BASHIR AHMED Versus State
MUHAMMAD SALEEM JESSAR, J .---By this single judgment I propose to dispose of above said two Criminal Appeals as both the appeals have arisen from one and the same common judgment passed by the trial Court.
2. Through these Criminal Appeals appellants Bashir Ahmed and Hidayatullah have assailed judgment dated 06.03.2015 handed down by learned Special Judge, Anti-Corruption (Provincial), Hyderabad in Special Case No.119 of 2000 (re: The State v. Bashir Ahmed and another) being outcome of FIR No.12/1997 registered at P.S. ACE, Dadu @ Camp Dadu, whereby both the accused/appellants have been convicted for offence punishable under sections 409/34, P.P.C. read with section 5(2) of Prevention of Corruption Act-II, 1947, consequently appellant Bashir Ahmed was sentenced to suffer R.I. for five (5) years and to pay fine of Rs.7,55,736/- and in default to undergo S.I. for one year more, whereas appellant Hidayatullah was sentenced to suffer R.I. for one year and to pay fine of Rs.7,55,736/- and in default to undergo S.I. for one month more. However, both the accused were extended benefit of section 382-B, Cr.P.C.
3. Succinctly facts of the prosecution case are that after receiving permission from competent authority and decision of ACC-II, Hyderabad, the then Circle Officer, ACE Dadu namely Qazi Ashfaque Ahmed registered aforesaid FIR on behalf of State on 30-06-1997 at 0900 hours or the basis of the report bearing No.164 dated 13-03-1997 submitted by Mukhtiarkar, Sehwan which was addressed to the Circle Officer, ACE Dadu, the contents of the said report, as incorporated in the FIR, are reproduced as under;-
"While conducting checking of Sub-treasury Sehwan a fraud worth Rs.7,55,736-00 was detected in stamp papers and Court fee stamp and as such report was submitted to the District Accounts Officer and Deputy Commissioner Dadu who pleased to constitute a team comprising Treasury Officer, Accounts and Incharge S.D.K of DAD for physical verification and they carried out physical verification and following deficit reported.
1. Stamp papers Shortage Rs.7,45,991-00
2. Court fee stamp Shortage Rs. 9,745-00
Rs.7,55,736-00
Mr. Bashir Ahmed Sub-Treasurer has admitted through statement that he has committed fraud in orders to meet his requirements, but after that I thoroughly conducted my personal enquiry which reveals that above fraud had played by a gang of five members of treasury from 1991 todate. I have seen indent addressed to District Accounts Officer Dadu by the S.T.O Sehwan available in the DAD office which bears forged and fictitious signatures of the S.T.O. and it has been managed by following gang members only to usurp Govt. money hence involvement of staff of District Accounts Officer cannot be ruled out in this fraud. Since the above fraud appears from 1991 todate hence the following officers/officials have made transaction of stamp papers and court fee stamps and as such they have played very active role in the above fraud.
1. Mr. Shamsuddin Kalhoro present Treasury Officer, Dadu
2. Mr. Ghulam Abbas Soomro, the then Try. Officer from 1990 to 1993.
3. Mr. Muhammad Haroon Mallah S.D.K Incharge DAO Office Dadu.
4. Ghulam Hyder Dawach A.S.D.A of D.A.O office Dadu.
5. Mr. Bashir Ahmed Sub-Treasurer.
Since the Deputy Commissioner Dadu has desired for lodging of FIR in order to avoid any chance of escaping/absconding the above officials from the screen. The early action would be in the Govt. interest."
4. After registration of above FIR, the then Circle Officers Qazi Ashfaque Ahmed and Gul Baig Jatoi conducted investigation in their respective tenure and after completion of investigation, their successor Muhammad Khan Panwhar, the then Circle Officer of ACE Dadu submitted challan before trial court on 30.12.2000 against both the accused for facing trial in the above case.
5. A formal Charge was framed against accused/appellants Bashir Ahmed Qureshi and Hidayatullah Memon for the offence punishable under section 409, P.P.C. read with section 5(2) of Prevention of Corruption Act-II, 1947 vide Ex.2, to which they pleaded not guilty and claimed to be tried vide their Pleas Ex.3 and 4.
