' This judgment shall dispose of Criminal Appeals Nos.147, 148, 149, 150, 151, 152, 153, 154 and 155 of 1990, as questions of law and fact therein are identical. In each case the appellant was convicted and sentenced under section 409, P.P.C. To suffer imprisonment till rising of the Court and to a fine of Rs,60,000 (Rupees sixty thousand only) and in case of default in payment of fine to further R.I. For one year. In each case the allegation against the appellant was that while he was posted as Line Superintendent, WAPDA, he had misappropriated the material entrusted to him through store challans. The amount misappropriated in each case is, however, shown as under:-- {{TABLE}} Crl. Appeal Amount misappropriated Store Challan Nos.
No, 147 Rs,48,139.40 1, 2 and 23 148 Rs,48,130.24 29 and 37 Cr1. Appeal No, Amount misappropriated Store Challan Nos.
149 Rs,48,129.84 33 and 35 150 Rs,51,809.28 97, 50 and 58 151 Rs,16,137.87 29 and 94 152 Rs,38,091.71 62 and 54 153 Rs,58,697.91 76, 78 and 95 154 Rs,47,525.24 88 and 89 155 Rs,48,304.21 28, 59 and 99 Criminal Appeal No,147---Siraj Din v. The State {{TABLE}}
2. The essence of prosecution evidence is that on the basis of release order Exh.PA. Material mentioned in the store challans (Exhs.P.B., P.D. And P.F.) was taken in truck vide gate passes which contained signatures of the appellant. Farooq Ahmed, the witness on they subject, however, admitted that he could say so only after going through the gate passes otherwise he did not know who had received the material from him and further that the gate passes were prepared by the Store-keeper and not by him. Other significant evidence is of Shahid Hussain who stated that release order was passed in his office and the material was entrusted to the appellant on three occasions with total worth of Rs,48,139.40 and that he had signed the 'measurement book' in token of the receipt of the material and that he had also prepared the gate passes issued to the appellant.
3. Siraj Din appellant in his statement under section 342, Cr.P.C. Denied the signatures on the challan and the gate passes and maintained that he was just involved in the case to save the real culprits. Muhammad Jamil, Upper Division Clerk appearing in defence of the appellant denied that the material in respect of the disputed challans, was ever evaluated by him. In fact the witness was co-accused with the appellant but was acquitted. He too affirmed that the police had involved him and the appellant to shield the real culprits.
4. The learned trial Court was too much impressed by the statement of Shahid Hussain and sought corroboration of this statement from his own visual comparison. He compared the alleged signatures of the appellant appearing in old record with the disputed signatures of the case and found them similar. And on basis thereof, he passed the impugned judgment, conviction and sentence.
5. Before' dealing with the evidence and contentions raised by the learned counsel for the appellant, I would like to give in brief the procedure of carrying of material from one store to other.
On receipt of ,the release order from the Chief Engineer the "release despatch of the material" is prepared. At the time of supply of the material, a challan is accordingly prepared in quadruplicate and the receiving official enters the detail of the material in a "Measurement Book" in the presence of the Store-keeper. After receiving the material, the receiving official carries the same in an official vehicle and a gate pass is issued containing the number of the vehicle and the name of the driver, who carries the material. Then the receiving official carries the material to his own store where stock cards are prepared by the Store-keeper and the "Measurement Book" is also signed by him in token of the receipt of the material.
6. It was not safe to convict the appellant on solitary statement of Shahid Hussain. The statement was not corroborated by any other witness involved in the affair or other independent source. In fact there was no option for Shahid Hussain but to depose against the appellant otherwise he could be held accountable. Confirmatory evidence was, therefore, essential in circumstances of the case. The specimens of the appellant were taken for comparison but the Handwriting Expert had failed to decipher the signatures as they were on carbon paper. Further the Magistrate in whose presence the signatures of the appellant had been taken failed to identify the appellant as the person whose signatures had been taken. The signatures of the appellant, therefore, could not be proved through Expert evidence.
7. The prosecution evidence is also wanting in that no witness from the sub-division of the appellant where the material was to be deposited, was produced. Misappropriation could only be proved if official of the recipient sub-division had stated that the material was not brought by the appellant. In absence of this evidence, possibility cannot be entirely overruled that the appellant might have deposited the material there. Further I find that the detail of material mentioned in "Electrical Measurement Book" by the recipient does not fully tally with the said store challans.
Further prosecution case is let down by admission of the truck drivers that they had taken the material at the official sites. It appears that the grave omissions in the prosecution evidence were sought to be filled up by the learned trial Court itself who ordered the production of old department record allegedly containing the routine signatures of the appellant and after comparing them with the disputed signatures came to the conclusion that the signatures were similar. The learned counsel for the appellant has rightly pointed out that the official who had brought the old record was not examined nor the appellant was given opportunity to cross-examine him to challenge the genuineness of the said record which was also not shown to the appellant. The old record was neither exhibited nor placed on the record of the case. Above all the record was just brought on the date the judgment was announced, and, therefore, obviously no question was put to the accused at the time of his evidence under section 342, Cr,P.C. About it. Thus, the procedure adopted by the learned trial Court at inopportune time had caused grave miscarriage of justice to the appellant.
The learned State counsel has failed to justify and defend the impugned judgment. The serious doubt existed as to commission of the offence under section 409, P.P.C. The appellant, therefore, being given benefit of doubt is acquitted.
Criminal Appeals Nos.148 to 155 of 1990
8. Abdul Rehman Saleem is accused in all these appeals..The allegation in each case against the appellant is that the material worth mentioned supra was entrusted to him but he had subsequently misappropriated. Shahid Hussain and Farooq had rendered evidence against the appellant in Appeals Nos.148, 149, 154 and 155 of 1990 as in the case of Siraj. Din. In the remaining Appeals Nos.150 and 151 material witness on the subject is Latif whereas in Case No,152 is Ghulam Hussain and No,153 is Farooq. The other witnesses examined have given insignificant evidence. In Cases Nos.150 to 152 there is no direct evidence of entrustment. The witnesses after finding the name of the appellant against column of the recipient, deposed that it must be the appellant who have received the material. The evidence on entrustment in other cases (148, 149, 154 and 155) though rendered direct by Shahid Hussain, however, is too inadequate to further furnish basis for conviction for all the reasons set out in the case of Siraj Din. In fact the cases of the appellant are on better footing as no specimen signature had been taken from him for comparison. Thus, there is no evidence of expert or the Magistrate. Even release order is available only in Cases Nos.148 and 153 whereas in other cases even this document was not brought on record, Similarly release order of despatch material which is prepared by the officials on the basis of release order existed only in Cases Nos.148 and 153 and 155 and not in other cases. The gate passes were not produced at all. It appears that the learned Special Judge somehow thought the appellant to have hand in the commission of the offence but not finding any evidence on record justifying conviction summoned the old record on the date of commencement of judgment and by comparison old routine signatures of the appellant with the disputed signatures, came to A ready conclusion that the appellant was proved to have received the material. But in the process he trampled the requirements of law. I have stated the reasons discrediting this course of the learned trial Court while dealing with the case of Siraj Din. All the grounds mentioned for acquittal of Siraj Din are also available to the appellant. The prosecution has miserably failed to bring home the charges under section 409, P.P.C. Against the appellant in all the said cases.
9. For reasons aforementioned, the impugned judgment, conviction and sentence is set aside and the appeals are accepted. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.