' JAMAL KHAN MANDOKHAIL, J.---This appeal has been presented against the judgment dated 31.12.2002, passed by Special Judge, Anti-Corruption Balochistan, Quetta, whereby; the appellant was convicted and sentenced as under:-
(i) Under section 409, P.P.C. To suffer R.I. For a term of five years with fine of Rs,82,44,791 which shall be recoverable from moveable and immovable properties owned by the convict/accused. Process as provided under section 386, Cr.P.C. Be issued to District Revenue Officer, Pishin, for attachment of the properties owned by the convict and their sale by way of auction to satisfy the sentence of fine.
(ii) Under section 468, P.P.C. He is convicted and sentenced for a term of five years R.I. With fine of Rs, 10 . 00, 000. In default of payment of fine, he shall further undergo for 1 1/2 years' R.I.
(iii) Under section 477-A, P.P.C. He is convicted and sentenced for a term of five years R.I. With fine of Rs,10,00,000. In default of payment of fine, he shall further undergo for 1 1/2 years R.I.
(iv) Under section 5 (2) Prevention of Corruption Act of 1947, to suffer R.I. For a term of three years with fine of Rs,1 00 000. In default of payment of fine to further suffer R.I. For a term of one year.
' However, benefit of section 382-B, Cr.P.C. Is extended in his favour.
2. Briefly stated facts of the case are that, an F.I.R. Was registered through written complaint of Dr. Mian Ajmal Latif, Medical Superintendent, Helper Eye Hospital, Quetta, against Cashier of the hospital namely Taj Muhammad with allegation of , misappropriation of the amount.
' During course of investigation, the appellant, Dr. Noor Muhammad Bugti and Dr. Abdul Rasheed Baloch were arrayed as accused in the case. Case to the extent of said Taj Muhammad, Dr. Noor Muhammad Bugti and Dr. Abdul Rasheed Baloch was proceeded and finally, the Cashier was convicted and the rest were acquitted of the charge.
' Incomplete challan to the extent of appellant was submitted before the Court. While framing charge, the appellant was shown as Incharge of Medical Store of the hospital and an allegation of embezzlement amounting to Rs,8244791 had been levelled, which the appellant had denied and preferred to face trial.
' To prove its case, the prosecution has produced fourteen (14) witnesses and placed on record numerous documents, whereas, the appellant was examined under section 342, Cr.P.C. After conclusion of case and hearing the parties, the trial Court has convicted and sentenced the appellant as mentioned hereinabove, hence this appeal.
3. Learned counsel for appellant stated that the allegations levelled against the appellant are baseless and without any substance. He never remained Incharge of Medical Store, Helper Eye Hospital, Quetta, nor was connected in any way with receiving medicines, therefore, no question IA of its embezzlement arises. According to him, Store Keeper was held responsible by competent Court of law for all the transactions of medicines, but the appellant has wrongly been involved. The prosecution has failed to prove the allegation, as such, the judgment impugned is bad in the eyes of law.
4. Learned State's counsel has vehemently opposed the contention of counsel for appellant and submitted that the prosecution has fully established and proved its case against the appellant through oral, as well as, documentary evidence. He, while posted as Incharge, Medical Store of Helper Eye Hospital, Quetta, used to collect the medicines from Medical Store Department (M.S.D.), Quetta, but did not supply and has embezzled the same valuing Rs,8244791. The trial Court has passed just and proper decision, which is required to be maintained.
5. I have heard learned counsel for the parties and have perused the record, as well. Main allegation against appellant as set out in the charge is that he was posted as Incharge, Medical Store, Helper Eye Hospital, Quetta, w.e.f. December 1994 till November 1997 and has embezzled an amount of Rs,8244791 by misappropriating the medicines.. First of all, it has to be seen, as to whether, the appellant was posted as Incharge of the Medical Store in the said period? It is an admitted fact that a notification is required for posting somebody as Medical Store Incharge. In present case, the prosecution has badly failed to place on record any such notification showing posting of the appellant as Medical Store Incharge, however, it has been stated that, orally, the charge of Medical Store was given to him. It is strange to note here as to how somebody could be assigned such an important job without any documentation. It is not known as to who had deputed the appellant orally and why such authority was not held responsible? Hence, the prosecution has not been able to prove appointment of the appellant as Incharge, Medical Store. Thus, in the circumstances, first contention of the prosecution that appellant was Incharge of the Medical Store, is disproved.
