' This is a jail appeal filed by Muhammad Ishaq son of Pehlwan, who was convicted for an offence under section 409, P.P.C. And sentenced to R.I. For six months with a fine of Rs,35,737.10 (in default of payment to R.I. For three months), by the learned Special Judge Anti-Corruption, Multan vide his judgment, dated 31-5-1981.
2. The brief facts of the case are that the appellant was serving as a storekeeper in the office of the Extra-Assistant Director Agriculture. He had taken over as Storekeeper somewhere in June, 1978.
Some shortage was detected in the store and a raid was conducted on 2-4-1980 by a Magistrate alongwith the officers of the Agriculture Department. The store was located in the hired premises within the area of Police Station Kabirwala, then District Multan, now District Khanewal. The store was checked and shortage of pesticides etc. Valued at Rs,35,735.10 was detected. On the complaint made by Ali Akbar, P.W.2 Extra-Assistant Director, Agriculture a case under section 409, P.P.C. Was registered against the appellant vide F.I.R. No, 161 Exh.P.W.1/B, dated 24-10-1980.
3. It is contended by the learned counsel for the appellant that the raid and the search was conducted in violation of provisions of sections 103 and 165 of the Cr.P.C. The search was neither made in the presence of witnesses from the locality nor a list of articles found in the store was prepared. He further submitted that no stock register of pesticides or plant protection machinery was produced at the trial to show the quantity of the articles handed over to the appellant and the quantity found short at the time of raid. Moreover, no question was put to the appellant regarding the raid in his statement under section 342 of the Cr.P.C.
4. There is considerable force in the submissions made by the learned counsel for the appellant.
The raid was conducted in the absence of witnesses from the locality in violation of the mandatory provisions of section 103 of the Cr.P.C. Moreover, no question was put to the appellant when he was examined in the trial Court under section 342 of the Cr.P.C. Regarding the raid and the preparation of the shortage lists Exh.P.W.2/A and Exh.P.W.2/B. Hence the said evidence regarding the raid and the shortage lists cannot be used against the appellant. There is no need to discuss the oral evidence because it was merely in support of the alleged shortage which was detected at the time of the raid and checking up of the stores. Even otherwise it was the duty of the prosecution to prove first that certain articles and machinery were entrusted to the appellant. This could have been done by the production of stock register of pesticides and plant protection machinery. However, no such register was produced before the trial Court to show the quantity of the material initially entrusted to the appellant. Hence the alleged shortage and misappropriation of the articles was not proved on the record.
5. In this view of the matter this appeal is accepted. The conviction and sentence of the appellant are set aside and he is acquitted of the charge against him He is already on bail. His bail bonds are cancelled and the sureties stand discharged.