1997 PLP 468 (PCRLJ)

Ans. I am innocent. I am not responsible for any loss of wheat. I strongly protested at the time of taking ever the charge of the wheat at P.R. Centre, Basti Malook. The whole lot of wheat was purchased by official Zubair Ahmad Bhatti. I held the charge under compulsion and with reluctance. I, have variously reported the matter i.e. fortnight to the Department with regard to deteriorating condition of the wheat stock i.e. S.I. I have also been writing to the D.F.C. to depute a proper contractor for transportation and handling and for clearance of the stock but no proper arrangement for the same was made by the Department that a false case was registered against me on the wrong premises. As in the end a quantity of 272.825 M. Ton' of wheat was auctioned by the Department and in this way no shortage of wheat stock was proved against me. It is further submitted that no samples of damaged wheat or any wheat and so-called mixing in dust, husk sugar-cane crush were taken. The bidder namely Shaukat Ali son of Qutab Din lifted the whole stock without referring any loss or shortage of wheat." Learned counsel also argued that Munawar Ahmad (D.W.1) who was a Senior Clerk in the Office .of D.F.C., Multan, admitted that EXh.D.W.I/1 to EXh.D.W.1/24 are the office copies of the letters sent by the appellant which were correct according to his register. EXh.D.W.I/25 was a copy of the challan sheet for the sum of Rs.15,000 which was pertaining to t he auction of 272.82$ tons of wheat. From 1-8-1988 to 31-7-1989 tenders were called for transportation of the wheat but nobody offered any bid for that purpose and that the storing capacity of the godown of Basti Malook- of 1000 M. Ton is equal to 10,000 bags and at the relevant time 1327.590 M. Ton of wheat was stored in that godown.

4. Learned State Counsel has submitted that the prosecution case stands fully proved and the appellant was rightly convicted by the learned trial Court.

5. I have carefully perused the record as well as the impugned judgment.

6. Both the parties produced oral and documentary evidence on record. F.I.R. is Exh. P.W 7/A, the recovery memo. is Exh. P.W.I/A. The report about the stock is Exh. P.1 and in the column in Urdu the quantity of wheat is shown as 279.825 M. Ton and in column (D) it is written as 272.825 and in column it is written as:--` Exh.P.2 and Exh.P.3 are documents showing the quantity of wheat. Exh.P.4 is the statement of showing S.F.26 for the scheme 1987-88, EXh.P.5 is the sanction order to prosecute the appellant from the Commissioner, Multan Division, Multan. The appellant also produced documents Exh.D.W.I/1 to Exh.7p.W.l/24 in support of his case.

