ABDUL KARIM KUMBHAR Versus State
MUHAMMAD SALEEM JESSAR, J.--- By this single Judgment. I intend to dispose of abovesaid two criminal appeals as in both the appeals the accused/ appellant is one and the same person, besides the factual as well as legal aspects in both the cases are almost same.
2. Through these Criminal Appeals appellant Abdul Karim Kumbhar son of Muhammad Ibrahim has assailed two Judgments both dated 02.09.2014, handed down by Special Judge, Anti-Corruption (Provincial), Hyderabad @ Camp Mirpurkhas, in Special Cases No. 28 of 1998 and Special Cases No. 29 of 1998 respectively, (re: State v. Abdul Karim Kumbhar). being outcome of FIRs Nos. 01/1995 and 02/1995 respectively, registered at Police Station ACE Umerkot, under section 409, P.P.C. read with section 5(2) of Act-II, 1947, whereby he convicted the accused/ appellant in both the cases separately for offences punishable under aforesaid sections and sentenced him in each case to suffer R.I. for ten (10) years and to pay fine of Rs.51,99,556/- and Rs.8,75,752/- respectively, and in case of default, to suffer S.I. for one year more. However, accused was extended benefit of section 382-B, Cr.P.C. in both cases.
3. Brief facts of the prosecution case, are that on 02-07-1995 at 10.00/ 11.00 a.m. Inspector of Intelligence Cell, ACE Hyderabad namely Nazeer Ahmed Memon registered present FIRs under order of Deputy Director, ACE Hyderabad vide his letter dated 29.06.1995 who conveyed the approval of competent committee viz. Commissioner Mirpurkhas and Chairman, ACC-II for registration of cases against accused Abdul Karim Kumbhar, Bulk Depot Umerkot/Dhoro Naro and others. The matter was enquired into; consequent upon the raid was conducted on 14.6.1995 by Nazeer Ahmed Memon in presence of Magistrate wherein he secured record of Bulk Depot, Umerkot / Dhoro Naro from the office of District Agricultural Supplies Officer (DASO), Sindh Agricultural Supplies Organization (SASO) Umerkot. Present accused and DASO were not available hence the godowns and available stocks were sealed in presence of Magistrate / Assistant Mukhtiarkar, Ram Ratan and Ghulam Rasool Memon, Office Assistant of the office of DASO, Umerkot etc. During process of checking of stock, Inspector Nazeer Ahmed Memon received report of Director, Stock and Recovery, SASO Hyderabad through Deputy Director, ACE Hyderabad vide his letter dated 25-6-1995 showing the shortage of stocks of Government fertilizers and seed of Sub-Bulk Depot Umerkot / Dhoro Nara, SASO. The contents of report of PW Syed Bashir Ahmed Shah, the then Director (Inspection, Stock and Recovery), SASO Hyderabad, dated 14.6.1995 addressed to Circle Officer, ACE Umerkot which was incorporated in the FIR, is reproduced as under: -
"During the inspection and handing / taking over of the charge of DASO, Umerkot in between Mr. Muhammad Aslam Pathan, DASO (out-going) and Mr. Akhtar Hussain Memon, DASO (incoming), the Inspecting Officers Messrs Ghulam Mustafa Memon, Inspection Officer and Mr. Sultan A. Hashmani, Deputy Director (Recovery) and Mr. Akhtar DASO have reported the following shortages of fertilizer stocks as well as suspicious/ adulterated stocks and under-weight bags of fertilizer at Bulk Depot Umerkot, District Umerkot:
Sr. No.
Variety
Quantity
Rate
Amount
1.
DAP
3755 Bags.
Rs. 460/-
Rs.17,27,300-00
2.
DAP
2995 Bags
Rs. 460/-
Rs.13.77,700-00
(Suspicious)
3.
SOP
122 Bags
Rs. 300/-
Rs. 36,600/00.
4.
W/Seed
78 Bags
Rs. 690/-
Rs. 53,820/-
Sarsabz 100 kg per bag
Total Rs. 31.95.420.00
(Rupees Thirty One lac Ninty five thousand four hundred twenty)
The Deputy Director SASO Mirpurkhas Mr. Mirza Muhammad Ali and DASO Umerkot Mr. Muhammad Aslam Pathan were directed to recover the amount from the Incharge Bulk Depot Umerkot Mr. Abdul Karim Kumbhar.
