2020 P Cr (PLP)

MALIK HAQ NAWAZ, J.

The convict/appellant Shoukat Islam son of Mohammad Yaqoob has filed the instant Criminal Appeal bearing No. 25/2016, against the judgment/order dated 27-04-2016, whereby after conclusion of trial the learned Sessions Judge, Skardu handed down the verdict of guilt against the accused and convicted him under section 409, P.P.C. and awarded him 10 years' RI and also directed him to pay Rs. 4898154/- to Utility Store Corporation and in default, thereof to go 5 years' simple imprisonment. The benefits of section 382-B, Cr.P.C. were extended to him.

2. The learned counsel for the appellant stated that the prosecution has miserably failed to connect the appellant with the alleged offence and the learned trial Court mis-read, whole the prosecution evidence and was much impressed from and oral assertions, which were afterthought and well planned. The learned counsel submitted that it was not a case of verbal assertion, the prosecution was bound to prove its case through documentary evidence, which they miserably failed. Per learned defence counsel, it was mandatory for the higher authorities of Utility Stores Corporation to carry out the audit of the store annually and also carryout quarterly and yearly stock taking, which they failed to do and to cover up their own mis-deeds the appellant, has been made a scapegoat. The learned counsel further submitted that the offence under section 409, P.P.C. is a scheduled offence and the very registration of FIR against the appellant by the local police is illegal and not permitted under law. The appellant was a permanent employee of the corporation and maliciously he has been shown as a contract employee to confer justification to the local police. The case was one which under law was required to be investigated and tried by a Special Judge FIA/Anti Corruption and not by a Sessions Judge, hence all the proceedings carried out by the learned trial Court are nullity in the eyes of law. The learned defence counsel laid much stress on the pleas that a total embezzlement of Rs. 5506519/- has been alleged which has not been proved through any worth reliance evidence. The total inventory if not proved, then how the liability of Rs.4898154/- could be fixed on the appellant. The entrustment under section 406, P.P.C. was to be proved by the prosecution through documentary evidence and indents, which they failed. The case of the appellant is one of the clean acquittal and he be acquitted as no case against him has been proved by the prosecution.

3. Conversely, the learned Dy. Advocate General opposed the appeal and submitted that prosecution has proved the case against the appellant up to the hilt by adducing cogent and convincing evidence. The learned Dy. Advocate General further submitted the accused/appellant when took over the charge of Utility Store No. 05 Skardu, has not submitted any report regarding any shortage in the Utility Store. The accused kept the Store closed for many months, which shows his negligence and involvement in the case. The Store was opened in presence of the appellant and the Stock taking was carried out in the presence of the accused and the shortage was noted down, for which the accused failed to furnish any reasonable explanation. The audit of the Store revealed that only the items worth of Rs. 117257/- were available in the Store and the shortage of items could not be reconciled by the accused. The learned Dy. Advocate General further submitted that accused had deposited Rs. 2810600/- form 01-06-2012 to 16-02-2014 and the cost of items present in the Store was calculated by the Audit Officer worth of Rs. 117257 against a total worth of Rs. 5050411 and the shortage of Rs. 4898154/- was noted. The accused per learned Dy. Advocate General caused a huge loss to the corporation by his conduct and mis-appropriation. The learned Dy. Advocate General referred to the statements of PW-3 namely UHC Akber Hussain and PW-4 Muhammad Hussain to substantiate his arguments that no flaw exist in the statements of above two star witnesses of prosecution. The shortage was noted in the presence of accused, which he signed and accepted the same as correct. Lastly that the accused has not taken any valid stance in his statements under section 342, Cr.P.C. for his false implication in the case nor he produced any defence witness to prove his innocence. The learned Dy. Advocate General prays that the conviction awarded to the accused be maintained in the given circumstances of the case.

4. The record reveals that the case against the appellant was registered on the written application of complainant Mehboob Ali, Regional Manager Utility Stores with the allegations of offences under sections 406/409, P.P.C. for mis- appreciation and embezzlement of utility stores items valuing Rs. 5506519/- from the Utility Store No. 5 situated at Pereshan Chowk Skardu. The stance of the prosecution that the items of various kinds worth of Rs. 5506519/- were supplied to the utility stores, were not proved through documentary evidence. The prosecution was under legal obligation to got exhibited the demand/supply indents to prove this crucial and when the issue of entrustment was proved, then the question of mis- appreciation was to be alleged and proved in accordance with law. Mere verbal assertion on the part of prosecution in a case of this nature does not meet the legal requirements of law. It is mandatory requirement of law that entrustment must be proved and then the mis-appreciation through cogent and convening evidence could be proved, otherwise the conviction would not be sustainable on the charges of "Criminal breach of trust. The complainant during cross-examination admitted that annual audit was not conducted from 01-07-2012 till 14-02-2014, which was a criminal negligence on the part of concerned authorities of Utility Stores Corporation and they if not directly were indirectly privy to the offence of any mis-appreciation or embezzlement committed in the above utility store. The assertion of the prosecution that from 01-07-2012 to 16-02-2014 the utility items worth of Rs. 78206019/- were issued but prosecution has not furnished any evidence and the details of supply of the items worth of Rs. 7826019/-. The I.O. of the case has not made any efforts to substitute the above facts by placing any documentary evidence, which was mandatory to prove the charge under section 409, P.P.C.

