ABDULLAH BALOCH, J. --- This judgment disposes of Criminal Appeal No 109 of 2009 filed by appellant Abdul Hameed son of Abdul Hakeem, against the judgment dated 19th August, 2009 (hereinafter referred as "the impugned judgment") passed by learned Special Judge Anti- Corruption Balochistan Quetta (hereinafter referred as, "the Trial Court"), whereby the appellant was convicted under Section 409, P.P.C. and sentenced to suffer three (03) years' R.I. with fine of Rs, 20,000/- or in default thereof to further suffer two (02) months' SI.; he was also convicted under Section 5(2), Act-II of Prevention of Corruption Act, 1947 and sentenced to suffer R.I. for three (03) years' with fine of Rs, 271922/-, which shall be recoverable from moveable and immovable properties owned by the appellant. Process as provided under Section 386, Cr.P.C. was also directed to be issued to the District Officer Revenue, Khuzdar for attachment of properties owned by the appellant and its sale by way of auction to satisfy the sentence of fine, however, in case of non-recovery of fine amount in whole, it was directed that the appellant will further suffer six (06) months' SI. The benefit of Section 382-B, Cr.P.C. has also been extended to the appellant.
2. Facts of the case are that on 16th July, 2008 the complainant Haji Muhammad Gul Shahwani, Regional Manager, Utility Stores Corporation Khuzdar, lodged F.I.R. No, 100/2008 at Police Station City Khuzdar under Section 409, P.P.C., stating therein that the appellant Abdul Hameed was posted as Incharge, Utility Store at Bus Adda Khuzdar from 10th July, 2007 to 26th May, 2008, the audit of Utility Store was got conducted through Allah-ud-Din Accounts Assistant, wherein it was revealed that Abdul Hameed has embezzled government money Rs, 200,090/- and the store is closed from the said date. The charge of store is also with appellant Abdul Hameed, who has refused to relinquish the charge of store. It has also come into the notice of the complainant that after audit, appellant Abdul Hameed has also embezzled some more utility items.
3. After usual inquiry, the investigation was entrusted to PW-6 S.I, Tahir Hussain, who during investigation visited the store, took into possession all the relevant record; recorded the statements of witnesses under Section 161, Cr.P.C. PW-7 Manzoor Ahmed, S.I., is the Second 1.0., who prepared memos. and on completion of investigation submitted the challan in the Trial Court.
4. At the trial, the prosecution produced seven witnesses. The appellant has also recorded his statement on oath under Section 340(2), Cr.P.C. and produced Asadullah as DW-1 in his defence.
On conclusion of trial, the learned Trial Court pronounced the impugned judgment dated 19th August, 2009, by means of which the appellant was convicted and sentenced as mentioned hereinabove. Whereafter, instant appeal has been filed.
5. The learned counsel for the appellant contended that the impugned judgment suffers from misreading, non-reading and mis-appreciation of evidence; that the learned Trial Court while deciding the case mainly relied upon the documents from Ex.P/1-A-6 to Ex.P/1-A-37 and Ex.P/1-A- 76, which was produced by PW-1 Muhammad Gul Shahwani to the contrary appellant produced audit sheets as Ex.D/A to Ex.D/86, which was duly signed by the PW-1 on 26th May, 2008; that the PW-2 in his statement admitted and identified his signature over the same; that the prosecution has levelled baseless allegation against the appellant; that the version of the prosecution and the appellant was not taken in juxtaposition, which caused serious prejudice to the appellant; that the version of the appellant was also not discussed by the learned Trial Court in its judgment; that the prosecution case is full of doubt, but the benefits whereof were not extended in favour of the appellant. He further contended that the impugned judgment also suffers from material illegalities and irregularities which is not sustainable and liable to be set aside.
