2016 PLP 812 (MLD)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Noor Muhammad son of Fateh Muhammad, resident of Fateh Jang City, District Attock, alongwith Abdul Qayyum son of Khan Malik (since acquitted) was involved in case FIR No.24, dated 11.11.2009, offences under Sections 420, 467, 468, 471, P.P.C., read with Section 5(2) Prevention of Corruption Act, 1947, registered with Police Station, ACE, Attock, and was tried by learned Special Judge Anti Corruption, Rawalpindi. The learned trial court seized with the matter and in terms of judgment dated 19.07.2013, convicted the appellant under Section 409, P.P.C., and sentenced him to imprisonment for seven years' R.I. with fine of Rs.50,000/- and in default whereof to further undergo three months' S.I. He was further convicted under Section 5(2) Prevention of Corruption Act, 1947, and sentenced to imprisonment for seven years' R.I. with fine of Rs.50,000/-. In default whereof to further undergo three months' S.I. The sentences were ordered to run concurrently. Benefit of Section 382-B, Cr.P.C. was also extended in favour of the appellant.

2. The prosecution story as contained in the FIR (Exh.PW) lodged on the basis of source report/complaint (Exh.PW) of Syed Sabtain Kazmi, Assistant Director (Co-ord), ACE, Rawalpindi, is that there was a news in 'Daily Express' dated 19.06.2009 that Abdul Qayyum, Abdul Waheed (Clerks) and Noor Muhammad (Head Clerk), posted in Education Department, i.e. office of DDEO (female) Attock, had withdrawn an amount of Rs.5,84,507/- while putting forged/fake signatures. On the asking of the teachers, inquiry was conducted against the aforesaid clerks, who were now making payment to the teachers in installments. It is stated that Noor Muhammad, head clerk, Abdul Qayyum and Abdul Waheed, clerks, had committed criminal act, hence recommendations were made for action against them.

3. During the course of investigation, the Investigating Officer found the appellant guilty and submitted report under Section 173, Cr.P.C, to the court of competent jurisdiction. The learned Special Judge, Anti Corruption, Rawalpindi in terms of order dated 03.07.2010 framed charge against the appellant under Sections 420, 468, 471, P.P.C., read with Section 5(2) Prevention of Corruption Act, 1947, to which he pleaded not guilty and claimed trial. The prosecution was therefore provided opportunity to adduce evidence to substantiate the charge and as such as many as eight prosecution witnesses were produced. After the conclusion of prosecution evidence, statement of the appellant under Section 342, Cr.P.C. was recorded; wherein he neither opted to appear under Section 340(2) Cr.P.C., as witness of his own to disprove the allegations levelled against him nor opted to produce defence evidence. In response to the question why the case is against him and why the PWs deposed against him, the appellant made the following deposition:-- "I am absolutely innocent in this case. Muhammad Rafiq DDEO Fateh Jang was the real culprit but he was not proceeded being close associate of inquiry officer and Authority concerned as he was going to be retired from service. Muhammad Rafiq entreated me to take entire responsibility as he was about to retire. He also asked that he would provide me entire amount which I should pay to committee. He assured that no action would be taken against me by the committee as he had relations with members of committee. On his asking I made payment provided to me by him but ultimately I was made scapegoat and falsely involved in this case. Inquiry committee violating the procedure and rules removed me from service due to influence of Muhammad Rafiq. I am innocent". After completing all the codal formalities of trial and hearing the arguments from both sides, the learned trial court convicted the appellant/convict in the above stated terms. Being aggrieved of the judgment of the learned trial court, the appellant/convict has impugned the same by filing the instant criminal appeal.

4. Learned counsel for the appellant while opening his arguments contended that the impugned judgment has been passed by the learned trial court in a slipshod manner without adverting to the facts of the case, which even otherwise is in sheer violation to the evidence available on the record. It was submitted that no specific date and time of the alleged occurrence has been incorporated in the crime report, rather the same is mentioned as 'unknown'. It was next submitted that the FIR was not lodged at the instance of any aggrieved person; rather the same was registered on the basis of source report published in 'Daily Express'. Learned counsel contended that the prosecution has failed in establishing its case against the appellant to the extent of offence under Sections 420, 468, 471, P.P.C., however the learned trial court convicted the appellant under Section 409, P.P.C., read with Section 5 (2) Prevention of Corruption Act, 1947 despite the fact that charge was not framed for offence under Section 409, P.P.C. It was argued that the only allegation against the appellant was that he disbursed the amount to the teachers with an inordinate delay of fifteen months and utilized the same during the intervening period. Learned counsel submitted that the learned trial court has passed conviction against the appellant mainly on the ground that he had admitted his guilt in his statement under Section 342, Cr.P.C. which is against the norms of dispensation of criminal justice. It was contended that co-accused of the appellant namely Abdul Qayyum with the similar allegation had been acquitted by the learned trial court on the basis of same set of evidence. Learned counsel lastly argued that in the circumstance, as the prosecution has badly failed in establishing its case against the appellant by leading cogent, reliable and confidence inspiring evidence, therefore, the learned trial court was not justified in convicting the appellant, who is entitled to be acquitted of the charge.

