' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Through this consolidated judgment I intend to dispose of Criminal Appeal No,1501 of 2010 filed by Ejaz Shafi appellant and Criminal Appeal No,1528 of 2010 filed by Abdur Rashid appellant as both are arising out of one and the same judgment of the learned trial Court.
2. Ejaz Shafi son of Muhammad Shafi, caste Kamboh, resident of House No,21, Block 'Y' New Satellite Town Sargodha, appellant in Criminal Appeal No,1501 of 2010 and Abdur Rashid son of Ch. Sher.
Muhammad, caste Arain, resident of New Satellite Town Sargodha, appellant in Criminal Appeal No,1528 of 2010 along with Hamid Khan son of Abdur Razaq, Javaid Majid Qureshi son of Abdul Jabbar Qureshi and Riaz Ahmed Khan son of Khushi Muhammad (all since acquitted), were involved in case F.I.R. No,3, dated 21-2-2003, offence under section 409, P.P.C., read with section 5(2) of the Prevention of Corruption Act, 1947, registered at Police Station ACE, Sargodha and were tried by Mr. Moqurrab Khan, learned Special Judge, Anti-Corruption, Sargodha. The learned trial Court seized with the matter in terms of judgment dated 31-5-2010, convicted the appellants as under:-- "Abdur Rasheed Sub-Engineer accused is convicted under section 409, P.P.C. Read with section 5(2) of . Prevention of Corruption Act 1947 and is sentenced to seven years' R.I. And fine of Rs,81,92,249. The amount of fine shall be recovered as arrears of land revenue. Mian Ejaz Shafi accused is convicted under section 409, P.P.C. Read with section 5(2) of Prevention of Corruption Act 1947 and is sentenced to imprisonment for three years' R.I. And fine of Rs,10,49,824. The amount of fine shall be recovered from him as arrears of land revenue. The benefit of section 382-B, Cr.P.C.
Shall be given to them."
3. The prosecution story, in brief, as alleged in the FIR (Exh.PU), lodged on the complaint (Exh.PC) of Rana Abdul Sattar complainant (P.W.2) is that one year prior to lodging the crime report, material from the store of Irrigation Department was stolen by Abdur Rashid Sub-Engineer with the connivance of his companions, the complainant had reported the Matter to his seniors and the store was sealed under the direction of Secretary, Irrigation and Power Department. The complainant further averred in his complaint that material valuing Rs,1,21,00,000 was usurped by Abdur Rashid and others, which was to be recovered from them.
' It is pertinent to mention here that primarily the matter was referred to Chairman, National Accountability Bureau, Islamabad and subsequently it was entrusted to Anti-Corruption Establishment Authorities and consequently F.I.R. No,3, dated 21-2-2003, offence under section 409, P.P.C., read with section 5(2) of Prevention of Corruption Act, 1947 was lodged at Police Station ACE, Sargodha.
4. After registration of formal F.I.R., the matter was investigated and having been found guilty, the.
Investigating Officer prepared report under section 173, Cr.P.C. While placing name of the appellants in Column No,3 of the same. After initiation of trial, the accused were formally charge sheeted by the learned trial Court on 16-1-2008 to which they pleaded not guilty and claimed trial.
The prosecution in order to prove its version produced as many as thirteen prosecution witnesses.
Abdul Satter, X EN (P.W:3) is the complainant of the case. Abdur Razzaq retired Store Keeper (P.W.11) was the member of Physical Inspection Committee. Qazi Allah Yar (P.W.1) and Sheikh Muhammad Yousaf, Principal Government Engineering Academy (P.W.4) had conducted inquiries in this case and after registration of the case the matter was investigated by Farooq Hassan Inspector (P: W.7), Ahmed Nawaz, DSP (P.W.8), Mati Ullah Khan DSP/SDPO (P.W.12) and finally Muhammad Aslam Niazi, District Public Prosecutor (P.W.13), who had investigated the matter in the capacity of Deputy Director (Investigation).
5. The learned Deputy District Prosecutor vide his statement recorded on 11-11-2008 gave up Emanul Gill and Tariq Rauf Qureshi P.Ws. Being unnecessary and further on the following day he also gave up Rao Irshad Ali Khan and Ehsan Ullah constable again on account of being unnecessary. Learned DDP vide his statement recorded on 15-6-2009 closed the prosecution evidence.
