ESHWAR LAL Versus State
MUHAMMAD SALEEM JESSAR, J.--- Through this Criminal Appeal appellant Eshwar Lal has assailed judgment dated 11.09.2015 handed down by learned Special Judge, Anti-Corruption (Provincial), Hyderabad, Camp at Thatta, in Special Case No.33 of 2008 (re: The State v. Eshwar Lal son of Walji Mal) being outcome of FIR No.02/2007 registered at Police Station ACE, Thatta, whereby the accused/ appellant has been convicted for offence punishable under sections 409 and 420, P.P.C. read with section 5(2) of Prevention of Corruption Act-II, 1947, and sentenced to suffer R.I. for three (3) years and to pay fine of Rs.48,066/- and in default to undergo S.I. for six months more.
2. Succinctly facts of the prosecution case are that after receiving permission from competent authority, Abdul Jabbar Awan, SIP, ACE Thatta, registered aforesaid FIR on behalf of State on 31-01-2007 at 1800 hours on the basis of enquiry conducted into Complaint No.258/2006 of ACE Thatta which was initiated on the report bearing No.AM/723 dated 22-07-2003 submitted by Mukhtiarkar (Revenue), Shah Bunder, which was addressed to the Circle Officer, ACE Thatta, the contents whereof, as incorporated in the FIR, are reproduced as under:
"The above named official has recovered the amount of land Revenue etc. and has not deposited into Government Treasury and misappropriated an amount of Rs.48066-66. He has escaped from his duties of partal and also the village record viz. form-VIII-A, form V, Form XI and Form-VI have not produced before this office during Jamabandi 2002-2003. The Executive District Officer (Revenue) Thatta has directed vide his letter cited above to lodge FIR against the above named official. The Assistant Mukhtiarkar of this office has been deputed to lodge FIR against the above named tapedar. The challan is enclosed.
You are required to lodge FIR against Munshi Eshwar Lal tapedar of Tapa Shah Bunder for misappropriation of Government money and missing of village record."
3. It is further alleged in the FIR that during course of enquiry statement of witnesses Abdul Ghafoor Memon, Assistant Mukhtiarkar Revenue Taluka Shah Bunder and Syed Bachal Shah, Office Assistant, Office of the Mukhtiarkar Revenue Taluka Shah Bunder were recorded who supported the version and it established that accused Eshwar Lal deposited Rs.92,355/- though the demand of Kharif recovery season for the year 2002-2003 was Rs.1,38,331.60/- and not deposited Rs.45.976/- as recovery of Kharif crop. Similarly, accused also not deposited Rs.2090-00 as recovery of Rabi crop. Thus, he intentionally misappropriated Government amount of total Rs. 48,066-60 and misplaced / taken away the revenue record.
4. After registration of above FIR, Sub-Inspector Abdul Jabbar Awan conducted investigation and after completion of investigation, challan was submitted before the court on 05.08.2008 against present accused for facing trial in the above case.
5. A formal charge was framed against the accused vide Ex..2 to which he pleaded not guilty and claimed to be tried vide his Plea Ex. 3.
6. In order to prove its case, prosecution examined PW-1 Ghulam Muhammad Bhambhro, the then Mukhtiarkar, Taluka Shah Bunder at Ex.4, who produced original report dated 22.07.2003 of Mukhtiarkar (Revenue) Shah Bunder as Ex.4/A, copies of his application addressed to District Officer (Revenue) as Ex. 4/B, letter dated 06.07.2003 of District Officer (Revenue) for registration of FIR as Ex.4/C, PW-2 Abdul Ghafoor Memon, the then Assistant Mukhtiarkar, Shah Bunder at Ex. 5, who produced attested copies of complaint of Mukhtiarkar addressed to District Officer (Revenue) as Ex. 5/A, letter dated 06.07.2003 of District Officer (Revenue) for registration of FIR as Ex. 5/B, submission note of successor of accused as Ex.5/C, report/ letter No. 723 dated 22.07.2003 of Mukhtiarkar (Revenue) as Ex. 5/D, PW-3 Abdul Jabbar Awan, the then Sub-Inspector at Ex. 6, who produced FIR as Ex.6/A, order of learned IInd Judicial Magistrate, Sajawal for permission to conduct investigation as Ex.6/B, receipt and bebaki report as Ex.6/C (20-leaves), PW-4 Syed Bachal Shah, the then Clerk of Mukhtiarkar Office, Taluka Shah Bunder at Ex. 7, copies of challan deposited by accused as Ex. 7/A (11 leaves), PW-5 Dharamdas, the then clerk officer at Ex.8. The learned ADPP for the state closed the side of prosecution evidence vide statement moved by him at Ex.9.
7. Statement of accused under section 342, Cr.P.C. was recorded at Ex.10 wherein he denied the allegations of prosecution and claimed to be innocent.
8. After formulating 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/appellant, as stated above. Against said judgment instant appeal has been preferred by the convicted accused/appellant.
