' The appellant in this case has been convicted by the learned Special Judge cum-Enquiry Officer, Anti-Corruption Hyderabad of an offence punishable under section 409, Pakistan Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947, and has been sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs, 3,000 or in default of payment thereof to suffer father rigorous imprisonment for six months.
2. It is the prosecution case and is indeed admitted by the appellant that he was at the material time, that is to say November 1968, a Junior Storekeeper in the Regional Stores, WAPDA, Kotri. He was, therefore, as such in custody of the goods lying in the store maintained there, but it is the prosecution case that the actual physical guarding of the goods was done by various Chowkidars of whom there seem to have been at the relevant time four, namely Umer Gul, Feroz, Munnawar and Mohammad Hayat. Of these Umer Gul and Mohammad Hayat have been examined and the former is the principal prosecution witness in the case. According to Umer Gul on the 14th of November, 1968, the appellant came in a private truck to the store and informed the witness Umer Gul that one tin of\ACSR was required at the site and that it should accordingly be handed over to him. (The abbreviation of ACSR is not explained on the record and learned counsel on the both sides informed me that although they are not quite sure of each of the words the first three letters apparently stand for the words Aluminum Conductor Surface and the entire material is some kind of metal writing or coil; the expression "drum" really means a big reel around which this flexible length of metal is coiled).
3. The evidence of Umar Gul it appears, sketchy though that evidence is, that the proper procedure was that a gate pass had to be prepared and that accordingly the witness asked the appellant to obtain such a gate pass before he would allow the goods to be removed. No evidence has been led in this case as to the details of this procedure but I am prepared to assume, as the. Learned counsel for the prosecution states that this means that a gate-pass would show the authority of the person who was allowing the goods to be taken but. The appellant then told the Chowkidar to bring an old gate-pass and that he would make an entry in that gate-pass. The witness then gave him such an old pass and the appellant took it with himself and brought it back after a little while and returning it to the Chowkidar put the drum in the truck and went away. At this time, two of the other Chowkidars, namely Feroz and Munnawar are said to have been present but neither has been examined as witness in the case.
4. After some time the fourth Chowkidar, namely, Mohammad Hayat came and he apparently is a more experienced person and felt suspicious of the entire matter and advised Umer Gul to report the matter immediately on account of which, Umer Gul informed the Line Superintendent, Regional Stores, Electricity, WAPDA, Hyderabad, who is a witness in the case. This person whose name is Mohammad Tousif Shamsi, arrived the next morning, examined the gate-pass in question and found that there was no entry of such a drum as it was said to have been taken away by the appellant and also that upon a physical check one drum was missing.
5. There was also in the case evidence of the Assistant Store Officer, Mohammad Ikram, who made a physical check of the goods and also found that one drum was missing. Besides this, the only other prosecution evidence was that of the Anti-Corruption Officer. It does seem that the appellant was first sent up before an ordinary Court on a charge of theft but it then appeared that the case really fell within the jurisdiction of a Special Judge and sanction being duly taken he was sent up to such a Court with the result that he was tried and convicted as I have already stated.
6. Now the conviction of the appellant rests in this case almost entirely, upon the evidence of the Chowkidar Umer Gul, against whom the appellant alleges some enmity. The circumstances of the case are very peculiar indeed and it does surprise me that the practice obtaining in regard to issuing stores should be of so lax a character that it should be possible to write something in an old and already used gate-pass and that an illiterate Chowkidar should not even be able to say whether something had or had not been written upon it before he parted with the goods. It is true of course that the appellant was in charge of the stores but it is also to be remembered that the actual physical custody was that of the Chowkidar whose responsibility it was not to part with any of the goods without such a gate pass. That the one drum is missing cannot be denied and is in fact as much a part of the prosecution case as it is that of the defence and it is equally clear that either the appellant or the Chowkidar Umer Gul or both of them together are members of a conspiracy to have stolen or misappropriated these goods. The case against the appellant can succeed only if it be established that proper conclusion which can be reached without any possibility of doubt is that it was he, who deceived the chowkidar and not it was the chowkidar who was making up a false story or that he was himself in league with the appellant or possibly somebody else. An examination of the both of the evidence of the witness Umer Gill is therefore of critical and conclusive importance in this case.
7. I regret to have to say that the learned Judge hardly gave this evidence that careful scrutiny which the circumstance of the case warranted. He merely recites the story as given by the witness 4... Remarks:- "Umer Gul was a poor Pathan Chowkidar and naturally he could not oppose the accused who was his immediate officer."
' It does not seem to me that this is a sufficient way of recording judicial reasons for belief in the testimony of a witness. Apart from the attendant circumstances of the case, there are other features in the evidence of this witness which I find unsatisfactory. In the first place I do not understand, why there should have been an old gate-pass with him at all; it is true that Mr. Shamsi does imply in his evidence that sometimes only a few items mentioned in the challan are taken out while the remaining are taken out later. This appears to be a somewhat curious way of dealing with such things and the whole purpose of a check does not appear to be satisfied at all. Possibly, I have mistaken the position and that there is much more to this than appears, but, if that be so, the fault is that of the prosecution which has not led evidence to show the entire procedure in detail which ensures that goods are not taken out without sufficient authority.
8. It then transpires that it is only when Hayat Mohammad came and was informed, that Hayat Mohammad felt somewhat suspicious about the matter and showed the gate-pass to a gentleman who was passing by and was informed by that gentleman that, there was no such entry. Who this gentleman was, we do not know; of course he has not been examined.
9. Apart from the word therefore of Mohammed Hayat, there is really no corroboration of the evidence of Umer Gul at all. It is true that Mr. Shamsi does say that he was given a telephone message at night that this incident had occurred but it is to be remembered that this is after Mohammad Hayat had seen the gate-pass. Feroze and Munnawar Chowkidars, who even according to Umer Gul were present at the time of the incident itself, have not been examined by the prosecution.
10. Now quite apart from the question of corroboration, the case really boils down to one of the word of the appellant against the word of this witness Umer Gul. The goods were undoubtedly in the physical custody of the witness, and if the police had chosen to prosecute the witness and the appellant had been in the witness box, a case could have been built against the witness at least as strong as now appears against the appellant. Is the conviction of the appellant then to depend upon the purely fortuitious circumstances, whether he occupies the position of an accused or a witness?
11. In any view of the matter it would seem to me that Umer Gul must be regarded as an accomplice witness. On his own showing, the appellant came there without a gate-pass and in a private truck; when asked for a gate-pass, he asked the chowkidar to bring an old one, in itself suspicious circumstance, and yet the witness readily complied. Unless he was willing to help the appellant in what was obviously criminal activity, I do not see why he should have done so. It is not the case of the prosecution that this was of an old challan on the gate-pass of which it had not earlier been removed, as Mr. Shamsi says sometimes happened; in that case the appellant should have asked Umer Gul to bring that particular gate-pass.
12. In these circumstances I have come to the conclusion that it would be unsafe to sustain the conviction of the appellant. I do not therefore consider it necessary to examine Mr. Hayat Junejo's further contention that the offence, if any, was one punishable under section 420 and not under section 409 of the Pakistan Penal Code and while the trial Court may convict an accused person of any offence of which he is found guilty, irrespective of what he is charged with, an Appellate Court may not.
13. I accordingly allow this appeal and set aside the conviction and sentence of the appellant. He is on bail and his bail bonds will be cancelled; the fine if paid will be refunded.