1989 PLP 3701 (MLD)

The appellant was charged under section 409, P.P.C. read with section 5(2) of Act II of 1947 and tried before Special Judge, Anti-Corruption Hyderabad, who convicted and sentenced her to suffer R.I. for three months, and to pay fine of Rs.7,000 and in case of default in payment of fine to suffer S.I. for six months. The brief facts of the prosecution case are that on 5-12-1982, S.I.P. Raja Malook Hussain S.H.O. Mirpur Bathoro, lodged a report on behalf of the State which reads as under:-- 'I am S.H.O. at P.S. Mirpur Bathoro. Today A.S.I. Muhammad Rafique produced his report initiated under section 550, Cr.P.C. in respect of suspicion in Crime No.4 of 1982, the papers whereof were perused. From which the offence falls under sections 409 411, P.P.C. Hence this complaint is being entered as under:- On 4-12-1982, A.S.I. Muhammad Rafique alongwith P.C. No.29, Taj Muhammad, P.C. No.636, Muhammad Bux and P.C. No.235+Iuhammad Sadiq went for patrolling duty and nakabandi around the Daro Town. He reached at Daro Town, vide diary entry No.7/2200. When he (A.S.I.) and others) reached in Daro at Banoon chowk' he got spy information that maternity home in charge L.H.V. Mst. Saeeda Fazal has supplied the gunny bags of wheat and dry milk on behalf of the Government for distributing the same amongst the poor persons but, she was selling the aforesaid goods. And today a Suzuki also had come. She would sell the wheat and milk, and would transport these to Mirpur Bathoro. On receiving such information, I took private person Suleman son of Yaqoob Brohi. We reached Shaikha Wah on Bathoro Road. On 5-12-1982 at 2-3 hour. I alongwith staff started nakabandi. At about 5.30 hours, one Suzuki No.125-719 (79K.R.C. 80) came from north. We stopped it. On checking it, four gunny bags of wheat and eight gunny bags of milk powder were found lying in it. There were two men, one Suzuki driver Muhammad Yousif son of Hashim Sohu resident of Bathoro Town, and Ahmad Nawaz son of Salih Muhammad Sohu resident of Darya Khan Sohu. Driver Muhammad Yousif told that these goods have been purchased by Ahmed Nawaz from LHV Daro which they were carrying to Darya Khan Sohu. Ahmed Nawaz told me that he had purchased the same goods from L.H.V. Saeeda Fazal for Rs.2,8W. He had paid Rs.1,000 to her, while I would pay the rest amount, tomorrow, after leaving the goods in the house: However, the property was taken into Police possession suspecting it being stolen under the mashirnama prepared on the spot before the mashers Sulman son of Yaqoob Brohi and PC/686 Muhammad Bux. Ahmed Nawaz was arrested under section 54, Cr.P.C. Enquiry was made. During enquiry L.H.V. Saeeda Fazal accepted that it was perhaps goods of her store, which she had received from the State. But now she had seen and found it stolen. The key whereof is with her. The watchman was Muhammad son of Siddique Punjabi who is residing there. Watchman Muhammad son of Siddique disclosed in his statement that Mst. Saeeda Fazal herself had stolen and sold out the goods to Ahmed Nawaz. She asked me `It does not matter if they carried away eight gunny bags of milk powder and four, gunny bags of wheat.' It is proved from the enquiry that these four gunny bags of wheat and eight gunny bags of milk powder were lying under the charge of Mst. Saeeda Fazal for distributing amongst the poor persons but she was selling the same. She has committed offence under section 409, P.P.C. Therefore, report is lodged against her. After necessary investigation the appellant was challaned. A formal charge was framed against the appellant under section 409, P.P.C. read with section 5(2) of Act II of 1947 to which she pleaded not guilty. At the trial prosecution examined Muhammad Peon, M.H.C. Centre, Daro P.W.1, Muhammad Yousuf, Suzuki Driver, P.W.2, Ahmad Nawaz, businessman P.W.3, Dr. Amanullah Medical Officer A.D.H.O. Thatta, P.W.4, he has produced mashirnama prepared regarding the goods lying in the store as Exhs. 13, his report, which was based on enquiry held by him as Exh. 14, entry dated 4-11-1982, regarding balance of milk as Exh.15, another entry as Exh.16, monthly statement regarding stock of milk, wheat and oil, from January 1982 to November, 1982 as Exhs. 17/1 to 17/11. Allahdino, Clerk from the Office of D.H.O. P.W.5, mashir Muhammad Bux L/NK, P.S. Daro, P.W.6, he has produced mashirnama regarding recovery of goods from Suzuki Van as Exh.20, co-cashir Suleman P.W.7, Muhammad Rafiq, A.S.I.P. P.W.8, he has produced