' MANZOOR AHMAD MALIK, J.---Appellant Syed Ejaz Hussain was tried in case F.I.R. No,72, dated 9-10- 2000 registered sections 409/420/435, P.P.C. Read with section 5(2) of the prevention of Corruption Act, 1947 at Police Station FIA/SBC, Lahore on the allegation that he embezzled and misappropriated articles amounting to R.2,64,027 (rupees two lac sixty-four thousand and twenty- seven) from the Utility Store, Piplan as he was In charge of the said Utility Store and put the Store on fire. The learned Special Judge (Central), Faisalabad vide judgment, dated 7-7-2009 convicted Syed Ejaz Hussain appellant as under:-- ' The appellant was convicted under section 435, P.P.C. And sentenced to three years' R.I. He was also directed to pay fine of Rs,50,000, in default whereof, to further undergo six months' R.I.
' The appellant was further convicted under section 409, P.P.C. And was sentenced to seven years'
R.I. He was also directed to pay fine of Rs,3,00,000 (rupees three lac), in default whereof, to further undergo one year R.I.
' The appellant was also convicted under section 5(2) of the Prevention of Corruption Act, 1947 and was sentenced to seven years' R.I. He was also directed to pay fine of Rs,50,000 (Rupees fifty thousand), in default whereof, to further undergo one year' R.I.
' All the sentences shall run concurrently. The appellant was also given the benefit of section 382-B, Cr.P.C.
2. Feeling aggrieved by the above conviction and sentence, the appellant has filed the instant appeal.
3. Briefly stated the facts of this case are that Syed Ejaz Hussain appellant moved an application for registration of case against unknown person with the allegation that on 30-3-1995 at about 6-15 p.m., he went to Chak No,116/G.B., Faisalabad on a Car No, VRB-9955 driven by Atta Muhammad Driver and returned home on 31-3-1995 at about 9-00 p.m. And learnt that on 30-3-1995 at about 6-30 p.m. Fire broke out in the Utility Store which was extinguished by the local police.
Consequently case F.I.R. No, 47, dated 1-4-1995 was registered under section 435, P.P.C. At Police Station Piplan, District Mianwali. Thereafter, during investigation, it was found that the appellant himself put the Utility Store on fire to cover the embezzlement and misappropriation of articles from the Utility Store. An inquiry was also conducted in the matter and the appellant was held responsible for the fire. Thereafter, a case was registered with FIA/SBC, Lahore vide F.I.R. No,72 of 2000 under sections 409/420/435, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947.
4. After completion of the investigation, a report under section 173, Cr.P.C. Was submitted against the appellant.
5. Formal charge was framed against him to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as eleven witnesses. The appellant was examined under section 342, Cr.P.C. Neither he produced any documentary evidence in his defence nor opted to appear as his own witness as provided under section 140(2), Cr.P.C. In disproof of the allegations levelled against him. However, in reply to question why this case and why the P.Ws. Deposed against him, he replied as under:-- "I contested election of Union in the Deptt. And thus officers of Utility Store Corporation were annoyed with me and got registered this false case and arranged false P.Ws."
6. After conclusion of the trial, the learned trial Court convicted the appellant and sentenced him as detailed above.
7. Learned counsel for the appellant, in support of this appeal, contends that there is absolutely no direct or indirect evidence of putting the Utility Store on fire by the appellant and the appellant has been convicted merely on the basis of presumptions; that there is no evidence, which could show the entrustment of any property to the appellant and subsequently, its misappropriation; that the Inquiry report Exh. PE has no evidentiary value as it is merely an opinion which is inadmissible in evidence; that it is a case of no evidence.
8. On the other hand, learned Deputy Attorney-General opposes this appeal. Learned Deputy Attorney-General was asked to refer any incriminating evidence for. Maintaining the conviction of the appellant in this case. In response thereto, she has not been able to point out any legal or admissible evidence except' that there was an inquiry report (Exh.PE) against the appellant.
9. I have heard the arguments of both the sides.
10. In this case, the matter was firstly reported to the police by the appellant himself through Exh.PF, however, later on, case was referred to FIA through Exh.PJ, upon which F.I.R. No, 72 of 2000 Exh.PH was recorded on the statement of Muhammad Mukhtar Khan (P.W.5). Charge was framed against the appellant on 6-5-2002, which is reproduced as under:-- "I, Khan Talib Hussain Baloch, Special Judge Central, Faisalabad charge you accused Syed Ejaz Hussain son of Ashiq Hussain as under:-- ' Firstly:--That during the year, 1995, you being In charge of Utility Store, Piplan, Sargodha Division, Sargodha, misappropriated the various articles of the Utility Store valuing Rs,2,64,027 and same is an offence punishable under section 409, P.P.C. And within the cognizance of this Court; ' Secondly:--That on 30-3-1995 at 6-30 p.m. In order to suppress your above said embezzlement have put the Utility Store on fire and same is an offence punishable under section 435, P.P.C. And within the cognizance of this Court; and Thirdly:--that you being public servant while abusing your official position derived pecuniary advantage on the said date, time and place of which you were otherwise not entitled and thereby you have committed an offence punishable under section 5(2)47, PCA and within the cognizance of this Court; and ' I hereby direct that you be tried under the aforesaid offences."
11. In order to substantiate the charge, the prosecution examined as many as eleven witnesses, which are as under:-- ' Manzoor Hussain S.-I. (P.W.1) formally arrested the appellant and took the physical remand of the appellant.
