' KHAWAJA MUHAMMAD SHARIF, J.---This judgment shall dispose of Criminal Appeal No,610 of 2004 (Muhammad Aslam Gondal v. The State) and Criminal Appeal No,649 of 2004 (Rana Fazal Elahi v.
The State) as they arise out of the same judgment dated 8-4-2004 passed by the learned Special Judge, Anti-Corruption, Lahore, whereby, both the appellants were convicted and sentenced:-- i.e, 7 years' R.I. Under section 409/34 P.P.C. Each and a fine of Rs,50,000 default whereof to further undergo S.I. For six months each, under section 420/34 P.P.C. To 4 years' R.I. And a fine of Rs,20,000 in default whereof to further undergo S.I. Of for three months each, under section 468/34 P.P.C. To four years' R.I. And a fine of Rs,20,000 in default whereof to further undergo S.I. For three months each, under section 471/34 P.P.C. To four years' R.I. And a fine of Rs,20,000 in default whereof to further undergo S.I. For three months each, under section 218/34, P.P.C. To three years' R.I. And a fine of Rs,10,000 in default whereof to further undergo S.I. For one month each, under section 5(2) of the Provention of Corruption Act, 1947 to four years' R.I. And a fine of Rs,20,000 in default whereof to further undergo S.I. For three months each, the above convictions and sentences were directed to run concurrently except sentences of fine and benefit of section 382-B, Cr.P.C. Was extended to the appellants.
2. Brief facts of the case as given the District Food Controller Kasur vide complaint Exh. PM are that both the appellants, namely, Rana Fazal Elahi (Food Grain Inspector) and Muhammad Aslam Gondal (Food Grain Supervisor), in compliance to order dated 18-8-1981 passed by the Superior Authorities, had to transport wheat to Moghalpura Lahore which was started on 25-8-1982 by appellant Rana Fazal Elahi in the presence of DFC AFC and Nazir Ahmad Food Grain Supervisor as appellant Muhammad Aslam Gondal was absent, who did not join duty to get the above transaction completed, the transaction was continued in the presence of the afore-referred officials, thereafter, appellant Rana Fazal Elahi slipped away and did not complete the process, 6297, 465 tons of wheat could be transported whereas 481.573 tons was found less and 157.324 tons (out of the total stored wheat) was found damaged due to negligence, misappropriation and absence from duty of both the appellants entrustment of which was made to them. It was alleged that Rana Fazal Elahi appellant misappropriated Bardana 8875 A-Class, 701 B-Class and 730 D- Class of the value of Rs,1,06, 352/40 during the years 1980-81. The allegation against appellant Muhammad Aslam Gondal was that he misappropriated Bardana 10912 A-Class and 4792 A-Class of the value of Rs,2,04,152 during the year 1981-82. It was asserted that both the above appellants showed to have issued the Bardana to the cultivators but actually misappropriated the same.
Upon the said complaint F.I.R. Exh. PV was lodged, investigation was carried out and both of them were found guilty during the said investigation. The learned trial Court, after submission of joint challan, ordered for submission of separate challans in view of condition contained in section 234 Cr.P.C. As the offence was spreading over a period one year after having acquitted the accused under section 249-A Cr.P.C.
3. After having completed legal formalities, separate challans were submitted against both the accused persons before the learned Court of competent jurisdiction i.e, Challan No,1 was filed against appellant Rana Fazal Elahi (alone) while Challan No,2 was filed against appellants Rana Fazal Elahi and Muhammad Aslam Gondal (jointly), this judgment relates to Challan No,2, the accused denied the charges levelled against them and claimed trial, where, the prosecution, in order to prove its case against the accused, produced fourteen witnesses during the trial.
4. Learned counsel for Muhammad Aslam Gondal appellant, while arguing the case on his behalf, submits that this appellant was falsely involved in this case by the senior officers to save their skin; that an inquiry was held in the complaint against P.W. Sh. Ishtiaq: that the Investigating Officer was not produced; that all the witnesses are departmental officials and no independent witness was produced during the trial; that the only allegation against appellant is that he misappropriated 371 bags but the same were given by the Department to concerned Zamindar in order to fill the wheat; that in this connection reference may be made to the statement of P.W. 11 Nawab Khan to the effect that he had paid Rs,4823 for the loss of bags; that the appellant did not cause any loss to the department; that the contractor, who was responsible for the said loss, was neither made accused in this case nor statement of the said contractor was brought on record which was very necessary for the just decision of the case; that actually the loss in question occurred due to heavy rains and in this regard he has referred to the statement of D.W. 1 Naseer Ahmad; that only 10% of the wheat was weighed and the rest was presumed and in this regard reference can be made to the statement of P.W. 8 Mian Ijaz Ahmad AFC who stated that the report was nor prepared in his writing but he had singed the same; that the said P.W. Has admitted the dispatch of 32000 bags from Kot Rodha Kishan which were received at Moghalpura Centre; that there is no evidence against the appellant to lead his conviction as he has not committed any offence; that the prosecution has failed to prove its case against the appellant and that the appellant is entitled to acquittal by this Court.
