' WAQAR AHMAD SETH, J.---The appellant stood trial in case F.I.R. No,2 dated .31-3-2010 registered for offence under sections 418/420, P.P.C. Read with section 5(2) PC Act at Police Station ACE, Mardan and after having been found guilty by learned Judge Anti-Corruption (Provincial) Khyber Pakhtunkhwa (Camp at Mardan), he was convicted and sentenced vide judgment dated 8th December, 2011 as under:--
(i) under section 418, P.P.C. To pay a fine Rs,19,500 or in default thereof to undergo three months' S.I.
(ii) under section 5(2) PC Act to pay a fine of Rs,500 or in default thereof to undergo one month' S.I.
All the sentences were directed to run concurrently.
2. The allegation against the appellant is that being a public servant in the year, 2006 he remained absent from duty for 14 months but fraudulently and in connivance with the high-ups received regular salary. He also had a shop where he conducted lottery business and collected money in instalments and later on disappeared from the scene with the invested money, hence not only cheated the public but also caused wrongful loss to the investors.
3. After submission of complete challan, the appellant was charge-sheeted, wherein, he denied the charge and claimed trial. At the trial, the prosecution produced five witnesses in all whereafter statement of the appellant was recorded, however, he did not opt to record his statement on oath or to produce. Evidence in his defence as required under section 340(2), Cr.P.C. The trial culminated in conviction and sentence of the appellant as mentioned above, which he has now questioned through the instant appeal.
4. Learned counsel for appellant contended that the prosecution has not proved its case by overwhelming and reliable evidence connecting the appellant with the commission of offence.
Further submitted that no independent witness has been produced to substantiate the allegation against the appellant and that the P. Ws. Produced by the prosecution are interested witnesses, who contradicted each other on important aspect of the case moreso, the appellant has not confessed his guilt and there is nothing on record regarding his previous involvement in such like cases in the past, hence the impugned judgment is bad in law, which requires reversal.
5. Learned State Counsel while refuting the arguments from other side contended that the prosecution has been able to prove the guilt of appellant beyond reasonable doubt by producing consisting and reliable evidence connecting the neck of the appellant with the crime, therefore, he was rightly convicted and sentenced.
' I have heard learned counsel for the parties and perused the record with their able assistance.
6. The allegations against the appellant are he being a public servant in the year, 2006 remained absent from duty for 14 months but fraudulently and in connivance with his high-ups received regular salary and that he had a shop where he conducted lottery business and collected money in instalments but disappeared from the scene with the invested money, hence not only cheated the public but caused wrongful loss to the investors.
7. In the trial, the prosecution could not establish the factum of absence of duty by the appellant through ocular or documentary evidence, hence was discharge of the said liability.
8. As far as the second allegation of cheating by the appellant through lottery business is concerned, the prosecution in support of this charge produced three P. Ws. In all. Tariq Jamil appeared as P.W.2, who is Principal GHSS Ibrahim Khan Kallay Mardan, who stated that the appellant had set up a Committee of monthly Qist in the name and style of Aazarbijan' and he joined the same in the year, 2005 and continuously deposited monthly Qist of Rs,500 for five years but .Did not receive any prize money as promised by the appellant, who subsequently decamped with the invested money of Rs,30,000, however, the said amount was subsequently returned to him though it was stated that the business transaction was in respect of ,Qist agreed amongst the teachers in their private capacity, which has nothing to do with the discharge of official responsibilities.
9. Liaqat Ali, SET GHS Ibrahim Khan Kalay. Appeared as P.W.3, who stated that he joined the said Committee in the year; 2005 and continuously deposited monthly Qist of Rs,200 for 3-1/2 years, which came to Rs,8,000. The said amount was, however, returned to him subsequently.
' In cross-examination, both these witnesses stated that the respective amount was given by them on different occasions to different people but astonishingly not naming the appellant specifically. It also appears from the statements of these witnesses that there were more than one committee allegedly started by the appellant as different amount of money was deposited by these witnesses.
10. Muhammad Arif, FC, ACE, Mardan appeared as P.W.4, who in his cross-examination that he followed the movement of the appellant on verbal directions of the C.O. A.C.E. And was told by neighbours of the appellant that he is involved in lottery business and takes a lot every month on bank road but no statement of the neighbours or shopkeepers was recorded by him, which could substantiate the said allegation.
11. Apart from the above lacuna in the prosecution case, in my humble view, the contents of 5(2) PC Act, 1947 as well as section 418, P.P.C. Are not applicable in this case as the alleged lottery business was not having any connection with the official duties of the appellant rather the same was agreed upon amongst the teachers in private capacity and that the appellant was subordinate to P.W.2 Tariq Jamal, who is Principal in GHSS, hence the question of exploitation at the hands of the accused did not arise, thus, keeping in view the contradictions in the statements of P. Ws. As well as legal position. Which escaped attention of learned trial Court. To prove the guilt of the appellant, the prosecution must have come with solid, cogent and confidence inspiring evidence, which is not the case in hand, thus, the learned trial Court committed illegality while convicting and sentencing the appellant.
' For the above-mentioned reasons, this appeal is allowed. The conviction and sentence of the appellant is set aside and he is acquitted of the charge levelled against him: As the appellant has tendered the fine amount, therefore, he was ordered to be released and his sureties were discharged from the liability of bail bonds, hence the order of learned trial Court to this extent shall remain intact.