The appellant Muhammad Sarwar son of Muhammad Anwar, was tried by the learned Senior Special Judge, Anti-Corruption, Punjab, Lahore, in case FIR No. 23/1998 registered under Sections 406, 409, 109, 420, 468, 471, PPC read with Section 5 of the Prevention of Corruption Act, 1947 with Police Station Anti-Corruption Establishment, Lahore and after conclusion of the trial, vide judgment dated 25.10.2008, he was convicted and following sentences were inflicted upon him:-- u/S. 409, PPC Five years S.I. with fine of Rs. 15-Lakhs andin default of payment of fine, to undergo two years S.I. u/S. 468, PPC Two years S.I. with fine of Rs. 100,000/-, in default of which, to undergo six months S.I. u/S. 471, PPC Sentenced to two years S.I. with fine of Rs.100,000/-, in default whereof, to undergo one year S.I. u/S. 5 of PCA, 1947Sentenced to five years S.I. with fine ofRs. 300,000/-, in default of which, to undergo one year S.I.
He was also held entitled for the benefit of Section 382-B, Cr.P.C.
2. As per FIR (Ex.PA/1), made by one Irshad Ahmad (PW.1), Manager Admin and Personnel Cooperative Store, during the period from 06.03.1990 to 28.11.1993, the appellant being the Incharge of the Cooperative Shop, Baghbanpura, Lahore, had embezzled amount of Rs. 27,91,644.35, by preparing forged goods receiving report (G.R.R.)
3. The Investigating Officer Zulfiqar Ali Awan, Assistant Director-I, Anti-Corruption Establishment, Lahore Region, Lahore (PW.6) conducted the investigations in the case, who had taken into possession Rs. 75,000/- produced by wife of the appellant, prepared recovery memo. Ex.PC, took into possession G.R.R. Ex.P2 to Ex.P644 produced by Amjad Rashid, Financial Manager, Cooperative Head Office, Lahore (PW.2) and memo, prepared in this respect was Ex.PS. After finding the appellant involved in misappropriation of huge amount, he forwarded the report to the Court for commencing trial.
4. The Court, after receiving the final report, charged the petitioner for the afore-noted offences vide order dated 16.09.1999. Since, the appellant denied from the charges, the prosecution evidence was summoned. The Court proceeded to record statement of Irshad Ahmad, PW.1, Amjad Rashid, PW.2, Saeed Ahmad, PW.3, Muhammad Nazir, PW.4, Maqsood Ahmad, PW.5 and Zulfiqar Ali Awan, PW.6. The documents as mentioned in the preceding para, were also made part of the record.
5. The incriminating evidence produced by the prosecution, was confronted to the accused which, appellant did not accept as of correct one and negated the same and in the answer given regarding the question of registration of case against him, he summarized some facts stating that the case was planted upon him at the behest of employees of Head Officer, who, in order to save their own skin, made him a scapegoat in the case. The learned Court has also proceeded to record statement of Amjad Rashid, PW.2, as CW.1 which evidence was also confronted to the accused, who has also given brief history of the case lodged against him in his statement again recorded under Section 342, Cr.P_C.
6. The learned Court, after concluding all the proceedings and after appreciating the evidence, proceeded to convict and sentence the appellant in the afore-noted manner. The appellant, by filing this criminal appeal, has assailed his conviction and sentence.
7. Parties have been heard at length and record has been examined.
8. First of all the moot point which has cropped up for consideration, is that the Court has summoned PW.2 Amjad Rashid as Court witness without mentioning the reasons as to why the said witness has been examined as a Court witness. In this respect, an incomplete order existing on the file, has been noticed wherein it is mentioned that the learned counsel for complainant was asked to address the Court as to what is the effect of not proving the forged bills through which money was drawn as authorship of the accused was not proved through fingerprint bureau. This order ends here and on the pages appended with this record, there is nothing on the file as to what proceedings were taken by the Court thereafter. Another incomplete order is available at Page-53 of Lower Court record, in which Amjad Rashid, was directed to appear on 09.10.2004 and perhaps that order was passed on 18.09.2004. This order does not seem to be in continuity of the afore- noted contents of the order, however, on 09.10.2004, the learned Court simply recorded that it deems fit to record statement of Amjad Rashid as CW. Perhaps the Court has exercised the jurisdiction vested in it by way of Section 540, Cr.P.C. I am afraid that the Court could adopt such procedure during the trial of the case, as said Amjad Rashid was firstly examined as prosecution witness No. 2 and thereafter, if anything has not been stated by him then in that case under Article 132 of the Qanun-e-Shahadat Order, 1984, he could be re-examined. The jurisdiction given by Section 540, Cr.P.C. can only be exercised in cases where the person other than the cited witness is conversant with the facts and circumstances of the case and Court deems it fit to record his statement in order to reach at just decision, could summon him in the Court to state facts but in case where a person is cited as witness and who has also been examined as prosecution witness then in that case, the Court has to exercise jurisdiction under the provisions of Qanun-e-Shahadat Order, 1984. This examination of PW.2 as CW.1, amounts filling of the lacuna left by the witness in his own previous statement which statement as CW.1, cannot be permitted to bring on the record as evidence for the prosecution evidence. Furthermore, there is nothing on file to suggest that the prosecution has ever applied for summoning of PW.2 as C.W rather it appears that Court has suo- moto summoned him as C.W. The learned Court below has committed material irregularity in recording the statement of PW.2 as C W. 1 which is not curable thus has vitiated the trial commenced against appellant.
