2001 P Cr (PLP)

7. This is an appeal against acquittal and consideration for interference in appeal against acquittal and in an appeal against conviction are altogether different. The well‑settled principles for the appreciation of appeal against acquittal amongst others are:‑‑ (i) that with the acquittal, the presumption of the innocence of the accused becomes double, initially, that till found guilty accused is innocent and secondly that after trial a Court below confirmed the assumption of innocence. (ii) that unless grounds on which trial Court had purported to acquit the respondents were not supportable from evidence on record, the Court would not interfere. (iii) that unless the judgment or acquittal is perverse and the reasons of acquittal are artificial and ridiculous, Court would not interfere. The Court, however, would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion and that too, with a view only to avoid grave miscarriage of justice and no other purposes, so, keeping in view these principles, I have appreciated the arguments advanced by the learned counsel for the parties and have. also perused the record minutely.

8. This appeal against the impugned judgment was admitted per order of this Court, dated 16‑5‑1994 and it was observed by Mr. Justice Rashid Aziz Khan (as he then was) that:‑‑ "as far as shortfall in Godown No.4 is concerned, the reasons given by the trial Court cannot be sustained in eyes of law. I have noticed that the trial Court had also not taken into account a number of documents relied upon by the prosecution. Therefore, the judgment of acquittal passed by Special Judge Anti‑Corruption, Sargodha, needs examination. Admit." Here I would also like to point out that in the instant case learned trial Court had first discussed the defence evidence/plea and thereafter considered the prosecution case. Thus, trial Court had approached the case in an entirely improper manner in so far as it has discussed the defence case first and then the prosecution case. The proper and legal way of dealing with a criminal case is that Court should first discuss the prosecution case in order to come to an independent findings with regard to the reliability of the prosecution witnesses/evidence and then examine the statement of accused under section 342, Cr.P.C. 340(2), Ci.P.C. and the defence evidence and thereafter if the Court disbelieve/exclude from the consideration the prosecution evidence then the Court must accept the statement of accused as a whole without scrutiny and if the statement is exculpatory then he must be acquitted and if it constitutes some offence, then the accused should be convicted for that offence and I am fortified in this behalf by any illuminating judgment of' Supreme Court of Pakistan in case of Ashiq Hussain v. The State PLD 1994 SC 879.

8. This case is of peculiar nature, the accused were charged with the allegation that they while posted as Supervisor Food Inspector and District Food Controller respectively as P.R. Centre Aasianwala received wheat under the Scheme 1987‑88 and then cleared the stock and they in furtherance of common intention of each other dishonestly misappropriated 14,410 bags of wheat weighing about 1441 metric tons. Secondly, during the same year respondents were also entrusted with gunny bags and they also in furtherance of common intention of each other dishonestly misappropriated 14,736 empty bags when as per their duties they were responsible for purchase and storage of wheat during the Scheme 1987‑

88. This is a case of oral as well as documentary evidence. Report Exh. P. H. drawn up by P. W.11 Muhammad Azam Awan, Magistrate 1st Class, Sargodha had not been challenged by the respondents. According to the report on 29‑3‑1989 the said P. W. alongwith Malik Umar Hayat, District Food Controller, Sargodha and Mubarak Ahmad. Assistant Controller of Inspector, Divisional Food Office, Sargodha visited the spot sealed the Godown No.4 containing wheat of Scheme 1987‑88 which was in the charge of Messrs Naseem Ullah, Assistant Food Controller, Muhammad Shaheen Tariq, Ahmad Shujah, Food Inspector and Malik Javaid Iqbal Food Supervisor. On 2‑4‑1989 at about 10‑40 a.m. one door was unsealed in the presence of Malik Umar Hayat P.W., District Food Controller, Sargodha and Mubarak Ahmad, Assistant Controller of Inspector for filling of bulk wheat into empty gunny bags. The same proceedings coptinued till 10‑4‑1989. After filling/standardizing all the bulk wheat and bags only 9728 bags (100 Kgs. each) containing 972.800 metric tons, wheat were recovered from the said godown whereas according to stock report P.5, 2413.800 metric. tons quantity was required to be recovered. Hence it transpired that there was an embezzlement of 1441.00 metric tons wheat according to inventory register Exh.P.16, 26,339 bags were required to be recoverable but only 11,603 bags had been recovered having a shortage of 14,736 bags. Here I would like to point out that this important piece of evidence has neither been considered nor discussed by the learned trial Court in the impugned judgment. Respondents had also not controverted the statement of P.W.9 Malik Umar Hayat, District Food Controller, Sargodha who had stated before the Court that on 28‑3‑1989 he had sent a letter Exh.P.G. to D.C. Sargodha to depute a Magistrate for sealing the Godown No.4 and get the same cleared under the supervision of the Magistrate and according to his statement as per record there was shortage of 1441 metric tons wheat and 1.1,736 empty bags were found short and respondents Shaheen Tariq, Food Inspector, Shujah Ahmad, Food Inspector, Muhammad Javaid respondents and Ch. Naseem Uliah, A.F.C. (since dead) were posted there.

