Sardar Muhammad Block Officer and Ali Muhammad Forest Guard of the Forest Department have preferred this appeal against the judgment of the Special Judge, Anti-Corruption, Punjab, Lahore, dated 14-10-1978 by which they have been convicted under section 409, P. P. C. Read with section 5(2), Prevention of Corruption Act, II of 1947, to undergo rigorcus imprisonment each for a period of two years and also to pay a fine of Rs. 15,000 each and in default of payment of fine to further undergo rigorous imprisonment for a period of one year each.
2. According to the prosecution case Sardar Muhammad served as Block Officer, Peerowal Forest, Tehsil Khanewal while Ali Muhammad was a Forest Guard under him and had misappropriated wood measured 14729 C. Ft valued at Rs. 15,000 being the difference of the quantity 98319 C. Ft at site and the quantity of 18519 C. Ft found at the forest Depot. The entire quantity of the wood had reached the forest Depot from the site between 1-10-1972 to 26-11-1972 and related to compartment Nos. 53 and 54, block No. 2 of Chak No. 3. The precise allegation is that the above shortage of fire-wood measuring 14604 C. Ft had certainly occurred during the course of carriage of forest wood from the site of the Depot and that Ali Muhammad Forest Guard had been issuing challans and allowing carriage when Sardar Muhammad Block Officer neither stopped carriage nor reported in writing to the Range Officer, Muhammad Aslam Toor about the missing of the challans as well as the less receipt of the fire--wood from the Depot According to the inquiry report the appellants had either a hand in this scandle or the shortage had occurred due to their neglig61106 and inefficiency. The conclusion arrived at by the learned special Judge for convicting the appellants may be quoted below;--- "Thus, the shortage when worked out mime to about 1404 C. Ft which wad not carried to the forest Depot from the site and the responsibility of the carriage of wood was that Sardar Muhammad Block Officer and Ali Muhammad, Forest Word who issued the challans regarding the forest wood on the basis of which the forest wood on record was calculated as it was found at the site when forest wood measuring 14604 C. Ft. Was found shortage at the depot.---
3. The prosecution evidence may be examined to detail in order to find out whether tire above conclusion arrived at by the learned Special Judge was justified in the circumstances of the case. A perusal of the judgment would show that there had been no thorough examination of the evidence on record. Talib Hussain P. W. 1 is a Contractor by profes--sion and bad taken contract of wood in the same forest. He came to know that fuel wood had been illegally sold from Chak No. 3, Block No. 2, Peerowal Depot. According to this witness the wood was in the charge of Muhammad Aslam Toor, Range Officer, Peerowal and a definite allegation had been levelled against this Officer that he had misappropriated the wood in privy with the appellants. The witness secretly informed the Anti-Corruption Establishment to arrange the raid and his statement was recorded by the raiding Magistrate as Exh P. W. 1/A. The witness stated in the cross-examination that the carriage of the wood was on the camels employed by the carrier who had informed the Contractor about the pilferage of wood. ' The contractor had never been on the spot as he had already employed the carriers. None of the carriers employed by the Contractor was examined as witness by the prosecution. According to Talib Hussain (P. W. 1) the procedure for the delivery of the wood was that one copy of the challan was given to the carrier of the fuel wood depot and the second copy thereof was given back by the carrier to the concerned Block Officer or the Forest Guard.
Muhammad Nawaz (P. W. 2) was the representative of the contractor Talib Hussain (P. W. 1) working at the site. The witness specifically stated that Muhammad Aslam Range Forest Officer had illegally removed IS/16 trucks of wood from Peerowal jungle and this fact was in the knowledge of the appellants. In the cross-examination the witness gave the details of the removal of wood by the trucks and asserted the fact that Muhammad Aslam Toor Forest Officer always used to be with the trucks. It was further stated by the witness that the said Muhammad Aslam Toor used to load the trucks and the appellants were not present with him at that time. Manzoor Hussain (P. W. 3) is a resident of Block No. 2, Chak No. 3 and was produced by the prosecution to show that he had seen the appellants carrying away the wood after loading them in a truck from Block No. 2 and that Muhammad Aslam Toor, Forest Range Officer had brought these trucks. In this way this witness contradicts P. W. 2 on a very material point i.e. According to this witness the appellants were present at the time of the loading of the trucks while P. W. 2 does not support his version. It may be pointed out that the said Forest Officer is neither an accused nor cited as a witness and so also the contractor to whom the wood has been sold illegally. According to this witness the wood was delivered to Balooch contractor and gave the details of time and platy of loading of the trucks by which the wood had been removed. Muhammad Sadaq Khan (P. W. 4) had been posted as Sub- Divisional Forest Officer in Peerowal forest at the relevant time and had submitted a report after preliminary inquiry to the Divisional Forest Officer, Multan which is Exh. P. W. 4/1. This is the document on which the learned Special Judge has mostly relied in order to fix the liability on the appellants. A perusal of the report shows that no definite or exclusive responsibility had been fixed against the appellant under this report. The conclusion against the appellant was to the following effect "This attitude of both Forest Guard Ali Muhammad and Sardar Mohd., Forester shows that they have either a hand in this scandle or the shortage has occurred due to their negligence and inefficiency."
Muhammad Aslam Toor, Forest Officer was also held responsible and so also Talib Hussain Contractor. His statement was also recorded by the raiding Magistrate on 29.1-1973 as Exh. P. W.
