ABDULLAH BALOCH, J.---This judgment disposes of Criminal Revision Petition No.10 of 2019 filed by the petitioner Muhammad Zeeshan Yousuf son of Muhammad Yousuf, against the Order dated 12th February 2019 passed by learned Additional Sessions Judge-I Quetta ("appellate Court"), whereby the appeal filed by the petitioner was dismissed, maintaining the judgment dated 13th September 2018 passed by learned Judicial Magistrate-XIII Quetta (hereinafter referred as "the trial Court"), whereby the petitioner was convicted under Section 182, P.P.C. and sentenced to suffer R.I. for six months; he was also conv icted under Section 211, P.P.C. and sentenced to suffer R.I. for one year; besides he has also been convicted under Section 409, P.P.C. and sentenced to suffer R.I. for one year with fine of Rs.10,000/- and in default thereof he shall further suffer two months' SI, with the benefit of Section 382-B, Cr .P.C. The appeal filed by the petitioner(sic).
2. Facts of the case are that on 24th August 2017, the complainant Gul Faraz Jadoon, SI, lodged FIR No.131 of 2017 at Police Station Zarghoon Abad Quetta, with the averments that on 5th April 2017 the petitioner (Muhammad Zeeshan) has lodged a report at police station Zarghoon Abad Quetta that he and his wife are constables in police department and presently they are residing in Nawa Killi Quetta and a year before the Kalashnikov bearing No.4604991 was issued to him by the department as he was serving his duties with Hon'ble Justice Kamran Mulakhail. Approximately 40/45 days before he was transferred to MT section, hence he kept his official Kalashnikov in his house. On the fateful day he and his wife both went to their duties and when at about 05.00 p.m. they returned to their home and they observed that the locks of the door were broken, while the official Kalashnikov with two magazines, Rs.80,000/- and jewelries were also missing. Hence, FIR No.40 of 2017 was lodged at the said police station under Sections 380, 454, P.P.C., thus investigation was conducted and the I.O. sent his report that no evidence was found showing that such incident has taken place. Inquiry conducted by DSP Airport, who submitted his report that the accused embezzled the of ficial Kalashnikov and lodged a false FIR of its theft.
3. On completion of investigation; challa n was submitted in the trial Court, which indicated the charge to the petitioner , who denied the same. Henc e, during trial the prosecution produce d five witnesses. On close of prosecution side the petitioner was examined under Section 342, Cr.P.C. He also recorded his statement on oath under Section 340(2), Cr.P.C. and also produced four DWs in his defence. On conclusion of trial and after hearing arguments, the petitioner was convicted and sentenced by the trial Court as mentioned above. The appeal filed by the petitioner was also dismissed. Whereafter , instant petition has been filed.
4. Heard the learned counsel and perused the available record. The perusal of record reveals that it is a case of two versions i.e. first set-up by the petition er and the second by the prosecution. According to the plea taken by the petitioner that he is serving as Constable in Police Department and whilst serving his duties with Hon'ble Mr. Justice Kamran Mulakhail, the department has issued him a Kalashnikov , while 40/45 days earlier he was transferred to MT Section and on the unfortunate day of occurrence when he along with his wife were on their duties being police constables; unknown culprits trespassed their house by breaking the locks of door and have taken away the official Kalashnikov along with magazine, cartridges, jewelries and cash amount and in such behalf he accordingly lodged FIR No.40 of 2017 under Sections 380, 454, P.P.C. at the concerned police station. In support of his contention the petitioner produced four DWs.
5. The contra plea has been taken by the prosecution that after registration of FIR No.40/2017 on the complaint of petitioner , the investigation in the matter was carried out and during investigation no signs of theft have been observed and it appears that the petitioner has embezzled the said official Kalashnikov . In such behalf the prosecution has produced the evidence of five witnesses.
6. I have taken into consideration both the pleas in juxtaposition and observ ed that the plea taken by the prosecution is mainly based upon presumptions and assumptions on the ground that since the transfer of the petitioner had taken much prior from the date of occurrence, but the petitioner has failed to deposit the official Kalashnikov in the department, thus it was presumed by the department that since the petitioner had not deposited the official Kalashnikov in the department, as such, embezzled the same and in order to save his skin, he has lodged a false FIR No.40/2017 in the said police station. It has been obser ved that the entire plea of the prosecution is based upon presumption, thus a presumption can also be drawn on the part of petitioner that might be he was right in his plea and the occurr ence of theft was committed in his house and unknown culprits had taken away the official Kalashnikov . Admittedly , presumptions are being drawn from both the sides and it is unjustified to consider the one that was placed by the prosecution and to ignore the other taken by the petitioner .
7. Likewise, negligence is also being drawn from both the sides i.e. the prosecution and the petitioner . Though, it was the negligence on the part of the petitioner that he had not deposited the Kalashnikov in the department soon after his transfer , but on the other hand it is also the negligence on the part of department that after the transfer of the petitioner , no directions were issued to the petitioner for the deposit of the said official Kalashnikov and without proper handing/taking over of charge, he was relieved from his earlier duties and was assigned a new duty. Since, the petitioner himself has reported to Police Station with regard to missing of official Kalashnikov from his own house, thus he discharged his liability and apparently no mens rea exists on the part of the petitioner to embezzle the same otherwise he could have kept mum for a considerable long period when otherwise the official authorities have not demanded the deposit of same.
8. In my opinion, since the petitioner has been involved in the instant case on the basis of presumptions and assumptions that due to non-deposit of official Kalashnikov within time, he has embezzled the same, but merely on the basis of presumptions it cannot be said that the same was embezzled by the petitioner , until the prosecution through sufficient incriminatory evidence succeeds in substantiating the charge. At the most, it is a case of negligence on the part of petitioner and not a criminal breach of trust or a criminal liability and at the most the petitioner could be penalized through departmental inquiry with the charges of negligence under the applicable service rules, but he cannot be prosecuted solely on the basis of presumptions. The jurisprudential concept of negligence differs in civil and criminal law. For an act amounting to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree, however , the negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
9. The overall reappraisal of evidence would establish that the prosecution has failed to prove the charge of embezzlement against the petitioner . The non-recovery of Kalashnikov from the petitioner during investigation and not producing any single incriminatory evidence against the petitioner by the prosecution has created sufficient doubts in the case of prosecution, but it appears that both the Courts below have failed to extend such benefits of doubts in favour of the prosecution. The concurrent findings of both the Courts below are suffering from illegalities, irregularities based upon wrong presumptions, hence are not sustainable.
For the foregoing reasons, the petition is accepted and the impugned judgment dated 13th September 2018 passed by Judicial Magistrate-XIII Quetta and Order 4th January 2019 passed by Additional Sessions Judge-I Quetta are set-aside, accordingly the petitioner Muhammad Zeeshan is acquitted of the charge. He is on bail; his bail bonds are discharged after lapse of appeal period.