' Muhammad Tahir Area Manager, Utility Stores Corporation, Faisalabad (P.W.2) deposed that on 28-3-1995, he visited the Utility Store, Poplin. He prepared price variation and checked Inventory Control Ledger. He further deposed that he felt that material lying in the Utility Store on ground was more than that entered in the record. He made report to the Regional Manager and made recommendation for stoppage of the supply, which was stopped except that of GCP, ghee. After the incident of fire, he again visited the Utility Store and observed that the counter had remained on fire and the back side of the roof was opened and there was a hole in the roof.
' Muhammad Aslam (P.W.3) was Accounts Officer who after the telephone of the "ppellant received by Mukhtar Khan Khatak (P.W.5) visited the Utility Store. He further deposed that they took the keys of the Store from the Assistant Commissioner and opened the store. They saw that 1/2 bricks from the roof were removed but from that hole a man cannot enter inside the store. In his presence, the Investigating Officer took on iron rod in his possession vide recovery memo. Exh.PA which was signed by him.
' Muhammad Sarwar (P.W.4) was helper of the appellant at the store. He took leave for fifteen minutes from the appellant and went home. Next day, when he came on duty, he learnt that there was an incide t. Three locks were also taken into possession vide recovery memo. Exh.PB. He signed the recovery memo.
' Muhammad Muklitar, Regional Manager, Utility Stores, Sargodha (P.W.5) visited the spot along with P.W.3. He also saw that 2/3 bricks from the roof were removed. He made a report to the Head Office and an inquiry was conducted by the order of Head Office and during inquiry it was found that the appellant himself put the store on fire to cover the shortage of certain items. He handed over the inquiry report to the Investigating Officer who took the same into possession vide recovery memo.
Exh.PC which was signed by him. He also wrote a letter Exh.PD to the S.H.O., Police Station Piplan for registration of case against the appellant.
' Umer Khatab, General Manager Finance, Utility Stores (P.W.6) deposed that he was appointed as Inquiry Officer for facts findings. His inquiry report is Exh.PE.
' Makhdoom Altaf Hussain, Inspector Crime Cell (P.W.7) recorded the F.I.R. No,47 of 1995 Exh.PF on the statement of the appellant. Thereafter, he inspected the place of occurrence, prepared site plan Exh.PG. He also took into possession broken locks vide recovery memo. Exh.PB and iron rod vide recovery memo. Exh.PA. He found the appellant guilty.
' Nisar Ahmad S.-I. (P.W.8) arrested the appellant after rejection of his petition.
' Ijaz Ahmed, Assistant Director FIA (HQ) (P.W.9) recorded the F.I.R. No, 72 of 2000 at Police Station FIA/SBC, Lahore.
' Muhammad Bakhsh S.-I. (P.W.10) took into possession certain documents including inquiry report, statements and detail of the damaged articles etc., vide recovery memo. Exh.PC.
' Ghulam Zia S.4., FIA (P.W.11) recorded the complaint against the appellant, recorded the statements of the witnesses and prepared the report under section 173, Cr.P.C.
12. I have scanned the whole evidence with the assistance of the learned counsel for the parties.
None of the prosecution witnesses who appeared before the learned trial Court has stated that he saw the appellant while putting the Utility Store on fire. Similarly, there is no circumstantial evidence wherefrom, it would be inferred that it was appellant who put the Utility Store on fire. In the same manner, there is no evidence that the appellant misappropriated articles amounting to Rs,2,64,027 (rupees two lac sixty-four thousand and twenty-seven). The inquiry report Exh. PE relied upon by the prosecution and referred to by the learned Deputy Attorney-General is also of no avail for the prosecution because of the following reasons:--
(a) That at the end of the report, the Inquiry Officer has stated as under:- "SO in my opinion, after examining the concerned personnel/ their statement, store record, fire location, salvage/wreckage available inside the store, store electrical fitting, etc., it is found that fire broke out not because of electrical short-circuiting, the store I/C found personally involved in this act. Therefore, he is responsible for the loss caused to the corporation because other circumstances do not favour or support the Store In charge."
The opinion of an ordinary person is not admissible in evidence, however, there are certain exceptions to this rule which have been mentioned in Article 59 of the ,Qanun-e-Shahadat Order, 1984, which is being reproduced as under:-- "59. Opinion of experts.---When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of hand writing or finger impression, (or as to authenticity and integrity of electronic documents made by or through an information system), the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impression (or as to the functioning, specifications, programming and operations of information system, are relevant facts).
' Such persons are called expert."
(b) That Inquiry report Exh.PE was not put to the appellant when his statement under section 342, Cr.P.C. Was recorded.
(c) That even the said Inquiry Officer namely, Umer Khitab, General Manager Finance Utility Stores Corporation in his cross-examination while appearing as P.W.6 has admitted that deficiency of Rs,1000 (rupees one thousand) was found and detected during quarterly inspection before the occurrence. He has also admitted that he did not examine any witness who saw the occurrence of fire. He has further stated that for the preparation of the report, he relied on the statements of certain persons and also relied on the attending circumstances. He has also admitted that there was no complaint of embezzlement about the Piplan Store against the accused before this occurrence.
13. The learned trial Court at page 13 of its judgment has observed as under:-- "No doubt, Investigating Officers have failed to furnish or collect substantive evidence against the accused during the course of investigation but all this clearly hints that they have deliberately extended concession to the accused which is a common trend among the Investigating Officers towards delinquent public servants, even otherwise, with the passage of time many events skip away from the memory, accordingly, the inconsistencies and concessions extended by Investigating Officers in favour of the accused are, hereby, ruled out of the consideration."
14. In these circumstances, the prosecution has failed to prove the charge against the appellant, therefore, this appeal is allowed, the conviction and sentence awarded to the appellant is set aside. He is in jail, he be released forthwith if not required to be detained in any other case.