' This appeal is directed against the judgment dated 6-4-1998 passed by Special Judge, Anti- Corruption, Balochistan, Quetta whereby appellant has been convicted under section 409, P.P.C. To undergo R.I. For five years and a fine of Rs,1,00,000 in default thereof to further undergo R.I. For six months and under section 5(2) Act II of 1947 to suffer R.I. For two years.
2. Briefly stated the facts of the case are that P.W.4 Muhammad Ikhtiar Bangulzai, S.D.M. Usta Muhammad lodged report on 10-3-1997 with Police Station Usta Muhammad being F.I.R. No,30 of 1997 under section 409, P.P.C. Alleging therein that he had made surprise visit of wheat godowns at Usta Muhammad and found that 8965 bags of wheat were missing and appellant being incharge of the centre did not maintain any record of the said wheat. On this report, investigation of the case was started. After completion of investigation, challan was submitted before Special Judge Anti- Corruption Balochistan at Quetta. Charge was framed on 30-7-1997 to which the appellant did not plead guilty.
3. To substantiate its case prosecution produced P.W.1 Muhammad Ramzan, Headconstable, P.W.2 Muhammad Ishaque, constable, P.W.3 Ghulam Hussain, constable, P.W.4 Muhammad Ikhtiar, S.D.M.
P.W.5 Hakim Ali constable P.W.6 Kalimullah S.-I. Appellant, was examined under section 342, Cr.P.C.
And also under section 340(2), Cr.P.C. After assessing the evidence on record, the learned Special Judge convicted the appellant as mentioned hereinabove thus this appeal.
4. P.W.1 Muhammad Ramzan deposed that on 10-3-1997 appellant was brought to Police Station by S.D.M. Usta Muhammad who presented two stock registers, one attendance register of the employees, 87 challans, two challans of National Bank and certificates of National Bank of Pakistan.
Certificates were taken into possession by S.-I. Kalimullah vide recovery memo Exh.P.1/A and were tendered in evidence as Articles A/1 and A/2 bank challans were taken into possession vide recovery memo. Exh.P.1/B and the same were tendered as Articles A/3 10 A/89. Attendance Register was taken into possession vide Exh.P.1/C and was tendered as Article A/90 and two stock registers were taken into possession vide Exh.P.1/D and were tendered as Articles A/91 to 92. He further stated that during custody the appellant produced 12 challans which were taken into possession vide recovery memo Exh.P.1/E and the said challans were tendered as Article A/93 to Article A/104.
5. P.W.2 Muhammad Ishaaque stated that on 10-3-1997 in his presence Investigating Officer.
Kalimullah visited the food-godowns and prepared site inspection report vide Exh.P.2/A and also prepared site plan of the said godown vide Exh.P.2/B.
6. P.W.3 Ghulam Hussain stated that on 20-3-1997 appellant presented three bank challans to the Investigating Officer which were taken into possession vide Exh.P.3/A and the said challans were tendered as Articles A/105 to A/107.
7. P.W.4 Muhammad Ikhtiar S.D.M. Usta Muhammad. He deposed that on 8-3-1997 he was performing his duties as Assistant Commissioner Usta Muhammad and Commissioner and D.C.
Informed him that there was acute shortage of wheat throughout the country and also in his own district and further that he was directed to go and check the food godowns. He went to the godown where appellant was present and he found that there was no wheat in the godown. After checking the record it was revealed that 8965 bags of wheat were short. He enquired about the said shortage and appellant informed him that he had already issued the same to different mill-owners who will be depositing the amount in the bank and further stated that if he is given ten days' time the said amount will be deposited. Commissioner refused to allow time; therefore, on Commissioner's directions he lodged complaint with Usta Muhammad Police Station. The complaint was produced as Exh.P.4/A on the basis of which the F.I.R. No,30 of 1997 was lodged under section 409, P.P.C.
8. P.W.5 Hakim Ali narrated that on 21-3-1997 while in custody--Investigating Officer was interrogating the appellant. He produced four copies of challan which were taken into possession vide Exh.P.5/A and challans were presented as Articles A/108 to A/112.
