' This appeal by Muhammad Nawaz son of Haji Abdul Manan resident of Salman Khel, District Peshawar, is directed against the judgment and order of the learned Senior Civil Judge/Judicial Magistrate, Nowshera, dated 8-12-1999, whereby he was found guilty of an offence under section 408, Pakistan Penal Code, convicted and sentenced to five years' rigorous imprisonment and a fine of Rs,one lac, in default of payment of fine to suffer one year simple imprisonment. He was also convicted under section 380, Pakistan Penal Code and sentenced to five years'rigorous imprisonment and a fine of Rs,one lac or in default of payment of fine to suffer one year simple imprisonment. Both the sentences were, however, ordered to run concurrently.
2. It may be briefly stated that on 4-8-1996 at 22-30 hours, Mst. Sajida Parveen, Sub-Divisional Education Officer (F), Nowshera, lodged a written report Exh.P.W.3/1 before the S.H.O. Police Station, Nowshera Cantt. That the pay for the month of July, 1996 amounting to Rs,24,36,000 was brought by Muhammad Nawaz, Accountant from National Bank, Nowshera and kept it in the locker.
Muhammad Nawaz, Accountant and Mir Bashar, Junior Clerk made payment throughout the day.
At about 4-45 p.m. She left the office while Muhammad Nawaz, Accountant, Munsif Naib-Qasid, Habib Rasool Inayatullah, Chowkidars and Saeedullah, Senior Clerk PND were still present in the office. Brother of Robin, Sweeper was also busy in his work. Shakir, Chowkidar informed her on phone at about 8-30 p.m. That they have been doomed as some unknown person had broken the locks and taken away the entire amount lying in the office locker. On receipt of the information she immediately contacted the Accountant on phone who was residing at Peshawar and herself proceeded to the office. In the meantime Muhammad Nawaz also arrived at the office. On proper checking they found that all the rooms were properly locked. The window of the room of the Accountant was open and its glass broken while the room itself was duly locked. He found the lock of the Almirah broken and the safe lying in the Almirah opened. It appeared that somebody had entered the room through the window and committed the theft. She suspected that someone connected with the office was involved in committing of theft as the doors of all the rooms were locked. That the accused entered the only room where the cash was lying in the safe in the Almirah. According to Muhammad Nawaz, Accountant, a sum of Rs,18,08,835 was lying in the safe at the time of occurrence.
3. Muhammad Sher Khan, Inspector (Recd.), who was then S.H.O. Of Police Station Nowshera, Cantt., on receipt of, the written report Exh.P.W.3/1 of Mst. Sajida Parveen S.D.E.O.(F), Nowshera, incorporated the same into F.I.R. Exh.P.W.3/2. After registration of the case its investigation was entrusted to Wali Ayaz Khan, A.S.-I. Who visited the spot, prepared the site plan Exh.P.W.6/l, took into possession broken China made lock and a broken Kunda of the cupboard, in which the cash amount was kept, vide memo. Exh.P.W.1/1. He took into possession the prepared list of the cash amount, which was stolen, vide memo. Exh.P.W.4/6 in the presence of its marginal witnesses.
Proceedings under section 204, Criminal Procedure Code was taken against Hazrat Hussain absconding accused an employee of Ayub Khattak, Mashal Colony, Nowshera Cantt. He also got issued proclamation notices against him. Muhammad Nawaz, Accountant and Shakir Akhtar, Chowkidar both were arrested in the case and seven days police custody of both the accused was obtained and their statements were recorded under section 161, Criminal Procedure Code. On completion of the investigation complete challan was put in Court against the accused.