application, dated 5-12-1982, submitted by the present appellant at P.P. Daro, regarding theft of articles from the Godown as Exh.29. He has produced mashirnama of wardat as Exh.30. Statement of Muhammad son of Siddiq Chowkidar, of the godown Exh.31, statement of appellant as Exh.32, statements of Muhammad Yousuf, Suzuki Driver and Ahmad Nawaz Businessman as Exhs.33 and 34, S.I.P. Malook Hussain P.W.9, he has produced the report of A.S.I.P. as Exh.25, F.I.R. as Exh.26, and letter sent by S.P. Thatta to S.P. Anti?Corruption Hyderabad, Exh.27, another letter Exh.27-A, and statements of witnesses Suleman L/NK Muhammad Bux, Taj Muhammad and Muhammad Sadiq as Exhs. 28/1 to 28/4. Application of appellant as Exh.29, Ansar Ahmed, Circle Officer, A.C.E. Thatta P.W.10, he had received record of Maternity Home alongwith covering letter from D.H.O. Thatta which he had secured under mashirnama, which he had produced as Exh.38, letter of D.H.O. as Exh.39, Chart and information regarding World Food Community Medical Health Centre Daro as Exh.40. Iqbal Ahmed, Circle Officer A.C.E. P.W. 11, he had carried on part of the investigation and challaned the appellant. After close of prosecution case, the statement of appellant was recorded under section 342, Cr.P.C. in which she denied the allegations. She has further stated that the witnesses had deposed against her falsely due to personal grudge. She had made report against Chowkidar Muhammad to the D.H.O. She had also made report against A.S.I.P. Rafiq and A.S.I.P. Iqbal to D.H.O. as both of them had visited the Centre and had misbehaved with her. She has also filed her written statement as Exh.45-A. As far as the shortage of four bags of wheat and eight bags of milk powder was concerned, she had stated that theft was committed from the Centre on the night between 4th and 5th December, 1982. That the finding of A.D.H.O. Dr. Amanullah was erroneous, as it was based on the statement of Husna Dai, cousin of Chowkidar Muhammad, against whom she had made application to D.H.O. In her written statement she had stated that on 5-12-1982, she found lock of the store opened and Chowkidar Muhammad was not present. She went inside the store room and found 4 bags of wheat and 8 bags of milk powder were missing. One key of each lock of Hospital and store was also with Chowkidar Muhammad, since he was not available and the Government property was missing she rushed to P.P. Daro to lodge report, but P.W. A.S.I. Rafiq refused to register the same in 154, Cr.P.C. Book, and misbehaved with her. In view of the behaviour of A.S.I. she moved an application which has been produced as Exh.29, she tried to contact D.H.O. Thatta, on telephone but she could not get telephone call and, therefore, she made application to the Medical Officer Rural Health Centre, Daro apprising him of the above facts. As appellant has also examined Allahdino Head Clerk Office of the D.H.O. Thatta in her defence. The learned trial Judge while relying upon the above prosecution evidence, convicted the appellant as described above. The present appeal is directed against the above judgment of the conviction. I have heard Mr. A.Q. Halepots, learned counsel for the appellant, Mr. S. Sarfraz Ahmed, learned AA.-G. for the State, and have also gone through the R & P of the case. It was contended by Mr. A.Q. Halepota that the case against the appellant was false and was the result of enmity with A.S.I.P. Rafiq and Chowkidar Muhammad. He has further contended that the entrustment of wheat and milk has not been denied by the appellant but the evidence regarding breach of trust was false and unreliable. He has further contended that the evidence of P.W. Muhammad Chowkidar, Ahmed Nawaz businessman, and Muhammad Yousuf Suzuki Driver was that of accomplice and the learned trial Judge had erred in relying upon the same. In any case, looking to the circumstances, of the case, and the documents produced by the appellant, explanation given by the appellant was natural and probable, and, therefore, the learned trial Judge had erred in convicting the appellant. Mr. S. Sarfraz Ahmed, learned AA.