1999 PLP 385 (YLR)

22/87. Rs.4,000 18.21/90 23/87 Rs.9,660 19.22/90 24/87 Rs.17,500 20.23/90 25/87 Rs.1,800 After usual investigation charge sheet was filed before the learned Special Judge Anti‑Corruption, Sukkur, where prosecution in support of its case examined Khair Muhammad, Deputy Accountant of the Municipal Committee as P.W.1 who produced the relevant vouchers in respect of advances made to the appellant, Sadruddin Office Superintendent as P.W.2, Ghulam Sarwar Sangi Inspector as P.W.3 who produced the complaint of Muhammad Bux, F.I.R. of the case and letter, dated 21‑2‑1987 addressed to him by the Chairman, Municipal Committee and Inspector Noor Muhammad P.W.4 who had conducted further investigation of the case and had also submitted charge‑sheet in the Court. This witness also produced sanction for prosecution before the Court. The appellant in his statement recorded under section 342, Cr.P.C., admitted that he was working as store‑keeper and incharge of the Stores Municipal Committee and also admitted receipt of the advance amounts. However, he stated that the amount so paid was duly sanctioned by the competent Authority and that he had submitted accounts for the same and no amount was outstanding against him. Learned Trial Court at the conclusion of the trial found appellant guilty of offence under section 409, P.P.C., read with section 5(2) of Prevention of Corruption Act, 1947 and convicted and sentenced the appellant in the above appeals as under: Appeal No. Sentence awarded 1.4/90 Till rising of Court and fine of Rs.50, in default R.I. for 7 days. 2.5/90 RI for 2 months, fine Rs.500, in default R.I. for one month 3.6/90 RI for 6 months, fine Rs.3,000 in default R.I. for 2 months 4.7/90 RI for 3 months, fine Rs.2,000, in default R. I. for one month 5.8/90 RI for 3 months, fine Rs.2,000, in default R.I. for one month 6.9/90 RI for 2 months, fine Rs.500, in default R.I. for one month 7. 10/90 Till rising of Court, fine Rs.50, in default R.I. for 7 days 8. 11/90 R.I. for two months, fine Rs.500, in default R.I. for one month 9. 12/90 R.I. for 3 months, fine of Rs.2,000, in default R.I. for 2 months. 10. 13/90 R.I. for 2 months, fine of Rs.500, in default R.I. for one month. 11. 14/90 Till rising of the Court, fine Rs.50, in default R.I. for 7 days. 12. 15/90 Till rising of Court, fine Rs.50 in default R.I. for 7 days. 13. 16/90 R. I. for 3 months, fine Rs.2,000, in default R.I. for 2 months. 14. 17/90 R.I. for 2 months, fine Rs.500, in default R.I. for one month. 15. 18/90 R.I. for 12 months, fine Rs.6,000, in default R.I. for 3 month. 16. 19/90 R.I. for 2 months, fine Rs.500, in default R.I. for one month. 17.20/90 R. I. for 2 months, fine Rs.500, in default R.I. for one month. 18.21 /90 R.I. for 3 months, fine Rs.3,000, in default R.I. for 2 months. 19.22/90 R.I. for 6 months, fine Rs.3,000, in default R.I. for 2 months. 20.23/90 R. I. for 2 months, fine Rs.500, in default R.I. for one month. Being aggrieved and dissatisfied the appellant preferred appeals which were admitted by this Court on 29‑3‑1990. I have heard Mr. Imdad Ali Awan learned counsel for the appellant who contended that learned Trial Court has based the impugned judgments only on the perusal of examination‑in‑chief of the P.Ws. examined at the trial and has totally ignored the cross‑examination of P.Ws. Khair Muhammad and Sadruddin wherein they have clearly stated that appellant has accounted for the advance amounts received by him. Elaborating his point further he urged that P.W. Sadruddin in his cross‑examination has deposed that Anti‑Corruption officials used to take stationery from the appellant and that on this refusal the Anti‑Corruption Establishment became annoyed and he was involved in this case. Learned counsel next contended that the Trial Court did not record the evidence of witnesses separately in each cast: but the carbon copies of the deposition of :lie witnesses have been placed in each case which is reproduction of evidence in verbatim. Moreover, single judgment was prepared and the space for sentence of imprisonment and the amount of fine were left and later on filed in which has totally vitiated the trial. The evidence of witnesses was not recorded properly but evidence of one case was typed out from carbon copy and the same was brought on file of the other case which has also rendered the trial illegal. According to the learned counsel the defects pointed out above are not curable under section 537, Cr.P.C. In support of his contentions he has referred to the case Ghulam Hussain and others v. The State (1996 PCr.LJ 514). Mr. Sher Muhammad Sher learned A.A.‑G. after going through the evidence recorded by the Trial Court and the impugned judgments very fairly and candidly admitted that perusal of the cross‑examination of P. Ws. Khair Muhammad and Sadruddin clearly suggest that appellant has not committed any crime and he has been involved in this case due to the political enmity with the then chairman and the annoyance of the Anti‑Corruption Establishment Officers which is fully borne out from the record and the statements given by P.Ws. Sadruddin and Khair Muhammad. Learned A.A.‑G. further admits that single judgment was typed and the space in the relevant paragraphs were left wherein the crime numbers, amount of defalcation, the sentence of imprisonment and the amount of fine were mentioned. This shows that the learned Trial Court did not apply its judicial mind to appreciate and examine the evidence in correct perspective but dealt with it in a slip‑shod manner. For all these reasons the learned A.A.