Aalia Neelum, J. The appellant-Nazir Ahmad Afzal son of Roray Khan, Caste Rajpoot, resident of Baba Farid Park, Arif Road, Sahiwal along with his co-accused persons namely Arif Ali Shah (since acquitted), Muhammad Amin (since acquitted), Abdul Aziz (since acquitted), Naseeruddin (since acquitted), Abid Qamar (since acquitted), Junaid Ahmad (since acquitted), Muhammad Riaz (since acquitted) and Mian Anwar Ahmad (since acquitted) was involved in case F.I.R. No.16 of 1998, dated 16.02.1998, offence under Sections 409, 468, 471, 420, 109 PPC read with Section 5(2)47 of PCA, registered at Police Station, DACE, Lahore and was tried by the learned Senior Special Judge, Anti- Corruption, Punjab, Lahore. The learned trial court seized with the matter in terms of judgment dated 08.01.2014, convicted the appellant-Nazir Ahmad Afzal under Section 409 PPC and sentenced him to undergo imprisonment for 05-years, with the direction to pay Rs.1,00,000/- as fine and in case of default in payment thereof, the appellant would further undergo imprisonment for two years. The benefit of section 382-B Cr.P.C was also extended in favour of the appellant.
2. Feeling aggrieved by the judgment of the learned trial court, Nazir Ahmad Afzal-the appellant has assailed his conviction through filing instant criminal appeal i.e. Crl. Appeal No.132 of 2014.
3. The prosecution story as alleged in the F.I.R (Ex.PW7/2) lodged on the complaint (Ex.PW7/1) of Aitzaz Rasheed (PW-8)-the complainant is that It is the case of the prosecution that Aitzaz-ur- Rasheed (PW-8), the then Director, reported the misappropriation of 16,451 filled bags of imported wheat by the contractor i.e. Nazir Ahmad Afzal and Kausar Abbas Zaidi in connivance with the food staff posted at Gulberg Centre and caused a loss of Rs.1,41,47,860/- to the Government. Apart from above, the staff i.e. office Superintendent and Accountant of District Food posted at the Gulberg Centre of the District Food Controller-I Lahore, managed drawl of payment of transportation charges from Government treasury and its payment to the contractor i.e. Nazir Ahmad Afzal and Kausar Abbas Zaidi without confirmation whether the stocks actually dispatched from Port Qasim had arrived at the centre facilitating mis-appropriation of 16,451 bags filled with of imported wheat.
The dispatch report in Form GP-6, wherein, complete details of daily dispatches from Port Qasim was given, was not checked with the stocks received at the destinations. If any one of the aforesaid officer/officials had checked this aspect, mis-appropriation could be detected at an early stage.
The District Food Controller being the Supervisory Officer of the district is bound to inspect each and every centre of the district in detail, but District Food Controller-I, Lahore, did not examine the record maintained at Gulberg centre from Sept: 97 to date. District Food Controller-I, Lahore was informed by the Directorate letter dated 06.01.98 through Deputy Director Food, Lahore, about the irregularities being committed by the staff posted at Gulberg Centre but he did not take any measures to remove the irregularities at the centre. Similarly, if the Accountant/Supdtt: had checked the transportation bills with GP-6, the bills of the contractor could not have been passed.
The representative of Punjab Food Department at Karachi vide letter No.22/97 dated 30.10.97, requested the District Food Controller that GP-7 of Gulberg centre was not being received at Port Qasim and therefore, he must check GP-6 with GP-7 of the centre to avoid any discrepancy/mishap, but the District Food Controller did not carry out necessary reconciliation. The record of Gulberg Centre was checked by the following officials of the Enforcement team on being deputed by the Director Food:-
1. Mr. Muhammad Saeed.
2. Mr. Muhammad Aslam.
3. Mr. Aslam Pervaiz.
In order to assess the actual loss, Mr. Muhammad Ahmad, Assistant Director Food of this Directorate examined the record and pointed out the aforementioned discrepancies. Besides Mr. Khalid Naeem, Assistant Controller of Inspection was representative of Punjab Food Department at Karachi and the Head Clerk of District Food Controller-I Lahore had the record relating to posting of the officials at Gulberg Centre and Mr. Irshad Ahmad kept the record of transport contractors.
3. The contractor and Mr. Kausar Abbas Zaidi have been gaining time to make up the Government loss but it is futile waiting for them to reconcile accounts any longer. A case for embezzlement and misappropriation of 16,451 bags of imported wheat may be, therefore, registered against all the culprits and investigated into.
4. After registration of case, the investigation of this case was entrusted to Syed Abdul Samad, Assistant Director Anti-Corruption, Lahore (PW-10) who having found the accused/appellant guilty, prepared report under Section 173, Cr.P.C. and sent the same to the court of competent jurisdiction.
