' The appellant has filed this appeal from the judgment of Special Judge, Anti-Corruption, Karachi dated 19th November, 1978 whereby the appellant was convicted of offence under section 409, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947 (hereinafter referred to as the said Act) and sentenced to R.I. For three years and to pay fine of Rs,5,000 or in default of payment of fine to suffer further R.I. For six months. The charge against him was that he, being posted as Ward-keeper of Electric Ward No, II of Stores Depot of Pakistan Railway at Karachi Cantt. Station, was entrusted with 556 ball bearings worth Rs, 35,000, which he, in collusion with absconding accused Nasir Khan Cooly of the same Store Depot, had dishonestly misappropriated and thus caused wrongful loss to the Government.
2. The facts of the case are that in October, 1970 complainant Muhammad Yousuf was working as Depot Storekeeper of Pakistan Railway and was posted at the Depot Store at Karachi Cantt. Railway Station. The appellant and the absconding accused Nasir Khan Cooly were his subordinates as Ward keeper and Cooly respectively in the same Depot. Ghulam Mustafa was also Sub- Storekeeper at the same Store. Before the appellant was posted as Wardkeeper at the said Store, P.W. Ghulam Mustafa was working as such. On his promotion Ghulam Mustafa handed over charge of his section of the Store to the appellant in the year 1969. A charge report was also prepared which included, inter alia, 45 ball-bearings. On 10th October, 1970 the appellant was on duty. It was Saturday. 11th October, 1970 was Sunday and on 12th October, 1970 the appellant was on leave.
Ghulam Mustafa had agreed earlier to hold charge of the post of the appellant during the latter's absence on leave.
3. On 10th October, 1970 when the Store was locked by the appellant and keys were handed over to Ghulam Mustafa, all the articles were lying intact including the ball-bearings. The key of the Store used to be kept in a box which used to be a sealed and handed over to the Watch & Ward people.
On 12th October, 1970 when Ghulam Mustafa came to the office he found that the seal on the key- box was intact. The lock was opened after unsealing it. Nasir Khan Cooly and Yakoob went inside the Store for the purpose of sweeping. Nasir Khan Cooly came back running and informed Ghulam Mustafa that one Carton which contained 45 ball-bearings was lying empty in Ward No,11 Ghulam Mustafa went inside and found the Carton lying empty and ball-bearings, which were lying in it when the Store was last closed on Saturday, the 10th October, 1970, were missing. Ghulam Mustafa then went to the Depot Storekeeper Muhammad Yousuf and informed him about the missing ball- bearings. Muhammad Yousuf visited the Ward and verified the fact of disappearance of the ball- bearings. It may be stated that Nasir Khan Cooly was direct subordinate of the appellant at the relevant time.
4. As the appellant wa's on leave on the day when the ball-bearings were found missing from the Carton, the appellant was called from his house. However, his plea was that the Ball-bearings were lying intact in the same Carton when he had left the office last on Saturday evening. Muhammad Yousuf then reported the matter to higher authorities, who decided to hand over the case to the Police.
5. On 14th October, 1970 Mr. Muhammad Yousuf sent a report to A.S.I. Railway Police, Karachi which was to the following effect:- "Certain Nos. Of ball-bearings were reported missing today from Electrical Ward No,II Diesel Store Depot, Karachi Cantt. The misappropriation case is about Rs,34,000. It is for your information and necessary investigation."
' In this report which was lodged after two days of the detection of the theft of the ball-bearings, no name of the accused has been mentioned. No suspicion has been expressed either against any employee of the Store Depot. The case was partly investigated by the Railway Police and then it was transferred to Anti-Corruption Police for further investigation. On 3rd January, 1973 the District Controller of Stores issued sanction for prosecution of the appellant and Nasir Khan Cooly for offence under section 409, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947.
Even after this sanction the Police took about three years to complete the investigation and present the challan before the Special Judge on 18th February, 1975.
6. The appellant pleaded not guilty of the charges and stated that he was not responsible for the loss of the ball-bearings because the same were found missing during his absence on leave when he was not lncharge of the Store and that on 10th October, 1970 when he had left office, the ball- bearings were lying intact in the Carton meant for the same.
7. It may be stated that Nasir Khan Cooly who was also shown as co-accused of the appellant, absconded during investigation of the case hence the case proceeded against the appellant only, whereas Nasir Khan Cooly was shown absconding and the case proceeded against him in absentia under section 512, Cr.P.C.
