' Appellant has been convicted under section 5(2) of Act II, 1947 for two months' R.I. And fine of Rs,20,000, in default whereof to further undergo S.I. For one month, vide judgment, dated 28-2-2000 passed by learned Special Judge, Anti-Corruption, Balochistan, Quetta, has been made impugned herein through this appeal.
2. Concisely stated facts of the prosecution case are that F.I.R. No,4/N of 1997 was registered with A.C.E. Dera Murad Jamali on the written complaint of Director Food, Balochistan, Quetta, on 17-3- 1997 under section 409, P.P.C. Read with section 5(2) Act II of 1947 against the appellant who was working as F.G.S. At Cattle Farm Procurement Centre District Jaffarabad. It was alleged that during the procurement campaign crop, 1996, Shahbaz Khan, F.G.S. Convict/appellant, at Cattle Farm Procurement Centre had made advance payment of 210 bags of wheat to local Zamindars. The value works out of Rs,92,925, and despite a lapse of considerable period he failed to deposit the amount. After investigation and completion of challan matter was brought before the Special Judge (Anti-Corruption), Balochistan, Quetta, for trial, on 6-8-1999 charge was framed and read over to him, to which he did not plead guilty and claimed trial. Prosecution examined P.W.1 Fida Hussain, S.-I. Police, P.W.2 Muhammad Younas Director Food, P.W.3 Fida Muhammad Kakar, Account Officer Food Directorate, P.W.4 Muhammad Nawaz, S.-I. Police and P.W.5 Muhammad Akram. Circle Officer Anti-Corruption, the statements of appellant were recorded as provided under sections 342, and 340(2), Cr.P.C. The appellant produced three D.Ws. In his defence. After conclusion of trial the appellant was convicted and sentenced as mentioned hereinabove.
3. Mr. Azizullah Kakar, Advocate appeared on behalf of appellant argld that the trial Court has failed to appreciate the evidence available on record while, convicting the appellant. He next contended that trial Court has also failed to point out and determine the grave and glaring contradictions in the version of prosecution witnesses and liability of the appellant in official capacity particularly the enquiries conducted thereby and on account of which appellant has been reinstated in the service. He lastly argued that the conviction and sentence awarded by trial Court be set aside and appellant be acquitted of the charge.
4. Mr. Ghulam Mustafa Mengal, Assistant A.-G. Appeared on behalf of State . And argued that well reasoned judgment has been delivered by the learned trial Court which is based on solid and cogent grounds as such no interference is called for by this Court.
5. I have heard the arguments so advanced by the parties, and perused the record of the case minutely, P.W.1 Fida Hussain deposed that on 9-6-1997 there was a meeting with Food Director at Quetta, Muhammad Aslam Qureshi, Superintendent. Food Department produced document Exh.P.1/A which was taken into possession by the Sub-Circle Officer, Nasirabad. P.W.2 Muhammad Younas Durrani, Director Food deposed that appellant made advance payment of 210 bags of wheat to Zamindar of the area and the same was found due against him. He wrote a letter for registration of F.I.R. Exh.P.2/A against the appellant. P.W.3 Nazar Muhammad Kakar, Account Officer Food Directorate, Quetta deposed that appellant made payment of 210 bags of wheat to the Zamindars, but wheat was not found available in the Procurement Centre causing damage to the Government amounting to Rs,92,925. In cross-examination he admitted that during Departmental enquiry appellant pointed out that amount of 200 bags of wheat were paid to one Zamindar Baqa Muhammad and he did not deliver 200 bags of wheat to P.R. Centre, certain letters were issued for recovery of due wheat from Zamindar Baqa Muhammad, two cheques were received from Baqa Muhammad but were dishonoured against the payable amount. The witness in cross-examination admitted that during enquiry it has come on record that 200 bags of wheat remained outstanding against Zamindar Baqa Muhammad P. W .4 Muhammad Nawaz deposed that during investigation certain documents i,e, from Account Branch were taken into possession vide recovery memo.