-G. appearing for the State has conceded that in view of the conduct of P.Ws. Muhammad, Muhammad Yousuf, and Ahmed Nawaz, the documents produced by the appellant, and her explanation, the prosecution case was doubtful regarding the breach of trust, and therefore, he could not support the judgment of conviction. I have considered the contentions of learned counsel. In the present case, it has not been disputed by the learned counsel appearing for the appellant that the appellant had received wheat and milk powder m question, and, therefore, the only question which remains to be decided is whether the appellant had committed breach of trust in respect of 8 bags of milk powder and 4 bags of wheat. In order to decide the question of breach of trust the main evidence available on record is that of Muhammad P.W.1, Muhammad Yousuf Driver, P.W.2 and Ahmed Nawaz businessman P.W.3. Muhammad P.W.1 has deposed that he was working as Peon at Daro Centre since 1982, while accused Miss Saeeda was Incharge of Maternity Home. The Government used to supply Milk Powder, Wheat and Ghee for distribution amongst poor people. The accused used to distribute these commodities and maintain record. The above articles used to be kept in store room under lock and key which used to remain with the accused. About 1-1/2 years or 2 years back at 3 or 4 p.m. he was awakened by the accused. P.Ws.3 Nawaz and Yousuf were present there, both were businessmen of Town Bathoro. There was a Suzuki standing out. The accused opened the lock of the store room and asked him to lift 8 bags of Milk Powder and 4 bags of Wheat and keep the same in Suzuki, he refused. She directed him that since she was Incharge of the Centre he must obey the order, then he, Yousuf and Nawaz took 8 bags of Milk Power and 4 bags of Wheat from store room and kept in Suzuki, and thereafer they went away in the Suzuki alongwith goods. The accused then locked the store room and went to her Quarter. At about 7.00 a.m. Daro Police came there, took him to P.S. Daro and recorded his statement. P.W. Nawaz and Yousuf were with them. In cross?examination he has deposed that Dai Husna was his cousin. He has denied a suggestion that these goods were stolen on that particular night and Mst. Saeeda had lodged report with Police. Nawaz was not known to him before that night, Yousuf was known to him prior to that. Police of Daro had taken away goods secured from the Suzuki. Muhammad Yousuf P.W.2 has deposed that he is a Suzuki Driver, and plies his Suzuki between Mirpur Bathoro and Daro. He knows Ahmed Nawaz Sohu who is a businessman. About 2-1/2 years ago, Ahmed Nawaz Sohu had engaged his Suzuki for lifting goods from Daro to village Daro Khan Sohu. It was winter season. At about 4 or 5 a.m. they left in the Suzuki, and came to Maternity Home Centre. He knocked at the door of the Lady Health Visitor on which accused Mst. Saeeda came out. She accompanied with them to a verandah where Muhammad peon was sleeping. She asked the peon to give them 8 bags of milk and 4 bags of wheat. The peon refused on which she told him that he must deliver the goods to them. She opened the lock of the store room and then he, Ahmed Nawaz, and Muhammad Peon lifted 8 bags of milk and 4 bags of wheat from the store and kept the same in the Suzuki. They left for Bathoro but before reaching Bathoro police met them. The A.S.I. was there with his staff. On inquiry they told the A.S.I. that Ahmed Nawaz had purchased these goods from Lady Health Visitor, then the police took them to the Police Station. In cross-examination he has deposed that Bathoro police had recorded his statement while they were detained by the police. P.W. Ahmed Nawaz had told him that he had to carry wheat and milk from a nurse at Daro. He had stated so before the police. According to him he had stated before the police that they had gone and knocked at the door of L.H.V. and the accused had come out. He had informed the police that she awakened Muhammad who was sleeping in verandah and told him to deliver bags of milk and wheat. He has stated before the police that peon had refused but the accused told him that she was ordering him to deliver the goods, to them, and then she opened the lock, and thereafter they lifted the goods. Mirpur Bathoro police had inquired from them as to whether the goods were stolen goods on which he had replied that the same were not stolen, but Ahmed Nawaz had purchased from Lady Health Visitor. He has denied a suggestion that he, and Ahmed Nawaz in collusion with Chowkidar Muhammad had stolen these goods from the godown in absence of the accused. Ahmad Nawaz P.W.3 has deposed that he owns a dairy and sells milk. In the year 1982, the accused had met him on the road and told him that she had dry milk and wheat with her, and if he wanted to purchase the same, she was willing to sell to him. He agreed to purchase the above commodities from her. She told him to come at Daro and lift the goods. He went to Daro and met the accused in her hospital. She agreed to sell 4 bags of wheat and 8 bags of dry milk, for Rs. 2,