9. P.W.6 Kalimullah stated that on 10-3-1997 S.D.M. Ikhtiar lodged report that 8965 bags of wheat were missing on which Crime No,30 of 1997 was lodged under section 409, P.P.C. He further stated that he investigated the case, took record into custody and further deposed that from checking of the stock registers there was shortage of 6462 bags and. During the month of February, 1997, 1156 bags had been disposed of whereas there was no entry in the Stock Registers and further stated that regarding 1156 bags three challans were produced on 16-3-1997 and 12 Railway vouchers were also produced showing therein that 28800 bags of wheat had been transferred for Usta Muhammad from Port Qasim Karachi but there was no entry in the Stock-Register regarding the same whereas 26191 bags were shown to have been issued and further it was revealed from the record that 2347 bags had been taken out of the godowns whereas the total number of bags ought to have been 35262 and after receipts and disbursement 7915 bags were found missing. He further, stated that on 20-3-1997 three challans of 5,500 bags were produced and on 21-3-1997 four challans of 2415 bags were produced by the appellant and stated that on 24-3-1997 appellant was sent to judicial custody. He prepared challan Exh.P.6/A. Appellant was examined under section 342, Cr.P.C. Wherein he admitted that on 8-3-1997 upon checking no wheat was found in food godowns at Usta Muhammad and further admitted that no proper record of the wheat godown was maintained and also recorded his statement under section 340(2), Cr.P.C. In which he gave account of the shortage of wheat bags. He stated that a specific quota has been fixed for small grinding mills and further stated that wheat is issued to different mill-owners against challans which have four copies, one is kept by Food department and three challans are given to persons to whom wheat is issued and thereafter they deposit the amount in National Bank on said challans.
These challans are counter-signed by Assistant Food Controller and mill-owners and when wheat has been issued, after depositing the amount the mill-owners deposit two copies of the challans with the A.F.C. He further deposed that in March, 1997 he produced challan copies issued to various mill-owners as Articles A-112 to A-118 and in the month of February A-119 to A-121 and stated that stocks for the months of December, 1996 to January, 1997 were 6462 bags and further that from Port Qasim 28800 bags were transferred, likewise total number of bags was 35262 and in the month of January he. Issued 26191 bags to different mill-owners and 9071 bags were left in the stock. In the month of February he issued 1156 bags and challans of the same were produced as Article A-118 to Article A-120 and besides the above mentioned bags, 7915 bags of wheat were issued in the month of March to different mill owners and in the month of March he did not receive any wheat from outside as there was acute shortage of wheat throughout the country and further deposed that on 6th or seventh March 7915 bags of wheat were issued against challans to different mill-owners and the said mill-owners had apprised the S.D.M. About the issuance of 7915 bags and had also shown the challans to the A.C. He further stated that at the time of raid, the Assistant Commissioner wrongly detected shortage of 8965 bags of wheat but in fact 9071 bags were missing as the same had been issued to different mill-owners and the amount had been duly deposited against challans in the National Bank of Pakistan and further that he is innocent and had not misappropriated the alleged bags of wheat.
10. I have heard Mr. Tariq Mehmood, Advocate for the appellant and Mr. Nasrullah Khan Achakzai, Advocate for the State.
11. Mr. Tariq Mehmood, Advocate contended that the learned Trial Court had convicted the appellant on a wrong assumption of law. The learned counsel further contended that under section 409, P.P.C. And 5(2) Act II of 1947 mere entrustment of property to the accused and its shortage would not be enough to establish guilt of dishonest misappropriation. It was incumbent upon the prosecution to prove that the accused had actually misappropriated the wheat. The learned counsel further contended that explanation was given by the accused regarding shortage of wheat. It was for the prosecution to prove that the explanation given by the accused appellant was wrong, imaginary and contrary to record. The learned counsel further contended that the prosecution had failed to prove misappropriation of the wheat bags. On the contrary appellant had given explanation for the said shortage and had produced documentary evidence in this regard which was discarded by the learned Court causing prejudice to the case of the appellant.
12. Mr. Nasrullah Khan Achakzai, Advocate for the State supported the judgment and stated that the explanation given by the appellant was after-thought and he had been rightly convicted and the appellant had failed to account for the shortage of wheat bags.