9. I have heard appellant in person, learned A.P.G., Sindh for the State and perused the material available on the record.
10. The appellant present in person submitted that he is innocent and has been falsely involved in the case due to departmental intrigue. He further submitted that as per FIR, the alleged misappropriation had been committed in 2003, whereas the FIR was registered on 31.01.2007 i.e. after about 4 years. He also submitted that prosecution witnesses have not specifically deposed that he has committed alleged offence of misappropriation. He, therefore, prayed that the impugned judgment may be set aside and he may be acquitted of the charge.
11. On the other hand, learned A.P.G. opposed the appeal and submitted that prosecution witnesses have fully implicated the accused in commission of alleged offence. According to her, the appellant being custodian of the government property has misappropriated the same as such he is not entitled to any leniency. She supported the impugned judgment and submitted that the trial Court has assigned sound and cogent reasons for its findings, as such the impugned judgment does not call for any interference by this Court. She prayed for maintaining the impugned judgment and dismissal of the appeal.
12. It seems that as per contents of FIR the alleged offence of misappropriation had been committed "in or about Year 2002-2003", whereas the FIR was registered on 31.01.2007 i.e. after about four years. However, if the fact is taken into consideration that, in fact, permission was accorded for registration of the FIR by competent authority in December, 2006 which was conveyed to the I.O. of the case namely, P.W.3, Sub-Inspector Abdul Jabbar Awan by order No.16342 dated 23.12.2006 as admitted by himself in his evidence, even then no plausible explanation has been furnished by him as to why he did not register the case immediately after receiving such permission / order and waited till 31.01.2007 and then registered the FIR after a delay of 39 days. Such delay is fatal to the prosecution case and has not been appreciated by the Superior Courts. In the case reported as Ayub Masih v. The State (PLD 2002 SC 1048) Honourable Supreme Court 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."
13. In another case reported as Syed Altaf Hussain Shah v. State (2018 YLR 482 Karachi) this Court while dealing with a case relating sections 409, P.P.C. and 5(2) of Act-11, 1947, held that on account of delay of about one year in lodging the FIR without furnishing satisfactory explanation for such delay, false implication of the accused cannot be rule out.
14. It is also noteworthy that almost all the documents produced by prosecution witnesses are not original but Photostat copies of the same have been produced. From perusal of the evidence of P.W. Ghulam Muhammad, who was concerned Mukhtiarkar at the relevant time, as well as P.W. Abdul Ghafoor, Assistant Mukhtiarkar, Shah Bunder, it transpires that defence counsel had timely raised objections on the production of Photostat copies of the documents but learned trial Judge observed that such objections would be resolved at the time of final hearing. 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 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 documents, which is also fatal to the prosecution case.
15. 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. In view of this legal position, the documents, photocopies whereof have been produced by prosecution witnesses in their evidence, have lost their evidentiary value.
16. It also appears that the trial Court, while passing the impugned judgment, has also heavily relied upon the fact that the accused could not prove his innocence through any tangible document. In this context, it may be observed that it is now well settled 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 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."
17. In another case reported as Shamoon alias Shamina 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."
18. Although in para 21 of the impugned judgment, the trial Court has observed, "Moreover, during cross-examination the PWs denied the suggestion of learned defence counsel for depositing of the remaining amount i.e. Rs.48, 066/- by the accused.", however, I am afraid such observation of the trial Court is not in consonance with the statements of the prosecution witnesses made in reply to the aforesaid suggestion. In fact, P.W.1, Ghulam Muhammad Bhambhro, concerned Mukhtiarkar at the relevant time, in his cross-examination admitted, "I can not say if accused deposited same amount later on as I was on leave.", whereas P.W.02, Abdul Ghafoor, who was Assistant Mukhtiarkar at the relevant time, in his cross-examination admitted, "I can not say whether amount deposited by the accused or not." He also admitted, "I don't know personally whether the accused has misappropriated the amount or not." In view of above, it is obvious that both the abovesaid prosecution witnesses have not denied in clear terms that the accused did not deposit the remaining amount, on the contrary, they showed their ignorance about such fact which cannot be equated with denial.
19. 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."
20. For the foregoing reasons by a short order passed on 16.12.2019, instant appeal was allowed. Consequently, impugned judgment dated 11.09.2015 handed down by learned Special Judge, Anti-Corruption (Provincial), Hyderabad Camp at Thatta, in Special Case No.33 of 2008 (re: The State v. Eshwar Lal son of Walji Mal) being outcome of FIR No.02/2007 registered at P.S. ACE, Thatta, under Sections 409 and 420, P.P.C. read with section 5(2) of Prevention of Corruption Act-II, 1947, was set aside and appellant Eshwar Lal was acquitted of all the charges. Appellant was present on bail, his bail bonds were cancelled and surety furnished by him stood discharged.
21. Above are the reasons for the said short order.
SA/E-1/Sindh Appeal allowed.