9. The prosecution in order to prove the entrustment of wheat to the accused respondents had produced four witnesses i.e. P.W.3, Fayyaz Hussain, Food Inspector, P.W.7 ijaz Hussain, Food Inspector, Abdul Rashid P.W.8 naad Muhammad Akram P.W.10 Food Inspectors who had stated that they purchased and sent the wheat to Aasianwala Centre weighing 984.700 meetric tons, 5155.700 metric tons, 3666 metric tons and 1210.400 metric tons wheat respectively. The same was received by the respondents and in this regard there are signatures on Exh.P.18 (Stock Register) of respondent Shujah and Javaid. The respondents had also not controverted the statements of these P.Ws. and the documents referred by these P.Ws. in their statements which bear their signatures, meaning thereby that the respondents had accepted the entrustment of wheat and empty bags. While discussing the prosecution case the learned trial Court in para. No. 14 of its judgment had observed that:‑‑ "mere entrustment of the property to the accused and its shortage is not enough to establish dishonest misappropriation." I would like to refer a case reported in PLD 1965 Kar. 155 where it was held that:‑‑ "the prosecution is not required necessarily to prove actual manner of misappropriation for sustaining a charge of criminal breach of trust, it is not necessary that misappropriation must be proved. If in the circumstances of the case the prosecution is not able to trace misappropriated property or to produce evidence of the manner in which the misappropriation or conversion in fact took place, it cannot be said that prosecution must fail even if there is other evidence which leads to the conclusion that property which was entrusted to the accused or over which the accused had domain and which was later on found missing, was misappropriated by him."

10. The other reason assigned by the learned trial Court in para. 15 of the judgment of acquitting the respondents in the case was that there is no evidence that 14,736 gunny bags were entrusted to the accused respondents, hence they cannot be held responsible for misappropriation of the same. There is no dispute about the fact that the accused had not challenged the inventory register Exh.P.16, stock report Books Exh.P.3 and Exh.P.4 E wherein misappropriated gunny bags stock was mentioned and same was in possession of the respondents. It was held by the apex Court of the Country in case reported in 1968 SCMR 1126, that:‑‑ "in a criminal case of breach of trust by a public servant where an entrustment is admitted by the accused the mere fact that entrustment had not been proved by producing any official documents is of no consequence." Thus, I have no doubt in my mind to form the opinion that prosecution has proved the entrustment of wheat weighing 1441 metric tons i.e. equal to 38546.75 Maunds embezzled by the respondents and also 14,736 gunny bags found short from the stock of Godown No.4 of P.R. Centre Aasianwala where the accused respondents were incharge of the said Centre.

