' This judgment will dispose of instant appeal (Criminal Appeal No,414 of 1987), as well as Criminal Appeal No,415 of 1987 and Criminal Appeal No,421 of 1987 as all of them have arisen out of same F.I.R./case.
2. Appellants, in all three appeals stand convicted under section 409/34, P.P.C. And sentenced to three years' R.I. Each and a fine of Rs,5,000 each or in default thereof, to undergo R.I. For one year.
Sana Ullah, Muhammad Arif, Muhammad Boota and Muhammad Hussain have also been adjudged guilty of an offence under section 5(2) of Prevention of Corruption Act, 1947 and each sentenced to one years' R.I. And a fine of Rs,2,000 each or in default thereof to undergo six months S.I. And their sentence on two counts to run concurrently, vide judgment, dated 14-7-1987 passed by learned Special Judge (Central), Lahore.
3. Brief facts, as reflected by and unfolded in F.I.R. Exh.P.B. Lodged by P.W.1, Muhammad Amin, Head Watchman, Badami Bagh, Railway Station, Lahore, are that on 13-5-1976, he was on duty at Badami Bagh, Railway Station from 8 p.m. To 9 a.m. On 14th May, 1976. Also Noor Din, Muhammad Khan and Muhammad Akram, Watchmen were on duty with him on said night.
4. On 13-5-1976, at about 10-30 p.m., Shunting Staff of Railway Station Badami Bagh, shunted oil Tankers Nos.6430 and 5203 from railway line 7 of Railway Yard Badami Bagh to private oil siding of Badami Bagh in front of reservoir of M.M. Brothers, who were agents of Esso Oil Company. As disclosed in F.I.R., aforesaid Head watchmen, in the company of above named watchmen, went to said siding of Badami Bagh Railway Station, where, oil tankers were thus, placed. Muhammad Hussain Shunting Master, Muhammad Boota and Muhammad Arif, Shunting Porters were standing near said oil tankers and drawing oil from Tanker No,6430 through a pipe to reservoir of MM Brothers, agents of Esso at Badami Bagh Railway Station. Allah Ditta Clerk of MM Brothers, alongwith Ghulam Rasool and Bagh Ali accused were also there. On the inquiry of the complainant as to why oil was being drawn from said tanker at that time, Allah Ditta replied that as tankers had been placed late, they were drawing oil at that time. In accordance with F.I.R., said persons thereafter started drawing oil from Tanker No,5203. In the meantime Sanaullah, A.S.M., Irshad Hussain Shunting Master, Muhammad Shafi, Shunting Porter, Muhammad Rafiq Shunting Porter, Ghulam Farid Shunting Master accused stately reached there. In accordance with contents of F.I.R., Ikhlaq Ahmad accused owner of M.M. Brothers also arrived there at about 3 a.m. On 14-5-1976 and on his inquiry, Allah Ditta accused assured him that tankers had been emptied and thereafter at about 3- 45 a.m. Both the tankers were again shunted back to the yard for its dispatch to Kala Shah Kaku Railway Station as said tankers were consignment of Oil Company at Kala Shah Kaku. According to the F.I.R. Label cards of Kala Shah Kaku were put to said tankers, after same were brought back to Yard from oil siding.
5. Head watchman asked A.S.M. On duty to stop their dispatch as he suspected removal of diesel oil by aforesaid persons from said tankers at the M.M. Brothers Oil siding. Muhammad Jamil, Inspector was also apprised of this all before complainant gave a memo. To Station Master for restraining despatch of said tankers to Kala Shah Kaku. Muhammad Zaman, Station Master and Inspector had a dip of said oil tankers, oil Tanker No,5203 was found to contain 7 feet and 1-5/8 inches of oil whereas tanker No,6430 was found with 2 feet and 3 inches of oil.
