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Criminal Appeal No.13 of 1979, decided on 8th November, 1983.

---S.409--Criminal breach of trust--Benefit of doubt--Accused, a postman, held, responsible for non-delivery of a registered letter, containing pay order, to addressee and for its misappropriation--Delivery-slip produced from possession of postal authorities, however, showing that accused not only delivered registered letter to addressee but also returned acknowledg ment from addressee to acquitted co-accused--Possibility that receipt of acknowledgment suppressed by co-accused for some ulterior motive, not ruled out--Accused given benefit of doubt and acquitted in circumstances.

Ch. Iftikhar Ahmad for Appellant.

Abbas Farooqi for the State.

Date of hearing: 8th November, 1983.

Appellant above named, being aggrieved by judgment dated 24th December, 1978 of the learned Special Judge (Central) Karachi, in case No.52/77, by which appellant has been convicted under section 409, P.P.C. and section 5(2) of the Prevention of Corruption Act and sentenced to suffer R.I. for one month and to pay fine of Rs.1,000 or in default to suffer further R.I. for one year has preferred the above appeal, on the following facts and grounds:‑

According to complainant, on 8th December, 1976 one M.S. Ibrahim sent from Chicago U.S.A. for complainant Mumtaz Ismail, resident of Karachi, a pay order of 5,000 US Dollars under registered letter No. 572467. Said letter was received in the General Post Office, Karachi, which went it on 12th December, 1976 to Drigh Road Post Office, Karachi for delivery to the addressee Mumtaz Ismail. In Drigh Road Post Office, said registered letter was received on 13th December, 1976 by co‑accused Malik Aman, who was clerk Incharge of registered letters. Co‑accused Malik Aman was said to have handed over said registered letter with 67 other registered letters articles to Postman Bashir Khan on 15th December, 1976 for delivery. The receipts in respect of 67 other registered articles were received back, but receipt in respect of said Registered article No. 592467 for Mumtaz Ismail was missing. Clerk Malik Aman omitted to point out to postmaster Faseehuddin, that the receipt in respect of Registry No.592467 was missing. On 4th January, 1977 co‑accused Malik Aman remained absent from duty and he continued to do so on subsequent dates. His absence was reported to superior officers by the postmaster on 5th January, 1977. Similarly, Bashir Khan Postman also stopped performing his duties and absconded. Since Malik Aman as Clerk Incharge of registered post was responsible in respect of all the registered articles‑received in Drigh Road post office, Karachi and their distribution and delivery and since Malik Aman was alleged to have connived with Bashir Khan postman, in causing disappearance of Registered Letter No.592467, containing pay order of 5,000 US Dollars, hence he was arrested.

Complaint of Mumtaz Ismail about loss of pay order of 5,000 US Dollars was sent by Dy. S.P. C.T.A. to the S.H.O. Drigh Road Police Station for registering of the case. The case was investigated by Inspector Muhammad Khan of C.I.A. and ultimately it was challaned.

Since both the appellant as well as co‑accused were public servants, hence Government of Pakistan was moved for according sanction under a letter dated 31st December, 1977. Letter of Court was acknowledged by the Ministry of Interior, under their letter dated 4th February, 1978. Thereafter the trial Court waited for the sanction till 6th April, 1978, when the sanction was deemed to have been accorded, because it was neither received nor refused.

Charge Exh.3 containing prosecution allegations was read over and explained to the appellant, as well as co‑accused, who pleaded not guilty.

Prosecution examined complainant Mumtaz Ismail Exh.14 and P.Ws. Muhammad Riaz Exh.6, Fashiuddin Exh.8, Adil Sher Exh.18, Muhammad Sarwar Exh.22, Niaz Muhammad Exh.24, Abdul Majeed Shaikh Exh.25, Abdul Majeed Siddiqui Exh. 26, Jaffar Abbas Exh.28, Safdar Baig Exh.29 and Muhammad Khan Exh.32. Prosecution Inspector submitted statement Exh.34, that the material witnesses were examined and that the statements of the appellant as well as co‑accused be recorded.

