This is an appeal against the judgment of Malik Muhammad Afzal Special Judge Anti-Corruption, Sargodha whereby he convicted and sentenced the appellant under section 409 P.P.C. Read with 5(2) of Prevention of Corruption Act, 1947 to R.I. For six months and a fine of Rs.5,000, or in default of payment of fine to further R.I. For two months.
2. Briefly the prosecution story is that on 18-9-1982, Anti-Corruption Establishment organized a raid on Ashiq Hussain Shah Senior Clerk and Mehboob Ahmad Divisional Accountant of WAPDA for acceptance of an illegal gratification of Rs.500 and the case was registered vide F.I.R. No.51 dated 18-9-1982 under section 161 P.P.C. And 5(2) of Prevention of Corruption Act, 1947. The above named public servants were employees of Federal Government and the record prepared by Anti- Corruption Establishment was to be sent to Deputy Director F.I.A. Lahore for further action in the matter. Accused Khan Muhammad was Junior Clerk in the office of Anti-Corruption Establishment Sargodha and Muhammad Sher (P.W.2) was orderly constable. According to entry No.2221, dated 16-10-1982 Exh.P.C./1 in despatch register Exh.P.C. The record of F.I.R. No.51/82 was shown to have been sent to Deputy Director, F.I.A. Later on, on enquiry by WAPDA, it was learnt that the record did not reach in the office of Deputy Director F.IA. Ch. Muhammad Amin Khalid (P.W.4) was appointed as an Enquiry Officer and he in his report Exh.P.E. Held accused Khan Muhammad responsible for loss of the file. In the light of enquiry report Exh.P.E. F.I.R. Exh.P.F. Was recorded on 25-i1-1986. Abdul Hafeez (P.W.5) then Inspector A.C.E. Region received the file for investigation and on 25-1-1987 he secured the despatch register Exh.P.C. And stamp register Exh.P.D. Vide memo. Exh.P.G. The specimen handwriting of Muhammad Sher (P.W.2) on sheets Exh.P.A. To Exh.PA./8 was obtained in the presence of Mehr Zulfiqar Ali (P.W.1) M.I.C. On 25-1-1987. On the same day specimen handwriting of accused Khan Muhammad on sheets Exh.P.B. To Exh.P.B./8 was obtained and these were sent to the Forensic Science Laboratory. The report Exh.PJ. Was received and after necessary investigation the challan was submitted in the Court on 20-6-1988.
3. The prosecution in support of its case, produced five witnesses whereas the appellant appeared as his own witness and examined Muhammad Aslam, Stenographer as D.W.1.
4. The learned trial Judge believing the prosecution evidence, convicted the appellant under section 409 P.P.C. And gave him the sentence mentioned above.
5. The learned defence counsel contended that the prosecution has failed to prove the most important ingredient of the offence that the lost file was in the exclusive possession of the appellant. On the contrary, a careful reading of the prosecution evidence especially evidence of Muhammad Sher P.W.2 shows that the appellant and Sher Muhammad P.W.2 were performing the function of Record-keeper and Despatch Clerk respectively with mutual consent, as there was no specific office order on the record whereby the office work was divided between them. The defence of the appellant is plausible and reasonable that in routine the appellant made Entry No.2221, dated 16-10-1982, in despatch register Exh.P.C. And handed over the files to Muhammad Sher P.W.2 alongwith other file on 16-10-1982, then the disputed file got misplaced somewhere. Thereafter Muhammad Sher (P.W.2) in order to save his own skin made the appellant a scapegoat, and placed all the burden on him. The learned trial Judge being influenced by the past conviction and conduct of the appellant, readily believed the prosecution version without any evidence, and the appellant was convicted solely on the evidence of his so-called bad reputation, and the tainted evidence furnished by the highly interested witness, that is Muhammad Sher (P.W.2) without any corroboration on the record.
6. The learned State counsel supported the impugned judgment.
7. I have minutely examined the record of the case with the able assistance of learned counsel for the parties. I find substantial force in the submission of the learned defence counsel that the prosecution has failed to prove that the appellant was in exclusive possession of the disputed file, as Muhammad Sher (P.W.2) is not a reliable witness. From his evidence, it is apparent that there was no allocation and division of the work between them, both of them used to help each other in the discharge of their official duties as Junior Clerks in he office of Deputy Director, A.C.E., Sargodha.
Muhammad Sher seems to be untruthful witness as it has been proved from the record that he was present on his duty on 16-10-1982 though denied by him when the file in dispute got lost. He made all the entries dated 17-10-1982 in the Stamp Register Exh.P.D., in spite of that Muhammad Sher (P.W.2) did not bring this fact immediately to the notice of the superior officers for holding proper departmental enquiry inthis regrd to fix the responsibility for the loss of the file on the delinquent, in the presence of entry Exh.P.C./1 dated 16-10-1982 in the Despatch Register. This conduct of Muhammad Sher (P.W.2) leads to two possibilities, either the appellant did ot hand over the file in question on16-10-1982 after making entry Exh.P.C./1 to Muhammad Sher (P.W.2) his colleague while sharing work of the office with him or Muhammad Sher misplaced the file after its receipts and did not bring this fact to the notice of any of the responsible officers due to the fear that he may not be himself involved in this case. He remained silent till such time the enquiry was initiated with regard to its loss, then he immediately shifted his burden on the shoulder ofthe appellant taking advantage of entry Exh.P.C./1 made by the appellant in routine, exploiting the past reputation of the appellant, as the appellant was ready involved in such like cases and this fact by itself greatly influenced the find of the learned trial Judge while delivering the impugned judgment, as is apparent from the following observation appearing in the judgment:- "The defence evidence of the accused also shows that Muhammad Sher (P.W.2) is a gentleman and accused is a previous convict and many files were recovered from his possession during investigation".
8. In the presence of the above referred evidence the appellant richly deserves acquittal, as burden of proving the guilt of the accused always remains n the prosecution, if any doubt is created in the prosecution case, then benefit f doubt must be given to the accused.
9. In view of the above discussion, I find the prosecution has failed to rove its case against the appellant beyond reasonable doubt, hence this appeal s accepted. The conviction and sentence of the appellant is set aside by extending him the benefit of doubt. The appellant is on bail, he is discharged from his bail bond.