6. Conversely, the learned Assistant Attorney General, strongly opposed the arguments so advanced by the learned counsel for the appellant and contended that the prosecution has proved its case through confidence inspiring evidence; that being lncharge of the Utility Store Bus Adda Khuzdar. The appellant embezzled a huge amount from the Utility Store; that the case of prosecution was proved through documentary evidence of audit report and inventory list of goods prepared by the responsible officers of the utility stores; that the appellant has failed to establish any for his false implication in prosecution case; that the learned Trial Court after proper appreciation of evidence had righty convicted the appellant for commission of offence.
7. Heard the learned counsel for the parties and perused the record minutely with their valuable assistance. This is the case of prosecution that the appellant was remained posted as Incharge of Utility Store Bus Adda Khuzdar from 10th July, 2007 to 26th May, 2008, the audit of the utility store was carried out, wherein it was found that the appellant being Incharge misappropriated utility store items worth of Rs, 200,090/- and thereafter remained fugitive to handover the charge of the utility store ultimately on the direction of the Regional Manager, the locks of utility store were broken in presence of witnesses, wherein further shortage of items worth of Rs, 71832/- were found missing.
8. To substantiate its case the prosecution produced as many as six witnesses. PW-1 Haji Muhammad Gui Shahwani is the complainant of the case, who reiterated the contents of the Murasila Ex.P/1-A-2 and further stated that by his order audit of the store was conducted by Allahuddin, Audit Officer, wherein found shortage of items of worth of Rs, 200,090/- and thereafter the notice was issued to the appellant to hand over the charge, but despite service of notices, the appellant was remained fugitive, ultimately on 16th July, 2008, he in presence of other persons and DSP investigation broken the locks of utility store and on checking further found missing of items worth of Rs, 71,832/- and in this respect he sent murasila Ex.P/1-A-3 to SHO Khuzdar for lodging F.I.R.
PW-2,Allah-ud-Din, Accounts Assistant, Utility Store Corporation, Khuzdar stated that on 26th May, 2008 by the orders of Regional Manager, USC, Khuzdar he conducted audit of the Utility Store Bus Adda Khuzdar, where the accused/appellant was Incharge of the store and during the audit he found shortage of items worth Rs, 200,090/- and prepared inventory control lager/reconcile Statement Ex.P/1- A-76 and Ex.P/1-A-77, he also identified his signature and signatures of Regional Manager and Accounts Officer on the aforesaid documents.
PW-3,Abdul Hakeem, UDC Utility Stores Corporation, Khuzdar states that on 16th July, 2008 Regional Manager handed over the documents Ex.P/3-A-1 to Ex.P/3-A-13 to Tahir. Hussain and same were taken into possession.
PW-4 Munir Ahmed Incharge warehouse Utility Stores Corporation Khuzdar stated on 16th July, 2008 between 9/10 a.m he alongwith DSP, SHO, Regional Manager and others reached at new Bus Adda Utility Store Khuzdar, where they broken the locks of store and after counting prepared stock return memo. Ex.P/3-A-3 to Ex.P/3-A-9.
PW-5 Muhammad Alam stated that on 16th July, 2008, he alongwith DSP, SHO and others present during the course of broken of locks of utility store, the Manager found shortage of items worth Rs, 71,832/-.
PW-6 SI Tahir Hussain and PW-7, SI Manzoor Hussain conducted investigation and deposed the steps taken by them. Now adverting to the main allegation of prosecution witnesses produced against the appellant for responsibility of shortage of utility store items worth of Rs, 200,090/- and Rs, 71,832/-. The PW-1 complainant Haji Muhammad Gul Shahwani, Regional Manager while reiterating the contents of F.I.R. in its cross-examination stated that:--- {{URDU TEXT}} The PW-1 also issued the notices of embezzlement to the appellant Ex.P/1-A-4 on 2nd June, 2008, wherein directed the appellant to hand over the charge of store. It is worth to mention here that simple allegations of embezzlement of Rs, 200,090/- were mentioned in the notice without any supporting documents was annexed with the said notice to ascertain the details of missing items.