8. In support of the prosecution case following witnesses have been examined:-
(i) P.W.1 Muhammad Yousuf (Exh.9) was Store Depot keeper at the relevant time. He has deposed that Ghulam Mustafa was Sub-Storekeeper under him and that the appellant was Ward Storekeeper and a absconding accused Nasir Khan was Cooly under Ghulam Mustafa. On the day of the incident i,e, 12th October, 1970 Ghulam Mustafa informed Muhammad Yousuf how the ball- bearings were found missing after opening the Store which was closed last on Saturday evening when appellant had proceeded on leave handing over charge to Ghulam Mustafa. The witness deposes that he went to the Ward to verify the loss of the ball-bearings and found that the Carton in which the ball-bearings were lying was empty. He then brought this matter to the notice of the higher officer and informed him to lodge report with the Police. Accordingly the witness sent report to the Railway Police which has been quoted above.
(ii) Next witness is Muhammad Hafiz Khan (Exh.10). He has deposed that the appellant was to proceed on leave from 12th October, 1970 and that the witness had undertaken to work on his behalf. He further states that on 10th October, 1970 being Saturday, the appellant had attended his duty and in his presence his Ward was duly locked and sealed in presence of Ghulam Mustafa, and the other staff, that 11th October, 1970 was Sunday and on 12th October, 1970 the key of the Store was obtained by him from the Watch & Ward people to open the Store, that the Store was opened whereafter Yakoob and Nasir Khan Cooly went inside to sweep, that after 2-3 minutes Nasir Khan Cooly came and informed the witness that, the ball-bearings lying in the Carton were missing. He states that Ghulam Mustafa was also present at that time. The witness further states that he was surprised at the theft of the ball-bearings because on the last day when the Store was closed i,e, on 10th October, 1970, the ball-bearings were lying intact in the Carton. Hafiz Khan requested Ghulam Mustafa to inform Depot Storekeeper Incharge Mr. Muhammad Yousuf about the theft.
(iii) The next witness is Mr. A.S. Abidi (Exh.12). He was working as Stock Verifier at Diesel Store of Pakistan Railway at Karachi Cantt. Railway Station. He has given various days on which he had verified the stock and found the same to be in conformity with the Stock Register.
' He has said nothing about the missing ball-bearings.
(iv) P.W. Ghulam Mustafa (Exh.13) was Sub-Storekeeper and immediate officer of the appellant at the relevant time. He has deposed that on 12th October, 1970 he went to the Store and found all the seals on the outer door intact and that lock was opened after unsealing the doors etc. And thereafter Nasir Khan Cooly and Yakoob were sent inside as usual for sweeping the Ward. He further stated that after some time Nasir Khan Cooly came running and informed him of the disappearance of ball-bearings from the Carton.
(v) The last witness is Mr. Jawed Hussain Inspector F.I.A. Karachi (Exh.17) who was Sub-Inspector Railway Police at City Railway Station at the relevant time and had recorded the F.1. R. And then transferred the papers to Anti-Corruption Police for further investigation.
9. None of the witnesses has deposed anything against the appellant. The learned Special Judge has not properly considered the evidence of the witnesses, but convicted the appellant simply on the evidence that the appellant while taking over charge was entrusted with the ball-bearings and that on 12th October, 1970 these ball-bearings were found missing from the Ward of which the appellant was the Ward keeper. The learned Special Judge did not refer to the fact that the appellant was on leave on the particular date when the ball-bearings were found missing. He also failed to the notice the categorical statements of Ghulam Mustafa and Hafiz Khan to the effect that when the office was closed on 10th October, 1970 in their presence, everything including the ball- bearings were lying intact. It is also in evidence that after closing the Store all the doors were sealed and so also the lock of the main door. The key of the main door was put in a box which was again sealed and handed over to the Watch & Ward people. It is also in evidence that when the ,Store was .Opened on 12th October, 1970 in presence of Hafiz Khan and Ghulam Mustafa all the seals on the outer doors and the windows were intact. Under these circumstances it is not understood how the learned Special Judge came to the conclusion that the appellant was responsible for loss of the ball-bearings which must have occurred some time after the closure of the Store on 10th October, 1970 and before the opening of the Store in the morning of 12th October, 1970. There is nothing on record to indicate that the appellant had access to the Store during this period. Thus the theft or the loss, whatever it may be, of the ball-bearings which occurred during the above period, cannot be attributed to the appellant. There is not an iota of evidence to burden the appellant with the responsibility of causing disappearance of the ball-bearings. The report of tire incident was lodged after two days of the detention of the loss of ball-bearings. If Muhammad Yousuf or his colleagues had any suspicion against the appellant, this fact would have been specifically mentioned in the report (Exh.9). Even after two days of departmental inquiries, the staff connected with the store was unable to determine as to who was responsible for the disappearance of the ball-bearings.
' In view of this state of evidence, the conviction of the appellant cannot be sustained.
Consequently the appeal is allowed, the conviction and sentence passed by the learned Special Judge against the appellant are set aside and the appellant is acquitted of the offence he has been charged with.