ZAHID HUSSAIN Versus STATE

FAZAL‑UR‑REHMAN, J . ‑‑‑This is an appeal against the judgment, dated 20‑12‑1999, passed by the learned Special Judge Anti‑Corruption Balochistan; Quetta by which he convicted and sentenced the appellant as under:‑‑

(i) Under section 409 P.P.C. ten year R.I and fine of Rs.5,00,000 (Five Lacs). In default of payment of fine, he shall further undergo three years. B.I. ‑

(ii) Under section 5(2) Act II of 1947 . Two years' R.I. and fine of Rs.2,000 or in default, to further undergo three months' S.I.

Both the sentence were directed to run concurrently. The appellant was also granted the benefit of section 382‑B, Cr.P.C. and to avail the facility of his release on probation subject to payment of fine amounting to Rs.5,00,000. The allegation against the appellant was that while he was posted as Junior Clerk/Incharge of P.R. Centres Marjo Shori and Ghot Dilmurad, Dera Murad Jamali during the year of 1996 purchased 995 bags of wheat at the cost of Rs.4,40,287 by making advance payments to the Zamindars and criminally misappropriated 995 bags of wheat by resorting to illegal means and thereby committed an' offence punishable under section 409 read with section 5(2) Act 11 of 1947.

2. Brief facts of the case are that one letter, dated 14th March, 1997 from Director Food, Balochistan, Quetta was addressed to the Deputy Director Food Sibi Division, Sibi and copy thereof endorsed .to Anti -Corruption Establishment Balochistan, Quetta. On 17‑3‑1997 the same was incorporated in the F.I.R. being Crime No.3‑N of .1997 Police Station A.C.E. _Dera Murad Jamali, District Nasirabad. The contents of Exh. P6‑A being very imporant are reproduced below for the sake of facility:‑‑

Subject: Submission of Accounts.

During the procurement campaigns crop, 1996, at Nasirabad Division, the following officials have made an authorised advanced payment of wheat stock to local Zamindars‑ as noted against each:‑‑

S.NO.

NAME OF OFFICIAL

QUANTITY

AMOUNT

1.

Mr. Lutuf Ali Jamali, FGS

213 bags.

Rs. 94,252.50

2

Mr. Abdul Baqi Baloch, FGS

369 bags

Rs.1,63,282.50

3.

Mr. Qaidmuddin Senior Clerk

171 bags.

Rs.75,667.

4.

Mr. Zahid Hussain, Junior Clerk

995 bags.

Rs.4,40,287.50

You are, therefore, requested that a case against the abovenamed officials may be registered with the Anti‑Corruption Establishment immediately. All relevant record may be taken away in your custody and photo copies be provided to the A.C.E. as and when required. A copy of F. I. R. may also be sent to this Directorate."

3. After usual investigation the accused/appellant was challenged vide Exh.P.6‑B. The names of Lutuf Ali and Qaimuddin find place in Column No.2 of challan who have since been discharged by the learned Special Judge on 15‑6‑1999. The relevant portion of the said order is reproduced 'below for the sake of facility:‑

"Since both the accused have been shown in column two of the challan and as both of them have deposited the amounts coupled with the fact that District Anti‑Corruption Committee had decided to proceed Departmentally against them, therefore, request of both the accused namely Lutuf Ali Jamali and Qaimuddin is allowed. They are accordingly discharged. However, if during recording of evidence, some incriminating material is found, they shall be summoned again."

4. It may also be stated that the name of one Abdul Baqi has also been shown in Column No.2 of the challan in red ink and order regarding proceedings under sections 87 and 88 against the said absconding accused has been made by the trial Court.

5. On 23‑6‑1999 charge under section 409/420/477‑A, P.P.C. read with section 5(2) Act, II of 1947 was framed against the accused by the trial Court to which he pleaded not guilty and claimed trial.

5‑A. At the trial, prosecution examined PWA Fida Hussain who is marginal witness of recovery memo. Exh.P/1‑A and has produced documents Articles A‑1 Jo A‑33. P.W.2 Haji Abdul Haleem has produced enquiry report against Abdul Baqi as Exh.P/2‑A. P.W.3 Muhammad Younas who was at the relevant time posted as Director Food, Balochistan has produced Exh.P.3‑A, P.W.4 Nazeer Aftab who was posted as Deputy Director Food has produced Article A/34 which was declared by the learned trial Judge as inadmissible in evidence on an objection which was raised on behalf of accused/appellant at the time of examination‑in‑chief of the said witness. P.W.5 Muhammad Aslam Qureshi was employed in the Food Department as Superintendent Accounts had produced documents which were taken into possession vide recovery memo. Exh.PI‑A. P.W.6 Muhammad Nawaz is the Investigating Officer who conducted investigation and identified signature of Malik Muhammad Akbar I. P. available‑on challan which he. has produced as Exh.P/6‑B. ,

6. In his statement recorded under section 342, Cr.P.C. the accused/appellant has denied his guilt. According to him he was falsely implicated in this case while the actual accused persons were let off and he has been made scapegoat. He has, however, pleaded innocence. Neither he made any statement on oath as per provisions contained under Section 340(2), Cr.P.C. nor led any defence.