4/C. The witness had given the details of the documents on which the shortage had been worked out. In the cross-examination the witness admitted that the shortage was detected during his checking and no person had made any report in this behalf. The inquiry report was not based on any evidence except the statement of the appellants and his checking of the record and as such the inquiry report could be as best treated as the opinion of the witness. He also admitted that it was only preliminary. It was suggested by the appellants to this witness that no physical verification of the stock had taken place and the report had been completed after getting the register of Abdul Majid Depot Officer. Mr. Ghulam Akbar (P. W. 5) who was Naib Tehsildar, Khanewal at the relevant time acted as the raiding Magistrate. It has not been made clear as to why a raid was organised in this case. The wood had already been removed and no evidence was to be collected which needed the supervision of the raiding Magistrate. The collection of the record and the statement of the witness could be recorded by the Investigating Officer. If the trucks loaded with wood were about to be removed, there could be some justification for the raiding party to be organized in this behalf. In the cross-examination the witness admitted that he did not physically verify the stock. He also did not check the challans in respect of receipt of goods. In these circumstances no special sanctity can be attached to the raiding report which consisted of the statement of the witnesses and details of taking into possession of the relevant registers. Rana h1.Ihammad Aslam D. S. P. (P. W. 8) was posted as Co. A. C. E., Multan. He had made an application (Exh. P. W. 5/A) to A, C. Khanewal for deputing a Magistrate on duty to supervise the raid and accordingly Mr. Ghulam Akbar Khan, Naib Tehsildar (P. W. 5) was deputed. The witness gave the details of what had been done by the raiding Magistrate. He recorded the statement (Exh. P. W.
5/13) of Abdul Majid Depot Officer who has not been cited as a witness by the prosecution and also took into possession register Exh. P. W. 4/13 from his custody. The raiding Magistrate then went to the office of the Sub-Divisional Officer Khan Sadaq Muhammad (P. W. 4) and his statement Exh. P.
W. 4/C was recorded. Another register Exh. P. W. 5/A was also taken into custody from Abdul Majid Depot Officer pertaining to Block No. 2, Chak No. 3 Peerowai. Statement of Muhammad Aslam Toor Forest Officer was recorded by the raiding Magistrate as Exh. P. W. 5/A. It was under these circumstances that a registration of the case was ordered by the Magistrate. The preliminary inquiry was also taken into possession.
4. The appellants denied the allegations and stated that Muhammad Aslam Toor, Forest Range Officer and Abdul Majid, Depot Officer had miss-appropriated the wood and that they have been falsely involved. D. W. I Suleman examined by the appellants stated that he had never seen the forest wood being transported under any mechanised vehicles such as trucks and that the wood was carried on camels. There was no need to "produce this witness as P. W. 1 himself had admitted this fact. To the same effect was the statement of Manzoor Hussain (D. W. 2).
5. After the examination of the entire prosecution evidence on record the following conclusions are inevitable:
(i) That Muhammad Aslam Toor Forest Range Officer was the incharge and there were definite allegation's against him. Not only that in the preliminary inquiry he was held responsible but rather the prosecution witnesses, already discussed above had levelled definite allegations against him.
Nothing has been brought on the record to show why he was not challaned alongwith the appellants;'
(ii) That the fuel wood had been removed from the forest of the P. W. 1 was contractor. He bad employed carriers who had the knowlege of the wood being removed. The prosecution has neither cross-examined the carriers nor their statements were recorded during the preliminary inquiry by P. W.
4. Or by the raiding Magistrate; (i.e) That no report was lodged by any of the prosecution witnesses when the trucks were actually removed and according to the preliminary inquiry the contractor was equally - responsible for the shortage.
6. The case of the appellants that the Depot Officer and the Forest Officer' who had actually removed the wood had been let of while the appellants had been involved seems to have some force in the circumstances of the case. The only allegation against the appellants is that they had been negligent in the performance of their duties by not reporting the matter. None of the witnesses have fixed direct responsibility on the appellants. The preliminary report was only based on the document on the basis of which shortage had been worked out for the shortage. The report of the raiding Magistrate cannot also be made the basis of the conviction as the wood had already been removed and definitely there was a shortage. The only point for consideration in the present appeal is whether the prosecution has proved to hilt that the appellants were responsible for the shortage. My finding is that in the present case the appellants could only be held responsible for negligence in the same way as Muhammad Aslam Toor Forest Officer as stated in the report Exh. P.
W. 4/1. There is no positive evidence that the appellants had actually misappropriated the fuel- wood. Even according to the statement of P. W. 2 only Muhammad Aslam Toor had been present along with the trucks and not the appellants. No detail of the truck numbers had been given.
7. In Shakir Hussain, v. The State (PLD 1956 SC (Pak.) 417), it was held that to establish charge of criminal breach of trust the prosecution must prove not only entrustment of or dominion over property but also that the accused either dishonestly misappropriated, converted, used or disposed of that property himself or that he wilfully suffered some other person to do so. Reliance may also be placed on Asim Farooqi v. The State (1976 P Cr. L J 1261). The report of the Enquiry Officer in this case also fixed responsibility on acquitted co-accused. The convicted accused were also, given benefit of doubt.
8. In view of the above discussion, I have no option than to accept the appeal; set aside the order of sentences and convictions passed by the Special Judge vide his judgment dated 14-10-1978.