In their statements Exhs.35 and 36, appellant and co‑accused submitted, that they were posted in Drigh Road Post Office, Karachi, during the month of December, 1976, as Registration Clerk and postman respectively. Co‑accused Malik Aman admitted, that on 13th December, 1976 he received Registered Envelope No.592467 which case from Chicago, but he showed ignorance about contents of said envelope. He admitted that said Registered letter was mentioned in the Delivery Slip Exh.9 dated 15th December, 1976 written in his own hand wirting and that in slip Exh.9 mentioned the registered articles handed over to postman Bashir Khan for delivery. Appellant Bashir admitted that on 15th December, 1976 he received Registered envelope No.592467, but he showed ignorance about contents of the same. He stated that said registered envelope included 68 registered articles received by him from co‑accused Malik Aman on 15th December, 1976 and that those 68 articles were mentioned in the Delivery Slip Exh.9. He admitted his writing with his signature in the carbon copy Exh.10 of Delivery Slip Exh.9, that all the 68 articles including Registry No.592467 were duly delivered to the addressee. Both the appellant and co‑accused denied having committed criminal breach of trust in respect of the said registered article or its contents. Malik Aman denied having deserted his duty from 4th January, 1977. Bashir Khan denied having deserted his duty from 2nd March, 1977 adding that he had moved for 2 months leave. Appellant Bashir claimed to have returned to clerk concerned receipts on 15th December, 1976 as mentioned in the slip Exh.10. Both the appellant as well as co‑accused stated, that the witnesses had deposed against them at the instance of police.

The appellant as well as co‑accused did not wish to be examined as witnesses in their defence and they did not lead evidence in defence.

The learned trial Court taking into consideration the evidence adduced before it, while acquitting co‑accused Malik Aman, convicted the appellant above named as hereinbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo of appeal.

The learned Advocate appearing for the appellant, in support of the above appeal submitted as under: ‑

(a) That on the same set of evidence co‑accused Aman was acquitted

and as such conviction of the appellant cannot be maintained.

(b) That ingredients of criminal breach of trust were not at all established by prosecution and as such conviction of the appellant under section 409, P.P.C. was not warranted. As far as conviction of the appellant under section 5(2) of Act 11 of 1947 is concerned, the learned Advocate submitted, that no charge was framed under the said section and as such conviction of the appellant under this section is not at all warranted.

(c) That appellant by Exh.10 which has been produced by the postal department has established, that he had delivered all the registered letters received by him on 15th December, 1977 and delivered acknowledgment receipts thereof to co‑accused Aman. If in fact he had not delivered the acknowledgment receipts, the co‑accused Aman would have made a note in this connection on Exh.10 and would have also made a complaint against the present appellant. But the prosecution does not allege such action on the part of co‑accused Aman, who has been acquitted by the learned trial Court. In view of this explanation given by the appellant, that he returned all the acknowledgments slips vide Exh.10 to co‑accused Aman, appellant has created a doubt in the prosecution story.

(d) In the face of Exh.10 on record, it is just possible that the letter in question was delivered and the receipt has been lost and or co‑accused Aman with some ulterior motive has suppressed or removed the receipt of the said letter from the files of the post office.

In view of the above submissions the learned Advocate for the appellant submitted, that prosecution has failed of establish its case beyond reasonable doubt against the present appellant, in view of the finding of the learned trial Court that there is nothing on record to show conclusively, that the said letter contained a pay order or a demand draft for 5,000 US Dollars.

The learned Advocate appearing for the State very rightly at the outset submitted, that keeping in view prosecution evidence on record specially Exh.10, in his opinion prosecution has failed to establish its case beyond reasonable doubt, that appellant had committed offences either under section 409 and/or under section 5(2) of Act II of 1957. The learned counsel for the State further submitted, that appellant by producing Exh.10, has created a doubt in the prosecution case, which benefit according to establish principles of laws must go to the appellant.

I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R 8 P of the learned trial Court as well as impugned judgment and Exh.10 as well as Exh.35, the statement of acquitted co‑accused Aman.

It is clear from Exh.10, that appellant had delivered all the 6 registered letters, which were handed over to him on 15th December. 1976 and in the token thereof has produced Exh.10 from the possession of the postal authorities. In the face of this document and in the absence of any remarks of the co‑accused Aman, who received Exh.10, that het had not received one acknowledgment receipt and in the absence of any complaint made by him, Exh.10 in my opinion, has created as reasonable doubt in the prosecution case, that the letter in question was in fact not. delivered by the appellant, as alleged by the complainant. It is possible H that the receipt of the acknowledgment has been lost or it has been suppressed for some ulterior motive by co‑accused Aman and as such the possibility of disappearance of the registered letter in question by collusion between the appellant and acquitted co‑accused also cannot be ruled out, but in absence of any evidence on record in this connection, I agree with the learned Advocate for the State as well as appellant, that the benefit of lack of such evidence must go to the appellant. In view of this, in my opinion prosecution has failed to establish its case beyond reasonable doubt, against this appellant as well.

Therefore, I allow the above appeal and set aside conviction of the appellant and the sentences awarded to him and acquit him by giving him benefit of doubt and discharge the bail bonds executed by him in above appeal.

S.G.D Appeal allowed

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