Full Judgment Text & Judicial Ruling

2022 Y L R Note 147 [Sindh (Sukkur Bench)] Before Muhammad Saleem Jessar, J ZAKIR ALI---Appellant Versus The STATE---Respondent Criminal Appeal No. S-37 of 2013, decided on 4th November, 2021. (a) Penal Code (XLV of 1860)--- ----Ss. 409, 201, 218 & 468---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust by public servant, forgery for purpose of cheating, causing disappearance of evidence, public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture, embezzlement by government employee---Appreciation of evidence---Benefit of doubt---Accused was charged for misappropriating government wheat valued at Rs. 20,80,250/- and caused wrongful loss to the Government and obtained wrongful gain by preparing forged documents / record--- Record showed that C.O. ACE/witness, in his cross-examination, admitted that in raid report the name of accused was not mentioned---Contents of the FIR showed that, it had been mentioned therein that accused in connivance with the then District Food Controllers, misappropriated 1834 wheat bags valued at Rs.20,63,250/- and 340 empty bags valued at Rs.17000/---Question was as to why said District Food Controllers had not been arrayed as accused persons and rather they were let-off without disclosing any plausible justification---Not only that, even said District Food Controllers had not been made witnesses in the case, nor even their statements were recorded by the Investigating Officer---Said fact smacked something fishy on the part of Investigating Agency---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss. 409, 201, 218 & 468---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust by public servant, forgery for purpose of cheating, causing disappearance of evidence, public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture, embezzlement by government employee---Appreciation of evidence---Benefit of doubt---Delay of five months in lodging FIR---Scope---Accused was charged for misappropriating government wheat viz. 1834 bags valued at Rs.20,80,250/- and causing wrongful loss to the Government and obtaining wrongful gain by preparing forged documents/record---Inordinate delay of about five months in the lodging of FIR as the raid was allegedly conducted by the then Civil Judge and Judicial Magistrate upon the directions of the then Sessions Judge, whereas FIR was got registered after a delay of about five months---No explanation had been furnished by the prosecution for such an inordinate delay---Said fact created doubt regarding involvement of the accused in the commission of alleged offence, whereas it had been clearly mentioned in the FIR that accused had committed offence of misappropriation of 1834 wheat bags valued at Rs. 20,63,250/- and 340 empty bags valued at Rs.17000/-, in connivance with the then District Food Controllers---Even the Judicial Magistrate, who had conducted raid, had also specifically stated that the said two Food Controllers had committed the alleged offence, despite that said Food Controllers had been let-off without disclosing any plausible justification---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances. Najaf Ali v. The State 2021 YLR Note 86; Syed Altaf Hussain Shah v. The State 2018 YLR 482; Muhammad Yousuf v. The State 2020 YLR Note 132; Abdul Karim Kumbhar v. The State 2021 YLR Note 10 and Imtiaz Ali v. The State 2019 YLR 2807 ref. Ayub Masih v. The State PLD 2002 SC 1048 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 409, 201, 218 & 468---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal Procedure Code (V of 1898), S.342---Criminal breach of trust by public servant, forgery for purpose of cheating, causing disappearance of evidence, public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture, embezzlement by government employee---Appreciation of evidence---Benefit of doubt-Specific plea taken by accused---Scope---Accused was charged for misappropriating government wheat and causing wrongful loss to the Government and obtaining wrongful gain by preparing forged documents/record---Accused, in his statement had taken a specific plea that he had been falsely involved in the case by a Food Contractor, who being in league with officials of Food Department, had misappropriated wheat during transportation of wheat from one Centre to Godown---Accused, when smelt some foul play, he moved applications to higher authorities but no heed was paid---Accused also produced copies of such applications and statement---Trial Court had not properly taken into consideration said plea of the accused---None of the witnesses had specifically deposed that accused obtained wrongful gain for himself which was also an important ingredient for constituting offence under S.409, P.P.C.