NAZIR AHMED Versus State
MUHAMMAD SALEEM JESSAR, J.--- Appellant Nazeer Ahmed Jumani has assailed Judgment dated 29.03.2013, passed by the Special Judge Anti- Corruption Sukkur in Case No.59/1999, Re: State v. Nazeer Ahmed Jumani, Incharge SASAO Sub-Bulk, Depot, Tharo Mirwah District Khaipur, culminating from Crime No.01/1996 registered at ACE Tharo Mirwah under section 409, P.P.C., read with section 5(2) Act-II of 1947. The trial court after full dressed trial has convicted the appellant under section 245(2), Cr.P.C. for offence punishable under section 409, P.P.C. read with section 5(2) Act-II of 1947, and sentenced him to suffer R.I. for three years and to pay fine of Rs.16,08,600/- and in case of default in payment of fine, he was ordered to undergo S.I. for one year more. However, benefit of section 382-B, Cr.P.C. has been extended to him.
2. The crux of prosecution case, as unfolded by complainant Syed Zamir Hussain Shah, the then DASO/SASO Ranipur, in FIR No.01 of 1996, the contents whereof are narrated as under:
3. The case is registered on report of DASO/SASO Ranipur vide No.DASO/ SASO/RNP/DoF/T.M Wah/96/63-67 dt: 16.01.1996. After obtaining permission from ACC-II, Khairpur and D/D/ACE/ Sukkur vide his order No.D/D/ACE/ 4504 dt: 12.06.1996 Mr. Zamir Hussain Shah DASO Ranipur reported that the stock of Bulk Depo, Mrwah was checked by the board of officers/officials of SASO in presence of the Magistrate on 19.12.1995 and 20.12.1995. During the handing over of charge to Mr. Khushi Muhammad Tunio Sub SASO Inspector through Magistrate and board of SASO officers/officials. The following stock of accused Nazir Ahmed Juntani Sub Sale Inspector found short on ground. The stock misappropriated by accused Nazir Ahmed Jumani Sub Sale Inspector, Sub Bulk Depot Thari Mirwah is as under:
S. No.
Variety
Stock found
Rate
Amount
1.
DAP
2,435 bags
Rs.560/-
13,63600
2.
SOP
01 bag
Rs.300/-
300/-
3.
Cotton
10 bags
Rs.690/-
6900/-
4.
Urea (Imported)
620 bags
Rs.290/-
2,37,800/-
Total
Rs.16,08,600/-
The accused official Nazir Ahmed Jumani sub Sale Inspector during his posting as Sub Bulk Depot, Thari Mirwah, mis-appropriated the government fertilizer and seed/cotton. Hence this case is being registered.
4. After registration of the case, investigation was carried out and after completion of legal formalities and after obtaining permission from the competent authority the Additional Circle Officer namely Mukhtiar Hussain submitted charge sheet against the appellant on 12.04.1999. After accepting the challan learned trial Court took cognizance of the case, supplied copies of documents to appellant in terms of section 241(i), Cr.P.C. vide Ex.01. Subsequently, a formal charge Ex.02 was framed against the accused on 25.10.1999, to which he pleaded not guilty and claimed to be tried vide his plea Ex.3. On 16.12.1999 advocate and legal adviser, SASO, Sukkur filed his statement to the effect that he would assist the prosecution on behalf of complainant/organization vide Ex.04.
5. In order to prove the charge against the accused, prosecution examined PW-01 Sadoro Khan at Ex.05, PW-02 Zamir Hussain Shah was examined at Ex.06, who produced charge fard as Ex.6/A, letter for registration of FIR as Ex.6-B and FIR as Ex.06-C, statement filed by legal advisor of complainant organization as Ex.7. PW-03 Fakir Muhammad was as examined at Ex.8, while PW-04 Bux Ali was examined at Ex.9. An application was filed by the PDSP for summoning PW Shahzado vide Ex.10. PW-5 Shahzado was examined at Ex.11, who produced mashirnama as Ex.11-A/1 to Ex.11-A/5, charge report ass Ex.11-B. Learned A.D. (legal) gave up PW Ghulam Rasool vide his statement Ex.12. PW-6 Mukhtiar Hussain was examined at Ex.13, who produced letter for permission to submit challan as Ex.13-A, and letter for permission to register FIR as Ex.13-B. PW Mehboob Ali was examined at Ex.13, who produced mashirnama of recovery of record as Ex.13-A and other relevant record from Ex.13-B to Ex.13-E. Thereafter, side of prosecution was closed.
