' This is a State appeal under section 417, Cr.P.C. Against the acquittal of the respondents vide order dated 18-10-1936 passed by the learned Senior Special Judge, Anti-Corruption Punjab, Lahore, by which he instead of framing the charge acquitted the accused in case F.I.R. No.14 of 1986, dated 31- 5-1986 registered under sections 406, 420, 468, 471, 218, P.P.C. Read with sections 5(2)/47, P.C.A. And sections 3/6 of Food Stuff Control Act, 1958 with Police Station DACE, Punjab, ' Lahore.
2. The brief facts of the prosecution case are that the Director Food vide his letter dated 23-4-1986 directed the District Food Controller, Sahiwal to dispatch a quantity of 3088. 1 M. Tons of wheat from R.R. Centre, Noorpur to P.R. Centre Attock. In compliance of this order the District Food Controller, Sahiwal vide his letter dated 27-4-1986 directed the Food Grain Inspector, Noorpur to dispatch the above-said quantity to P.R. Centre Attock. The contract of carriage was given by the Provincial Government to Messrs R.M. Traders, 90-Jail Road, Sahiwal. It is the case of the prosecution that out of the said wheat 1920 bags of wheat carried into 5 trucks did not reach P.R. Centre Attock.
Muhammad Arif Food Grain Inspector P.R. Centre Noorpur in collusion with Malik Ahmad Khan 'and others, being public servants by abusing their official position dishonestly and unlawfully in order to misappropriate 182.400 metric ton of Government wheat worth Rs.3,08,876 and to give pecuniary wrongful gain of Rs.30200 to Sh. Nazir Ahmad, Abdul Waheed Proprietors, R.M. Traders and Shaukat Ali Proprietor of New Baba, Farid Transport Company Sahiwal as carriage charges of wheat by trucks, sent the same Hayat Flour Mills Sargodha instead of sending the same to P.R. Centre Attock and thereafter they in collusion with each other made forged entries at P.R. Centre Attock, Campbellpur Roller Flour Mills Attock and Octori Post No.10 and thereby Malik Ahmad Khan, Food Grain Inspector, P.R. Centre Attock was in collusion with them they committed the offence punishable under sections 409, 420, 468, 471, 218 of the P.P.C. Read with sections 5(2)/47, P.C.A. And sections 3/6 of the Foodstuff Control Act, 1958.
3. Muhammad Afzal complainant in this case moved an application to the Chief Minister Punjab that he is a Member of Muslim League and he works as at M. Hayat Flour Mills Sargodha. He has witnessed the misappropriation of wheat. According to him 18 days before on 31st May, 1986, 8 trucks which were loaded from P.R. Centre Noorpur for taking them to P.R. Centre Attock instead of sending these trucks from P.R. Centre Attock, M. Hayat Flour Mills Sargodha at 8-00 p.m. Told that wheat is coming in the trucks and it has to be unloaded. The complainant found some and at 5-00 p.m. 5 trucks of wheat were brought which were misappropriated by M. Hayat Flour Mills and these trucks were unloaded there instead of taking these trucks to P.R. Centre Attock. The complainant also stated that the papers were in possession of the petitioner who went to his home and the contractor came there and asked the complainant to hand over the papers to him but the complainant refused to hand over the same to the contractor as according to him the wheat was being black marketed with which the contractor offered him Rs.30,000. On the refusal of the complainant the contractor offered Rs.50,000. On the refusal of the complainant the contractor alongwith others abducted the complainant while armed with fire-arms. According to the complainant these people have caused damage to his country (Pakistan). On the complaint of Muhammad Afzal the above-said case F.I.R. Was registered.
4. The case was investigated by the Assistant Director and the three Members team was constituted. The Investigating Officer recorded the statements of numerous persons, took into possession the documentary evidence proving therein that misappropriation has been committed by the accused respondents. He found the accused as guilty and prepared the challan which was submitted in the Court of Senior Special Judge Anti-corruption, Lahore.
5. The Senior Special Judge Anticorruption, Lahore vide his judgment dated 18-10-1986 instead of framing the charge acquitted all the accused finding no evidence against the respondents and he also summoned Assistant Food Controller, Attock, and relied upon the documents allegedly prepared by the Food Inspector Attock to save his skin and on the basis of this inquiry he acquitted all the accused from the charges.
6. Feeling aggrieved by the judgment the State filed an appeal which was admitted and notices of bailable warrants were issued to the respondents vide order dated 19-10-1987. Service could not be effected and the District Magistrate, Lahore, informed the Deputy Registrar of this Court that some of the accused reportedly are not available and the correct addresses are required. This appeal is kept pending till 13-12-2000 when it was fixed after 13 years of its admission in which Mr. M. Iqbal Bhatti, Advocate, learned counsel appeared on behalf of the respondents.
7. Notices were issued to all the respondents a number of times, but respondents Nos.1, 12 and 14 could not be served as the report was that their addresses are not correct. While respondents Nos.2 and 4 have been reported to have died. For the remaining respondents Mr. Muhammad Iqbal Bhatti, Advocate, has appeared and has contested this appeal. This appeal is being decided in the absence of respondents Nos.1, 12 and 14 as they could not be served inspite of the best efforts to serve them as their whereabouts are not known. The acquittal of respondents was not on merits but was on technical grounds. Hence this appeal is heard on merits even in the absence of respondents Nos.1, 12 and 14 due to their non-availability and their case will not be prejudged as the case is being remanded for fresh decision and the learned Special Judge Anti-corruption will afford them full opportunity of hearing during the trial.
