' Through this appeal, the appellant assails the judgment, dated 4th October, 1973 delivered by Special Judge Anti-Corruption, Lahore, whereby the appellant was found guilty on charges under section 409, P. P. C. And under section 5(2) of the Prevention of Corruption Act, 1947. Vide the said judgment the appellant was sentenced to undergo R. I. For a term of three months and a fine of Rs, 4,000 was also imposed. It was further ordered that in default of the payment of fine the appellant shall have to undergo R. I. For another term of six months. It was also ordered that out of the fine if realized Rs, 3,449.18 shall be paid to P. W. R. .
2. The prosecution story in brief is, that the appellant while posted as Store Issuer in the Singal Shop of P. W. R. In Store No, 4 of the Machine Shop had misappropriated articles from the said store worth Rs, 3,449.18 and thus committed an offence within the meaning under section 409, P. P. C.
3. The misappropriation allegedly came to light when on 25th March, 1969 the appellant apprehended theft in the store, after having noticed a hole in the roof through planks. The appellant vide application in writing (Exh. P. K.) apprised the authorities about possibility of theft. On the basis of said application a probe was conducted, and P. W. 3 Amir Ali Turner in the Single Shop was deputed by P. W. 4 Hafiz Muhammad Akbar Assistant Works Manager of the said shop, to note missing articles, if any, from the store. P. W. 3 Amir Ali in presence of the appellant checked the entire store, he prepared three lists of the missing articles from the store.
4. P. W.
4. Hafiz Muhammad Akbar thereupon lodged a report of theft with the Police Station Misri Shah, Lahore. In pursuance of which the investigation was conducted and the appellant was challaned and made to face his trial referred to above.
5. At the trial, in defence the appellant pleaded not guilty, and produced three witnesses in his defence including his Chargeman. The defence witnesses deposed that it was a case of theft. The learned trial Judge ruled out the possibility of theft, because, in view of the width of the hole in the roof, it was not possible for a human being to pass through. On the contrary the defence witnesses asserted that from the aforesaid hole a person could pass through for the commission of theft. The learned trial Judge further observed that the articles must have been stolen or misappropriated by the appellant in collusion with the Chargeman, and therefore, the appellant was guilty of the charges.
6. I cannot help, but to observe that the treatment meted out to this case by the learned trial Judge was most perfunctory, inasmuch as, the learned trial Judge based his conclusion on mere suspicion, conjectures and surmises. The learned trial Judge proceeded to convict the appellant on account of fact that it was a case of theft, because, through the hole in the roof it was not possible for a human being to pass through. Such basis was fallacious, because, the learned trial Judge was not trying a theft case. The trial Judge ought to have noticed the proof of entrustment within the meaning of section 403, P. P. C. The learned trial Judge has totally disregarded the conduct of the appellant while reporting the matter to his .Superiors with regard to possibility of theft, furthermore the learned trial Judge relied upon, cumbersome procedure of the closing of shop after office hours, for coming to the. Conclusion that it was not a case of theft. If it were so, then surprisingly the learned trial Judge failed to observe that it was equally impossible for the appellant to commit theft. In such case where two probable views can be raised one in favour of the accused should be adopted, suspicion howsoever strong it may be, cannot be come substitute of the proof.
7. I am convinced that the missing articles were infect done away with by someone in the shop. The appellant could not have broken the planks in the roof to make a hole therein to cover his misdeed.
The evidence on the record negatives the possibilities of the adoption of such course.
8. Since there is no proof with regard to the misappropriation, therefore, I have no other course to follow but to accept this appeal Accordingly this appeal is allowed and the conviction and the sentence of the appellant is set aside, and he is hereby acquitted of the aforesaid charges. Amount of fine if, paid shall be refunded to the appellant.