6. Statement of accused under section 342, Cr.P.C. was recorded vide Ex.14, wherein he denied the prosecution allegations and claimed to be innocent. However, in reply to Q.No.04, he deposed that on 06.12.1995 he was available when at the time of weighment of 848 bags, out of them, 48 bags were underweight. In support of his contention he submitted such statement as Ex.14-A wherein was shortage of 48 bags. He further deposed that from 07.12.1995 he had fallen ill and was unable to attend the duties, therefore, weighment was made in his absence. In support of his contentions, he submitted medical certificate and prescriptions as Ex.14-B and 14-C. In his statement, he further stated that he had sent telegram to higher authorities on 12.12.1995 to the effect that DASO/ SASO Ranipur namely, Zamir Hussain Shah, (the complainant) had taken away fertilizer etc. from his depot in his absence by breaking locks. He produced copy of telegram dated 12.12.2195 at Ex.14-D. One Hussain Bux, a truck driver had also sworn his affidavit on 18.07.1996 regarding taking away of the fertilizer by Zamir Hussain Shah. Copy of such affidavit was produced as 14-E. During investigation the said Hussain Bux stated same facts in his 161, Cr.P.C. statement before the I.O. The copy of 161, Cr.P.C. statement of said Hussain flux dated 18.08.1996 has also been produced as Ex.14-F. Affidavit of one Mohammad Ali, so also 161, Cr.P.C. statement of said Mohammad Ali recorded by the I.O. on 06.12.1997 has also been produced as Ex.14-G and 14-H respectively. Statement of Ghulam Rasool under section 161, Cr. P.C. was also recorded by the I.O. during investigation on 15.08.1996. Copy of said statement was also produced as Ex.14-I.
7. DW Mohammad Ali was examined on 23.06.2007 at Ex.
15. In his deposition he deposed that about ten years back when he was passing from bus stop Pir Wassan, he found that huge quantity of fertilizer bags was lying by the side of road which was as being sold by one Ali Khan a Chowkidar of SASO department at low rate as he was directed by Zamir Hussain Shah DASO/SASO to dispose of the same. Besides, many persons were available to purchase same, as it was being sold at the rate of Rs.500 per bag. Since he was not in need of the same as such he did not purchase the DAP or Urea from Ali Khan. This PW was subjected to cross-examination by the PDSP but nothing fruitful was brought out from his mouth. PW Ghulam Rasool was also examined on 04.09.2007 at Ex.16. He deposed to the extent that one Ali Khan was present from whom he enquired about the appellant who disclosed that he had been lying ill. He further found that two trucks were being loaded with fertilizer as such he made inquiry from Ali Khan who disclosed that due to his ailment, the DASO Syed Zamir Hussain Shah was getting the trucks loaded. This PW was also subjected to cross-examination but nothing was fruited from him.
8. The appellant moved an application under section 540, Cr.P.C. for recalling of PWs namely Syed Zamir Hussain Shah and Fakir Mohammad which was declined by the trial court on 18.11.2009. The appellant challenged said order before this court but the same was also declined by means of order dated 31.08.2012. However, identical application under section 540, Cr.P.C. was filed by the SPP for the State for recalling and re-examining of PW Mukhtiar Hussain Lashari for the purpose of producing permission letter for prosecution of the accused at Ex.18 which was allowed by consent. Hence, the permission letter was taken on record and later the side of prosecution was closed on 02.03.2012 vide Ex.19. It is astonishing to note that after examination of the DWs no side close statement was filed by the defence nor was directed by the trial court; however, the further statement of the appellant under section 342, Cr.P.C. was recorded at Ex.20 by putting almost same questions to which he deposed that his statement may be treated as same which was recorded earlier on 30.05.2007.
9. I have heard the appellant in person and learned Assistant Prosecutor General (APG) Sindh and have gone through the material made available on record.
