Through this common judgement, I intend to dispose off above petitions, as same are outcome of judgements dated 29-04-2006 and 19.06.2006, respectively passed by Judicial Magistrate, Mach and Sessions Judge, Sibi at Mach.
2. Briefly stated facts of the case are that a FIR was registered by one Mir Mehmood Ahmed against petitioner under Sections 406 and 427 PPC, alleging therein that Satakzai tribe, being owner of forest, had deputed the petitioner as watchman. He has committed a criminal breach of trust by cutting trees for the purpose of selling, without the consent of owners.
3. On registration of FIR, challan was prepared and case was transmitted to the Court of Judicial Magistrate, Mach. To prove its case, prosecution has produced five witnesses and, in rebuttal, petitioner was examined under Section 342 Cr.P.C. After conclusion of case and hearing parties, Judicial Magistrate vide judgement dated 29-04-2006, convicted and sentenced the petitioner under Section 408 PPC to suffer six months RI and to pay fine of Rs,1000/-, in default whereof to further undergo one month SI.
4. Feeling aggrieved from the aforesaid judgement, petitioner has preferred an appeal before Sessions Judge, Sibi at Mach, whereas complainant has filed Criminal Revision Petition for enhancement of sentence. The Sessions Judge, after hearing both the parties, through common judgement dated 19-06-2006 has dismissed the appeal of petitioner and accepted the Revision Petition by enhancing the sentence from six months RI to three years RI and fine of Rs,1000/- to Rs,5000/-, in default whereof to further undergo SI for two months.
5. Petitioner has filed instant Criminal Revision Petition No, (S)16 of 2006 to challenge the judgement passed in his appeal and also filed Constitutional Petition No, (S)46 of 2006 to challenge the judgement, whereby revision petition of complainant was accepted. The Constitutional petition was later on converted into present Criminal Quashment Petition No, (S)13 of 2006 on the application of petitioner.
6. Learned counsel for petitioner, in both the petitions, has submitted that allegation against petitioner has not been proved by prosecution, but still the Courts below have illegally and unlawfully convicted and sentenced him on mis-appreciation and wrong conclusion of evidence, which is an illegality and irregularity.
7. Learned counsel for complainant as well as state counsel have vehemently opposed the contentions of petitioner's counsel, on the ground that the Courts below, after proper appraisal of evidence, rightly found petitioner guilty of offence, Which does not call for any interference.
8. I have heard learned counsel for the parties and have perused the record as well. Initially FIR was registered under Sections 406 and 427 PPC and charge was also framed under those Sections.
After conclusion of case, petitioner has been convicted and sentenced under Section 408 PPC, as mentioned above.
Complainant, Mir Mehmood Ahmed, appeared as PW-1, who submitted that he belongs to Satakzai tribe and is owner of forest in question. Petitioner was deputed as watchman to look after the forest, but on 21-06-2005, he came to know that he has cut down trees and sold it out. On getting information, he reported the matter to Naib Tehsildar and thereafter went along with Patwari to inspect the site, where they saw trees were lying on the ground and petitioner abused them.
PW-2 Shah Zaman and PW-3 Bahadur Khan deposed that on 21-04-2005, they, along with complainant, went to forest in question, where they saw that valuable trees in large number were lying on the ground. According to them, the petitioner was deputed as watchman to look after the forest, who was restrained from cutting the trees, on which, he abused all of them. They further deposed that the act of cutting trees on the part of petitioner has caused damaged to petitioner.
PW-4 Ghulam Mustafa, Patwari, deposed that on 21-04-2005, he, along with complainant, went to forest in question, where petitioner was busy in cutting trees. On quarry, he started abusing them.
He further deposed that according to complainant, petitioner was deputed as watchman by Satakzai tribe to look after forest in question.
Murad Muhammad, Naib Tehsildar/IO, appeared as PW-5, who stated about investigation carried out by him and exhibited certain documents.
9. Before going to dilate upon statements of witnesses, it is important to mention here that trial Court has convicted and sentenced the petitioner under Section 408 PPC, therefore, it would be appropriate to reproduce said Section as under: "408. Criminal breach of trust by clerk or servant. Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall be liable to fine."
Its Plain reading reveals that to constitute an offence under above Section, it is necessary to prove, 6) that petitioner was his clerk or servant, (ii) he was in such capacity, entrusted with property in question or with the dominion over it and, (iii) that he committed criminal breach of trust in respect thereof.
10.From perusal of statements of witnesses, it transpired that the complainant claims to be owner of forest in question and, secondly, they had deputed petitioner as its watchman. A moot question, which the Courts below had "to consider, was to see as to whether petitioner was deputed as watchman? In this behalf, none of the prosecution witness has stated a single word, nor any agreement or document was placed on record. It is an admitted fact that the complainant has already filed an appeal against correction of mutation entries in respect of the same property before the revenue authorities, wherein the petitioner has been recorded as owner, thus, the ownership dispute is sub-judice before competent Court of law, therefore, at this stage, the complainant cannot claim ownership and possession over the forest in question.
11.Similarly, complainant has also failed to prove that petitioner was appointed as watchman or he was entrusted with property in question. If for the sake of arguments, it is believed that petitioner was entrusted with such property; even then there is no evidence to prove that petitioner was engaged in cutting the trees, as it was an unseen incident. Hence, prosecution has failed to prove the ingredients of Section 408 PPC.
12.Apart from above, there are contradictions in the statements of witnesses, as PW-1 in his Court-statement has stated that he was accompanying by Patwari and when they reached to forest in question, he saw that trees were cut down and were lying on the ground. To the contrary, said Patwari, while appearing as PW-4 before the Court, has deposed that when he and complainant reached the forest, petitioner was found busy in cutting trees. He was not an eye- witness, but his statement seems to be exaggerated one, as such, cannot be relied upon. PW-3 claims to have approached the place of occurrence along with complainant, but he has not shown the presence of petitioner at the site, therefore, in view of such glaring contradictions, statements of witnesses are not worthy of credence, cannot be relied upon, especially in view of the fact that incident is unseen and the witnesses are interested being relative. Such major contradictions amongst the statements of witnesses has created serious doubt in the prosecution story and benefit whereof ought to have been extended in favour of petitioner, but the Courts below have not exercised their power, which is an illegality and irregularity.
13. The lower Courts, while deciding the matter, have failed to consider overall aspects of the case and have not properly gone through the statements of witnesses. Such act on their part amounts to mis- appreciation and non-appreciation of evidence. The judgements impugned suffer from defects, which are not sustainable in the eyes of law.
Thus in view of what has been discussed above, I am inclined to accept both the petitions, set aside judgements impugned dated 29.04.2006 and 19-06-2006, respectively passed by Judicial Magistrate, Mach and Sessions Judge, Sibi at Mach. Resultantly, petitioner is acquitted of the charge. He is on bail, his bail bond stands discharged.