13. I have heard the arguments of the learned counsel for the parties and have also perused the record available.
14. It may be observed here that there is no cavil to the proposition that to establish offence of criminal breach of trust under section 409 P.P.C. Mere entrustment of property to the accused and its shortage would not be enough. The onus is always on the prosecution to prove that accused had dishonestly misappropriated the property or used the same to his benefit. Further it is cardinal principle of criminal justice that any admission or confession made by the accused had to be taken into consideration in entirety and if the accused had given any explanation, the prosecution was bound to prove the same as wrong and further it was incumbent upon the Court to have taken the explanation into consideration.
15. In the case in hand the moot question to be determined is whether the appellant was entrusted with wheat bags and whether he misappropriated or misused the same for his own benefit.
Prosecution case is that on checking of the godown by the Assistant Commissioner Usta Muhammad about 8965 bags of wheat were found missing. As far as shortage of wheat is concerned the same has not been denied by the appellant rather the appellant in his statement stated that in fact 9071 bags of wheat had been issued to various mill-owners which had not been entered in the Stock Registers. As far as entrustment of wheat to the appellant is concerned, the same is not disputed by the appellant. Thus the prosecution has proved that the wheat has been entrusted to the appellant while he was posted as A.F.C. At Usta Muhammad.
16. Now adverting to the main question whether the appellant had misappropriated the bags of wheat, found short in the godown; from the evidence produced on record as discussed above it is revealed that only at the time of checking 8,965 bags of wheat were found short. The prosecution has failed to further substantiate that the said wheat was misappropriated by the appellant though the appellant has given explanation about the said shortage. It is further to be determined that while passing the order the learned Trial Court has rightly discarded the explanation given by the appellant.
17. The plea of the appellant right from registration of the case to date has been that he had issued wheat bags to different mill owners and further that receipts were not recorded in the stock registers due to the negligence of the clerk who was supposed to do the needful. In this regard statement of P.W.4 Muhammad Ikhtiar S.D.M. Is very much important for prosecution and defence both. In his examination-in-chief he stated that during checking 8965 bags of wheat were found missing. However, in his cross-examination he stated that the mill-owners came to him and showed him challans and stated that the wheat had been issued to him and the amount had also been deposited by them in the National Bank of Pakistan.
18. Reverting to the arguments of Mr. Tariq Mehmood, learned counsel that the Trial Court had not taken into consideration the explanation offered by the appellant, it is appropriate to refer to the judgment of the Trial Court while considering the explanation given by the appellant. The relevant portion of the judgment is reproduced below: "In his statement on oath, too, the accused has stated that mill-owners had deposited the cost of wheat issued to them. This means that accused has tried to blow hot and cold in one breath. Thus it is proved that at the time of inspection of godown there was no wheat in the godown whereas as per record, 8965 bags of wheat should have been in the stock. Similarly it is proved that accused was responsible for this shortage/missing of wheat from the godown. Now in view of defence plea of the accused that he had issued wheat to mill-owners as per their quota, who had to deposit the cost of wheat in due course of time, it is to be seen whether, accused actually issued wheat to the mill-owners as per their quota. As discussed hereinabove there is no record available to show that accused issued wheat to mill-owners because the official record is silent on this point. Similarly accused has not produced a single mill-owner in his defence who could testify that the wheat had been issued to him as per quota. Rather as per version of all the P. Ws, challans were presented by the accused himself and not by any mill-owner. Reference can be made to the statement of P.Ws.1, 3 and 5. As observed hereinabove the accused has taken two self-contradictory defence pleas i,e, at some stage he states that, mill-owners had deposited the cost of wheat and at some stage he states that cost of wheat was to be deposited by the mill-owners. The accused has further failed to show that he was authorized to issue wheat to mill-owners in such large quantity without making any entry in the relevant register. He failed to show that he was authorized to issue wheat to mill- owners, in such large quantity without making entry in the relevant register. In his statement on oath, he has admitted that there was cutting/overwriting in the challans pertaining to the month of February. He has further admitted that as per record in the challans pertaining to the months of December, 1996 and January, 1997 only three days time had been given to the mill-owners for making payment but he has failed to furnish any plausible explanation as to why he allowed more time to the mill-owners in March, 1997 for payment of cost of wheat. He has gone to the extent of admitting in his cross-examination during his statement on oath that even 28800 bags of wheat received from Bin Qasim through train were not entered in the stock registers. All these facts prove nothing except that accused miserably failed- to maintain stock register about receipt and issue of wheat received in the godown from time to time. He has also failed to prove that he has issued wheat to mill-owners who had to pay the cost of the wheat. It is proved beyond shadow of any doubt that accused was entrusted with the proper maintenance of record and wheat in the godown in the capacity of Assistant Food Controller but he committed criminal breach to trust in his behalf. Even otherwise if for the sake of arguments it is presumed that accused had issued wheat to mill-owners who had to deposit the cost thereof, even then it has come to light that he intentionally allowed more time to the mill-owners for deposit of cost as compared to previous prevailing practice just to gain/give undue advantage at a time when there was acute shortage of wheat throughout the country. He by illegal means and by using his possession as public servant has obtained pecuniary advantage for himself as well as for mill-owners and his this act comes within the meaning of 'criminal misconduct' as contained in section 5(1)(d) of Act II of 1947."