Mr. Abdul Karim Kumbhar Incharge Bulk Depot, Umerkot along with Mr. Muhammad Aslam Pathan, DASO Umerkot, Mirza Muhammad Ali, Deputy Director Mirpurkhas was called in the office at Hyderabad on 26.5.1995 to enquire about the recovery of the short / misappropriated stocks.
Mr. Abdul Karim Kumbhar has confessed the above shortage in writing which bear the endorsement of DASO Umerkot and Deputy Director Mirpurkhas. Mr. Abdul Karim Kumbhar had promised to pay the cost of short stock within period of one month.
Mr. Abdul Karim Kumbhar, Incharge Bulk Depot, Umerkot has caused grave losses on account of misappropriation and fraud of Public Property and breach of trust etc. The DDAS Mirpurkhas Mirza Muhammad Ali and DASO Umerkot Mr. Muhammad Aslam Pathan failed to perform their duties and safe guard the interest of the organization and implement the directives of the superiors for transfer of Mr. Abdul Karim Kumbhar and posting some other suitable persons to take over the charge of Bulk Depot, Umerkot and recover the cost of misappropriated stocks and thus both the officers have connived with the Incharge Bulk Depot, Umerkot in misappropriation of SASO fertilizer stocks.
The Managing Director SASO has been pleased to direct the undersigned to lodge a criminal case against all the concerned for misappropriation of SASO Fertilizer stocks and their failure to exercise control over the stocks and staff at Bulk Depot, Umerkot through criminal negligence and misrepresentation of facts.
New incumbent has been posted as Incharge Bulk Depot, Umerkot in place of Mr. Abdul Karim Kumbhar to take-over the charge of Bulk Depot, Umerkot. Besides above shortages already reported there is an apprehension of more shortages as and when the charge of Sub Bulk Depot. Dhoronaro is finalized, the actual losses will be ascertained after complete handing / taking over the charge of Bulk Depot, Umerkot and the exact volume of shortages/ misappropriation of stocks will be communicated to you accordingly.
It is, therefore requested that a FIR may please be lodged/ registered against all the concerned under the relevant laws of the land and a copy of the FIR may please be provided at the earliest possible."
4. It may be pointed that similar report was made by PW Syed Bashir Ahmed Shah, the then Director Inspection. Stock and Recovery. SASO Hyderabad dated 14.06.1995, in the other case relating to Bulk Depot Dhoro Naro with exactly same wordings, except with the difference of the name of the Bulk Depot which in that case was 'Dhoro Naro' and the figures of alleged shortages of fertilizer stocks as well as suspicious/ adulterated stocks and alleged underweight bags of fertilizer; total amount of which in that case came to Rs.5,64,000/-.
5. After registration of the FIR investigation was conducted by the then Sub-Circle Officers namely, Inayat Ali Thebo, Muhammad Hassan Sahito and the then Circle Officer Gul Baig Jatoi and after completing investigation challan was submitted by Sher Muhammad Leghari, Circle Officer, ACE Umerkot against the appellant.
6. A formal Charge was framed against the accused to which he pleaded not guilty and claimed to be tried vide his plea.
7. In order to prove its case, prosecution examined as many as nine witnesses and produced a number of documents and then prosecution side was closed through the Statement of learned ADPP appearing for the State Ex.14.
8. Statement of accused was recorded under section 342, Cr.P.C. wherein he denied prosecution allegations and claimed to be innocent. He stated that he has falsely been implicated in the case due to departmental intrigues. However, neither he examined himself on oath, nor produced any witness in his defence.
9. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, trial Court vide two separate impugned judgments convicted and sentenced the appellant/ accused as stated above. Against said judgments, appellant has preferred instant appeals.
10. I have heard learned counsel for the appellant as well as learned D.P.G. appearing for the State and perused the material available on the record.
