' Through this consolidated judgment, I propose to decide Criminal Appeal No.292 of 2003 filed by Muhammad Sadiq and Abdul Wahab appellants and Criminal Appeal No.293 of 2003 preferred by Ziaul-Haq appellant together as all these appellants have challenged the same judgment dated 6-3-2003 rendered by the learned Special Judge Anti-Corruption, Sargodha, Camp at Mianwali.
Muhammad Sadiq and Abdul Wahab appellants were convicted for an offence under section 379, P.P.C. And sentenced to rigorous imprisonment for three years each and a fine of Rs.3,000 each or in default of payment thereof to undergo simple imprisonment for three months each Zia-ul-Haq appellant was convicted for an offence under section 409, P.P.C. Read with section 5(2)of the Prevention of Corruption Act, 1947 and was sentenced to rigorous imprisonment for ten years and a fine of Rs.10,000 or in default of payment thereof to undergo simple imprisonment for ten months.
The benefit under section 382-B, Cr.P.C. Was extended to all the appellants.
2. After hearing the learned counsel for the appellants and going through the record of this case with their assistance it has been observed by me that the allegation against Zia-ul-Haq appellant is that he, in his capacity as a Forest Guard, has sold some water meant for the forest to Muhammad Sadiq appellant and his father Abdul Wahab appellant for the purpose of irrigation of the latter's private lands. The alleged theft had been detected at 4-00 p.m. On 24-8-1998 by a raiding party of Sub-Divisional Khidmat Committee, Bhakkar which had allegedly witnessed irrigation of some private lands by the water meant for a local forest. According to the prosecution's case Muhammad Sadiq and Abdul Wahab appellants had made statements before the raiding party to the effect that the water meant for the forest was sold to them by Zia-ul-Haq appellant. On the basis of a complaint lodged in this regard by Saifullah Khalid, Chairman, Sub- Divisional Khadimat Committee, Bhakkar an inquiry was held by the Anti-Corruption Establishment, Bhakkar and subsequently F.I.R. No.9 was registered at Police Station Anti-Corruption Establishment, Bhakkar on 9-10-1998 for offences under section 379, P.P.C. And section 5(2) of the Prevention of Corruption Act, 1947. After completion of investigation a challan was submitted and after holding a trial the learned trial Court found the prosecution's allegations against the appellants to have been proved beyond reasonable doubt and, thus, the appellants were convicted and sentenced as mentioned and detailed above.
3. The record of this case shows that no detail of Warabandi pertaining to the relevant forest had been brought on the record of this case and no official of the Irrigation Department had ever been associated with the investigation of this case. As regards the allegation against Zia-ul-Haq appellant regarding criminal breach of trust by him I have found that it had never been established on the record of the learned trial Court that a Forest Guard was entrusted with the water from which the relevant forest was to be irrigated and, thus, there was no question of the allegation regarding criminal breach of trust having been committed by the Forest Guard to have been proved in this case. As regards the alleged bribery and corruption by the said Forest Guard it may suffice for the present purposes that admittedly no prosecution witness had deposed about having been seen passing of any money between Muhammad Sadiq and Abdul Wahab appellants on the one hand and Ziaul-Haq appellant on the other. It is not disputed that no money had ever been recovered from the possession of Zia-ul-Haq appellant. As far as the allegation pertaining to the offence under section 379, P.P.C. It has been noticed by me that admittedly no stolen property had ever been recovered or secured in this case. It had been admitted by the relevant prosecution witnesses that the amount of water allegedly stolen had never been quantified and the ldss suffered in that connection had never been assessed. In these circumstances it was not possible for any criminal Court to convict the appellants for the offences for which they had been convicted by the learned trial Court in the case in hand.
4. The statements made by Muhammad Azeem, SDFO (P.W.2) and Rab Nawaz CO/ACE (P.W.4), the Investigating Officer, clearly show that some time prior to lodging of the complaint in the present case a criminal case had been registered against one Rana Umar Din in respect of an alleged theft of the forest trees by him and the said case had been registered at the instance of Zia-ul-Haq appellant who was serving at time as a Forest Guard. The statements of the said witnesses further show that the said Rana Umar Din was a friend of Saifullah Khalid complainant (P.W.1) who was the Chairman of the Sub-Divisional Khadmat Committee, Bhakkar and during the investigation of that criminal case Siafullah Khalid complainant (P.W.1) as well as the said Rana Umar Din had approached Muhammad Azeem, SDFO (P.W.2) for dropping the said criminal case against Rana Umar Din. It had been maintained by Muhammad Azeem, SDFO (P.W.2) and Rab Nawaz, CO/ACD (P.W.4) before the learned trial Court that the present case had been lodged by Saifullah Khalid complainant (P.W.1) by way of a counterblast to the above-mentioned case lodged by Zia-ul-Haq appellant against the said Rana Umar Din. It was admitted at all hands that no official of the Anti- Corruption Establishment or the local Magistracy had been associated with the alleged raid on the basis of which the present case had been lodged. Such a private raid by an interested complainant and the resulting criminal case have, thus, been seen by me with some suspicion and I have not been able to rule out a real possibility of cooking up of this case by the said complainant against .The present appellants only to the complainant's above-mentioned friend.
5. For what has been discussed above a conclusion is escapable that the prosecution had failed to prove its case against the above-mentioned appellants beyond reasonable doubt. Both the above mentioned appeals, are, therefore, allowed the convictions and sentences of all three appellants recorded by the learned trial Court are set aside and they are acquitted of the charge. The appellants are already on bail and their sentences have already been suspended by this Court during the pendency of their appeals then bail bonds and sureties shall stand discharged.