1986 PLP 2728 (MLD)

P.W.2 Abdul Shakoor was incharge of godown and he has deposed that Abdul Jabbar came with Saleem and lifted WSDM on the basis of letter of authority Exh.6. P.W.3 Muhammad Aslam was Veterinary Officer. He has deposed that on 28‑12‑1978 he was incharge of Livestock Experiment as Mr. Zaidi was on leave. Accused Abdul Jabbar brought a letter addressed to Messrs Swabi Goods Transport Company. The letter was in connection with the acceptance ct the quotations for lifting the goods from UNICEF and he had signed the letter and put the date as 28‑12‑1978 at the instance of accused Abdul Jabbar. P.W.4 Qadir Bux was the peon and he has deposed that accused Jabbar and Saleem in January, 1979 brought a truck loaded containing 298 bags. He issued the receipt Exh.13 but the date was put on the receipt as 28‑12‑1978 at the instance of Abdul Jabbar. P.W.5 Nazir Ahmad Butt has deposed that Zaidi demanded a quotation for lifting 600 bags from Gul Bai godown situated at Mauripur and to be taken to Korangi. He has stated that he had not lifted the goods but he had issued a receipt of 500 bags and the date was mentioned as 28‑12‑1978. He antidated the receipt at the instance of accused Abdul Jabbar and Saleem. According to him he found two trucks loaded with the goods. P.W.6 Jan Muhammad supplied 500 bags to Abdul Jabbar who was an employee of UNICEF. P. W.7 Abdul Karim is broker who arranged the deal between Saleem and Anwar. P. W.8 Abdul Salam is Assistant in the office of Livestock Experiment Station Korangi. He has deposed that letter Exh.11 accepting the tender of Swabi Goods was despatched on 28‑12‑1978. He produced entry with regard to the letter in the despatch register. The above letter was addressed to Swabi Goods and the date of despatch was shown in the register as 28‑12‑1978. The above letter was given to him by Abdul Jabbar who told him to show the date of despatch as 28‑12‑1978. P.W.9 Muhammad Anwar had purchased 500 bags from Saleem through A. Karim and transported through Qalandar Bux, in two trucks. P.W.10 Mazhar Ahmad is a formal witness and P.W.11 Ghulam Mustafa is the Investigating Officer. The trial Court accepted the prosecution version and convicted and sentenced the appellants as stated above.

4. The case against appellant Zaidi is based on the statement of P.W. Saleem who has stated that he had made payment of Rs.5,000 to him. P.W.5 Nazir has only stated that the accused had asked him to give the quotation for lifting the goods. According to him the appellant was on leave on that day and it is also clear from the statement of P.W.2 Muhammad Aslam and the relevant record. The case of Muhammad Saleem in the beginning was that he had purchased the WSDM but at the trial he turned somersault and stated that the transaction was between him and appellant Zaidi for the purchase of milk powder. This stand was tak3n in view of the fact that WSDM could not be sold by the accused persons as it was supplied by the UNICEF free of cost and, therefore, it was not a purchasable commodity. In his cross -examination he has admitted that he met accused Zaidi for the first time on 26‑12‑1976 which belies his statement that he knew the accused from the year 1975. Additionally if there was a fair deal then there must have been some quotations or tender because every transaction with the Government has to be done through certain procedure but there is no documentary evidence on the record that the appellant had agreed to sell milk powder to P.W. Saleem. Thus, there is only oral statement of P.W. Saleem that he had made payment of Rs.5,000 to appellant Zaidi. If it was illegal gratification then this witness has himself committed a crime as he had offered bribe to a Government official. Though the statement of an accomplice can be considered in evidence and conviction can be recorded on the sole testimony of an accomplice but it is a rule of prudence as required under section 114(b) of the Evidence Act, that the statement of an accomplice must be corroborated by some independent evidence. It appears that P.Ws. Anwar and Saleem and the appellants formed a gang and there is also force in the observation of the learned trial Judge that if the amount of 298 bags had been returned to Muhammad Saleem then he would not have lodged the complaint but in spite of these facts the accused cannot be acquitted on presumptions. It is cardinal principle of criminal jurisprudence that there should not be missing links in the chain of. facts. In the instant case the solitary statement of P.W. Saleem about the payment of illegal gratification is not supported by any evidence. Amount had not been secured and the accused have denied the payment of Rs.12,