---Similarly, none of the witnesses had said a single word that they had seen the accused or any other person acting on his behalf to have sold out or handed over the wheat bags to any person nor a single bag had been recovered from his possession or from his house which might constitute the offence under S.409, P.P.C.---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances. (d) Penal Code (XLV of 1860)--- ----Ss. 409, 201, 218 & 468---Prevention of Corruption Act (II of 1947), S. 5(2)---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Criminal breach of trust by public servant, forgery for purpose of cheating, causing disappearance of evidence, public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture, embezzlement by government employee---Appreciation of evidence---Benefit of doubt---Withhold-ing material witnesses---Scope---Accused was charged for misappropriating government wheat viz. 1834 bags valued at Rs.20,80,250/- and causing wrongful loss to the Government and obtaining wrongful gain by preparing forged documents / record--- District Food Controllers, although having been nominated in the raid report as well as in the FIR to be involved in the commission of alleged offence of misappropriation, were let-off by the Investigating Officer without disclosing any plausible justification---Not only that, even said Food Controllers were also not made witnesses in the case and neither their statements under S.161, Cr.P.C., were recorded by the Investigating Officer, nor were they examined before the Trial Court---Said fact was also injurious to the prosecution case as it was settled principle of law that despite availability of material witness, non-examination of such witness in the case had given inference that in case such witness had been examined, he would have deposed against the prosecution, as envisaged under Art. 129(g) of Qanun-e-Shahadat, 1984---Neither the entrustment nor dishonest misappropriation or conversion to one's own use or dishonest disposal of property had been established by the prosecution therefore, basic ingredients for constituting an offence under S.409, P.P.C., were lacking in the case---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances. Bashir Ahmed alias Manu v. The State 1996 SCMR 308; Mohammad Shafi v. Tahirur Rehman 1972 SCMR 144 and 1980 SCMR 708 rel. (e) Criminal trial--- ----Benefit of doubt---Principle---Accused could not be deprived of benefit of doubt merely because there was only one circumstance which created doubt in the prosecution story. Tariq Parvaiz v. The State 1995 SCMR 1345 rel. Allah Bux Gabole for Appellant. Syed Sardar Ali Shah, Addl. Prosecutor General, Sindh for the State. Date of hearing: 4th November, 2021. JUDGMENT

MUHAMMAD SALEEM JESSAR, J.---By means of this Criminal Appeal appellant Zakir Ali Gondal has assailed judgment dated 31.05.2013 handed down by learned Special Judge, Anti-Corruption, Sukkur, in Special Case No.44/2006 (Re State v. Zakir Ali), being outcome of Crime No.11 of 2005, registered at Police Station ACE Khairpur Mirs, under sections 409, 201, 218 and 468 P.P.C. read with section 5(2) of Prevention of Corruption Act (Act II of 1947), whereby the appellant has been convicted and sentenced to undergo R.I. for three years and to pay fine of Rs.21,00,000/- (Rupees Twenty One Lac only) and in case of non-payment of fine, the appellant was ordered to suffer S.I. for one year more. However, he was extended benefit of section 382-B, Cr.P.C. 2. The crux of prosecution case are that during crop season 2003-04 accused Zakir Ali Gondal, who was posted as Food Supervisor and Incharge wheat procurement, Choondiko, District Khairpur Mirs, thus in the capacity of public servant, had misappropriated government wheat viz. 1834 bags valued at Rs.20,80,250/- and caused wrongful loss to the Government and obtained wrongful gain by preparing forged documents/record, therefore, a raid was conducted by Anti-Corruption Establishment Authority, Khairpur in presence of Judicial Magistrate and then such FIR was registered by Anti-Corruption Police Khairpur against accused. 3. After usual investigation, the Anti-Corruption Police Khairpur submitted challan against the accused before the concerned Court. Necessary papers were supplied to him vide receipt at Ex-1. Formal charge against the accused was framed at Ex-2, and his plea was recorded at Ex-3, wherein he pleaded not guilty and claimed trial. 