1992 PLP 1428 (MLD)

Seven years' R.1. plus fine of Rs.1,32,780 or in default three years R.I. Abdul Latif Shah: Four years'. R.I. plus fine of Rs.75,580 or in default two years R.I. They have appealed separately against their conviction and sentence. As both the appeals i.e. Criminal Appeal No.72 of 1990 and No.102/90, filed by Munir Akbar and Abdul Latif Shah, respectively, arise out of the same judgment, therefore, I propose to dispose them of by a single judgment.

2. The prosecution case, briefly stated, is that Munir Akbar and Abdul Latif Shah appellants were employed in the Forest Department, District Attock. Munir Akbar was the Forest Guard of Qutbal Beat in Kalachitta Forest, whereas Abdul Latif Shah was the Forest Guard of Hattar Beat. In August, 1984, a news item appeared in the National Press that substantial damage had been done to the aforesaid two beats and innumerable Phulai and Kohi trees have been illegally cut and removed from the said beats. Consequently; Nazar Muhammad Range Officer (P.W.6), appointed Muhammad Daud (P.W.2) Forest guard to enquire into the allegations against Munir Akbar. Muhammad Daud prepared the damage list (Exh.PG) of Qutbal Beat. Similarly, Akbar Zaman (P.W.3) Forest Guard prepared the damage list Exh.PH of Hattar Beat with respect to the area of Abdul Latif Shah. The Range Officer after spot inspection found the aforesaid two lists as correct. Similarly, Syed Abid Ali Shah (P.W.1) Divisional Forest Officer, asked Mazhar Iqbal Khalid, Range Officer, Jand (not produced) to enquire against the appellants departmentally. He submitted a detailed report Exh.PB holding the appellants guilty. The Divisional Forest Officer concurred this report and vide letter Exh.PD, dated 21‑11‑1984, addressed to the S.P. Attock, a case under section 409, P.P.C. vide F.I.R. Exh.PD/1 was registered against the appellants at Police Station Fateh Jang. The case was investigated by Muhammad Khan S.I. (P.W.4) and Abdul Rashid S.I. (P.W.5) Haji Gulzar S.H.O. Fateh Jang (not produced), found Abdul Latif Shah innocent and placed his name in column No.2 of the challan.

3. The appellants denied the prosecution allegations and professed innocence. They produced Fazal Nawaz, Forestor Attock as D.W.1 and Wahid Azim S.D.O. Forest as D.W.2. Munir Akbar and Abdul Latif Shah appeared as D.W. 3 and D.W.4, respectively, as their own witnesses. Muhammad Saleem Conservator Forest appeared as C.W.1. .

4. The prosecution in support of its case produced six witnesses. Syed Abid Ali Shah, D.F.O. appeared as P.W.1 and deposed that after reading the news item appearing in the National Press that there was large scale bungling and misappropriation in the aforesaid two beats i.e. Qutbal and Hatter, which were under the supervision of the appellants, he deputed Mazar Iqbal Khalid, Range Officer, Jand, to hold enquiry against the appellants, who submitted his report Exh.PB, wherein he assessed the damage caused to the forest and also held the appellants guilty. It may be observed, that this witness was not. produced in the Court to substantiate his finding on the basis of which the F.I.R. was lodged resulting into the conviction of the appellants. Muhammad Daud (P.W.2) Forest Guard deposed that after physical check up of Qutbal Beat he found that 2160 trees worth Rs.1,32,780 were cut and removed during the period of Munir Akbar appellant. He submitted his report Exh.PG. Similarly, Akhtar Zaman (P.W.3) Forest Guard visited, Hatter Beat and prepared a list Exh.‑ H resulting into damage to 1107 trees valuing Rs.75,

580. He held Abdul Latif Shah appellant responsible for the said damage. Muhammad Khan S.I. P.W.4 and Abdul Rashid S.I. P.W.5 were formal witnesses, who recorded the statements of the witnesses and took into possession some relevant record including damage reports and lists etc. Nazar Muhammad (P.W.6) Range Officer deposed that Munir Akbar remained posted in his capacity of Forest Guard of Qutbal Beat from 24‑3‑1983 to 13‑2‑1984. During his tenure 2160 trees valuing Rs.1,32,780 were cut and removed and that amount was misappropriated by him. Similarly, Abdul Latif Shah remained posted as Forest Guard of Hattar Beat from 4‑11‑1981 to 20‑2‑1984 and during this period, he found 1107 trees missing valuing Rs.75,580, which were embezzled by him. This witness also verified the damage reports Exhs. PE and PH and found them absolutely correct and signed the same in token of their correctness. He also produced before the investigator, Register Exh.P.W.4/A, Guard Book Qutbal Beat Exh.P.W.4/B, Guard Book Qutbal Beat Exh.P.W.4/C and entries of reports of Qutbal Beat' Exh.P.W.4/E, apart from entries of reports of flatter Beat Exh.RW.4/F, which were taken into possession by the Investigating Officer vide memo. Exh.PJ. Placing reliance on the aforementioned prosecution evidence and rejecting the defence evidence, the learned Judge convicted the appellants and sentenced them as indicated above.

