1. The appellant through this criminal appeal has assailed the judgment dated 21-8-1995 passed by learned Special Judge (Central), Anti-Corruption, Hyderabad, in Case No,260 of 1989, whereby he convicted the appellant under section 409, P.P.C. and awarded him sentence to suffer R.I. for five years and pay fine of Rs,50,000, in case of default in payment of fine the appellant has to undergo to two years more.
2. The brief facts of the prosecution case are, that Divisional Manager, Utility Stores Corporation, Sukkur made a written complaint to the Assistant Director, F.I.A., Sukkur, which was subsequently incorporated in 154, Cr.P.C. book on 13-6-1983. The contents of letter are reproduced as under:-- "The Assistant Director, F . I . A., Sukkur.
3. Sub: F.I.R. AGAINST MR. IMAM BUX, ASSISTANT SALESMAN, POST OFFICE, HINGORJA C/O MEMON SHOPKEEPER, DISTRICT K HAIRPUR.
4. We may writ to inform you that Mr. Imam Bux, Assistant Salesman Post Office, Hingorja C/o Memon Shopkeeper, District Khairpur was working as Store Incharge Baqar Shah Market, Ranipur from 31-3- 1989 to 15-5-1993.
5. On the finalization of his accounts it was detected that misappropriation of stock worth Rs,29,270.48 has been committed by Mr. Imam Bux Assistant Salesman as per detail attached.
6. We are therefore, deputing Mr. Ishfaque Ahmed Soomro, Area Manager of this. Division, with the request to please lodge an F.I.R. against Mr. Imam Bux so as to effect the recovery of the amount misappropriated by him in the shape of stock/cash. A copy of F.LR. may also be given to us for our record and for onward submission to our Head Office.
7. (Sd.) Zulfiqar Ahmed, Divisional Manager."
8. After registration of F.I.R. the F.I.A. commenced investigation and recorded the statements of witness Shakil Ahmed, Accounts Officer on 23-6-1983. Likewise statement of P.W. Zulfiqar Ahmed was also recorded on 9-7-1983. Appellant. Imam Bux sought his bail and appeared before F.I.A.
9. Authorities on 23-7-1988 who was then interrogated by the police. On 22-7-1983 statement of Ishfaque Ahmed Soomro was recorded. Statement of P.W. Syed Bashir Ahmed and Abdul Rasheed Shaikh were recorded on 24-7-1983. After completing the investigation challin was submitted in the Court of Special Judge.
10. Formal charge was framed on 21-2-1985 under section 409, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947, to which the accused pleaded not guilty and claimed to be tried.
11. In support of the case, the prosecution examined Shakeel Ahmed, Accounts Officer as Exh.3, who produced the price list and index as effective on 30-3-1983 as Exh.4, price variation forms Exhs.5, 7 and 8. Statement of goods sold from 1-4-1983 to 15-5-1983 as Exh.6. Price List as Exh.9. Store Inventory Central Ledger Exh.10 and statement of Store Accounts as Exh.11. P.W., Zulfiqar Ali Regional Manager, Exh.12 who has produced copy of statement of store account Exh.13 and letter under which F.I.R. was registered as Exh.14, P.W. All Ahmed, Incharge Complaint Cell Exh.15, has produced the F.I.R. as Exh.16 and letter under which he had received the F.I.R. as Exh.17.
12. After framing the charge on 20-2-1985, the prosecution failed to examine prosecution witnesses despite the repeated process and the same could not be returned served or unserved. The prosecution within the period of 10 years could only examine three witnesses till 20-5-1995, therefore, the side of prosecution was closed and the statement of appellant under section 342, Cr.P.C. was recorded.
13. In his statement under section 342, Cr.P.C. the appellant denied allegations levelled against him. He denied that he had misappropriated the stock of utility store worth Rs,29,270.48 but stated that the old stock lying in the gore was not mentioned in the list. He took a plea that P.W., Shakeel Ahmed had audited store and prepared a note in presence of some persons and thereafter the utility store was sealed. One key was kept with Shakeel Ahmed whereas the other was with him. He however, admitted that he was given a letter to hand over the charge but subsequently the locks were broken in his absence and the charge was handed over to one Iftikhar Hussain and he made such complaint to F.I.A. Police in this regard. He however, took a plea that Shakeel Ahmed had demanded money from him but he refused to pay the same and therefore, he issued threats to him. He further stated that prior to this incident letter of good performance was issued to him by Divisional Manager. He stated that at relevant time Sikandar Ali and Shouban Ali were present to whom he examined in his defence. The aforesaid witnesses stated that the appellant had requested the officers to take the stock from the store but they refused and he was thrown outside the store. After about half or a month, 'few vehicles came and took away the material from the store lying inside it.
14. The record shows that prosecution examined three witnesses namely Shakeel Ahmed, Accounts Officer, P.W. Zulfiqar Ahmed, Regional Manager and Ali Ahmed P.W. Incharge, Complaint Cell, Zonal Office F .1. A . , Karachi.