6. In order to prove its case, prosecution examined PW-1 Shamsuddin Kalhoro, retired Treasury Officer, Dadu at Ex.9, who produced photo copies of Treasury Manual Sindh as Ex.5/A, monthly return of General Stamp of December, 1996 as Ex.5/B, monthly return of General Stamp of January, 1997 as Ex.5/C, letter No.518 dated 07.03.1997 addressed to accused Hidayatullah, Mukhtiarkar/Sub-Treasury Officer, Sehwan as Ex. 5/D, reply of Mukhtiarkar, Taluka Sehwan to District Accounts Officer, Dadu as Ex.5/E, his report No.SDK-567 dated 11-3-1997 addressed to Deputy Commissioner, Dadu as Ex.5/F, physical verification reports as Ex.5/G and 5/H, his original report No.SDK-567 dated 11-03-1997 addressed to Deputy Commissioner, Dadu as Ex.5/I, his same report as Ex.5/J. PW-2 Fida Hussain Chano, the then Junior Clerk of Mukhtiarkar Office, Dadu, was examined at Ex.7, while PW-3 Gul Baig Jatoi, the then Circle Officer of ACE Dadu at Exh-8, PW-4 Muhammad Khan Panhwar, the then Circle Officer of ACE Dadu, was examined at Ex.11. PW-5 Muhammad Haroon Mallah, the then Stamp Depot Keeper in Treasury Officer, Dadu was examined at Ex.12, who produced attested copies of indents of stamp in 58 leaves as Ex.12/A, copy of monthly return of stamps in 05 leaves as Ex.12/B, attested copy of submission note of Treasury Officer regarding defalcation of stamp as Ex.12/C, original report No.150 dated 08-03-1997 of Mukhtiarkar, Taluka Sehwan addressed to District Accounts Officer, Dadu as Ex.12/D, copy or Sub-Treasury Manual Rules in 02 leaves as Ex.12/E, original verification report as Ex.12/F. The prosecution gave up PW Ghulam Hyder Dawach, Sub-Accountant/ A.S.D.K (Treasurer) DAC. Office, Dadu, while PW Qazi Ashfaque Ahmed, the then Circle Officer of ACE Dadu, could not be examined on account of his death and such statement of process server Ali Asghar Solangi, Head Constable of ACE Dadu, was recorded vide Ex.10. Thereafter, learned ADPP appearing for the State closed the side of prosecution vide his Statement Ex.13.
7. Statements under section 342, Cr.P.C. of accused Bashir Ahmed Qureshi and Hidayatullah Memon were recorded vide Ex.14 and 15 respectively, where they denied the allegations of prosecution and claimed to be innocent. Accused Hidayatullah Memon further stated that during his posting, he detected a fraud worth Rs.7,55,736/- and made such report to the Deputy Commissioner, Dadu and other concerned officers and on the direction of the Deputy Commissioner, he lodged FIR against accused Bashir Ahmed and others but during investigation, he was involved in this case as accused while real culprits were shown as witnesses in the case. According to him, he made an application to the Deputy Director, ACE Hyderabad and enquiry was conducted but higher authorities involved him in the case. However, the accused did not examine themselves on oath nor produced any witness in their defence.
8. After formulating the points for determination, recording evidence of prosecution witnesses and hearing counsel for the parties, learned trial Court vide impugned judgment convicted and sentenced the accused/appellants, as stated above. Against the said judgment instant appeals have been preferred by the convicted accused.
9. I have heard learned counsel for the parties and perused the material available on the record.
10. Learned counsel for appellant in Cr. Appeal No.S-40.2015 submitted that appellant was Sub-Treasurer and was not responsible for alleged misappropriation. As far as 164, Cr.P.C. statement of the appellant is concerned, she submitted that it was recorded by him before co-accused/appellant Hidayatullah, therefore, it has got no evidentiary value in the eye of law. She further submitted that such statement has not been exhibited in evidence before the trial Court. She next submitted that trial Court has not discussed this aspect in the impugned judgment. She also submitted that proper question(s) was/were not put to accused/appellant while recording his statement under section 342, Cr.P.C. besides, no permission was obtained by the prosecution for making appellant Bashir Ahmed as approver against co-accused. She, therefore, submitted that serious doubts have been created in the prosecution case. She next submitted that no sufficient evidence has been adduced by the prosecution to maintain conviction. In support of her contentions, she placed reliance upon the cases of Muhammad Saleem v. The State (1989 PCr.LJ 1262), Farmanullah v. The State (2007 PCr.LJ 1393), Amjad Saeed alias Doctor Amjad and another v. The State (2018 PCr.LJ Note 149), Syed Zaki Kazmi v. The State (2018 PCr.LJ 976). She, lastly submitted that appellant Bashir Ahmed may be acquitted by extending benefit of doubt to him.
