1. ' ALI SAIN DINO METLO, J. The appellant has challenged acquittal of the respondent No, 1, who was working as Assistant Storekeeper in its godown of glass bottles and had allegedly misappropriated one million empty bottles. The learned HIrd Civil Judge and Judicial Magistrate, Malir, after conducting the trial, finding him not guilty, acquitted him vide judgment, dated 23-11-2006.
2. Briefly, the facts are that on 17-4-2003, Major (Retired) Muhammad Zahid, the then Manager Administration of the appellant, informed the incharge of police station Qaidabad that the respondent A No, 1 had misappropriated one million empty bottles during the period from 1-3-2003 to 16-4-2003, as, according to him, on checking, the said number of bottles was found short. Such report bearing F.I.R. No,81 of 2003 was recorded in the prescribed book.
3. On completion of investigation, the case was sent to the learned Magistrate who charged the respondent for the offence of criminal breach of trust, punishable under section 408 of the Pakistan Penal Code, 1860.
4. ' The respondent pleaded not guilty' and the prosecution after examining five witnesses, namely Arif Alam, Area Sales Manager of the appellant, Muhammad Saleem, General Manager Marketing of the appellant, Complainant Muhammad Zahid, SIP Khalid Mahmood, scribe of the F.I.R., and SIP Orangzaib, Investigating Officer of the case, closed its side. The respondent did not produce any evidence in his defence.
5. The trial Court, on appraisal of evidence, came to the conclusion that the C prosecution had failed to prove the charge against the respondent and consequently acquitted him.
6. ' With the assistance of the learned counsel for the parties, I have gone through the entire evidence.
7. Indeed, there is no evidence to prove the charge.
8. ' Arif Alam (P.W.1) simply stated that the Investigating Officer had visited godown in his presence and he had acted as witness of its inspection. The Investigating Officer had neither counted the bottles nor checked any record so as to find out the alleged shortage.
9. ' Muhammad Saleem (P.W.2) stated that Major Muhammad Zahid had told him that bottles of the factory were being sold in the open market and there was shortage of one million bottles in the godown. His evidence is only hearsay.
10. ' Major Muhammad Zahid (P.W.3) deposed that on coming to know (source not disclosed) that one million bottles were short in the godown, he directed his staff (Names not disclosed) to check the store and the staff told him that one million bottles were short. Neither any record showing the shortage nor any witness finding the shortage was produced in Court. The Major does not claim that he had himself made any verification or had detected any shortage.
11. ' S.I.P. Khalid Mahmood (P.W.4.) had simply recorded the F.I.R. And his evidence is formal.
12. ' S.I. P. Orangzaib (P. W . 5 . ) seems to have conducted the investigation very irresponsibly. He stated that he had simply contacted some persons on telephone, who confirmed him that they had purchased some bottles from Adeel and Shakeel. None of them was examined.
13. In absence of any evidence as to how many bottles were entrusted to the respondent No, 1 and how many were found short or that to whom he sold the bottles, the charge of criminal breach of trust cannot be said to have been proved against him. Learned counsel for the appellant as well as the learned Assistant Advocate General had to concede to the above factual position regarding the lack of evidence. In such circumstances, the acquittal recorded by the learned Magistrate cannot be interfered with and the appeal, being meritless, is dismissed.