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Petitioner: MUHAMMAD SADIQ VS Respondent: StateHonorable Justice Muhammad Akram BaituMuhammad Arif Alvi,Tanvir Haider Buzdar
2005 M L D 219
2005 M L D 219
[Lahore]
Before Muhammad Akram Baitu, J
MUHAMMAD SADIQ‑‑‑Appellant
Versus
THE STATE‑‑‑Respondent
Crl. Appeal No.73 of 2003, heard on 24th September, 2003.
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss.409/420/467/468/471‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Appreciation of evidence‑‑‑Out of twelve prosecution witnesses, three had been declared hostile by prosecution during trial, whereas testimony of remaining prosecution witnesses, was not in any way sufficient to prove case against accused‑‑‑No loss had occurred to District Council concerned and loss if any was caused to contractor whose name was not included in the calendar of witnesses‑‑‑By non producing said contractor as prosecution witness, adverse inference could be drawn against prosecution case‑‑‑Prosecution having failed to bring home charge against accused beyond any shadow of doubt, impugned conviction and sentence awarded to accused by Trial Court were set aside and he was acquitted of charge by giving him benefit of doubt.
2001 SCMR 56 ref.
Muhammad Arif Alvi for Appellant.
Tanvir Haider Buzdar for the State.
Date of hearing: 24th September, 2003.
JUDGMENT
Through this appeal, the appellant has called in question the validity of his conviction and sentence dated 25‑1‑2003 passed by Mian Sajjad Ahmad Chawan, learned Special Judge Anti‑Corruption, Multan whereby the appellant was convicted under section 409, P.P.C. read with sections 5(2) and 47, P.C.A. for a period of seven years R.I. with a fine of Rs.59,000 in case of default further undergo for a period of one year S.‑I. The appellant was given benefit of section 382‑B, Cr.P.C.
2. Briefly narrated the facts of the prosecution case giving rise to this appeal are that a case against the appellant was initiated on the complaint of A.C. Lodhran to this effect that the Tehsildar Lodhran vide his Letter No.502 dated 20‑6‑1997 reported that the appellant while posted at Sikandar Wala, Tehsil Lodhran, presently serving as Consolidation Patwari, had embezzled District Council fee and mutation fee amounting to Rs.1,01,400 whereupon a show‑cause notice was issued to explain as to why case against him should not be got registered and his reply to the show‑cause notice was not found satisfactory. Consequently a case under sections, 420/409/467/468/471 read with sections 5(2) and 47, P.C.A. was registered against the accused appellant and after due investigation he was challaned.
3. At the trial the lower Court framed a formal charge under section 409, P.P.C. read with section 5(2) and 47 P.C.A. against the accused to which he pleaded not guilty and claimed for trial.
4. In order to bring home the charges against the appellant, the prosecution produced as many as twelve witnesses. However the accused did not produce any witnesses in his defence. In his statement recorded under section 342, Cr.P.C. he denied the commission of crime charged.
5. Consequently the learned trial Court upon believing the prosecution evidence ventured to pass the impugned conviction and sentence against the appellant by way of passing the impugned judgment; hence this appeal.
6. Arguments heard. Record perused.
7. The learned counsel for the appellant by way of challenging the impugned conviction and sentence awarded to the appellant by the learned trial Court raised the following please
(i) that the impugned conviction and sentence passed by the learned lower Court suffers from illegality;
(ii) that the testimony of the P.Ws. produced by the prosecution is full of the contradiction and discrepancies;
(iii) that the prosecution has miserably failed to bring home the charge against the accused beyond any shadow of doubt.
8. I now deal with the contentions raised by the learned counsel for the appellant in the light of the material available on record. Although the prosecution produced as many as twelve witnesses in order to bring home the charge against the appellant yet the fact remains that out of them Jinwadda P.W.1 Nathu P.W.2 and Allah Wasayia P.W.4 have been A declared hostile by the prosecution during the trial, whereas testimony of the remaining P.Ws. produced by the prosecution in my view is not in any way sufficient to prove the case of the prosecution against the appellant. For example Khizar Hayat while appearing as P.W.3 in cross examination and Sajid Mahmood P.W.6 in his examination‑in‑Chief have categorically deposed that the collection of the District Council fee was on lease with the Contractor who used to collect the same. P.W.6 however further deposed that since the District Council fee was lease out to the lessee who had deposited the amount but, I do not know how much amount has been received by the accused: Ch. Barkat Ail C.O. A.C.E. (P.W.9) had deposed that it is true that collection of the District Council fee was on lease. Similarly Aslam Khan Niazi, Inspector, FIA (P.W.11) deposed that it is correct that during that period collection of the District Council fee was on contract.
9. The learned counsel for the appellant during the course of his arguments has drawn my attention towards the fact that the whole amounts of the District Council have been realized from the contractor. There is no denying the fact that during the relevant period the collection of the District Council fee was on contract and the contractor had to collect the same and then had to pay the same to the District Council. This fact further finds support from letter (Exh.P.E.) issued by the Circle Officer of the prosecution department to the Chief Officer, District Council, Lodhran to this effect that the Contractor had already paid fee of the mutation pertaining to the years 1993‑94, 1994‑95, 1995‑96. Further more vide Exh.P.F. Chief Officer, District Council Lodhran had informed the Circle Officer of the department that all the arrears pertaining to the years 1993‑94, 1994‑95, 1995‑96 have been received from the Contractor. There no loss has occurred to the District Council. Loss if any was of the Contractor to which the prosecution miserably failed to put his name in the calendar of witnesses and by way, of non‑producing him as P.W. adverse inferences can be drawn against the prosecution case. In view of the above discussion, it evinces from the record that the contractor had already deposited the whole dues to the District Council, Lodhran as per contract. It is also worth mentioning that at the time of examination of the accused under section 342, Cr.P.C. incriminating circumstances has not put to the appellant to this effect that he had received an amount of Rs.16,000 from Noor Muhammad. Legally speaking the statement of the said P.W. to this effect can be made basis for his conviction as such the prosecution had not put the said incriminating piece of evidence to the appellant for reply under section 342, Cr.P.C. The same will not be considered as a piece of evidence against him. In this respect the reliance is placed on 2001 SCMR 56.
10. In view of what has been discussed above, all the pleas raised by the learned counsel for the appellant are held good.
11. The upshot of the above discussion is that the prosecution in my view has miserably failed to bring home the charge against the appellant beyond any shadow of doubt. Consequently the appeal is accepted, the impugned conviction and sentence ‑ awarded to the appellant by the learned trial Court is set aside and the appellant is acquitted of the charge framed against him by giving him the benefit of doubt.
H.B.T./M‑723/L Appeal accepted.