800. He paid her Rs. 2,800 there and then, and she told him that he should come and lift the goods at 4 or 5 A.M. He then engaged Yousuf Suzuki Driver for lifting the goods. On the following night at 5.00 A.M. he took Yousuf with his Suzuki to the Maternity Home of the accused. They knocked at the door, and the accused came out. She took them to the Chowkidar and awakened him and told him to deliver 4 bags of wheat and 8 bags of milk to him. The Chowkidar refused to deliver the goods. Thereafter, the accused opened the door of the store room with key, and directed Chowkidar to help him in lifting the goods. Then he, Driver Yousuf, and Chowkidar lifted 4 bags of wheat and 8 bags of milk and kept the same in the Suzuki, and left for Mirpur Bathoro. On the way police intercepted them and made inquiries from them. They narrated the facts to the police. The police secured the goods under mashirnama and took him to V.S. Mirpur Bathoro. In cross-examination he has stated that he had stated in his police statement that accused had met him on the road and asked him that if he wanted to purchase dry milk and wheat she would sell the same to him. Prior to that, neither he nor any of his relative had taken milk or wheat free of costs from Daro Centre. The distance between Mirpur Bathoro where he runs shop. and Daro where the Centre is situated is 13 miles. He had no dealings or business transaction with the accused prior to the one in question. He did not know that the goods which accused had offered for sale were to be distributed free of cost by her. He had not stated before the police that accused used to come for distributing milk and wheat free of cost. Prior to this he had been purchasing dry milk and wheat from big shops from Karachi at the same rate at which he had purchased these goods from the accused. His statement was recorded by Bathoro police when they had detained him. Dr. Amanullah had not recorded his statement but Anti-Corruption police had recorded his statement. He had stated before Daro police the way in which the accused had delivered goods to him as mentioned by him in examination-in-chief. He had stated before the police that he had paid Rs. 2,800-to the accused. He denied the suggestion that he had stated before police that he had paid Rs. 2,000 to accused as cost of the goods. He i denied a suggestion that he, Yousuf Suzuki Driver, and Chowkidar of the godown in collusion with each other had stolen the goods from the godown and he was taking away the same, he was caught by police. He denied a suggestion that '~ because they had been caught with stolen goods, they have thrown burden on the accused and have implicated her falesly. Iqbal Ahmad Circle Officer A.C.E. P.W. 11 has deposed that in April, 1983 he took over charge as a Circle Officer A.C.E. Thatta. During that month he received papers of this case for further investigation. On 10-5-1983 he recorded the statements of P.W. Mohammad, Ahmed Nawaz and Yousuf. On 14-5-1983, he recorded the statement of A.D H.O. Dr. Amanullah. On 18-5-1983 he recorded the statement of A.S.I. Mohammad Rafique of P.P. Daro. On 20-5?-1983, he recorded the statement of Suleman S/o Yakoob. On 14-6-1983, he recorded the statement of S.H.O. Raja Malook Hussain of-P.S. Mirpur Bathoro. On 4-7-1983, he recorded the statement of L/N.K. Mohammad Bux of P.P. Daro, P.C. Taj Muhammad and Mohammad Siddique. On 12-11-1983 he recorded further statement of A.D.H.O. Amanullah, Allahdino Head Clerk of DHO Office, and Mohammad Soomar Senior Clerk of that Office. On 8-9-1983, he recorded the statement of accused Miss Saeeda Fazal. A.D.H.O. Dr. Amanullah GI had produced the enquiry papers before him at the time of recording of further statement. He had also produced two registers, monthly reports with statement Exh. 13 was the mashirname and other documents Exhs. 14, 17/1 to 17/11 and the registers articles A, B and C were the same, which were produced by A.D.H.O. Amanullah. Thereafter, he submitted his report to the S.P. A.C.E. Hyderabad, who ordered him that the matter be placed before the relevant committee, therefore, he had put up the matter before Anti-Corruption Committee No. 3 Thatta for obtaining sanction for prosecution of the accused, and he has produced the sanction as Exh.

