1. ' Sanaullah son of Ch. Khuda Bakhsh, Food Inspector, Incharge of Pakistan Railway Centre Sir Shameer Road, Faisalabad, was sent up for trial before Special Judge, Anti-Corruption, Sargodha, (Camp at Faisalabad), for an offence under section 409, P.P.C. Who vide his judgment dated 18-5- 1989, found him guilty under section 409, P.P.C. And sentenced him to 3 years' R.I. And a fine of Rs,2,50,000 or in default further R.I. For one year. It was further directed that the amount of fine, if realised, Rs,2,00,000 (Rupees two lacs) shall be paid to the Food Department. Said Sanaullah accused has appealed against his conviction and sentence.
2. ' The prosecution story, in brief is that Sanaullah appellant was posted as Food Inspector at Pakistan Railway Centre, Shameer Road, Faisalabad. During the year 1984-85 he had stored 3218.505 metric tons of wheat in two godowns under his charge from where he transmitted 3020.145 metric tons of wheat to other Government godowns. He sent his last consignment on 31- 3-1985. When the entire stock was cleared, it transpired that there was a shortage of 198.360 metric tons of wheat in the stock under the supervision of the appellant. Sanaullah appellant also admitted of the said shortage, vide his report, Exh.P.A./6, dated 31-3-1985, therefore, under the direction of the District Food Controller, he was proceeded against.
3. ' Complaint, Exh.P.B, was lodged on 4-4-1985, by Muhammad Sharif P.W.3, the then Assistant Food Controller, with Police Station Thikriwala, District Faisalabad. Formal F.I.R. Exh.P.B./1, was recorded by Muhammad Iqbal, P.W.2, on 6-4-1985. The case was registered under the direction of the District Food Controller, vide his letter Exh.P.C.
4. ' After the registration of the case, the investigation was taken up by Muhammad Hayat, P.W.6, Inspector, C.IA., Faisalabad. On 5-8-1985, he took into possession photostat copies of despatch report, Exh.P.A./1, stock report, Exh.P.A./2, Naqsha Bardana, Exh.P.A./3, monthly report, Exh.P.A./4 and a copy of inventory report, Exh.P.A./5, prepared by a Magistrate. He also took into possession photo copy of the report of Sanaullah appellant Exh.P.A./6. The abovesaid documents were taken into possession, vide memo. Exh.P.A. After recording the statements of the witnesses and completion of the ivnestigation, he challaned the appellant.
5. ' The prosecution in support of its case, produced six wintesses in all. Abdul Sattar P.W.1, was head clerk in the office of District Food Controller of Faisalabad. He had witnessed the recovery of despatch report Exh.P.A./1, stock report, Exh.P.A./2, Naqsha Bardana, Exh.P.A./3, monthly report, Exh.P.A./4, the report of Magistrate with regard to the stock verification, Exh.P.A./5, and report of the appellant with regard to the shortage of wheat Exh.P.A/6. The said documents were taken into possession by the Investigating Officer, vide memo. Exh.P.A., which he attested. The photo copies of the said documents were taken into possession, vide memo: Exh.P.A. In cross-examination, the witness stated that he was working in the office of District Food Controller, Faisalabad, but he had not seen the original documents of Exhs.P.A./1 to P.A./6. He further stated that he did not know where the original documents were. Muhammad Iqbal, P.W.2, Head Constable, recorded the formal F.I.R. Exh.P.B./1, on the basis of complaint, Exh.P.B. Muhammad Sharif P.W.3, Assistant Food Controller, stated that during the year 1985, the appellant was working as Food Grain Inspector at Pakistan Railway Centre Sir Shamir Road, Faisalabad. He further stated that the appellant was given some stock but, later on, it transpired that there was a shortage of 198.360 metric tons of wheat in his centre. He further stated that stock report, Exh.P.A/6, was sent by him wherein he had accepted the shortage of 198360 metric tons of wheat. He proved the F.I.R. Which had been lodged by him. He further admitted that one Muhammad Yousaf, Food Grain Supervisor, was working under the appellant in the same godown. He refuted the suggestion that the key of the godown used to be in the custody of Food Grain Supervisor. He admitted that he had not conducted any inquiry before getting the said case registered. He asserted that the key of the godown used to be in the custody of the appellant and he was incharge of the same. Ch. Muhammad Rafiq, Magistrate First Class, P.W.4, stated that on 24-4-1985, he checked the wheat stock of the godown situated at Pakistan Railway Centre Sir Shamir Road, Faisalabad, and prepared his report, Exh.P.A./6. He, in cross- examination, admitted that the appellant was not present at the time of the checking. He further stated that he made his surprise visit, therefore, he did not send for the appellant. He did not remember who provided the key of the godown to him. Muhammad Sharif, P.W.5 was working as Food Inspector and on 24-4-1985, after the raid conducted by the Magistrate First Class, of the godowns under the charge of the appellant, he was made the Incharge. He had also witnessed.