5. Mr. Asghar Ali, Advocate appearing on behalf of appellant Rana Fazal Elahi, while advancing his arguments in both the Criminal Appeals filed on his behalf i.e, Criminal Appeal No,610 of 2004 and Criminal Appeal No,649 of 2004, which have arisen out of the same Challan No,2 and the same impugned judgment, contends that no incriminating evidence was put to the accused under section 342 Cr.P.C. And the charge in this regard has become groundless; that on this sole ground the case be remanded to the learned trial Court; that the two ingredients i.e, entrustment and misappropriation of property in this case is missing; that at the time of hearing his pre-arrest bail petition and under a direction of the Court, the appellant Rana Fazal Elahi has already deposited Rs,1,50,000 while the loss attributed to him come to Rs,1,63,519.00; that the liability attributed to the appellant was not exactly calculated; that the appellant along with his co-convict, first, was acquitted under section 249-A, Cr.P.C. With a direction by the learned trial Court to submit two separate challans and that in the afore-referred circumstances, the appellant in both the appeals is entitled to acquittal. In this regard learned counsel has placed reliance on Ashraf Mehmood v. The State (1988 PCr.LJ 1621), Fida Hussain v.
State (2000 PCr.LJ 1022) and Azhar Hussain v. The State (PLD 2003 Lahore 219).
6. On the other hand, learned counsel for the State submits that non-putting of incriminating material to the appellants is merely an irregularity and not illegality which can be cured under section 537, Cr.P.0 and at this stage remand of case would not be proper because twenty one years have already elapsed from the registration of case in 1984. That there is sufficient evidence in the form of documentary as well as oral which proves the case against the appellant that they have misappropriated empty gunny bags and wheat amounting to lacs of rupees which was entrusted to them for transportation; that the prosecution witnesses have no enmity or strong motive to falsely depose against the appellants; that the appellants have not appeared before the P.W.5 Sh. Ishtiaq to rebut the allegations; that the wheat was covered with the "Tarpals", so, no question of damage of wheat arises at- the Centres in question and moreso the appellants did not make any complaint to their seniors regarding such condition, if any; that the prosecution has proved its case against the appellants beyond a shadow of doubt and that the appeals filed by the appellants are liable to be dismissed.
6. I have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.
7. Both the appellants on 22-11-1993 were charge-sheeted (on the basis of Challan No,2) by the learned Special Judge Anti-Corruption with the allegation that Muhammad Aslam Gondal appellant while posted as Food Grain Supervisor and Rana Fazal Elahi appellant as Food Grain Inspector at Kot Radha Kishan Centre Kasur in the year 1981-82 being concerned officials were entrusted with wheat weighing 6779.038 Metric Tons out of which both of them in furtherance of common intention with each other misappropriate wheat weighing 481.573 Metric Tons valuing Rs,9,79,972.05 and during the same period they were also entrusted with empty bags of wheat 10,912 A-Class and 4,752 B-Class valuing Rs,2,04,152 which both of them in furtherance of common intention with each other misappropriated and thus thereby both the appellants committed criminal breach of trust in respect of the above said Government property and they were alleged to have committed offences punishable under section 409/34, P.P.C., 468/434, P.P.C., 471/34, P.P.C., 420/34, P.P.C., 218/34, P.P.C. And under section 5(2) of the Prevention of Corruption Act, 1947. The prosecution in order to prove its case against both the appellants produced relevant government officials. P.W.1 is Shahid Nazir Khan Food Grain Supervisor who produced inspection Registers vide Memo. Exh. P.W.1/3 P.W. 2 is Malik Muhammad Akram who was Moharrar/Wheat Clerk. He produced Registers (Exh. P.W. 2/8), Exh. P.W.2/22), Exh. P.W. 2/23 and Exh. P.W.2/24 regarding procurement of wheat by Rana Fazal Elahi and Muhammad Aslam Gondal appellants which bore their signatures which signatures were verified by this P.W. During the said process appellant Rana Fazal Elahi absented himself and the process was completed by appellant Muhammad Aslam Gondal. In this regard record was produced by Bashir Ahmad P.W. As Exh. P.W.2./41 to 47 vide Memo. Exh. P.W.2/48.
