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Criminal Appeal No. 126 of 1980, decided on 20th May, 1.91#4:

--- S. 409-Criminal breach of trust-Evidence, appreciation of-No one from sixteen contractors who allegedly paid amount to accused examined-Only witness of receipt of amount by accused declared hostile for not supporting case of prosecution-Evidence of comp lainant alone without proper corroboration, held, undoubtedly not sufficient to connect accused with offence-Prosecution, held further, utterly failed to prove case beyond reasonable doubt against accused-Conviction and sentence set aside, in circumstances.

1981 P Cr. L J 1154 and 1982 P Cr. L J 594 ref:

Abdul Fateh Memon for Appellant.

Imam Bux for the State.

Date of hearing: 10th May, 1984.

This appeal "tinder' section 410, Cr. P. C. read with section 16 of Amendment Act 1958. is preferred against the judgment, dated 5th May; 1980 of the learned Special Judge Anti-Corruption, Sukkur, whereby he convicted the appellant under section 409, P. P. C. read with section 5 (2) of Act II of 1947, and sentenced him to suffer R. I. for one month, and to pay a fine of Rs. 1,000 or in default of payment of fine to undergo a ,month's rigorous imprisonment.

The facts of the prosecution case are that one Mr. Aftab Ahmed, Mukhtiarkar and First Class Magistrate, Gharhi Yasin, District Sukkur addressed a letter, dated 10th July, 1971 to the S. H. O. P. S. Gharhi Yasin. The contents of the letter are that he in capacity of Chairman of the Tehsil Council Gharhi Yasin, sanctioned contracts for R. W. P. schemes for 1970-71 on 15th May, 1971 in names of the 16 contractors, who figure in the abovesaid letter. They paid various amounts as earnest money and tender form fees amounting to Rs. 780 only, to Ghulam Muhammad Abro, Supervisor B. Ds. Gharhi Yasin in his capacity as Secretary of the Tehsil Council for credit into the Tehsil Council funds. Ghulam Muhammad being a Government servant was supposed to enter the amount in the daily cash register of the Tehsil Council which he was required to maintain and credit the same on very day of the receipt of amounts by him but he did not credit the above amounts till the date of the abovesaid letter and as such misappropriated the public money.

This letter was incorporated by the S. H. O., P. S. Gharhi Yasin as F. I. R. Exh. 5/C. The Superintendent of Police, Sukkur after registration of the case sent the case to the Director, Anti-Corruption, Hyderabad, who ordered to the effect that a case be registered against Ghulam Muhammad, Secretary.

Mr. Ghulam Nabi P. W. 2 who was the C. O. Anti-Corruption Sukkur, on receipt of the investigation papers of the case recorded the statement of Ghulam Rasool P. W. 1 and Arz Muhammad. He also recorded the statement of the accused Ghulam Muhammad who produced the credit slip before him. He prepared such mashirnama Exh. 5-A in presence of mashirs Haq Nawaz and Muhammad Iqbal and secured the credit slip Exh. 5-8, and submitted final report on 18th November, 1976 to the Director Anti-Corruption, Hyderabad.

The accused however, denied the allegations and stated to have been implicated as a result of enmity of the complainant who being the Mukhtiar kar and F. C. M., Gharhi Yasin, kept the furniture of the Taluka Council in his personal use. The accused told him to return the same to Taluka Council as the Director, Local Government had demanded it which made him unhappy. He also denied the receipt of earnest money etc. which according to him was received by a clerk, by name Haq Nawaz.

The prosecution case is mainly based on the evidence of Ghulam Rasool P. W. 1, Ghulam Nabi, C. O. P. W. 2, and Aftab Ahmed,' Mukhtiarkar and F. C. M., Gharhi Yasin (complainant) P. W. 3.

Ghulam Rasool P. W. 1 who is one of the 16 contractors who paid the earnest money and tender form fees has stated before the trial Court that the money in question was paid by him to the Mukhtiarkar and F. C. M. i.e. complainant Aftab Ahmed. He did not support the case of prosecution and was therefore, declared hostile.

