2015 PLP 1592 (YLR)

MUHAMMAD ALAM, J.

Judgment/order dated 26-4-2013 has been challenged through this appeal. Through impugned order learned trial court acquitted the respondent/accused. Feeling aggrieved from the same appellant/complainant filed this criminal appeal.

2. FIR No.2/95 was chalked in the Police Station of FIA accusing the respondent/accused for misappropriation of goods of the Civil Supply Department, hereunder referred as department. In the FIR, the complainant, accused respondent/ accused that he, who is transporter of the goods of the Department was handed over different goods of Department for carrying and delivering the same at different places. So happened at different times and respondent/accused did not carry the goods of the department at the times and dates mentioned in the FIR as well as in the challan. Respondent/accused obtained the goods from the bulk store of the Department at Skardu but did not deliver the same at the different destinations. The police of FIA completed investigation and submitted challan in the trial court for trial of respondent/accused. Respondent/accused pleaded not guilty when charged, therefore, trial commenced.

3. In the trial proceedings, prosecution produced 18 P.Ws. as oral evidence in proof of guilt of accused. Prosecution got exhibited a number of documents as documentary evidence. Every criminal case has its own peculiarity and the case in hand is peculiar in nature on many aspects. The offence alleged against respondent/accused pertains to mis-appropriation of material or goods that admittedly respondent/accused was bound to transport from bulk stores of the Department to remote parts of the area. The respondent/accused is admittedly a contractor and has admittedly entered into an agreement with the Department for transporting the material of the said department to the remote parts of the area. So the reading of prosecution evidence against the respondent/accused is quite different from reading the prosecution evidence in normal criminal cases. It is also an admitted fact that the prosecution agency, who has conducted the investigation of the case has to adopt special modes for collection of the prosecution evidence. The law governing or regulating investigation in corruption cases is special. The learned trial court has acted as the Judge Anti-corruption. So almost all the things are special and must have been dealt as special and peculiar. In the case in hand learned trial court has applied the normal mode of reading of prosecution evidence.

4. I have gone through the file with the assistance of the learned counsel for parties and have heard arguments. In the case in hand the impugned order is worth perusal, particularly the appraisal of evidence part of the judgment. For ready reference I reproduce the appraisal of evidence part of the impugned judgment/ order hereunder:-- "As per FIR accused received 80 bags wheat weighing 8000 KG on 2-10-1994 vide voucher No.46765, 300 bags wheat weighing 30000 KG on 8-11-1994 vide voucher valuing Rs.381,189.40 and 20 bags atta weighing 1700 KG on 5-10-1994 vide voucher No.46581 worth 17505.01 from bulk depot Skardu for Ghowari. Accused also receied atta 196 bags weighing 16660 KG worth Rs.171,519.70 on 7-10-1994 vide voucher No.46579, atta 80 bags weighing 6800 KG worth Rs.70008.04 on 2-10-1994 vide voucher No.46576 and wheat 222 bags weighing 22200 KG worth Rs.222,694.86 vide voucher No. and dated nil from bulk depot Skardu to Shigar. Accused also received wheat 358 bags weighing 35803 valuing 343331.39 voucher and dated nil from bulk depot Juglote to Mini Marag but did not deliver the above stock to contracted stations and mis-appropriated commodities worth Rs.1,206,225,

40. Out of this amount he has deposited Rs.132,594 with Civil Supply Office Skardu. Outstanding dues of accused against department in shape of carriage charges and security deposit are Rs.408,418.6. After adjustment of this amount Rs.665,212.64 are still outstanding against him. All stock registers, vouchers, challans and other documents shown in recovery memos Exh. P.W. 7/A, Exh. P.W. 1/A, Exh.P.W.8/A and B, Exh.P.W.9/A and Exh.P.W.13/A are not available on judicial record showing that the commodities alleged to have been embezzled by the accused were issued to him from bulk depot Skardu and Juglote for transportation to bulk depot Shigar, Ghowari and Mini Marag which he did not deliver to contracted stations. The IO not bothered to place these vouchers, challans and stock registers on judicial record nor the same were get exhibited during prosecution evidence. Mere recovery memos are not sufficient to prove guilt of accused without producing the relevant documents and without having been exhibited during prosecution evidence. Conviction cannot be recorded against the accused mere on verbal allegations regarding mis-appropriation of commodities. All documents taken into custody during investigation ought to have been made part of judicial record and should have been marked exhibit by the court during prosecution evidence. Failing to do so on the part of prosecution has weakened prosecution case. From which it can be inferred easily that investigation as well as prosecution of the case was not conducted properly. Moreover FIA case are being suffered for want of full time Prosecutor. A full time prosecutor is needed to be appointed for better prosecution of FIA cases. Statement of PWs recorded under section 161, Cr.P.C. are also not available on judicial record to confront with statement of PWs recorded in the court during trial. The lacunas pointed out above are of serious nature, not curable and fatal to prosecution case."

5. From plain perusal of appraisal of evidence part of prosecution evidence, it is evident that the learned trial court has acquitted respondent/accused on the grounds that appellant did not get some document exhibited or not filed some important documents. This view of the learned trial court is wrong because the trial court was bound to either accept the available evidence in proof of guilt of accused or discard the same. While giving findings on accepting the prosecution evidence or discarding the same the learned trial court was bound to refer the relevant law of evidence on basis of which the prosecution evidence is being accepted or discarded. In the case in hand it is very important to note that prosecution has produced evidence showing that the goods of the Department were handed over to the respondent/accused for carrying the same to the targeted destinations at different times. It is also not disputed that respondent/ accused has accepted the responsibility of carrying the goods of Department to different destinations as contractor of the said department. In my opinion once it is proved that respondent/accused received the goods of the Department for carrying the same to different destinations, it was duty of the respondent/accused to establish that he carried the same goods and delivered the same in the targeted destinations. In this connection the contractor or transporter i.e. respondent/accused are normally given a receipt, acknowledging receipt thereof as and when the goods or material is received by the representative of the Department on the targeted destinations. In the case in hand learned trial court has acquitted the respondent/accused on basis of defects in the prosecution evidence or on basis of defects in the mode of investigation, while courts are supposed to acquit or convict the accused on the basis of prosecution evidence. In the case in hand proof of delivery of different goods of Department to the respondent/accused is strong piece of evidence that the learned trial court has not bothered even to take up for discussion. So the question for the trial court was whether he could record conviction of the respondent/accused on the basis of said piece of evidence. Otherwise also impugned order is evidently result of misreading of evidence as there are many pieces of evidence, particularly oral evidence, that has been brushed aside by the learned trial court. It is very important to note that the learned trial court, if had reached to the conclusion that there are defects in manner of collection or production of prosecution evidence, the court is not helpless and instead of issuing directions for correction of such defects the trial court gave benefit to the respondent/accused.

6. I therefore, exercising my supervisory powers condone the delay in filing the appeal. Impugned order set aside. Respondent/accused to furnish fresh bail bonds in sum of Rs.10,00,000 with the two sound sureties, each in the like amount to satisfaction of trial court. Learned trial court is directed to require the respondent/ accused for furnishing the bonds in the above terms and conditions. Any other bond, if any, be treated as non existent. In case of failure of the respondent/accused for furnishing the above bonds he should be sent to judicial lock up. Learned trial court to hear parties and pass fresh orders in the light of material available on record or even to seek fresh evidence, if so required from either of the parties. Case remanded to the trial court with the above remarks/ observations. Appeal partly accepted in the above remarks and observations. This file be consigned to record. HBT/73/GB Order accordingl