' Muhammad Nazir Khan, respondent/accused was tried by Mr. Abdul Hamid Khan Khattak, Special Judge Central, Rawalpindi, in a case bearing F.I.R. No,62, dated 18-9-1995, registered under section 409, P.P.C. With Police Station Domeli, District Jhelum and was acquitted while giving him the benefit of doubt vide judgment, dated 15-7-1998. Hence this appeal.
2. In accordance with the complaint Exh.P.A. Submitted by Mushtaq Ahmad, Regional Manager, Utility Stores Corporation of Pakistan (Pvt.) Limited, Rawalpindi on basis ()I' which formal F.I.R.
Exh.P.A./1 was drafted at Police Station Domeli, District Jhelum, the allegation against the respondent was that he was asked to hand over the charge of the store on 24-8-1995 to Mowaz Khan, but he after receiving Office Order remained absent from the store, so he absented from duty. Consequently when the store was checked under the supervision of a Magistrate on 3-9-1995 after breaking the locks, it transpired that there was an embezzlement of Rs,21, 38,941.45 in the store and it was made by the respondent during his period. After registration of the case under section 409, P.P C. The investigation was conducted and after its completion, the challan was submitted in the Court for trial.
3. In order to prove its case, the prosecution produced Dilawar Khan, H.C., P.W.1, Mushtaq Ahmad, Regional Manger P.W.2, Mowaz Khan Salesman P.W.3, Mubarik Ahmad, Inspector/Investigating Officer, P.W.4, Ahmad Khan, A.S.-I., another Investigating Officer P.W.5, .Azhar Mehmood, Constable P.W.6, Ghulam Rabbani, Senior Accounts Assistant P.W.7 and Muhammad Azam, S.-1. P.W.8 and, thereafter, the prosecution case was closed.
4. When Muhammad Nazeer Khan respondent/accused was examined under section 342, Cr.P.C.
He denied the allegations as levelled by the prosecution and professed about his innocence. He made his statement in detail in this regard when he was questioned as to why this case was registered against him and that why the prosecution witnesses deposed against him, he replied as under:- "Muhammad Anwar Area Manger, Ghulam Rabbani P.Ws. Had been pressurizing me to become disciple of Habib Peer P.W. But I refused. They had also been coercing me to give share of money from this Store to Habib Peer P.W. But I refused. Thereafter, they maintained me for dire consequences of bringing false cases against me and for that grudge they having joined hands cooked up this false case against me. I am innocent. As many as 26 or 28 other officials of our department were also joined during investigation and inquiries were conducted against them about this incident but as they greased the palm of higher officers they went scot free and I was made a scapegoat. During my stay at Domeli my store was checked for 16 times on quarterly checking basis and for eight times there was surprise checking but nothing was found objectionable. On 30-6-1995 there was internal audit on close of the year but the record as well as the store was found in order. 1 deny my signatures on stock debit notes as somebody else might have put my signatures thereon. Ejaz had been working with me on that store as Assistant Salesman and no other official of USC ever worked with me on permanent basis. For sometime even Ejaz had taken charge at Sohawa Utility Store and thereafter I had all alone been running Comely Utility Store. No person on daily wages or on permanent wages was deputed to work with me. The case against me is false, baseless and for some ulterior motive. The prosecution witnesses made statements and levelled allegations against me verbally and did not prove any entrustment to me by producing any official document. The goods entrusted to me as store incharge had been disposed of in accordance with the rules and I deposited daily cash in the bank and the goods lying in the store valuing Rs,7,79,309.15 which were entrusted to me as per Exh.P.B.
' No other goods valuing Rs,21,38,94I .45 had ever been entrusted to me as such I have not committed any breach of trust or. Embezzlement. My previous record is unblemished. During investigations nothing has been recovered from me."
' While disposing of this case the learned trial Court found that the material ingredients of section 405, P.P.C. Could not be proved; that it could not be established from the record as to when exactly the accused left the store while proceeding on leave; that who thereafter had been opening and running the store and in order to establish the entrustment of the articles to the accused the prosecution failed to produce the Incharge of the Warehouse who handed over the articles to the truck driver who in turn delivered the same to the accused, even they were not associated in the investigation nor cited as prosecution witnesses in the calendar of witnesses and that the lists of articles in token of receipts of the goods were not rendered in investigation and when these shortcomings in the prosecution case were brought into picture by the learned defence counsel, then applications under section 540, Cr.P.C. Were moved at the belated stages, the first application under section 540, Cr.P.C. Was dismissed on 8-5-1998 with reasons that actually the prosecution failed to bring on record the convincing evidence to connect the accused with the commission of offence and by examining this case by all angles the trial Court further found that mere shortage in the store was not sufficient to constitute the entrustment and misappropriation personally and physically by the accused alone, therefore, the respondent/accused was acquitted vide judgment, dated 15-7-1998.
5. I have heard the learned counsel for the parties and have gone through the relevant record placed before me.
6. It appears from the record that the prosecution moved first application under section 540, Cr.P.C.
On 31-3-1998 for summoning Ahmad Jahangir, Naib Tehsildar, Munir Ahmad, Area Manager, Syed Habib Peer, Accounts Officer who were the Members of the charge committee and in their presence the store was checked; even in their presence Ahmad Jahangir, Naih-Tehsildar, had sealed the shop/store later on and in their presence, locks were broken for checking. It would appear from this application on the record that no such witness was mentioned in this application who could prove that at different stages who had supplied the articles of the store at Domeli running under the supervision of Nazir Ahmad Khan accused; even the truck driver who brought the articles at the store was not mentioned; similarly the statements showing delivery and receipts of the articles were not mentioned. The second application was moved on 14-7-1998 stating therein that the Store Accountant alongwith the documents' in question could not be produced, therefore, for the just decision of the case the Store Accountant alongwith the documents be allowed to be produced. This application was moved after submission of the final arguments. The applications themselves show that the prosecution admitted the fault of not producing the evidence on entrustment and misappropriation personally by the respondent/accused.