Exh.P.1/A. P.W.5 Muhammad Akram, Circle Officer, AntiCorruption/Investigating Officer deposed that during enquiry it was proved that appellant made advance payment of 210 bags of wheat amounting to Rs,92,925 to Zamindar Muhammad Baqa and he did not deliver the wheat to the Centre, he produced the challan Exh.P.5/B. The appellant in his statement also admitted that he purchased 1100 bags of wheat from Zamindar Baqa Muhammad, 900 bags were taken from him and 200 bags were outstanding against him, on account of rain in the area he could not collect the 200 bags of wheat and Baqa Muhammad dishonestly sold out the said wheat in open market, and the matter was well-informed to the Department. He further deposed that Baqa Muhammad handed over him two cheques of Rs,50,000 and Rs,38,000 but were dishonoured and could not be cashed. Two enquiries were conducted against the appellant one by Deputy Commissioner, Jaffarabad and the other by Food Department and the appellant was exonerated from the charge.
After reappraisal of evidence it has been established that appellant had made an advance payment of 200 bags of wheat to one Baqa Muhammad Zamindar of the area and he did not deliver the said wheat to the P.R. Centre, as per contents of F.I.R. The only allegation against the appellant is that he made advance payment of 200 bags of wheat and failed to deposit the amount in Government account. It has to be seen as to what offence has been constituted in the light of material available on record against the appellant during performance of his duties while working as F.G.S. At Cattle Farm Procurement Centre District Jaffarabad. There is no allegation against the appellant that he dishonestly misappropriated, concealed or disposed of the property himself or he wilfully allowed some other persons to do so, the charge of criminal breach of trust has not been established. It is pertinent to mention here that enquiry reports were brought on record during trial of the case, which were not denied by the prosecution witnesses i,e, P.W.3 Nazar Muhammad and P. W.5 Muhammad Akram/Investigating Officer apart from that Commissioner, Nasirabad appointed Deputy Commissioner, Jaffarabad Enquiry Officer, who on completion of enquiry submitted his report vide No,221/21/87/PA, dated 20-3-1998, the relevant portion is reproduced hereunder:-- {{URDU TEXT}} ' While second enquiry conducted by P.W.3 Nazar Muhammad was concluded and submitted with the final report to the Department on 12-8-1997, the operative portion of the same is as under:- "It is, therefore, proposed that the recovery will be made from Mr. Muhammad Baqa (Zamindar) and Dil Murad from Court of law."
The said enquiry was taken into consideration by the Department and appellant was reinstated on his post, during trial till passing of judgment he was performing his duties. The only offence which presumed to have been committed by the appellant is that while disposing of Government property certain directions and prescribed mode was ignored for procuring wheat from local Zamindars, but again nothing has been brought on record by specifying the terms and conditions of the purchase of wheat from local Zamindar, enabling this Court to reach a concrete conclusion, once adverse presumption has come on record in the shape of Enquiry Report and the plea taken by the appellant that he purchased 1100 bags of wheat from Zamindar Baqa Muhammad, who delivered 900 bags of wheat while 200 bags could not be collected due to rain and later on he sold out the said wheat in open market, now the onus again shifts on the prosecution to show how the direction or terms and conditions of contract, has been violated by the appellant. (1994 PCr.LJ 1116).
The appellant placed a document on record showing that an amount of Rs,92,925 has been deposited by Zamindars Muhammad Baqa son of Naik Muhammad and Dil Murad son of Nabi Bakhsh dated 10-3-2000 through Challan No,014018 dated 10-3-2001 on behalf of appellant in favour of Balochistan Food Directorate, during hearing of this appeal, which was duly verified by the learned Assistant Advocate-General.
What has been discussed hereinabove, the prosecution has failed to discharge the onus probandi (which) rests on the prosecution regarding advance payment of 200 bags of wheat in violation of any order or direction. In such circumstances no case under section 409, P.P.C. Regarding to criminal breach of trust is made out against the appellant, consequently the impugned judgment, dated 28-2-2000 passed by Special Judge Anti-Corruption, Balochistan, Quetta is set aside and appellant is acquitted from the charge.