11. Learned counsel for appellant Hidayatullah in Cr. Appeal No.S -41 of 2015 submitted that appellant was complainant of the case and later on he was arrayed as an accused in this case. He further submitted that joint charge was framed which besides being defective, has also not been proved. He next submitted that entire case of the prosecution was initiated upon the letter written by appellant which was subsequently incorporated in 154, Cr.P.C. Book; however, the said FIR has not been exhibited nor its author was examined by the prosecution before the trial Court. He further submitted that as per FIR, the misappropriation had been committed from year 1991, whereas the appellant was posted there by virtue of Notification dated 19.12.1997 and joined his duties as Mukhtiarkar Sehwan on 23.12.1997. He further pointed out that none of the Mukhtiarkars who remained posted there during the period from 1991 till registration of FIR, was examined as witness or was arrayed as an accused, hence the investigation was also defective and was not conducted properly. He while focusing upon page 57 of the paper book which is an indent submitted that it was not signed by the appellant; on the contrary it was signed by co-accused Bashir Ahmed. He further submitted that entire documentary evidence, as has been exhibited, is in shape of Photostat copies and its original were not called for even were sent by concerned office, therefore, when primary evidence was not adduced, secondary evidence has got no evidentiary value in the eyes of law and such practice on the part of prosecution was violative of Articles 73 and 74 of the Qanun e-Shahadat, 1984. He next submitted that appellant being complainant was made as an accused and the person(s) who were named by him in his letter Ex.5, available at page-55 of the paper book, as accused have been made as witness(s) of the prosecution, for which necessary permission was not obtained from the Department or the Authority. In support of his contentions he placed reliance upon the cases of Muhammad Shafi and another v. Sardar Ali and 3 others (2003 YLR 683), State of Islamic Republic of Pakistan through Deputy Attorney-General for Pakistan v. Kenneth Marshal and 2 others (2005 SCMR 594) and State through Chief Prosecutor Ehtesab Bureau, Azad Jammu and Kashmir and another v. Khawaja Faqir Muhammad and 3 others (2003 PCr.LJ 51). He further submitted that it has not come in evidence that appellant had committed misappropriation dishonestly or even it has adduced in evidence that he allegedly misappropriated the stamp-papers. In support of his contentions, he placed reliance on the cases of Sharif-ul-Haq v. The State (1993 MLD 1714), Dildar v. The State through Pakistan Narcotics Control Board, Quetta (PLD 2001 SC 384), Asal Muhammad and others v. The State (PLD 1994 Peshawar 214). He also submitted that prosecution has not conducted the investigation properly, besides has failed to prove its case against the appellant. According to him, many dents have been put in the evidence adduced by prosecution, benefit whereof is to be extended in favour of the accused. He also prayed for acquittal of accused Hidayatullah by extending benefit of doubt to him.
12. On the other hand, learned A.P.G, admitted that FIR which is prime foundation of the case has not been exhibited nor its author has been examined, nor even the said document has been exhibited through the person by whom it was recorded i.e. appellant Hidayatullah, on the other hand he has been made as an accused and was not examined as witness by prosecution to prove the allegation confessed by appellant Bashir Ahmed in his alleged statement under section 164, Cr.P.C. She further submitted that all these questions were to be put to the accused at the time of recording of their statements under section 342, Cr.P.C., hence she prayed that it will be appropriate to remand the case for de novo trial.
13. From the perusal of the evidence of prosecution witnesses and the material available on record, it seems that there are certain material discrepancies and infirmities in the prosecution case which are fatal in nature.
14. The basic document upon which the investigation of a cognizable offence commences is; the First Information Report (FIR). It lays foundation of the prosecution case. Consequent upon registration of FIR the law comes into motion and its purpose is to obtain spontaneous information of occurrence in order to exclude the possibility of the fabrication of story or consultation or deliberation or to enable the complainant to get time to devise or contrive anything to his advantage and to the disadvantage of others and to safeguard the accused of such like happenings/occurrences in the FIR, as the spontaneity is the guarantee of truth to a greater extent and immediate utterance is the manifestation of psychological reaction and when the witness deposes in the Court against the accused, he may be having the advantage of corroborating the first informer under Article 153 and contradicting him under Article 140 or impeaching his credit under Article 151 of Qanun-e-Shahadat in respect of his earlier narration in the FIR.
