' This appeal is directed against the judgment, dated 29-8-1982 of Special Judge Anti-Corruption, Karachi whereby appellant has been convicted under section 409/34, P. P. C. Read with section 5(2) Act H of 1947 and sentenced to suffer R. I for nine months and fine of Rs. 1,000 and in default to undergo R. I. For two months more.
2. Briefly stated the facts of the prosecution case as given in the F. I. R. Are that consignment of 4,235 bags of imported dried skimmed milk powder each bag weighing 25 K grams were received from World Food Programme by the then E. A. D. A.. Karachi for supply to flood-affected areas. The stock was stored at Malir Extension, Agriculture Centre Store, Malir City, Karachi under the charge and control of the then E. A. D. A., Ghulam Nabi Umer, Muhammad Bakhshal Abbasi, Moula Bux Gadd, Agricultural Assistants and Store Keeper Alley Hassan, the present appellant. The entire stock of milk powder remained unsupplied and unused till the end of 1977. It is stated in the F. I. R. That during this period the above-said officials had been selling and supplying the bags illegally to private parties at odd hours of night on money considerations. The protest was made by the then Chowkidars Messrs Abdul Qadir, Abdul Hakim, Dost Muhammad and other officials but they were beaten and removed from the service. The matter was reported to the higher authorities of the Agriculture Department but no action was taken.
' In December/January, 1977-78 under the orders of Director, Agriculture, Extension Hyderabad, Sind, the entire quantity of milk was sold and supplied to private firms at Rs.
1.50 per kilogram. After delivery, a shortage of 22,700 K. Gins. (918 bags) valued at Rs. 2,00,000 was detected, therefore, a case was registered on 21-5-1978.
' After usual investigation Ghulam Nabi, Muhammad Bakhshal, Moula Bux and present appellant Alley Hassan were sent up to face the trial. Finally only appellant Alley Hassan was convicted while remaining three accused were acquitted by the same judgment.
2. Prosecution in support of its case examined P. W. 1 Anisuddin Field Assistant, Agriculture Department Exh. 2, P. W. 2 Muhammad Shah Jehan, Exh. 7, P. W. 3 Abdul Qadir Exh. 10 Chowkidar in Agriculture Department, P. W. 4 Hamid Hussain, Director, Marketing Sind Seed Corporation, Hyderabad Exh. P. W. 5 Habibuddin Field Assistant in E. A. D A. Karachi Exh. 13-A. P. W. 6 Abdul Hakeem Chowkidar Exh. 14, P. W. 7 Afzal Ahmed Incharge Police Outpost, Malir City Exh. 15, P. W. 8 Ameer All the then A. C. M., Baghdadi Exh. 17, P. W. 9 Ghulam Abbas Handwriting Expert Exh. 19, P. W.
10 Muhammad Amin Inspector, Anti-Corruption, Exh.
26.
3. Appellant in his statement under section 342, Cr. P. C. Exh. 35 has denied the allegation of misappropriation and stated that on 13-7-1976 he had proceeded 15 days leave aid at that time he gave the key of Stores to Muhammad Bakhshal Abbasi. He produced the register duly signed by Muhammad Bakhshal Abbasi as Exb. 35-A.
4. A Revision Application under section 345/439, Cr. P. C. Read with section 10 of Criminal Law Amendment Act, 1958 was also filed by the State through Advocate-General for the enhancement of sentence. Therefore, propose to dispose of the appeal as well as Criminal Revision by this single judgment.
5. 1 have heard Mr. Hameed Lakhani, for the appellant. He stated that on the same set of evidence co-accused have been acquitted by the learned Special Judge and the case of appellant is at par.
It is argued that there is no evidence regarding misappropriation of the consignment and during the departmental inquiry appellant was found innocent and was exonerated from the charges and such report is on the record. Mr. A. I. Qarni appearing for the State does not support the conviction.
6. P. W. 1 Anisuddin has stated that all the accused mentioned in the F. I. R. Were posted at Extension Centre, Malir. This has not been denied by any of the accused.