4. The prosecution in support of its case examined Fazli Rabi, A.S.-I. As (P.W.1), who had stated that during the days of occurrence he was posted as A.S.-I. At Police Station, Nowshera Cantt. Wali Ayaz, A.S.-I. In his presence took into possession a China made lock of Almirah, in which the money was kept, and the chain/bolt of the said Almirah which was broken vide memo. Exh.P.W.1/1, which bears his signature. Rahmat Shah, S.-I. C.I.A., Nowshera (P.W.2) stated that on 4-8-1996 the present case was registered while on 16-10-1997 the file was received in the Police Post C.I.A., Nowshera for investigation, whereafter Madad Khan, Inspector, C.I.A., Nowshera entrusted it to him for investigation. During investigation he recorded the statements of P.Ws. Nazirullah, Habib Rasool, Abdul Munif, Mir Bashar and Sadiqullah. That during the investigation he came to know that the theft was committed by one Hazrat Hussain the absconding accused and his companions, therefore, he applied to the Court for issuance of warrant under section 204, Criminal Procedure Code vide his application Exh.P.W.2/1. He got executed the warrant through D.F.C. Hidayat Shah. He recorded the statement of Hidayat Shah and then sent the case file to S.H.O. Police Station, Nowshera Cantt. For further necessary action. Muhammad Sher Khan retired Inspector (P.W.3) stated that during the days of occurrence he was posted as S.H.O. At Police Station Nowshera Cantt. That on 4-8-1996 he was present in the police station where he received written report of the complainant Mst. Sajida Parveen, S.D.E.O.(F), Nowshera, for registration of the case. He correctly incorporated the written report Exh.P.W.3/1 into the F.I.R. Exh.P.W.3/2, which correctly bears his signature. Mst. Sajida Parveen Ex-S.D.E.O.(F), Nowshera, (P.W.4) reiterated the contents of the F.I.R., however, elaborating her report she stated that the salaries of the staff of the schools of the sub- division were being distributed by Muhammad Nawaz accused, who is the Senior Clerk/Accountant. That on the day of occurrence she called Muhammad Nawaz several times to attend her office but he came to her office at 16-30 hours, she asked about the cash book and the cash at which the accused told her that the same would be produced the next day. She after the duty hour and finishing her work left for her house at Nowshera. While leaving her office Shakir Akhtar accused (Chowkidar) was not on duty, therefore, she wrote a note, asked her peon to give it to Muhammad Nawaz directing him that Shakir Akhtar shall not be paid his salary because of his absence during the duty hours. On the day of occurrence she received a telephonic call from Shakir Akhtar, Chowkidar that they have been ruined/lootted and stated that theft has been committed in the office at the time when he had gone to offer his prayer. She then contacted Muhammad Nawaz, who was residing at Peshawar, on telephone and herself proceeded to the office. She inspected the locks and cupboard and found the door of one of the window open towards the office room used by Muhammad Nawaz accused and cupboard of one of the door of the office. In the meantime Muhammad Nawaz alongwith one Khalid arrived in a car and accompanied her to police station where she submitted the written complaint (Exh.P.W.3/1) to S.H.O. Police Station Nowshera Cantt. The same was duly signed by her. After lodging the report she alongwith Muhammad Nawaz and Khalid cape back to the office and started checking the record.
The D.S.P. Alongwith some police officials also came to the office and started investigation. She charged her Accountant Muhammad Nawaz for the theft. The stolen amount included amount of Rs,10 lacs, 50 thousands payable as salary which Muhammad Nawaz accused had intentionally kept with him. Rs,8 lacs and some thousands were the unpaid salaries. The entire amount amounted to Rs,18,90,000. The incharge of any centers had reported to her in writing that accountant Muhammad Nawaz accused had taken the responsibility for making payment through office and in this manner he used to collect amount from the employees. She had asked the incharges of centers as to why they failed to collect the amount for onward payment but they informed her that Muhammad Nawaz on the pretext that entries have not been made in cash book, intentionally delayed the payment. She further stated that Mir Bashar, Junior Clerk had brought an application, dated 2-7-1996 to her, which was typed on 1-7-1996 for payment of the salaries in cash rather than through cheques. This application according to him was typed on the direction of Muhammad Nawaz, Accountant. Nazirullah, Senior Clerk at Nowshera had also informed her that Muhammad Nawaz accused/appellant was behind the application. She had also asked Shakirullah about the keys of the office who had informed her that Muhammad Nawaz accused has asked him that in case he was late the keys were to be given to Rahmatullah, Chowkidar of Secondary Education Office. She stated to have signed Exh . P. W .4/1, Exh .P.W.4/2 , Exh . P. W .4/3 , Exh.P.W.4/4, Exh.P.W.4/5 and Exh.P.W.4/6. Syed Ahmad Shah, S.-I. Police Lines Nowshera (P.W.5) stated that during the days of occurrence he was posted as A.S.-I. At Police Station Nowshera Cantt., and that he is a marginal witness to the recovery memo. Exh.P.W.1/1, vide which a lock China made and a broken chain of Almirah Exh.P.1 and Exh.P.2., respectively, were taken into possession by the Investigating Officer in his presence. Wali Ayaz Khan, A.S.-I. (P.W.6) is the Investigating Officer. The statement of Mir Bashar was recorded as C.W.1, who stated that during the days of occurrence he was posted as Junior Clerk in the Office of S.D.E.O.(F), Nowshera. On the day of occurrence Muhammad Nawaz, Accountant sent him to the Office of District Accounts Officer to collect the pay bills which were returned for correction. When he was leaving the office Muhammad Nawaz accused instructed him that salaries and other amounts were lying in the cupboard of the office, therefore, he shall inform the Chowkidar to be careful. Therefore, he (the witness) while leaving the office, had instructed Shakir Akhtar accused to be present and vigilant.