15. It is also significant to point out that unless the FIR is produced before the trial Court in a proper manner and is duly exhibited, it has got no evidentiary value. In the instant case FIR has not been exhibited, nor its author was examined before the trial Court. This puts severe dent in the prosecution case, rather it spoils entire investigation of the prosecution case. For this view, I am fortified by a judgment delivered by a Division Bench of Peshawar in the case of Asal Muhammad and others v. The State reported in PLD 1994 Peshawar 214, wherein this point has elaborately been discussed. Relevant portions from the said judgment are reproduced hereunder;_
......the FIR is not substantive evidence unless the maker himself deposes in the Court to confirm his earliest extra-judicial utterance incorporated in FIR....... if somebody alleges that he has lodged the FIR, then the fact of lodging of the FIR and what he stated in the FIR cannot be proved unless the FIR is produced and that is with regard to the factum of proof of FIR, in other words unless the FIR is produced its lodging and what has been stated at that time cannot be proved....... hence the person who says he saw the occurrence, he heard it or he perceived it must himself depose in the Court in that respect and contents of the FIR with respect to the narration is proved only when he gives evidence in the Court himself while the production of FIR indicates that at the time, mentioned in the report he lodged the same with all its incidents and thus the conditions of; (i) Article 153 which states that in order to corroborate the testimony of witness, his former statement relating to certain facts made at the time when such fact took place, before any authority legally competent to investigate the fact may be proved, that is, his former statement incorporated in FIR may be used for corroboration purposes; (ii) according to Article 140 to contradict him by his previous statements or cross-examine him to his previous statement; (iii) and according to Article 151 to impeach the credit of witness by contradicting him with FIR, in short, the conditions of corroboration, contradiction and impeachment of witnesses can be fulfilled and thus it is concluded that the contents of the FIR, with reference to the narration of the maker it is not a substantive piece of evidence unless a direct evidence of it is given, however the document of FIR is proved by producing it for the purposes of corroboration, contradiction and cross-examination and impeachment of the witness to safeguard the interest of the accused that what is stated today after long period has actually and really been stated earlier at or about the time the occurrence has taken place by bringing it close to the truth of occurrence on ground of spontaneity or spontaneous assertions.
13. From the above discussion one can derive a conclusion that unless the lodger of the FIR deposes in the Court the FIR itself containing the statement of the lodger is not to be taken against the accused i.e. the narration in the FIR against him as the FIR is not a substantive piece of evidence i.e. its contents are not proved unless the maker states as such in the Court."
16. In view of above legal position, as neither the FIR was produced before and exhibited by the trial Court, nor the complainant could be examined, therefore, the contents of such FIR cannot be taken into consideration for the purpose of conviction of the accused.
17. Another significant point in the instant case is that in the initial complaint/report which was subsequently incorporated in 154, Cr.P.C. register/FIR, the prosecution witnesses i.e. PW-1 Shamsuddin Kalhoro, the then Treasury Officer, Dadu and PW-2 Mohammad Haroon Mallah, the then S.D.K. Incharge DAO Office, Dadu and PW-3 Ghulam Hyder Dawach, were nominated as accused and were assigned very active role, but later on they were let off and instead in the challan they were shown as prosecution witnesses. This fact has also been admitted by P.W.4, Mohammad Khan, who was serving as Circle Officer, ACE, Dadu in the year 2000 and who submitted challan in the instant case before the concerned court. In his cross-examination he made admission to the effect, "It is fact that Shamsuddin, Ghulam Abbas, Mohammad Haroon and Ghulam Hyder were nominated as accused in the report of Mukhtiarkar, Sehwan bearing No.164 dated 13.03.1997 which was incorporated in the FIR. It is correct that nominated accused Shamsuddin, Mohammad Haroon and Ghulam Hyder were cited as witnesses in the challan sheet. I have not obtained permission from Magistrate to make the nominated accused as witnesses in view of section 337, Cr.P.C."
18. In fact, this is violative of the provisions of section 337, Cr.P.C. which, for the sake of convenience, is reproduced hereunder;_
"337. Tender of pardon to accomplice: (1) In the case of any offence triable exclusively by the High Court or Court of Sessions, or any offence punishable with imprisonment which may extend to ten years, or any offence punishable under section 211 of the Pakistan Penal Code with imprisonment which may extend to seven years, or any offence under any of the following sections of the Pakistan Penal Code, namely, sections 216-A, 369, 401, 435 and 477-A, [officer incharge of the prosecution in the district] may, at any stage of investigation or inquiry into or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof:
Provided that no person shall be tendered pardon who is involved in an offence relating to hurt or qatl without permission of the victim or as the case may be of the heirs of the victim.
