' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment shall dispose of Criminal Appeal No,650 of 2004 (Rana Fazal Elahi v. The State) as the same arises out of the judgment dated 8-4-2004 passed by the learned Special Judge, Anti-Corruption, Lahore, whereby, following convictions and sentences were passed against the appellant i,e, seven, years' R.I. Under section 409, P.P.C. And fine of Rs,50,000 in default whereof to further undergo S.I. For six months, under section 420, P.P.C. To 4 years' R.I. And a fine of Rs,20,000 in default whereof to further undergo S.I. For three months, under section 468, 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, under section 471, P.PC. To four years' R.I. And a fine of Rs,20,000 in default whereof to further undergo S.I. For three months, under section 218, 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 and under section 5(2) of the Prevention 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, 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 appellant.
2. Brief facts of the case, as given by the District Food Controller, Kasur vide complaint Exh.P.M. Are that the present appellant being Food Grain Inspector and co-convict Muhammad aislam Gondal (Food Grain Supervisor), in compliance to order, dated 18-8-1981 passed by the Superior Authorities, had to transport 500 tons of wheat to Mughalpura, Lahore which was started on 2578-1982 by appellant Rana Fazal Elahi in the presence of D.F.C., A.F.C. And Nazir Ahmad, Food Grain Supervisor as co-accused Muhammad Aslam Gondal was absent, who did not join duty to get the above transaction completed in consequence whereof 481.573 tons of wheat was found less where 157.324 tons wheat was found damaged. It was further 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 year 1980-81. The allegation against co-accused 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 the appellant and his said co-accused showed to have issued the Bardana to the cultivators but actually misappropriated the same. Upon the said complaint F.I.R. Exh.P.V. 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 of 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 the present appellant while challan No,2 was filed against the appellant and his co- accused wherein accused denied the charges levelled against and claimed trial, where the prosecution, in order to prove its case against the accused, produced fourteen witnesses during the trial.
4. Mr. Asghar Ali, Advocate for the appellant, in support of this appeal, 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 comes to Rs,1,63,519; 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 is entitled to acquittal. In this regard learned counsel has placed reliance on Ashraf Mehmood v. The State 1986 PCr.LJ 1621, Fida Hussain v. State 2000 PCr.LJ 1022 and Azhar Hussain v. The State PLD 2003 Lah.
219.
5. On the other hand, learned counsel for the State submits that non-putting of incriminating material to the appellant is merely an irregularity and not illegality which can be cured under section 537, Cr.P.C. And at this stage remand of case would not be proper because twenty-one years have already elapsed from this 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 he has misappropriated empty gunny bags and wheat amounting to lacs of rupees which was entrusted to him for transportation; that the prosecution witnesses have no enmity or strong motive to falsely depok against the appellant; that the appellant has 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 appellant did not make any complaint to their seniors regarding such condition, if any; that the prosecution has proved its case against the appellant beyond a shadow of doubt and that this appeal is 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. This appeal pertains to challan No,1 regarding entrustment and misappropriation of empty wheat bags (Bardana) during the year 1980-81 and he was charge-sheeted for the offence punishable under sections 409, P.P.C., 420, 468, 471, 218, 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 appellant produced relevant Government officials. P.W.1 is Shahid Nazir Khan, Grain Supervisor, P.W.2 is Malik Salahuddin, Inventory Clerk, P.W.3 is Ch. Muhammad Tufail A.F.C., P.W.4 is Sheikh Ishtiaq Ahmad, P.W.5 is Muhammad Nazir, A.F.C., P.W.6 is Bashir Ahmad, Senior Clerk, P.W.7 is Tahir Mehmood D.F.C. Kasur, P.W.8 is Abdul-ul-Salam and P.W.9 is Muhammad Sarwar Shah, Constable Enforcement Staff. Nazir Ahmad, Muhammad Akram, Mian Ijaz, Sami Khan, Nawab Khan were given up as unnecessary while Nazir Ahmad, Abdul Majeed, Abdul Ghafoor, Constable, Ilyas Hussain, S.-I.
And Nishat Moharrir died. During the course of hearing of his bail petition, he deposited Rs,1,50,000 while the liability calculated by the Department, on the basis of which the present appellant and his co-accused Muhammad Aslam Gondal, were dismissed from service, was Rs,15,66,404.30 which is reflected in their dismissal letter No,LRE-II-(FI-841-Volume)-85/5063, dated 1-8-1985 wherein Rana Fazal Elahi appellant was held iesponsible for loss and misappropriation to the Government stocks of Rs,9,62,038.72 although noble task of entrustment and their use was assigned to the appellant in his official capacity.
