1984 P Cr (PLP)

(i) Sultan Khan was convicted under section 409, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947, and sentenced to 4 years' R.I. and a fine of Rs.4,500 or in default of payment of fine to undergo 6 months' R.I. (ii) Abdul Naeem was convicted under section 409, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947, and sentenced to two years' R.I. had a fine of Rs.4,500 in default of payment of fine to undergo three months' R.I. and (iii) Muhammad Amir was convicted under section 409 read with section 109, P.P.C and sentenced to four years' RA and a fine of Rs.31,000, in default of payment of fine to undergo one year R.I. They have challenged their convictions and sentences by filing separate appeals. Since these appeals arise out of single order passed by the learned Special Judge, Anti-Corruption, Multan, therefore, I propose to dispose them of by this single judgment.

2. The prosecution case is that a retired Thanedar, namely Muhammad Ali informed Shujabad Police on 30th April, 1974 through written complaint Exh.P.3 that the Inspector and Supervisor of the Food grain Department, Shujabad (names not mentioned) in collusion with Muhammad Amir, appellant, have misappropriated great quantity of wheat and sugar from Shujabad Godown and that the shortage would be detected if the stocks were checked. On the basis of this complaint, a formal F.I.R. Exh. P.W.17/A was registered at Police Station, Shujabad. During the investi gation records of Foodgrain Department of Shujabad Godown, i.e. Stock Report Registers P.1 to P.4 were seized under memo. Exh. P.A.

3. Malik Haq Nawaz (P.W.10), District Food Controller, Multan, checked the stocks in the light of the records and. detected a shortage of 1109 Maunds 6 Seers and 7 Chhatanks of wheat valuing Rs.31,057 in Shujabad godown of which both Sultan Khan and Abdul Naeem, appellants, were the incharge during the days of occurrence. However, no shortage in the stock of sugar was found.

4. After completing the investigation the case was sent up for trial to the Court. On 7th May, 1974 Muhammad Amir, appellant, while in police custody led to the recovery of 51 bags of wheat from Qamar Flour Mills, Multan, which were secured under memo. Exh. P.W.13/A, attested by Muhammad Shafi (P.W.14), Rab Nawaz (P.W.15) and A.S.1, Noor Hussain (P.W.14).

5. At the trial the appellants pleaded not guilty and the prosecution in support of its case examined 19 witnesses in all. Of them four witnesses namely, Ashiq All (P.W.3), Imam Din (P.W.4), Hafiz A. Wahid (P.W.5) and Faiz Bux (P.W.11) did not support the prosecution and were declared hostile.

6. Mubarak Ali (P.W.8) stated that he worked as Chowkidar in Food grain Department at Shujabad, till 1st January, 1975. In his presence Muhammad Amir, appellant, reprimanded Sultan Khan and Abdul Naeem, appellants, that since he represented the local political party (Peoples Party) therefore, they should do their departmental work in his presence and with his co-operation. About one and a half years ago (which comes to April 74), once at evening time, Muhammad Amir, appellant, came in the company of Sultan Khan, appellant, in the godown where he was on duty. In his presence Sultan Khan, appellant desealed and opened the godown, and both of them took away 332 bags of wheat in three trips from there in Truck No.7473-MN driven by Faiz Bux P.W 11 , The next day, Abdul Naeem, appellant, requested Muhammad Amir, appellant, to deposit the cost of the wheat who promised to do so but did not fulfil his promise. In cross-examination, he admitted that the police station being 50 to 60 yards away from the godown, he did not report the matter there for about 8/9 months. He also admitted that Muhammad Amir, appellant, had given an application against Sultan Khan, appellant, and some other officials and demanded inquiry into their conduct. He further admitted that he was a relative of Ch. Ali Bahadar, former M.P.A. but denied that Muhammad Amir, appellant, belonged to that group of People's Party which was opposed to Ch. Ali Bahadar. He also admitted that the early stages of the investigation he was also made an accused in the case. He repelled the suggestion that in order to save himself he accepted to become a witness in this case.

7. Faiz Bakhsh (P.W.11 ), driver of truck No. MN-7473 did not support the story of transporting 332 bags of wheat in his truck from Shujabad godown in the presence of Sultan Ahmad and Amir appellants and was therefore declared hostile.

8. Muhammad Shafi (P.W.14) and Rab Nawaz (P.W.15) are the witnesses of recovery of 51 bags of wheat at the pointation of Amir appellant from Qamar Flour Mills owned by Imam-ud-Din, on 7th May,1974 vide Memo. P.W.13/A. Both these witnesses deposed differently than the prosecution story and their evidence is also at variance with each other. According to Muhammad Shaft wheat weighing 80 maunds was recovered from Qamar Flour Mills and that too on 11th July, 1974. Rab Nawaz P.W. stated that 60 to 70 bags were recovered at the instance of Amir appellant. He also stated that Muhammad Amir, appellant, did not make any statement that would get wheat recovered. Besides the discrepant statements of the recovery witnesses, the owner of the premises (Qamar Flour Mills) namely Imam-ud-Din P.W.4 also did not support the recovery and was declared hostile.