19. From the perusal of the aforementioned portion of the impugned judgment it is revealed that the learned Special Judge Anti-Corruption has taken contradictory stands while convicting the appellant. In the first place the learned Trial Court has disbelieved the appellant and discarded his explanation that he issued wheat bags to the mill-owners and further held that none of the mill- owners was produced and has further held that even if such huge quantity of wheat was given to the mill-owners, whether the appellant was authorized to do so and has held that in the month of January, 1997 while issuing challans, appellant had given only three days' time to the mill-owners to deposit the amount but in the month of March appellant had allowed more time to the mill- owners for depositing the amount. The learned Judge has held that the appellant has miserably failed to maintain stock register while issuing wheat from time to time and has further held that the appellant has failed to prove issuance of wheat to.'the mill-owners; thus came to the conclusion that actually appellant had committed criminal breach to trust and thus convicted him.
20. It may be seen that the statement of the Investigation Officer is also very important who has given an account of the receipts of wheat from December, 1996 to March, 1997 and issuance of wheat to different mill-owners by the appellant. The Investigation Officer stated that the total receipts of wheat from Port Qasim and other purchase centres from December, 1996 to March, 1997 was 35262 bags and in the stock register 26191 bags were issued. Difference would come to 9,071 bags of wheat which was not entered in the stock register. As far statement of appellant is concerned, the same corroborates the statement of Investigation Officer to the extent of shortage of 9,071 bags but the appellant has given explanation and further tendered challan in his statement pertaining to issuance of wheat in the month of March, 1997. From the perusal of Articles A-1 to A-121 produced by the appellant in his statement total number of bags issued to various mill-owners comes to 9071 bags. Said Articles A-1 to A-121 are bank challans in which amount is shown to have been deposited in the National Bank by various mill-owners. From the perusal of the above challan it has come on record that the mill-owners have deposited the entire amount of 9071 bags in National Bank of Pakistan. Prosecution has not disputed or rebutted the said challans.
There is nothing on record to show that the said challans were forged or were manipulated by the appellant. It may be seen that challans Articles A-112 to A-121 pertain to the deposit of amount made from February, 1997 to March, 1997 and most of the amount was deposited on or before 21-3- 1997 and have been duly signed by the mill-owners. It has come on record that the appellant was sent to judicial custody on 24-3-1997. Prosecution has even failed to prove as to how the said documents were manipulated when the appellant was in custody. Production of the challans further corroborates the statements of the appellant that he had issued 9071 bags of wheat to various mill-owners against challans amount of which has been deposited in the National Bank of Pakistan.
21. It was argued by the State Couniel that the Bank Challans have been fraudulently prepared; after giving an explanation regarding shortage of wheat, it was for the prosecution to disprove the same and show that the explanation offered by the appellant was imaginary or contrary to record and challans produced were fraudulently managed by the appellant. Further it was incumbent upon the learned Special Judge to have taken into consideration the explanation offered by the appellant. The arguments of Mr. Tariq Mehmood, learned counsel have force and are well founded that the prosecution had failed to prove any misappropriation of the wheat bags by the appellant.
