2021 PLP 86 (YLRN)

MUHAMMAD SALEEM JESSAR, J.

Through instant criminal appeal, appellant namely Najaf Ali son of Mian Bachal Abbasi had challenged judgment dated 20.09.2004, passed by the learned Special Judge, Anti-Corruption (P), Hyderabad, in Special Case No. 123 of 1994 (re: The State v. Najaf Ali), being outcome of FIR No.18 of 1990, registered at Police Station ACE Sanghar, under section 409, P.P.C. read with section 5(2) of the Prevention of Corruption Act-II of 1947, whereby he was convicted and sentenced to undergo R.I. for three years with fine of Rs.25,000/-, in case of default whereof to suffer S.I. for three months more.

2. Facts of the case, in nutshell, as stated in the FIR lodged at Police Station ACE Sanghar by complainant Naseer Ahmed Khan, Circle Officer on 19.07.1990 stating that appellant while posted as Food Supervisar Centre Incharge Nawaz Dahri, District Sanghar in the year 1988/89 was entrusted Bardana total 21925 bags, out of which 17386 bags were deposited and 4539 bags remained as outstanding amounting to Rs.88283.55 and difference of costs of 386 bags was calculated as Rs.3755.78, which he allegedly misappropriated, thus, he thereby has caused loss to the Government and pecuniary gain for himself, as such, instant FIR was registered against appellant on behalf of the State.

3. The investigation of the case was conducted and after completing the investigation challan was submitted against the appellant.

4. After providing documents as required under section 265-C, Cr.P.C., a formal charge was framed against the accused at Ex.03, to which he pleaded not guilty and claimed to be tried vide his Plea Ex.04.

5. In order to prove its case, prosecution has examined PW-1 Muhammad Hassan, Circle Officer, ACE, at Ex.05, who produced mashirnama of securing record at Ex.05/ A; PW-02 Mohammad Ayoub, Rtd. Head Clerk DFC, Sanghar at Ex.06, mashirnama of securing record from him as well numerous documents at Ex.06/A to Ex.06/I; PW-03 Badaruddin, Assistant Director, Food, was examined at Ex.07 who also produced a report for the year 1990 at Ex.07/A; PW-04 complainant Naseer Ahmed, Circle Officer was examined at Ex.08, who produced various documents at Ex.08/A to Ex.08/C. Thereafter, prosecution side was closed vide statement Ex.09.

6. Statements of accused under section 342, Cr.P.C. was recorded vide Ex.10, in which he denied prosecution allegations and claimed his innocence. However, neither he opted to appear in witness box to examine himself on Oath under section 340(2), Cr.P.C. in disproof of charge, nor produced any witness in his defence.

7. Then after formulating points for determination, hearing learned advocate appearing for the accused as well as PDSP appearing for the State, learned trial Court convicted and sentenced the appellant in the manner as stated above.

8. It is pertinent to mention here that it was brought into knowledge of this Court that during pendency of instant appeal, the appellant had passed away; hence, learned counsel filed Vakalatnama on behalf of legal heirs of appellant in order to proceed with instant case on merits.

9. Learned counsel for appellant submits that per Grower Policy framed by Government of Sindh, Food Department, direct sale of wheat by growers at the Purchase Centers will be encouraged, so that the benefit of support price would go directly to the grower(s). In support of his contention, he has placed on record a copy of that policy pertaining to year 1984-85. He further submits that instant offence pertains to year 1990; case was instituted before the trial Court in the year 1994 and after his conviction, the deceased appellant had filed instant appeal before this Court in the year 2004, therefore, more than 27 years, he was dragged in litigation. In support of his contentions, he has placed reliance on the case of 'Allah Bux Shaikh and others v. The State' [2004 PCr.LJ 503]. He next submits that one of grower Muhammad Ramzan, to whom alleged Bardana was supplied by deceased appellant was not examined and he being necessary witness was not produced, therefore, charge could not be blamed against deceased appellant. In support of his contention, he has placed his reliance on the case of 'Muhammad Rafiq v. The State' [2004 YLR 1580]. He, therefore, prays for acquittal of the deceased appellant from all charges.

