2018 PLP 482 (YLR)

ABDUL MAALIK GADDI, J.

Through this appeal, appellant has assailed the legality and propriety of the judgment dated 03.09.2015 passed by learned Special Judge, Anti-Corruption (P) Hyderabad at Dadu in Special Case No.49/2002 emanating from Crime No.21/2000 of P.S. ACE, Dadu for offence under section 409, P.P.C. read with section 5(2) of Prevention of Corruption Act-II of 1947, whereby the appellant was convicted after full-dressed trial and sentenced to suffer R.I. for one year.

2. Succinctly, facts of the prosecution case are that after getting permission from competent authority and necessary approval from Chairman, ACC-III Dadu, the then Circle Officer of ACE, Dadu namely Muhammad Khan Panhwar registered the present FIR on 07.03.2000 at 1330 hours on behalf of the State on the receipt of report from District Food Controller, Dadu bearing No.DFC/DU/1560 dated 21.12.1999, the contents of such report addressed to the Circle Officer, ACE, Dadu (Ex.6/A) is reproduced herewith. "Mr. Altaf Hussain Shah Food Inspector posted as Incharge P.R.C. Sehwan Sharif during the last crop 1998-99 and he was responsible for the shortage and cleans of the stock by him. The stocks stored by him and the quantity misappropriated is as under:-- STOCKS STORED BAGS STOCKS CLEANED BAGS SHORTAGE WEIGHTBAGS AMOUNT INVOLVED 23153 23153 6.100 Tons Rs.54,900/- The above official is responsible for the shortage/quantity misappropriated by him."

3. After registration of above FIR, the then Circle Officer Muhammad Khan Panhwar conducted investigation and after completing investigation, his successor Ayaz Ahmed submitted challan against the appellant before the competent Court of law.

4. Learned trial Court after completing all legal formalities framed charge against the appellant at Ex.2, to which he pleaded not guilty and claimed trial.

5. In order to establish the case, prosecution examined PW-1 Gulshan Ali Solangi, the then Clerk of Food Department, Dadu at Ex.4, PW-2 Muhammad Khan Panhwar, the then Circle Officer at Ex.6, PW-3 Muhammad Yousuf, Superintendent, DFC Office, Dadu at Ex.8, PW-4 Abdul Aziz Abbasi, Head Clerk of DFC Office Dadu at Ex. 10, PW-5 Ayaz Ahmed Pandhiyani, the then Circle Officer at Ex.11. The prosecution given up PW Rafique Ahmed Shahani, Assistant Director, Food being formal witness and PW Agha Haq Nawaz, the then DFC, Dadu. It appears from the record that learned counsel for the appellant has cross-examined the said witnesses and thereafter prosecution close the side vide statement Ex.13.

6. The statement of appellant/accused was recorded under section 342, Cr.P.C. at Ex.14, who denied the allegation of prosecution and claimed himself innocent. However, he has neither examined himself on Oath nor examined any defence witness. Learned trial Court after hearing the arguments of learned counsel for the parties as well as appraising the evidence awarded sentence as mentioned above.

7. Learned counsel for appellant contended that impugned judgment passed by learned trial Court is against the law and facts of the case; that the appellant is innocent and he has falsely been involved in this case by the complainant; that there are material contradictions in the evidence of prosecution witnesses which have not been considered by learned trial Court; that at the time of incident the appellant was Food Inspector posted at Sehwan Sharif and during pendency of the case he has been promoted as Assistant Food Controller and at present he is posted at Hyderabad. According to the appellant, he has already been deposited embezzlement amount of Rs.54,900/-in the National Bank of Pakistan under the account of Food Department as per policy of Food Department and this fact has been evident from the paid challan at page-29 available on the case file. He also argued that wheat of the bags were complete, but the weight of the said bags was short/low. He further submitted that on one hand, he has already deposited the amount of embezzlement with regard to the weight of the powder and on the other hand, he is facing in this case, which amounts to double jeopardy. In support of his contention, he has relied upon the case of Qasim Mahmood v. State (2017 PCr.LJ 463) and prayed for acquittal of the appellant.

8. Learned Addl: P.G appearing on behalf of the State has opposed this appeal by stating that appellant is nominated in the FIR with specific role of shortage of wheat bags, therefore, the learned trial Court has rightly convicted the appellant and the same does not suffer from any infirmity.

9. I have heard the arguments of learned counsel for the appellant and learned Addl. P. G. and have gone through record with their valuable assistance.

10. It appears from the record that the alleged incident took place in the year 1998-99, but the FIR has been registered on 7.3.2000 after the delay of about one year, for which, no satisfactory explanation has been furnished, as such, on this ground alone false implication of the appellant cannot be ruled out. The allegation against the appellant is that at the relevant time, he was Food Inspector posted as Incharge P.R.C. Schwan Sharif during the last crop 1998-99 and he was responsible for the shortage and clean of the stock by him. According to the prosecution, the stocks stored by him and quantity misappropriated by the appellant amounting to Rs.54,900/-. This fact has been denied by the appellant in his statement. It reveals from the record that deficiencies and lapse on the part of the appellant has been compensated by him by depositing the amount of Rs.54,900/-. This fact is evident from the Photostat copy of the paid challan available at page-29 and this fact has been admitted by learned Addl: P.G. It is not the case that wheat of the bags were shortage, but the weight of the said bags was short/low and in this regard he has already deposited the admitted amount of the loss to the government. It is pertinent to mention here that shortage of the weight of the wheat bags and its amount has already been deposited prior to the registration of the FIR on 31.12.1999, this shows bona fide of the appellant. It is surprising to note that when the incident took place, the appellant was Food Inspector and during pendency of the case, he has been promoted as Assistant Food Controller meaning thereby the appellant has a good record/reputation in the Department. As observed above, since the amount with regard to the shortage of loss to the government has already been deposited by the appellant as per policy of the Department, even otherwise, this appellant has been challaned, therefore, this case falls within the definition of double jeopardy, which is not permissible under the law.

11. I have also gone through the evidence so available before me with the assistance of learned Addl: P.G and find that the same is also contradictory on material particulars. The whole case of the prosecution rests upon the evidence of interested witnesses and no independent witness has been cited in the case. There is no expert report available on the record to show that the stocks stored by the appellant and quantity misappropriated amounting to Rs.54,900/-, therefore, this ground also created doubt in the prosecution case. It is settled law that for giving benefit of doubt to the accused, it is not necessary that there should be many circumstances creating doubts, if there is a single circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession, but a matter of right. In this regard, I am supported with case law reported in 1995 SCMR 1345 [Tariq Parvez v. The State] as well as Muhammad Akram v. State [2009 SCMR 230]. As observed above, in this case the evidence so brought on record not only contradictory but the appellant has also already deposited the amount of Rs.54,900/-towards the loss to the government prior to the registration of the FIR. Under such circumstances, the appellant is not responsible for the same.

12. In view of what has been discussed above, I am of the opinion that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt, as admittedly the cost/price of the loss to the government had been deposited by the appellant much prior to the registration of the case. I, therefore, allow this appeal and set aside the impugned judgment passed by the trial Court and acquit the appellant from the charge. The appellant is on bail, his bail bond stands cancelled and surety discharged. JK/A-112/Sindh Appeal allowed.