1994 P Cr (PLP)

S.M. Aslam Khan for Appellant. Nasar-ud-Din Ghauri for the State. Date of hearing: 9th February, 1993. Muhammad Yaqoob son of Haji Abdul Ghafoor was tried by the learned Special Judge, Anti-Corruption, Bahawalpur, who vide his impugned judgment, dated 11-10-1987 convicted and sentenced the appellant under section 409, P.P.C. to undergo R.I. for 6 months and a fine of Rs.10,000, in default whereof to suffer R.I. for 6 months. He was further sentenced under section 5(2) of the Prevention of Corruption Act, 1947 to pay a fine of Rs.2,000, in default thereof to suffer further R.I. for 2 months. To assail his conviction and sentence the appellant has come up in appeal. 2. The allegations against the petitioner were that he was posted as Stock Assistant in the Government Poultry Farm, Bahawalpur in the year 1980-81 and being a public servant abused his official position and being incharge of the poultry farm misappropriated 798 birds worth Rs.16,352; that during the said period he also misappropriated 216 empty bags of feed belonging to Government Poultry Farm, Bahawalpur of the value of Rs.324, and that he misappropriated sale proceeds of 600 empty bags auctioned for Rs.900 in April, 1981, and the amount was subsequently deposited in the treasury on 20-9-1981. 3. P.W.1 War Iqbal complainant moved an application to the Deputy Director, Anti-Corruption, Bahawalpur that Dr. Rafique Ahmad, Incharge Poultry Farm, Malik Muhammad Bashir, Veterinary Officer and Muhammad Yaqoob were working as Stock Assistants. Dr. Muhammad Rafique and the appellant were selling birds without receipt and also used to show death of the birds in excess and they were not properly maintaining the birds. The appellant was charged under section 409, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947, to which he denied and claimed trial. 4. The prosecution examined 5 P.Ws. in ell to substantiate its case. P.W.1 Zafar Iqbal complainant corroborated the contents of the F.I.R. Exh.P.W.4/B P.W.2 Muhammad Aslam, Assistant Nutrition Chemist, was working as Veterinary Officer in the Government Poultry Farm, Bahawalpur and a Magistrate raided the Poultry Farm in his presence, the stock was checked, which was found deficient. P.W3 Fazal Muhammad, Senior Clerk of the said Poultry Farm stated that in his presence, the police secured the record. The charge of livestock was with Dr. Muhammad Aslam and the appellant was Stock Assistant. Dr. Muhammad Aslam was away to Australia. The appellant used to sell birds and issued receipts, P.W.4 Sh. Ghayoor Ali, Circle Officer, A.C.E., Rahimyar Khan stated that on the report of P.W.1 War Iqbal a case F.I.R. Exh.P.W.4/B was recorded and under the supervision of P.W.5 Mr. Shabbir Abbas, M.I.C., Bahawalpur (Assistant Commissioner) raided the Poultry Farm and where he had produced Zafar Iqbal (P.W.1) before P.W.5, who recorded his statement Exh.P.W.4/A..He had accompanied P.W.5 to the Poultry Farm and had found 798 birds missing and 216 empty bags which were misappropriated by the appellant, who was incharge of the birds and feed. He also secured chits from the appellant during investigation and recorded statements of the P.Ws. P.WS Makhdoom Syed Shabbir Abbas, A.C. had supervised the raid, recorded the statement of P.W.1 Zafar Iqbal complainant Exh.P.W.4/A and during the raid had found 798 birds missing as well as 216 empty bags. He recorded the statement of Dr. Muhammad Rafique Exh.P.W.5/C as well as Exh.P.W.5/D, statement of the appellant which were signed by them. He also recorded the statement of Dr. Muhammad Aslam Exh.P.W.2/M. 5. The appellant when examined under section 342, Cr.P.C. denied the prosecution evidence against him and stated that he was innocent. He further stated that during the days there was a shortage of birds. He was on leave and when he returned, he found the shortage having occurred during his absence Dr. Rafique used to issue chits for sale of birds. There was also miscalculation in the counting of the birds. He produced D.W.1 Muhammad Hussain who was serving as Poultry Attendant of the Government Poultry Farm, stated that Ch. Muhammad Rafique, Poultry Development Officer was incharge of the Poultry Farm. The birds were sold on the direction of Muhammad Rafique who used to issue chits which were collected by him at evening. The appellant had no concern with the sale of birds. D.W.2 Ghulam AIL Poultry Attendant stated that earlier to the raid in the Poultry Farm the appellant was on leave and when he came back, D.W.2 informed him that in his absence Dr. Rafique was selling birds and some birds were short. The appellant asked the doctor to account for the shortage of birds, but the doctor replied that he was Incharge of the Poultry Farm and he was responsible for the shortage. It is pertinent to mention here that the appellant was convicted, but the case was remanded by this Court vide judgment, dated 15-6-1985 in Criminal Appeal No.49 of 1985/BWP and thereafter again the statement of the appellant was recorded under section 