Explanation given by the appellant was rather used against him by the Trial Court. In this regard I am fortified with the following case law:
(i) Shakir Hussain v. The State, PLD 1965 SC 417, In this case following observations were made: "Subject to certain exceptions, the most important of which is to be found in section 105, Evidence Act, the admitted and otherwise firmly established principle being that before the prosecution can ask for a conviction of a criminal offence, it is its duty to prove each ingredient of the offence beyond a reasonable doubt, it is obvious that where the charge against an accused person is that 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 persons to do so."
(ii) Mir Ahmed v. The State, PLD 1962 SC 489. In similar circumstances as in the case in hand, it was observed: "The case raises a similar question namely, the question of the correct treatment of a plea in defence which is of factual nature and is supported by evidence and circumstances. This matter received careful consideration by the Federal Court in the case of Safdar Ali v. The State (1) where it was held that the decision in such cases must not be taken in relation to the accused's special pleading but must rest on examination of the entire evidence and if thereafter the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, this opinion reacts upon the whole case and the accused is entitled to benefit of such doubt on the ground that the prosecution has not proved its case beyond reasonable doubt."
(iii) Abdul Qayyum v. The State 1989 PCr.LJ 2439. It was held:-- "In order to bring home the charge it is sufficient if it is established by the prosecution that the property was entrusted to an accused as a public servant and that public servant has either not returned that property or used it for the purpose other than for which it was entrusted. If the prosecution discharges the initial burden of proving that the property was entrusted to the accused then the burden shifts to the accused to establish that he has not misappropriated the government property. It is not at all necessary for the prosecution to prove that in what manner the property of the Government had been misappropriated. In the present case the prosecution has been able to prove that the goods were entrusted to the appellant. In such circumstances the further requirement that the prosecution should have also established misappropriation is not at all necessary but while lying the burden on defence the explanation if any furnished by an accused must be considered. If a reasonable explanation has been given by the accused then again it is the duty of the prosecution to prove that the explanation given by the accused is incorrect, and contrary to facts on record. At this stage the burden again lies on the prosecution to show that misappropriation has been committed by the accused. In the present case though the entrustment has been established but there is not an iota of evidence about the misappropriation.
The accused was charge-sheeted by the department and he gave an explanation that there were heavy rains and the rain water came inside the godown and about 200 to 400 cloth bags were affected and the matter was reported to the District Food Controller who visited the site and ordered to arrange for shifting of the stock. There was no misappropriation. The same explanation was given by the 'appellant before the Trial Court and this explanation was not properly considered by the Court. It was incumbent upon the Court to have considered the explanation of the accused particularly in view of the fact that prosecution has absolutely failed to prove the misappropriation.
The explanation furnished by the appellant was considered against him. It is cardinal principle of criminal jurisprudence. ' that an admission or confession of the accused must be accepted as a whole. The prosecution witnesses have. Not disputed the contention of the appellant that there were heavy rains and goods were shifted from one godown to another godown."
(iv) Muhammad Yaqub v. The State 1994 PCr.LJ 1116. While interpreting the provisions of section 409, P.P.C. It was observed as under: "Failure to discharge responsibility for safe custody of property would not per se amount to establish an offence within the meaning of section 409, P.P.C. Nor an offence under section 5(2) of the Prevention of Corruption Act, 1947. The mere entrustment of property to the appellant and its shortage would not be enough to establish guilt of dishonest misappropriation and mere existence of adyerse presumption cannot be equated with the establishment of guilt. The onus was on the prosecution to prove its case. No convincing evidence was produced by the prosecution about dishonest misappropriation of birds or conversion of the same to his own use by the appellant or their disposal, the mere entrustment and shortage would not be good enough to establish his guilt.
It is well-settled that despite existence of circumstances giving rise to adverse presumption, the onus probandi still rests squarely on the shoulders of the prosecution."
21. As a result of the above discussion, in my considered opinion the appellant had given cogent explanation with documentary evidence i,e, bank challans in respect of the wheat bags; the same were neither rebutted nor disproved by the prosecution and the learned Special Judge did not consider the said explanation offered by the appellant. Therefore, the appellant is entitled to benefit of doubt. Thus, the appeal is accepted and the impugned judgment dated 6-4-1998 is set aside. Appellant be released forthwith if not required in any other case.