1. Appellant Muhammad Bachal has challenged his conviction and sentence awarded to him by the learned Special Judge (Central), Karachi, to the tune of one year R.I. And a fine of Rs.75,000 or in default thereof to further suffer R.I. For a period of four months. .
2. The brief facts of the prosecution case are that on 19-8-1992, S.I. Syed Abid Hussain Shah, S.H.O. Of Police Station S.I.T.E., Karachi, lodged the F.I.R. After receiving a written complaint from Mr. S.M.
3. Mustafa Karim, Regional Manager Utility Stores Corporation vide his letter Reference No. PE/Sales 92-866 dated 4-3-1992 SIT-55 dated 5-3-1992, addressed to S.H.O. Of Police Station S.I.T.E., Karachi, which reads as under:-- "This is to inform you that Mr. Muhammad Bachal son of Muhammad Qasim was employed in this Corporation w.e.f. 12-11-1987. He was Incharge of our Labour Square Site Store and during the period from 26-8-1991 to 14-10-1991 his Store Account revealed shortage/loss to 'the extent of Rs.74,010.19 as per statement of accounts prepared by the Accounts Section of this office, copy of which is enclosed herewith for your information. As he is responsible for the shortage/loss, it is requested that the case of misappropriation/embezzlement of the Corporation money/stock may be registered. Against him and a copy of the F.I.R. Be provided to us for onward submissions to our Head Office (Ministry of Industries Government of Pakistan Islamabad)."
4. The complaint was incorporated in the 154 Book and after registration of the case. Investigating Officer visited the place of incident and secured written proof in respect of the misappropriation/embezzlement allegedly committed by the appellant and the appellant was arrested. The Investigating Officer recorded statements of witnesses under section 161, Cr.P.C. And after usual investigation charge-sheet was submitted against the appellant before the learned trial Court to face trial.
5. A formal charge against the accused was framed, to which he pleaded not guilty and claimed to be innocent and tried.
6. The prosecution examined P.W. Muhammad Javed, who has produced memo. Of site inspection and memo of arrest, P.W. S.M. Mustafa Karim, who produced statement of Store Account, photo copy of charge-sheet, enquiry report, final show-cause notice, written complaint to S.H.O. And dismissal order of the appellant, P.W. Syed Abid Hussain, S.H.O. Of Police Station SITE, who has produced copy of the F.I.R. And P.W. Muhammad Liaquat was given up by the prosecution.
7. The statement' of the appellant was recorded under section 342, Cr.P.C. In which he denied the allegations levelled against him by the prosecution.
8. The following points were framed for determination:--
(1) Whether the accused was employed in Utility Stores Corporation from 26-8-1991 to 14-10-1991 and as such he was a public servant?
(2) Whether accused as such a public servant by abusing his official position as sub public servant misappropriated the articles worth Rs.74,010.19 which were entrusted to him and as such committed criminal breach of trust in respect of the said amount?
(3) What offence, if any, accused has committed?
9. On the assessm ent of evidence the appellant was found guilty of the charge and was convicted and sentenced. I have heard Mr. M. Ilyas Khan, learned counsel for the appellant and Mr. Ghulam Mustafa Lakho, learned counsel appearing on behalf of the Advocate-General, Sindh for the State.
10. At the very outset the learned counsel for the appellant refers that this case was not only lodged by Syed Abid Hussain, S.H.O. Of Police Station S.I.T.E., Karachi, but was investigated arid challenged by him before the abovementioned Court which is illegal and is contrary to section 3(1) of FIA Act, 1947, whereby offences in the Schedule, including an attempt of conspiracy to commit and the abetment of any such offence shall be inquired into, investigated and challenged by the F.I.A. Not only this but .The said investigation is also contrary to the rules laid down under section 5-A of Prevention of Corruption Act, 1947, where under no officer below the rank of Inspector is competent to investigate any offence described in Pakistan Penal Code as mentioned in sections 3 and 5, without orders of Magistrate First Class. According to the learned counsel this offence was lodged and investigated by a Sub-Inspector, an incompetent person. He further submitted that the alleged offence, vii. Under section 409 is admittedly ,Scheduled offence and is to be investigated according to section 3(1) of F.I.A. Act, 1947 which has not been done in this case. He next argued that the entire case is based upon the Auditor's report of Khan Muhammad and Mahfooz Khan, who were not examined and the said report has been brought on record through P.W. S.M. Mustafa, as such the same cannot be taken into consideration as its authors have not been examined and the appellant has not been provided an opportunity to cross-examine them. According to him these incriminating pieces of evidence with regard to Audit report have not been put to the appellant under section 342, Cr.P.C. As such the entire vitiates and the appellant cannot be convicted in such circumstances. He has lastly submitted that neither sanction to prosecute the appellant was ever obtained nor the same was produced at trial as such entire exercise of conducting trial is illegal and the appellant deserves acquittal. In support he has relied upon the case-law reported in PLD 1992 SC 72, 1993 PCr.LJ 1391 and 1994 PCr.LJ 111.
11. On the other hand, the learned counsel appearing on behalf of the Advocate-General for the State, concedes to the legal aspects of the case and states no objection for allowing the appeal.
12. Admittedly this case has been lodged and investigated as well as challaned by Sub-Inspector Syed Abid Hussain, who is not -a competent person with the purview of section 5-A of the Prevention of Corruption Act, 1947, which strictly stipulates that no officer below the rank of Inspector shall investigate any offence in this Act. Irrespective of this offence under section 409, in which the appellant has been challaned is a scheduled offence and is covered by section 3(1) of F.I.A. Act, 1947, whereby only Federal Investigation Agency of the Federal Government are competent to investigate into such offences. Having not been done so, the entire trial vitiates and such illegality is not cureable under section 537, Cr.P.C. With regard to sanctions, an amendment was proposed by the Federal Shariat Court that obtaining sanction in this sort of cases is repugnant to the injunctions of Islam and as such directed the Government to change the law till 30-11-1992 which prima facie shows that on the date of offence it was necessary to have the sanction which admittedly have not been done in this case. The case of Federation of Pakistan v.
13. Zafar Awan, Advocate, High Court, reported in PLD 1992 SC 72, supports the above contentions. In the case of K.S. Noorullah v. The State, reported in 1992 PCr.LJ 1391, it has been held that the trial of an accused, being a public servant, his trial by the Special Judge Anti-Corruption in the absence of a valid sanction in writing of the appropriate Government was illegal and without jurisdiction.
14. Irrespective of the above incriminating evidence, viz, the Auditors' report has not been put to the appellant under section 342, Cr.P.C. Which is also important factor to be taken into consideration. In absence of that the abovementioned piece of evidence will not be taken into consideration against the appellant. Auditors, who prepared the report, have also not been examined.