1. ' Appellant above-named, being aggrieved by judgment, dated 19th March, 1979 of the learned Special Judge (Central), Karachi, in Case No, 106/78, by which appellant was convicted under section 409, P. P. C. And section 5 (2) of Act H of 1947 and sentence to suffer R. I. For six months and to pay fine of Rs, 2,000 or in default to suffer further R. I. For one year, has preferred the above appeal, on the following facts and grounds :- ' According to prosecution, in November and December, 1974, both the appellant as well as co- accused were posted in Motor Transport (M. T.) Workshop of Pakistan International Airlines Corporation (P. I. A. C.), Karachi. Co-accused Bashir was Job Card Clerk, while appellant Akmal Ahmed was Incharge, Tyre Section. Both the appellant as well as co-accused were alleged to have committed criminal breach of trust in respect of four tyres received from Store Supervisor Muhammad Ahmed of M. T. Section. Tyre No, LH-11504 was obtained for Vehicle No, KAU-9848 on 22nd January, 1974 by appellant Akmal Ahmed, through Tyreman Abdul Haq who was given such Store Demand Note and old tyre by appellant Akmal Ahmed and who signed the ledger of tyres in token of having received said tyre, which be handed over to Akmal, after embossing vehicle number on the tyre. Tyre No, LH-12658 was obtained for Vehicle No, K A X-7304 on 25th January, 1974 by appellant Akmal Ahmed, who brought such Store Demand Note to the store and no signed relevant entry of tyre ledger in token of having received said tyre. Tyre Nos. LH-1856 and LH-12675 were obtained on 9th December, 1974 for Vehicle No, KAX-9548 by appellant Akmal Ahmed on the basis of Store Demand Note signed by him. In token of having received said tyres, appellant Akmal signed the relevant entry of the tyre ledger. Appellant Akmal Ahmed handed over charge as Incharge Tyre Section to P. W. Ashiq Husain Tyreman, but while giving to him charge of tyre section, he did not give him above-mentioned four tyres, which he had obtained from the store of M. T.
2. Section. These tyres were not put in the vehicles, for which the same were obtained, as alleged. It was on 12th December, 1974, that P. W. Abdul Hussain Daudnota, Motor Transport Officer, P.
1. A. Came to know that two new tyres were obtained from store for a vehicle, which was lying in the workshop without engine. On calling the reclrd, P. W. Daudpota came to know, that two new tyres were obtained by appellant Akmal, but the same were not fitted in any vehicle of P. I. A. He reported the matter to the General Manager, M. T. P. W. Daudpota started search for appellant Akmal, who was not found either in M. T. Workshop or at his residence. The General Manager called for P. W. Mir Ahmad, Duty Supervisor, P. I. A. And P. W., Safdar Ali Security Supervisor, P. I. A. At his residence on 15th December, 1974 Mir Ahmed and Safdar were told, that appellant Akmal Ahmed had taken away tyres of P. I. A. And he was about to sell the same. They were asked to search for the missing tyres and they were to be shown the tyres by P. W. Qamar driver. Security Supervisors Mir Ahmed and Safdar Ali followed in a taxi, the P. J. A. Van being driven by Qamar and went to Lasbela Round About where P. I. A. Van and the taxi P. I. A. Van was stopped 100 yards away from the taxi, Qamar left the van and it was thereafter driven by appellant Akmal, who had come there. After dropping Qamar at Lasbela House crossing appellant Akmal Ahmad drove P. I. A. Van to his house in Firdous Colony, Golimar, where the P. I. A. Van was being chased by said security men. Akmal stopped the van near his house and brought from his house the two tyres, which he kept in the van and then drove the van to Lasbela bridge, where driver Qamar was waiting for him. The two security men following Akmal in a taxi over took the P. I. A. Van and stopped the taxi in front of the van to stop Akmal from driving away the van. The two security men got down from taxi and told Akmal that the two tyres lying in the van were stolen property and that he should accompany them to police station. Thereafter appellant Akmal was taken with the two tyres to Police Station, Golimar, where the S. I. P. Recorded complaint of Mir Ahmed Shah, Security Man. S. I. Seized the 2 tyres, one of which was bearing vehicle No, 7304. Thereafter the secured tyres, appellant Akmal and the P. I. A. Security men were sent by Golimar P. S. To Airport Police Station for want of jurisdiction.
3. ' Complaint of Mr. Ahmed Shah recorded by S. I. P. Khuda Bux of Golimar P. S. Was incorporated in F.