10. The appellant argued that he had not misappropriated a single bag of fertilizer or cotton seed etc. and the prosecution has prosecuted him at the instance of complainant Syed Zamir Hussain Shah due to departmental intrigue and at the time of receiving the bags and weighment 48 bags were short, so also there was shortage in weight, therefore, he had submitted such statement to his high-ups. He further submitted that on the following day, due to his ailment, he was not available and whatever weighment was made in his absence is not on his part and it was to be questioned from the person/official who conducted the weighment of the bags in his absence. He next submits that since complainant was biased with him and he being Incharge of the district, his complaint was not heard or given weight by the superiors, therefore; he was condemned unheard. The appellant further submitted that due to financial constraint he was not in a position to engage a counsel on his behalf to defend his case. However, as and when he arranged some amount he moved an application for recalling of the PWs complainant as well as Fakeer Mohammad but his request was turned down by the trial court as well as by this court hence, he being laymen having no legal know-how, was not competent to conduct the cross, therefore, the truth behind the screen was not surfaced. However, identical application moved by the prosecution was allowed by the trial court whereas his application was declined. According to him he could not understand the wisdom behind such injustice which shows double standard treatment on the part of trial court. He further stated that to conduct cross-examination of the PWs who had deposed against him was his right but he was deprived of the same. He next submitted that trial court had not appreciated the evidence as well as material available on record. He further submitted that offence pertains to year 1995 and no specific date or time of the offence has been shown by the prosecution. He next submitted that nothing incriminating was recovered from him or was recovered from elsewhere, even none was brought before the court who ho could have deposed that he had obtained the said fertilizer from him at cheaper rate to deduce that he had committed an offence of misappropriation by causing loss to the provincial government. He lastly submitted that punishment provided by the law as well awarded to him is three years; however, he has been in litigation right from 1995. He therefore, prayed that by allowing instant appeal, impugned judgment may be set-aside and he may be acquitted of the charges.
11. Conversely Mr. Mir Afzal Hussain Talpur, A.P.G. appearing for the State, vehemently opposed the appeal and supported the impugned judgment on the ground that the appellant being government servant was custodian of the government property but he has misappropriated the same. He next submitted that by selling the fertilizer bags etc. He had misappropriated the property entrusted to him thereby has caused financial loss to the provincial government. He further submitted that case of misappropriation has been established by the prosecution and the witnesses who deposed against the appellant were not subjected to cross-examination therefore, according to him, the evidence having not been shattered, deemed to have been admitted, hence, he does not deserve any relaxation or concession as the trial court, by awarding lesser punishment, has already taken a lenient view. However, learned APG did not controvert the fact that the alleged truck through which the appellant had allegedly sold out the fertilizer etc. was not noted whether the same was four-wheeler or ten-wheeler, nor its registration number has been shown. Even the labrourers, who allegedly loaded the truck, were not inquired about their whereabouts, so also the truck driver was not asked about the loading and subsequently its transmission to any godown, shop or the dealer. Learned APG has focused upon the evidence of one Saddoro Khan and Fakeer Mohammad both alleged eye-witnesses examined vide Exs.05 and 08 respectively and submitted out of these two witnesses, one had witnessed that the truck was being loaded, whereas other one is the person who provided labours to the appellant for loading the truck. Mr. Talpur has not pointed out any person to whom alleged fertilizer after loading from the government Depot was delivered nor such person was arrayed either as witness or an accused during inquiry or in investigation. He lastly contended that no prejudice was caused to accused in not providing him a defence counsel. He prayed that the appeal having no merits and consideration , be dismissed.
12. It is worthwhile to note here that no specific date of the offence has been mentioned in the FIR and even it is lacking in the charge framed by the trial court vide Ex.02. PW Saddoro Khan who was government employee working as high school teacher and was the landlord of the godown admeasuring about 1400 Sq. ft. rented out the same to the SASO Department on rent, the said rent agreement was terminated in the year 1999. He had appeared before the trial court and deposed that on 07.12.1995 while he was on the way towards mosque from his home, he saw that one truck was being loaded through labrourers with fertilizer where the appellant allegedly was available. Again on 05.12.1995 he saw at Isha prayer time that the accused was getting the truck loaded with fertilizer. On 09.12.1995 he had visited the godown and found accused was selling the fertilizer in retail. Soon after 09.12.1995 he learnt that a case has been registered against the appellant therefore he was examined by Sub-Circle Officer (SCO), Anti-Corruption Establishment (ACE) Thari Mir Wah. In his cross, PW Saddoro Khan deposed that he couldn't remember the quantity of fertilizer bags and was not in a position to specify whether the bags were containing wheat or other food grain. Though he owned some piece of agricultural land but had not purchased single bag of fertilizer from the SASO. He had been collecting the check of rent amount from SASO. He had also admitted that he has some relationship with Syed Zamir Hussain Shah, the then DASO, being landlord and had business relationship with said Zamir Hussain Shah (the complainant). This witness though was an educated person, despite that did not note the registration number of the trucks nor inquired names and whereabouts of the laborers and that of truck drivers. Being government employee, he should have noted that on 09.12.1995 which was Saturday and was not holiday how he noted the SASO office was opened and fertilizer was being sold out by the appellant on retail even he had not disclosed the specific time of his going towards the SASO office. Beside he being landlord of the premises, rented out his godown to SASO Department and had relationship with complainant, thus he was an interested witness, therefore, his evidence cannot be maintained to sustain conviction against the appellant.