P.W.3 is Malik Salhuddin Inventor Clerk/Moharrar Bardana who verified that during the scheme 1981- 82 both the appellants remained posted in Kot Radha Kishan. He produced record regarding empty gunny bags being maintained by both the appellants. The statement of P.W.4 Muhammad Tufail AFC, P.W.5 Sheikh Ishtiaq Ahmed AFC and P.W.6 Muhammad Nazir AFC Enforcement Directorate of Food are also to the said effect which are corroborative to the above evidence, P.W. 7 Bashir Ahmad Senior Clerk DFC Kasur produced record regarding posting, transfer and termination of appellant Muhammad Aslam Gondal, P.W.8 is Mian Ejaz Ahmad AFC who gave evidence regarding shortage and damage of wheat, statements of P.W.9 Sami Khan, P.W.10 Zahoor Ahmad and P.W.11 Nawab Khan are to the effect to receipt of wheat, recovery of empty bags and deposit of amount of Rs,4823 of 371 empty bags respectively, P.W.12 also remained in touch with the said process of dispatch of bags of wheat, P.W. 13 filed complaint while P.W. 14 is Muhammad Sarwar Shah Constable of Food Department in the Enforcement Staff whose evidence is to the effect of recovery of gunny bags at the hands of appellant Rana Fazal Elahi and payment of Rs,377 as cost of 29 gunny bags from one Billo Khan. During investigation the damage of wheat caused due to the negligence of the appellant Rana Fazal Elahi which was calculated by the Investigating Officer as Rs,1,63,519 whereupon at the time of hearing of his pre-arrest bail petition he deposited Rs,1,50,000 (The total responsibility calculated by the Department, on the basis of which both of them were dismissed from service, was Rs, 15,66,404,30 which is reflected in their dismissal letter No,LRE-H-(F1- 841-Volume) 85/5063 dated 1-8-1985 i.e, Rana Elahi appellant was held responsible for Rs,9,62,038.72 while Muhammad Aslam Gondal for Rs,6,04,365.58).
8. Being Food Grain Inspector and Food Grain Supervisor liability of the both the appellants was equal and they were responsible to take suitable premises to keep the stock of wheat safe, to take measures to A avoid from theft and thereafter, when required, to supply the wheat from the godowns to the relevant quarters. There is no evidence at all on the record to suggest that the wheat was made short from bags somewhere on the way. Since the accused were posted at that time at the said Centre, so, none else can be held responsible for such shortage of wheat in gunny bags. All the above prosecution witnesses are official witnesses who have made depositions keeping in view the record maintained in this regard and undoubtedly they had no personal grudge, or enmity with any of the accused and at the same time no material contradiction or discrepancy has been found in their statements to draw an adverse inference. The conduct of the appellants while performing their duties and their criminal liability is further strengthened from the crucial facts brought on record that during the process of transportation of the wheat both the appellants, one after an other on one pretext or the other, slipped away which was an abortive attempt on their part to exonerate themselves from the criminal liability but the fact remains that both the appellants were responsible for the Misappropriation and losses occurred during the said transportation to the wheat or gunny bags entrustment of which was handed over to both the appellants. Rather it connects them with the commission of the offence because it was in their knowledge that due to their negligence and dishonesty loss/shortage/damage had already occurred to the wheat and if they would remain in touch with the transportation process the same would be dug out and they would be hauled up for the same but ultimately the same was unearthed and their planning failed. Their contumacious conduct is reflective of mens read on their part and they cannot be exonerated from the liability as claimed by their learned counsel during the course of arguments because they were the custodians of the stocks and noble task of entrustment and transportation was assigned to them.
9. So far as loss of gunny bags is concerned statement of P.W.3 Malik Salahuddin and the documents exhibited by him is very much relevant. While giving reference to his statement, the learned trial Court at page 34 it was observed as under:-- " According to his P.W.5500 empty bags were shown to be issued on 30-6-1981 but as a matter of fact no wheat was purchased after 20-6-1981. Further, as per entry Exh.P.W.3/6, 5092 empty bags of A-Class were shown to be a D-Class without approval of the competent authority. According to this P.W. The entries Exh.P.W.3/2 and Exh.P.W.3/3 were made by Fazal Elahi accused whereas entries Exh.P.W.3/4 to Exh.P.W.3/6 were of Muhammad Aslam Accused."
' At page of the impugned judgment, it was further observed as under:-- ....The statement of P.W.3 unambiguously prove that the empty bags had been shown to have been supplied to the growers in the record by the accused. As a matter of fact there is no evidence at all to establish the delivery of gunny bags to any grower because neither any application nor any receipt of said supply to the growers has been brought on record."