7. The learned trial Court on conclusion of the trial and assessment of the evidence formulated the following points for determination:‑‑

(1) Whether in the year 1997, accused Zahid Hussain, being Incharge of P.R. Centre Goth Dil Murad and Nangoo Shori misappropriated as sum of Rs.4,40,287.50 by making advance payments to Zamindars for 995 bags of wheat without receiving the wheat ?

(2) What offence is made out ?

8. The learned trial Judge also relied upon Article A/34 which he had declared inadmissible during the trial and concluded that the prosecution has succeeded to prove its case against the accused under section 409, P'.P.C. read with section 5(2) Act, II of 1947. He has concluded in the following terms:‑‑

"The evidence produced by prosecution clearly establishes that accused was Incharge of P.R. Centres of Manjoo Shori and Goth Dil Murad. The statement of P.W.3 Director Food was not shaken on this point, rather it confirmed that he had advanced the amount to the Zamindars without getting the delivery of wheat. He has not produced Assistant Director Zaman to prove that he was authorized to make advance payment to the Zamindars for the purchase of wheat. On one hand, the suggestion put to P.W.3, verify that he had made advance payment as Incharge of the P.R. Centre, thus, his stand becomes contradictory. This contradictory stand establish his involvement in the transaction of wheat. Besides, if he had not been the Incharge of P.R. Centre and he had not made the advance payments, he should have produced evidence on this point. In addition, he should have initiated action against the Zamindars and never delivered the wheat. He never proved the stand, taken by him."

9. The present appeal is directed against the said Judgment.

10. We have heard Mr. Ali Ahmed Kurd, Advocate learned counsel for the appellant and Mr. Noor Muhammad Achkazai, Additional Advocate- General for the State.

11. After considering the submissions made by the learned counsel for the appellant we are of the considered view that the prosecution has not been able to establish its case against the present appellant and the same is doubtful in nature. In a case where the charge against an accused person is one of criminal breach of trust, the prosecution must prove not only entrustment of or dominion over property but also that the accused either dishonestly misappropriated, converted, used or disposed of that property himself or that he wilfully suffered some other person to do so. The prosecution must affirmatively prove this ingredients of the offence unless the receipt of money is admitted and the accused offer no satisfactory explanation of which he did with it. The prosecution had not established the case against the present accused/appellant beyond any reasonable doubt. The document which had earlier been declared as inadmissible in evidence and again relying on the same hardly needs further comments. Similarly, the discharge of co‑accused persons and convicting the appellant on the basis of invalid evidence also need no further comments as the impugned judgment is silent in respect of accused persons who were discharge by the learned Special Judge and absconding accused Abdul Baqi. Mr. Noor Muhammad Achakzai learned Additional Advocate‑General who is representing the State has conceded that after excluding Article 34 there remains nothing on the basis of which the accused can be convicted of the offence which was alleged against him. The prosecution has also not been able to indicate that any of the documents which had been produced during trial bear the signatures of appellant or the same have been sent to any handwriting expert. Similarly, no appointment letter regarding the appointment of appellant as incharge P.R. Centres has been validly brought on record. The evidence available on record is in no way sufficient to lead to a conclusion that the present accused appellant has committed the offence alleged against him. The Hon'ble Supreme Court in case Shakir Hussain v. The State reported in PLD 1956 at page 417 have made the following observations:‑‑

"Subject to certain exceptions, the most important of which is to be found in section 105, Evidence Act, the admitted and otherwise firmly established principle being that, before the prosecution can ask for a conviction of a criminal offence, it is its duty to prove each ingredient of the offence beyond a reasonable doubt, it is obvious that where the charge against an accused person is that of criminal breach of trust, the prosecution must prove not only entrustment of or dominion over property but also that the accused either dishonestly misappropriated, converted, used or disposed of that property himself or that he wilfully suffered some other person to do so."

Reliance can be also be placed on PLD 1962 SC page 489, 1981 SCMR page 573.

12. Following the principle laid down in the cited authorities we are of the view that the case of the prosecution is doubtful and the prosecution evidence cannot be relied upon for the conviction of the appellant.

13. After taking into consideration the relevant facts and circumstances of the case we have reached the conclusion that the prosecution has not proved the charge beyond reasonable doubt and accordingly benefit of doubt is extended. The conviction and sentence of the appellant recorded by the learned Special Judge are set aside and he is acquitted of the offences for which he was convicted and sentenced. He be released forthwith if not required in any other case.

These are the reasons of our short order, dated 24‑2‑2000.

H.B.T./30/Q

Appeal accepted.