Ghulam Nabi, Circle Officer A. C. Badin P. W. 2 has stated before the trial Court about recording of statements of Ghulam Rasool,. Arz Muhammad and accused Ghulam Muhammad. He has secured credit slip Exh. 5/B from the accused in presence of mashirs Haq Nawaz, and Muhammad Iqbal, and prepared mashirnama Exh. 5/A. He also produced the F. I. R. Exh. 3/C.

Aftab Ahmad P. W. 3, Mukhtiarkar and F. C. M., Gharhi Yasin, who is complainant, has in his evidence supported all the facts given by him in his letter which was incorporated as F. I. R. He has also produced files of the contracts and the register of amount Exh. 6/C. He has further stated that all the entries were made by the accused in his own hand writing and register in question was secured from his possession. He also produced the 6 receipts Exhs. 6-D/1 to 6-D/6, and the statement showing the amount of earnest money and tender form fees amounting to Rs. 780 only as Exh. 6-E/ 1. He however, denied his annoyance with the accused on account of dispute over furniture of the Tahsil Council and accepted his initial on the letter Exh. 6-C/1.

Mr. Abdul Fatah Memon, learned counsel for the appellant has contended that the money in question is stated to have been given to the complainant Aftab Ahmed. The only witness out of the sixteen contrac tors on the receipt of the amount by the accused is Ghulam Rasool P. W. 1, who has not supported the prosecution case and on the contrary he implicated the Mukhtiarkar who is complainant in the case. It has also been pointed out that no other contractor has been examined so as to connect the accused for receipt of the amount from the contractors though Piral and Arz Muhammad were contractors according to F. I. R. and were expected to give evidence on this point. But both of them have been given up by the prosecution. There being no other witness to support the complainant on the point of receipt of the amount from contractors by the accused the prosecution has failed to connect the accused with the offence. He places his reliance on 1981 P Cr. L J 1154 and 1982 P Cr. L J 594. He has further contended that sanction in the case to prosecute the appellant suffered from the legal infirmity and conviction based on it cannot be sustained in view of clauses j(a) and (m) of section 2 of the notification dated 30th June, 1960 under the West Pakistan Local Councils (Conduct of Business) Rules, 1960. He has placed his reliance on the following authority P L D 1981 Quetta 18.

Mr. Imam Bux Shaikh, the learned counsel for the State does not support the prosecution case though he has contended that the sanction to prosecute the appellant is covered by subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958.

I have carefully considered the contentions of the learned counsel for the appellant as well as State. I have also gone through the evidence on record, and authorities referred to above by the learned counsel for the appellant. The evidence of complainant without proper corroboration is undoubtedly not sufficient to connect the accused with the offence. The only witness of receipt of the amount in question by the accused is Ghulam Rasool P. W. 1 who did not support the case of prosecution but he on the contrary implicated the complainant to have received the amount from him. No one from as many as 16 contractors who according to the com plainant paid the amount to the accused have been examined by the prosecution in the case. Ghulam Rasool, P. W. 1, however, has beep declared hostile.

Ghulam Nabi P. W. 2 is a formal witness connected with the investiga tion arid his evidence is not at all helpful to the prosecution case inasmuch as receipt of the money by the accused. Therefore, I am left with n option except to allow the appeal as the prosecution has utterly failed to prove the case beyond reasonable doubt against the accused. I am fortified in my views by the observation made in the above-cited cases also. 1t is not necessary to discuss the validity of the sanction in the case as it will not be helpful for decision bf the case which fails for want of sufficient evidence.

For the foregoing reasons, I allow the appeal, acquit the accused, and set aside his conviction and sentence. Fine if realized shall be remitted to the appellant/accused and bail bonds furnished by him stand dis charged.

S. G. D. Appeal allowed.

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