' KHAWAJA MUHAMMAD SAEED, J.---This is an appeal against the order of acquittal passed by the learned SDM/MIC, Bagh on 1st October, 1988, whereby he acquitted the accused-respondent of the charge levelled against him under section 406, A.P.C.
2. The instant case arose out of a written report made by Muhammad Asif Qazi, Divisional Manager, Utility Stores Corporation, Islamabad, addressed to D.I.-G. Police wherein it was contended that accused respondent was posted as Salesman/Incharge Utility Store No,ID-30 Bagh Azad Kashmir.
His Store accounts for the period from 5th May, 1983 to 30th June, 1983 were prepared which revealed shortage of stock worth Rs,99,587.40. The accused-respondent was ordered to hand over the charge of the said store to Mr. Muhammad Sharif (P.W. 7) Assistant Salesman and thereafter to report to the Divisional Manager, Islamabad (complainant) to get his accounts reconciled with the Accounts Officer at Divisional Office Islamabad. Accordingly, the accused-respondent handed over the charge of the store to said Muhammad Sharif on 30th June, 1983. But instead of reporting to the Divisional Officer, he absconded. It was further mentioned in the report that Mr. Javed Manzoor Ghauri, Area Manager of this division (P.W. 2) is authorised to get the case registered with you with reference to this letter. This written letter was found sufficient to register a case under section 406, A.P.C. Against the accused-respondent. Later on, after necessary investigation, a challan was presented before Ist Class Magistrate who, on the relevant date, was also functioning as SDM, Bagh.
3. In this case, on the denial of the charge on behalf of the accused-respondent, the prosecution was directed to produce evidence in support of its version. In compliance of the order of the Court, the prosecution produced Muhammad Jaafar Delivery Clerk, Javed Manzoor Ghauri, Area Officer, Head Office Islamabad, Muhammad Asif Qazi, Divisional Manager Utility Stores Corporation Lahore, Mahboob Ellahi Driver, Muhammad Aslam Delivery Clerk, Islamabad, Muhammad Sharif who took charge from the accused-respondent as Salesman on 30th June, 1983 and Javed Iqbal S.H.O. Bagh.
Thereafter, after the conclusion of the trial, the trial Court, vide impugned order passed on 1st October, 1988, acquitted the accused-respondent of the charge levelled against him.
4. We have heard the learned counsel for the parties and have gone through the record with their help.
5. It was contended by the learned Additional Advocate-General that provisions of section 342, Cr.P.C. Were not complied with as material questions, in the light of the report submitted by police under section 173, Cr.P.C. Were not put to the accused-respondent. He further submitted that it was proved beyond any shadow of doubt from the evidence of Muhammad Jaafar, Delivery Clerk and Mahboob Ellahi Driver and Muhammad Sharif, Salesman that the accused-respondent who was incharge of Utility store No, ID-30 Bagh, had misappropriated the Store accounts amounting to Rs,99,587.40.
6. As against this, it was contended by the learned counsel for the accused-respondent that the prosecution has failed to prove that the accused-respondent was entrusted with the property valuing Rs,1,42,000 and that he misappropriated any portion of it or converted it to his own use as neither entrustment of property amounting to Rs,1,42,000 was proved from any evidence nor any of the audit reports prepared, was produced by the prosecution. Even any member of the audit party was neither cited nor produced in support of the accusation.
7. So far as the first objection of the learned Additional Advocate-General is concerned, in our view, this point cannot be raised by the prosecution, as the object of questioning the accused by the Court under section 342, Cr.P.C. Is to enable him to explain any circumstances, appearing in the evidence of the prosecution, against him. But if the trial Court is of the opinion that the evidence led by the prosecution disclosed no ground, it is not necessary, in the circumstances, that the trial Court should put questions to the accused-respondent to explain the circumstances mentioned in the police report. Even if otherwise, if any material question was not put to the accused-respondent which had prejudiced his case, it is only the accused-respondent who has a right to raise the objections in this regard. Therefore, the objection in this regard raised by the learned Additional Advocate-General is found without force which stands repelled.
8. The prosecution case, as argued by the learned Additional Advocate-General rests on the evidence of the witnesses mentioned in the early part of this order. The learned trial Court who had the advantage of recording the evidence of these witnesses and watching their demeanour in the witness box, did not consider it safe to rely on their evidence.
9. In the present case, in the light of the arguments of the learned counsel for the State, it is found advantageous to mention the gist of the evidence of the above-mentioned three witnesses.
