' IJAZ AHMAD CHAUDHRY, J.---Muhammad Asif Javed appellant was convicted for an offence under section 409, P.P.C. Vide judgment dated 1-9-2000 handed down by the learned Special Judge, Anti- Corruption, Lahore in case F.I.R. No, 41 registered at Police Station Anti-Corruption Establishment, Kasur on 24-12-1996 under section 409, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 and was sentenced to rigorous imprisonment for nine months with a fine of Rs, 3,000 or in default of payment of fine to further undergo simple imprisonment for thirty days. Through the same judgment the appellant was also convicted for an offence under section 5(1)C of the Prevention of Corruption Act, 1947 and was sentenced to rigorous imprisonment for nine months with a fine of Rs,2000 or in default of payment thereof to further undergo simple imprisonment for thirty days. Both the sentences were ordered by the learned trial court to run concurrently and the benefit of section 382-B, Cr.P.0 was extended in favour of the appellant. The appellant has challenged his convictions and sentences before this Court through the present appeal.
2. According to the prosecution story an application had been moved to the Additional Director, Anti-Corruption Establishment, Lahore by Mr. Hamid Mahmood P.W. Stating therein that. Mst.
Nawaban Salamat was allottee of land through RL-II No, 368, dated 21-10-1968. One Jan Muhammad son of Khaira vide RL-II No, 272 was also allotted land on 21-10-1968. The said land was purchased by the mother of the complainant after payment of total consideration amount and in pursuant to that transaction an agreement to sell was also got prepared between the parties. One Hamid Ali Shah was also allotted land measuring 287 kanals and 14 marlas vide RL-II No, 362, 364, dated 15-10-1964. He transferred the total land to Javed Aslam vide Mutation No,417, dated 26-12- 1965 and with regard to the above said land two Writ Petitions No, 563-R of 1966 and 1193-R of 1969 were filed. In the mean time the entitlement of Hamid Ali Shah was reduced up to 125 units which land was got allotted by him in Kot Lakhpat and Ichhra and total land allotted in the name of Hamid Ali Shah vide Nos. 362 and 364 was cancelled by A.S.C.L. On 27-5-1968. Out of the cancelled land of Hamid Ali Shah the land measuring 146, kanals 17 marlas from RL-II No,368 and land measuring 140 kanals and 17 marlas from RL-II 272 was allotted on 21-10-1968 and Mutation No, 727 was sanctioned on 25-3-1975 regarding the cancellation of the land. Javed Aslam filed appeal for cancellation of order dated 27-5-1968 which was dismissed by the Assistant Commissioner, Chunian on 26-2-1975. Javed Aslam filed Writ Petition No, 1725-R of 1975 in the Lahore High Court while Javed Aslam purchaser got registered a criminal case against Nawaban Salamat and her brother who was her General-Attorney and also involved Jan Muhammad, etc., vide F.I.R. No, 141 of 1975 for offences under sections 419/420/467/468/471/472, P.P.C. And section 5(2) of the Prevention of Corruption Act, 1947 alleging therein that the allotment on Nos. 368 and 272 was bogus. The brother of Mst. Nawaban Salamat was discharged by the Senior Special Judge, Anti-Corruption. On 31*1985 the file containing RL-II Nos. 362, 368, 272 and 364 were also become part of the said file which was decided by Senior Special Judge, Anti-Corruption on 25-1-1985. As an application was moved for obtaining the certified copies of these documents through Attorney and the said application was got registered at Serial No, 4644, dated 18-5-1991 and on 18-5-1991 report was received that some documents were missing from the file. Inquiry was conducted by the Assistant Commissioner and it was found that said documents have been removed by the officials. The file was kept pending by Shuja-ud-Din. Head Clerk, Muhafiz Khana and another application was moved on 5-4-1993 to the Deputy Commissioner, Kasur who also directed to hold inquiry. Once again Shuja-ud-Din came forward and inquiry was stopped. On 7-5-1995 another application was moved to the Assistant Commissioner, Kasur and inquiry was restarted but the file of that inquiry was also disappeared. It was stated in the F.I.R. That Shuja-ud-Din came in the way of holding of inquiry and lie also knew that the copies of that documents were in whose custody and who had removed the said documents from the file. Said Shuja-ud-Din was responsible for the removal of the documents. The complainant moved an application for taking action against Shujaud-Din, Head Clerk as well as Muhammad Asif, Khalid Zaman, Bashir Ahmad, Farooq Ahmad, Azhar Mehmood and Anwaar-ul-Haq, Clerks. The documents in question have been removed in connivance with these officials. The complainant alleged that Shuja-ud-Din knew everything and Anwaar-ul-Haq Clerk has also received the file from Anti-Corruption Court and Shuja-ud-Din being Head Clerk at Muhafiz Khana, Kasur on 9-5-1993 asked for filing another application. On the application moved by Hamid Mehmood inquiry was conducted by the Anti- Corruption Department and as a result of the said inquiry case F.I.R. No, 41, dated 24-12-1996 had been registered at Anti- Corruption Establishment, Kasur under sections 409/161/109, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947.
