ABDUL SHAFIQ Versus THE STATE Ali Ahmed. Khanzada , S. Sarfraz Ahmed, A.A.-G.

1. Appellant Abdul Shafiq who was employed as an Assistant Salesman‑cum‑In charge Utility Store Unit No.8 Latifabad, Hyderabad, was convicted by Special Judge Anti‑Corruption (Central) Karachi under section 409 P.P.C and sentenced to suffer R.I. for 6 months and to pay a fine of Rs.10,000. In default of payment of fine he was to suffer further R.I. for one month. This appeal has been preferred against the said conviction and sentence.

2. The allegations levelled against the appellant are spelt out from the charge which reads as under:

2. Charge;

3. I, Kazi Atta Mohammad, Special Judge (Central) Karachi do hereby charge you:

4. Abdul Shafique s/o Abdul Hafeez as follows:‑

5. That you Abdul Shafique being employed as Assistant Salesman cum‑Incharge Utility Store Unit No.8 Latifabad Hyderabad and as such a public servant in the employment of Central Government, some times during the period intervening 19‑5‑1977 to 18‑5‑1978 on being entrusted goods and material of the total value of Rs.2,05,510.76, for sale committed criminal breach of trust of the goods and articles of the value of Rs.8,019.45 therefrom and thereby committed offence punishable under section 409 P.P.C read with section 5 (2) of Act II of 1947 within the cognizance of this Court.

3. The appellant pleaded not guilty to the charge and claimed to be tried. I have heard Mr. Ali Ahmed Khanzada Advocate for the appellant and A.A. ‑G. for the State.

4. The learned trial Court on the basis of evidence of P.W. 1 Kalimullah who was predecessor of the appellant in that store and P.W. Abdul Jalil who was his successor therein and on the basis of evidence of P.W. Masood Akhter, Abdul Latif, Mohd. Umer, Sardar Ahmed, Mohd Younis, Ali Anwer, Ahsan Ali, Abdul Waheed, Muhammad Sabir, Muhammad Rafiq, Shabbir Ali and Allahdino came to the conclusion that the appellant was supplied goods worth Rs.25,510/76 from 19‑5‑1977 upto 8‑5‑1978 and that out of these goods he had sold goods worth Rs.1,61,022/99 and since on 20‑9‑1977 he was in possession of goods valuing Rs.31,291/31 only, hence there was a shortage of goods worth Rs.6,298/88. The learned trial Court therefore came to the conclusion that this shortage having not been explained by the appellant amounted to criminal breach of trust and consequently convicted him under section 409, P. P. C.

4. It is contended by the counsel of the appellant that the appellant had been given 80 bags of Dal and Rice which were shown in the respective fards as weighing 80 Kg. each but the same when opened were found to be short by 2 or 3 Kg each. These bags were not to be sold by the appellant intact but the bags were to be opened and were to be sold in retail. Naturally when the bags were not according to their weight mentioned in the fard, the amount of value mentioned on the fard could not be recovered from the retail sale of the contents of those bags. In this connection I am referred to the statement of the appellant under Section 342 Cr.P.C. and the written statement filed alongwith it by the counsel for the appellant. In reply to question No.5 the appellant has stated that when Abdul Latif had supplied him store articles of the value of Rs.1,20,156/61, those articles were not weighed while handing over to him. In the written statement in Para No.6 the appellant has alleged in detail about the shortage in the bags. The relevant para reads as under:‑

6. "QUESTION: ‑

7. It is alleged that store articles valuing Rs.l, 20,156/61 were supplied to you by PW. Abdul Latif and he had obtained your signature on debit notes Ex.11/11 to 11/82 in token of having received the store articles what have you to say?

8. Ans:‑

9. The articles were supplied to me as above but its price was not mentioned nor those articles were weighed while handing over the same to me. I had also complained to that effect. Debit Notes Ex.11/11 to 11/82 bears my signature."

5. My attention was also drawn to Exhs.13, 14, 15 and 16. These Exhibits read as under: ‑

10. Mr. Latif R.P.A. Incharge

11. Utility Stores Latifabad,

12. Hyderabad.

13. As I have already written to you that the Gunny bags of rice and pulses are weighing K‑78, K‑80. Therefore we are informing you in writing for your attention. Sd/‑Illegible Manager Utility Stores No.10 Unit No.8 Latifabad, Hyderabad.

14. Mr. Latif, Please Discuss. (Sd.)

15. Illegible.

16. Mr. Latif R.P.A. Incharge

17. Utility Stores Latifabad,

18. Hyderabad.

19. It is being written with great sorrow that you are not paying any attention to the weight of Gunny bags. Please do not put us in trouble and you should bring this matter to the knowledge of high Officers. The gunny bags of rice and pulse are being sent weighing K‑78 and K‑80. Send full weight.

