ABDUL QADEER CHAUDHRY, J.---Leave to appeal was granted to the appellant to consider his contention that seven persons who were originally co-accused in the case having been produced by the prosecution in support of its case, they were probably persuaded to support the prosecution case in order to get themselves exonerated.
2. The facts, in brief, are that the appellant alongwith co-accused Abdul Aziz and seven others were sent up for trial under sections 406 etc. Read with section 5(2) of the Prevention of Corruption Act, 1947. During the trial, the seven co-accused were acquitted under section 249-A, Cr.P.C. And the trial continued against the appellant and Abdul Aziz who is since dead. According to the prosecution case, Abdul Aziz, Security Officer, of the Government Printing Press, Lahore, received in five instalments stereo-plates. The appellant was posted as Store Keeper of the Press at that time.
The aforesaid Abdul Aziz delivered certain quantity of lead of stereo-plates to the appellant. The allegation of the prosecution was that there was shortage of 3,442 lbs. The trial Court while considering the case against the appellant observed in para. 8(2) as hereunder:- "Abdul Aziz accused brought the stereo-plates from time to time and placed the same in the store under the supervision of Abdul Rehman accused and handed over the invoices to him. He allowed the stereo plates to be placed in the store and received the invoices without getting the stereo- plates weighed on each day, which in itself speaks of his bona fides. The first consignment was received on 10-3-1976 and the last consignment was received on 14-4-1976. He handed over the stereo-plates weighing 11,879 lbs. In all to Muhammad Jamil PW and obtained receipt for 11,954 lbs.
From Muhammad Nazir PW. Stereo Foreman, on 22-4-1976. Although Abdul Aziz accused did not obtain his signatures on the disputed invoices as acknowledgment of receipt of the stereo-plates yet he cannot escape from the responsibility of the shortage. He had dominion over the property in question which remained in his physical possession for a considerable time. In the absence of any satisfactory explanation to the contrary, it will be presumed that the stereo-plates were misappropriated by him. He is, therefore, guilty of offence of criminal breach of trust."
The learned High Court while rejecting the appeal of the appellant has stated as follows:- "I have considered the arguments advanced by the learned counsel for the parties with care. I find that from the oral as well as documentary evidence produced by the prosecution as detailed above, the offence of criminal misappropriation/criminal breach of trust of 3,448 lbs. Of lead metal stands proved against the appellants. The prosecution witnesses have no enmity against the appellants. They have stood the test of cross--examination. I do not see any inherent infirmity in their statements. The plea taken by Abdul Rehman appellant that unmounted lead which was entrusted to him was got unmounted before reweighment, appears to be afterthought, inasmuch as, in his reports of shortage of Exs.PA. & P.B., he did not state so. Further, the weight statement report Ex.PM shows that the weight of different lot of stereo-plates had separately been mentioned.
Thus, no room is left for doubt that mounted and unmounted plates were not weighed jointly and that wooden planks were not removed from lead before reweighment. It is worth notice that ExPM was prepared by DW.2. The defence evidence in support of an afterthought plea of Abdul Rehman cannot be believed. From the circumstances, it is very much clear that Abdul Aziz was equally responsible for the commission of crime, so much so, he did not care to obtain receipt of lead plates from Abdul Rehman appellant after its transportation from the Forms Press to Government Printing Press. The defence evidence produced by the appellants is not strong enough to rebut the prosecution case and its evidence. For all these reasons, I am convinced that the trial Court has rightly convicted the appellants."
3. The appellant was convicted on the statements of PWs 2 and 5. According to PW(5), he had submitted weighment report (Ex.PG) and a comparative statement (Ex.PG/1) after the weighment was made in the presence of Muhammad Bashir, Reader, and Abdul Aziz, accused. He admitted that weighment was not made in accordance with invoices. At that time lead was not available in the store but it was lying in the stereo section. The statement of this witness only indicates that there was some shortage of lead but nowhere this witnesses has stated that the appellant was responsible for shortage or that the goods had been entrusted to him. PW(2) Muhammad Siddique in his deposition has stated that after making weighment, the lead was delivered to the appellant Abdur Rehman. He was confronted with his previous statement recorded by the police under section 161, Cr.P.C. Wherein he has not stated that the goods were delivered to the appellant. He also admitted that it did not come to his knowledge that there was shortage. This witness has further admitted that the signatures of the appellant were not obtained at the time of delivery. This witness has admitted that he was Caretaker under the accused Abdul Aziz, Security Officer. He has tried to save Abdul Aziz and placed the burden on the appellant but in his earlier statement to the police, he had not implicated the present appellant.