11. Miss Ambreen Siyal, learned counsel for appellant submitted that though the appellant was incharge of Bulk Depot SASO at Dhoro Naro but on the date of raid viz. 14.06.1995 he was not available in his office and the raiding party sealed the Depot. She further added that nowhere in the charge learned Presiding Officer has specifically mentioned that appellant was entrusted with certain amount/quantity of fertilizer bags under particular letter or authority and allegedly had committed the breach of trust which may entail him under the liability of section 409, P.P.C. She further argued, as per her instructions, nothing was entrusted to appellant, nor has he committed any breach of trust. She further submitted that due to departmental intrigue, the head of raiding party in order to teach him a lesson had engineered and concocted a long bullock story regarding alleged misappropriation with stock allegedly available in Depot and then booked him in this false case; such long bullock story has no independent legs to stand. Learned counsel further added that even stock allegedly misappropriated had not been shown to have been utilized by the appellant for his personal use / gain or consumption. She, therefore, added that when alleged property was not used by appellant for his personal gain then application of section 409, P.P.C. was immaterial. She next added that if such allegation is presumed to be true, even then not a single bag had been shown to have been recovered from his possession or on his pointation even none from the public land growers or shopkeepers was examined to whom the appellant allegedly had sold out fertilizer bags from which it could be deduced that appellant had committed breach of trust in terms of section 409, P.P.C. As far as alleged undertaking/written application moved by appellant vide Es.6/ D is concerned, the appellant had not presented such an undertaking. If the same had been given by the appellant, then its original copy must have been with prosecution, then as to why such original document was not produced and got exhibited before the trial Court, instead its photocopy was produced in evidence which is not admissible under the Qanun-e-Shahadat Order and cannot be made basis for maintaining conviction against appellant. In support of her contentions, she placed reliance upon an unreported judgment dated 28.11.2019 passed by this court in Criminal Appeal No.S-138 of 2015 (Re-Eshwarlal v. The State). She further argued that nothing incriminating, has been shown to have been recovered from his possession during investigation nor was produced by him. She further added that when entrustment has not been established by prosecution nor particular charge was framed against appellant then his conviction under section 409, P.P.C. is not only immaterial but is also illegal. She further submitted that it is axiomatic and universal recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt; hence, any doubt that arises out of prosecution case must be resolved in favour of accused not as a matter of grace or concession but as a matter of right. In support of her contention she places reliance upon case of Muhammad Akram v. The State (2009 SCMR 230). Finally she submitted that prosecution has miserably failed to prove its charge against appellant beyond shadow of any reasonable doubt, hence appellant may be acquitted by extending him benefit of doubt.
12. Conversely, Mr. Shahid Shaikh. learned D.P.G. appearing for the State, opposed the appeal on the pretext that appellant himself had written a letter which being an undertaking to the effect that he would pay certain amount to the government and he had not denied the said factum thus he has rightly been convicted by the trial court. He; however, could not controvert the fact to the effect, said fact is not mentioned in the Charge framed by the trial court, even no proper allegation in terms of section 409, P.P.C. and entrustment of certain particular number of fertilizer bags is mentioned in the Charge. When confronted with such legal flaw on the part of prosecution. learned D.P.G. could not submit satisfactory reply to the same, Learned DPG also could not controvert the fact that not a single fertilizer bag was secured/recovered from the possession of appellant or was produced by him during investigation. He has also no explanation regarding examination of any land grower, shopkeeper or any other person to whom the appellant had allegedly sold out fertilizer bags which may prove that the appellant had committed misappropriation of government fertilizer bags and thus had committed breach of trust of said entrustment within the meaning of section 409, P.P.C.
13. It seems that in this case there is unexplained inordinate delay in lodging of FIR. From the perusal of the contents FIR it appears that the matter was enquired into consequent upon the raid conducted on 14.6.1995 by Nazeer Ahmed Memon, Inspector ACE, Hyderabad, in presence of concerned Magistrate. Then, PW Syed Bashir Ahmed Shah, the then Director (Inspection, Stock and Recovery), SASO Hyderabad, vide his letter dated 14.6.1995 addressed to Circle Officer, ACE Umerkot while apprising the relevant facts, in the end, requested for registration of FIR. Despite that FIR was not registered and it has been explained that permission of the competent authority was being awaited. However, the said permission was also granted by the competent authority which was conveyed to Inspector Nazeer Ahmed by Deputy Director, ACE, Hyderabad through his letter dated 29th June, 1995, (Ex.12/A) available at page 96 of the Paper Book wherein it was mentioned, "With the approval of competent authority you are permitted to register a case against Abdul Karim In charge Bulk Depot SASO Umerkot and others, and arrest the accused persons." Despite having received the requisite permission vide letter dated 29.6.1995, Inspector Nazeer Ahmed Memon, got registered the FIR on 02.07.1995 i.e. after about three days. No explanation has come forward from the prosecution side for such delay, and the said P.W. Inspector Nazeer Ahmed Memon has not explained as to what prevented him to register the case on the very same day. Such delay has not been appreciated by the Superior Courts.
