhambux Accountant of the Agricultural Workshop, Khairpur was also called. The petrol of the tank was measured by iron rod and it was found to contain, 2 ‑9 while the depth of the tank was 7 -7. including the pipe‑line. The length of the pipe was 1‑8'. The gauge reading was 29937/8: Mashirnama was prepared. The record was seized from the possession of‑the appellant and according to it the balance of the petrol had to be 2467 gallons in the tank on 12‑61‑63 and there was no entry thereafter. So there was shortage of 1309 Sallons of petrol. There was also an allegation that three drums of Mobil-oil had been stolen away. After usual investigation for prosecution was obtained and the appellant and Andal Khan were challaned while Miskeen was shown as absconder.

The appellant proclaimed his innocence and denied having misappropriated the petrol. He admitted that the entries in the register were correct but he pleaded that when he took over charge from his predecessor he received 4761 gallons les‑0 from him. He further stated that about 20 gallons of petrol had evaporated from the tank and about 150 gallons were taken away by the officer without any indent. Ho also pleaded that the meter was going fast and about 70 gallons more were shown by fast reading of the meter. He was implicated by Mr. Kando as tee refused to give him 60 gallons of petrol on the ground that for the previous 150 gallons he had not sent any indent to him.

The prosecution examined Agha Allahdino Magistrate, Shah Nawaz Chowkidar, Agricultural Workshop, Mohd. Haroon, Head Clerk of the Agricultural Engineering Workshop, Imamdin Store Attendant, Sirajul Haq Inspector Anti‑Corruption, Mr. Mohd. Ismail S. I. P., Anti‑Corruption, Allahdino Khan, Incharge Agricultural Workshop, Mehdi Hassan laidi Manager Esso Standard Oil Company, Karachi and Imam bux storekeeper, while the appellant examined Illahibux and Ghulam Rasool.

The allegations against the appellant were two‑fold i.e. stealing of three drums of mobil-oil and the misappropriation of the petrol. So far the theft of the mobil-oil is concerned it was found by the learned Special Judge that this accusation was not established. I, therefore confine myself to tire misappropriation of the petrol. It is an admitted position that the petrol in the tank was measured by the Investigating Officer and the Magistrate. Their evidence is that the petrol in the tank was less than the petrol which was shown in the books. This was also not challenged before me, apart from the fact that it had not been fully established by the evidence of the two witnesses and the record which was seized and produced in Court. So the only question which remains to be determined It whether the petrol was misappropriated by the appellant. It is an admitted position that the appellant was incharge of the petrol, and it was disbursed by him whenever any requisition was made. It is for him to establish as to how the shortage occurred. His explanation is that he received 4761 gallons of petrol less from his predecessor. In this connection the carried Special Judge pointed out that no such shortage was pointed by the appellant to the police and the Magistrate at that time when the inspection was carried out and no such note was made on the register when the appellant had taken over charge from his predecessor. The appellant even did not inform his officers about any such shortage. He also failed to hand over the store ledger register to the Inspector to she that any such shortage vas noted by him.

Another plea of the appellant was that he had supplied 150 gallons to an officer without any indent on an oral request. This plea was rejected lay the learned Special Judge and I see no reason to disagree with him. The allegations made against Mr. Kango for having implicated him go unsupported. No such question was put to Mr. Kango when he was examined by the prosecution.

As regards the evaporation of the petrol it was stated 6y Mr. Zaidi, Manager that only 1%, of the petrol it evaporated. So even this evaporation does not help the appellant.

Not only this but the learned Special Judge even allowing the benefit of the shortage of 4761 gallons and evaporation of 1 % carne to the conclusion that still there was shortage of 700 to 800 gallons of petrol which was not explained. A letter Exh. 33 was, however, brought on record explaining the shortage but this letter was rejected by the learned Special Judge as belated one in order to cover up the fault of the appellant. I entirely agree, with the view taken by him. This letter is dated 22‑4‑69 and was written by Agricultural Engineer to the Inspector, Anti‑Corruption. In connection with this letter it was also pointed out by the learned Special Judge that even in this letter there was no reference about the date when the shortage of 4761 gallons was reported to anybody. The date was carried out on 15‑1‑63 and this letter was written after a period off 6 years. No reliance can be placed upon this letter. The evidence of the defence witnesses was also rightly rejected by the learned Special Judge.

In the circumstances, I maintain the conviction and sentence passed against the appellant and dismiss the appeal.

Appeal dismissed.

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