8. I have heard the learned counsel for the appellant. Mr. Muhammad Shan Gul, learned counsel for the appellant has contended that the judgment is a nullity in the eye of law as without framing charge the learned Special Judge acquitted all the accused when otherwise' there was sufficient evidence on the record to connect the accused with the commission of the crime. The prosecution was not afforded opportunity to prove the guilt of the accused. He has also contended that the learned trial Court could not summon the Assistant Food Controller, Attock and enquire from him about the factual controversy. A number of witnesses were cited and the record showing the misappropriation was taken into possession by the Investigating Officer during the investigation of the case. He has prayed for the setting aside of the order that it was passed 13 years age. He has relied upon Warmer Brothers v. Imtiaz and others 2000 PCr.LJ 752 and Shaukat Ali v. Rana Muhammad Ashfaq and others 1992 ALD 243. In both the cases it was held the prosecution was not afforded opportunity for proving the allegations and the order passed was set aside.
9. Learned counsel for the respondents has contended that the main ground in the appeal against acquittal was that without framing the charge the accused could not be acquitted and on this score alone the appeal was admitted for regular hearing. He has relied upon Zahoor-ud-Din v.
Khushi Muhammad and 6 others 1998 SCM R 1840 in which the Honourable Supreme Court has held that the trial Court can acquit the accused under section 249-A,Cr.P.C. Without recording the evidence at all. He has further contended that section 249-A, Cr.P.C. Empowers the acquittal at any stage. He has further contended that the judgment assailed was passed in 1986 and now the remand of the case and the acceptance of the appeal will cause complications. He has also contended that normally the superior Courts are reluctant to interfere in the appeals against acquittal.
10. I have heard learned counsel for the parties and has perused the record carefully. The learned Senior Special Judge Anti-corruption without framing the charge has acquitted the accused by holding an inquiry in which Assistant Food Controller was summoned and it was enquired from him whether there was any shortage of wheat in connection with the above-said trucks and he replied that there was no shortage. He has also relied upon the record prepared by the Food Grain Inspector, District Food Controller and Assistant Director Food, Attack. He has also held that in his opinion it is not possible to prove through any evidence that the wheat did not reach Attock. I am afraid the reasons given by the learned Special Judge Anti-corruption are unfounded. The complainant Muhammad Afzal is an eyewitness and he has stated that 5 trucks of wheat were misappropriated by M. Hayat Flour Mills, Sargodha and he was offered the amount by the contractor for keeping silent. In the challan submitted by the Anticorruption Department 50 witnesses have been cited to prove the guilt of the accused. Statements of the witnesses recorded under section 161, Cr.P.C. Even the Truck drivers appeared and made statements that wheat was misappropriated in the way by M. Hayat Flour Mills. Abdul Sattar and Muhammad Boota, Drivers alongwith other drivers supported this fact. Chowkidars of the P.R. Centre, Sahiwal supported that GP.13 which was to be received at P.R. Centre Sahiwal after the delivery of wheat to P.R. Centre Attock was never received. Farooq Siddique and Sardar Ahmad etc. Stated that fictitious signatures have been prepared by the accused for the delivery of wheat at P.R. Centre through their transportation. A number of witnesses have supported the version of the prosecution. Even the lncharge of Chungiat also stated that fictitious receipts have been prepared at Attock Centre by the accused which does not tally with the record of his office. A bare perusal of the record shows that there was direct evidence available for the misappropriation of five trucks of wheat by M.
Hayat Flour Mills and which was unloaded there in the shape of statement of Muhammad Afzal complainant under section 164, Cr.P.C. Similarly there are number of witnesses who were truck drivers that wheat was misappropriated are not unloaded at P.R. Centre Attock. The other witnesses have also supported the prosecution version. Huge quantity of wheat was misappropriated and it was a case of serious nature but the learned trial Judge in a slip shod manner acquitted the accused and strangulated the prosecution. The prosecution was not given fair opportunity to produce the evidence and to prove the case against the accused persons. The judgment passed by the learned trial Court is based on surmises and conjectures and by ignoring the documentary and oral evidence available on record which the prosecution was not allowed to produce. There is no cavil with the proposition that under sections 249-A and 265-K, Cr.P.C. The accused can be acquitted at any stage but the case reported as "1998 SCM R 1840" (supra) is not applicable to the case in hand. The accused could be acquitted at any stage but in the case in hand there was sufficient evidence on the record but without framing the charge and without affording opportunity to the prosecution the accused were acquitted on an inquiry which is not in accordance with the provisions of law. The learned Special Judge was not empowered to hold an inquiry and to consider the statement of an Assistant Director Food and without recording his statement and without affording an opportunity to the prosecution to cross-examine him has acquitted the accused on flimsy grounds. The judgment of the learned trial Court is not sustainable. As far as the argument of the learned counsel for the respondents is concerned that 14 years has been passed and the setting aside of the judgment at this stage will be of no help to the prosecution. No doubt the order assailed was passed on 18-10-1986 but the appeal was filed by the State within time. The matter was not finished. The appeal is in continuation of the trial hence the same was pending against the respondents in which notices were issued to them and it was not a past and elapsed case. The case is still alive. The judgment was passed against law and facts of the case and is not sustainable in the eye of law as the prosecution has been deprived of the opportunity to prove the guilt of the accused by producing the evidence with which otherwise there was sufficient evidence to connect the respondents with the commission of the crime.
11. For the foregoing reasons the appeal is accepted, judgment dated 18-10-1986 passed by the learned trial Court is set aside and the case is remanded to him for its re-trial. As the case is old one it is expected that the learned Senior Special Judge Anti-corruption will take serious note and will give priority to the case and will afford opportunity to the prosecution to prove the case against the respondents.