This appeal arises from the judgment of learned Special Judge, Anti-Corruption, Bahawalpur, whet by he on 9-8-1979 convicted Abdul Qayyum appellant under section 409, P.P.C. Read with section 5 of the Prevention of Corruption Act, 1947 and sentenced him to one year's R. I. On each count with the direction that the sentences would run concurrently.
2. The prosecution case, in brief, is that in the months of September and October, 1977, Abdul Qayyum, the appellant was posted as Foodgrain Inspector, Centre Mubarikpur. On 27-9-1977, he despatched and got loaded in railway wagon 230 bags of w heat for Mustung. The standard weight of each bag was 100 kilogram. On the same day Muhammad Nawaz P.W.4, informed Mian Ghulam Rasul Sub-Circle Officer P.W.1 that less standard weight wheat had been got loaded by the appellant. The S.C.O. Produced Muhammad Nawaz P.W.4 before Manzoor Ahmad Bajwa, Magistrate 1st Class, P.W.2 who organized a raid party. The party went to Railway Station, Mubarikpur. Abdul Sattar, Station Master P.W.3 was summoned there. In his presence one wagon was desealed and 20 bags were weighed. Out of these 20 bags, three bags were found deficient by 15 Kg., 10 Kg. And 9 Kg. The Magistrate prepared raid report Exh.P.C. And on its basis formal F.I.R. Exh.P.C./1 was registered.
3. The appellant denied the charges and claimed to be tried. In order to prove its case, the prosecution examined 4 witnesses namely Mian Ghulam Rasool, S.C.O. P.W.1 Manzoor Ahmad Bajwa, Magistrate 1st Class P.W.2 Abdul Sattar, Station Master P.W.3 and Muhammad Nawaz the Mukhbar, P.W.4. When examined under section 342, Cr.P.C. The appellant denied the incriminating circumstances. He took the plea of false involvement at the instance of Muhammad Nawaz P.W.4.
He produced Noor Hussain, Senior Clerk, Food Procurement Branch, Bahawalpur in his defence.
4. Learned counsel for the petitioner submits that the prosecution has failed to prove its case beyond reasonable doubt inasmuch as, the possibility that 34 Kgs. Of wheat were misappropriated by someone else cannot be excluded.
As against this, the learned counsel for the State has defended the judgment of the trial Court.
5. After hearing the learned counsel and going through the record I am of the opinion that the prosecution has failed to prove the misappropriation of 34 Kgs. Of wheat by the petitioner beyond reasonable doubt for the following reasons:
(1) That no one saw the petitioner taking away or misappropriating wheat.
(2) That the wheat bags were loaded on the wagon on 27-9-1977 by labourers deputed by the Contractors; that the person who sealed the wagon has not been produced by the prosecution; that Ch. Abdul Sattar, Station Master was posed at the station on 30-9-1977 and the wagons were not sealed in his presence, and as such, the possibility that the wheat weighing 34 Kgs. Was removed by someone else in between 27-9-1977 and 2-10-1977 cannot be excluded.
(3) That it is in the evidence that sufficient quantity of sweep wheat was lying in the wagon and the same was not got weighed by Magistrate despite the request made by the appellant in this behalf.
(4) That the bags which were found short of standard weight were not taken into possession. Lastly,
(5) That as admitted by P.W.3 there was leakage in 3 bags which were found deficient.
6. For what has been stated above, there being no satisfactory basis to maintain the conviction recorded by the trial Court the same has to be set aside. Giving him the benefit of doubt, the appellant is acquitted ofHe is on bail, the bail bonds shall stand discharged.