4. Another circumstance against the appellant is that he had reported to the higher authorities about the shortage. But this itself would not prove that the appellant had misappropriated the lead. Certain circumstances were not considered by the Courts. According to PW(5) Abdul Rashid Javed, there was shortage of 3,072 lbs. (Ex.PG/1). The matter was referred to the Manager, Forms Press from where the stereo-plates were transferred to the Printing Press. He submitted his report (Ex.PS). According to this document, while weighing the material at the Government Press, they have ignored to deduct 25% rebate for wood used in the block made from the total weight of the material supplied through various invoices. It has been contended by the learned counsel that if the concession of 25% is given there was no shortage. This fact is supported by PW(1) Muhammad Jamil who had stated that the lead when weighed without wood was about 11,000 Ibs. In fact, he had received 11,503 lbs. Of lead vide Ex.PA/2. Ashiq Hussain DW.2 received the report (Ex.PH) given by the appellant and he was one of the accused in this case but was acquitted under section 249- A, Cr.P.C. This witness stated that the lead was weighed in his presence and there was no shortage.
Even if we ignore the statement of this witness, there is no positive evidence against the appellant that the goods were entrusted to him. Unless the entrustment is proved, the question of misappropriation does not arise. The inferences drawn by the Courts below are unwarranted. The learned Special Judge in Para. 8(2) of his judgment observed that Abdul Aziz placed the goods in the store under the supervision of Abdur Rehman accused and handed over the invoices to him.
There is no evidence that invoices were handed over to the appellant. This observation is perhaps made on the statement of PW(2) but as stated above, the statement of PW.2 cannot be used against the appellant for the reasons stated above. The entrustment has not been proved. The trial Court in the same para. Further observed that although Abdul Aziz accused did not obtain his signature on the disputed invoices as acknowledgment of receipt of the stereo-plates yet he cannot escape from the responsibility of the shortage. This was only a presumption and an accused cannot be convicted on presumptions. The prosecution has to prove the guilt of an accused beyond all reasonable doubt. Abdul Aziz accused in his statement undo: section 342, Cr.P.C. Has stated that he had delivered the goods to the appellant but the statement of the accused Abdul Aziz cannot be used against the appellant as he has not implicated himself and shifted the burden on to the appellant. PW(8) Muhammad Nazeer was also Caretaker at the relevant time. He has stated that the goods were brought by Abdul Aziz but he has not deposed that the goods were entrusted to the present appellant. He has also admitted that the lead was not weighed therefore PW(2) is contradicted by PW(8).
5. It was observed against Abdul Aziz that "the evidence of Siddiq Ahmad PW(10) coupled with the acknowledgments PF/A, PF/2A and PF/3A on the invoices and the reports Ex.DC of Abdul Aziz accused and his admission in his statement under section 342, Cr.P.C. With regard to receipt of the stereo-plates on the disputed invoices leaves no doubt that the stereo-plates in question were received by Abdul Aziz accused from Siddiq Ahmad PW. It was his duty to discharge the trust in accordance with law and deliver the material to Abdul Rehman accused under proper receipt. He intentionally omitted to obtain the receipts from Abdur Rehman while placing the stereo-plates in the store and handing over the disputed invoices to him. He thus failed to discharge the trust and wilfully offered to misappropriate the stereo-plates. In the circumstances, he is also guilty of the offence of criminal breach of trust". Thus, the learned Judge came to the conclusion that Abdul Aziz had received the goods.
6. From the above observation, it is clear that no evidence of entrustment to Abdul Rehman has been established. The High Court has observed that "the plea taken by Abdul Rehman appellant that unmounted lead which was entrusted to him was got unmounted before reweighment appears to be an after thought inasmuch as that in his reports of shortage Exs.PA. And P.B. He did not state so is not based on any material on record". The appellant has not admitted that the lead was entrusted to him. As such no inference prejudicial to the case of the appellant could be drawn in the circumstances of the case.
7. In view of the above discussion, it is quite clear that the prosecution has not been able to prove the entrustment of goods to the appellant beyond all reasonable doubt. Therefore, the appellant could not be convicted for misappropriation of goods even if we ignore the report of the Manager, Forms Press, which shows that there was no shortage.
8. In the result, this appeal is allowed and the conviction and sentence of the appellant are set aside. If he is in custody, he shall be released forthwith if not required in any other case.