9. Another point which has been highlighted by the learned counsel for appellant is that the Court below had announced oral judgment in the open Court but dictated and signed the same later on, thus violated the provisions of Section 366 read with Sections 369 and 371, Cr.P.C. which has also rendered the conviction and sentence of the appellant as nugatory. The learned counsel has made a reference, to an application moved by the appellant to the Court on the date of announcement of judgment under the afore-noted provisions of Code of Criminal Procedure upon which the Court had passed an order dated 08.11.2008, admitting that the judgment was orally announced in the open Court and same was dictated to the stenographer in shorthand which was finalized after few days, as such, the copy of said judgment could not be -delivered to the appellant on the day of announcing conviction and sentence. In this regard, when the provisions of Section 366, Cr.P.C. have been examined, it is found that the Court has to pronounce or explain the substance of its judgment in the open Court immediately or on some adjourned date and time of which is to be notified to the accused or pleaders. Similarly, Section 371 of the Code requires a Court to deliver copy of the judgment to the accused where he is convicted of an offence at the time when the judgment is pronounced. Since, in the case in hand, both the provisions of law have been violated by the Court below while pronouncing the judgment which has also prejudiced the appellant as he, at that time, was in the custody, therefore, the judgment rendered by the Court below on this score also, is liable to be set aside.
10. On merits of the case, it is found that the prosecution case rests upon the documents Ex.P2 to Ex.P466. When these documents have been examined, it is found that same have not been proved in accordance with law, as such, cannot be read into evidence. It has been stated by the witnesses that G.R.R. is consisted upon four copies out of which one copy is given to the contractor for supplying the goods mentioned therein and that copy was found forged whereas other three copies were intact and were maintained at different level in the Head Office including the Accounts Branch. The copy of G.R.R. given to the contractor was found forged and it is alleged that on the basis of that G.R.R., the contractor had supplied less goods to the shop of the appellant than mentioned in other copies of G.R.R. then in that case, the contractor is also required to be associated in the investigations which has not been done by PW.6 and he has also admitted this fact in his Court's statement. It is noticed that the petitioner has been booked in the case in hand due to his signatures on the second copy of G.R.R. but the prosecution has not made any attempt to get verification of the contents of that G.R.R. with three counterparts of the same nor the said document i.e. second copy was sent to the fingerprint expert bureau for determining the forgery in those documents. In the absence of such material evidence, passing the conviction and sentence of appellant on the oral statements of PWs, is not sufficient. The witnesses so produced by the prosecution were not the authors of those documents nor any comparison of the same was obtained from the relevant department, therefore, liability calculated on the basis of those documents against the appellant, is not established. Another important factor which has been noticed from the statement of prosecution witnesses is that the said misappropriated amount remained undetected when the audit for the disputed years was conducted by the authorized agents and thereafter in the year 1993, the appellant was also transferred therefrom. This analysis of the evidence brings me to an irresistible conclusion that the prosecution could not establish the charge against the appellant beyond any reasonable shadow of doubt. The evidence so produced by the prosecution is not sufficient to fit the rope ,around the neck of the accused. The learned trial Court seems to be overzealous when it had convicted and sentenced the appellant on the basis of quite insufficient evidence which has otherwise not been' proved in accordance with lay, as such, the judgment handed down by the Court below, is not sustainable in the eyes of law.
11. For the reasons stated above, the appeal in hand is accepted and conviction and sentence recorded against .the appellant is set aside as a ssult of which he is acquitted from the charge. The appellant is present the Court on bail, whose bail-bonds are cancelled and the surety is slieved of his liability.