JUDGMENT IMAM BUX BALOCH, J.---Through this criminal acquittal appeal, the State has assailed the order dated 24-11-2005, passed by learned Special Judge, Anti-corruption Larkana, whereby the respondent Muhammad Nawaz was acquitted under section 249-A, Cr.P.C.
2. Facts giving rise to this appeal are that on 16-2-2000, Muhammad Ismail Chandio, Circle Officer, ACE Larkana, registered F.I.R vide crime No. 12 of 2000, for the offences falling under sections 409, 477-A, 34 P.P.C., read with section 5(2) Prevention of Corruption Act-II of 1947, stating therein that Inspector Imamuddin Channa had conducted raid at Government High School Gerello on 7-9- 1999, under the supervision of Magistrate; during raid the record relating to years 1997 to 1999 viz. Cash book, pay bills, increment advance and G.P Fund bills were secured. List of drawls was also obtained from the District Accounts Officer, Larkana and after comparing the above record with the drawl list of the treasury office, Larkana, it has come to light that Muhammad Malook Channa, Headmaster, Govt. High School Gerello in collusion with his subordinates Gulzar Ali Channa Clerk, Najamuddin JST and with connivance of treasury office staff namely Muhammad Nazir Bhutto Sub Accountant, Shabir Ahmed Senior Auditor prepared the false pay bills in the name of fake persons, false G.P fund advance bills and increment bills on the different dates worth Rs.23,18,386-10. The said bills were got passed by the above named education staff and officers with the joint hands of treasury staff Larkana and the amount was en-cashed from National Bank Dokri vide Account No.
390. Liaquat Ali Accounts Officer Director Schools Education Larkana conducted the audit of Government High School Gerello for the above period, but he did not point out such fraud with ulterior motive in his audit report.
3. In consequence, all the above named accused were sent to face trial before trial Court. During trial an application under section 249-A Cr.P.C. Was moved on behalf of the respondent Muhammad Nazir, which was allowed by the learned trial Court.
4. I have heard Mr. Altaf Hussain Surahyo, the State counsel for A.A.-G, and Mr. Asif Ali Abdul Razak Soomro, learned counsel for the respondent.
5. The learned trial Court while passing the impugned order observed in the following wording:-- "Perusal of the record shows that case of applicant/accused is based on the F.I.R and on the statement of co-accused Najamuddin. The role played by the accused that he has forwarded bill after verifying strength to the Treasury Officer for passing it. The accused is present in Court and has submitted that he was employee in Treasury Office in 1998 and the matter had been taking place from year, 1997. He has only forwarded bill after seeing strength since 1996 and same strength was being shown, therefore, he was passing bill, which was duly prepared and signed by DDO. He could not refuse and return the bill except to pass on to Treasury Officer who is authorized to pass the bill. The responsibility is on DDO/ Headmaster, Government High School, Gerello. He has submitted that they issued cheques only in "payees account", therefore, there is no question of fraud and forgery on his part and he has not got any personal interest in the matter. Keeping in view of the facts and circumstances of the case, law relied by Advocate for accused/ applicant and evidence collected by the prosecution and co-accused Liaquat Ali who has been acquitted under section 249-A, Cr.P.C. In this case, there is no probability of the accused being convicted on the basis of evidence collected by the prosecution, consequently, accused is hereby acquitted under section 249-A, Cr.P.C. Accused is present on bail, his bail bonds are cancelled and surety discharged."
6. Learned State Counsel argued that order passed by learned trial Court is erroneous and liable to be set aside as the learned trial Court has not considered the true perspective of the case. He further agued that prosecution has ample documentary evidence to be produced before the trial Court at the time of recording evidence. He further argued that learned trial Court has not considered the documents available with the police papers and simply without recording evidence has acquitted the accused/ respondent, which has caused miscarriage of justice.
7. On the other hand learned counsel for respondent drawn attention of this Court that respondent has been involved in this case on the statement of co-accused, which can neither be treated as judicial confession nor inculpatory confession and one cannot be convicted on the statement of co-accused before Investigating Officer, and except this piece of evidence no evidence or proof had been collected against the respondent by the ACE police. He further argued that respondent was working in Treasury Office, Larkana, since 1998, but the matter pertains to year, 1997 and that at the time of alleged incident the respondent was not in service at Treasury Office, Larkana. During course of his arguments the learned counsel for the respondent produced photocopy of order dated 28-1-2006, passed by the trial Court in the case of co-accused Najamuddin, whereby learned trial Court has acquitted co-accused Najamuddin under section 249-A Cr.P.C. Learned counsel further argued that the State has not challenged the acquittal of co-accused Najamuddin.
Learned counsel further argued that the case of respondent is on better footings from the case of co-accused Najamuddin, but the State chosen to challenge acquittal of respondent Muhammad Nazir; presumption is that the State fully accepted the verdict of trial Court of acquitting co- accused Najamuddin. Learned counsel further contended that according to rule of consistency the respondent may be treated in the same way, as his case is on better footings than that of co- accused Najamuddin; and the mala fide on the part of the State is very much clear from the fact that State by challenging acquittal of respondent has adopted pick and choose policy.
8. I have considered the submissions advanced at the bar. Admittedly, it e respondent was involved in this case on the statement of co-accused Najamuddin, who has already been acquitted under section 249-A Cr.P.C. By the trial Court and the State has not challenged his acquittal, which proves that the acquittal of co-accused Najamuddin has attained finality and the prosecution has failed to establish guilt of the accused. As already discussed above on the statement of co-accused Najamuddin the respondent Muhammad Nazir was involved in case in hand and fact that the State has not filed any appeal against acquittal of co-accused Najamuddin, which has attained the finality; the learned State counsel was unable to controvert this position. In the above circumstances, when the State has accepted acquittal of co-accused Najamuddin on whose statement under section 161 Cr.P.C. The respondent was involved in this case, the benefit of acquittal of co-accused Najamuddin in my view is to be extended in favour of respondent Muhammad Nazir also. The learned trial Court has rightly acquitted the respondent under section 249-A, Cr.P.C. As the charge against him was groundless and there was no probability of respondent being convicted of any offence, if the case proceeded further against him. It was therefore, that by my short order dated 28-9-2010, this appeal was dismissed and these are the reasons for the same. The respondent Muhammad Nazir is on bail, his bail bond stands cancelled and surely discharged.