2018 PLP 187 (YLR)

ABDULLAH BALOCH, J.

This judgment disposes of Criminal Acquittal Appeal No.330/2011 filed by the State through Special Public Prosecutor Anti-Corruption Establishment Balochistan Quetta, against the judgment dated 28th June 2011 (hereinafter referred as, "the impugned judgment") passed by the learned Special Judge Anti-Corruption Balochistan Quetta, (hereinafter referred as, "the trial Court"), whereby the accused/respondent was acquitted of the charge under Sections 409, 420, 465, 468, 471, 109, P.P.C. R/W Section 5(2) Act-II of Prevention of Corruption Act, 1947.

2. Facts of the case are that on 4th June 2010 the complainant Malik Muhammad Ramzan, SI, lodged FIR No.2/Q/2010 under above mentioned offences, at PS ACE Quetta against the accused-respondent, stating therein that on 27th August 2009 Muhammad Hashim, IP/CO ACE reported that in ACE cases bearing FIR No.1 /N/2008, 1/M/2008 and 1/L/2008 accused Syed Aurangzaib Shah, Ex-DCO Nasirabad, Kech, Turbat and Musakhail during his tenure has embezzled government funds and caused huge losses to the government exchequer, who was in judicial custody, during which the learned Special Judge Anti-Corruption Balochistan called report from Revenue Department about the properties of Syed Aurangzaib Shah. It was further averred that during custody accused Syd Aurangzaib Shah with the connivance of accused-respondent Allah Dina Patwari got transferred his property situated at Khushkaba Saddat Shadinzai-II measuring 22-rods, 19-poles upon the name of his sister Bibi Atia Gul daughter of Syed Ali Gohar Shah through mutation No.1314 dated 22nd September 2008 by showing presence of accused Syed Aurangzaib Shah in Tehsil Office. It was further mentioned that the revenue department did not mention about the mutation No.1314 with mala fide intention and this fact has also not been confirmed by Superintendent District Jail Quetta that on 22nd September 2008 Syed Aurangzaib Shah was in custody.

3. In pursuance of above FIR, the investigation of the case was entrusted to PW-6 Malik Muhammad Ramzan, SI/IO, who during investigation took into possession the record of mutation entries and all other relevant record; recorded the statements of witnesses under Section 161, Cr.P.C.; arrested the accused-respondent and subjected him to investigation and on completion of investigation, submitted the challan in the trial Court.

4. At the trial, the prosecution produced six witnesses. The accused-respondent was examined under Section 342, Cr.P.C. However, the accused neither recorded his statements on oath under Section 340(2), Cr.P.C. nor produced any witness in his defence. On conclusion of trial and after hearing arguments, the learned trial Court vide impugned judgment acquitted the accused-respondent of the Charge under Sections 409, 420, 465, 468, 471, 109, P.P.C. read with Section 5(2) Act-II of Prevention of Corruption Act, 1947. Whereafter, instant appeal has been filed.

5. Learned Additional Prosecutor General contended that the judgment passed by the learned trial Court is arbitrary in manner without taking into consideration the documents so brought on record; that the judgment of trial Court is based on surmises and conjectures; that the prosecution produced sufficient evidence to establish the guilt of accused; that the trial Court did not consider the mutation No.1314, Ex.P/3-A Art.P/24 and P/25 by Mehboob Khan Patwari; that the learned trial Court did not consider the custody Certificate dated 23rd April 2009 Art.P/6 issued by the Superintendent Jail; that the accused/respondent has shown the presence of the accused Aurangzaib Shah on 22nd September 2008 in Tehsil Office when he was in custody in District Jail Quetta; that the judgment of learned trial Court suffers from misreading and non-reading of evidence and liable to be set-aside.

6. Conversely, the learned counsel for accused-respondent strongly opposed the arguments so advanced by the learned Additional Prosecutor General and contended that the prosecution has failed to prove its case beyond reasonable doubt; that the transfer of the property was mutated in presence of the parties on 14th October 2008; that the revenue record contained the signatures of Syed Aurangzaib Shah and further attestation of the Tehsildar Quetta on 14th October 2008; that the learned trial Court had rightly acquitted the respondent of the charge.

7. Heard the learned counsel for parties and perused the record minutely. The record reveals that the case was registered on 4th June 2010 vide FIR No.2/Q/2010 in Police Station ACE Quetta by one complainant Malik Muhammad Ramzan, SI/ACE with the averments as stated above. It was further alleged that during his custody, the said Syed Aurangzaib Shah with the connivance of Patwari Allah Din got transferred his property situated at Khushkaba Saddat Shadinzai-II measuring 22-rods, 19-poles upon the name of his sister Bibi Atia Gul daughter of Syed Ali Gohar Shah through mutation No.1314 dated 22nd September 2008 by showing presence of accused Syed Aurangzaib Shah in Tehsil Office. It is further alleged by the prosecution that on the said date i.e. 22nd September 2008 Syed Aurangzaib Shah was in custody in District Jail Quetta. To substantiate its case the prosecution produced custody certificate of Syed Aurangzaib Shah through PW-5 Muhammad Asif Butt, Superintendent District Jail Quetta and the said certificate was produced in the Court as Art.P/6 issued by the said witness, wherein it was mentioned that Syed Aurangzaib Shah Ex-DCO Naseerabad was remained in judicial custody in FIR No.1/N/2008, 1/M/2008 and 1/L/2008 of ACE Police and he remained in judicial custody from 8th September 2008 to 30th September 2008. Be that as it may, the allegation against the accused/respondent is that he showed the presence of Syed Aurangzaib Shah in the Intiqal No.1314 on 22nd September, 2008, when he was infact in custody on the said date, but the perusal of Intiqal No.1314 reflects that though the same was prepared on 22nd August 2009, however, attested and signed by the parties in presence of Naib Tehsildar City Quetta on 14th October 2008 and it was also witnessed by one Muhammad Qasim Khan son of Haji Syed Muhammad Khan, caste Badezai on the said date and it is also clearly mentioned in the second page of the mutation entry that the same was executed and parties were present before the Naib Tehsildar City Quetta on 14th October 2008. It is further supported by Art.D/25 i.e. receipt No.81 dated 14th October 2008, the amount Rs.500/- was deposited by the donee Bibi Atia Gul.

8. Perusal of aforesaid documents clearly showing that the transfer of the property was made on 14th October 2008 instead of 22nd September 2008, while during the said date the accused Syed Aurangzaib Shah was on bail, as such, his presence before the Revenue Authorities on 14th October 2008 could not be ruled out. The perusal of record and thorough evaluation of impugned judgment reflects that there is no iota of evidence available on record to connect the respondent with the commission of offence. The prosecution has failed to produce any cogent and confidence inspiring evidence against the respondent and the learned trial Court has rightly acquitted the accused/respondents from the charge. It is a settled principle of law that double presumption of innocence is attached to the order of acquittal and interference is unwarranted unless the acquittal is arbitrary, capricious, fanciful or against the record. In the instant case the order of acquittal passed by the trial Court is neither arbitrary, capricious, fanciful nor contrary to the evidence on record, warranting interference by this court. For the above reasons, the appeal being devoid of merits, is dismissed. JK/78/Bal Appeal dismissed.