5. Contrarily, learned Law Officer vehemently opposed the contentions advanced by learned counsel for the appellant. It was argued that the appellant is named in the crime report with specific allegation that he while posted as Head Clerk in Education Department withdrew an amount of Rs.5,84,507/- of the teachers and used the same for about fifteen months though he deposited/disbursed the same to the concerned teachers afterwards. It was submitted that the appellant was found guilty by the Investigating Officer and his name has been placed in column No.3 of the report under Section 173, Cr.P.C. It was contended that the learned trial court while taking note of each and every aspect of the case has rightly convicted the appellant and no exception can be made to the well-reasoned judgment of the learned trial court.

6. Arguments advanced pro and contra have been heard. I have gone through the record available on file with the able assistance of learned) counsel for the appellant as well as learned Law Officer.

7. There is no denial to this fact that the appellant is named in the crime report, but the fact remains that no specific date and time of the alleged occurrence has been mentioned in the crime report, rather the same has been incorporated as 'unknown'. It is worth mentioning here that the instant case was not lodged upon the statement of any aggrieved person, rather the same was registered on the basis of source report published in "Daily Express". The learned trial court framed charge against the appellant under Sections 420, 468, 471, P.P.C., read with Section 5(2) Prevention of Corruption Act, 1947, but the prosecution badly failed in proving its case against the appellant to the extent of offence under sections 420, 468, 471, P.P.C., resultantly the learned trial court acquitted the appellant from the said offences, however convicted the appellant for offence under Section 409, P.P.C., read with Section 5(2) Prevention of Corruption Act, 1947, though charge was not framed by the learned trial court for the offence under Section 409, P.P.C. The allegation against the appellant is that while performing his duties as Head Clerk in Education Department, he used an amount of Rs.5,84,507/- belonging to the teachers for fifteen months, but the said amount had already been returned/disbursed to the concerned teachers. The learned trial court has acquitted Abdul Qayyum, co-accused, on the basis of same set of evidence and the prosecution has opted not to assail his acquittal before this Court.

8. It is cordial principle of law that the prosecution has to stand on its own legs and weaknesses of the defence cannot be made basis for recording conviction in any manner. In the instant case after examining the prosecution case from all corners and evaluating it on the touchstone of interpretation of dictum of "safe administration of criminal justice" this Court has arrived at the conclusion that in this case the prosecution has miserably failed to establish its case against the appellant beyond reasonable doubt. The reasoning advanced by the learned trial court while recording guilt of the appellant are based upon inculpatory part of statement of the appellant recorded in terms of Section 342, Cr.P.C. It is established principle of law that either statement of the accused has to be accepted in toto or discarded in entirety unless there existed other independent/reliable evidence supplementing the prosecution case, which is straightway missing in the case in hand. In its salutary judgment in the case of Iftikhar Ahmed v. The State and others (2014 SCMR 7) the august Supreme Court of Pakistan had held as under:-- "

S. 342

Conviction based solely on statement of accused in court under S.342, Cr.P.C.

Scope

If the conviction of accused was to be based solely on its statement in court, then such statement should be taken into consideration in its entirety and not merely the inculpatory part of it to the exclusion of the exculpatory, unless there was other reliable evidence which supplemented the prosecution case

In such a condition, the exculpatory part if proved to be false might be excluded."

9. It is established principle of law that for extending the benefit of doubt in favour of the accused, so many circumstances are not required, rather one circumstance which creates reasonable doubt in the veracity of the prosecution version, can be taken into consideration for the purpose, not as a matter of grace, rather as a matter of right. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of "Tariq Pervez v. The State" (1995 SCMR 1345) "Riaz Masih alias Mithoo v. The State" (1995 SCMR 1730) and "Muhammad Akram v. The State (2009 SCMR 230). In the case of "Tariq Pervez v. The State" (1995 SCMR 1345), the august Supreme Court of Pakistan has held as under:-- "

Art.4

Benefit of doubt, grant of

For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts

If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right".

10. From the facts and circumstances narrated above, this Court is persuaded to hold that the prosecution has badly failed to substantiate its case against the appellant to the hilt and the learned trial court was not justified in convicting him while basing upon such untrustworthy/ uncorroborated evidence, which even otherwise is full of material contradictions and conviction passed by the learned trial court in the circumstances is against all canons of law recognized for the dispensation of criminal justice. As per dictates of law benefit of every doubt is to be extended in favour of the accused. Moreover, it is golden principle of law that the Court may err in letting off 100 guilty but should not convict one innocent person on the basis of suspicion. Resultantly while setting aside the conviction and sentence recorded by the learned trial court in terms of judgment dated 19.7.2013, Crl. Appeal No.315/2013 filed by the appellant is ACCEPTED IN TOTO and he is acquitted of the charge. The appellant is on bail. His surety is discharged. HBT/N-49/L Appeal accepted.