7. Anyhow, the learned counsel for the appellant argued that all relevant documents showing the entrustment were handed over to the Investigating Officer, therefore, while refusing both the applications under section 540, Cr.P.C., the learned trial Court failed to examine that as to whether the evidence of the witnesses alongwith the documents was essential or not for just decision of the case which is the basic requirement of section 540, Cr.P.C. And actually under section 540, Cr.P.C. It is the duty of the Court to sift the grain from chaff and in view of these circumstances after setting aside the judgment passed by the learned trial Court, it is a case of remand and it should be disposed of after recording the statements of the prosecution witnesses alongwith the record as cited in the applications under section 540, Cr.P.C. He referred to the cases reported in Muhammad Azam v. Muhammad Iqbal and others PLD 1984 Supreme Court 95 (Shariat Bench); The State v.
Muhammad Yaqoob and others 2001 SCM R 308 (Supreme Court of Pakistan); Muhammad Mehdi v.
The State and 4 others 2000 M LD 193 (Lahore); and Makhboor Hussain and 2 others v. Tazarab Hussain and another 2001 PCr.LJ 1046 (Sh.C. (AJ&K)) in support of his arguments.
8. On the other hand the learned counsel for the respondent/accused argued that both the applications under section 540, Cr.P.C. Were moved at the belated stage; that the witnesses mentioned therein were not cited in calendar of witnesses, therefore, allowing of such applications would have amounted to fill up the lacunas in the prosecution case and under these circumstances both the applications were rightly dismissed and when there was no evidence on the question of entrustment and misappropriation personally and physically by the accused, the prosecution case was full of the doubts and that the learned trial Court had rightly acquitted the respondent. He placed reliance on the cases reported in Manzoor Ali v. The State, 1998 PCr.LJ 2042; Bashir Ahmad v. The State 1985 PCr.LJ 864; Khalid Hamid v. The State, 1985 PCr.LJ 836 (Lahore); The State v. Atta Ullah 1990 PCr.LJ 163 (Peshawar); and Mst. Safdar Jan v. The State and another, 1997 PCr.LJ 1553 (Lahore) in support of his arguments.
9. The perusal of section 540, Cr.P.C. Would reveal that this section is divided into two parts which are as under:--
(a) Any Court may, at any inquiry, trial or other proceedings under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine a person already examined;
(h) And the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it essential to the just decision of the case."
' So far as the first part is concerned the word "may" has been used to reflect on the discretion of the Court to this effect that the Court is empowered to summon any person as a witness during an inquiry, trial or other proceedings. During any inquiry, trial or other proceedings means at any stage before the conclusion of the inquiry or trial. Therefore, it means that when an application is moved by any party for summoning a person as a witness it should not be observed that the application has been moved at the belated stage and such observation may be recorded if inquiry and trial have been concluded.
10. So far as the second part is concerned, the word "shall" has been used for summoning a person as a witness if it appears that the evidence of such person is essential to the just decision of the case. Meaning thereby if there is a material witness having deep-rooted effect on the fate of the case, such witness must be summoned before the conclusion of the inquiry and trial. If the arguments are heard during inquiry and trial it does not mean the inquiry and trial or other proceedings have been concluded. Such aspects would be believed to be concluded if the judgment or order is announced whatsoever is the case either inquiry or trial.
11. Now in the instant case there was an allegation of the embezzlement of pubic money. Had there been misappropriation of the private money the complainant would have pursued his case vigilantly. It is known to everybody as to what happens in prosecution of a State case and mostly it happens that the State case is treated to he a dead horse and everybody is seen busy in burying the same.
12. The question worth examination in the instant case was as to who actually misappropriated the public money. Obviously there was the entrustment of the articles at the Store where the respondent/accused was posted as salesman. If the articles had been delivered to him from the warehouse through the truck driver, then oral as well as documentary evidence was available and even such type of material directly or indirectly seems to be available on the record but it could not be summoned because of negligence or because everybody was busy in burying the dead horse, after all as to what is the duty of the Court as indicated in section 540, Cr.P.C. This section speaks about the powers of the Court to sift the grain from the chaff because there can be no other responsible for misappropriation except the Incharge of the warehouse or the Incharge of the Store. This section means that the Court must record the statements of such witnesses even as a Court-witnesses if evidence of the witnesses appears to be essential for just decision of the case and by doing so an opportunity to both the parties should be given for cross-examining the witnesses and if any incriminating material comes on the record it should be put to the accused by recording supplementary Statement under section 342, Cr.P.C. In fact the learned trial Court made no effort to sift the grain from the chaff and the duck disappeared in the bushes/technicalities. The judgment passed by the learned trial Court cannot sustain in the eye of law.
13. In view of above discussion, the judgment passed by the learned trial Court, dated 15-7-1998 is set aside and the case is remanded back with a direction to decide it afresh in the light of the observations as made above. The appeal is disposed of accordingly.
14. The parties are directed to appear before the learned trial Court on 19-8-2002 and the learned trial Court is directed to dispose of this case expeditiously preferably within two months under intimation to this Court.
' Copy of this judgment shall be sent to S.S.P., Jhelum with direction that he may proceed against the police officers who conducted the investigation in this case negligently.