13. Complainant Syed Zamir Hussain Shah, the then DASO/SASO, examined at Ex.06, had deposed that on 01.06.1995 he taken over the charge of the post of DASO/SASO Ranipur from one Mr. Mohammad Bachal Dharejo. During those days, appellant was working as Sub-Sale Inspector in SASO Department and was detailed to work as Sub Bulk Depot Thari Mir Wah. After taking over of his charge lie found that appellant was having 2400 DAP Bags as underweight therefore, after having permission from high-ups for standardization of those underweight bags under letter No.2880 dated 04.12.1998, a board was constituted for getting the weight standardization consisting of Store Inspector, Mr. Shahzado Shaikh, Senior Clerk Ghulam Qadir Lashari and the appellant. The board started the weight standardization on 06.12.1995 and weighed 848 out of which 800 bags were found to be made out of standard weight, whereas 48 out of 848 bags were found short of the prescribed weight. He further deposed that on 07.12.1995 he visited the SASO Office when appellant was absent while Chowkidar Ali Khan and remaining two members of the board were available. Again on 11.12.1995 appellant was found absent as such was suspended. He further deposed that one Khushi Mohammad Tunio was posted as Incharge Bulk Depo Thari Mir Wah on 18.12.1995. Again at his request Mukhtiarkar Thari Mir Wah was directed by the then District Magistrate to supervise the weighment proceedings. Accordingly, in his presence weighment process was conducted which continued upto 21.12.1995. It was found that there was shortage of 2400 bags of DAP amounting to Rs.1363600/- one bag of SOP Rs.300/- ten cotton seeds bags of Rs.6900/-, 820 bags of Urea worth amount Rs.237800/-, thus total amount due to such shortage came to the tune of Rs.16,08,600/. He therefore, submitted such report dated 21.12.1995 as Ex.06/A. Later on departmental inquiry was conducted by Director, Inspection Stocks and Recovery, SASO Hyderabad on 15.01.1996. Thereafter, he was directed to get the case registered against the appellant. On 16.01.1996 he wrote a letter to SCO-ACE, Thari Mir Wah for registration of FIR. Such copy was produced by him as Ex.06/B and consequently FIR No.01/1996 was lodged. It is worthwhile to note here that the report Ex.06/A does not bear the signature of the Magistrate/Mukhtiarkar in whose presence alleged weighment process was conducted and even the name of that Mukhtiarkar was not disclosed by the complainant either in the FIR or in his deposition. Besides, the said alleged weighment was conducted in absence of the appellant.
14. PW Fakeer Mohammad Mallah Ex.08 a private labour Jamadar examined before the trial court deposed that he was posted at SASO Bulk Depo, Thari Mir Wah in the year 1995 and he used to work as labour Jamadar whenever there happens some loading or unloading of the trucks at the said depot. He deposed that on 5th or 6th December, 1995 was called upon by the appellant for providing labour for loading the truck of DAP fertilizer, as such he along with Saddoro Khaskheli and other labour went to SASO Depot for loading the truck. He got loaded the truck of fertilizer along with labour on 07.12.1995. He however deposed that he was unaware of the destination of the truck after loading and as to whom the goods were to be delivered. Subsequently, a case was registered against the appellant wherein he was examined by the Circle Officer. Though the suggestion put to him regarding destination of the truck was denied by him, yet he could have named the driver and the quantity of bags allegedly loaded by him. Mere saying the truck was loaded of the bags without showing its quantity and what was as the labour charging for the loading truck was not enough as mentioning of such details was essential.
