Muhammad Mansha appellant, who at the relevant time was a Field Assistant of Agricultural Department, was tried by the Senior Special Judge Anti-Corruption, Lahore, on the charge that during the period from 3-12-1981 to 25-9-1982, when he was posted as Field Assistant in Halqa Bahadurpura, District Kasur, had misappropriated Government stores in the form of pesticides worth Rs.5,612.
2. On the conclusion of the trial, vide judgment, dated i9-3-1988, he was convicted under section 409, P.P.C. And sentenced to two years' R.I. And a fine of Rs.5,000 or in default to further undergo six months' R.I. He was given the benefit of section 382-B, Cr.P.C. Feeling aggrieved, he has come up in appeal to this Court.
3. It is argued on behalf of the appellant that though during the trial he had taken up the position that he had accounted for the shortage of pesticides but he could not substantiate his plea by documentary evidence. According to the learned counsel, in a connected matter involving the alleged misappropriation of Rs.22,685, he was acquitted by the same learned Judge on the ground that during the investigation he had succeeded in accounting for the missing articles and the only deficit was of a negligible amount of Rs.201 for which he was not considered indictable. It is urged that the appellant in his defence had brought on the file a photostat copy of the F.I.R. About the theft of certain pesticides by some one during his incumbency but it was not considered by the learned trial Judge for the reason that it had not been duly proved. Finally, it is urged that despite all this if his conviction is to be maintained, he may be dealt with leniently in the matter of sentence as he has already lost the job and the incident is about a decade old.
4. The appeal has been opposed on behalf of the State on the ground that despite efforts on the part of the appellant to shift his responsibility to certain higher officers, eventually he had to concede that he was unable to account for stores worth Rs.5,612.
5. The appellant was un-represented before the trial Court. He states that on account of poverty he could not engage a counsel. The learned counsel now appearing on his behalf says that he has not charged anything from him and if the case is remanded he shall defend him gratis. In view of the circumstances explained by the appellant and his counsel it appears that he could not properly defend himself before the trial Court on account of lack of legal assistance and in the interest of justice he needs to be afforded an opportunity.
6. Resultantly, the appeal is accepted, the conviction and sentence of the appellant are set aside and the case is remanded to the learned Senior Special Judge, Anti-Corruption, Lahore for his retrial and redecision in accordance with law. The learned Judge shall provide adequate opportunity to the appellant to explain his position and lead further defence, if any.
S.A./M-226/L