9. The main witnesses in the instant case is PW-2 Allahuddin, Audit Officer, who conducted the audit of the Utility Store and estimated the shortage of stores worth Rs, 200,090/-. He deposed that on 26th May, 2008, he carried out audit of the utility store Bus Ada Khuzdar where the appellant Abdul Hameed was Incharge and he found shortage of items worth of Rs, 200,090/- and he prepared the inventory control ledger and reconcile statement Ex.P/A-A-76 and Ex.P/A-77 and he identified his own signature and the signature of Gul Muhammad Shahwani, Regional Manager and Accounts Officer Ashraf Ali and he further stated that after that audit the appellant remained absent and notices were issued to him for handing over the charge of the store, but no reply received from him, ultimately on 16th July, 2008 the locks of store were broken and found further shortage of items of Rs, 71,832/- during the course of cross-examination he admitted that:-- {{URDU TEXT}}
10. The prosecution case merely relied upon the statements of above two witnesses being the concerned officers of Utility Store Corporations and the rest of witnesses are formal. Even otherwise, as alleged that on 6th July, 2008 the locks of store were broken in presence of witnesses and the inventory of shortage was carried out, but it is worth to mention here that neither any broken locks were taken into possession nor any inventory sheet was prepared to contain details of missing items and the signatures of the witnesses allegedly present at the time of inspection/checking of the store. Now adverting to the evidence of defence the appellant denied the allegation of prosecution during the course of charge as well as in his statement recorded under Section 342, Cr.P.0 and in support of his version he also recorded his own statement, wherein categorically denied the charge rather alleged that the Audit Officer demanded Rs, 50000/- as commission, but on refusal, he was falsely implicated him in the instant case, however, in support of his version relied upon audit sheet and ICL stock register produced and marked on record, which shows that he received store from warehouse Khuzdar worth Rs, 323386/- within three months and after sale he deposited Rs, 623385/- in the Bank and on 26th August, 2008 stock worth of Rs, 700251/- was available in the store, which is transpired from ICL balance. He also produced DW-1 Asadullah in his defence he supported his version with regard to demand of commission of Rs, 50000/-by Audit Officer Allahuddin.
11. Be that as it may, if both the evidence of the parties be taken in juxtaposition the version of prosecution seems to be doubtful. The initial burden lies upon the prosecution to prove its case beyond any shadow of doubt, but bare perusal of admissions of PWs in cross-examination creates serious doubts in the statements of prosecution witnesses. For the reasons that on continuous conducts of audits mostly after each three months the stock position of balance sheet was admittedly found correct and subsequently during the period 17th March, 2008 to 26th May, 2008 the stock position as per the admission of the PW-1 and PW-2 was tallied with debit and credit side of balance sheet, which also on calculation become tally with the stock position as per admission of PWs-1 and 2 that was Rs, 1323636/- during the course of 17th March, 2008 to 26th May, 2008 the amount admittedly deposited in the bank was Rs, 623385/- while ICL balance on 26th May, 2008 was admittedly Rs, 70025/- meaning thereby the balance tallied with the debit and credit side of balance sheet as equal to the stock position was available at the time of earlier audit, prima facie prosecution has failed to establish the shortage of position of stock in view of the balance sheet.
12. For the forgoing reasons, the prosecution has failed to establish any criminal liability against the appellant and also failed to prove the charge against the appellant beyond any shadow of doubt and the learned Trial Court failed to properly appreciate the evidence brought on record by the parties to its true perspective, as such, the impugned judgment passed by the learned Trial Court is perverse, ridiculous and suffers from misreading and non-reading of evidence being not sustainable.
13. Accordingly the appeal is accepted and the impugned judgment dated 19th August, 2009 passed by the learned Special Judge Anti-Corruption, Quetta is hereby set aside and the appellant is acquitted of the charge, is on bail his bond stands discharged.