6. The recovery of documents, Exhs. P.A./1 to P.A./6 and had signed the recovery memos. As well. In cross-examination, however, he admitted that the lock of the godown was not opened with any key but was broken. He was not aware who was in possession of the key of the said godown.
7. Muzammal Hayat, P.W.6, Inspector, had investigated the case and challaned the appellant.
8. ' At the conclusion of the prosecution evidence, the appellant was examined under section 342, Cr.P.C. Wherein he refuted the prosecution evidence and pleaded innocence. He also produced defence evidence and appeared in his defence as well. Farhat Abbas, D.W.1, a Junior Clerk in the office of District Food Controller, Faisalabad, stated that on 19-3-1985, wheat was not released from the godown under the signatures of the appellant but supervisor had signed the same. He further stated that according to his register till 22-3-1985, the wheat was released from the godown under the signatures of the supervisor and not of the appellant. Appellant Sanaullah on oath stated that he was incharge of the godown as well as Muhammad Yousaf who was working as Supervisor in the same godown. He stated that there were two keys of the godown; one was with him and the other used to be in the possession of said Supervisor. He stated that in all the despatch reports, dated 19-3-1985, 20-3-1985, 22-3-1985 and 25-3-1985 the wheat was released by the said supervisor under his signatures. He further a,sserted that the report, dated 25-3-1985 on which he is alleged to have signed is a forged document which does not bear his signatures.
9. ' It is contended by learned counsel for the appellant that the prosecution has failed to prove its case against the appellant at all. Learned counsel for the appellant has seriously challenged the admissibility of the documents Exhs. P.A./1 to P.A/6. His contention was that the documents were photo copies and the original were not produced. According to him, the photo copies could be considered by the trial Court if it had seen the originals and had compared them with the same photo copies. Asserted that there is nothing on the record to indicate why the original documents were withheld by the prosecution. Argues that the said documents could be considered only if an application by the prosecution was moved stating that the original documents were lost, therefore, secondary evidence be allowed. Learned counsel for the State has opposed the contentions.
10. I have heard learned counsel at length and perused the file. Strangely enough, all the documents taken into possession by the Investigating Officer, which otherwise proved the involvement of the appellant beyond any doubt are photo copies. The Investigating Officer has not said a word whether he had seen the original documents and took the photo copies into possession or not. In this respect, the sttement of P.W.2, Abdul Sattar, becomes material who was working during the relevant period in the office of District Food Controller who handed over the documents Exhs.P.A./1 to P.A./6 to the Investigating Officer. In cross-examination, he stated that he just handed over the photo copies of the abovementioned documents. When asked, he frankly conceded that he neither knew where the original documents were nor had seen the same. A perusal of these docuemnts indicates that all of them were sent to the office of the District Food Controller. Had it been so, P.W.1 would have seen the original. There is also not a word on the file as to who got these documents photo copied. In these circumstances, I tend to agree with the contentions of learned counsel for the appellant that under section 63 of the Evidence Act, 1872, secondary evidence can only be produced when original was lost or original was not in custody of the party wishing to produce the same. In the absence of this ingredicnt, secondary evidence cannot be produced in Court.
11. Therefore, I am constrained to hold that the learned trial Court should have attended to this serious question of admissibility of a document. Had he acted carefully, he could have sent for the originals and after comparing the photo copies with the originals should have placed them on the file, which was permissible in law. In these circumstances, while relying upon Muhammad Yameen and 3 others v. The State 1987 P Cr. L J 1576 and Zahoor Ali v. Dr. Haji Abdul Sattar 1987 CLC 2337, I hold that the photo copies of Exhs. P.A./1 to P.A/6 were not admissible in evidence, therefore, the learned trial Court had erred in law by relying upon the same for convicting the appellant. If the said documents arc ruled out of consideration, there is no other evidence which could connect the appellant with the commission of the offence.
12. ' For what has been discussed above, I accept the appeal and set aside the conviction. The appellant is in jail. He shall be set at liberty forthwith if not required in connection with any other case.