42. On 19-12-1983, the accused was challaned before the Court. In cross-examination he has deposed that he had seen the wheat and dry milk subject-matter of that case at P.S. Daro. P.W. Ahmed Nawaz had stated before him that he knew that the wheat and the dry milk used to be distributed free of costs by Health Centre. He had not stated before him that the accused had met him on the way where she had offered to sell wheat and dry milk to him, but he had stated that she had proposed to sell wheat and dry milk to him on payment of cash when she met him m Daro Town, where she had come to distribute the wheat and dry milk. He had stated before him that he had paid the amount of Rs. 2,800 to the accused for such purpose. He had not inspected the store of the Centre either alone or in the company of Dr. Amanullah. As far as the evidence of members of police party which had intercepted the goods was concerned, it is admitted position that the goods were intercepted and secured by the police party headed by A.S.I. Mohammad Rafique P.W. 8 and therefore it is not necessary to refer to their evidence. So far as the statements recorded by police and produced on record as Exh. 28/1 to Exh. 28/4, and Exhs. 31 to 34 were concerned they were clearly inadmissible in evidence and are ruled out of consideration. In cross-examination A.S.I. Mohammad Rafique has admitted that Miss Saeeda had submitted an application on that morning at about 9.00 or 9.30 A.M. but he did not enter such application in the daily diary. He did not do so as she was not prepared to lodge the formal report though he insisted upon her to do so. They register a case, if they receive any application about the cognizable offence. Before receiving application of Mst. Saeeda he did not go to the L.H.V. Centre where the accused was serving. He did not register any case against Miss Saeeda till h: submitted the papers to the S.H.O. He denied the suggestion that accused Miss Saeeda had filed application against him to D.H.O. Thatta. He did not go to the office of D.H.O. on 5-12-1982 or on any other date thereafter. There was no staff member at the godown excepting the Chowkidar. Ansar Ahmed Inspector A.C.E. P.W. 10 had received letter from S.P. Thatta through S.P. A.C.E. Hyderabad, with the directions to register the case against accused. Exh. 27 was the report of S.P. Thatta to S.P. A.C.E. Hyderabad. He then registered the case on behalf of the State, he has produced F.I.R. as Exh.

36. He has also produced the letter of S.P. A.C.E. Hyderabad as Exh.

37. On 22-1-1983 D.H.O. Thatta sent record of that Maternity Home under his letter dated 20-1-1983, he secured the record and letter under mashirnama which he has produced as Exh. 38, while the letter has been produced as Exh. 39, through that letter three registers were received, articles A, B and C in Court were the same. He had also received monthly reports Exhs. 17/1 to Exh. 17/11 which were the same. He had also received three files one of Mst. Saeeda Fazal, other relating to World Food Community issued to Centre Daro, and 3rd relating to World Food Community issued to the same Centre. One chart of information about World Food Community was received which he has produced as Exh.

