MUHAMMAD ALAM, J.---This is a criminal appeal against judgment/order dated 26-4-2013, whereby, the learned Special Judge Anti-Corruption/Sessions Judge Skardu has acquitted the respondents/accused from the charges under sections 409/420/468/471, P.P.C., read with section 5(2) of Prevention of Corruption Act (PCA) of 1947. Prosecution lodged FIR No,04/1995 of Police Station FIA Gilgit against respondents/accused.
2. On 13-6-1995, the then Deputy Accountant General Pakistan Revenues Gilgit, hereunder referred as DAGPR, wrote a letter (Exh.P.W.3/B) to the Director Education Northern Areas Gilgit. The DAGPR sent a copy of the said letter to the Assistant Director FIA, hereunder referred as AD FIA. Through the said letter, the DAGPR pointed out some fraudulent withdrawal of pay and allowances of permanent and temporary employees of the office of District Inspector of Schools Skardu. The amount so withdrawn was shown as Rs,10,07,746. The withdrawal of said amount continued from December 1993 to March 1995. The AD FIA chalked FIR and the investigation of the case completed.
After submission of challan, trial commenced and the learned trial Court completed trial proceedings after recording statements of 9 P.Ws. In proof of guilt of respondents/accused.
3. I have heard learned Additional Advocate General and learned counsel for respondents at length and have gone through the file. The conclusion part of the impugned judgment appears important and worth perusal. For ready reference, I reproduce the same here under:-- "Accused/Cashier Ehsan All had prepared pay bills while LDC/Typist Ejaz Hussain had typed the same. Accused Syed Ali Shah Accountant of DIS Skardu had put up the bills to DIS Muhammad All for signature who signed the pay bills as DDO then the bills were submitted in Treasury Skardu for pass. Different T.O.S. Passed the bills from 12/93 to 3/95 and accused Ehsan All cashier draw the amount from NBP Skardu. All of the above persons including present accused played their respective role in connection drawal of the amount. But recovery was shown against accused Ehsan Ali. As per recovery memo. Exh. P. W. 7/A Rs,595,000 were recovered from accused Ehsan Ali in presence of Magistrate Muhammad Ibrahim and marginal witnesses Muhammad Hassan and Muhammad Ali but neither the recovery witnesses nor the Magistrate who attested the recovery memo. Were examined in the court. Without examining its marginal witnesses and Magistrate recovery memo has no evidential value. While no recovery was effected from accused Syed Ali Shah. Moreover recovery of Rs,412,776 the remaining embezzled amount was also shown against accused Ehsan Ali who had deposited this amount in National Bank Skardu but neither proper recovery memo. Was recorded in this regard nor any recovery witness and concerned official of National Bank was examined in the court showing that this amount was really deposited by accused Ehsan Ali in the National Bank. Without preparing recovery memo. And examining marginal witnesses this recovery has also no value to the eyes of law. Statement of P. Ws. Under section 161, Cr. P. C. Recorded during investigation of the case are not available on judicial record.
Stock register and expenditure register recovered in the case are also not made part of judicial record. The concerned TOS who passed the pay bills on different occasion from December 1993 to March 1995 were neither cited as P. Ws. In the calendar of witness nor examined in the court.
Investigation of the case was not conducted properly. The lacunas pointed above are of serious nature not curable and fatal to prosecution case. It will be absolutely unsafe to record conviction against the accused on the basis of evidence available on record. Prosecution has failed to prove its case beyond doubt. Accused are hereby acquitted giving benefit of doubt. File after completion be consigned to record."
4. From plain perusal of above reproduced part of impugned order, it is evident that the learned trial Court has not accepted the documents Exh-P.W.7/B, which is copy of challan showing deposit of Rs,412,776, and Exh-P.W.7/C, which is also copy of challan showing deposit of Rs,595,000.
Respondent/accused No,2, Mr. Ehsan Ali, has deposited the said amounts through the said two cheques. The learned trial Court has not accepted the said two documents only because the marginal witnesses to the recovery memos. Showing recovery of said amounts were not examined in the court. Moreover, the recovery of said amounts were conducted against only accused Ehsan Ali (respondent No,2). The case in hand is a very special case and has its own peculiar circumstances. The respondents/accused and the then DDO are colleagues in one office and are equally responsible for the alleged withdrawal. Once it is established that respondent No,2 deposited the amounts of over drawal, the only plea justifying the alleged withdrawal was the plea of any mistake on the part of any official of the respondents/accused. So another very important aspect of the case is that respondents/accused did not plead that the alleged withdrawal was result of any mistake on their part. Therefore, I am of the opinion that, in the given peculiar circumstances of the case, the proof of deposit of alleged embezzled amount, through Exh-P.W.7/B and Exh-P.W.7/C, are very important pieces of prosecution evidence and are relevant pieces of evidence. The learned trial Court omitted to ask any question from the respondents/accused on this particular aspect of the case while examining the respondents/accused No,
1. Anyhow, it is yet up to the trial Court for deciding whether the said relevant documents are sufficient proof of guilt of alleged offence or otherwise.
5. In sequel of above discussion, I accept this appeal, set aside impugned order and remand the case to the trial court with direction to obtain fresh bail bonds from the respondents/accused requiring them to furnish fresh personal bail bonds in the sum of Rs,10,00,000, each with two sound sureties for each respondent/accused in the like amount to satisfaction of the learned trial court.
Any other bond, if any, be treated as non-existence. Learned trial Court to hear parties afresh and pass orders in the light of material available on record or even to seek fresh evidence from either of the parties, if so needed or so required. Appeal allowed. To trial Court. File be consigned to record.