‑G. raises no objection to the grant of the appeals. In order to appreciate the contentions raised by learned counsel for appellant and to arrive at a correct finding, it is essential to scrutinise the evidence of P.Ws. Khair Muhammad and Sadruddin. In cross -examination P.W. Khair Muhammad has stated as follows:‑ "It is correct that present accused used to submit vouchers for all the advances made to him showing expenditure from such advances and on the basis of such adjustment next advance amount for further expenditure was made to him. The amount required for expenditure on account of visits of the V.I.P. used to be paid to the present accused as Storekeeper. The amount was being spent on the directions of the Chairman. It is correct that our Municipal premises was set on fire by unruly mob during agitation of M.R.D. in the year 1983 and some of the vouchers submitted by the accused had been destroyed by fire. It is correct that the other vouchers submitted by the accused and which were available on record were not considered or sanctioned by the incoming Chairman due to political reasons. I do not know if any such complaint was made to ADLG against the accused and that it was forwarded to the Chairman who made endorsement that entire out-standings were adjusted against the advances made to accused. It is correct that particulars of the amount shown by way of misappropriation already stands adjusted. I do not know if Anti‑Corruption staff used to take stationary and other articles frequently from accused and that on his refusal to make further supply of such articles, he has been implicated by them. " It would also be relevant to quote cross‑examination of other witness, namely, Sadruddin which is to the following effect: "It is correct that the accused as a Storekeeper was being paid amount in advance for making expenditure on behalf of the Municipal Committee. It is correct that he had been submitting accounts with vouchers in respect of the advances made to him before giving him further advance. It is correct that Anti‑Corruption‑ Police Staff used to come and take stationary articles and other items of their use from the accused frequently. It is also correct that the accused had refused to make further supply to meet their repeated demands and for this reason the staff of Anti‑Corruption Police became annoyed with the accused. It is correct that during M. R. D. movement of 1983, the office premises of the Municipal Committee was set on fire and record was also burnt including some of the vouchers submitted by the accused. It is correct that the new Chairman avoided to sanction that amount or pass the vouchers submitted by the present accused as he belonged to rival political group. " If the evidence of the above witnesses is considered in juxta position, it would be crystal clear that prosecution has totally failed to bring home guilt to the appellant beyond reasonable doubt. The cross‑examination reproduced in extenso hereinabove cannot be equated with obliging statements on the part of these witnesses. The benefit arising on that account cannot be withheld from the appellant. As for the recording of stereo‑typed depositions of witnesses, the authority (1996 PCr. LJ 514) cited by learned counsel for appellant, fully supports the contention raised in these appeals. Apart from the above authority, I would also refer to the decision of the Hon'ble Supreme Court in the case Nur Elahi v. The State and others (PLD 1966 SC 708) wherein it has been held that every criminal proceeding is to be decided on the material available on record of that particular proceeding and that the record of another case nor any finding recorded therein should affect the decision of the Trial Court. In another case Khawaja Muhammad Anwar v. The State (1983 PCr.LJ 2070) a celebrated Judge of this Court held that Trial Court recorded evidence and then a verbatim copy of the statement recorded was placed on the record of two other cases and that all the three cases were disposed of by one consolidated judgment. As such the appeals were allowed. In another reported case of this Court Hasan Gul v. The State (1975 PCr.LJ 437) another learned Single Judge of this Court held that the procedure adopted by the Trial Court by recording statements in one case and treating the same as evidence in the other case amounts to patent illegality and, therefore, appeal was allowed on this ground alone. In the present case also as discussed hereinabove the carbon copies of the depositions have been placed in the cases. Moreover single judgment was typed and simply its copy was kept in other cases after filling the quantum of punishment and the fine imposed. The appellant has faced the agony of trial since 1989 and the appeals since 1990. The case‑law referred to hereinabove is relevant and applicable to the facts of the present case which I respectfully follow learned A.A.‑G. has rightly raised no objection to the grant of the appeals. For the facts and circumstances and case‑law discussed above I am of the considered opinion that all these appeals should be allowed which are hereby allowed. The sentences awarded to the appellant by the Trial Court are hereby set aside and he is acquitted. The appellant is on bail and his bail bonds stand discharged. Q.M.H./M.A.K./N‑99/K Appeals allowed.