15. PW Bux Ali Khaskheli, examined at Ex.09, who was SASO Employee, was predecessor of the appellant who had handed over the charge of the depot to the appellant on 28.02.1991. He deposed that at the time of handing over of his charge, he handed over entire stocks available at SASO Depot, Thari Mir Wah of all godowns except one godown viz. Godown No.01. He however, did not depose that how much quantity of DAP, fertilizer, urea, cotton seeds or other items were lying and subsequently handed over to the appellant. Even this PW did not produce a single paper showing handing over and taking over of the charge by the said witness and the appellant respectively. He however, denied the suggestion that on 23.04.1991 he had given in writing that nothing was available at godown owned by Mohammad Chuttal Bahbhan.
16. PW Inspector, Shahzado Shaikh was examined at Ex.11, who deposed in his evidence that on 04.12.1995 the board constituted was headed by him. He further deposed that out of 848 bags of the DAP fertilizer, 800 bags were found of standard weight viz. Weighing 50 Kg, whereas 48 bags were found short of the prescribed weight. He further deposed that the weighment proceedings was supervised by Mr. Mirani, Assistant Mukhtiakar and SCM Thari Mir Wah, from 19.12.1995 to 20.12.1995 wherein they found certain shortage of DAP bags, one bag of SOP, 10 bags of cotton seed, 820 bags of urea amounting to Rs.168600/-, he; however, admitted that at the time of weighment by the board, the appellant was not available. He further deposed that report was prepared which was signed by all of them including the Magistrate and later on case was registered against the appellant. He had produced Photostat copies of five mashirnamas duly signed by them as well by the Assistant Mukhtiakar; however, the report Ex.06/A furnished by the complainant was not signed by the Mukhtiarkar. This PW admitted in his cross that he was unaware of the fact whether the DASO had informed the appellant about constitution of the Board for weighment of the stock as it was duty of DASO/SASO.
17. PW Mukhtiar Hussain, Additional CEO, ACE was examined on 29.06.2006 at Ex.13, who deposed that after permission from the competent authority, he submitted the charge sheet in respect of Crime No.01 of 1996. However, he did not produce such letter on 29.06.2006. Again on application filed by the SPP he was recalled and re-affirmed on 02-03-2012 and produced letter for permission to submit the challan as Ex.13-A and letter for permission to register the FIR at Ex.13/B. After about six years from his examination in chief, the trial court did not bother to note such delay which was purely on the part of prosecution and was fatal for the prosecution. PW Mehboob Ali/SCO-ACE was examined at Ex.14 was the author of FIR as well as the I.O. of the case. He also recovered some registers as well as documents from the official of SASO Department. The I.O. had not deposed a single word as to what kind of misappropriation was allegedly committed by the appellant and from the record allegedly secured by him did not point out the figure of the stock allegedly handed over to appellant and subsequently its shortage. From the perusal of evidence of this witness it seems that either he was incompetent or had no experience of the particular field. Therefore, whatever, he deposed before the trial court seems to have been tutored to him by the prosecutor. In his cross, he had shown ignorance of the fact to the effect that one key of the godown was being kept by the Incharge of the godown and the other key by DASO/SASO.
18. No doubt, the prosecution witnesses were not subjected to cross-examination by the appellant properly. It is evident from the record that he was not asked whether he is able to engage counsel or wished to have counsel appointed. At the time of evidence, no one appeared for the accused. The court did not appoint any counsel to defend the accused. If the appellant did not have a counsel, it is the mandatory duty of the court to appoint a counsel to represent him. The record reveals that the evidence of the witnesses, examined by the prosecution in support of the prosecution, including the alleged eye-witnesses and the investigating officer, were recorded by the trial court without providing a counsel to the appellant. The record also reveals that none of the witnesses was cross-examined by the accused/appellant properly. It is worthwhile to mention that before the conclusion of the trial the appellant moved an application under section 540-A, Cr.P.C. for recalling and re-examining of the prosecution witnesses but such his request was declined by the trial court; however, identical prayer was made on behalf of the State which was granted. I do not wish to comment on such double standard treatment of the trial court. The accused did not have the aid of the counsel in any real sense, although, he was as much entitled to such aid during the period of trial. It is settled principle of criminal administration of the justice that the right of cross examination is included in the right of an accused in a criminal case, to confront the witnesses against him not only on facts but also to discredit the witness by showing that his examination-in-chief was untrue. The purpose of cross examination of a witness has been shown as a right, apart from being a natural right is also a statutory right. An accused has not only a valuable right to get himself represented, but he has also the right to be informed thereabout. In my view, every person, therefore, has a right to a fair trial by a competent court in the spirit of the right to life and personal liberty. The object and purpose of providing competent legal aid to undefended and unrepresented accused persons are to see that the accused gets free and fair, just and reasonable trial of charge in a criminal case. Reliance can be had from the judgment of the Indian Supreme Court in case of Zahira Habibullah Sheikh (5) v. State of Gujarat (2006) 3 SCC 374: (AIR 2006 SC 1367: 2006 AIR SCW 1340) has explained the concept of fair trial to an accused and it was central to the administration of justice and the cardinality of protection of human rights. It is stated:--
"35. This court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affects the whole community as a community and is harmful to society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice-often referred to as the duty to vindicate and uphold the "majesty of law". Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice blind eye to vexatious or oppressive conduct that in relation to proceedings, even if a fair trial is except at the risk of undermining the fair name of the Judges us impartial and independent adjudicators.