4. In support of its case, prosecution examined PW.1 Khadim Hussain at Ex.4, who produced copy of order as Ex.4-A. P.W.2 Imtiaz Hussain was examined at Ex.5, who produced relevant papers as Ex.5-A/1 to 5-A/109 and office order of accused, surety bond, bank authority and other letters as Ex.5-B/1 to 5-B/11. He also produced mashirnama of recovery of documents as Ex.5-C. P.W.3 Hussain Bux was examined at Ex.6, who produced letter as Ex.6-A. P.W.4 Himath Ali was examined at Ex.8, whereas P.W.5 Syed Haider Ali Shah was examined at Ex.9, who produced permission letter for submitting challan as Ex.9-A. P.W.6 Sultan Ahmed Chandio was examined at Ex.10, who produced FIR as Ex.10-A. Learned S.P.P. appearing for the State filed application Ex.11 under Section 540 Cr.P.C. for calling Magistrate, consequently Miss. Samina Mangi, J.M. was examined as P.W.7 at Ex.12, who produced raid report as Ex.12/A. Thereafter, prosecution side was closed vide Statement Ex.13. 5. Statement of accused under Section 342 Cr. P.C. was recorded vide Ex.14, in which he denied prosecution allegations and claimed to be innocent. He further stated that he has been falsely involved in the case by the officers of Food Department and one Abdul Jabbar, Food Contractor, who being in league with officials of Food Department, had misappropriated wheat during transportation of wheat from Choondiko Centre to Khairpur Godown and when he (accused) smelt some foul-play, he moved applications to higher authorities but no heed was paid. Accused produced Photostat copies of applications as Ex.14-A to Ex.14-C and statement as Ex.14-D. However, he neither examined himself on oath nor produced any witness in his defence. 6. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, learned trial Court vide impugned judgment convicted and sentenced the appellant as stated above. Against said judgment the appellant has preferred instant appeal. 7. I have heard learned counsel for the appellant as well as learned A.P.G. appearing for the State and perused the material available on the record. 8. Learned counsel for the appellant submitted that raid was conducted by the then Civil Judge and Judicial Magistrate, namely, Ms. Samina Mangi on 13.12.2004 upon the directions of the then Sessions Judge, Khairpur. Such report dated 13.12.2004, available at page 325 of the paper book, was prepared by her. In her report, learned Magistrate had specifically mentioned that Food Inspector, whose name was not disclosed, in connivance with former District Food Controllers namely, Lala Anwar Pathan and Ziauddin Shaikh by committing misappropriation, had caused wrongful loss to the Government and obtained wrongful gain. Learned counsel further pointed out that raid was conducted on 13.12.2004, yet FIR was registered on 13.05.2005 i.e. after a delay of about five months. In the FIR the accused was nominated stating that he, in connivance with District Food Controller namely, Lala Anwar Palthan and Ziauddin Shaikh, had obtained wrongful gain by misappropriating wheat bags, thus caused wrongful loss to the government to the tune of Rs.64,01,120/-. According to him, mashirnama of recovery as well as report were allegedly prepared in presence of mashirs i.e. Junior Clerks namely, Khadim Hussain Tunio, Imtiaz Hussain Jumani and Misri Khan Dahani. He further submitted that FIR, which is available at page 317 of paper book, clearly reflects that 1834 wheat bags valuing Rs.20,63,250/- and 340 empty bags were misappropriated by accused / appellant and the then District Food Controllers (DFCs) namely, Lala Anwar Pathan and Ziauddin Shaikh. Learned counsel further submitted that both District Food Controllers, who were nominated as accused were let-off and besides, they could have been examined as star witnesses of the case, but neither their statements were recorded by the I.O. during the course of conducting investigation, nor they were examined before the trial Court. He next submitted that no plausible explanation has been furnished by the prosecution for their exoneration. In support of his contention, he placed reliance upon the case reported in 2015 PCr.LJ 1293. 