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Criminal Appeal No. 235 of 1979, decided on 10th August, 1983.

-- S: 409-Prevention of Corruption Act (II of 1947), S. 5 (2) Misappropriation-Evidence on record not proving charge against accused beyond reasonable doubt-Statement of prosecution witness not straightforward and throwing doubt on alleged missing of Government property-Chances of theft and/or loss in transit not ruled out-Accused given benefit of doubt and acquitted.-[Benefit of doubt].

P L D 1956 S C 417 and 1968 P Cr. L J 358 ref.

Muhammad Ali Shaikh for Appellant.

G. R. Warsi for the State.

Date of hearing: 10th August, 1983.

Appellant abovenamed, being aggrieved by judgment dated 30th September, 1979 of the learned Special Judge (Central), Karachi, in Special case No. 85/78, by which appellants have been convicted under section 409, P. P. C. read with section 5 (2) of Act 11 of 1947 and sentenced to suffer R. I. for 6 months each and to pay fine of Rs. 10,000 each or in default to suffer further R. I. for 3 months, have preferred the above 2 appeals, on the following facts and grounds: -

The appellant were sent up by F. I. A. Police, Hyderabad on 26th July, 1978 to stand their trial for the offence punishable under section 409, P. P. C. read with section 5 (2) of Act 11 of 1947. The facts briefly stated are, that appellant Muhammad Sharif was posted as fitter incharge and appellant Muhammad Ashfaq as Junior fitter incharge at Loco Shed, Mirpurkhas Railway Station. On 22nd March, 1975, Engine No. 517 was given to appellant Muhammad Sharif and Muhammad Ashfaq for disman tling the same and be sent to Mughalpura Workshop for overhauling. The work was said to have been completed on 10th July, 1975 and on 11th July, 1975, appellant Altaf Ahmed and Saghir Ahmed who were working as Fireman and Cleaner respectively at the said Loco Shed, were given the parts of the dismantled engine to be taken to Mughalpura for overhauling and in token of having received the same, the charge report Exh. 10 was prepared and was signed by appellant Altaf, wherein the 11 parts of engine were shown to have been detained by appellant Muhammad Sharif. When appellant Altaf Ahmed alongwith appellant Saghir Ahmed handed over the parts of the engine at Mughalpura, it was found that 62 parts of the engine were missing. One Anwar Khan, who was posted as turner in the Loco Shed is said to have seen appellant Sharif and Ashfaq of removing some parts of the engine in a cart and be had made such applications to different officers, on which the matter was referred for investigation to F. I. A. Police. F. I. A. Police on completion of enquiry registered a case against the four appellants on 19th April, 1976 and sent up the appellants as mentioned above. The charge against all the four appellants was framed under section 409. P. P. C. and under section 5 (2) of Act 11 of 1947 and all the appellants pleaded not guilty.

The learned trial Court taking into consideration the evidence adduced before it, while acquitting co-accused Muhammad Ashfaq and Saghir Ahmed convicted the appellants Muhammad Sharif and Altaf Ahmed by the common impugned judgment as herein before mentioned and conse quently both the appellants have filed the two separate appeals, on the grounds mentioned in their respective memo. of appeals. Since both the appeals arise out of the common judgment, I propose to dispose of both these appeals by this common judgment.

The learned Advocate for the appellants in support of the above appeal submitted as under:

(a) That the appellants have been convicted on the same piece of evi dence on which two co-accused were acquitted by the learned trial Court without any cogent reasons and consequently their convictions also cannot be sustained.

(b) That as far as 11 missing parts are concerned appellant Saghir Ahmed produced from the official record his earlier explanation and statement by which he established that the 11 missing parts were in fact not missing, but were detained at Mirpurkhas and were used in other engines. As far as remaining missing parts are concerned, the said parts were sent from Mirpurkhas to Mughalpura Workshop, first by meter gauge and then by broad-gauge and were loaded in a railway wagon and the possibility of these parts having been lost in transit cannot be ruled out and furthermore neither of the appel lants were in physical possession of these parts, while in transit and therefore, in the absence of any direct evidence to show that the appellants removed these parts and misappropriated their sale proceed, the' prosecution has failed to establish its case beyond reasonable doubt and consequently the conviction of the appellants cannot legally be sustained,

(c) That all prosecution witnesses except P. W. I Anwar Khan a; formal witnesses regarding missing parts and none of these P. W.s have alleged that appellants removed these parts and misappropriated the same. However, P. W. Anwar Khan made certain allegations in respect of 11 missing parts, but the said witness was not believed by the learned trial Court and consequently prosecution has led no evidence to establish a charge under section 409, P. P. C. against either of the appellants.

In support of the above contentions the learned Advocate for the appellants relied upon cases reported in P t D 1956 S C (Pak.) 417 and 1968 P Cr. L J 358.

The learned Advocate appearing for the State at the outset submitted that prosecution in his opinion has failed to establish its case under sec tion 409, P. P. C. against the appellants. However, he submitted that the prosecution has established its case against both the appellants under section 5 (2) (e) of Act II of 1947 and as such the conviction of the appellants and the sentences awarded to them cannot be considered harsh or unjust.

The learned Advocate for the State, however, submitted, that keeping in view the facts of the case the sentences awarded to the appellants may be reduced, if it may be deemed fit by this Court.

I have carefully considered the above submissions made by the agar:: Advocates before me and have gone through the R & P of the trial Court as well as the impugned judgment and the cases cited by learned Advocate for the appellants.

I have carefully gone through the statements of P. Ws. Recorded by learned trial Court. I find except for P. W. 1 Anwar Khan, who was disbelieved by the learned trial Court, no other P. W. has stated about; alleged offences committed by the appellants, I find no evidence on record to prove beyond reasonable doubt, charge of misappropriation and conversion against the appellants. Statement of P. W. 1 Anwar Khan is not at all straightforward and/or convincing in the face of Exh. 42, which was brought on record from official records, Exh. 42 throws doubt of alleged a missing of 11 parts initially. Theft and/or loss of remaining parts in transit cannot be ruled out. Keeping in view all these facts, in my opinion prosecution has failed to establish its case beyond reasonable doubt against both the appellants. Cases cited by the learned Advocate for the appellants, namely P L D 1956 S C 417 and 1968 P Cr. L J 358 are fully applicable to appellants' case.

Therefore, I allow both the above appeals and set aside conviction and sentences awarded to both the appellants by impugned judgment and acquit them by giving them benefit of doubt and discharges the bail bonds executed by appellants in both the above appeals.

This judgment shall in no way affect departmental proceedings, if any conducted and/or may be conducted against the appellants.

M. Y. H. Appeal accepted

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