14. In the case of Ayub Masih v. The State (PLD 2002 SC 1048) Honourable Supreme Court, with regard to delay in lodging FIR, has held as under:-
"The unexplained delay in lodging the FIR coupled with the presence of the elders of the area at the time of recording of FIR leads to the inescapable conclusion that the FIR was recorded after consultation and deliberation. The possibility of fabrication of a story and false implication thus cannot be excluded altogether. Unexplained inordinate delay in lodging the FIR is an intriguing circumstance which tarnishes the authenticity of the FIR casts a cloud of doubt on the entire prosecution case and is to be taken into consideration while evaluating the prosecution evidence. It is true that unexplained delay in lodging the FIR is not fatal by itself and is immaterial when the prosecution evidence is strong enough to sustain conviction but it becomes significant where the prosecution evidence and other circumstances of the case tend to tilt the balance in favour of the accused."
15. It is also noteworthy to point out that delay in registration of FIR adversely affects the prosecution case if there is probability of consultation and deliberation. However, in instant case, in particular, such delay is to be given due weight for the reason that although in letter dated 29.6.1995, permission of the competent authority was conveyed to Inspector Nazeer Ahmed Memon to register the case against appellant Abdul Karim and others and it was specifically directed to arrest all the accused persons, despite that only appellant was arrested and other accused persons were neither apprehended, nor challaned. P.W. Inspector Nazeer Ahmed Memon in his cross-examination admitted in clear terms. "It is correct that FIR nominated Abdul Karim and others but only Abdul Karim is present and no else present as accused." He also admitted. "It is correct that we nominated accused along with other accused without their names but I cannot say why other persons were not arrested by investigation Officer Inayat Thebo." Even the Charge in the case was framed only against present appellant and none else was arrayed as accused therein. All these factors put severe clouds upon the genuineness, impartiality and credibility of prosecution case. Consequently, aforesaid delay cannot be termed as a delay simpliciter in lodging of the FIR, rather it strengthens the defence plea about possibility of false implication of the accused/appellant, so also exoneration of real culprits from the case.
16. It is also worthwhile to observe that the details of the raid conducted at the relevant Bulk Depots have been narrated by P.W. Ghulam Rasool in his evidence, who was working as Assistant Clerk in SASO Department, Umerkot at the relevant time. He deposed as under:
"Thereafter, Director Inspection Stock wrote letter to Anti-Corruption Vigilance team, Hyderabad Nazeer Ahmed to conduct raid and secured record. On that day Muhammad Aslam Pathan, District Officer, Akhtar Hussain Memon present in the office of Deputy Director, SASO Mirpurkhas. I was reported in my office at Umerkot. Vigilance Officer Anti-Corruption along with Magistrate came his office. One constable Qamar and Khuda Bux WHC were also accompanied with us. They demanded record of the office from me. Stock ledger, fertilizer, daily report of statement of fertilizer so also other documents of Bulk Depot Taluka Umerkot and secured above record under mashirnama. Mashirnama was prepared in my office which was signed by Nazeer Ahmed Memnon, Assistant Mukhtiarkar Ram Rattan, Qamar, Khuda Bux H.C. of ACE Umerkot and myself signed on the same. I produce such mashir-nama as Ex.7/A .. Then I along with anti-corruption team headed by Nazeer Memon came at District Officer, Umerkot. They informed to Director Mirpurkhas and Vigilance Officer Anti-corruption came to me and had secured record from me and four godown of Umerkot were sealed. One godown namely Mahboob Mehar and other godown named Mst. Parveen, third godown known as Taj Muhammad four godown as Sawal Mal. After sealing all four godowns they prepared mashirnama which was signed by PC Qamar, WHC Khuda Bux, Nazeer Ahmed Menton, Vigilance Officer, Magistrate Ram Rattan, Office Assistant Ghulam Rasool Memon and I myself, had signed, I produce original mashirnama under signatures as Exh.7/B. My statement was also recorded by anti-corruption police..."
