' By judgment, dated 7-9-1980 passed in Special Case No,55 of 1978 by the learned Special Judge, Anti-Corruption, Hyderabad, the appellant was convicted under section 409, P.P.C. Read with section 5(2) of Act II of 1947 and sentenced to suffer R.I. For three years and to pay a fine of Rs,10,000 or in default to suffer R.I. For six months more. Being aggrieved, the appellant has filed the present appeal. I have heard Mr. Imam All G. Kazi learned counsel for the appellant and Mr. Muhammad Hayat Qureshi, learned counsel for the State.
2. At the relevant time the appellant was the Agriculture Advisor to the Chief Minister of Sind. In the F.I.R, which was lodged on 18-4-1978 by the D.S.P. Anti-Corruption Establishment Karachi, it was alleged that the appellant as Agriculture Advisor to the Chief Minister Sind had visited Hyderabad on 12-12-1974 and procured, through Director, Agricultural Engineering, Hyderabad and Senior Office Superintendent of that office, one set of Lower Indus Project Report from the Office of the Executive Engineer, WAPDA, Hyderabad. And then on 23rd/24th December, 1974, at Hyderabad he procured five more sets from the. Aforesaid office of WAPDA out of which he kept two sets with him making a total of three sets with him and out of these three sets of the report he gave one set to Poultry Research Institute, which was later on returned to WAPDA by the Poultry Research Institute, Karachi and two sets remained unaccounted for but one of such two sets was eventually traced at Dawn Library, to whom it was given by the appellant without any authority, as the property belonged to WAPDA, to whom it should have been returned if it was not required, but one set of Lower Indus Project Report remained unaccounted for and had been criminally misappropriated by the appellant in abuse of his authority as Agriculture Advisor to the Advisor to the Chief Minister of Sind. According to the F.I.R., therefore, one set of the Report remained unaccounted for. But accordng to the judgment, dated 7-9-1980 of the learned Special Judge, Anti-Corruption, two sets of Report remained unaccounted for. The judgment impugned in this appeal is spread over 44 pages of the paper book i.e. It commences at page 166 and finishes at page 209 of the paper book.
It has, however, been noticed that from pages 166 upto pages 204 there is no discussion of the case but only reproduction of the F.I.R., evidence recorded, statement of the accused under section 342, Cr".P.C. And written arguments presented on behalf of the appellant before the learned, Special Judge, Anti-Corruption-and then from page 204 upto 208 also there is reference to the arguments of the appellant and the State. The entire reasoning of the learned Special Judge is contained in the last paragraph of the judgment, dated 7-9-1980 and the same is below:- "Against the accused appears evidence of Mr. Abdul Rasool Memon, the then General Manager, South, WAPDA Exh.67,. Of unimpeachable character, other reliable ocular evidence, corroborative evidence, strong circumstances and the accused, Criminal Misconduct throughout, as already shown above. The evidence of Messrs Abdul Rasool Exh.67, Allauddin Exh.5, Aftab Ahmed Khan Exh.70, Muhammad Aslam Exh.27, Sarfraz Hussain Exh.9, Ghulam Qadir Exh.66, Kabil Shah Exh.56, Sanaullah Exh.2, Kamal Pasha Exn.3, and others is unanimous, consistent and natural and every material fact. All the prosecution witnesses were put to a detailed cross-examination but nothing was extracted from their testimony. They have no motive to falsely involve the accused. Their evidence proves that accused was entrusted with the three L.I.P. Report sets on two occasions in December, 1974 and he had exclusive dominion over the same. The factum of arranging a L.I.P. Set for Dawn and delivering the same to Dawn having been admitted by the accused, the onus to give satisfactory explanation for the shortage of Two L.I.P. Reports sets shifted on the accused which he failed to discharge. The accused was under a duty of furnishing explanation for the shortfall of 2 L.I.P. r,cts encrusted to him since the custody was exclusively his, and he had dominion over them.
Apart, the surrounding circumstances of the case, coupled with the admissions of the accused also indicate his mala fide and criminal misconduct throughout. The explanation of the accused looks palpably false and an afterthought. On the basis of evidence on record and accused's failure to discharge the burden proves the establishment of the offence of Criminal Misappropriation within the mischief of section 409, read with section 5(2) of Act II of 1947. I find that the prosecution has proved its case against the accused beyond reasonable doubt. Accordingly I shall hold him guilty under section 409, P.P.C. Read with section 5(2) of Act II of 1947 and convict and sentence him to suffer R.I. For three years to pay a fine of Rs,10,000 (Rupees ten thousand only) or in default to suffer R.I. For six (6) months more. Fine not paid. Accused is remanded to custody."
3. After perusal of the record and after hearing the learned counsel for the parties, I have reached the conclusion that no case was made out against the appellant and this appeal is to be allowed.
As Agriculture Advisor to the Chief Minister of Sind, the appellant had the authority to call for copies of the aforesaid report. The evidence led on behalf of the prosecution itself shows that the said report was neither confidential nor meant only for Government Circles but it was a priced publication and could be obtained by any agency, public or private on payment of price. The copy of the relevant part of the report has been exhibited and the report itself shows that this is a priced publication and any person could obtain it on payment of its price. Apart from one copy given under orders of the appellant to the Dawn Library, other five copies had been directed by the appellant to be given to various Government Departments. Reference may be made to Exhibit 26, which is a letter, dated 25-2-1979 of the Secretary to the Government of Sind, Agriculture, Livestock and Fisheries Department, addressed to the five different departments of the Government and the said letter reads as follows:- "Subject: LOWER INDUS PROJECT REPORTS ' You were supplied complete sets of Lower Indus Project Reports by the General Manager South WAPDA, Hyderabad, through the Agriculture Advisor to the Chief Minister. You are requested to send the complete sets of Lower Indus Project Reports alongwith maps etc. To this Department through a Special man so as to reach this office on or before 21st January, 1976 positively."
' From Exhibit 38-A, which is a letter, dated 14-4-1979 of the Deputy Secretary (Technical) addressed to the Deputy Secretary (Operations), Irrigation and Power Department, Government of Sind, Karachi, also it stands confirmed that five sets had been supplied to vaious departments of the Government. The sixth set admittedly was supplied under orders of the appellant to the Dawn Library. Neither from the oral evidence adduced on behalf of the prosecution nor on the basis of any official document brought on record the case of criminal misappropriation by the appellant was established. From the evidence of the prosecution itself it was established that all the six sets were accounted for and it is surprising to note that the learned Special Judge, although reproducing practically the entire evidence including whole of the written arguments submitted on behalf of the appellant, found that two sets were missing.
' As observed earlier, all the six sets are accounted for. No case of criminal misappropriation within the mischief of section 409, P.P.C. Read with section 5(2) of Act II of 1947 was made out. Action against the appellant appears to have been taken for ulterior purposes of harassing him after he had left the Government or he was removed from his position as Agriculture Advisor to the Chief Minister of Sind.
4. Criminal Revision Appeal No,239 of 1980 is allowed and the judgment and sentence dated 7-9- 1980 are set aside. The appellant was on bail from this Court. His bail bonds are discharged.