' Muhammad Shaheen Tariq, Javaid Akhtar and Ahmad Shujjah have filed respectively Criminal Appeals Nos.302 of 1989, 284 of 1989 and 356 of 1989 against the judgment, dated 15-4-1989 passed by the Special Judge, Anti-Corruption, Sargodha under section 409/34, P.P.C.; whereby the accused/appellants have been convicted under section 409/34, P.P.C. And sentenced to two years'
R.I. And a fine of Rs,25,000 each; in default of payment of fine further to undergo six months' R.I. All the three criminal appeals arise out of the same occurrence and have been convicted and sentenced by the same judgment; hence the appeals will-stand disposed of jointly by this order.
2. Briefly the facts of the case arc that a technical raid was to be conducted by Anti-Corruption Establishment, Faisalabad Region, Faisalabad and on 21-1-1986 Hamid Nawaz (P.W.4) Assistant Director/A.C.E., Faisalabad gave an application Exh.P.A. To the Additional Deputy Commissioner, Sargodha for deputing a Magistrate to supervise the raid. Mian Maqbool Ahmad (P.W.1) then M.I.C.
Was deputed to conduct the raid. Hamid Nawaz (P.W.1), Zahoorul Hassan Farooqi (P.W.6), Malik Tilla Muhammad (P.W.5) of the A.C.E. Went to Mian Maqbood Ahmad (P.W.1) and informed him that raid is to be conducted at Asianwala P.R: Centre. In the official vehicle the raid party went to the Centre where accused Muhammad Shaheen Tariq, Food Inspector and Javaid Supervisor and deceased Malik Ahmad Sher, Assistant Food Controller were present. The record of the stock of wheat was sought and deceased Ahmad Sher, Assistant Food Controller produced. The record comprising registers Exh.P.D./1, Exh.P.D./2, Exh.P.D./3, Exh.P.D./4 and Exh.P.D./5 and these were secured vide memo. Exh.P.E. The deceased accused Ahmad Sher pointed out that the stock of wheat purchased during 1983 and 1984. The godown was opened. Large number of bags of wheat were lying and wheat was also lying in bulk in open. The labour was not available. The godown was sealed and the raid party again visited the godown on 22-1- 1986, 23-1-1986 and 26-1-1986. During these days the wheat was filled in bags and according to the record there should have been 7,461 wheat bags in the stock and on counting in the presence of all accused and Deputy Director Food, it was discovered that number of wheat bags in stock was 7;131 Thus, there was shortage of 329 bags of wheat. 16 bags of wheat were weighed at random and average weight was found to be 95.281 Kg.
Per bag. Hamid Nawaz (P.W.1) then submitted his report Exh.P.C. In which he determined the shortage of 36,719 Kg. Of wheat. On the basis of this report Exh.P.C. Formal F.I.R. Exh.P.C./1 was recorded by Ashiq Hussain A.S.I. (P.W.2). After necessary investigation, the sanction orders Exh.P.E, Exh.P.F. And Exh.P.G. Were obtained and the challan was submitted in the Court on 31-5-1986.
3. The prosecution examined as many as 6 witnesses to prove its version while appellants/accused produced in their defence two witnesses.
4. The prosecution witnesses Maqbool Ahmad, Magistrate 1st Class, Ashiq Hussain, A.S.I., Miraj Din, Deputy Director Food, Hamid Nawaz, Assistant Director, A.C.E., Malik Tilla Muhammad and Zahoor- ul-Hassan Farooqi in their statement supported the prosecution version with one voice.
5. All the accused/appellants in their statements admitted that they were responsible for keeping the stock of wheat at the centre but denied the allegation of misappropriation. The main defence of the accused/appellant is that the stock of wheat remained in open space for 3-1/2 years and due to natural causes; the weighing wheat was reduced and no misappropriation was committed by any of the accused. The defence witnesses being officials of the department have fully supported the defence version of the appellant/accused.
6. I have heard the arguments of learned counsel of both the parties at length and have perused the record with their able assistance.
7. Admittedly, the accused/appellants were responsible for keeping the stock of the wheat at the centre in their presence the members of raiding party counted the bags of wheat and shortage of 329 bags of wheat was detected. Admittedly District Food Controller through report Exh.P.J.
Recommended the case for shortage; wherein percentage of shortage was shown as 0.34 per cent to be written off.
8. There are material discrepancies in the statements of P.W.1 Maqbool Ahmad, Magistrate 1st Class and P.W.3 Miraj Din, Deputy Director which are fatal to the prosecution version rather the aforementioned witnesses have supported the version of accused/appellants. Sheikh Hamid Nawaz P.W.4 admitted in cross-examination that all the bags of the wheat were not weighed and it is not possible to give exact finding as to the quantity of wheat which was short because out of 7,132 bags only 16 bags were weighed. In cross-examination the Assistant Director P.W. Conceded that Exh.P.J. Was written by the District Food Controller wherein he recommended for writing of the shortage from the Finance Department.
9. The learned trial Judge while convicting the accused/appellants observed firstly that the Department has not so far written of the godown shortage regarding the wheat in the charge of the accused; secondly it is not necessary that in every case the margin of 0.5 per cent. Is given for godown losses; thirdly no steps were taken after raid by any of the accused to get written of the loss detected by the raiding party; as it was the duty of the accused to have taken up the matter immediately after the raid with the Department.
10. The learned trial Judge did not place the case in juxtaposition as the paramount duty of every Court is to separate the grain from the chaff in a careful manner and scrupulous analysis and if that is not possible; must give benefit of it to ,the accused lest the innocent be convicted. The learned trial Judge convicted the appellants merely on the circumstantial evidence as there is nothing on record to prove the case of embezzlement directly, as laid down in case Shakir Hussain v. The State PLD 1956 SC (Pak.) 417 and in case Nadir Shah v. The State 1980 SCM R 402 that in order to establish a charge of criminal breach of trust the prosecution must prove not only entrustment of or dominion over property but also that the accused either dishonestly misappropriated, converted, used or disposed of that property himself or that he wilfully suffered some other person to do so. As already observed nothing has been brought on the record that the wheat in dispute has been misappropriated by the appellants/accused.
11. It is well-settled that circumstantial evidence, if made the basis for conviction, must be such as to be wholly incompatible with the innocence of the accused, and should be of such conclusive nature as to exclude every hypothesis except the one proposed to be proved.
12. As the sentence passed by the learned Special Judge is based on surmises, conjectures and suspicion; it is well-settled principle that suspicion by itself, however, strong it may be is not sufficient to take place of proof and warrant a finding of guilt of the accused. It is also settled principle of criminal jurisprudence that prosecution has to succeed on its own merits and has to prove the case against accused beyond reasonable doubt and every doubt is to be resolved in favour of the accused.
13. Taking into consideration the evidence on record there is nothing in the statements of prosecution witnesses that the accused have misappropriated the wheat and the observation of the learned trial Judge that efforts were not made by the appellants for writing of loss by the Department as it was their duty is misconceived.
14. In view of the above discussion, I am of the view that the prosecution has failed to prove its case beyond any shadow of doubt; hence the sentence and conviction of the appellants is set aside; since the appellants are on bail, their bail bonds stand discharged. The appeals are accepted accordingly.