17. From the perusal of the aforesaid mashirnamas Ex.7/A and 7/B, it appears that the said mashirnamas were prepared on 14.06.1995, meaning thereby that all the above process, including the recovery of stocks and record etc., so also sealing of the godowns and preparation of mashirnamas was done even before the registration of FIR which was admittedly lodged on 02.7.1995. Such conduct on the part of investigation agency has not been appreciated by the Superior Courts and it has been held that such practice vitiates entire proceedings. In this connection reference may be made to case of Dilshad Ahmed v. The State reported in 2018 YLR 860 [Lahore'. wherein a Division Bench of Lahore High Court held as under:
"From the above, it is clear that Muhammad Akhtar, SI (PW-7), the complainant is not justified in conducting investigation before registration of FIR and prepared all necessary documents relates to different steps of investigation. In the circumstances, the complainant has committed grave error of law in proceeding to conduct an investigation before registration of the FIR and such investigation without registration of the FIR is impermissible in law vitiating the entire proceedings."
18. It is also noteworthy that in the instant case various important and material documents produced by prosecution witnesses are not original but Photostat copies of the same have been produced. Even the most important document i.e. the Undertaking/ Application allegedly given by the accused/appellant in the meeting of high-ups, on which prosecution has heavily relied upon its case that the accused/ appellant has admitted the offence of misappropriation and undertook to make the loss good within a period of one month, has not been produced in original. Such undertaking/application has been produced twice in the evidence; firstly, it was produced by P.W. Mirza Muhammad Ali, D.D. SASO as Ex. 5/D, and then by P.W. Bashir Ahmed Shah, who was working as Director Inspection at Hyderabad, at the relevant time, as Ex.6/B but both of these witnesses have not produced original of the said document, instead Photostat copy of the same has been produced before the trial Court. Even the author of such secondary evidence i.e. the accused/appellant, has himself disowned the same while replying to Question No.5 in his Statement under section 342, Cr. P.C. which relates to this point.
19. Besides, there are also other documents. originals whereof have not been produced but instead, Photostat copies of the same have been produced before the trial Court. Those documents are; a Letter wherein for the first time shortage was pointed out by Akhtar Hussain Memon, SASO Umerkot (Ex.5/A), Telegram sent by DDAS SASO, MPS to DASO SASO (Ex.5/B), a Confidential Letter regarding shortage sent by PW. Mirza Muhammad Ali to Muhammad Aslam Pathan, DASO SASO (Ex.5/C) and Letter dated 14th June, 1995 sent by Syed Bashir Ahmed Shah to Circle Officer, ACE which was incorporated in the FIR, thus being most important document (Ex. 6/A). It is a well settled principle of 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 Article 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. Article 75 of the Qanun-e-Shahadat Order, 1984 stipulates that documents must be proved by primary evidence except in the cases provided in Article 76 of the said Order. However, instant case does not fall in any of exceptions enumerated in Article 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 serious illegality/infirmity in the case of the prosecution as it failed to produce the originals of the aforesaid material documents, which is also fatal to the prosecution case.
20. In this context, reference may be made to the case reported as Syed Hamid Saeed Kazmi v. State (2017 PCr.LJ 854 [Islamabad]), wherein 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. In view of this legal position, the documents, photocopies whereof have been produced by prosecution witnesses in their evidence, have lost their evidentiary value.