9. Learned counsel further submitted that in the FIR alleged incident is shown to have occurred in the years 2003-04 and no specific date or time has been shown. He, while drawing attention of the Court towards raid report, submitted that raid was conducted on 13.12.2004, despite that FIR was got registered on 13.05.2005 which shows the complainant had implicated only the appellant, while aforesaid two co-accused after due deliberation and consultation had been let-off. He further submitted that government contractor namely, Abdul Jabbar Shaikh upon the direction of aforesaid District Food Controllers was taking wheat bags from Choondko Centre without permission of the appellant whereupon appellant had moved different applications to the high-ups / the then District Food Controllers regarding forcibly taking away of wheat bags by the contractor Abdul Jabbar; however, the then District Food Controllers had asked the appellant not to restrain said contractor as he had been permitted by them to do so and that such permission would be provided to the appellant subsequently. The applications of the appellant are available with his statement under Section 342 Cr. P.C. at pages 329 to 335 of the paper book. Learned counsel further submitted that alleged misappropriation as well as wrongful gain obtained by the appellant could not be proved by a single person during the course of investigation or before the trial Court to establish that the appellant had sold out or handed over the wheat bags to any such person and nor a single bag has been recovered from his possession or from his house which may constitute the offence under section 409, P.P.C. He further submitted that as far as wrongful loss to the government is concerned, it had also not been established by the prosecution as none of the prosecution witnesses has specifically deposed against the accused regarding alleged misappropriation. According to him, despite this, instead of acquitting the accused, the trial Court has convicted him. He further submitted that defence version was not brought on record nor was considered by the trial court and the then District Food Controllers who were made co-accused in the FIR, were also not examined by the I.O. under section 161 Cr. P.C., therefore, their non-examination was fatal to the prosecution case and inference could be drawn that if those persons would have been examined, they would not have supported the case of the prosecution. 10. Learned counsel further submitted that the attesting mashirs in whose presence allegedly a raid was conducted and record pertaining to different centers were secured, have denied the preparation of mashirnama of recovery and report as well as conducting the raid in their presence, hence, according to him, when the attesting witnesses, who were also officials of the department, have not deposed against the accused and not supported the prosecution case, then it is clear that the prosecution has miserably failed to prove its charge beyond any shadow of reasonable doubt. He also pointed out that no permission for lodging the FIR was sought, even no plausible explanation has been furnished for such an inordinate delay in the lodging of FIR. In support of his contentions, he placed reliance on the cases of Najaf Ali v. The State (2021 YLR Note 86), Syed Altaf Hussain Shah v. The State (2018 YLR 482), Muhammad Yousuf v. The State (2020 YLR Note 132), Abdul Karim Kumbhar v. The State (2021 YLR Note 10) and Imtiaz Ali v. The State (2019 YLR 2807). He ultimately prayed for acquittal of the accused / appellant by extending him benefit of doubt. 11. On the other hand, learned Additional Prosecutor General, appearing for the State, opposed the appeal on the ground that prosecution has established its charge against the appellant beyond any shadow of reasonable doubt. According to him, as far as minor contradictions in the evidence are concerned, due to passage of time such minor contradictions usually take place and the same are to be ignored and not to be taken into consideration as same cannot be made basis for acquittal of an accused. He, however, could not controvert the fact that co-accused namely, Lala Anwar Pathan and Ziauddin Shaikh, who were also nominated in the FIR as accused, were let-off by the police without giving any cogent explanation for their exoneration and even they were not examined by the I.O. under section 161, Cr.P.C. nor they were made witnesses before the trial Court. 