5. Learned counsel. for the appellants submitted that in this case the prosecution has failed to prove the entrustment of the trees to the appellants which allegedly were found missing, as there is no report of handing over and taking over of the charge by the appellants; hence, conviction under section 409, P.P.C. cannot be maintained and placed reliance on PLD 1981 SC

320. He further contended that it is a case of two versions; one version has been supported by the prosecution on the basis of enquiry report Exh.PB of Mazhar Iqbal Khalid, Range Officer, but he was not produced in the Court and the defence has been greatly prejudiced due to his non‑appearance and no conviction could be recorded on the evidence, which was not duly proved and admitted; and the other version favours the defence in the form of report Exh.D.W./2 of Waheed Azam, S.D.O. Forest, Jand, who found that the appellants were not negligent in the performance of their duties and also there was no proof that they cut/removed the trees or misappropriated the Government money, as alleged against them. He submitted that if there are two possible views deducible from the evidence, then the rule of administration of criminal justice is that the one which favours the defence must be accepted; hence the prosecution has failed to prove its case against the appellants.

6. Learned counsel for the State supported the judgment of the trial Court.

7. I have carefully gone through the entire record and have examined the respective submissions of the learned counsel for the parties, referred above.

8. In order to make out a case under section 409, P.P.C., it is essential for the prosecution to show that an accused being a public servant has dishonestly misappropriated or converted to his own use any property entrusted to him. Two things that are necessarily required to be proved are the entrustment of the property and dishonest misappropriation or conversion to one's own use or disposal of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied which he has made touching the discharge of such trust, or wilfully suffers any other person so to do. In the absence of any evidence on the record, how many trees were in the beats of the appellants when they were posted as Forest Guards there, the entrustment of the property is not proved. Neither the trees allegedly misappropriated nor money equivalent to their price, was recovered from the possession of the appellants, which could give any credence to the prosecution version. So, both these important ingredients of the offence under section 409, P.P.C. are missing in the present case. In order to prove a criminal offence, specific evidence has to be brought on record proving the ingredients of the offence very strictly. The examination of the record reveals, it is a case of two versions; one version has been put forth by the prosecution, where the other version has been advanced by the defence. The salutary principle for the just decision of the case of two versions is that both the versions are to be put in a juxta‑position, thereafter, the Court has to see which version is more probable, reasonable and nearer to the truth, of course keeping in view, this golden principle of criminal jurisprudence that burden of proof always remains on the prosecution. Applying the aforementioned principle of law to the facts of this case, I find that the prosecution has failed to prove the most important ingredients of the offence. The prosecution version rests on the inquiry report Exh.PB of Mazhar Iqbal Khalid, Range Officer, and, who has not been examined in the Court. The presumption will, therefore, be that this evidence, if forthcoming, would have been favourable to the appellants. The defence version gets support from the inquiry report Exh.D.W.2/B of Waheed Azam, Range Officer, D.W.2, who was deputed as Enguiry Officer by the Divisional Forest Officer vide his order, dated 18‑1‑1987, Exh.DD, wherein the appellants were found not responsible for the cutting/removal of the trees subject‑matter of this case. Abdul Latif Shah appellant was also found innocent during the police investigation.

9. As discussed above, there is no direct or circumstantial evidence on the record, that missing trees were in the exclusive possession or entrustment of the appellants, except that they alongwith other employees of the Forest Department were discharging their duties in the forest. As Forest Guards the duty of the appellants was to inform their superior officers about the damage done to the forest trees in their beats and to mention this fact in the damage books. Even Syed Abid Ali Shah (P.W.1) on whose evidence, the trial Court placed implied reliance while recording conviction against the appellants, observed in the Office Order, dated 18‑10‑1984, (Exh.PC) as under:‑ "I verified at my own as to whether both these accused did make some efforts to check occurrence of listed damage in the shape of realization of compensation or by reporting the matter to their superiors. * * * *". The departmental enquiry into the pilferage/cutting/removal of the. trees was initiated when the news with regard to large scale illegal cutting/removal of trees, maligning the superior officers of the Forest Department of that area appeared in the National Press. It seems probable and reasonable, that the superior officers in order to escape their liability or to cover up their inefficiency and lack of supervision, made the appellants as scape‑goats by involving them falsely in this case.

10. On view of the above discussion, the prosecution has miserably failed to prove its case against the appellants beyond reasonable doubt; hence these appeals are accepted, the conviction and sentence of the appellants are set aside and they are acquitted of the charge. The appellants are on bail and they are discharged from their bail bonds. N.H.Q./M‑333/L Appeals accepted.