21. It is also an admitted position that the raid on the godowns in question vas conducted by Inspector Nazeer Ahmed under the supervision of Magistrate / Assistant Mukhtiarkar namely, Ram Ratten which fact is evident from the evidence of P.W. Ghulam Rasool, who in his evidence, inter alia, deposed as under:
" Thereafter, Director Inspection Stock wrote letter to Anti-Corruption Vigilance team, Hyderabad Nazeer Ahmed to conduct raid and secured record .. Vigilance Officer Anti-Corruption along with Magistrate came in his office. One constable Qamar and Khuda Bux WHC were also accompanied with us Mashirnama was prepared in my office which was signed by Nazeer Ahmed Memon, Assistant Mukhtiarkar Ram Rattan, Qamar, Khuda Bux H. C. of ACE Umerkot and myself signed on the same . After slealing all four godowns they prepared mashirnama which was signed by PC Qamar, WHC Khuda Bux, Nazeer Ahmed Memon, vigilance Officer, Magistrate Ram Rattan, Office Assistant Ghulam Rasool Memon and I myself had signed."
22. Despite that, the said Magistrate namely Ram Rattan has not been examined before the trial Court who being very important, material and independent witness, his evidence was essential. This is also injurious to the prosecution case as it is settled principle of law that despite availability of material/disinterested witness, non-examination of such witness in the case gives inference that in case such witness had been examined, he would have deposed against the prosecution, as envisaged under Article 129(g) of Qanun-e-Shahadat Order. In the case of Bashir Ahmed alias Mannu v. The State reported in 1996 SCMR 308 it was held by Honourable Supreme Court that despite presence of natural witnesses on the spot they were not produced in support of the occurrence an adverse inference under Article 129(g) of Qanun-e-Shahadat Order could easily be drawn that had they been examined. they would not have supported the prosecution version. In another case reported as Muhammad Sharif v. Tahirur Rehman and 3 others (1972 SCMR 144) it was held that large number of persons had gathered at the place of occurrence but prosecution failing to produce single disinterested witness in support of its case, therefore no implicit reliance could be placed on evidence of interested eye-witnesses. In the case reported as Ghulam Shabbir v. Bachal and another (1980 SCMR 708), it was observed that no witness of locality nor owner of hotel was produced in support of prosecution case nor any independent evidence to corroborate testimony of the three eye-witnesses was produced, as such, the acquittal was upheld by the Honourable Supreme Court.
23. Apart from above, from the perusal of the evidence of prosecution witnesses it appears that they have made certain material admissions which are fatal to the prosecution case and go in favour of the accused. P.W.1 Mirza Muhammad Ali. who was D.D. SASO at the relevant time, in his cross-examination made following admissions:
"The all four documents which I have produced in Court was attested by staff Officer namely Mr. Muhammad Ashraf. It is correct to suggest that these documents were not attested by Mr. Muhammad Ashraf in my presence. It is correct to suggest that there is practice that some time fertilizer used to be provided to Zamindar on credit for achieving target .. I do not know if accused Abdul Karim had given fertilizer to growers on credit . It is correct to suggest that I recommended to the Director to not transfer accused and allow him time for recovery .."
24. P.W.2 Bashir Ahmed, who was working as Director Inspection at Hyderabad at the relevant time, in his cross-examination made following admissions:
"It is correct that SASO department who should installed growers by the approval of chief Minister. Voluntarily says. Sale Inspector is not competent to issue installed growers without approval of high officers."
25. P.W.3 Ghulam Rasool, who was working as Assistant Clerk in SASO Department. Umerkot in his cross-examination admitted as under:
"We used to issue directions for giving stock on credit to growers after approval of Chief Minister. It is correct that that I have not mentioned about record secured by ACE vigilance team from me and it has been produced now in court by me which I have not mentioned in my 161 Cr.P.C. statement It is correct that there are double lock in godowns. It is correct that one key of the lock remained with Sub-Sale Inspector while key of another lock remained with Sale-Inspector at District It is correct that Vigilance team headed by Nazeer Memon. Vigilance Officer Anti-corruption establishment did not inspect the quantity of the stock. Inspection team has been visiting the depot to inspect the stock monthly or quarterly .. It is correct that mashirnama Exh-7/B only mentioned four godowns of Umerkot have been sealed but instead of stock has not been mentioned therein. It is correct that no private person was engaged as mashir . It is correct that no private person was acted as mashir...."