12. In instant case, most important document is the report relating to raid which was conducted by the then Civil Judge and Judicial Magistrate, namely Miss Samina Mangi upon the directions of the then Sessions Judge, Khairpur on 13.12.2004. In her evidence said Judicial Magistrate, has not specifically mentioned name of present accused / appellant that he had committed the offence of misappropriation, whereas she has made specific statement against Lala Anwar Pathan and Ziauddin Shaikh. In her evidence she deposed as under: ".. concerned Head Clerk informed C.O. that mis-appropriation of wheat bags committed by the Ex: Food Inspector Lala Anwar Pathan with one Ziauddin Shaikh and loss the govt: tune of Rs.64,01,120/- for their gain." 13. P.W. Sultan Ahmed, who was working as C.O. ACE at the relevant time, in his cross-examination also admitted, "It is fact that in raid report the name of accused Zakir is not mentioned." Besides, perusal of the contents of the F.I.R. shows that, it has been mentioned therein that accused Zakir Ali Gondal in connivance with the then District Food Controller, Khairpur namely Mohammad Anwar Pathan and Ziauddin Shaikh misappropriated 1834 wheat bags valued at Rs.20,63,250/- and 340 empty bags valued at Rs.17000/-. In such an eventuality, it is not understandable as to why said Lala Anwar Pathan and Ziauddin Shaikh, who were the then District Food Controllers, Khairpur, have not been arrayed as accused persons, and rather they were let-off without disclosing any plausible justification. Not only this, even they have not been made witnesses in the case, nor even their statements were recorded by the Investigating Officer. This smacks something fishy on the part of Investigating Agency. 14. Needless to emphasize that 'Rule of consistency' demands that if an accused has been extended benefit on the basis of certain evidence available with the prosecution, other accused charged with similar allegations is also entitled to be extended same concession / treatment and he cannot be convicted on the basis of same material / evidence. In this connection it would be advantageous to refer to a judgment of Honourable Supreme Court passed in the case of Mohammad Asif v. The State reported in 2017 SCMR 486 wherein it was held as under: "It is a trite rule of law and justice that once prosecution evidence is disbelieved with respect to a co-accused then, they cannot be relied upon with regard to the other co-accused unless they are corroborated by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is not available in the present case." 15. In another case reported as Umar Farooque v. State (2006 SCMR 1605) Honourable Supreme Court held as under: "On exactly the same evidence and in view of the joint charge, it is not comprehendible, as to how, Talat Mehmood could be acquitted and on the same assertions of the witnesses, Umer Farooque could be convicted." 16. Yet in another case reported as Mohammad Akram v. The State (2012 SCMR 440) the Apex Court while holding that same set of evidence which was disbelieved qua the involvement of co-accused could not be relied upon to convict the accused on a capital charge, acquitted the accused. 17. Another significant point in the case is that there is inordinate delay of about five months in the lodging of FIR as the raid was allegedly conducted by the then Civil Judge and Judicial Magistrate namely, Miss Samina Mangi upon the directions of the then Sessions Judge, Khairpur on 13.12.2004, whereas FIR was got registered on 13.05.2005 i.e. after a delay of about five months. No explanation has been furnished by the prosecution for such an inordinate delay. This creates doubt regarding involvement of the accused in the commission of alleged offence, particularly in view of the fact, as stated above, that it has been clearly mentioned in the FIR that accused Zakir Ali Gondal has committed offence of misappropriation of 1834 wheat bags valued at Rs.20,63,250/- and 340 empty bags valued at Rs.17000/-, in connivance with the then District Food Controller, Khairpur namely, Mohammad Anwar Pathan and Ziauddin Shaikh and even the Judicial Magistrate, who had conducted raid, has also specifically stated that the aforesaid two DFCs have committed the alleged offence, despite that said Lala Anwar Pathan and Ziauddin Shaikh, have been let-off without disclosing any plausible justification. 18. 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 FIR, 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." 19. In view of unexplained delay of at least about five months occurring in the registration of FIR, possibility of deliberation and false implication of the accused could not be overruled. 20. It is also worthwhile to point out at this juncture that in his statement the accused has taken a specific plea that he has been falsely involved in the case by one Abdul Jabbar, Food Contractor, who being in league with officials of Food Department, had misappropriated wheat during transportation of wheat from…

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