7. Munawar Ahmad Sheikh (P.W.1), Senior Clerk, D.F.C. Office, Multan joined the investigation. He produced GP.V (Exh. P.1) dated 31-3 1989. It bears the signatures of Salim Iqbal appellant. He also produced SF.26 No.23/799 (Exh.P.2), with its carbon copy Exh.P.3 and consolidated statement (Exh.P.4). All these documents bear the signatures of the accused, which were taken into possession vide memo. Exh. P.W.I/A and according to him Rao Rounaq Ali also signed the same. P.W.2 Sajjad Hussain Shah Retired Food Inspector also joined police investigation. He constituted a Supervisory Committee in January, 1989 for the despatch of the wheat from Basti Malook Centre for the scheme 1987-88. He was a member of that Committee. Iqbal Salim appellant, according to his statement, was Incharge of that centre. The accused himself got the work of filling done and despatched the wheat after the office hours, therefore, he could not supervise the field work of the wheat although it was necessary for the accused to .get the work of filling done in their presence. Malik Hussain Bakhsh was the Head of Supervisory Committee. He inspected the Centre and in his presence and that of D.F.C. Bashir Ali weightment was done and the average of ten bags of wheat was found 35 Kg. per bag. The weight of one bag should have been 101.051 including the weight of gunny bag, which is 8.050. The shortage was found 272.00 M. Ton and the appellant has shown this wheat as damaged without justification and wrongly. This witness was cross-examined at length. He admitted that he did not remember on what date he was appointed member of the Supervisory Committee and that it was necessary that the despatch of the wheat was to be done under the supervision of the Supervisory Committee. He also admitted that he could not tell number of bags out of which the samples were taken, and that he did not know whether the D.F.C. prepared any inspection note after visiting the spot or not. He also did not know whether damage had been properly done or not before placing wheat in the godown, and that he also did not know whether the appellant had made reports occasionally to the department that the proper damage had not been done and for that reason damage had been caused to the wheat. He also admitted that he did not now whether the appellant had been reporting to the higher authorities that no regular contractor for carriage had been appointed. He also admitted that it was Chowkidar who told us that the appellant had been despatching the wheat after working hours. However, he denied that there was no shortage mixing of dust, husk, sugar-cane crush or any shortage of wheat and that the wheat was damaged due to moisture. P.W,3 Zubair Ahmad Bhatti, Retired Food Inspector deposed that he remained at the godown uptil 6-10-1987 and the appellant after his retirement physically took over the charge. In cross-examination he admitted that he did not remember how much wheat was given by him to the appellant when he handed over the charge. He also admitted that the wheat was being purchased even during his tenure and he had stored the wheat in the godown under the orders of the competent Authority and that no dunnage was done at the time of storing the wheat in the godown because the Government did not provide the same. According to him if the godowns are old the dunnage is not needed; in case of new godowns the dunnage is must. According to him the instant godown was new and it was for the first time the wheat was stored there. He also admitted that he put some chuff underneath the wheat out of his own pocket but that was not effective, and that he could not say that the damage to the what was caused due to the absence of the dunnage. He deposed that he also stored the stocks while giving pad walls in the godown and the wheat was stored in the centre in bulk, the godowns are constructed east-west with dividing walls. He said that he cannot say that there was likelihood of damage caused to the wheat lying in such like godowns, when he handed over the charge to the appellant- the stock was quite good. 7000 bags of wheat were lying in open because he did not rely on the position of the godown to sotre the whole of the wheat there and the capacity of the godowns did not admit the same. However, he denied that he took retirement due to damage caused to the wheat. P.W.4 Ch. Bashir Ali, D.F.C., Sahiwal deposed that on 17-7-1988, he was posted as D.F.C., Multan and thereafter on 15-4-1989 he wrote a Letter No.3750 to the Additional Director, A.C.E., Multan (Exh.P.W.4/A) for the registration of a case against the accused who was Foodgrain Supervisor and Incharge of P.R. Centre Basti Malook. He took charge of 1327.590 M. Ton of wheat from Zubaid Ahmad Bhatti, Inspector and thereafter the appellant did not despatch/locally consumed any of the stock and on his suspicion that the stock had not been despatched properly, he directed the appellant to despatch the stock and to dispose of the same. Despite his direction the stock was not fully cleared and the appellant was found usually absent from the Centre, therefore, a team was constituted for the clearance of the stock in presence of the appellant. It was found that 272.825 M. Tons of wheat as damage but actually the damaged wheat was not to this extent and the appellant had adulterated dust, husk and sugarcane crush into the stock shown as damaged and -actually some -wheat stock was misappropriated by the accused. The husk and sugar-cane crush was adulterated in the wheat in order to make up the quantity, and to fulfill the number of bags for camouflaging the misappropriation done by the appellant. In this way the appellant caused loss of Rs.7,31,258 to the Government by misappropriating the wheat stock mentioned above. In cross-examination he submitted that he had prepared an inspection report. He reported the matter after investigation and inspection by himself. The matter was reported firstly to the Deputy Director and on his direction he wrote for the registration of the case. He took the weighment of 8/ 10 bags when he inspected the Centre -after the report of Supervisory Team. These bags were of 30/40 Kg. in weight. All these bags had been adulterated and only 8/10 bags were got weighed. For the despatch of wheat stock from Basti Malook Centre he had engaged a contractor. He had also arranged and contracted Mill owners to take as local sale stock from Basti Malook Centre. The Mill Owners were from Multan and they used to take stock of wheat from the Centres of Duniapur, Basti Malook and other P.R. Centres of Multan District. He do not know whether the damaged stock 272.825 M. Tons was disposed of by the D.F.C., Multan. P.W.5 is Nasir Khan, Inspector Foodgrains. He submitted that in the year 1989 he was Member of the Supervisory Committee and Iqbal Salim appellant was Incharge of the Centre and in his presence weighment was done and wheat was found short in the godown. In cross-examination he admitted that he refused to take over the charge for the reason that it was a new godown and no medicine was used for preservation of wheat and, therefore, he took leave, from the Department on medical ground. He also showed his ignorance whether any contract was done between the Food Department and contractor for carrying the wheat. The Inspection Team ordered the appellant for shifting of wheat from godown to Multan, and they used to visit the centre quite often He also held it correct that time and again the appellant requested the Inspection Team that the contract was not sanctioned one as such he was unable to shift wheat to Multan, and that the Incharge of the Supervisory Committee did not pass on the request of the appellant to the higher authorities, and Hussain Bux, A.F.C. oftenly requested D.F.C. for this purpose. The then D.F.C. and Inspection Team weighed about 6 bags of wheat. When the bags were opened it could not be detected that the wheat was damaged and the missing could be certified by sending samples for analyse. There were about 2700 bags of wheat stored at P.R. Centre, Basti Malook but those were short of correct weight. After damage the weight of wheat decreases. The D.F.C. prepared the inspection report. He admitted that the signatures of the incharge of the P.R. Centre are obtained by the Authorised Officer on the inspection report. P.W.6 Hussain Bakhsh A.F.C. Shujabad supported the statement given by other P.Ws. However, in the cross-examination he admitted that he never inspected P.R. Centre, Basti Malook. He had not seen the appellant mixing' dust with the wheat. He do not remember the exact number of the bags of wheat damaged. He had not sent any sample of damaged wheat to the analyst. The D.F.C. had checked from 7 to 10 damaged bags of wheat. There had been dispute over 1080 bags of wheat between him and the appellant. However, he denied that the said bags had been received by him because they were damaged. P.W.7 Malik Dur Muhammad was posted as A.D.I. on 19-4-1989. On the basis of complaint Exh.P.W.4/A, he drafted F.I.R. vide Exh.P.W.7/A. On 1-7-1989 he took into possession documents, Exh. P.1 to Exh.P.4 vide recovery memo. Exh. P.W.I/A. He recorded statement of P.Ws. and joined the appellant in the investigation after obtaining sanction order Exh.P.5 and submitted the challan. He also admitted that he had never visited the Centre Basti Malook and has not sent any sample to analyst. P.W.8 is Malik Muhammad Shafi, D.F.C. In examination-in-chief he submitted that he had been checking P.R. Centre, Basti Malook and he had found stock in bulk. There was no infestation in the stock and found that there was no loss in the stock of wheat. He had not observed any other technical fault, which might have caused loss to the stock. In cross-examination he deposed that IV did not know that during the period of his posting, the date on which he had visited the centre and that there had been arrangement of carriage contractor at the said centre. He had not tampered with the record maintained at the Centre nor committed any theft of wheat.