4. I. R. Book of Airport P. S. Which took up the investigation.. The case was investigated by A. S. I. Azhar Ali of Airport P. S. Who arrested appellant Akmal Ahmad. He came to know during the investigation that appellant Akmal was employee of P. I. A. And the case was to be investigated by F. I. A. Then the investigation was transferred to F. I. A.
5. ' S. I. P. Iltiza Husain of F. I. A. Took up the investigation after reregistering the case. He secured certain record and moved for sanction. During investigation, it was found that appellant Bashir Ahmad had abetted commission of the offence of criminal breach of trust of said four tyres by appellant Akmal. It was found that appellant Bashir, as Job Card Clerk was supposed to make entries in the log books of the P. I. A. Vehicles, if any tyre was obtained from the store, for that vehicle. It was alleged that appellant Bashir knew, that one tyre for KAU-9848 was issued on 22nd January, 1974 and one tyre was issued for KAX-7304 for KAX-9548, but he did not make entries in the log books of said vehicles. In the log book of KAU-9848, appellant Bashir made entry about issue of tyre on 17th December, 1974 although the tyre for said vehicle was issued on 22nd January, 1974. In the log book of KAX-9548, appellant Bashir made an entry purporting to have been made on 9th December, 1974, although it was made much later than such date. Under the entry purporting to have been made on 9th December, 1974 in log book of KAX-9548, appellant Bashir Ahmad mentioned about issue of those two tyres for said vehicle, which were missing and missing of which was reported by P. W. Daudpota. In view of this, appellant Bashir Ahmad was arrested on 21st March, 1978 by F. I. A. And ultimately both the appellant as well as co-accused were challaned.
6. ' Under the sanction Orders Exhs. 51 and 50, Government of Pakistan accorded sanction for prosecution of both the appellant as-well as co-accused. In these orders of sanction, section 408 of P. P. C. Appears to have been mentioned erroneously instead of section 409, P. P. C. This appcars to be a typing mistake and in trial Court view, it would not effect the case on merits. It was argued by learned counsels for the appellant, that the trial was under section 409 of P. P. C. And that there was no sanction for said section. Sanction under subsections (5) of section 6 of the Pakistan Criminal Law Amendment Act is required for prosecution of a public servant for an offence under said act. Offence under section 108 of P. P. C. Is also a scheduled offence as per said Act. Therefore, but trial Court did not agree with the learned counsels, that there is material defects in the orders of sanction Exhs. 51 and 50.
7. ' Charge Exh. 3 containing prosecution allegations was read over and explained to the appellant, who pleaded not guilty.
8. ' Prosecution examined complainant Mr. Ahmad Shah Exh. 4 and P. Ws. Muhammad Ahmad Exh. 8, Ashiq Hussain Exh. 15, Azhar All Khan Exh. 16, Qamar Ahmad Exh. 20, Shamim Ahmed Exh. 21, Abdul Haq Exh. 22, Abdul Hussain Exh. 23, Abdul Ghaffar Exh. 28, Noor Zaman Exh. 29, Safdar Ali Exh. 31, Abid Hussain Exh. 32, Ahmed Husain Exh. 35, Zangir Khan Exh. 36, Muhammad Yamin Exh. 37, Iftikhar Ahmed Exh. 39, Manzoor Alam Exh. 40, Hail Abdul Latif Exh. 42, Makeen Ahmed Exh. 43 and Iltija Husain Exh. 46 prosecution was closed under statement Exh.
9. 52.
10. ' In his statement Exh. 54, appellant Akmal Ahmed admitted, that he was tyre repairer in M. T.
11. Workshop of P. I. A. And was a public servant but he denied that he was Incharge of Tyre Section. He denied all the allegations made against him and disowned the two tyres produced in Court. He explained that the witnesses were threatened and coerced by F. I. A. To depose against him.
12. ' In his statement Exh. 53, co-accused Bashir Ahmed admitted, that he was Job Card Clerk in M. T.
13. Workshop of P. I. A. In November, and December, 1974 and was as such a public servant. He admitted that he was supposed to make entries in the log books of P.
1. A. Vehicles. He admitted that he did not make entries in the concerned log books about the issue of four tyres in question, because duplicate copies of Store Demand did not come to him. He denied being author of entry copy Exh. 24 in the log book of KAU-9848. He admitted, that in the log book of KAX-7304 no entry was made after 12th November, 1974 till it was checked on 16th December, 1974 by P. W.Daudpota, who made note, copy Exh.