6. The appellants were examined under section 342, Cr.P.C; wherein they opted not to appear as their own witnesses to disprove the allegations levelled against them in the prosecution evidence, however, they opted to lead defence evidence. While replying to question why this case against him and why the P.Ws. Deposed against him, Ejaz Shafi appellant made the following deposition:-- "I have been roped in this case falsely due to influence of Rana Abdul Sattar XEN and in connivance with Muhammad Aslam Niazi Dr. Muhammad Anwar Khan Gondal(P)."
To a similar question, Abdur Rashid, replied as under:-- "The case is fake one. I have been roped in this case falsely as I have lodged an F.I.R. For theft of copper wire against. Sher Rasool Chowkidar who is son of Ghulam Rasool Administrative Officer of the Chief Engineer Irrigation Sargodha. Most of the P.Ws. Are government servants who deposed only to strengthen the case of prosecution. No independent P.W. Deposed against me."
' In defence Mushtaq Hussain, SDO appeared as DW-1, whereas, Rasheed Hameed, XEN recorded his statement as DW-2. Thereafter both the appellants closed their defence evidence.
7. After hearing the arguments advanced by the learned counsel appearing on behalf of both the parties, the learned trial Court, while evaluating the evidence available on the record, found version of the prosecution proved beyond any shadow of doubt, resulting into conviction of the appellants in the above stated terms.
8. Messrs Shaiikat Rafique Bajwa and Muhammad Akhtar, Advocates, learned counsel for Ejaz Shafi appellant in Criminal Appeal No,1501 of 2010 submitted that the learned trial Court while passing conviction against the appellant has not advanced cogent reasons and judgment has been passed thereby committing grave misreading and non-reading of prosecution evidence. Learned counsel vehemently contended that neither the appellant is named in the complaint made by Abdul Sattar XEN (P.W.3) to the NAB authorities nor he has been mentioned in the crime report.
Learned counsel further agitated that even in the respective inquiries conducted by Qazi Allah Yar, SE (P.W.1) and Sh. Muhammad Yousaf, Principal Government Engineering Academy (P.W.4) they did not utter a single word against Ejaz Shafi appellant and it was only in the inquiry of Muhammad Aslam Niazi, DPP carried out in the capacity of Deputy Director (Investigation)/ACE, when he involved the appellant as one of the culprits of the occurrence, however, learned counsel urged that no sound reasons were advanced by P.W.13, which could be made basis for involvement of the appellant in the instant case. Learned counsel further argued that conduct of Abdul Sattar, XEN (P.W.3)/complainant is not above board, who was not only proceeded against departmentally rather demoted. The next argument of learned counsel for the appellant was that technical report (Exh.PA) was not prepared in the presence of the appellant, whereas, Stock Register (Exh.PP) was not put to him during his statement under section 342, Cr.P.C. Hence both the documents cannot be used against the appellant. In these, circumstances, learned counsel contended, the prosecution case against the appellant is of no evidence and the judgment of the learned trial Court is devoid of legal justification as the reasons advanced by it while convicting the appellant are not corroborated from the material available on the record. Learned counsel finally prayed for clean acquittal of the appellant from the case.
9. Mian Tariq Ahmed Advocate representing Abdur Rashid appellant in Criminal Appeal No,1528 of 2010 submitted that nevertheless the appellant is named in the crime report, however, no exact date and time of occurrence has been mentioned learned counsel submitted that admittedly before lodging the complaint, 'stocks were not properly checked, which fact has been admitted by P.W.3. Learned counsel argued that even otherwise facts of the case and the evidence led by the prosecution do not satisfy the ingredients of section 409, P.P.C., as entrustment and misappropriation were not proved. Learned counsel vehemently contended that it has come in the prosecution evidence that Abdur Rashid appellant was dismissed from service on 28-8-2000 and he was also released on the same day then deposition of Muhammad Saved, SD (P.W.5) that on 29-8-2000 qua the fact that the appellant had refused to hand over him the charge is nothing but an afterthought story, which has only been made in order to strengthen the prosecution case.