36. The Principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively, when a citizen has recourse to the courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality offairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson's eye to the needs of society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.
37. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact in issue and obtain proof of such facts at which the prosecution and the accused hare arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny".
In another case of M.H. Hoskot v. State of Maharashtra 1978 (3) SCC 544 (AIR 1978 SC 1548) the Supreme Court of India has held as under:--
"14. The other ingredient of fair procedure to a prisoner, who has to seek his liberation through the court process is lawyer's services. Judicial justice, with procedural intricacies, legal submissions and critical examination of evidence, leans upon professional expertise; and a failure of equal justice under the law is on the cards where such supportive skill is absent for one side. Our judicature, moulded by Anglo-American models and our judicial process, engineered by kindred legal technology, compel the collaboration of lawyer power for steering the wheels of equal justice under the law. Free legal services to the needy is part of the English criminal justice system. And the American jurist, Prof. Vance of Yale, sounded sense fur India too when he said:
"What does it profit a poor and ignorant man that he is equal to his strong antagonist before the law if there is no one to inform him what the law is? Or that the courts are open to him on the same terms as to all other persons when he has not the wherewithal to pay the admission fee?"
Again in case of Mohammad Sukur Ali v. State of Assam (2011) 4 SCC 729 : (AIR 2011 SC 1222 : 2011 AIR SCW 1352), it is observed:--
"9. M. Maneka Gandhi v. Union of India, it has been held by a Constitution Bench of Court that the procedure for depriving a person of his life or liberty should be fair, reasonable and just. We are of the opinion that it is not fair or just that a criminal case should be decided against an accused in the absence of a counsel. It is only a lawyer who is conversant with law who can properly defend an accused in a criminal case. Hence, in our opinion, if a criminal case (whether a trial or appeal/revision) is decided against an accused in the absence of a counsel, there will be violation of Article 21 of the Constitution.
10. The right to appear through counsel has existed in England for over three centuries. In ancient Rome there were great lawyers e.g. Cicero, Scaevola, Crassus, etc. who defended the accused. In fact the higher the human race has progressed in civilization, the clearer and stronger has that right appeared, and the more firmly has it been held and asserted. Even in the Nuremberg trials the Nazi war criminals, responsible for killing millions of persons, were yet provided counsel. Therefore, when we say that the accused should be provided counsel we are not bringing into existence a new principle but simply recognizing what already existed and which civilized people have long enjoyed."