10. Learned D.P.G. Sindh for the State submits that the appellant had expired and instant appeal is being contested by his legal heirs besides the evidence adduced by prosecution itself to some extent was deficient, hence, raised no objection for grant of appeal.

11. Heard arguments and perused record.

12. According to the prosecution, 4539 bags of barclana remained outstanding against deceased appellant, which amounting to Rs.88283.55 and difference of costs of 386 bags was calculated and it comes to the tune of Rs.3755.78, hence, appellant was held responsible for causing loss to the Government by committing misappropriation. In order to substantiate charge against accused, PW-01 Mohammad Hassan, Circle Officer, Anti-Corruption Establishment (Ex.05), who secured relevant record from the office of D.F.C. Sanghar; however, in his cross-examination at page-49 of paper book, he has deposed that; "I had not verified the record which I was transferred. It is a fact that PW Muhammad Ayoub in his police statement has mentioned that the bardana has been supplied to one Ramzan Unar." Interestingly said Muhammad Razman, whom bardana was supplied by the deceased appellant, was not examined by the prosecution. PW-02 Muhammad Ayoub (Ex.02) while responding to questions in his cross-examination at page-53 of paper book, has admitted that; "It is a fact that I had not made physical checking of the go-downs for which I produced the record. In the record which I produced the word shortage or deficiency are not written. It is a fact that approved contractor used to bring the bags at the Centers... ...It is a fact that signatures on the wheat suppliers is to be maintained. Voluntarily says that such record was maintained by the accused. It is a fact that some balance of the bags remained with the wheat suppliers if some wheat is not supplied to the Center Incharge." PW-03 Badaruddin (Ex.07) while responding to questions in his cross-examination at page-61 of paper book has deposed that; "It is fact that I have not verified the record for the supply of the bardana to the wheat growers." Statement of PW-04 Naseer Ahmed is with regard to receipt of report by D.F.C. Sanghar against appellant, who registered the case against appellant and on receipt of permission from Deputy Director ACE Hyderabad presented challan sheet against accused. In his statement, deceased appellant stated that 4539 empty bags were issued by him to the growers and the said bags were not returned by them, therefore, the bags in question were not misappropriated by him. According to. Food Department's Wheat Policy 1984-85 under Chapter-II Purchase in its paragraph-4, it is clearly mentioned that the growers will be given bardana without deposit, who will return bardana filled with wheat. In case of default, the grower would re-pay the full cost of bardana and also action is stated to be taken against such grower for breach of trust and misappropriation of Government bardana. It will be appropriate to reproduce the paragraph-4 of Wheat Policy 1984-85, which is as under:- "

4. Direct sale of wheat by growers at the Purchase Centres will be encouraged, so that the benefit of support price goes direct to the grower. To encourage direct sales, growers will be given bardana without deposit subject to the maximum of 200 on an undertaking to be furnished in writing by him to the effect that he will return bardanas filled with wheat. In case of default he said re-pay the full cost of bardana and also action, may be taken against him under law for breach of trust and misappropriation of Government bardana. After delivery of first consignment of bardana further deliveries of empty bardana will be made." In instant case, instead of taking action against delinquent grower(s), case has been registered against appellant only, which appears to be against the policy framed by the Government.