Learned counsel went on arguing that the appellant was not the storekeeper rather Muhammad Hamid co-accused was the storekeeper at the relevant time, who was acquitted of the charge on the same set of evidence and his acquittal was not assailed before any higher forum. It was urged that although it is the prosecution version that the appellant in connivance with other co-accused committed embezzlement in stocks, however, the prosecution absolutely failed to lead any evidence on this account. As a matter of fact, learned counsel submitted, the appellant had lodged a case under sections 380, 457, against Sher Rasool Chowkidar son of Ghulam Rasool, Administrative posted in the office of Chief Engineer, Sargodha and due to that grudge, the appellant has been involved in this case. In this backdrop, learned counsel for the appellant submitted, as the prosecution had badly failed to establish/prove its case against the appellant beyond shadow of reasonable doubt, the learned trial Court was not justified in passing conviction against the appellant thereby burdening him with a huge amount of fine. It was lastly submitted on behalf of the appellant that he is of advance age of 67 years, who has already suffered incarceration of dismissal of his service and being behind the bars for a considerable period, hence he is entitled to his clean acquittal of the charge levelled against him.
10. Contrarily, learned Deputy Prosecutor General vehemently opposed the contentions advanced by learned counsel for the appellants. It was contended that Abdur Rashid appellant was named in the crime report, who in all the inquiries conducted departmentally and the investigation carried out by the Anti-Corruption Establishment authorities was found involved. Learned Deputy Prosecutor-General next argued that both the appellants have caused huge loss to the government exchequer, which fact was not only found correct in the report of Physical Inspection Committee rather Muhammad Aslam Niazi (P.W.13), then Deputy Director (Investigation)
Investigating Officer also arrived at the conclusion that the appellants are fully involved in the embezzlement of stock material. It was next contended that Muhammad Javed, SDO (P.W.5) was not cross-examined and as per settled law his statement is to be taken as true in totality.. Learned Deputy Prosecutor-General further submitted that the prosecution witnesses had no against the appellants for making false statements against them. Regarding the defence plea, it was argued that the same does not shatter the prosecution version. It was lastly argued that the appellants were found guilty during the course of investigation; therefore, the learned trial Court rightly passed conviction and sentence, which is just and proportionate to the deed committed by them.
11. Arguments advanced pro and contra have been heard. I have gone through the record available on file with the able assistance of learned counsel for the appellants, as well as, learned Deputy Prosecutor-General.
12. The case of both the appellants is on different footing, therefore; firstly I take up Criminal Appeal No,1528 of 2010 filed by Abdur Rashid, appellant. Although his name finds mention in the complaint filed by Abdul Sattar, XEN (P.W.3) on the basis of which crime report was lodged, however, admittedly no exact date and time of occurrence stands mention therein. An important aspect of the case is that it has come in the testimony of Abdul Sattar, X-EN (P.W.3) that before lodging the complaint the stocks were not properly checked and no physical inspection was conducted by the Irrigation Department authorities, the basic requirement of law. It has also come on the record that Abdur Rashid appellant was not the, store-keeper and as a matter of fact Muhammad Hamid, holding the charge of Store-keeper nevertheless was involved in this case, however, on the same set of evidence, during the course of trial, he was acquitted of the charge by the learned trial Court and his acquittal was not assailed before this Court. In the crime report, the prosecution has levelled the allegation that Abdur Rashid appellant in connivance with other co-accused embezzled the material available in the official stocks; however, not an iota of evidence in this regard -was ever led by the prosecution. I also fail to understand that on the basis of what material, the learned trial Court passed conviction under section 409, P.P.C., when ingredients of supra Section were not satisfied by the prosecution through leading evidence with regard to dishonest misappropriation or dishonest disposal of property. Respectful reliance in this regard is made to the dictum of law in the case of Abdul Rashid Nasir and others v. The State (2009 SCM R 517); wherein their Lordships in the august Supreme Court of Pakistan held as under:-- "---Criminal breach of trust by public servant etc.---Essentials--- Entrustment, dishonest misappropriation or conversion to one's own use or dishonest disposal of property by the offender, are the essential ingredients to constitute an offence under S. 409, P.P.C."