500. It is stated that Rs.5,000 have been paid in presence of Shahabuddin and Rs.7,500 had been paid at the instance of the appellant Abdul Jabbar in presence of Abdul Sattar and Ikram but these witnesses have not been examined by the Investigating Officer, therefore, there is nothing on the record to substantiate the prosecution allegation that illegal gratification has been accepted by the two appellants. P.W. Saleem is also a previous convict. Though the statement of such a witness cannot be ruled out of consideration if it inspires confidence but the fact that he was dealing in illegal transaction makes his statement doubtful that he had given Rs.5,000 to Zaidi and Rs.7,500 to accused Jabbar, in absence of non‑examination of the witnesses in whose presence illegal gratification had allegedly been made. P.W. Saleem has stated that he had not gone through the contents of the F.I.R. In fact every word of the prosecution story is contradicted by itself. As such the case against appellant Zaidi has not been established beyond all reasonable doubt.

5. As regards accused Abdul Jabbar it is an admitted fact that he has taken the delivery of 500 bags but his plea is that he had entrusted the goods to Messrs Swabi Goods and Mr. Butt P. W.5 was admitted that he had passed a ,receipt of 500 bags and it is, dated 28‑12‑1978. He has antidated this receipt at the instance of Abdul Jabbar in spite of the fact that he had not transported the goods. He has admitted that when he went to the godown he found that two trucks had already been loaded. If he had not loaded the goods then why he had issued the receipt. Learned trial Judge has not taken into consideration the defence of appellant Jabbar in juxtaposition with the prosecution evidence. There is on record the report of Abdul Jabbar, dated 30‑12‑1979 wherein he has stated that he had taken delivery of 500 bags of WSDM from UNICEF stores on 28‑12‑1979. The delivery was handed over to Messrs Swabi Goods through Mr. Saleem, Commission Agent but only 298 bags were received by Qadir Bux Storekeeper on 28‑12‑1978 and 202 bags had not been transported so far.. Then another report was given by the appellant which states that he contacted Mr. Butt and he informed him that the goods will be supplied within few days. Then there is another note, dated 13‑1‑1979 which shows that appellant Jabbar contacted Messrs Swabi Goods Company and they were informed that if the goods were not returned immediately report will be lodged with the police. On 8‑1‑1979 they paid Rs.7,500 as security with a promise to return the goods within two or three days. It is, therefore, contended on behalf of the appellants that as the report was being lodged by the accused persons, therefore, as a counterblast the report has been lodged by Saleem. Rs.7,500 are still lying with the Department. Thus, apart from the fact that Nazir Butt had issued receipt in spite of the fact that he had not received the goods, the plea of the appellant requires consideration. P.W. Qadir Bux had also issued the receipt on 28‑12‑1978 showing that he had received a truck load of 298 bags. P.W.3 Aslam who was officer of appellant Jabbar has also admitted that he has issued the letter on 28‑12‑1978 and the date was mentioned at the instance of Abdul Jabbar but none of these witnesses have given any reason as to why they have obliged Abdul Jabbar. They were not relations of Abdul Jabbar. P.W.3 was officer of Abdul Jabbar and P.W.4 was also not his subordinate. Qalandar Bux and truck driver have not been examined by the police. P.W. Muhammad Anwar had purchased the milk powder without observing the normal procedure for the purchase of such goods from the Government agency. The allegation is about the fodder and not about the milk and, therefore, the P.Ws. have deposed against facts alleged against the appellant. In any case the defence of the appellant has not been considered by the trial Court. The appellant Abdul Jabbar is, therefore, also entitled to the benefit of doubt.

6. In the result the appeal is accepted and the conviction and sentences recorded against the appellants are set aside. The appeals were disposed of by the short order, dated 14‑9‑1986 and the above are reasons for the same. S. G. D. Appeals allowed.