15. The testimony of P.W. Shakeel Ahmed shows that stock checking of the store in the first instance had taken place on 31-3-1983 and it was found that stock worth Rs,58,626.25 was lying in the store.
16. Such report was prepared at the spot by P.W. Ghous Ali Shah the salesman of USC House, Sukkur.
17. Witness Ghous Ali Shah who signed this initial report Exh.4 has not been examined by the prosecution. Again on 15-5-1983 P.W., Shakeel conducted surprise checking of said store and detected criminal misappropriation of various goods worth Rs,29,270.48 and only stock valued at Rs,21,599.73 was available in the store. Such report Exh.9 was prepared. It is stated by the aforesaid witness that shortage of articles as per the inventory control register was admitted by the accused in presence of Divisional Manager, Area Manager and P.W. Shakeel, Accounts Officer. I have gone through Exh.9. It also contains a note of accused that damage stock has not been taken and it is returned to him. The said note further contains that credit bills to warehouse have also not been checked in the inventory list.
18. The report was produced as Exh.10 which is store inventory control ledger and it bear signatures of Divisional Manager, Area Manager and Accounts Officer. Unfortunately the prosecution has neither examined Divisional Manager nor Area Manager to substantiate the inventory list Exh.10. It is further deposed by P.W. Shakeel that his surprise checking was made with permission of Divisional Manager. Neither Divisional Manager has been examined as witness nor such letter has been produced on record. On this crucial day i.e. 15-5-1983 Clerk Mujahid Hussain of Accounts Officer was present at the time of checking . and had signed the report prepared by the Accounts Officer.
19. The said witness Mujahid Hussain Clerk of Accounts Officer has not been examined by the prosecution. It is stated by witness Shakeel that store was sealed under the orders of Divisional Manager and the keys were returned to accused and after that such information was conveyed to Divisional Manager. As discussed above, the Divisional Manager has not been examined to substantiate all these pleas. Similarly, about the desealing of the store, P.W., Shakeel has deposed that he does not know as to who sought the permission to deseal the store. After desealing the shop, the charge was entrusted to one Akhtar Hussain. The inventory report of that stock has not been produced on record as to what was available on that day. The prosecution has also not examined said Akhtar Hussain as a witness. Accounts Officer Shakeel Ahmed is the main witness of this story and aforesaid lacunas obviously appear on the record. Furthermore it is testified by Regional Manager, Zulfiqar Ahmed in his deposition that the Accounts Officer Shakeel Ahmed was also facing trial in the Court of Special Judge in a case of similar nature. It would not be safe to convict the man on, the basis .of testimony of a sole witness who is not trustworthy and serious allegations have been levelled against him. Perusal of impugned judgment demonstrates that the learned trial Court has placed much reliance upon Exh.9, which bears the signatures of accused his admission but still the burden was on prosecution to prove its case beyond any shadow of doubt and then he lost sight of a note of accused on Exh.9.
20. Another witness Zulfiqar Ahmed, is the Regional Manager. His evidence does not in any way implicate the present appellant. He has submitted the report as Exh.13 said to have been prepared by Accounts Officer Shekeel Ahmed. His report has neither been shown to Accounts Officer nor is certified by him. Regional Manager does not know anything as to what happened at the time 'of handing over and taking over the charge at utility store. He however, admitted that handing over and taking over of the charge must take place on the same day. He has replied in negative that the misappropriation was made by Shakeel Ahmed and the present appellant was falsely implicated.
21. Lastly, the prosecution examined P.W., Ali Ahmed. He was Inspector, F.I.A. He simply recorded statement of witnesses and conducted investigation in the case after completing the same submitted challan.
22. I do not agree with the contention of learned Standing Counsel that since there was no sanction, therefore, proceedings against the accused were without lawful authority. The finding of trial Court to that effect appears to be correct that since the appellant at the time of taking cognizance was not public servant but at the time of commission of offence, he was acting as a public servant.
23. Since the cognizance was taken after the dismissal of appellant from service therefore, no sanction for prosecution was required in such event. The reference can be had to a case of Muhammad Abbas v. The State 1974 SCM R 445.
24. I have examined the documents produced on record and seen the charge framed by the trial Court. The charge contains that appellant being public servant was entrusted store articles worth Rs,29,270.48 for which he did not account for and thereby committed criminal breach of trust, although, the prosecution case is totally different. The charge against accused is defective and then important prosecution witnesses have not been examined to prove the charges levelled against the appellant. The proceedings in the trial continued right from the year 1983 up to year 1995 when he was convicted in this case. Since the very charge is defective and the case for the aforesaid reasons suffer from patent irregularities which casts serious doubts upon the prosecution story and the prosecution failed to prove its case beyond doubt.
25. It would not be proper to remand the case back for the framing of fresh charge as this case is 20 years old, therefore, I had set aside the conviction and allowed this appeal by a short order dated 11-3-2003. Above are the reasons for the same.