20. The evidence adduced by prosecution was not inspiring confidence to maintain the conviction against the appellant. This being the case of misappropriation was based upon documents which were in the custody of prosecution/department concerned. The prosecution was under obligation to establish first the stock of the alleged fertilizer etc. duly entrusted by the department to the appellant. In this regard, no charge paper showing the availability of the requisite quantity of bags of different items lying in the godown were handed over to appellant at the time of his posting and taking over of his charge. Per evidence, the appellant was detailed to work at said godown in the year 1991 and instant offence, as has been alleged, allegedly occurred in the year 1995 and no appropriate or specific date and time has been shown. Before constituting an offence of misappropriation , the prosecution was as duty bound to adduce the details of the stock handed over to the appellant. The mandatory ingredient to constitute an offence under section 409, P.P.C. was entrustment and breach of trust, though bunch of documents have been adduced in evidence not a single paper showing the availability of alleged stock had been specifically brought on record to prove the same. The fertilizer as well as seeds of different grain is the items which cannot be retained for over years and same being the commodity of particular season was to be sold out/supplied and brought for the purpose. No specific document in this regard has been adduced in evidence to show that on which date the alleged stock was brought at the godown through particular consignment. Mere word against word has been adduced by the prosecution which cannot constitute any offence. In this view of the matter, the appellant ought to have been acquitted but he has been convicted. The offence pertains to year 1995 and was registered in the year 1996 and he was convicted and sentenced on 29.03.2013 and since then he has been dragging in this appeal; up-till now which periods comes about to be 23 years. Reference can be had from the case of Allah Bux Shaikh and others v. The State 2004 PCr.LJ 503 [Karachi]. Identical is the position of instant case.
21. After carefully going through the entire records of the trial court, I am convinced that the appellant was not provided the assistance of a counsel in a substantial and meaningful sense. To hold and decide otherwise, would simply to ignore actualities and also would be to ignore the fundamental postulates, already adverted to. Learned APG contended that since no prejudice is caused to accused in not providing a defence counsel, this court need not take exception to the trial concluded by the learned special judge and the conviction and sentence passed against the accused. I find it difficult to accept the arguments of the learned APG. The Criminal Procedure Code ensures that an accused would get a fair trial. It is essential that the accused is given a reasonable opportunity to defend himself in the trial. He is also permitted to confront the witnesses and other evidence that the prosecution is relying upon. He is also allowed the assistance of a lawyer of his choice, if he is unable to afford, he is given a lawyer for his defence. The right to be defended by a learned counsel is a principle part of the right to fair trial. If these minimum safeguards are not provided to an accused; that itself is "prejudice to an accused", it has to be shown that the accused has suffered some disability or detriment in the protections available to him under the criminal jurisprudence. It is also a settled canon of criminal law that this has occasioned the accused with failure of justice. One of the other cardinal principles of criminal justice administration is that the court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage, as this expression is perhaps too pliable. With the development of law, the courts have accepted the following protections to and rights of the accused during investigation and trial. a. The accused has the freedom to maintain silence during investigation as well as before the court. The accused may choose to maintain silence or make complete denial even when his statement under section 342, Cr.P.C. is being recorded, of course, the court would be entitled to draw an inference, including adverse inference, as may be permissible to it in accordance with law; b. Right to fair trial; c. Presumption of innocence (not guilty) d. Prosecution must prove its case beyond reasonable doubt.
22. Prejudice to an accused or failure of justice, thus, has to be examined with reference to these aspects. That alone, probably, is the method to determine with some element of certainty and discernment whether there has been actual failure of justice. "Prejudice" is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial and not matters falling beyond their scope. Once the accused is able to show that there is serious prejudice to either of these aspects and that the same has defeated the rights available to him under the criminal jurisprudence then the accused can seek benefit under the orders of the court. Right to fair trial, presumption of innocence until pronouncement of guilt and the stands of the proof i.e. the prosecution must prove its case beyond reasonable doubt are the basic and crucial tenets of our criminal jurisprudence. The courts are required to examine both the contents of the allegations of prejudice as well as its extent in relation to these aspects of the case of the accused. It will neither be possible nor appropriate to state such principle with exactitude as it will always depend on the facts and circumstances of a given case. Therefore, the court has to ensure that the ends of justice are met as that alone is the goal of criminal adjudication.
23. In view of the above discussion, I cannot sustain the judgment impugned and the findings arrived at by the trial Court must be reversed. Consequently the conviction and sentence awarded to the appellant is required to be set-aside as he was not given the assistance of a lawyer to defend himself during trial but, with profound respect, I find it difficult to persuade myself that it is a fit case which deserves to be remanded to the trial court for fresh trial. Accordingly, I allow instant appeal and set-aside the conviction and sentence imposed by the Special Judge, Anti-Corruption Establishment (Provincial) Sukkur in Special Case No.59 of 1999 re: State v. Nazir Ahmed being outcome of Crime No.01 of 1996, PS ACE, Thari Mir Wah, under section 409, P.P.C. read with section 5(2), Act-II, of 1947, by my short order dated 20.11.2018 and these are the reasons for same.
JK/N-31/Sindh Appeal allowed.