26. P.W.
7. Muhammad Aslam, who was working as District Officer, SASO Umerkot at the relevant time, in his cross-examination made following admissions:
"I have reported against Abdul Karim, Aslam so also I nominated in the FIR but today, except Abdul Karim no other accused is present. However, I along with Deputy Director have let off in CFR. ....It is correct that since fertilizer was given to growers on credit therefore time was granted to him, otherwise, he himself has to recover the same from growers but after expiry of one month he could not recover any single penny from growers...."
27. From above admissions, certain material discrepancies emerge from the prosecution case. It has been admitted by the prosecution witnesses that the department used to issue directions for giving stock on credit to growers after approval of Chief Minister. It has also been admitted that the Sale Inspector which post was held by the accused/ appellant, was not competent to give the fertilizers on credit to the growers without the approval of higher officers. It has also been admitted by P.W.7. Muhammad Aslam, District Officer, SASO Umerkot that since fertilizer was given to growers on credit therefore one month's time was granted to accused. Keeping such admissions on the part of the prosecution witnesses, it transpires that, even it is presumed that there was shortage in the stocks in Bulk Depots where the accused/ appellant was posted, even then there was no mens rea/intention to commit the alleged offence of criminal breach of trust and misappropriation under section 409, P.P.C. Besides. in order to constitute an offence under section 409, P.P.C., there must not only be entrustment but dishonest misappropriation or conversion to one's own use or dishonest disposal of property by accused and when such elements are missing, accused is liable to be acquitted. In present case neither the prosecution has proved its charge that appellant was entrusted with certain quantity of fertilizer bags nor has been brought on record that appellant had actually converted said fertilizer to his own use and no official document was produced by prosecution through which it could be deduced that entrustment was made and subsequently proved by prosecution. In this context, reliance can be placed upon cases of Abdul Rashid Nasir and others v. The State (2009 SCMR 517) and The State v. Abu Raza (PLD 1959 Supreme Court (Pak) 309).
28. It is also noteworthy that P.W.3 Ghulam Rasool, who was working as Assistant Clerk in SASO Department, Umerkot has admitted in his cross-examination. "It is correct that there are double lock in godowns. It is correct that one key of the lock remained with Sub-Sale Inspector while key of another lock remained with Sale-Inspector at District." It is, thus, clear that even if it is presumed that criminal breach of trust was committed in respect of fertilizers / stocks lying in the godowns in question but the same not being in exclusive custody/possession of appellant, it creates doubt as to whether whom of two persons, who possessed the key of the godowns, had committed the offence of criminal breach of trust/misappropriation.
29. It has also been admitted that along with the present appellant other persons were also nominated as accused in the instant case but strangely enough only the accused/appellant Abdul Karim Kumbhar has been charge sheeted and arrested and none else has been arrested and produced before the trial Court to face the trial. This is also contrary to the 'principle of consistency and equivalence'.
30. It has time and again 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 Muhammad 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."
31. 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."
32. Keeping in view aforesaid admissions made by the prosecution witnesses, so also infirmities and lacunas in the prosecution case, as stated above, it can safely be held that prosecution has not succeeded in proving its case against the accused/appellant beyond shadow of reasonable doubt. Needless to emphasize the well settled principle of law that the accused is entitled to be extended benefit of doubt as a matter of right and not as a grace or concession. In present case, there are various contradictions in the evidence of the prosecution witnesses 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 person 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."
33. For the aforesaid reasons, by a short order dated 10.04.2020. instant appeal was allowed. Consequently, the impugned judgment dated 02.09.2014. handed down by Special Judge, Anti-Corruption (Provincial), Hyderabad, in Special Cases No. 28 of 1998 and Special Cases No. 29 of 1998 respectively, (re: State v. Abdul Karim Kumbhar), being outcome of FIRs Nos. 01/1995 and 02/1995 respectively, registered at Police Station ACE Umer Kot, under section 409, P.P.C. read with section 5(2) of Act-II, 1947, was set aside. Resultantly, appellant Abdul Karim Kumbhar was acquitted of the charges and ordered to be released forthwith, if his custody was no longer required by jail authorities in any other criminal custody case. Office to place copy of this judgment in connected file (Cr. Appeal No.S-96 of 2014).
34. Above are the reasons for said short order.
JK/A-89/Sindh Bail granted.