' P. W. 2 Muhammad Shah Jehan has stated that appellant was the incharge of the store. He was Assistant Plant Protection Officer in Agriculture Department, Karachi and he used to supervise the clearance of butter, dry milk received from abroad and he used to obtain receipts from the Incharge of the Store in token of having received the articles. He was shown entries in the record maintained by Anisuddin.
' P. W. Abdul Qadir was Chowkidar in the office of Extra Assistant Director Agriculture, Karachi and his duty was from 6-00 a.m. To 6-00 p.m. He stated that milk was in charge of the appellant and co-accused Umer was overall incharge while acquitted accused Bakhsbal, Moula Bux and Ghulam Nabi, Unner used to live in that office. In the year 1976 Moula Bux brought a Suzuki Van and started loading the van with milk powder lying in the bags outside the store and at that time accused Umer was sitting in his office. He inquired from Moula Bux as to why they were not taking the milk during day time on which he was told if he had to serve in that department or not. However, Moula Bux had not taken away the milk on that occasion. He stated that on the next day Moula Bux called him and started beating in presence of accused Bakhshal, \bdul Wahid Clerk and Zia Chowkidar saying that why did he interrupt. He then sent for the policeman and was handed over to policeman who took me to police station. He narrated whole matter to S. H.
0. Who called accused Unner and told him to lodge the report but accused Unner refused to lodge the report whereupon he was let off.
7. P. W. 4 Hamid Hussain has stated that in the month of February, 1977 he was posted as Project Director, Horticultural Institute, Mirpurkhas. He was appointed as Inquiry Officer by the Government regarding the shortage of milk powder. He conducted the inquiry on the spot from 7-4-1977 to 9-4- 1977 in the office of E. A. D. A., Karachi. He examined the record and found that Depot had received in all 4,235 bags of milk powder out of which 597 bags were soaped with rain. He also examined the record. The physical verification was made by Akhtar Mughal, Deputy Director Agriculture, Hyderabad Division and found 1,002 bags of milk powder refilled and 218 bags were short. Whereas 3,015 bags were intact. He personally saw the bags and found only small quantity in each bag to the extent of 4 to 5 K gms. He recorded the statements of Chowkidar Abdul Qadir, Nisar and others who stated that during the cover of night a Suzuki Van used to come at the store when accused Unner, and Gaj loaded the milk bags and took away from the store. He then prepared inquiry report and submitted to the Director Extension Sind, Hyderabad. He produced photostat copy of the report as Exh.
13. He found Unner, Ghulam Nabi Gaj, and Moula Bux responsible for the shortage. He was 18 Grade Officer when he conducted the inquiry. He admitted that appellant Alley Hassan is his relative.
' P. W:5 Habibuddin has stated that appellant was Store Keeper and milk was in his charge. He stated that Mr. Akhtar Mughal, the then Deputy Director conducted the enquiry regarding shortage of dried milk while he assisted him in the enquiry but no explanation was sought from appellant Alley Hassan.
' P. W. 6 Abdul Hakeem has stated that in the year 1976 he was Chowkidar in the office of Assistant Director, Agriculture, Karachi. His duty was from 7-00 p.m. To 7-00 a.m. Accused Gaj, Ghulam Nabi and Abbasi used to live in their quarters situated near the office. He stated that whenever any officer used to come in late hours he used to bring the keys from accused Unner and hand over to accused Abbasit He stated that one Aslam also used to come in his car and sit with the accused Abbasi who tell him to put 3/4 bags of dried milk in his car. This was done 15-20 times. He stated that once he saw a truck and a Suzuki near the gonown and acccused Abbasi loaded about 65/70 bags of dried milk in Suzuki and about 120 bags in the truck. The truck and Suzuki were brought by Chowkidar Khumar Gul.