40. He was then transferred and as such handed over papers and documents of the case to Sub-Inspector Shakir Hussain. In cross-examination he had deposed that he did not examine any witness after receiving the record from D.H.O. nor he conducted physical checking of the stock which was available at the Maternity Home. He did not record the statement of any employee of the Maternity Home. The appellant had filed a Written Statement alongwith her statement which has been produced on record as Exh. 45-A, in which she has made allegations against A.S.I. Rafique and Iqbal of P.P. Daro. According to her she had made a complaint against them in writing to D.H.O. Thatta on 26-10-1982. She has further stated that P.W. Mohammad Chowkidar was not performing duties properly, and therefore, she had made a complaint against him in writing. The D.H.O. had called for his explanation vide letter dated 20-10-1982, a copy of which was sent to her. P.W. Mohammad did not mend his ways and tried to induce her to sell ghee, milk, and wheat to some person but she refused. On 22-10-1982 she again sent a complaint against him in writing to the D.H.O. Thatta under registered cover. The D.H.O. Thatta vide his letter dated 16-11-1982 directed her to recommend the name of some suitable person to act as Chowkidar as nobody was willing to come at Daro. P.W. Mohammad became bold again as no action was taken against him, and again tried to tempt the accused to sell wheat and milk, but she refused and sent such complaint to D.H.O. Thatta by post on 2-12-1982. On 5-12-1982 when she got up from her sleep she called the Chowkidar but he did not respond to the call, and therefore, she came out of her residence in order to check whether he was on duty or was sleeping. She found the lock of the store room open, and Chowkidar Mohammad was not present. One key of lock of the Hospital, and store used to remain with Chowkidar Mohammad. She went inside the store room and found 4 bags of wheat and 8 bags of milk missing. She rushed to P. P. Daro for lodging F.I.R. but P.W. A.S.I. Rafique refused to register the same in 154, Cr.P.C. book and misbehaved with her.. Finding no other way she gave him application in writing which has been produced as Exh.

29. She tried to contact the D.H.O. on telephone but she was not able to get the telephone call, therefore, she made another application in writing to Medical Officer, Rural Health Centre, Daro, in which the entire position had been explained. She was innocent and had been roped in this case due to conspiracy hatched up against, her by police and P.W. Chowkidar Mohammad. In defence she has examined D.W. Allahdino Head Clerk from the Office of D.H.O. Thatta. He has deposed that he had brought the personal file of Chowkidar Mohammad which he produced as article 'G'. From the above file he has produced one application dated 16/17-10-1982 as Exh.

47. This application according to him was sent by accused Saeeda Fazal to D.H.O. Thatta in which she had made complaint against the said Chowkidar Mohammad. It bears the endorsement of D.H.O. Dr. Jhamandas in its margin. He was well-conversant with the handwriting and signatures of Dr. Jhamandas as he had served under him for sufficient time. The D.H.O. called for the explanation of the said Chowkidar and the letter has been produced by him as Exh.

48. There was another application from Miss Saeeda Fazal to D.H.O. making fresh complaint against the said Chowkidar which he has produced as Exh.

49. It bears the endorsement and initial of the D.H.O. He has produced personal file of the accused as article `H'. From the above personal file he has produced a letter from D.H.O. to Lady Health Visitor informing her that Chowkidar was being shifted to some other place. The letter has been produced as Exh.50 and it bears signature of D.H.O. Jhamandas. It is dated 16-11-1982. He has also produced another file concerning departmental inquiry against the accused as article

9. From this file he has produced applications, dated 2-12-1982 and 26-10-1982 addressed by the accused to S.H.O. in which complaint was made against Chowkidar Muhammad which are produced as Exhs. 51 and 52, they bear initial of D.H.O. Jhamandas As far as P.W. Ahmed Nawaz was concerned the learned trial Judge himself had observed in his judgment that his evidence was not trustworthy. As far as evidence of Chowkidar Muhammad was concerned, it appears to be un?natural and unreliable, inasmuch as on one hand he was not bound to obey an illegal order of accused Saeeda Fazal, and on the other hand after the articles were removed from the store he did not complain to any one and kept mum. There are applications produced by D.W. Allahdino showing that accused Saeeda Fazal had complained against him to the D.H.O. before the incident. Moreover, even if the evidence of Muhammad is taken on its face value, then in that situation Muhammad himself appears to be an accomplice. From the circumstances he himself appears to be a suspect having hand in the removal of the property, and therefore, no explicit reliance could be placed