' The appellant being aggrieved against the judgment dated 17-1-1982 passed by the learned Special Judge, Anti-Corruption, Sukkur, whereby he was convicted under section 409, P.P.C. Read with section 5(2) of the Prevention of Corruption Act and was sentenced to suffer six months' R.I.
And fine of Rs,20,000 and in default to suffer 6 months' R.I. Has filed this appeal.
2. The prosecution case in brief is that at the relevant time the appellant was working as Assistant Food Controller. He was entrusted with a huge quantity of sugar but on checking it was found that 126 maunds and 30 seers of sugar costing about Rs,17,632.25 was missing. The report was lodged by District Food Controller, Khairpur which was registered by A.C.E. Sukkur. The date of occurrence is stated to be 13-4-1974. The date of report is 15-10-1974; after obtaining sanction and after usual investigation the accused was sent up to the Special Judge Anti-Corruption to stand the trial. The prosecution examined Syed Azadar Hussain who stated that he verified the stock register and found the stock present in the godown was 15,899 maunds, 29 seers and 12 chhatanks, when the stock should have been 16,022 maunds and 2 seers of sugar. He reported the matter to Deputy Controller Food and then charge was handed over to Mr. Ahmed Din. Syed Yaseen Ali Hashmi District Food Controller visited the godown on 13-4-1974 and found that stock was not in the accountable position. He directed the appellant to put the stock in proper order. He again visited the godown on 21-5-1974 and found some irregularities in the stock. He deputed Ghulam Rasool to verify the stock book. Thereafter, he deputed Mr. Azadar Hussain Shah, Food Controller to give the charge of the appellant to Mr. Ahmad Din.
' P.W. Ghulam Hussain has deposed that on 21-5-1974 Deputy Food Controller had visited the godowns of the appellant, and found the shortage. The appellant instead of giving the information remained absent from duty on 23rd and 25th and did not produce the record.
' P.W.4 Muhammad Mushtaq produced the charge-sheet, explanation and finding. The appellant was examined under section 342, Cr.P.C. His case was that in 1973 there were heavy rains and therefore, due to the leakage from the room the sugar clothes bags were damaged. He further stated that it was the natural calamity. The damage was caused due to rains. He reported this matter to the concerned auhtorities. He was called by the department to pay the loss for which he paid the amount to the Government. The appellant examined one witness Muhammad Bux in defence who stated that he was Chowkidar. In 1973 there were rains. Due to the rain the sugar was damaged because water leaked from the roof.
' The learned Special Judge accepted the prosecution evidence, disbelieved the explanation of the appellant and convicted him as stated above.
3. The evidence, on record fully establishes that the appellant- was public servant in the year 1974.
He has also not disputed this fact. It is also admitted that he was entrusted with sugar as a public servant. It has also been established that 126 maunds and 30 seers of sugar was missing. The cost of the sugar is also not disputed. The learned trial Judge discarded the explanation of the appellant by observing that even if it be assumed that there were heavy rains it is still to be seen whether this explanation given by the accused was found satisfactory by the authorities but as no such question has been suggested to the Food Officials it appears that his explanation was not accepted by the department and the Anti-Corruption Police. This observation to my mind cannot be used against the appellant. He has given an explanation and it was for the prosecution to establish that such explanation was imaginary, wrong and contrary to facts. The trial Court further observed that though the amount had been paid but he has not explained what he did to the sugar bags for one full year. He has further observed that what is the assurance that this money was not utilized for personal benefit or sugar bags were used in black market. There is no evidence on record that either the appellant has sold the sugar in black market or misappropriated the amount for his personal gains.
4. The learned counsel for the appellant has submitted that the prosecution was bound to establish the misappropriation and mere entrustment of the property is not sufficient to constitute an offence. This contention has no force. In order to bring home the charge it is sufficient if it is established by the prosecution that the property was entrusted to an accused as a public servant and that public servant has either not returned that property or used it for the purpose other than for which it was entrusted. If the prosecution discharges the initial burden of proving that the property was entrusted to the accused then the burden shifts on to the accused to establish that he has not misappropriated the Government property. It is not at all necessary for the prosecution to prove in what manner the property of the Government had been misappropriated. In the present case the prosecution has been able to prove that the goods were entrusted to the appellant. In such circumstances the further requirement that the prosecution should have also estbalished the misappropriation is not at all necessary but while laying the burden on the defence, the explanation if any furnished by an accused must be considered. If a reasonable explanation has been given by the accused then again it is the duty of the prosecution to prove that the explanation given by the accused is incorrect and contrary to facts on record. At this stage the burden again lies on the prosecution to show that misappropriation has been committed by the accused. In the present case though the entrustment has been established but there is not an iota of evidence about the misappropriation. The accused was charge sheeted by the department and he gave an explanation that there were heavy rains and the rain water came inside the godown and about 200 to 400 cloth bags were affected and the matter was reported to the District Food Controller who visited the site and ordered to arrange for shifting of the stock. There was no misappropriation. The same explanation was given by the appellant before the trial Court and this explanation was not properly considered by the Court. It was incumbent upon the Court to have considered the explanation of the accused particularly in view of the fact that the prosecution has absolutely failed to prove the misappropriation. The explanation furnished by the appellant was considered against him. It is cardinal principle of criminal jurisprudence that an admission or confession of the accused must be accepted as a whole. The prosecution witnesses have not disputed the contention of the appellant that there were heavy rains and the goods were shifted from one godown to another godown.
' Learned counsel for the appellant has referred to the case of Alley Hassan v. The State PLD 1986 Kar.
570. The facts are distinguishable and not applicable to the facts of the present case.
' However, the principle laid down in the case of Mir Ahmed v. The State PLD 1962 SC 489 would be applicable. In this case it has been held 'where there is a question of correct treatment of a plea in defence which is of factual nature and is supported by evidence and circumstances the decision must not be taken in relation to the accused's special pleading, but must rest on examination of the entire evidence and if thereafter the Court is of the opinion that there is reasonable possibility that the defence put forward by the accused might be true, this opinion reacts upon the whole case, and the accused is entitled to the benefit of such doubt, on the ground that the prosecution has not proved its case beyond reasonable doubt'.
' The next case cited by the learned counsel is Shakir Hussain v. The State PLD 1956 SC 417 wherein it has been observed that 'to establish a charge of criminal breach of trust the prosecution must prove not only entrustment of a dominion over property but also that the accused either dishonestly misappropriated, converted, used or disposed of that property himself or that he wilfully suffered some other person to do so'. In this case the accused's defence was that the sum collected had been made over to the Patwari in accordance with whose direction the money had been collected, the Patwari agreeing that the sum had been duly received by him from the accused which fact in the circumstances of the case could not be branded as false. The facts are distinguishable but the principle that the defence of the accused must be considered is not open to exception. Reliance has also been placed on the case of Syed Mustafa Shah v. The State 1968 P Cr. L J 358.
5. In the result the learned trial Judge has not considered the defence of the appellant and drawn adverse inferences against him which is contrary to record. Therefore, the appellant is entitled to the benefit of doubt. The appeal is consequently accepted. The conviction and sentences recorded against him are set aside. He is on bail. His bail bonds are discharged. The appeal was accepted by the short order. The above are the reasons for the same. .