(1-A) Every Magistrate who tenders a pardon under subsection (1) shall record his reasons, for so doing and shall on application made by the accused, furnish him with a copy of such record:
Provided that the accused shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free of cost.
(2) Every person accepting a tender under this section shall be examined as a witness in the subsequent trial, if any.
(2-A) In every case where a person has accepted a tender of pardon and has been examined under subsection (2), the Magistrate before whom the proceedings are pending shall, if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the Court of Session or High Court, as the case may be.
(2) Such person, unless he is already on bail, shall be detained in custody until the termination of the trial."
19. There is no material available on the record and/or produced during the course of recording of evidence, which could substantiate that the aforesaid provisions of law was duly followed before recording the evidence of P.Ws Shamsuddin and Mohammad Haroon and, for that matter, in respect of given up P.W. Ghulam Hyder Dawach. Furthermore, assuming if such permission for grant of pardon would have been obtained according to law, even then their evidence could not be termed as worthy of credence, unless there would have been strong corroboration to such evidence, which is lacking in the instant case. For this view, I am fortified by the judgment passed by a five members Bench of Honourable Supreme Court in the case of Mian Mohammad Nawaz Sharif v. State reported in PLD 2009 SC 814, wherein it was held that testimony of approver, in order to be accepted as worthy of credence, must pass the doubt test, namely that he is reliable witness and that his testimony receives sufficient corroboration on material particulars.
20. In the case of Mohammad Saleem v. The State reported in 1980 PCr.LJ 1262 it was held as under;_
"Mohammad Younus was not granted any pardon before being made an approver and his statement as an approver is exculpatory. The corroboration of the statement of an approver is required to be established in such cases, but when the approver was not made in accordance with law, then even the corroborative statement would be of no consequence."
21. In another case reported as Asif Ali Zardari v. State reported in 2005 YLR 717 Lahore, it was held that where no pardon has been tendered when the approver makes his statement under section 164, Cr.P.C. the statement can only be recorded as a confession subject to the restrictions of that section; but where such pardon has been previously tendered and accepted, the statement has to be recorded as that of a witness, the former being without oath and the latter being on oath.
22. In view of above legal position, it can safely be held that the evidence of aforesaid witnesses could not be relied upon for the purpose of convicting the accused/appellants.
23. Yet there is another infirmity/legal flaw in the prosecution case. It has been pleaded by the prosecution with vehemence that accused Bashir Ahmed in his statement under section 164, Cr.P.C. allegedly given by him before Mukhtiarkar and FCM, Sehwan admitted that shortage in question was committed by him. Such statement loses its evidentiary value for the two reasons; firstly, that the said statement has, at all, not been produced and exhibited before the trial Court and secondly, that the same was given before the Mukhtiarkar and FCM namely, Hidaytatullah who himself has been nominated as an accused in this case. The Superior Courts have always treated extra-judicial confession even before police or before a prosecution witnesses to be of very weak type of evidence, then what about the same having allegedly been made before a co-accused. In the case of Wajeeh-ul-Hassan v. State reported in 2019 SCMR 1994, Honourable Supreme Court held that evidence of extra judicial confession is inherently weak and does not present a brighter picture either. In another case reported as Mohammad Aslam v. Sabir Hussain (2009 SCMR 985), it was held by Apex Court that evidence of extra-judicial confession is always treated as a weak piece of evidence. Yet in another case of Abdul Mateen v. Sahib Khan reported in PLD 2006 SC 538 it was held that extra-judicial confession must be proved by evidence of very high and un-impeachable character.
24. In the instant case it has been admitted by prosecution witnesses that initially accused Hidayatullah had made complaint/report and it was on the basis of his report that ultimately FIR was lodged in which amongst others P.Ws Shamsuddin, Mohammad Haroon and Ghulam Hyder Dawech were nominated as accused; however, during the course of investigation complainant Hidayatullah was made as an accused whereas aforesaid three nominated accused were arrayed as witnesses. This conduct of the investigation agency is not in consonance with legal principles and it also put severe dent in the investigation/prosecution case. In this respect, reference may be made to the case of Farmanullah v. The State reported in 2007 PCr.LJ 1393 wherein following observations were made;_
"7. It is shocking to note that the learned Trial Judge did not follow the law on the subject and failed to observe due care and caution as to how the complainant was made an accused without proper permission of the Illaqa Magistrate. The Trial Judge also failed to pursue the case file with application of judicial mind to see the illegality and irregularity committed by the investigating agency while acting in the above manner and also failed to rectify the wrong at the initial stage."
