ABDUL RASOOL MEMON, J.---The appellant, who is complainant, being aggrieved and dissatisfied with the judgment dated 28.09.2010 passed in Criminal Case No.137 of 2008 arisen out of Crime No.399/2001, Police Station Ferozabad under sections 420, 408, 468, 471, 34, P.P.C. whereby respondents Nos.1 to 3 were acquitted by XIIIth Judicial Magistrate East at Karachi, has preferred this acquittal appeal.
2. Brief facts of the prosecution case are that one Jawaid Naseer Ahmed recorded FIR on 25.10.2001 on behalf of Emco Industries Ltd. alleging therein that respondent No.1 was Regional Manager while respondent No.2 Jamal Abdul Nasir General Manager Marketing posted at Lahore was over all incharge of affairs of the company's Marketing and Sales of Tiles in Pakistan. It is alleged that on 5th September, 2001 Mr. Hans Noorani Director of the Company arrived at Karachi when he received certain complaints against Regional Manager Mr. Masood Ahmed, his staff Ahmed Nawaz, Area Sales Manager, and Mr. Mazhar Karim, Assistant Manager Sales at Karachi about the misappropriation of tiles from warehouse and by sharing embezzled amount, it was transferred by said Masood Ahmed (the respondent No.1) into the bank account of Jamal Abdul Nasir, respondent No.2, General Manager, Marketing at Lahore. The physical stock checking at warehouse was carried out from 12.09.2001 to 01.10.2001 and the sales record of the Regional office, Karachi till 24.10.2001 in presence of Junior Stores Officer Javed Ahmed Khan and Store Supervisor Hassan Iqbal. As a result of physical stock checking 21,073 square meter tiles worth of Rs.49,61,345/- were missing from the warehouse.
3. It is further stated that during the process of audit of the company's account it was further transpired that certain deliveries of tiles were booked in the names of fake parties. It has been alleged that the respondent No.1 Masood Ahmed and aforementioned sales officers intentionally, wilfully and deliberately for their illegal monetary gain mis-appropriated tiles stock by issuing verbal instructions in the name of fake/self created parties.
4. After investigation, the respondents were sent to face their trial and prosecution examined in all six witnesses namely; Muhammad Tariq (Ex; 5), who produced seven books (Ex: 5-B/1 to 12) and demand drafts of Banks (Ex:5-C/1 to 6, so also mashirnama (Ex: 5-D/1 to 3) P.W. Hassan Iqbal (Ex: 6), Javed Muhammad Khan (Ex-07), Muhammad Irshad (Ex:8), Saifuddin Khan (Ex: 10), who produced statements of stocks (Ex:10/A), stock taking report (Ex:10/B) and Imtiaz Ahmed Khan the Investigating Officer of this case examined (Ex:11), who produced Memo of place of incident, memo of arrest, memo of seizure, Bank report, refer signatures, leave application, Delivery challan, report of handwriting expert as Ex. 11/A to L respectively. The complainant did not examine himself though many chances were given to him by the trial court, thus the side of the prosecution was closed and statements of accused were recorded (Ex: 12 and 14 respectively), wherein they have denied the allegation of prosecution and claimed their innocence. They neither examined themselves on oath nor produced evidence in their Defence.
5. The trial Court on conclusion of trial vide judgment dated 28-9-2010 acquitted the accused. The said Judgment is assailed in this appeal.
6. Learned counsel for the applicant has contended that the judgment of the trial Court is preserve, not in accordance with law and facts hence is not sustainable; that the trial court did not allow the prosecution to produce the material witnesses of the Bank in order to produce Bank record and the Complainant's application on 27.08.2010 for grant of adjournment was rejected that the trial Court did not allow the Complainant to take on record the statement of P.W. Umer Hayat recorded under section 164, Cr.P.C as he was unable to appear in court; that the prosecution witnesses have corroborated each other on material points. He prays for setting aside the impugned judgment of the trial Court and remand of the case for further trial.
7. Conversely, the counsel for the respondents Nos, 1 to 3 contended that the prosecution has failed to establish the charge against the accused in a reasonable time. He submits that the FIR was registered against the respondents on 25-10-2001 and the charge against the respondents was framed on 08.10.2005 but till 25.8.2010 the prosecution could not examine the complainant in this case to support his version; that the important witness to this case namely Haris Norani has also not been examined; that the evidence of the prosecution witnesses namely Jawaid Muhammad khan and Hassan Iqbal is contradictory to each other who were first arrested by the police in this case and then on the undertaking that they will depose against the respondents have been joined as witnesses therefore he evidence is of interested witnesses and does not inspire confidence; that the respondents after acquittal from criminal charge enjoy double presumption of innocence; that nothing has been brought on record that the trial court had ignored or has discarded the evidence for the reason not recognized by law therefore the criminal acquittal appeal merits no consideration and be dismissed.
8. Learned Additional Prosecutor General has supported the impugned judgment.
9. I have considered the submission made by the counsel or the parties and gone through the evidence available on record.
10. It is settled principle of criminal jurisprudence that burden of proof lies on the prosecution and it has to prove the charge beyond reasonable doubt. It is also settled principle of law that accused after acquittal from criminal charge enjoys double presumptions of innocence, one before the trial of case and second after his acquittal thus Courts while dealing with an acquittal appeal are bound to examine whether Courts below had not, ignored any evidence on record or had discarded any evidence for the reasons not recognized by law. This dictum is laid down in a case Barkat Ali v. Shoukat Ali and others (2004 SCM R 249).