On 16.05.2003, the learned trial court formally charge sheeted the appellant to which he pleaded not guilty and claimed trial. The prosecution in support of its version produced as many as twelve
(12) prosecution witnesses.
5. The learned trial court after recording evidence and evaluating the evidence available on record in the light of the arguments advanced from both sides, found the prosecution version proved beyond any shadow of reasonable doubt, which resulted into conviction of the appellant in the afore stated terms.
6. I have heard the arguments advanced by the learned counsel for the appellant as well as learned Deputy Prosecutor General and have minutely perused the record available on the file.
7. The appellant along with eight co-accused persons namely Arif Ali Shah, Muhammad Amin, Abdul Aziz, Naseeruddin, Abid Qamar, Junaid Ahmad, Muhammad Riaz and Mian Anwar Ahmad were charged for criminal breach of trust by the government employee. Criminal breach of trust is defined in u/s 405 PPC to convict any person u/s 405 PPC r/w 409 PPC it has to be established that:-
1. accused persons was government employee
2. secondly, he was entrusted some kind of property in his capacity as a government employee
3. thirdly, he dishonestly misappropriated this property to his own use.
8. In the present case, prosecution has alleged in written application for registration of case (Ex.PW-7/1) that the appellant Nazir Ahmad Afzal is a registered contractor of the Punjab Food Department. He was awarded the contracts of transportation of imported wheat from Port Qasim to Gulberg Center for the contracts period from August 1997 to 30.11.1997 and from 01.12.1997 to 15.04.1998. After execution of the contract with the Punjab Food Department, Nazir Ahmad Afzal engaged one Mr. Kausar Abbas Zaidi (since dead) for transportation of imported wheat from Port Qasim to Gulberg Centre. The office of Nazir Ahmad Afzal contractor was opened at the residence of Mr. Kausar Abbas Zaidi (since dead) which is given here under:- Nazir Ahmad Afzal, 945-Z, Lahore Defence Cooperative Housing Society, Lahore.
Mr. Kausar Abbas Zaidi (since dead) opened a bank account No.01-0100305-1, at Askari Bank Branch Defence Cooperative Housing Society, Lahore. This account is being operated only by Mr. Kausar Abbas Zaidi (since dead) whereas the account is in the name of contractor i.e. Nazir Ahmad Afzal. The payments on account of transportation charges made by the Food Department to Nazir Ahmad Afzal were deposited by Mr. Kausar Abbas Zaidi (since dead) in the aforementioned account.
9. Muhammad Sharif (retired) (PW-1), the then AdditionalDirector, deposed during examination-in- chief that, "---The wheat was imported and it was to be transported from Port Qasim Karachi to Gulberg Centre Lahore in the year 1997-98 and the contract for the transportation of the wheat was granted to M/S Nazir Ahmad Afzal whose representative/partner was Kausar Abbas Zaidi (since dead)" During cross examination Muhammad Sharif (retired) (PW-1), the then Additional Director, deposed that, "---it is correct that Enforcement Staff on the basis of said complaints checked the Gulberg Centre. The report was regarding late receipt of trucks at the centre. It is incorrect that the report was with regard to unauthorized sale of the imported wheat by the contractor.---It is incorrect to suggest that as per report dated 27.11.1997, it came into my notice that 27 trucks of imported wheat had not arrived at Gulberg Centre Lahore. Volunteered that these trucks arrived late at the said centre--" Dr. Altaf Akbar (PW-3), Deputy Director, deposed during cross-examination that, "---it is correct that GP13 is dispatched with every loaded truck. It is the responsibility of the dispatching and to mention all the details of the wheat dispatched including the progress total in GP13. Separate GP13 is issued for every centre and its sequence is also maintained by the dispatching centre separately. It is correct that the book GP13 consists of 50 pages. Our Directorate receives the information through fax or telephone daily--- Dispatching centre is bound to send GP6 through DAK/TCS to the recipient centre. Similarly, GP7 is also dispatched by the recipient centre to the dispatching centre through DAK/TCS or Fax. It is correct that in case the recipient centre does not dispatch GP7, the dispatching centre is duty bound to stop the dispatch---" Dr. Altaf Akbar (PW-3), Deputy Director, admitted that GP-7 was prepared in accordance with GP-13 and he (PW-3) deposed during cross-examination that, "--- The recipient centre Lahore prepares GP7 in accordance with GP13 dispatched by the dispatching centre---"The defence has brought on the record improvement made by Muhammad Sadiq (Retired) (PW-4),AFC, in his court statement. Muhammad Sadiq (Retired) (PW- 4), AFC, deposed during cross-examination that, "---It is correct that GP5 is not find mentioned in my police statement. I also did not tell in my statement that some contractors exert pressure because of their influence in high places and get the bill prepared before the receipt of GP6---"
Muhammad Sadiq (Retired) (PW-4), AFC, also deposed during cross-examination that, "---it is correct that Port Qasim Centre Karachi invariable send the detail of the wheat dispatched by it and sent the copies of GP13 and GP5 to Food Directorate of Lahore. It is correct that PR Centre under the rules send daily report of the wheat received to DFC who sent to the Monitoring Cell-- -" Aitzaz-ur-Rasheed (PW-8) the then Director, admitted during cross-examination that, "---The co-accused made paym ents to the accused/Nazir Ahmad Afzal in violation of the prescribed form GP6 and GP7 and the Transportation/Handling Policy. Accused No.1 to 8 mentioned in the charge endorsed the claim of the transportation charges of Nazir Ahmad Afzal/accused No.9 without comparing the prescribed forms GP6 and GP7, which caused the misappropriation of 16451 bags of imported wheat of the approximate value of Rs.16,000,000/---In my supplementary statement dated 6-3-98/mark A, I also mentioned about the dirty game being played by the staff of the Directorate of Food Department and they are not accused in this case.