10. As far as prosecution case to the extent of liability of both the appellants, the same has been proved and the onus to prove the same, which was on the shoulders of the prosecution, has very well been discharged by way of adducing reliable and convincing evidence i.e,, oral coupled with documentary evidence based on the official record of the department most of which was maintained by the appellants themselves. The defence despite cross-examination to which the prosecution witnesses were subjected could not create doubt about its credibility and the same is believed by this Court as well.
11. Now this Court is left to see the legal consequences of the defence evidence produced by the accused persons during the trial. Statement of both the appellants were recorded under section 342, Cr.P.C. In which the incriminating evidence was put to them to which they denied to have been falsely involved in the case. In defence they produced Naseer Ahmad D.W.1 whose statement is to the effect that he was owner of Ali Ginning Factory, in 1981 it was not functioning, the Food Department took it on rent, the side of the factory was open without roof, after putting stock in it no watchman was deputed for look after of the wheat, the level of the factory was below the level of the road, in those days due to heavy rain huge quantity of wheat was destroyed, some wheat was also stolen from the factory premises, he asked appellant Rana Fazal Elahi about the situation but nobody paid any heed and later on Rana Fazal Elahi was suspended due to the above fault of the said appellant Nazim Din D.W.2 is another defence witness who was owner of Allauddin Oil Mills in the year 1981, open premises of the factory were taken on rent by the Food Department to stock the wheat which was stocked after covering with tarpaulins, due to heavy rain side wall of the factory collapsed and tarpaulins had flown away, the road level was high than the ground level of the factory premises, his father reported to the Food Department regarding its damage and theft but no steps were taken.
12. The perusal of the statements of the defence witnesses would reveal that what to talk of any help to the appellants the same rather goes against them as statement of D.W.1 is to the effect that it was due to the negligence of appellant Rana Fazal Elahi that not only the premises for storage of wheat were taken on rent which were below the level of the road but due to heavy rain the wheat was damaged and the same was also stolen partly. It has come on record that the said appellant Rana. Fazal Elahi neither took any steps to save the wheat from expected damage from heavy rain nor he took measures to stop its theft and even after having come to know that the same was stolen he did not bother to take the concerned culprits to task. It appears he was privy to all this, so, he was responsible for the said loss and damage and he cannot be exonerated from his liability by simply saying that the damage was caused due to rain rather it caused due to his misappropriation with criminal intent by producing D.Ws. It was an attempt on the part of the appellants to save themselves from legal consequences on the pretext that the wheat was damaged due to rain. Statement of D.W.2 is also of no avail to the appellants rather it goes against.
This defence witness has categorically stated that the above happenings with the stocks of wheat were brought to the notice of the Food Department but they never bothered to take remedial measures for the safety of the said wheat stock. Even nobody from the Department took note of the theft of the wheat from the said center as well.
13. It is settled by now that if a specific defence plea is taken by the accused, then the onus to prove the same is on their shoulders. In this regard it is imperative to quote Article 121 of the Qanun-e- Shahadat Order, 1984. Under Article 121 of the Qanun-e-Shahadat Order, 1984 when an accused takes a specific plea to bring his case within exceptions, then the onus lies on him to prove the same but the appellant has failed to discharge the said onus. Article 121 ibid reads as under:-- "121. Burden of proving that case of accused comes within exception.--- When a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Pakistan Penal Code Act (XLV of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence is upon him and the Court shall presume the absence of such circumstances."
14. The question of defence plea came up for consideration before the august Supreme. Court of Pakistan in Mst. Dur Naz and another v. Yousuf and another (2005 SCM R 1906), delivered on 25th April, 2005, wherein the apex Court, at page 1912, observed as under:- " It is also settled principle of law that when defence plea is raised by an accused, the burden to prove the same lies on his shoulders. In the instant case when said plea is examined in juxtaposition to the case of prosecution seems to be untrue. Reference can be made to the case of Abdul Wahid v. The State (2003 SCM R 668) wherein it was held that initial burden to prove the guilt against the accused lies upon the prosecution, but when a specific plea has been raised by the accused in defence then both are to be considered in juxtaposition and the one which is nearer to the truth is to be given weight". (Emphasis ID supplied).
15. Keeping in view the above verdict of the august Supreme Court of Pakistan, it can safely be said that the prosecution has proved its case against the appellants beyond any shadow, doubt while the defence has failed to adduce evidence to substantiate the plea taken by them rather it goes against the appellants, so, if the prosecution case and the defence plea is taken in juxtaposition the defence plea taken by the appellants is turned down as the same is of no avail to them.