10. Muhammad Jaafar, Delivery Clerk, Divisional Office, Islamabad (P.W. 1) has stated that certain items of goods were sent from Islamabad to Bagh and those articles were entered in the relevant register. He has not said anything that in fact the articles purported to had been sent from Islamabad were in fact received by the accused-respondent. According to the statement of Javed Ghauri (P.W. 2) he got checked the accounts of this branch from some audit party. He further stated that according to the audit party, on 30th June, 1983, stock worth Rs,1,42,000 should have been lying in the Store at Bagh, whereas in the Store according to this audit report, stock worth Rs,42,512.80 was lying. According to this witness, on 30th June, 1983, he got the charge of the stock from the accused-respondent and handed it over to Muhammad Sharif, Assistant Sales-man.
According to the version of Mahboob Ellahi Driver, on 30th June, 1983, the property lying in the said store was entrusted to the accused-respondent. In cross-examination he had admitted that from 1982, 8 to 10 items as Driver of the Utility Store, he brought certain items of commodity from Islamabad for Utility Store, Bagh. He also admitted that he used to take receipts from Salesman.
Few times, he delivered goods even to accused-respondent as Salesman of the Utility Store Bagh and got receipt from him. He also admits that all those receipts given by the accused-respondent, were given back by him to Incharge Utility Store Corporation at Islamabad. He admitted that those receipts which he got from the accused-respondent were not available even today with challan file nor they were shown to him. When asked as to whether any articles of commodity from 5th May, 1983 to 21st May, 1983 were brought by him for Utility Store Bagh and the accused-respondent was entrusted with the same, he replied that he was not sure that the items of grocery for Utility Store at Bagh were brought by him during this period.
11. The witnesses are not disclosing any material worth consideration against the accused- respondent. In the light of the police investigation, the prosecution was to prove that on 5th May, 1983, certain items of grocery worth Rs,80,978.25 were given in the custody of the accused- respondent. Then on 17th May, 1983, certain other grocery articles of the Store worth Rs,60,626.20 were given into the charge of the accused-respondent. Again the accused-respondent was entrusted with the property valuing Rs,72,686.25 on 21st June, 1983. Prosecution was further to prove that per report of the audit party, the accused-respondent had embezzled an amount of Rs,99,587.40 as in the Store, on the relevant date, different articles worth Rs,42,512.80 were found lying.
12. In the light of the above-mentioned evidence we came to the conclusion that the trial Court has properly weighed and appreciated the evidence. We also affirm the view of the learned trial Court that the discrepancies in the evidence of the P.Ws. Clearly show that the case of the prosecution was false.
13. We also endorse the view taken by the trial Court that in the present case, the evidence against the accused-respondent was too scanty and insufficient. Some material evidence both documentary and oral was withheld.
14. As noticed earlier, it has not been proved by the prosecution that the accused-respondent was entrusted with stock amounting to Rs,1,42,000 as no witness was produced to this effect. In the light of the evidence of Mahboob Ellahi Driver the receipts which were taken by him from the accused- respondent after delivering the goods to him were lying with the department. But these receipts were not produced or even shown to him, at the time when his statement was recorded. It is also the case of the prosecution that audit of this Store was conducted by some audit party. Neither audit reports nor any member of the audit party was produced in support of this assertion.
According to the statement of Muhammad Sharif (P.W. 7), at the time of taking over of the charge of the Store, he was given stock worth Rs,42,512.80 to his custody. He further states that:-- {{URDU TEXT}}
15. No doubt the prosecution was not bound to produce all the witnesses, however, if material witnesses were not cited or produced and the addit reports were withheld without any satisfactory explanation, no alternative was left with the trial Court but to presume that such documentary or oral evidence would not have supported the case of the prosecution.
16. In this background the trial Court has rightly held that the case against the accused-respondent was without any foundation. It was opined in a case reported in PLD 1960 Azad J&K 1 as under:-- "Government should not file appeals against orders of acquittal simply on the ground that they do not see eye to eye with the Judge, who passed the order of acquittal, unless there has been a grave failure of justice. High Courts are very reluctant to interfere with the orders of acquittal.
Unless the order is perverse and foolish, orders of acquittal cannot be lightly set aside. Before an order of acquittal is reversed, it must be shown that the judgment of the Sessions Judge was unreasonable or manifestly wrong. If two conclusions are equally possible, an order of acquittal should not be set aside. The High Court should not interfere with an order of acquittal simply on the ground that sitting as a trial Judge, they would have come to a finding different from that of the Judge passing the order of acquittal. While hearing appeals from the orders of acquittal, the High Court should look to the grounds on which the order of acquittal is based and if they are unreasonable or wrong in law then, of course, the High Court should interfere."
17. In the light of what has been stated above, in our view, the prosecution has miserably failed to establish that the offence under section 406, A.P.C. Was committed by the accused-respondent.
Therefore, the appeal is without any substance which stands dismissed.