9. The most important witness in the case is Malik Haq Nawaz, District Food Controller, Multan, (P.W.10). He stated that in 1974 he was posted as District Food Controller, Multan. Sultan Khan, Inspector Food and Abdul Naeem, Supervisor Food, had served under him. They were incharge of the Shujabad Food grain Godown in 1974. The police raided the godown and seized its records and called him to check its stocks. He found a shortage of 1,109 maunds 7 seers in the wheat stock worth Rs.31,

000. He also stated that the relative of both the official appellants had deposited a sum of Rs.22,000 to make up the loss of the Government In cross- examination he admitted that on 17th August 1973 he visited Shujabad and found that due to flood waters a truck load of' wheat had been damaged which was despatched to Multan, and about 525 maunds of the damaged wheat of the said godown was also auctioned for the same was unfit for human consumption and was ultimately "written off".

10. It would be seen from the above narration that the only evidence connecting Muhammad Amir, appellant, is that of Mubarak Ali Chowkidar (P.W.8) who stated that in his view 332 bags of wheat were taken away by Sultan Khan Food Inspector, and Muhammad Amir, appellants, from the godown in truck No. MN-7473 driven by Faiz Bakhsh (P.W.1). He did not report the matter to the police till he was examined in this case after about nine months of the occurrence although the police station, admitted by him, was at a distance of only 50 to 60 yards from the godown where he used to be on duty. He admitted to be close relative of Ch. Ali Bahadar, a political opponent of Muhammad Amir, appellant. He was also joined as suspect in the case. May be, therefore, he had offered to become a witness for his having been let off by the police. Also Fair Bakhsh driver (P.W.11) has not corroborated him. In these circumstances I find that conduct of this witness by not reporting the crime committed within his view, has rendered him an accomplice. He is relative of Ch. Bahadar Ali a political-opponent of Amir appellant therefore, I do not consider it safe to act upon his evidence arid therefore rule it out of consideration.

11. The other piece of evidence connecting Muhammad Amir, appellant, with the crime is the recovery of 51 bags of wheat from Qamar Flour Mills at his pointation vide Memo. Exh.P.W.13/A which too is shaky for both the recovery witneses, as discussed above, have deposed materially different to the prosecution story and also made inconsistent statements. Thus, there is no satisfactory evidence available on record connecting Muhammad Amir, appellarit, with the crime. His complicity with the other appellants has not been established. Therefore, I have no option but to allow his appeal: set aside his conviction and sentence both and acquit) him. He is on bail. He is discharged from his bail bonds.

12. As for the remaining appellants, namely, Sultan Khan, Food Inspector and Abdul Naeem, Food Supervisor, they were admittedly- incharge of Food grain Godown, Shujabad, at the time of occurrence and Malik Haq Nawaz, District Food Controller (P.W.10) has clearly stated that after the police had raided the godown he was called to check the stocks and he found a shortage of about 1,109 maunds of wheat worth about Rs.31,00C. In cross-examination, he was suggested that the misappropriated wheat was worth Rs.22,000 however, according to his police statement Exh. D.B. the estimated value of misappropriated wheat was given as Rs.22,

000. It may be mentioned that weight of the defalcated wheat was not contested by the appellants and no question in this regard was even put to him. An attempt was made to show that some wheat in Shujabad dogown was damaged due to the floods in 1973 but no suggestion to the effect that the shortage found included the damaged wheat was put. The evidence of this witness remained unchallenged as to the shortage found in the godown. No grievance or departmental party faction was suggested to him. I am, therefore, of the view that both Sultan Khan and Abdul a Naeem, appellants having totally failed to account for the shortage are held responsible for the shortfall in the stock of Shujabad godown of which they held the charge. The plea of alibi raised by Abdul Naeem, appellant hardly is of any help to him. I am, therefore, of the view that both the appellants had committed an offence under section 409, P.P.C read with section 5(2) of Prevention of Corruption Act, 1947, and were rightly convicted thereunder, and I have no hesitation in maintaining their conviction.

13. Next comes the question of sentence. Learned counsel for the appellants has made a fervent appeal for the reduction of sentence. He submitted that the appellants had put in years long service in the Food Department and due to their conviction they have since been thrown out of service and have lost the connected benefits too. He next submitted that about seven years have passed since their conviction and an amount of Rs.22,000, price of the misappropriated wheat, also was deposited in the Government Treasury immediately after the registration of the case. The circumstances mentioned by the learned counsel certainly call for indulgence in the matter of award of sentence. As the appellants have been thrown out of service and might have by now been able to rehabilitate themselves for winning bread for their families, therefore, to commit them again to jail in my view, might uproot them economically once again. The loss caused to the Government has already been met with. In these circumstances, I am favourably disposed to reduce their sentences of imprisonment to the period already undergone and the sentence of fine to Rs.2,000 (Rupees two thousand only) each, payable within two months or in default, to undergo four months' R.I. each.

14. Result is, that Amir appellant's appeal is accepted in toto and heir is acquitted. As for Sultan and Naeem appellants, their appeals are partly) accepted to the extent of reducing their sentences only. M.Y.H. Order accordingly.