' Much has been emphasized by learned Deputy Prosecutor-General that Muhammad Javed, SDO (P.W.5) was not cross-examined and the fact that Abdur Rashid appellant had refused to hand over him charge on 29-8-2000, hence his statement is to be taken true in totality; however, while making testimony Abdul Sattar X-EN (P.W.3) admitted that on 28-8-2000, Abdur Rashid appellant was dismissed from, service by the competent authority and on the same day he was also relieved. This fact straightway falsifies the testimony of P.W.S. Moreover, it was the defence plea that earlier, the appellant on account of theft of official copper wire had lodged case against Sher Rasool Chowkidar under sections 380/457, P.P.C. And said Sher Rasool was son of Ghulam Rasool, Administrative Officer posted in the office of Chief Engineer, Sargodha, and the latter in connivance with P.W.3 had involved the appellant in the instant case. The factum of lodging the case by the appellant against the son of Ghulam Rasool has not been denied.
13. As far as case of Ejaz Shafi appellant (in Criminal Appeal No,1501 of 2010) is concerned, admittedly he is neither named as an accused in the complaint filed by Abdul Sattar X-EN (P.W.3)/complainant nor his name finds mention in the crime report. There is also no denial to the fact that in the .Inquiry conducted by Qazi Allah Yar, S.E. (P.W.1) and that conducted by Sh.
Muhammad Yousaf, Principal Government Engineering Academy (P.W.4), Ejaz Shafi appellant was not found to be one of the culprits of the occurrence. Moreover, in the, respective investigations carried out by Farooq Hassan Inspector (P.W.7), Ahmed Nawaz, DSP (P.W.8) and Mati Ullah Khan, DSP (P.W.12), the appellant was not found connected with the crime and it was in the investigation of Muhammad Aslam Niazi, District Public Prosecutor (P.W.13) conducted in the capacity of Deputy Director (Investigation), Anti-Corruption Establishment, when he named the appellant as an accused, however, perusal of his investigation reveals that neither sound reasoning have been advanced by P.W.13 nor there is any tangible material/ evidence available on the record to link the appellant with the commission of offence. Moreover, the alleged technical report (Exh.PA) was not prepared in the presence of the appellant. It is also an admitted fact that copy of Stock Register (Exh.PP) was not put to the appellant at the time of his statement recorded under section 342, Cr.P.C. Hence, these cannot be used against the appellant.
14. All these facts when put side by side, persuade this Court that the prosecution case lacks sufficient incriminating evidence, which could be made basis for conviction of any accused person.
The conduct of Abdul Sattar X-EN (P.W.3)/complainant is not above board as he was proceeded against departmentally and was demoted. Both the appellants are also stated to be of advance age as at the time of recording their statements under section 342, Cr.P.C. Their age was mentioned as 64 years. Needless to mention that they have already faced agony of trial and they have not only been dismissed from service rather on their conviction their pensionary benefits/gratuity facilities must have been stopped. Hence, at this advance age, they require to spend their lives peacefully.
5. Upshot of above discussion is that the prosecution case is lacking sufficient material evidence and the prosecution has miserably failed to substantiate its case against both the appellants beyond reasonable doubt. Especially the prosecution case against Ejaz Shafi appellant is absolutely of no evidence, whereas, the defence plea of Abdur Rashid, appellant regarding registration of case against Sher Rasool also rings true. Hence, while extending the salutary principle of benefit of doubt, this Court is persuaded to hold that learned trial Court was not justified in passing conviction in the peculiar circumstances. Resultantly Criminal Appeal No,1501 of 2010 filed by Ejaz Shafi appellant and Criminal Appeal No,1528 of 2010 filed by Abdur Rashid appellant are accepted in toto. The conviction and sentence recorded by the learned trial Court in its judgment dated 31-5-2010 is set at naught as a consequence whereof Ejaz Shafi and Abdur Rashid, appellants are directed to be acquitted of the charge in case F.I.R. No, 3, dated 21-2-2003, offence under section 409, P.P.C., read with section 5(2) of the Prevention of Corruption Act, 1947, registered at Police Station ACE, Sargodha. Abdur Rashid appellant is directed to be released forthwith if not required in any other criminal case. Sentence of Ejaz Shafi appellant already stands suspended by this Court in terms of order dated 1-9-2010, passed in Criminal Miscellaneous No,1 of 2010. His surety is discharged from his liability. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.