342, Cr.P.C. and he had again produced D.W.1 Khadim Hussain, Senior Clerk, Government Poultry Farm and D.W.2 Muhammad Aslant Chowkidar of the Poultry Farm, who had stated about the innocence of the appellant. D.W.1 Khadim Hussain stated that an amount of Rs.900 for the sale of 600 empty bags had been deposited in the Government Treasury vide receipt Exh.D.W.1/B. D.W.2 Muhammad Aslam stated that Dr. Muhammad Rafique was the Incharge of Poultry Farm. Dr. Rafique used to receive the sale price. He used to send chits to them to supply the birds to the customers after receiving money from them at which he and other attendants used to supply the birds. In the evening Dr. Rafique used to collect the said chits from them. The appellant used to come with the customers on certain occasions for getting delivery of the purchased birds to them. The appellant was incharge of feed. 6.? I have heard the learned counsel for the parties and have perused the record. P.W.1 Zafar Iqbal during cross-examination stated that it was correct that he had levelled allegations against Dr. Muhammad Rafique before the Magistrate and had not named the appellant as accused. He further stated that 798 birds were found missing and there could be a fault in counting the stock. P.W.2 Muhammad Aslam stated that in his presence the Magistrate raided the Poultry Farm and checked the stock and no shortage of feed was found. During cross-examination he refuted the suggestion that birds had been misappropriated by the attendants. P.W.4 Sh. Ghayoor Ali stated that the appellant had produced chits Exhs.P.W./E/1 to P.W.2/E/4 which were secured by him vide memo. Exh.P.W.2/L and the said chits had been issued by Dr. Muhammad Rafique and during examination appellant stated before the Magistrate that Dr. Muhammad Rafque used to issue chits. P.W.5 Syed Shabbir Abbas, A.C.(D), Commissioner, Multan supervised the raid and during cross-examination he stated that he had not himself counted the birds and kept on sitting in the office and had deputed Dr. Muhammad Rafique to count the stock who was accompanied by a member of the raiding party. He had not gone to the shed to count the birds. He refuted the suggestion that on asking of-Dr. Muhammad Rafique he had declared the shortage. He could not tell the name of member of the raiding party, who had accompanied Dr. Muhammad Rafque for counting the stock. 7. The appellant was Stock Assistant and Incharge of the stock. It was the duty of the prosecution to establish misappropriation and to prove that the appellant was responsible for doing himself or offered to some other to do the act mentioned under section 405, P.P.C. i.e. whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits ?criminal breach of trust?, and as laid down under section 409, P.P.C. ?whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Failure to discharge responsibility for safe custody of property would not per se amount to establish an offence within the meaning of section 409, P.P.C. nor an offence under section 5(2) of the Prevention of Corruption Act, 1947. The A mere entrustment of property to the appellant and its shortage would not be enough to establish guilt of dishonest misappropriation and mere existence of adverse presumption cannot be equated with the establishment of guilt. The onus was on the prosecution to prove its case. No convincing evidence was B produced by the prosecution about the dishonest misappropriation of birds or conversion of the same to his own use by the appellant or their disposal, the mere entrustment and shortage would not be good enough to establish his guilt. It is well-settled that despite existence of circumstances giving rise to adverse presumption, the onus probandi still rests squarely on the shoulders of the prosecution. Dr. Muhammad Rafique was Incharge of the Poultry Farm. P.W.5 had not personally supervised the counting and had deputed a person to accompany the Doctor Muhammad Rafique to count the stock, but the same person had not been produced by the prosecution. P.W.1 Zafar Iqbal complainant specifically stated that he levelled allegations against Dr. Muhammad Rafique for misappropriation, but he was not challaned. The appellant stated at the time of raid before P.WS Syed Shabbir Abbas, Magistrate that Dr. Muhammad Rafique used to issue chits for the delivery of birds, which he did accordingly and the appellant had also produced before P.W.5 the said chits i.e. from Exhs.P.W.l/E/1 to P.W.1/E/4. The appellant was on leave and when returned, the raid was conducted and during his absence nothing was brought on record by the prosecution to establish that he was Incharge of the stock. 8. Pursuant to the above discussion, I am of the considered view that the case against the appellant has not been established by the prosecution beyond doubt and giving him benefit of doubt, I acquit him of the charge. The appellant is on bail, his bail bonds are discharged. N.H.Q./M-1409/L?????????????????????????????????????????????????????????????????????????????? Appeal accepted