Apart from above, the prosecution has heavily relied upon certain indents issued by Medical Superintendent to Incharge, Medical Store Department (M.S.D.), Quetta, which they have produced as Art.A/29 to Art.A/60. These indents show that Medical Superintendent, Helper Eye Hospital, Quetta, demanded medicines from Incharge, M.S.D., but it is C nowhere proved that the same were received by the appellant. The prosecution has produced Ex-Medical Superintendent, Dr. Naimatullah Gichki, in evidence as P.W.9, who stated that .The appellant was Medical Store Incharge and Mr. Ali Ahmad was the Store Keeper. According to him, as per procedure, the medicines were to be D demanded through indents issued by Medical Superintendent and to be received by Incharge, Medical Store, Helper Eye Hospital, Quetta. He has admitted the fact that the indents, which the prosecution has produced before the Court, show that, alleged medicines were received by Ali Ahmad, Store Keeper of the hospital. The Medical Superintendent, in reply to question, has admitted the fact that no addition, alteration and deletion in the indents can be done without his permission and signature, as such, the Medical Officer of M.S.D. Is not authorized to issue medicines other than those mentioned on the indents.
' Dr. Muhammad Ismail appeared as P.W.2, who remained posted as Medical Officer M.S.D., Quetta, also explained the procedure for supply of the medicines. According to him, he used to supply medicines to all the Government Hospitals on demand of their respective Medical Superintendents.
He stated that the appellant being Incharge Medical Store, and one, Ali Ahmed, Store Keeper used to receive medicines from him according to indents issued by Medical Superintendent, Helper Eye Hospital, Quetta, and after supplying the medicines, said Mr. Ali Ahmed used to put his signatures on copy of the indents. The medicines were to be supplied on demand of the M.S. And in case of any variation, signature of the M.S. Was necessary, whereas, Incharge, Medical Store, is not competent to alter the indents issued by the M.S. He further admitted the fact that being a Medical Officer of M.S.D., he, too, is not competent to issue medicines other than demanded by the concerned M.S. According to him, he issued medicines to Ali Ahmad, value of which is more than Rs,100,000,00.
Considering the statement of M.S. And comparing it with said indents, it reveals that the medicines were received by Store Keeper, Ali Ahmad, through the indents issued by the M.S. Most of the indents show alteration with initials of the E M.S., but in the Court, the M.S. Has not accepted these initials to be his own. Now, question arises, as to how the Medical Officer of M.S.D. Was authorized to issue medicines in excess of demand of the Superintendent, Helper Eye Hospital, Quetta. It is strange to note here that the prosecution has levelled entire allegation upon the appellant and has not associated F the M.S. Of the Hospital, as well as, Medical Officer of M.S.D.
' Perusal of statement of P.W.2, it is apparent that in the entire scenario, said Store Keeper, Ali Ahmed, had a pivotal role of receiving medicines from M.S.D., Quetta. After receiving the same, it was necessary for him to have handed over these medicines either to Incharge, Medical Store of the hospital or to have himself deposited those medicines in the store with entry in stock register.
Astonishingly, the prosecution has not placed on record stock register to prove that the medicines received by Ali Ahmed from M.S.D. Were actually incorporated in the same or otherwise? Such register was very important piece of evidence to determine as to who received how much medicine and, out of which, how much were disbursed to the patients, attending the hospital. Thus, the prosecution has not been able to show as to how they have assessed the alleged amount of embezzlement. The allegations are of general nature, therefore, by not producing the stock register, the prosecution story has become highly doubtful. Entire evidence and documents produced by the prosecution reveal that, M.S. And Ali Ahmed were the main persons, who were responsible for demand, receiving, management and distribution of the medicines. He, while appearing before the Court, has not stated as to what efforts G were made by him after issuing each and every indent.
Had he been vigilant, no embezzlement could have been occurred. The prosecution story, in the circumstances, is highly doubtful and the evidence does not inspire confidence,. By simply saying that the appellant was posted H as Incharge, Medical Store, Helper Eye Hospital, Quetta, is not enough to constitute the offence against him.
To prove the allegation against the appellant, the prosecution had to show that the appellant was Incharge of Medical Store and he had received the medicine, which were embezzled. The evidence produced by prosecution is absolutely below the standard, which is not confidence inspiring to convict the appellant. Though the prosecution has produced fourteen (14) witnesses and exhibited numerous documents, but none was upto the mark, because; to prove a case, quality is required, whereas, quantity does not matter.
6. The trial Court has not properly appreciated the evidence and material available on record and has come to a wrong conclusion by holding the appellant responsible for commission of offence being Incharge, Medical Store, which is an illegality and irregularity, on the basis of which, impugned judgment is not sustainable.
Thus, what has been stated and discussed hereinabove, I am inclined to accent the appeal, set aside the judgment impugned dated 31-12-2002, passed by Special Judge, Anti-Corruption Balochistan, Quetta, resultantly, the appellant is, hereby, acquitted of the charge.