' ALI SAIN DINO METLO, J.--- The appellant, Finance Manager of Muhammad Farooq Textile Mills, Karachi, a limited company (hereinafter referred to as "the company" or "the mill") has appealed against the judgment, dated 20-5-2005 of the Civil Judge and First Class Magistrate IV, Malir, Karachi, acquitting the respondent No,2 (hereinafter referred to as "the respondent") of the charges of cheating and criminal breach of trust by a servant, punishable under sections 420 and 408 of the Pakistan Penal Code, 1860.
2. Briefly, the facts, relevant for the purpose of present appeal, are that on 12-12-1998, Munir Ahmed Ansari, Director Operations of the company (P.W.5) made a written complaint to the Station House Officer (S.H.O.) of Police Station (P.S.) Sharafi Goth, Karachi, alleging therein that the respondent, who had joined the company as an apprentice in the year, 1969 at a monthly salary of Rs,150 and progressively achieved the position of manager procurement and monthly salary of Rs,55,300, had amassed enormous wealth in his and his family's name and was living in a house worth rupees one crore furnished with high class furniture and fixtures worth rupees forty lacs. Further alleging that the A audit made in 1998, revealed 'gross irregularities in the prices paid for purchase versus market price, which ranged from 20% to 300% over-payments' and that on being confronted, he promised to compensate the company. However, owing to his evasive and non-cooperative conduct, the company, apprehending his abscondence, reported the matter to police.
3. The S.H.O. Endorsed the application to sub-Inspector Zareen Khan on the same day, who returned back the application to the S.H.O. With his endorsement that the matter was already under consideration of this Court in Criminal Petition No,442 of 1998 and any action on the application might amount to contempt of Court. On this, the S.H.O. Directed, on 13-12-1998, to keep the application on record simply. Nevertheless, on 2-1-1999, the contents of the application were incorporated in the book prescribed under section 154 of the Code of Criminal Procedure, 1898, for recording informations relating to the commission of cognizable offences, commonly called as first information reports (F.I.Rs,), and after more than one year i,e, on 29-2-2000, the report of investigation (charge-sheet) was filed before the Magistrate having jurisdiction, who took cognizance of the case and conducted the trial. A formal charge for the commission of offences of cheating and criminal breach of trust by a servant, punishable under sections 420 and 408 of the Pakistan Penal Code, 1860, was framed against the respondent, to which he pleaded 'not guilty' and the prosecution examined seven employees of the company and two Police Officers, in all nine witnesses, namely, Muzzafar Iqbal, Security Supervisor (P.W.1), Syed Luqman Ahmed, Assistant Senior Engineer (P.W.2), Asghar Ali, Executive Accounts (P.W.3), Abdul Rasheed, Mechanical Engineer (P.W.4), complainant Munir Ahmed Ansari, Director Operations (P.W.5), appellant Burhan- ud-Din, Manager, Finance (P.W.6), Abdul Ghaffar, Manager Accounts (P.W.7), S.I.P. Muhammad Zareen (P.W.8), and Inspector Ali Ahmed (P.W.9). The respondent did not examine any witness in his defence. However, the learned Magistrate acquitted him by holding that the prosecution had miserably failed to bring home the charge against him.
4. At the very outset, on being confronted that, the offences of cheating and criminal breach of trust being different, one cannot be convicted of the both, on same facts, Mr. M.A. Kazi, learned counsel for the appellant, frankly conceded that there was no allegation or any evidence to show that the respondent had committed the offence of cheating. 'However, according to him, sufficient evidence was there to show that he was guilty of criminal breach of trust. On being asked as to what specific amount was misappropriated by him, he again frankly conceded that neither the allegation nor the amount was specific. Nevertheless, according to him, the prosecution, by producing a very large number of documents, had successfully proved that the respondent had misappropriated a huge amount of money belonging to the company.
5. Mr. Abdullah Khan learned State Counsel did not support the appeal and contended that the prosecution had simply made a castle in the air and except for the general allegations there was no specific and definite evidence to prove the charge. Mr. Abdul Naet.m Memon the learned Advocate for the respondent argued that it was case of no evidence and the respondent was rightly acquitted.
6. In order to properly appreciate the contentions raised in the appeal, entire evidence was gone through. None of the witnesses has said that the respondent owned or possessed wealth disproportionate to his known sources of income. Even it has not been disclosed what property he owned before and after joining the company. Therefore, it cannot be said that he owned or possessed property disproportionate to his known sources of income. On the contrary, out of the two main prosecution witnesses, namely, P.W.6 and P.W.7, the former stated that employees of the company were not required to disclose their assets to the company, and therefore, he had also not filed any list of his assets at the time of joining the company.
7. Prosecution, through P.W.6 i,e, the present appellant, introduced a new story that the respondent, while in service of the company, was also doing his own business under the name of Eastern Enterprises and was making supplies of dyes and chemicals to the company also and that a total amount of Rs,262,760 was outstanding against him. According to him, some of the goods, which were found not according to the requirement of the company, were replaced by him but the price of the replaced goods was not adjusted. In this regard the witness himself admitted that an employee of the company, being a private servant, could do his own business after his duty hours.