3. After registration of the F.I.R. Initial investigation was conducted by Mian Muhammad Naseeb Anwar, DSP who held preliminary inquiry and recorded the statements of witnesses. He was then promoted and inquiry was entrusted to Rafique Ahmad Hussain, Inspector and after conclusion of the investigation report under section 173, Cr.P.C. Has been submitted against the appellant. Said Rafique Ahmad Hussain, Inspector had died thereafter.
4. To prove its case the prosecution had examined eight witnesses. Hamid Mehmood complainant (P.W.1) stated about the back history of the case. P.W.3, P.W.4, P.W.6, P.W.7 and P.W.8 are colleagues official of the appellant who deposed about the various facts of the case.
5. In his statement recorded under section 342, Cr.P.C. The appellant denied and controverted all the allegations of fact levelled against him by the complainant and professed his innocence. He also opted to make statement on oath under section 340(2), Cr.P.C. The appellant appeared as D.W.1. And stated as under:- "On 2-6-1990 1 was posted as Pergana Moharrir, D.C. Office Kasur. Case F.I.R. No, 141/1975 Police Station Chunian against father of the complainant was decided in the year, 1985 before I was posted as Pergana Moharrir. I was posted in the record room as Pergana Moharrir on 2-6-1990 and I had not received the relevant paper of the RS-II relating to this case. When a Pergana Moharrir is transferred and new one takes the charge the complete record is not handed over or checked and it is simply written on the charge report that he had taken over the charge. 1 had not mis- appropriated the pages of the RS-II. The other employees had only accused me in their statements for saving their own skin. It was with great difficulty that I could obtain the copy of Exh.DB and it was obtained only after I had contacted the Superintendent because the copying agency had earlier reported that this inquiry report was not appended with the record. I produce as Ex.DC the certified copy of the relevant record."
6. Upon completion of the trial the learned trial court found the case against the appellant to have been proved beyond reasonable doubt and, thus, it convicted and sentenced him as mentioned and detailed above. Hence, this appeal.
7. The learned counsel for the appellant has contended that the complainant P.W.1 had not deposed against the appellant because he was not eye-witness but he had made application against number of accused persons. A bare perusal of application moved by Hamid All Shah reflected that Shuja-ud-Din was, the main culprit who had perpetrated the offences in issue. The above said Hamid All Shah too was not an eyewitness and he had not claimed that RL-II was removed from the file in his presence. All the witnesses appeared in this case except the complainant and Investigating Officer are official of the same department where the appellant had been working and they were also made accused including the appellant, thus, statements of co-accused cannot be relied upon against the appellant. The prosecution has failed to establish any mens rea on the part of the appellant to remove the valuable papers from the record. The element of entrustment of the property and misappropriation had also not been proved.
Mentioning of pages numbers was not necessary at the time of receipt of the record. It had also not been established that in whose handwriting copy was made. The appellant was not the sole person in whose custody the record was lying. The evidence had not justified the conviction of the appellant and no offence is proved against him. On the other hand the learned Deputy Prosecutor- General has argued that in Exh.PC and the inquiry conducted by the department the appellant was found guilty. Best evidence had been produced as witnesses who were serving along with the appellant in the same department and deposed against him. The appellant was serving in Mohafiz Khana when the file was received from the copying branch and his receiving is available on the record. The prosecution had succeeded in establishing the appellants' guilt to the hilt and, therefore, his conviction and sentence recorded by the learned trial court do not warrant any interference by this Court.