7. Article 117 of the Qanun-e-Shahadat, 1984 places the burden about the existence of any fact on the person who under duty of law has to prove the existence of that fact and who asserts the same must prove that those facts existed. The appellant faced trial under section 409, P.P.C. and the definition of the offence of misappropriation and the ingredients of the offence under section 405, P.P.C. when any person who in any manner is entrusted with the 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, or 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". The appellant produced Munawar Ahmad, Senior Clerk as D.W.1. He fully supported the version of the appellant. EXh.D.W.I/19 is the statement showing condition of Wheat Stock Scheme 1987-88 P.R. Centre Basti Malook from I-6-1988 to 15-6-1988.-The remarks column of the-same is reproduced as under:-- Learned counsel also referred to Exh. D.W 120 which is statement showing condition of Wheat Stock Scheme 1987-88 P.R. Centre, Basti Malook from 16-6-1988 to 30-6-1988 showing quantity of stores 718.790 + 305.630 = 1024.420 as on 30-6-1988. The remarks column of it reads as under:-- "It has been reported several times that the condition of Wheat Stocks Scheme 1987-88 at this centre is in very adverse condition. The wheat stocks are losing weight day by day due to heavy attack of Susre and Khapra. Who will be responsible for the shortage of stocks. Not a single tablet of fumiganto has yet been provided during the period of one year and 2 months."

8. Same is the position of EXh.D.W.l/21 to Exh.D.W.l/24

9. After reading the whole evidence I have found that at no stage the prosecution was able to attract the provisions of sections 405 and 409, P.P.C. to enable the trial Court to sentence the appellant. The Court has to look into several pieces of incriminating evidence and also has to keep in view the cumulative effect of the evidence produced by the prosecution and has to see whether the prosecution has proved the guilt of the accused beyond reasonable doubt or not. The impression which is gathered from the total prosecution evidence is about the damage of wheat and even the question which was put' forward to the accused under section 342 is also about the damage of wheat anti not misappropriation of wheat. How much quantity was misappropriated by the appellant and was converted to his own use, there is no prosecution evidence on this point: The allegation levelled against the appellant is about the misappropriation of wheat weighing 272.825 which stands auctioned and that auction was admitted. by the prosecution witnesses. Therefore, the instant judgment suffers from infirmity of law and is hereby set aside. The appeal is accepted, conviction and sentence as well as the fine are hereby set aside and the appellant is acquitted. He shall be released forthwith if not required in any other case. N.H.Q./M-229/L Appeal accepted