11. Now I turn to the case of the accused respondents. The plea of the respondents is that flag stations had purchased rain soaked wheat which was damaged and same was sent and stored in Scheme 1987‑88 and due to drying of process, natural decay and other natural climaty the wheat was damaged and large quantity become dust with passage of time. The respondent Javaid Iqbal had produced certain reports in his defence i.e. Exh.D.O. attested photo copy of report of Public Analyst Lahore, dated 10‑11‑1987 shows that wheat in Godown No.4 was damaged to the extent of 26.8% Exh.D.N./I another attested photo copy of another Analyst report shows that wheat was damaged to the extent of 12%. Similarly Exh.D.N./2 shows damage of wheat to the extent of 3 % to 12 % . It is important to note that the documentary evidence which has been received by the learned trial Court from the accused in their defence are attested ‑photo copies. The learned trial Court had acted illegally in receiving abovesaid documents for the reason that unless expert or Analysts are examined in Court. Law is that if expert is not examined in Court then reports of these experts are of no use and are inadmissible in evidence. Moreover, photo copies of any document are also not admissible in evidence in absence of original documents. I would also like to note that the conclusion of the learned trial Court that according to Exh.D.N./1, at Serial Nos.53 to 58 relates to Aasianwala Centre, there was shortage to the extent of 24% is based on misreading of evidence on record, the relevant part of the evidence Exh.D.N./1 in this regard shows that at Aasianwala Centre in Godown No.4 total damage was only to the extent of 12%. It is very important to observe that no wheat which was lying in other godowns of the Centre, i.e. Godowns Nos.3 and 5 was also damaged with the alleged heavy rains but no shortage of the wheat was detected in the stock. Moreover, it may be noted that the wheat was lying in godown and not in an open place, so there was no question of wheat to be soaked with rain and if there was any rain and the wheat become damaged it was the duty of the respondents to have informed their superiors in this regard but there is no such complaint on the record. Having examined the record produced by the respondents I am unable to understand that even according to Exh.D.O. wheat in Godown No.4 was damaged to the extent of 26.8 % which is equal to 10330.529 mounds. But what about rest of the quantity that was 28216.221 mounds wheat which was still in the custody of the respondents and was found short. Similarly, according to Exh.D.N.I after deducting the 12% damaged wheat that is equal to 9,251.22 mounds. There is no explanation of remaining 29,295.53 mounds wheat in Godown No.4 which was in possession of the respondents and was found short.

12. As the case against the respondents is based on documentary evidence and the same established their guilt of misappropriation of 1441 metric tons of wheat and also 14,736 gunny bags all valuing about 40,00,000 (fourty lacs), thus, the prosecution has proved the charge against the respondents who being public servant have committed offence of misappropriation punishable under section 409, P.P.C. read with section 5(2), P.C.A.

13. It is established on record that Shaheen Tariq respondent alongwith Naseem Ullah (since dead) were suspended on 25‑6‑1987 and the checking of the store was conducted about two years after their suspension and the disposal of all the wheat was after 25‑6‑1987 and till 5‑5‑1989 none of the Checking Officer reported any fault of shortage in the stock. Similarly, there is no allegation of entrustment or misappropriation against Mehar Muhammad Umar Hayat respondent and it was Javaid Iqbal and Ahmad Shujah who were made incharge and responsible for the purchase and storage of wheat in Godown No.4 of Aasianwala Centre.

14. As a result of above discussion, I hold that the prosecution case stands fully proved against Javaid Iqbal and Ahmad Shujah respondents who 1 had also been declared P.Os. during the course of investigation as mentioned in reports under section 173, Cr.P.C. dated 15‑10‑1989, 25‑4‑1990 and 26‑8,1991. I do not understand that for what motive the evidence of abscondence was not brought on record by the prosecution but facts remain that Javaid Iqbal and Ahmad Shujah respondents were declared proclaimed offenders after initiating the proceedings under sections 87/88, Cr.P.C. If after a crime a person named as participant absconds as the respondents Javaid Iqbal and Ahmad Shujah had done, their conduct shows that they were indeed concerned in the crime and this is a corroborative circumstance against both of them who remained fugitive from law after commission of crime. But as no evidence is available regarding Shaheen Tariq who was also found innocent during the course of investigation and Mehar Muhammad Umar Hayat respondents so they both are given benefit of doubt. The appeal is accordingly dismissed to their extent and is accepted against Javaid Iqbal and Ahmad Shujah respondents and their acquittal is set aside. The nutshell result would be that Javaid Iqbal and Ahmad Shujah respondents are hereby convicted under section 409/34, P.P.C. read with section 5(2) of P.C.A. 1947 for misappropriation of State property i.e. 1441 metric tons wheat and 14,736 empty gunny bags entrusted to them and they are sentenced to undergo 10 years' R.I. each on two counts with the tine of Rs.20,00,000 (twenty lacs) each on two counts and in default of payment of fine, the defaulters shall further undergo 3 years' R.I. each on two counts. Benefit of section 382‑B, Cr.P.C. is also granted to them. Respondents Javed Iqbal and Ahmad Shujah are on bail in this case. They shall be taken into custody to serve out their sentences. N.H.Q./S‑208/L Appeal accepted.