11. Applying the above principles it is to be seen whether accused namely Maqssod Ahmed, Jamal Abdul Nasir and Mazhar Karim have rightly been acquitted.
12. Persual of the record reveals that F.I.R was registered in the year 2001 and till 2010 Complainant Javed Naseer Ahmed failed to appear and examine himself therefore, on 25.08.2010 the side of the prosecution was closed and the statement of the accused were recorded. No Plausible explanation has come on record that why the complainant did not examine himself to support the contents of FIR. Moreover as per contents of FIR on 05-09-2001 one Haris Norrani Director of Company arrived at Karachi whi received the complaint regarding alleged misappropriation committed by the respondents and carried out audit has also not been examined. Per contents of FIR physical stock checking at warehouse was carried out by Javed Naseer Ahmad and Store supervisor Hassan Iqbal and as a result of physical stock checking 21,073 square meters tiles were missing but both the witnesses who are examined as P.Ws. 2 and 3 have not stated anything in respect of concluding any stock checking by them. In cross-examination RW-2 Hassan Iqbal, who was Store Keeper , has admitted that he worked under supervision of Javed Ahmed khan and goods were supplied to dummy persons with signature of Javed Ahmad and him. He further stated that he cannot disclose the names of parties to whom the goods were supplied dummy receipt. He further stated as under:-- "Vol. Says the invoices were made by javed Ahmed khan. It is incorrect to suggest that, I and Javed Ahmed received the Goods which come from Lahore factory."
13. He further states that "it is correct to suggest that police of P.S. Korangi arrested him driver and Javed Ahmed khan in case of supply of goods on dummy receipts". While P.W. Javed Muhammad Khan in his Cross- examination at Exh. 08 has stated that 'it is correct to suggest that I have stated in my statement under section 164, Cr.P.C that reconciliation of stock in proper were done every month and sent to head office. It is correct to suggest that, at the time of incident accused Mazhar Karim was out of Pakistan."
14. So far demand drafts are concerned P.W. Javed Muhammad Khan has stated in cross- examination that he has sent Rs. 1,50,000/- in cash to Jamal Nasir in a fake account and cannot say that it was the money of complainant's company and even he do not know that whether the demand draft belong to this case or not.
15. In respect of audit, he has replied that "it is correct to suggest that it was not come on record in auditYear 2000-2001 that fraud has been committed with company nor in the year 1999-2000.
Nothing came on record about fraud during audit of the company.
16. Muhammad Tariq P.W.1 who is also sales Manager in Emco Ltd. In his cross-examination has admitted that no goods can be sold to dealer on blank papers nor any dealer can buy goods on blank papers. He further admits that the goods were supplied to dealers by the signatures of store keeper Iqbal Hussain and company made the Store Keeper "Waada Muaf Gawah". He has admitted that Demand Drafts were sent to Jamal Abdul Nasir was not Company Money. He further admits in cross-examination that company used to supply goods to the dealers with fake name for saving the Tax. The Evidence of P.W-5 Saifuddin is formal in nature, they have not desposed a single word against alleged act of fraud and misappropriation by the respondents, while P.W.
Imtiaz I.O. of the case has deposed regarding events of the Investigation.
17. The trial court after assessing the evidence has come to the following conclusion:-- "I have given, careful consideration to the arguments of learned counsel for the accused, learned ADPP assisted by the learned counsel for the complainant and record and proceedings of the case. From perusal thereof it has not been clearly established anywhere in the case that the present accused persons have any connection of misappropriation or embezzlement committed in the company being their respective employees, however from the admissions of prosecution witnesses during their cross-examination it has been established that no anything can be supplied/ sent to any person/client without the signature of store keeper; as the said seven books which were produced on record does not have the signature of any of the accused however, it bears the signature of store keeper who is not implicated by the prosecution in this case as an accused. Apart from it, the prosecution in support of their case which gives material loss to the prosecution, has not produced the start witness of this case i.e. the complainant of this case.
In view of the above facts, circumstances of the case and discussion, I am of the firm opinion that prosecution has failed to make out any case against the present accused persons without any shadow of doubt".
18. From the perusal of record, it appears that no material has been brought on record against the respondents Nos.1 to 3 in respect of cheating and dishonestly inducing delivery of property to any other person. Neither any documentary nor oral evidence is available on record that the present respondents have forged signatures. The prosecution has also failed to prove the allegation against the respondents that they have misappropriated a huge amount on deceiving the others or have converted the same in their account. Evidence of the prosecution witnesses is contradictory to each other. On the contrary prosecution witness Iqbal and Javed themselves admitted that they'have sold the properties to the fake customers while the P.W.1 Muhammad Tariq who is area Sales Manager in the company of the complainant on the contrary has belied the whole case of the prosecution by stating that company used to supply the goods to the dealers with fake names to save the tax. In Audit, nothing has come on record to connect the respondents for commission of the alleged offence. The Judgment of the trial court is fair based on proper, just and legal appreciation of evidence on record. The appellant has failed to show that the impugned Judgment of acquittal/ is fanciful or based on no evidence. The evidence has been fairly and properly appreciated to secure the ends of justice.
19.From the perusal of the Judgment, it appears that no legal errors were found in it after scanning evidence. It appears that for conviction of the respondents of the alleged charges, evidence should be of a quality and good standards which is lacking in this case. The prosecution has failed to establish the charge against the accused beyond shadow of reasonable doubt by bringing the trustworthy, convincing and coherent evidence, therefore, the trial court was justified while acquitting the accused and has rightly extended the benefit of doubt and acquitted the respondents from the charge. There is no substance in the instant appeal, which is hereby dismissed. The impugned Judgment is maintained.