5. After close of the prosecution evidence the accused were examined under section 342, Criminal Procedure Code, who denied the allegations. They also recorded their statements under sanction 340(2), Criminal Procedure Code. Muhammad Nawaz accused/appellant produced two witnesses in his defence..
6. The learned trial Judge after reproducing the relevant portions of the statements of the prosecution witnesses, held as under:-- ' "From the narration of the above facts and appreciation of the evidence of Exh.P.W.4/1, Exh.P.W.4/2, Exh.P.W.4/3, Exh.P.W.4/4, Exh.P.W.4/5 and Exh.P.W.4/6, it becomes obvious and easily comprehensive that the accused Muhammad Nawaz had ruthlessly, looted the amount of Rs,18,90,153 through his wilful manipulation by breaking the lock and hook/Kunda of the cash Almirah and leaving the window open in order to create some doubt against someone else and also leaving the office cautioning the Chowkidar. I am, therefore, led to the irresistible conclusion that the accused Muhammad Nawaz is guilty of the offence under sections 380/408, Pakistan Penal Code (instead of section 457, Pakistan Penal Code) under the circumstances of the case and under the provisions of sections 236/237, Criminal Procedure Code."
' The learned counsel for the appellant contended that the present case against the accused is that of no evidence, there is no ocular or circumstantial evidence connecting the accused with the commission of the offence. That the finding of guilty is based on the solitary statement of Mst.
Sajida Parveen P.W. Even she did not charge the accused/appellant nor suspected him' for the offence till the time proceedings were taken against her and she was removed from service. Her statement is nothing more than suspicion and vengeance as Muhammad Nawaz rightly put the responsibility on her not to make proper arrangement for the cash as it was she who had ordered payment of the salaries in cash rather than through cheques. As she had been found careless and lacking in performance of her duty and removed from service, therefore, her statement should not have been relied upon. It was further contended that strangely enough Hazart Hussain who was found by the Investigating Officer to have committed the offence, and declared absconder by the trial Court, was acquitted while the accused/appellant who was found innocent in the investigation was convicted. It was further contended that the statement of Mst. Sajida Parveen is full of improvements and contradictions. That the documents referred to by the learned trial Judge are the statements of accounts prepared by Muhammad Nawaz accused at the instance of Mst.
Sajida Parveen and signed by her so that the correct picture of the amount in respect whereof theft was committed shall be known to the Investigating Officer. These exhibits have wrongly been relied upon as incriminating corroborative evidence to the statement of Mst. Sajida Parveen.
