' The appellant alongwith Shafiullah, Store-Keeper and Nadir Khan, Assistant Food Controller was tried by Malik Muhammad Afzal, learned Special Judge, Anti-Corruption, Sargodha, who vide his judgment dated 18-3-1989 convicted and sentenced the appellant Shariful Haqe under section 409, P.P.C. to rigorous imprisonment for 9 months plus a fine of Rs,10,000 and in default of payment thereof to undergo further R.I. for 3 months. The learned Special Judge had acquitted the co- accused Shafiullah and Nadir Khan.
2. On 15-5-1983 Muhammad Ashraf, M.I.C. (P.W.6) received information that from the godown of Food Department at Mari Indus, wheat was to be supplied by Shafiullah accused, Store-Keeper to Afghan Refugees' Camp. There were complaints that less in weight bags of wheat were being supplied to the Afghan Refugee Camps. On this two loaded trucks Nos.10332 and 11004 driven by Hayat Muhammad and Sultan Khan drivers with 120 bags of wheat and 20 bags of sugar were intercepted in the way by P.W.6, Muhammad Khan, Inspector (P.W.5), Ijaz Hussain, S.I , (P.W.1) and Shah Nawaz, Head Constable, (P.W.3) at Chowk Sikandari. The trucks were taken back by the raiding party to the Mari Indus godown and in presence of the appellant, the wheat and sugar were weighed, and it was found that 52 bags did not contain 95 K.Gs. of wheat per bag and the total weight of the wheat was 4,337 K.Gs. instead 4,940 K.Gs. and thus there was shortage of 603 K.Gs. of wheat from truck No,11004. The wheat bags in truck No,10332 were unloaded and weighed. It was found that 12 bags of wheat contained 987 K.Gs. of wheat instead of 1,140 K.Gs. of wheat and the shortage of 153, K.Gs. of wheat was found. Statement of appellant Shariful Hague Exh.PF was recorded and he admitted the shortage in weight of wheat supplied in the morning and Shafiullah Khan, Store-Keeper (acquitted accused) had gone back after delivering the receipt Exh.P1.
Regarding the quantity of wheat received by him vide memo. Exh.PGG pertaining to shortage in truck No,11004 and memo Exh.PHH pertaining to shortage in truck No,10332 were prepared, which were also attested by the appellant. P.W.6 Muhammad Ashraf Nauria, M.I.C. drafted complaint Exh.PA and sent the same to Police Station Daudkhel, where formal F.I.R. /Exh.PA/1 was recorded by P.W.2 Muqarrab Khan, A.S.I.
3. At trial the prosecution examined seven prosecution witnesses in all to substantiate its case. The appellant when examined under section 342, Cr.P.C. denied the prosecution evidence and in answer to a question had replied that he had entrusted the wheat with correct weight to Shafiullah, co-accused (acquitted) after obtaining a receipt in writing by him. The appellant had produced in defence Exhs.DA, DB, DC and closed his evidence, but had not made statement on oath as envisaged under section 340(2), Cr.P.C.
4. It is on the record that nobody had witnessed the appellant taking out the wheat which was found short from the bags and moreover no excess wheat was found in the go down. The appellant had issued a receipt Exh.P1 to Shafiullah (acquitted accused) about the full weight of the wheat.
Shafiullah (acquitted accused) was Store Incharge who had received the wheat and sugar bags.
The trucks were intercepted at a distance of 2 miles from the godown where those were loaded and the possibility cannot be ruled out that either the short wheat was taken out from the bags on the way by the Afghan labourers found present in the two trucks by the raiding party, or by the truck drivers Sultan and Hayat, P.Ws. but not produced. The case property was also not produced in the Court at the time of the trial. Two inquiries were conducted by the Food Department, in which the appellant was exonerated. There is no evidence on record that the appellant dishonestly misappropriated the wheat found short and also deliberately allowed some one else to do so.
5. The upshot of the matter is that the Crl. Appeal is allowed and the sentence of imprisonment plus fine awarded to the appellant is set aside and he is acquitted of the charge. The appellant is on bail, his bail bonds are discharged.