' MUHAMMAD ISHAQ KHAN, J.--- This State appeal has been directed against the judgment, dated 21-6-1983 of Sardar Muhammad Raza Khan, sessions Judge/Judge Anti-Corruption, Peshawar, whereby he acquitted Attaullah Khan, accused-respondent, of the charge under section 409, P.P.C.
Read with section 5(2) of the Prevention of Corruption Act.
2. Briefly stated, the facts of the case are that Attaullah Khan accused-respondent, being an Inspector in the Customs Department, was the Incharge of Sector 'A' in the Customs Ware House at Peshawar. On his transfer from the Customs Warehouse, there was found some shortage in the seized goods lying in Sector 'A' of which he was the Incharge. Accordingly, he was found guilty of the offence punishable under section 409, P.P.C. Read with section 5(2) of the Prevention of Corruption Act and a case was registered against the accused respondent vide F.I.R. Exh.PA. After obtaining due sanction from the concerned authority, the F.IA. Submitted challan against Attaullah accused in the Court of Mr. Abdul Wahid Seth, Special Judge (Central) Anti-Corruption, Peshawar.
The learned Special Judge found the accused guilty of the charge, convicted and sentenced him to 7 years' R.I. With a fine of Rs,5 lacs or in default to undergo further imprisonment for 2 years vide his judgment dated 28-2-1982.
3. On appeal before the High Court, the conviction and sentences of the accused-respondent were set aside and the case was ramanded to the trial Court with the direction to hear the arguments of the learned counsel for the parties afresh. After the remand the case came to the Court of Mr. Sardar Muhammad Raza, Sessions Judge/Judge, Anti-Corruption, Peshawar who after recording supplementary statement of the accused-respondent under section 342, Cr.P.C. Heard the arguments of the learned counsel for the parties and acquitted the accused-respondent of the charge per his impugned judgment.
4. The prosecution examined as many as 6 witnesses against the accused-respondent. P.W.1 is Mr. Ziauddin Khan, Deputy Superintendent, Customs who was posted as such at the Customs State Warehouse, Peshawar on 24-10-1979. He has disclosed in his statement that he was on leave on 2nd and 3rd of February, 1980 and during his leave, Laeeq Inspector relieved Attaullah accused from the duties. He has further stated in his statement that the Warehouse has four walls with a main gate through which the articles come in and taken out. If some big case is detected the articles can be brought in the Warehouse after office hours but nothing can be taken out from the Warehouse after office hours. He has further deposed that a register is kept at the main gate in which the Articles which are sent for the Warehouse are entered and at the time of taking out any thing an entry is also made in the same register. This P.W. Has also disclosed in his statement that Martial Law Authorities had sealed the Warehouse, for about a week but no checking was done by them.
5. The next prosecution witness is P.W.2 Muhammad Nawaz, Assistant Collector Customs, who was posted as an Assistant Collector at Peshawar from March, 1979 to November, 1980. In his statement before the Court he has stated that Attaullah accused was Incharge of Sector 'A' in the Warehouse.
The accused used to be absent from the office usually. He has further stated that when Sardar Ali Inspector, who was to take charge from the accused, complained about the accused, he asked him to check the stock. In his cross-examination he has stated that except Sardar Ali no one checked the stock lying in Sector 'A'. He has further disclosed that whenever some stock was found missing, he did not give notice to the accused to come and explain nor any action was taken as it was not necessary.
6. Laeeq Ahmad, Inspector, also appeared before the trial Court as P.W.3 against the accused- respondent and stated that he and Attaullah had been working in the same Warehouse for some time. The accused was Incharge of Sector 'A'. He was transferred in August, 1979 and Mr. Sardar -Ali was to take charge from him.
7. The most important witness for the prosecution is Sardar Ali, Inspector, P.W.5, who was posted as Inspector Customs State Warehouse, Peshawar in August, 1979 in place of Attaullah accused. He has stated in his statement that Attaullah accused gave him physical charge of the registers, Exh.P.1 to Exh.P.5 and itemwise charge was not given to him by the accused. He has further disclosed that what was lying in the Warehouse and physically in possession of the accused was taken over by him but the same was not tallied with the entries of the registers. Subsequent to this, he verified the articles lying in the Warehouse of which he was given physical charge by the accused. He admitted it to be correct that some stock lies in front of the godown in a room occupied by the Deputy Superintendent who was then Ziauddin P.W. He further admitted that there is pending a departmental enquiry against him in which the accused is a witness against him.
8. The last witness of the prosecution is Fazle Malik Khan, Inspector F.I.A., P.W.6, who registered the case against the accused-respondent vide F.I.R., Exh.PA.. In his statement he stated that he did not check the godown physically. He further admitted that at the main gate of the Warehouse a register is maintained in which entries are made regarding articles which are taken from the warehouse, but he did not take the said register into possession nor the entries thereof and also did not record the statements of the officials who maintain the said register.
9. From the above state of evidence obviously the dominion over the property was shared by 3 persons as the handing and taking over of the charge took place among accused-respondent Attaullah and Laeeq Ahmad, who in his turn handed over the charge to Sardar Ali P.W.5. It is further a matter of record that no physical checking of the goods lying in the godown had taken place even after relinquishment of the charge by the accused-respondent except the nominal checking at a belated stage by Sardar Ali to which no importance can be attached because of his hostility towards the accused due to the fact that accused-respondent is a witness against him in a similar inquiry.
10. According to prosecution's own evidence nothing can be taken out of the Warehouse after office hours and during office hours too taking out of the goods would be subject to entry in the register kept at the main gate. Despite the fact that there is register on the main gate of the Warehouse, the entry of goods mentiened in Exh.P.C. And Exh.P.D. Have not been proved and thus the lack of proof of entry of the goods in question would seriously affect the dominion over the said property. Furthermore, Exhs.P.C. And P.D. Are dated 4-5-1980, on which date the accused- respondent was not present as he had relinquished the charge much earlier than 4-5-1980.
11. Admittedly, the case against the accused-respondent was with regard to shortage of goods but the papers regarding handing and taking over the charge have not been brought on the record of this case, which fact also seriously casts doubt over the case of the prosecution.
12. So far as the criminal breach of trust is concerned, no ingredients of section 405, P.P.C. Have at all been proved. It was for the prosecution to prove that the stock in the custody of the accused- respondent not only suffered from shortage but that it was misappropriated personally and physically by no one else but the accused. From the evidence on record except the shortage of goods nothing can be proved against the accused-respondent. In Syed Mustafa Shah v. State 1968 P Cr. L J 358 it has been held that:-- "Criminal misappropriation -- Mere entrustment of property to accused and its shortage -- Not enough to establish guilt of dishonest misappropriation."
' The same principle has been pronounced in Abu Saleh Chaudhry v. The state 1970 P Cr. L J 707 and Syed Muhammad Rizvi v. The'State 1973 P Cr. L J 1015.
13. Keeping in view the aforesaid facts and circumstances of we case, admittedly the prosecution has failed to establish its case against the accused-respondent beyond any shadow of reasonable doubt and the learned trial Judge has rightly extended the benefit of doubt in favour of the accused-respondent.
' The findings of the learned trial Judge being not arbitrary, the appeal in hand liable to be dismissed and we order accordingly.