8. 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. In this regard, the findings of the learned trial Court are very much convincing and are in accord with the weight of evidence on record. At page 13, starting from paragraph 18, the learned trial Court held as under:-- "18. It is not a disputed fact that the accused was working as Food Grain Inspector at Kot Radha Kishan Centre, District Kasur. According to the statement of P.W.2 and from the record produced by him in his statement, the accused had received 911 bales of empty wheat bags and 5051 loose gunny bags but the loose bags were not entered in the relevant register Exh.P.W.2/2, rather they were shown to have been distributed to the growers at the end of Register Exh.P.W.2/1, but neither there was any application from the side of any grower to supply him the bags (Bardana) nor there was any receipt showing the delivery of the bags to the growers. He further stated that Register Exh.P.W.2./1 is in handwriting of the present accused. It has further come from the statement of P.W.2 that the accused had shown 1300 empty bags having dispatched to Bhambha Centre on 1- 6-1990 but Register GP7 and Inventory Exh.P.W.2/3 do not confirm the said dispatch. From the statement of P.W.9 it is established and on pointing of the accused 1467 gunny bags A-Class, 370 gunny bags D-Class were recovered and likewise Rs,377 as price of 29 gunny bags were also recovered in this case.
19. Learned counsel for the accused while referring to the statement of P.W.9 as well as recovery memo. Exh.P.E. Has maintained that alleged recovery was affected from Cinema Godown, Kot Radha Kishan, which was a place of storage of wheat and as such the recovery of empty bags from the said Cinema Godown would be inconsequential. I am afraid that this argument has no force or substance because there is ample evidence both verbal as well as documentary to establish that the accused had shown in the register to have delivered said empty bags to the growers. His act speaks volume of doing criminal misappropriation of the said gunny wheat bags obviously for personal gain. Both P.W.2 and P.W.9, the most material witnesses in this case, are Government unctionaries who of course are not proved to have any annoyance, grudge, enmity or against the accused which could compel them to depose falsely against the accused, who had been their colleague in the Department and as such it would be very hard to disbelieve their testimony and deposition. Vide memo. Exh.P.N. The said recovered empty bags were delivered to the Department also.
20. In the light of above discussion, I find that the prosecution has proved its case against the accused not only misappropriating the aforesaid empty wheat bags thus, causing loss to the Government exchequer but also committing cheating and fraud and making bogus entries in the record showing as if the wheat bags had been distributed to the growers in order to camouflage his offence and thus caused forgery as well by preparing such record. No material contradictions or discrepancies have been found in the prosecution evidence and the guilt of the accused, therefore, is proved beyond any reasonable doubt..."
9. So far as argument of the learned counsel for both the appellant regarding non-putting incriminating material to the appellant while making statement under section 342, Cr.P.C. Is concerned, I have gone through the evidence, statement recorded under section 342, Cr.P.C. And the impugned judgment but I find nothing which could have caused prejudice to the appellant.
Rather the material things i,e, question regarding entrustment and misappropriation of gunny empty bags was put B to the appellant although exact numbers of which were not put. In answer to question as to why the case was against the appellant, he simply said that he was involved in the case falsely to save the actual culprits. In this regard, I am fortified with a judgment of the apex Court of the country in the judicial hierarchy. 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 Raj. 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 a ground for setting aside the conviction. 21 DLR 377; PLD 1955 Dacca 68; AIR 1961 Cal. 240 and AIR 1956 SC 536.."
10. 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 State PLD 2003 Lah. 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.
11. 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 appellant beyond any shadow of doubt to sustain conviction against the appellant by the learned trial Court because the entrustment of empty gunny bags (Bardana) and their misappropriation is established on record on the part of the appellant. The learned trial Court has delivered a well- reasoned judgment to convict the appellant which does not call for interference by this Court in the appellate jurisdiction. Resultantly, after having sifted grain from the chaff and after having applied independent judicial mind, this Court is of the considered view that this appeal has no merit which is accordingly dismissed after having maintained the conviction and sentence awarded to the appellant by the learned trial Court vide the impugned judgment, in toto.