6. Exh.P.B. Was lodged with P.W.14, who, inspected the spot, prepared rough sketch Exh.P.N. Of place of occurrence, took one gallon of oil as "sample" from pipe of M.M. Brothers, made into a sealed parcel and secured vide memo. Exh.P.C. On the same day, summaries of Tankers 5203 and 6430 were taken into possession through memo. Exh.P.K. And Exh.P.L. Samples from tanker No,5203 and 6430 were secured in tin P.2 and P.3 by means of memo. Exh.P.H. And Exh.P.J. Report of dip by Muzaffar Hussain P.W. Finds a mention on file as Exh.P.M. Invoices Exh.P.C. And Exh.P.C./1 were taken into possession by virtue of recovery memo. Exh.P.E:
7. On completion of investigation. Challah was submitted in Court. Accused pleaded not guilty to the charge of misappropriation of 8900 gallons of oil and claimed trial.
8. In all fourteen witnesses were produced by prosecution and almost similar number of witnesses, to be exact 13, were examined in defiance.
9. All incriminating circumstances figuring against them were denied and disputed by the accused/appellants who, however, were convicted and sentenced as indicated above, upon culmination of trial.
10. Learned counsel representing the appellants have lambasted the verdict by pointing out various snags and infirmities, which, according to them, escaped the notice of learned trial Court.
Also it has been impressed that very F.I.R., which, of course, set the law into motion is apparently the result of preliminary investigations, deliberations and consultations. Commenting various factors including shunting away of tankers, to side line, removal of oil without opening of valve etc. It has been canvassed that the evidence adduced by the prosecution can in no way be taken to be sufficient cogent and convincing to warrant conviction, which, evidently is based on surmises and conjectures. Also it has pointed out that no role has been ascribed to Sana Ullah. Accordingly, acquittal of appellants has emphatically been prayed.
11. Conversely impugned conviction and sentence .Have been acclaimed to be correct in all respects, duly warranted by data and material on file and even in consonance with law as well.
12. Seemingly, learned Trial Court did not place both the versions and data available on record in juxtaposition, although, it is paramount duty of Court to separate grain from chaff in a careful manner and by scrupulous analysis and must give benefit of doubt, how slight it may be, to accused lest any innocent is convicted. Conviction of appellants is manifestly based on conjectures and surmises as there is no direct evidence of misappropriation and rather of theft. As laid down in Shakir Hussain v. The State PLD 1956 SC (Pak.) 417, Nadir Shah v. State 1980 SCM R 402, prosecution must prove, in order to establish criminal breach of trust, not only entrustment of, or dominion over property, but also, dishonest misappropriation, conversion, use or disposal of that property himself by the accused or that he wilfully suffered and allowed some other person to do so. Nothing has been brought on record to suggest that oil had been misappropriated by the appellants. Also it is settled proposition that suspicion, by itself, however, strong it may be, is not sufficient to take place of proof and warrant findings of guilt of accused. Also it is well-established principle of Criminal Jurisprudence that prosecution has not only to stand on its own legs, but also, to succeed on its merits by proving the case against accused beyond reasonable doubt and every doubt is to be resolved in favour of accused.
13. Taking into consideration entire evidence on record, which can be categorised to be "2nd category" in the classification made in Ata Muhammad and another v. The State 1995 SCM R 599; there can be no escape from the conclusion that the same is far short of requisite standard of proof qualitatively as well as quantitatively and cannot afford/furnish valid basis of conviction. As a matter of fact there is nothing to suggest misappropriation of oil on the part of appellants. On account of these features, prosecution case stands impaired beyond repair.
'14. In wake of above discussion, I am of considered view that prosecution has failed to prove its case beyond any shadow of doubt. As a necessary corollary, and sequence thereto all three appeals are accepted, impugned conviction and sentences are set aside and appellants are acquitted of the charges levelled against them on basis of doubt sprouting from data and material on file.
15. Being on bail, they are absolved of all their liabilities to the bonds furnished by them.