' P. W. 7 Afzal Ahmed A. S. I. Stated that in the year 1976 in the month of April he was Incharge of Outpost Malir where he was informed by Moharrir that a telephone call was received from Agriculture Department by Umer or Abbasi that somebody from the staff was doing mischief. He sent for that man who disclosed his name as Abdul Qadir, Chowkidar on the Agriculture Department, who told him that staff' of the Department used to take away milk powder and medicines of insect killing. He prevented them on which he was beaten. He disclosed that they use to take away goods in the hours of night in the jeep or car. He gave the names of staff members as Omer, Abbasi and others. A. S. I. Telephoned to the staff of Agriculture Department to which Umer and Abbasi informed him that it was their department affair and they will deal with the matter themselves and nobody will come to lodge report.
' P. W. 8 Ameer Ali was A. C. M., Baghdadi South, Karachi. He stated that on 31-1-1979 appellant was brought before him for getting his sr ecimen signatures. He attested the handwritings and produced it as Exh.
18.
P. W. 9 Gbulam Abbas is Handwriting Expert. He has compared the handwriting of the appellant and produced his report as Exh.
23.
' P. W. 10 Muhammad Ameen is the Investigating Officer. He registered the F. I. R. And produced it as Exh.
27. He recorded the statements of the witnesses on various dates. He took up the samples of the milk powder and sent them to Chemical Examiner. He has produced, sanction for the prosecution as Exh. 28-31.
In the present case there are some admitted facts. The appellant was a Store Keeper at the time of incident and he was incharge of the Store. He has not challenged the sanction. It is also admitted that at the relevant time he was a public servant. In his statement the appellant has admitted that in 1976 he got physical charge of the store and it was his duty to A keep the stock in safe custody and maintain such account. He has admitted to have acknowledged the receipt of 4,235 bags of 25 K gram each of milk powder through P. W. Anisuddin and, receipt Exh. 4 is in hi handwriting. He has admitted that he in his own handwriting made entries in the stock register of accused as Exh.
5.
' From the evidence as stated above it is clear that acquitted co-accused la were living within the premises of the office where milk and other articleg were stored. Some of the witnesses have admitted that Umer, Abbasi and Ghulam Nabi used to remove the milk powder from the store. A. S. I. Who was Incharge of the Outpost stated that co-accused Umer and Abbasi told him that the matter was of their department and nobody came to lodge the report. There is no evidence that appellant took away the milk from the store or sold somewhere else.- The appellant was Incharge of the store. He has been convicted for the, misappropriation of the milk whereas other co-accused against whom there is some set of evidence, have been acquitted.
In a case reported in 1968 P Cr. L J 358 it has been held that mer disappearance of property entrusted is not sufficient to establish misappropriation unless accused is proved to be responsible for doing himself o C offering some other person to do the same. Relevant observations are at page 361, which are reproduced as under : "As such he cannot escape the responsibility of the shortage, but this per se does not amount to the establishment of an offence of criminal breach of trust, of which dishonest misappropriation conversion to one's own use, dishonest use or dispose of that property in violation of any direction or prescribed mode, or wilfully suffering any other person so to do, are the essential ingredients.
The mere disappearance of the property entrusted would not thus be sufficient to establish a misappropriation unless it is also proved by the prosecution that the accused is responsible for doing himself or wilfully suffering some other person to do the aforesaid acts."
' The same view has been taken in the case reported as Mir Ahmed v. The State (1), wherein it has been held that there absence of money without an evidence of misappropriation is not sufficient to establish the case. The relevant observations at page 495 which are reproduced as under :- "There is no evidence of his having converted any part of the money, such as, for instance, that he bad been seen spending sums of money beyond his visible means shortly before the discovery of the. Loss."
For the reasons stated above I am of the view that case is not from doubt. Co-accused against whom sufficient evidence was availabl were acquitted whereas present appellant has been convicted.
' I allow the appeal and acquit the appellant Alley Hassan. He is o bail. His bail bond stands cancelled.
' The appeal has been allowed, therefore, revision has become infructuou which is accordingly dismissed.
(1) PLD 1962 SC 489