13. On assessment of prosecution evidence, it is crystal clear that per statement of PW Muhammad Ayoub before that bardana was supplied to one Muhammad Ramzan, hence, said Muhammad Ramzan is star witness but the prosecution has failed to examine him. Failure to examine such witness extends benefit of doubt in favour of accused as it is also fatal to the prosecution case. This smacks something fishy and in such circumstances Article 129(g) of Qanun-e-Shahadat Order, 1984, comes into play that despite availability of disinterested / material witnesses, non-examination of such witnesses in the case gives inference that in case such witnesses had been examined, they would have deposed against the prosecution as envisaged under the aforesaid Article of Qanun-e-Shahadat Order. In this context, reference may be made to the case of 'Bashir Ahmed alias Mannu v. The State' reported in 1996 SCMR 308, wherein it was held by Honourable Supreme Court that despite presence of natural witnesses on the spot they were not produced in support of the occurrence an adverse inference under Article 129(g) of Qanun-e-Shahadat Order could easily be drawn that had they been examined, they would not have supported the prosecution version.

14. PW Muhammad Ayoub who was Head Clerk at D.F.C. Sanghar has also admitted in his evidence before trial Court that grower(s) who had not returned the bardana either empty or filled with wheat. and no action whatsoever was taken by the department against said grower(s), hence, the appellant cannot be said responsible for the loss allegedly caused to the Government Exchequer by the grower(s). PW Muhammad Ayoub has also admitted that he had not physically checked go-downs in substantiate the allegation of deficiency/shortage of bags. Furthermore, with no denial it has also come on record in the statement of accused that 4539 empty bags were issued by him to the growers and the same were not returned by them. During investigation, it was not investigated by the Investigating Officer as to whether growers did not return such bags and such failure on part of the Investigating Officer has also dented the prosecution case, hence, the stance taken by accused gone un-challenged and un-rebuttal. As far as difference of 386 bags is concerned, it has come in evidence that no physical verification was made to validate that as to whether there was difference or not and on presumption or without sure, appellant cannot be held responsible for the same. As such, the prosecution has failed to establish its case with strong corrobbrative evidence against deceased appellant though it is duty of prosecution to establish its case beyond a shadow of doubt from any corner. However, instant prosecution case is full of lacunas and in presence such gaps and un-corroborative evidence, the conviction and sentence awarded to the appellant cannot be maintained. It is well settled principle of law that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt irrespective of any plea being raised by the accused in his defence and such failure on the part of prosecution entitles the accused to an acquittal. In this regard, reliance can be placed on the case reported as 'Shamoon alias Shamma v. The State' (1995 SCMR 1377).

15. It is amazing to note here that the offence pertains to the year 1990; case was registered in the year 1994 after four years of the alleged incident whereas deceased appellant was convicted and sentenced to by the trial Court in the year 2004. Against his conviction and sentence, the deceased appellant preferred appeal before this Court in the year 2004, as such, more-than 27 years deceased appellant was dragged in litigation. In case of 'Allah Bux Shaikh' (Supra), the Honourable Bench of this Court while concluding the judgment has held in following terms:- " ..The record reveals that the case against the appellants pertains to the year 1981 and they were convicted and sentenced in 1991 and since then, they are dragging these appeals uptil now which period comes to be more than 22 years. Consequently. I allow these appeals, set aside the impugned judgments and the appellants are acquitted from the charge. The appellants are on bail, their bail bonds stand discharged."

16. In view of aforesaid circumstances of the case, it can safely be held that prosecution has not succeeded in proving its case against the deceased appellant, as such; the impugned judgment is liable to be set aside. Consequently, for the foregoing reasons, by a short order passed on 21.12.2020, instant Criminal Appeal was allowed. Consequently, Judgment dated 20.09.2004, passed by the learned Special Judge, Anti-Corruption (P), Hyderabad in Special Case No. 123 of 1994 (re: The State v. Najaf Ali), being outcome of FIR No.18/90, registered at Police Station ACE Sanghar, under sections 409, P.P.C. read with section 5(2) of the Prevention of Corruption Act-II of 1947, was set aside. Resultantly, deceased appellant namely Najaf Ali son of Mian Bachal Abbasi was acquitted of the charges.

17. Above are the reasons for said short order. JK/N-1/Sindh Appeal allowed.