8. After hearing the learned counsel for the parties and going through the record it has straightaway been noticed by me that in the F.I.R. The complainant had mentioned names of all the witnesses including Shuja-ud-Din, Head Clerk and Muhammad Asif, Khalid Zaman, Bashir Ahmad, Farooq Ahmad, Azhar Mehmood and Anwaar-ulHaq, Clerks as accused persons. During the investigation these persons had been made witnesses and their statements had been recorded under section 161, Cr.P.C. After joining them in the investigation as accused persons.
Except their evidence there was no other evidence available with the prosecution to connect the appellant with the commission of alleged offences. A bare perusal of the F.I.R. Reflects that it was Shujaud-Din who had been avoiding from making any proceedings against the delinquent persons who had replaced the valuable papers from the record. I have examined the record of this case from cover to cover and found that all the prosecution witnesses were working with the appellant in the same department but the appellant had only been made a scapegoat due to the reason that he had received the file when the same had returned from the copying branch and he had not counted the papers of the file which were 464 in total. There is nothing available on the record to establish that on which date or at what time the valuable papers had been replaced from the file.
Even no witness had stated with certainty that the papers were removed from the file when the same was lying in the exclusive custody of the appellant alone. No eye-witness is available with the prosecution to say about the manner and mode of the happening of the incident in this case so as to positively connect the appellant with the commission of offences alleged against him in the
9. Even otherwise the witnesses produced by the prosecution in support of its case against the appellant were also performing duties in Mohafiz Khana, thus, they all were interested witnesses and deposed against the appellant just to save their own skin. Some concession had also been extended to the appellant by the witnesses during their cross-examination which also caste doubt regarding involvement of the appellant in the present case. Their evidence was not enough worthy to throw a confident reliance upon it and award conviction to the appellant in the circumstances of the case. It seems that they had not deposed against the appellant but they had adduced evidence to save their government service and to avoid from any adverse proceedings. The prosecution has not been able to prove specifically from the documentary as well as from the oral statements of the witnesses that the file was entrusted to the appellant and during the retention of file with the appellant the papers in question had been removed.
10. The appellant was a Government employee, all that happened in this case was done in performance of government duty and no personal interest had become on the record of this file to prove dishonesty or bad intention on the part of the appellant. The prosecution has also failed to prove any mens rea on the part of the appellant to commit the offences alleged against him. Even after assessing and evaluating of the evidence the learned trial court had mentioned in its judgment that the appellant had not secured any monetary benefit in this case. Nothing has become on the record which can suggest that the appellant had misplaced the valuable papers from the record of the file to make favour to any party or to cause loss to any party. Even otherwise Tariq Kareem Khokhar, Magistrate 1st Class/Officer In charge, Judicial Record Room, Kasur vide A his report dated 26-6-2000 (Exh.DB) had conducted the departmental inquiry which shows that all the witnesses and the appellant have joined the investigation together. Although the witnesses made statements before the Magistrate against the appellant yet they had refused to face the appellant in the said inquiry proceedings and to reply the questions put by the appellant to them and in the inquiry it had been held by the Inquiry Officer that responsibility for the loss of file cannot be fixed on the shoulders of any individual official. I also find that the conviction cannot be based only on the ground that the appellant has admitted that he had received the file on 9-7-1990 from copying branch without counting the papers, There is also no evidence that the file was exclusively in the possession of the appellant after 9-7-1990 or before 30-6-1990 when the file was sent to the office of copying branch.
Another important factor in this is that the prosecution had also failed to bring on record that the appellant had retained missing papers in his possession or the same had been recovered from him.
11. For what has been discussed above a conclusion is irresistible and inescapable that the prosecution has failed to prove its case against the appellants beyond reasonable doubt. The convictions and sentences passed against the appellant are not sustainable. This appeal is, therefore, allowed, the convictions and sentences of the appellant recorded by the learned trial court are set aside and the appellant is acquitted of the charge by extending the benefit of doubt to him. The appellant has been allowed bail vide order dated 18-9-2000 after suspending his sentences of imprisonment his bail bond and surety shall stand discharged.