In the supplementary statement/mark A, I gave the number of missing trucks of wheat against whom the paym ent was made by the DFC on the recommendation of accused No.l to 8---Had the accused No.1 to 8 been vigilant in the matter, the loss could not have been caused to the Government of the Punjab----" Whereas, Aslam Pervaiz (Retired)(PW-9), AFC, deposed during examination-in-chief that, "---The responsibility is on Accountant, Superintendent and DFC for the paym ent of transportation and carriage charges. The bill is submitted by the contractor to the Centre Incharge. Then an IC bill is prepared on GP11. A certificate is incorporated on the bill wherein it is recorded that comparison with GP6 and GP7 has been made--" Aitzaz-ur-Rasheed (PW-8), the then Director, admitted during examination-in-chief that, "---A contract was awarded to Nazir Ahmad Afzal/accused for transportation of imported wheat from Port Qasim, Karachi to PR Centre, Gulberg, Lahore, for the period starting from August, 1997 to 30.11.1997. The said accused engaged a private person, namely Kausar Abbas Zaidi, after the award of the contract.
The said Kausar Abbas Zaidi opened his account in Askari Bank, Lahore. The transportation charges which were paid to Nazir Ahmad Afzal/accused used to be deposited in the aforementioned account of Kausar Abbas Zaidi---" He (PW-8) deposed during cross- examination that, "---it is incorrect that the firm which got the contract for transportation of wheat from Karachi to Lahore opened a joint account in the name of Kausar Abbas Zaidi alone.
Volunteered, the said firm opened a joint account in the name of Nazir Ahmad Afzal and Kausar Abbas. However, Kausar Abbas Zaidi was alone authorized to withdraw the amount. ---It is correct that the office of the firm of Nazir Ahmad was functioning in the house of Kausar Abbas Zaidi---Volunteered, the contract was awarded to the firm known as Nazir Ahmad Afzal. It is correct that prior to the registration of the instant case, Kausar Abbas Zaidi appeared on the scene and had been attending my office in the company of Nazir Ahmad Afzal/accused with the offer of fulfilling the loss caused to the Government---" From the prosecution evidence it is established that the contract was issued to the appellant from August, 1997 to 30-11-1997, but Kausar Abbas Zaidi alone was authorized to withdraw the amount from the bank. During investigation Syed Abdul Samad, Assistant Director (PW-10)- investigating officer deposed during cross-examination that, " "
Admittedly, the appellant was a dummy person. Form GRs13 (Ex.P14) contains signatures of Kausar Abbas Zaidi. The fare of missing trucks carrying the wheat from port Qasim was not paid to the appellant. Besides, Aslam Pervaiz (PW-9) deposed during cross-examination that, "Today, I have seen the record from where it transpired that wheat was being transported from Karachi to Gulberg Centre by way of NLC---" Although in term of clause of the agreement (Ex.P11/1-40) the appellant appointed Kausar Abbas Zaidi through letter (Ex.P-13/1-13). But fact remained Farukh Hussain Bajwa (DW-1), Manager Askari Bank, produced certified copies of account of M/S Nazir Ahmad Afzal. From account opening form (Ex.DW1/4) it reveals that account was opened on 15-10- 1997 with the title " M/S Nazir Ahmad Afzal Proprietor " operated by Kausar Abbas Zaidi. The account was fully operated by Kausar Abbas Zaidi and thereafter when Kausar Abbas Zaidi was arrested his wife namely Bailquees Zaidi moved application for permission to sign cheque for withdrawal of Rs.5,00,000/- from the said account to the District Magistrate, Lahore on 04-11-1998 and permission was granted (Ex.D1/4). From which it reveals that Kausar Abbas Zaidi (since dead) used the name of the appellant for getting the contract. Even Aitzaz Rasheed (Director) (PW-8) deposed during cross-examination that, "---It came to my knowledge that the wheat was recovered subsequently from the Flour Mills situated at Sahiwal, Okara and Lahore---" The 4014 bags of stolen wheat was recovered from the Baba Farid Flour Mills and same were auctioned on the direction of DCO and the amount of Rs.552515/- in Government exchequer vide challan (Ex.CA). On the other hand Ghulam Sarwar, Superintendent (PW-11) deposed during cross-examination that, "- --No permission had been sought from any Anti Corruption Court before auctioning of flour.
