2020 PLP 132 (YLRN)

MUHAMMAD SALEEM JESSAR, J.

Through this Criminal Appeal appellant has challenged Judgment dated 22.02.2007, handed down by Special Judge, (Central), Hyderabad, in Case No.08 of 1998 (re: State v. Mohammad Yousuf), being outcome of FIR No. 08/1997, registered at Police Station FIA, Hyderabad, under Section 409, P.P.C. read with Section 5(2) of Act-II, 1947, whereby he convicted the appellant for the offences under aforesaid sections and sentenced him to suffer R.I. for two years and to pay fine of Rs.1,15,000/- (Rupees One Lac fifteen thousand only) and in case of default to suffer R.I. for six months more. Concisely, the facts of the prosecution case are that on 05.01.1997, Mohammad Fazal Shahwani, Regional Manager, Utility Stores, Hyderabad had sent a written complaint to Deputy Director FIA, Hyderabad alleging therein that accused Mohammad Yousuf son of Mohammad Bachal, who was in charge of Utility Store Samaro during the period from 15.12.1995 to 24.4.1996 had misappropriated an amount of Rs.1,86,932.40. After receipt of permission from the Director FIA, Karachi Zone vide letter No. KZE/HYD/7/97/ B-6470 dated 03.09.1997 in Enquiry No.8/97 conducted on the report of Regional Manager, Utility Stores, Hyderabad, the said complaint was incorporated in 154, Cr.P.C. Book by FIA authorities on 09.9.1997 being Crime No.8/97. After registration of the case, FIA Inspector Noor Mohammad Kaka conducted investigation and consequent upon his transfer to Karachi, Bashir Ahmed Soomro, FIA Inspector conducted the investigation and put up challan against the accused. A formal charge was framed against the accused on 17.12.1998 to which he pleaded not guilty and claimed to be tried. In order to prove its case, prosecution examined P.W.1 Mohammad Afzal Shahwani, Regional Manager, Utility Stores, Hyderabad at Ex.5, who produced Statement of Store amount as Ex.6 and Letter sent to Deputy Director, FIA Hyderabad dated 6.1.1997 as Ex.7. P.W.2 Mohammad Arif Pathan was examined at Ex.8, who produced photocopy of Store Inventory Control Ledger pages 257 and 260 as Exs.9/1 to 9/5. P.W. 3 Mohammad Aslam Jat, In charge Ware House, Qasimabad was examined at Ex.11, who produced Stock Debit Notes as Exs.12 to 20 respectively. P.W. 4 Mohammad Sabir Qureshi, Ware House In charge (Branch Goods) was examined at Ex.21, who produced Stock Debit Notes as Exs.22 to 28 respectively. Thereafter, an application, Ex.29, was moved by learned PP for recalling P.W.4 Mohammad Sabir Qureshi which was allowed. P.W. 5 Mohammad Akram Qureshi, In charge Sub-Ware House, Mirpurkhas was examined at Ex.30, who produced Stock Debit Notes as Ex.31 to Ex.45 respectively and Credit Note No.69045 relating to return of two articles by accused as Ex.46. P.W. 6 Bashir Ahmed Soomro, FIA Inspector was examined at Ex.47, who produced FIR as Ex.48, whereas P.W.7 Noor Mohammad Kaka, FIA Inspector was examined at Ex.49, who produced Sanction Order as Ex.50. Thereafter, vide Ex.51 prosecution side was closed. Thereafter, an application under section 540, Cr.P.C. was moved by learned PP for summong Zulfiqar Ali ASM and Muzaffar Ali ASM which was allowed on 08.02.2000. Another application was also moved vide Ex.53 by learned PP stating therein that the statements of Zulfiqar Ali ASM and Muzaffar Ali ASM were not recorded by the I.O. therefore, he again closed prosecution side. Statement of the accused was recorded under section 342, Cr.P.C. wherein, while admitting certain factual aspects about his posting as Incharge, Utility Store Samaro during the relevant period etc., he denied shortage of stock worth Rs.1,86,932.40/- and misappropria-tion of the said stock/amount by him. He further stated that his bill to the tune of Rs.73,000/- was not deducted from the original shortage, while Rs.56,000/- were paid by him in cash and its receipt had been produced as Ex.10. He also paid Rs.23,000/- to cashir of warehouse. However, neither he examined himself on oath, nor produced any witness in his defence. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, trial Court vide impugned judgment convicted and sentenced the appellant/accused as stated above. Against the said judgment appellant has preferred instant criminal appeal. I have heard learned counsel for the appellant as well as learned Assistant Attorney General Pakistan appearing for the State and perused the material available on the record. Learned counsel for the appellant submitted that the accused/appellant has been falsely implicated in the instant case. He contended that there is no direct evidence against the appellant to the effect that he embezzled the amount in question. According to him, there are contradictions in the evidence of the prosecution witnesses. He further contended that there is inordinate delay in lodging the FIR therefore possibility of false implication of the accused cannot be ruled out. He further contended that the prosecution has failed to prove that the alleged embezzled amount was used by the accused/ appellant for himself, therefore, prosecution has failed to prove its case against the accused/appellant beyond shadow of reasonable doubt, as required under the law. He prayed for allowing the appeal and acquittal of the appellant from the charges. On the other hand, learned Assistant Attorney General for Pakistan, appearing for the State opposed the appeal and submitted that all the prosecution witnesses have implicated the appellant in the commission of the alleged offences. According to him, there is no illegality or infirmity in the impugned judgment, which requires interference by this Court. He further submitted that the appellant has impliedly admitted his guilt in his statement under section 342, Cr.P.C. He prayed for dismissal of the appeal and maintaining the impugned judgment. From the perusal of the contents of the FIR it appears that the FIR was registered on 9th September, 1997 whereas the offence is alleged to have been committed by the accused/appellant during the period 15.12.1995 to 26.6.1996, thus there is delay of more than 14 months. Even counting the period from the date of moving the complaint by the Regional Manager, Utility Stores Corporation, Hyderabad on 5th January. 