on his evidence. The position of P.W. Yusuf Suzuki Driver was not better than P.W. Muhammad. He also knew that the goods which they were removing were meant for distribution to the poor people free of cost, and therefore he could not be said to be an independent person or a person whose evidence could be relied upon without independent corroboration. He has admitted that he had made statement before the police while he was in detention of Daro police, similar was the case of P.W. Ahmed Nawaz. In the case of Muhammad Ayub v. The State PLD 1964 (W.P.) Peshawar page 288 it was observed that:- "The evidence of an eye-witness who is a 'suspect' is almost akin to that of an interested witness especially when the witness, as in the present case, does not admit complicity in the crime and there are mere suspicions that he may have committed the crime. The real question in such a case is the degree of credit to be attached to the testimony of such a witness, and that depends on all facts and circumstances of the particular case." In the present case the evidence of the above three witnesses appears to be of doubtful character and it is not corroborated by any other evidence to prove that the goods were removed at the instance of accused Saeeda Fazal. So far as the members of the police party were concerned, there is no dispute regarding their evidence, but they had secured the goods from the possession of P.W. Yousuf and Ahmed Nawaz. The investigation appears to be dishonest in as much there was no reason for not joining at least P.W. Ahmed Nawaz as co-accused for offence of abetment. As far as the evidence of D.H.O. Amanullah and his finding 1 in the shape of report Exh.14, were concerned, the same were based on the evidence of P.S. Muhammad and Dai Husna a relation of Muhammad. The statements recorded by D.H.O. and A.S.I. Rafique in inquiry have been found to be inadmissible. The accused has alleged enmity with A.S.1. Rafique, and there is a further circumstance which goes against A.S.I. that he did not record the F.I.R. which the accused wanted to lodge. The explanation of A.S.I. Rafique that accused Saeeda Fazal refused to lodge report appears to be absurd inasmuch as when she had given a written application to him, there was no reason why she would avoid to lodge report. So far the observations of the learned trial Judge regarding the documentary evidence produced by the appellant through D.W. Allahdino were concerned, I am afraid the same are unwarranted on number of grounds. Firstly no objection was raised by the F.D.S.P. when the same were produced. Secondly if the Court had any doubt about the correctness of endorsement and signatures/initials of D.H.O. Jhamandas, the Court could summon D.H.O. Jhamandas under section 540, Cr.P.C. and examine him on the point. The documents had been produced from proper custody. In view of the above reasons I do not agree with the learned trial Judge that the documents produced by the appellant through D.W. Allahdino were not proved in accordance with law. Adverting to the legal position as observed earlier, entrustment has not been disputed by the learned counsel appearing for the appellant, and therefore, the Court has to see whether the accused misappropriated the above goods or that she wilfully suffered some other person to do so, and whether the defence taken by the appellant was probable. In the case of Shakir Hussain v. The State PLD 1956 SC (Pak.) page 417 it was observed that:- 'To establish a charge of criminal breach of trust the prosecution must prove not only entrustment of or dominion over property but also that the accused either dishonestly misappropriated, converted, used or disposed of that property himself or that he wilfully suffered some other person to do so." In the case of Mir Ahmad v. State PLD 1962 S C 489 it was observed by their Lordships of the Supreme Court: "Where there is a question of the correct treatment of a plea in defence which is of factual nature and is supported by evidence and circumstances the decision must not be taken in relation to the accused's special pleading, but must rest on examination of the entire evidence and if thereafter the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, this opinion reacts upon the whole case, and the accused is entitled to the benefit of such doubt, on the ground that the prosecution has not proved its case beyond reasonable doubt." In view of the above discussion and the legal position I am of the considered view that on one hand the evidence produced by prosecution was of doubtful character and did not inspire confidence, it was not corroborated from any other independent source, and on the other hand the plea taken by the E appellant was probable, and therefore, extending benefit of doubt to the appellant, I allow this appeal, set aside the conviction and sentence of the appellant, and she is acquitted of the charge. She is on bail and her bail bonds stand discharged. I had decided the above appeal by a short order on 20-4-1988, and these are the reasons for the same. SA./M-775/K Appeal accepted.