After the auction intimation had been made to the ACE. Volunteers, by presenting the copy of Ex.CA---" The amount of misappropriated wheat was recovered and after auction was already deposited with Government exchequer vide challan (Ex.CA). As far as transportation charges of missing trucks is concerned it is admitted fact that fare of missing trucks was not paid to the appellant.
10. The Prosecution failed to prove case against the co accused of the appellant. Aslam Pervaiz (Retired) AFC (P-9) deposed during examination-in-chief that, "---Muhammad Riaz, AFC, Arif Ali, AFC, Abdul Aziz, AFs, Abid Qamar, F.G.I and Junaid Ahmad FGI were posted at PR Centre Gulberg, Lahore. The embezzlement of the wheat was not committed by the accused present in the Court excluding Nazir Ahmad Afzal accused. All the accused mentioned above have connived by wasy of omission and silence in the embezzlement---" All co-accused-Arif Ali Shah, Muhammad Amin, Abdul Aziz, Naseeruddin, Abid Qamar, Junaid Ahmad, Muhammad Riaz, Mian Anwar Ahmad, Government employees were acquitted from the charge. There is no challenge to the acquittal of co-accused-Arif Ali Shah, Muhammad Amin, Abdul Aziz, Naseeruddin, Abid Qamar, Junaid Ahmad, Muhammad Riaz, Mian Anwar Ahmad.
11. The learned trial court acquitted the appellant and his co-accused for offences under Section 420,468, 471, 109 PPC read with Section 5(2) of The Prevention of Corruption Act, 1947.
12. In the light of these facts and circumstances , I am of the considered opinion that essential ingredient of Section 409 PPC which is defined in section sec. 405 PPC are not established by the prosecution beyond reasonable doubt against the accused. Thus, I am of the considered opinion that all the essential ingredients of Section 409 PPC are not established against the appellant. The prosecution has failed to prove the offence under section 409 PPC against the appellant. Offence under section 409 PPC is not attracted against the appellant as appellant is not government employee. The appellant was a contractor and was not a public servant, due to definition given in Pakistan Penal Code of public servant in Section 21, he does not become public servant under Pakistan Penal Code and so, he cannot be prosecuted for having committed offence under Pakistan Penal Code as a public servant. In view of above, the matter cannot be treated as under Section 409 of the Pakistan Penal Code. Before a conviction under Section 409 Pakistan Penal Code can be recorded, the prosecution must prove two essential facts: (1) the factum of entrustment and, (2) the factum of misappropriation of the entrusted articles. There is no evidence on record that any wheat was taken to the Baba Farid Flour Mills as owners of the said Mill were to have let off by the prosecution, hence there was no question of its misappropriation.
13. Contractors were employed casually by different government departments, as passing necessity. They were not working exclusively for the complainant or for the government departments and they should not be counted as employees of the complainant or for the government departments. It can be said that independent contractors are those who employ labor for and on behalf of themselves. Even learned trial court also concluded that the appellant was on the pay roll of Kausar Abbas Zaidi. I therefore, consider that the contractor could not be termed as employee of the complainant and could not be convicted under Section 409 PPC.
14. The upshot of the above discussion is that the prosecution has badly failed to bring home charge against the appellant beyond any reasonable doubt, therefore, in the interest of safe administration of criminal justice, Criminal Appeal No.132 of 2014 filed by the appellant-Nazir Ahmad Afzal, is accepted in toto. The conviction and sentence awarded by the learned Senior Special Judge, Anti Corruption, Punjab, Lahore vide judgment dated 08.01.2014 is set aside and the appellant, Nazir Ahmad Afzal son of Roray Khan is acquitted of the charge in a case F.I.R. No.16 of 1998, dated 16.02.1998, offence under Sections 409, 468, 471, 420, 109 PPC read with Section 5(2)47 of PCA, registered at Police Station, DACE, Lahore. The appellant-Nazir Ahmad Afzal is on bail. His surety bonds stand discharged.