1997, it seems that even then there is delay of more than eight months. However, very strangely, in the FIR against the column "Date and hour of occurrence" it has wrongly been mentioned "09-09-1997" as the same is opposed to the contents of the FIR itself. In the case reported as Ayub Masih v. The State (PLD 2002 SC 1048) Honourable Supreme Court held as under; "The unexplained delay in lodging the FIR coupled with the presence of the elders of the area at the time of recording of FIR leads to the inescapable conclusion that the FIR was recorded after consultation and deliberation. The possibility of fabrication of a story and false implication thus cannot be excluded altogether. Unexplained inordinate delay in lodging the FIR is an intriguing circumstance which tarnishes the authenticity of the casts a cloud of doubt on the entire prosecution case and is to be taken into consideration while evaluating the prosecution evidence. It is true that unexplained delay in lodging the FIR is not fatal by itself and is immaterial when the prosecution evidence is strong enough to sustain conviction but it becomes significant where the prosecution evidence and other circumstances of the case tend to tilt the balance in favour of the accused." In another case reported as Syed Altaf Hussain Shah v. State (2018 YLR 482 Karachi) this Court while dealing with a case relating Sections 409, P.P.C. and 5(2) of Act-II, 1947, held that on account of delay of about one year in lodging the FIR without furnishing satisfactory explanation for such delay, false implication of the accused cannot be rule out. It seems that the accused/ appellant in his statement under section 342, Cr.P.C. took the plea that he had returned an amount of Rs.73,000/- to the Utility Stores Authorities. Learned trial Court vide Order dated 11.12.2006, available at page 103 of the Paper Book, directed the Utility Store authorities to explain their position with regard to return of the aforesaid amount by the accused. Accordingly, vide letter dated 20.12.2006 duly signed by the Account Officer, USC, Hyderabad, available at page 104 of the Paper Book, confirmed that the accused had returned the said amount and after deducting the said amount, remaining amount allegedly recoverable from the accused was Rs.1,13,192,61/-. In the case reported as Syed Altaf Hussain Shah v. State reported in 2018 YLR 482 Karachi in similar circumstances, where the accused had deposited the embezzled amount, this Court allowed criminal appeal filed by the accused against his conviction and acquitted him from the charge, holding that accused had already deposited embezzled amount in the Bank in the account of the department as per policy of the department. It was further held that record showed that deficiencies and lapse on the part of the accused had been compensated by him by depositing amount of Rs.54,900/- in the government account prior to registration of the FIR, which showed bona fide of the accused and since the amount with regard to the shortage or loss to the government had already been deposited by the accused as per policy of the department, even then the accused had been challaned, therefore, his case had fallen within the definition of double jeopardy, which was not permissible under the law. In the instant case too, accused had deposited the aforesaid amount prior to registration of FIR against him. Another worth-importance point in the instant case is that the learned trial Court while convicting the accused/ appellant has mainly relied upon certain admissions made by him in his statement under section 342, Cr.P.C. instead of discussing the evidence of prosecution witnesses. From the perusal of the impugned judgment it transpires that the judgment is consisting of 10 pages out of which in seven pages till para No.24 facts of the case and the contents of the evidence of prosecution witnesses, without any discussion, are narrated, whereas paras 25 to para 28 at page 8 relate to the statement of accused under section 342, Cr.P.C. It would be advantageous to reproduce hereunder para 30 from the impugned judgment, which goes to say as under:-- "After scrutinizing the evidence available on the record, particularly the statement of accused under section 342, Cr.P.C., I have come to the conclusion that the prosecution has proved the case beyond any reasonable doubt, hence the points replied as proved." Needless to emphasize that prosecution is duty-bound to prove the case against the accused beyond shadow of any reasonable doubt and without doing so, it cannot take benefit of weakness of the defence side for proving its case. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In the case reported as Wazir Mohammad v. The State (1992 SCMR 1134) it was held by Honourable Supreme Court as under:-- "In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution." In another case reported as Shamoon alias Shamma v. The State (1995 SCMR 1377) it was held by Honourable Supreme Court as under:-- "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case.......Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise." In view of above discussion, it can safely be held that prosecution has not succeeded in proving its case against the accused/appellants beyond shadow of reasonable doubt. Needless to emphasize the well settled principle of law that the accused is entitled to be extended benefit of doubt as a matter of right and not as a grace or concession. In the present case, there are various contradictions in the evidence of the prosecution witnesses which create doubts in the prosecution case. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story. In the case reported as Tariq Pervaiz v. The State 1995 SCMR 1345 the Honourable Supreme Court held as under:-- "The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a 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 as a matter of right." For the aforesaid reasons, by a short order dated 04.11.2019 instant Criminal Appeal was allowed and the impugned judgment dated 22.02.2007, handed down by Special Judge, (Central), Hyderabad, in Case No. 08 of 1998 (re: State v. Mohammad Yousuf), being outcome of FIR No.08/1997, registered at Police Station FIA, Hyderabad, under section 409, P.P.C. read with section 5(2) of Act-II, 1947 was set-aside and appellant Mohammad Yousuf was acquitted of the charges and was directed to be released forthwith if not required in any other custody case. Above are the reasons for the said short order. JK/M-103/Sindh Appeal accepted.