25. Co-accused Bashir denied having made entry, copy, Exh. 27 in log book of K AK 9548. He admitted, that in the log book of KAX-9548, there was no entry if two tyres for said vehicle were issued from the store on 7th December, 1974. Co-accused Bashir added that he was innocent and that he was victimized and that the witnesses were threatened by F. I. A. To depose against him.
14. ' None of the accused entered in the witness-box. Co-accused Bashir Ahmed did not lead any evidence in defence. Appellant Akmal examined D. Ws. Badar Din Exh. 55 and Riaz Hussain Exh. 56 and closed his side under statement Exh.
15. 57.
16. ' The learned trial Court taking into consideration the evidence adduced before it, while acquitting co-accused Bashir Ahmed, convicted the appellant above-named as hereinbefore mentioned and consequently appellant has filed the above appeal, on the grounds mentioned in memo. Of appeal.
17. ' The learned Advocate for the appellant in support of the above appeal submitted as under :-
(a) Recovery of tyres from appellant not at all proved beyond reasonable doubt, on account of material contradictions in the statements of P. W. 1 and P. W.
18. 5.
(b) Even place of alleged recovery of tyres not established beyond reasonable doubt and numbers on tyres do not tally with numbers given in mashirnama Exh.
19. 5.
(c) That there are two F. I. Rs, of the case in question and as such no reliance can be placed on either of them.
(d) That alleged recovery ought to have been discarded by learned trial Court, as police did not choose independent mashirs for alleged recovery in complete violence of the provisions of section 103, Cr. P. C.
(e) Appellant was not public servant at the time of alleged commissions of offence and as such learned trial Court had no jurisdiction to try the appellant.
20. ' The learned counsel in view of his above submissions, while relying on cases reported in 1982 P Cr.
21. L J 961, submitted that prosecution had failed to establish its case beyond reasonable doubt, even against this appellant.
22. ' The learned Additional Advocate-General appearing for the State at the outset submitted, that he was not supporting the impugned judgment, as case against the appellant has not been proved beyond reasonable doubt, as recoveries have been disbelieved by the learned trial Court and appellant was charged for 4 tyres whereas mashirnama shows recovery of only 2 tyres.
23. ' I have carefully considered the above submissions made by the learned Advocates before me and have gone through the Record and Proceedings of the learned trial Court as well as impugned judgment.
24. ' I have carefully gone through the statement of prosecution witnesses, the mashirnama of recovery as well as statements of the defence witnesses. I find material contradictions in the statement of P. Ws. 1, 5, 8 and 11 in respect of alleged actual seizure of the tyres in question and the manner in which the appellant was first apprehended. According to prosecution witness No, 1 Ahmed Shah, that after apprehending the appellant with two tyres appellant was taken to Golimar Police Station, where the appellant was produced alongwith two tyres, in question, which was then seized by the police. According to Exh. 5, memo. Of seizure of the tyres and arrest of the accused, 5.4. Golimar Police Station, while on patrol duty suspected the appellant, while he was taking away two tyres and stopped him and questioned him regarding proof of the ownership and since the appellant was not in position to establish his ownership, he suspected both the tyres to be stolen and consequently took the said tyres in his possession under section 560, Cr. P. C., in the presence of P. Ws. Mit Ahmed Shah and Safdar Ali. Even the identity of the said tyres as given in mashirnama Exh. 5 does not tally with actual tyres alleged to have been seized which is clear from the statement of P. W. 8 Abdul Hussain Daudpota. In addition to this statement of P. W. 8 Abdul Hussain Daudpota, P. W. 1 Ahmed Shah, P. W. 5 Qamar Ahmed and P. W. 4 Azhar Ali Khan do not inspire confidence on account of various contradictions in their statements inter se, about the manner in which appellant was being followed. The possibility that the 2 tyres recovered from the P. I. A. Van, alleged to have been driven by the appellant, having been planted in the said van cannot be ruled out, in view the statement of P. W. 5 Qamar Ahmed. It may be noted that P. W. 16 Iftikhar Ahmed the General Manager Transport P. I. A. C., in his statement before the learned trial Court stated, the appellant was brought before him by P. I. A. Security Staff on 15th April, 1974, after recovery of 2 tyres and thereafter he directed his people to go and lodge the report, which fact is in complete contradiction of the statement of P. Ws. 1 and 5. With such state of prosecution evidence on record, in my opinion prosecution has failed to establish its case beyond reasonable doubt, against the appellant.
25. ' Therefore, I allow the above appeal and set aside conviction of the appellant and sentences awaided to him by impugned judgment and acquit B him by giving him benefit of doubt, discharge the bail bonds exerted by the appellant in above appeal.