20. (Sd.) Illegible

21. Manager Utility Stores 10 Latifabad

22. Unit No. 8

23. Mr. Latif. Pl.

24. (Sd.) Illegible

25. To

26. The D.M.

27. U. S. C., Hyderabad

28. Sir,

29. It is submitted that on 17‑5‑1978 three gunny bags of rice were received at Store No.9 from R.P.A. which were apparently short (in weight) we had informed and shown to R.P.A. Authorities at the same time that the said gunny bags are very short, then the said gunny bags were weighed and it was given to R.P.A. Authorities in writing. Therefore, according to your order, Mr. Rizvi, the Inspector, got all the said three gunny bags weighed and the weight found was 79‑79‑81 K and this weight is correct. You are,‑therefore, informed that such type of gunny bags have been sent prior to this also which has already been written to R.P.A.

30. (Sd.) Illegible

31. 24‑5‑1978,

32. Manager

33. Utility Stores Latifabad

34. To,

35. The D.M.

36. Utility Stores Corporation Office,

37. Hyderabad.

38. Sir,

39. It is submitted that three bags of rice have come today on 17‑5‑1978. Out of these we have taken weight of two bags. The weight of first bag is 79/80 Kilos and the other weighs 81 Kilos. Therefore, we have kept the said bags intact so that your self or any person from S. R. P. could and check thereafter, we shall get it sealed. Prior to this, there has been shortage in goods in the same manner, whenever received. It is, therefore, written for your kind information.

40. Received.

41. (Sd.)

42. (Sd.) Illegible 17‑5‑1978.

43. Manager Utility Stores

44. Latifabad No.8, Store No. 9

45. Unit No.8 Latifabad, Hyderabad.

6. A perusal of these Exhibits would show that from 15‑9‑1977 upto 24‑5‑1978 the appellant had been complaining to the concerned officers about the shortage in the weight of the bags of rice and dal. In letter Exh.14 he had sent two bags intact complaining that the weight was short and that the same may be checked. It appears from letter Exh.15 that the bags were actually weighed and found to be short. Letter Exh.16 also confirms this fact.

7. It may also be pointed out that the weight which was written on the bags was the weight of rice and dal at the time of its packing. It is quite natural that by passage of time the moisture in the rice and dal would have died up and the weight would have become less. I Hence if the suppliers had not made provision for the shortage due to drying up of moisture the appellant cannot be held responsible for the shortage of the contents of the bags. No evidence has been led by the prosecution to show that any such provision was made to count for the shortage due to drying up of moisture in the rice and dal contained in the bags at the time of their packing.

8. Exhs. 13, 14, 15 and 16 were confronted to P.W. Abdul Latif Exh.10. He has admitted all these documents. It will be useful to reproduce the relevant portion of his deposition.

46. "I see 2 letters" written by the accused and received by me. Under these 2 letters dated 30‑10‑1977 and 15‑9‑1977 the accused had informed us that the weight of Dal and Rice in each bag supplied to him was short than the one shown in the debit note. I had put again says that Mr. Farusshhlah Khan Assistant, Regional Manager had put his signature in token of having received the letter. I produce the same Exh.13 and Exh.14. Both bears the signature of Fabrusanallah Khan with which I am conversant. As he had his signature on many official routine letters in my presence. I see other 2 such letters which were received by Kamran Rizvi Inspector Stores, Regional Office at Hyderabad I produce it as Exh. 15 it bears the signature of Mr. Kamran Rizvi whose signature I am conversant. I see such other letter which was received by Mr. Nayab I produce it as Exh.16, it bears the signature of Nayab with whose signature I am conversant. He is in token of having received the letter had put his signature on the same."

9. P.W. Mohd. Umer Exh.19 has admitted in his examination‑in‑ chief that the bags of rice and dal which were supplied to the appellant were not being weighed at the time of supply but only the number of the bags were noted in the debit notes. He admitted that these bags were weighed in Punjab at the time of discharge.

10. The prosecution has not been able to meet the explanation submitted by the accused. As such the mere fact that it is alleged that there was shortage is not sufficient to bring home charge a/s 409 P.P.C. against the accused. It is incumbent upon the prosecution to prove that there was shortage and that there was no explanation) with the appellant for the said shortage or that the explanation was not satisfactory. In a case where the accused is able to show that there was no shortage or was able to give satisfactory explanation for shortage he cannot be held guilty of offence under section 409 P.P.C.

11. I, therefore, allow the appeal and set aside the conviction and sentence of the appellant and acquit him of the above charge. I Accused is on bail. His bail bonds are cancelled.

47. M.Y.H./A‑262/K Appeal allowed.