5. Another very important aspect of the case is that FIR Exh.PW-1/B was lodged on the written application of Mehboob Ali, who was examined in the trial Court as PW-I. The said PW during cross-examination stated that his statement under section 161, Cr.P.C. was not recorded by the police, whereas his statement recorded by the police under section 161, Cr.P.C. dated 17-02-2014 is available on record.

6. PW-2 Muhammad Azam the then Manager Utility Store Corporation Baltistan Region also during cross-examination admitted that his statement under section 161, Cr.P.C. was also not recorded by the police during investigation of the case. PW-3 Akhtar Hussain UHC stated that his statement under section 161, Cr.P.C. was recorded by the police. Muhammad Ilyas PW-5 in the trial, who was performing the duties of Manager UBL also stated that his statement under section 161, Cr.P.C. was not recorded, whereas the I.O. of the case stated during Examination in Chief that he recorded the statements of PWs under section 161, Cr.P.C. The I.O. of the case has taken a categorical stance that he recorded the statements of PWs in Police Station on 17-02-2014 except PW Ilyas, whose statement was recorded on 20-02-2014 but PW-5 Muhammad Ilyas during cross-examination stated "My statement under section 161, Cr.P.C. was not recorded by the police" PW-4 Muhammad Hussain Butt during cross-examination stated that "police recorded my statement under section 161, Cr.P.C. on 17-02-2014. Further stated that "it is correct to suggest that date has not been mentioned in my statement recorded under section 161, Cr.P.C." whereas the I.O. of the case stated that statement of PW-4 (Tehsildar Muhammad Hussain Butt) was recorded after 02 months of the occurrence.

7. Out of 05 PWs examined in support of prosecution case PW-1 (complainant) Mehboob Ali. PW-2 Muhammad Azam, Account Officer Utility Stores Corporation Baltistan Region, PW-5 Muhammad Ilyas Manager UBL Skardu Branch stated that their statements under section 161, Cr.P.C. ware not recorded by the police. PW-4 Muhammad Hussain Butt stated that his statement was recorded on 17-02-2014 but the I.O. has contradicted him who stated the statement of PW-4 was recorded after about 02 months of the occurrence. If a witness stated that his statement under section 161, Cr.P.C. was not recorded, he deliberately conceals the facts with an intention to deprive an accused to the right of cross-examination and also the chance of confrontation is waived, which is a fundamental right of an accused.

8. Evidences consist of examination in chief, cross-examination and re-examination if any. If a witness is examined and not cross-examined, the deposition cannot be considered against the accused. Cross-examination of a witness is a fundamental right of an accused. The concept of provision of copies of incriminating evidence under section 265(C), Cr.P.C. at least a week before framing of charge to an accused is that he should be well aware of the incriminating evidence likely to be adduce by the prosecution and the accused should be provided an opportunity to prepare his defence. Likewise when a witness denies to have made a statement before police in reality he makes a deliberate effort to deprive the accused from the right of cross-examination. Such a witness also put his credibility at stake and his evidence becomes doubtful. The Court may derive an inference that he knows nothing about the incident and the police recorded his statement without examining him and put a tailored story on the file tagged with the accused. In both of the above situations the witness could be termed a reliable witness and his evidence against the accused has to be excluded from the consideration. We looked all round to find out any sort of corroboration in the case in hand against the appellant, but could not find. No confidence inspiring evidence has come on record to show that the accused committed the offence charged with. The prosecution is duty bound to prove his case against the accused beyond any shadow of doubt and cannot take advantage of any weakness of defence.

9. In view of above, we are of the unanimous view that the prosecution miserably failed to connect the appellant with the allegation of mis-appropriation. There is not an iota of evidence available on record against the accused. The accused was wrongly convicted by the learned trial Court in a case of "no evidence". The appeal is allowed and the appellant is acquitted from the charges. He shall be released forthwith if not required to be detained in any other case.

10. Appeal is allowed. SA/76/GB Appeal allowed.