7. After hearing the learned counsel for the parties and going through the entire evidence with their help, in the instant case as already pointed out nobody is charged or suspected for the commission of the offence in the report lodged by Mst. Sajida Parveen, S.D.E.O.(F), Nowshera, who was the incharge of the office. Muhammad Nawaz accused/appellant, who was working as Accountant in the Office during the days of occurrence, was to collect the salaries and other amounts from the National Bank of Pakistan under the direction and supervision of Mst. Sajida Parveen. During the investigation as usual Muhammad Nawaz accused/appellant and Shakir Akhtar were arrested and their five days police custody was obtained to recover the stolen amount in case they have committed the offence. Admittedly during those five days police custody the accused did not confess that they had committed the offence and as such the police failed to make any recovery from them, therefore, request was made for their further police .Custody and the learned Judicial Magistrate remanded them to further two days police custody, but even in these two days the police failed to collect any evidence to connect the accused/appellant with the commission of the offence. Rather after thorough investigation in the case and prolonged interrogation of the accused, Hazrat Hussain absconding accused was held to have committed the offence against whom warrant under section 204, Criminal Procedure Code was issued and proceedings under sections 87/88, Criminal Procedure Code taken. The S.H.O. Police Station concerned, thereafter recommended to the high-ups that the case shall be handed over for further investigation to C.I.A. Accordingly, the investigation was handed over to Rahmat Shah, S.-I.
Of C.I.A., Nowshera. He recorded the statements of Nasrullah, Abdul Manif, Mir Bashar and Sadiqullah and affirmed the report of the previous Investigating Officer that one Hazarat Hussain absconding accused who was serving with Ayub Khattak residing adjacent to the place of occurrence and his companions had committed the offence. The Investigating Officer in his cross- examination in Court admitted that as a result of his investigation both the accused were innocent.
Muhammad Sher Khan, Inspector (P.W.3), the then S.H.O. Police Station, Nowshera Cantt. Stated that when the First Information Report was being lodged by Mst. Sajida Parveen, she did not suspect her office staff for commission of the offence.
8. The only circumstantial evidence against the accused/appellant in this case is that he was the Accountant and it was his duty to disburse salaries under the direction and control of Mst. Sajida Parveen. He in his capacity as such received the amount from National Bank of Pakistan and other amounts and made part payment of the salaries and kept the remaining amount in the office: It was the duty and responsibility of Mst. Sajida Parveen to have taken all measures for safe custody of such huge amount. Had she made such arrangement the occurrence could have been avoided.
9. The learned trial Judge without judicious apparaisal of the evidence failed to determine the main issue as to whether prosecution succeeded in proving beyond reasonable ground that Muhammad Nawaz accused/appellant committed the offence. The learned trial Judge after giving the narration of facts and summary of the evidence laid great emphasis on the statement of Mst.
Sajida Parveen, S.D.E.O.(F), Nowshera. The learned trial Judge coined the following phrase:- {{URDU TEXT}} ' and observed that the Investigating Officer suppressed the phrase. The learned trial Judge, however, failed to elaborate the phrase as the complainant being the Head of the Office was in a better position, likewise Muhammad Nawaz, to know that a huge amount was lying in the Office.
Even all those working in the office, and though incharge of the circles in the sub-division were in the know of the fact that the monthly salaries of the employees of the department were to be collected from the main office. Although overall supervision and control of the office was that of Mst. Sajida Parveen she being incharge of the office, yet the phrase reproduced above about the knowledge was attributed to the appellant and made the basis for his conviction. The learned trial Judge has erred in basing conviction on such baseless assumption in absence of any other corroborative evidence.
10. As far as the statement of Mst. Sajida is concerned, she neither charged the accused in the F.I.R.
Nor suspected him for the commission of the offence. It was rightly pointed out by the learned counsel for the appellant that Mst. Sajida Parveen charged the appellant after she was proceeded against and removed from service.
10-A. As already pointed out Mst. Sajida Parveen did not charge the accused nor suspected him for the commission of the offence and according to her own showing she charged him when she was proceeded against and removed from service. Moreso, Muhammad Sher Khan, Inspector (P.W.3) did state that Mst. Sajida Parveen did not suspect the staff of her office for commission of the offence before him. Such being the case the learned trial Court was not justified to have relied upon the bare statement of Mst. Sajida Parveen in convicting the accused and acquitting Hazrat Hussain a declared proclaimed offender in the case. To sum up the above, the prosecution failed to prove its case against the accused/appellant. There is no ocular or circumstantial evidence connecting the accused/appellant with the commission of the offence of theft.
12. Accordingly, this appeal is accepted the judgment and order of the learned trial Judge, dated 8- 12-1999, is set aside and he is acquitted of the charge. The accused/appellant is on bail, his bail bonds stand discharged and sureties absolved from their liabilities. The case against Hazrat Hussain absconding accused will remain pending and shall be put on trial after his arrest.