16. So far as argument of the learned counsel for both the appellants regarding non-putting incriminating material to the appellants while making their statements under section 342, Cr.P.C. Is concerned, the said point was not urged before the learned trial Court and has been taken, for the first time, before this Court during the hearing of the instant appeals. Meaning thereby, if there was any prejudice to the accused persons/appellants the said stand must have been taken before the learned Court. Even otherwise, I have gone through the evidence, their statements recorded under section 342, Cr.P.C. And the impugned judgment but I find nothing which could have caused prejudice to the appellants. Rather the matereal things i.e, questions regarding entrustment and misappropriation of wheat and empty gunny bags were put to the appellants. Non-putting the exact quantity is immaterial. In answer to question as to why the case was against the appellants, they simply said that they had been involved in the case falsely to save the actual culprits. In this regard, I am fortified with a judgment of the apex Court. In S.A.K. Rehmani v. State (2005 SCM R 364), the august Supreme Court of Pakistan, while dilating upon the same question, at page 772, observed as under:- " It must not be lost sight of the fact that every defect or error in the examination under section 342, Cr.P.C. Would not be consequential unless it is shown that prejudice has been caused and moreso, the nature of prejudice must be stated. (AIR 1960 Rajastan 80, AIR 1956 SC 536, AIR 1956 SC 241).
There is no cavil with the proposition that there must be proof of prejudice to the accused and unless miscarriage of justice is shown to have occurred, particularly in a case where the accused was represented by counsel, inadequate examination under section 342, Cr.P.C. Cannot be made aground for setting aside the conviction. (2000 PCr.LJ 1022, PLD 1955 Dacca 68, AIR -1961 Calcutta 240, AIR 1956 SC 536)...."
17. The precedent 'case-law relied upon by the learned counsel for Rana Fazal Elahi in Ashraf Mehmood v. The State (1986 PCr.LJ 1621), Fida Hussain v. State (2000 PCr.LJ 1022) and Azhar Hussain v. The Stat (PLD 2003 Lahore 219) is distinguishable and is not applicable in the facts and circumstances of the present case. Moreso, almost twenty-one years have elapsed since the registration of the case and it is not a proper stage to remand a criminal case.
18. After having sifted grain from the chaff and after having applied independent judicial mind, this Court is of the considered view that the prosecution has proved its case against the appellants beyond any shadow of doubt to sustain conviction against the appellants as awarded to them by the learned trial Court because the prosecution has proved on record that Muhammad Aslam Gondal appellant while posted as Food Grain Supervisor and Rana Fazal Elahi appellant as Food Grain Inspector at Kot Radha Kishan Centre Kasur in the year 1981-82 being concerned officials were entrusted with wheat weighing 6779.038 Metric Tons out of which both of them in furtherance of common intention with each other misappropriated wheat weighing 481.573 Metric tons valuing Rs,9,79,972.05 and during the same period they were also entrusted with empty bags of wheat 10,912 A-Class and 4,752 B-Class valuing Rs,2,04,152 which both of them in furtherance of common intention with each other misappropriated and thus thereby both the appellants committed criminal breach of trust in respect of the abovesaid Government property and they were alleged to have committed offences punishable under section 409/34, P.P.C., 468/34, P.P.C., 471/34, P.P.C., 420/34, P.P.C., 218/34, P.P.C. And under section 5(2) of the Prevention of Corruption Act, 1947. The total responsibility calculated by the department on the basis of which both of them were dismissed from service, was Rs,15,66,404.30 which is reflected in their dismissal Letter No,LRE-H-F1- 841-Volume)-85/5063 dated 1-8-1985 i.e, Rana Fazal Elahi appellant was held responsible for Rs,9,62,038.72 while Muhammad Aslam Gondal for Rs,6,04,365.58. The learned trial Court has delivered a well reasoned judgment to convict the appellants which does not call for interference by this Court in the appellate jurisdiction. Rather the learned trial Judge, while awarding convictions and sentences to the appellants, has taken a very lenient view qua the quantum of sentences.
Resultantly, after having sifted grain from the chaff and after having applied independent judicial mind, this Court is of the considered view that both the appeals filed by the appellants i.e, Criminal Appeal No,610 of 2004 (Muhammad Aslam Gondal v. The State) and Criminal Appeal No,649 of 2004 (Rana Fazal Elahi v. The State) have no merits which are accordingly dismissed after having maintained the conviction and sentence awarded to the appellants by the learned trial Court vide the impugned judgment, in toto. Rana Fazal Elahi appellant is in jail while Muhammad Aslam Gondal appellant is on bail. He shall be taken into custody to serve out the remaining part of the sentence.