It was further held;
"13. The learned Trial Judge while taking cognizance should have directed the local police to submit a second challan against the appellant but after cancellation of the report and getting sanction from the Illaqa Magistrate for substituting the appellant as an accused, instead of complainant which was not done at all thus, the entire proceedings/trial held by him was based on an approach having no legal sanction and on this score alone the illegality committed vitiates the entire proceedings/trial."
25. It is also note-worthy that most of the documents produced by P.W. Shamsuddin are not original but Photostat copies of the same. From perusal of the evidence of this witness, it transpires that the defence counsel had timely raised such objections but learned Trial Judge observed that such objection would be considered at the time of arguments. It would be advantageous to reproduce hereunder relevant portions from the evidence;_
"I produce Photostat copy of monthly return of General stamp of December, 1996 as Ex.5/B in two leaves and monthly return of general stamp for January, 1997 as Ex.5/C in two leaves. (Note: Advocate for the accused Hidayatullah raised objection on the admissibility of these Photostat documents in evidence. Order: It will be considered at the time of final arguments)."
26. Likewise, at the time of production of letter of Mukhtiarkar for physical verification and physical verification report, Ex.5/D Ex.5/ G and Ex.5/H respectively, similar objection was raised and similar order was passed by trial Court. However, from the perusal of entire impugned judgment, I am unable to find out even a single sentence which could show that such objections were considered by the trial Court while delivering the impugned judgment. It is a well settled law that where primary evidence is available, then secondary evidence is not admissible in respect of a document. In this regard reference may be made to section 72 of the Qanun-e-Shahadat Order, 1984 which stipulates that contents of documents may be proved either by primary evidence or by secondary evidence. Section 75 of the Qanun-e-Shahadat Order, 1984 stipulates that documents must be proved by primary evidence except in the cases provided in section 76 of the said Order. However, instant case does not fall in any of exceptions enumerated in section 76 of the Qanun-e-Shahadat Order, 1984 as in the instant case it has not been pleaded by the prosecution that the originals of the aforesaid documents were not available with them. Therefore, there was an illegality in the case of the prosecution as it failed to produce the originals of the aforesaid documents, which is also fatal to the prosecution case. In the case reported as Syed Hamid Saeed Kazmi v. State (2017 PCr.LJ 854 Islamabad) it was held that any document which is not original or primary, cannot be tendered in evidence---Contents of a document without author or witness cannot be proved as admissible---Inadmissible documents cannot be taken into consideration for any purposes if those documents do not qualify the test of primary as well as secondary evidence under Qanun-e-Shahadat, 1984.
27. Needless to emphasize the well settled principle of law that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is cast upon the accused to prove his innocence. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In the case reported as Wazir Mohammad v. The State (1992 SCMR 1134) it was held by Honourable Supreme Court as under;_
"In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution."
28. In another case reported as Shamoon alias Shamma v. The State (1995 SCMR 1377) it was held by Honourable Supreme Court as under;-
"The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case.....Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise."
29. The accumulative effect of the abovesaid infirmities/ discrepancies and legal flaws in the prosecution case is; that the prosecution has not succeeded in discharging its obligation to prove the case beyond shadow of reasonable doubt. It is now well settled that the accused is entitled to be extended benefit of doubt as a matter of right. In the present case, there are many circumstances which create doubts in the prosecution case. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story. In the case reported as Tariq Pervaiz v. The State 1995 SCMR 1345 the Honourable Supreme Court held as under;_
"The concept of benefit of doubt to an accused is deep-rooted in our country. For giving, him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
30. For the foregoing reasons by a short order passed on 16.12.2019, instant appeal was allowed. Consequently, impugned judgment dated 06.03.2015 handed down by learned Special Judge, Anti-Corruption (Provincial), Hyderabad in Special Case No.119 of 2000 (re: The State v. Bashir Ahmed and another) being outcome of FIR No.12/1997 registered at P.S. ACE, Dadu, under sections 409, P.P.C. read with section 5(2) of Prevention of Corruption Act-II, 1947, was set aside and appellants Bashir Ahmed and Hidayatullah were acquitted of the charge. Appellant Bashir Ahmed was present on bail, his bail bonds were cancelled and surety furnished by him stood discharged, while appellant Hidayatullah, who was produced in custody by jail authorities, was remanded to jail with direction to be released forthwith if he is not required in any other custody case.
31. Above are the reasons for the said short order.
32. Approved for reporting.
JK/B-8/Sindh Appeals allowed.