Indeed, there is no provision of law, like section 168 of the Pakistan Penal Code, 1860 (which is for public servants only), under which doing of business by a private servant is an offence. The liability, if any, of the respondent regarding the payment of money, being purely of civil nature, cannot be treated as criminal.
8. As regard the allegation of making purchases at rates higher than the market rate, the prosecution has simply levelled a general allegation and none of the witnesses has disclosed the exact difference between prices of any particular two items or even the total amount of difference.It is not the case of prosecution that the cash memos were fake, forged or flying. Prices vary with quality and also from market to market. This was admitted by prosecution's own witness's viz. P.W.2 and P.W.3.
9. Learned counsel for the appellant heavily relied upon the agreement Exh.12 (20) purported to have been executed by the respondent on 27-11-1998 i,e,. Just 15 days before making the written complaint to police and other documents Exh.12 (1 to 146) and strenuously argued that the prosecution by producing such a large number of documents had succeeded to prove its case. I am afraid, the contention is without any force. Quality of evidence is more important than its quantity. No evidence was adduced to prove the documents according to the law i,e, Article 78 of Qanun-e-Shahadat, 1984. The agreement, under which the respondent is shown to have undertaken to pay compensation of rupees one crore for the loss the company suffered on account of his negligence and lack of proper supervision, was produced by P.W.7 along with a bunch of 145 other documents without deposing a single word about it or the other documents most of which are the cash memos issued by Eastern Enterprises. He is not shown either as scribe or attesting witness of the agreement. The complainant (P.W.5) stated that the respondent was detained in the mill on the direction of its administration and he (complainant) had also taken efforts for his release. Abdul Rasheed (P.W.4) also stated that the respondent was detained by the administration of the mill on the direction of its owner Farooq Soomar. He further stated that Ahmed Amir, another employee of the company, who was also detained in the mill on the direction of Farooq Soomar, had lodged F.I.R. Regarding his wrongful confinement. The Investigating Officer (P.W.8) also stated that he had come to know that Farooq Soomar and Ghaffar Chohan (P.W.7) had obtained signatures of the respondent on blank papers and that the latter had told him that Farooq Soomar had kept him in illegal detention. To a suggestion that it was within their knowledge that the respondent was falsely implicated in the case, both the Investigating Officers evasively replied that it was not within their knowledge, which fact alone speaks volumes against the whole prosecution case. From this one can safely infer that both the officers were at least not satisfied with the truth of the allegation and were aware of the company's taking law into its hands and commission of illegal acts of unlawfully detaining its employees, including the respondent. All these circumstances create a serious doubt not only regarding the execution of the agreement but about the whole prosecution case and the very filing of charge-sheet by the Investigating Officer seems to be for extraneous considerations.
10. Moreover, mere production of a document does not amount to its proof, notwithstanding the omission on the part of opposite party to raise objection to its production. As mentioned above the agreement was produced along with a bunch of other document by P.W.7 even without taking its or any other document's name. In such circumstances, mere omission on the part of the respondent to raise objection to their production will not amount to their admission or proof, as production and proof of a document are different and not same thing. For this view one may refer to the case of Anwar Ahmed v. Mst. Nafis Bano reported in 2005 SCMR 152 where it has been held that 'non-objection at the first stage merely justifies the physical placement of a document on record but does not at all tantamount to admitting contents, truth or genuineness of such document, which remains always to be proved independent of such admission' and that 'simply because no objection was raised to the production of document would not .Render the document as proved'. The precedents reported in 2005 SCMR 364, PLD 1962 Lah. 492, PLD 1972 Pesh. 175 and 2005 MLD 1409 cited by learned counsel for the appellant are not relevant to the facts of the present case. It will be worthwhile to clarify that the agreement, even if it be assumed for the sake of argument and not as a fact, that it was executed by the respondent, is of no help to the prosecution case, inasmuch as it speaks of negligence and lack of supervision and not dishonest misappropriation which always involves dishonest intention as a necessary ingredient. Negligence, whatever great, cannot be equated to dishonest intention.
11. The contention of the appellant's counsel for remanding the case is also devoid of any force, inasmuch as he was not able to show what was the evidence material and necessary for just decision of the case he wanted to be brought on record. On the contrary he candidly conceded that the investigating agency had failed to collect sufficient evidence to prove the charge. In such circumstances, remand of case will serve no purpose except to cause unnecessary vexation to the respondent. Criminal cases at appellate stage are not required to be remanded for reinvestigation.
The precedents reported in PLD 1960 Lah. 822; PLD 1978 Kar. 610, 1971 SCMR 264 and 1975 PCr.LJ 1281, cited by the appellant's counsel have also no relevance to the facts of the present case.
12. For the aforesaid reasons, recorded now, the appeal, being meritless, was dismissed on 20-2- 2006 by a short order.