' MUHAMMAD ALAM, J.---This is a criminal appeal against judgment/order dated 25-11-2013, 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,02/1997 of Police Station No,14, FIA Gilgit against respondents/accused.
2. FIR No,02/1997 was chalked in Police Station No,14 of FIA Gilgit, accusing the respondents/accused for misappropriation of goods of Civil Supply Department, hereunder referred as department.
Respondent/accused Mehdi was awarded contract by the department for transporting goods of the department from its Bulk Depot Skardu to different parts of Khaplu and Shigar. The said agreement was effected for the financial year 1996-1997. During scrutiny conducted by the department, in connection with a bill of the said respondent/accused, the then Civil Supply Officer (C.S.O.) Khaplu submitted his report that the goods, regarding which the so submitted bill was claimed, were not delivered by the said respondent/accused at the target destination. As a result of unearthing the said act/offence of said respondent/accused, the staff of the department conducted deeper investigation and inquiries entailing to a number of similar offences/acts of the respondents/accused that they had allegedly committed in connection with transportation of goods of the department. After completing investigation, police submitted challan and trial commenced. Learned trial court acquitted accused Muhammad Ali and Fachu under section 256- K, Cr.P.C. But completed the trial of rest of the respondents/accused. Prosecution produced 21 PWs in proof of guilt of respondents/ accused besides documentary evidence. Every criminal case has its own peculiarity and the case in hand is peculiar in nature on many aspects. The offence alleged against respondents pertains to misappropriation of material or goods in furtherance of their common intention. The mis-appropriated goods were supposed to be transported from Bulk Stores of the department to remote areas by respondent/accused No,2. Respondent/ accused No,2 is admittedly a contractor and has admittedly entered into an agreement with the department for transporting the material of the said department to the remote parts of the area. So the reading of prosecution evidence against the respondent/accused No,2 is quite different from reading the prosecution evidence in normal criminal cases. It is also an admitted fact that the prosecution agency who has conducted the investigation of the case has to adopt special modes for collection of the prosecution evidence. The law governing or regulating investigation in corruption cases is special. The learned trial court has acted as the Judge Anti-Corruption. So almost all the things are special and must have been dealt as a special and peculiar. In the case in hand, the learned trial court has applied the normal mode of reading of prosecution evidence. I have gone through the file with the assistance of the learned counsel for parties and have heard arguments. In the case in hand, the impugned order is worth perusal, particularly the evidence of the appraisal part of the judgment.
3. After appraisal of evidence of prosecution, learned trial court has concluded that:-- 'The illegality committed during investigation and irregularities learned DPP/Special Prosecutor and defence counsel and have also gone through the record.
' FIR was lodged in the case by IP Yaqoob Ali SHO Police Station FIA Gilgit. Soon after lodging FIR he was transferred from FIA. Investigation of the case was entrusted to SIP Muhammad Khan who investigated the case. Investigation of the case by a Sub Inspector is contrary to section 5-A of Prevention of Corruption Act, 1947, where under no officer below the rank of Inspector is competent to investigate any offence described in P.P.C. And section 5 Prevention of Corruption Act, 1947.
Reliance can be conveniently placed on 2001 MID 1456 Karachi which reads as follows:- ----S.409---Prevention of Corruption Act (II of 1947), S.5-A--Federal Investigation Agency Act, 1974 (VIII of 1975), S.3(1)--Conviction---Jurisdictional defects---Case had been lodged, investigated and challaned by the Sub-Inspector who was not competent to do so in view of S.5-A of the Prevention of Corruption Act, 1947---Offences under 5.409, P.P.C. Under which the accused had been challaned was scheduled offence and was covered by S. 3(1) of the Federal Investigation Agency, 1974, whereby only Federal Investigation Agency was competent to investigate into such offences---Having not been done so, the entire trial stood vitiated and such illegality was not curable under S.537, Cr.P.C.--- Sanction for prosecution was necessary on the date of commission of the offence which had not been obtained -Neither the Auditors who had prepared the report against the accused were examined by the prosecution, nor the Auditors report was put to the accused in his examination under 5.342, Cr.P.C.---Accused was acquitted in circumstances. [pp. 1458, 1459] A & B."
' Moreover investigation of the case was also not conducted properly. FIR of the case was lodged under sections 409/ 420/468/471, P. P. C. And section 5(2) Prevention of Corruption Act 1947.
Whereas in the challan sections 409/420/467/ 468/471-A, P.P.C. And section 5(2) PCA 1947 were mentioned. Charge against the accused were also framed under the above mentioned sections.
While there is no provision of section 471-A, P.P.C. Challan and charge sheet is also silent about sections 477-A and 109, P.P.C. Nor any supplementary challan was submitted in this regard pointed out above are fatal to prosecution case, not curable, under section 537 Cr.P.C. In the circumstances it will be unsafe to record conviction against the accused."
4. From perusal of above conclusion of the learned trial court, it is evident that the learned trial court has based his opinion on the defects in investigation of the case and has omitted to base his decision on the available prosecution evidence. From perusal of evidence, it is evident that prosecution has produced evidence showing non-delivery of goods of the department at the target destinations by respondent/ accused No,2. There is prosecution evidence showing that the respondent/accused No,1 and respondent/ accused No,3 were in active collusion or connivance with the respondent/accused No,2, resulting to non-delivery of the goods of the department at target destinations. In the case in hand, proof of delivery of different goods of the department to the respondent/accused No,2 is strong circumstantial piece of evidence that the learned trial court has not bothered even to take up for discussion. So the question for trial court was whether he could record conviction of the respondent/accused No,2 on the basis of said piece of evidence.
Otherwise also, impugned order is evidently result of mis-reading of evidence as there are many pieces of evidences, particularly, oral evidence that has been brushed aside by the learned trial court. It is very important to note that the learned trial court, if had reached to the conclusion that there are defects in manner of collection or production of prosecution evidence, the court is not helpless and instead of issuing directions for correction of such defects, gave benefit to the respondent/accused No,2. I, therefore, exercising my supervisory powers condoned the delay in filing the appeal. Impugned order set aside. Each of respondents/accused to furnish fresh personal bail bonds in the sum of Rs,10,00,000 each, with two sound sureties for each of the respondents/accused, each in the like amount to satisfaction of trial court. Learned trial court is directed to require the respondents/accused for furnishing the bonds in the above terms and conditions. Any other bond, if any, be treated as non-existent. In case of failure of the respondents/accused for furnishing the above bonds, they shall be sent to the judicial lockup.
Learned trial court to hear parties and pass fresh orders in the light of material available on record or even to seek fresh evidence, if so required from either of the parties. To the trial court with the above remarks/observations. Appeal partly accepted in the above remarks/observations. This file be consigned to record.