Find a Lawyer

Criminal Appeal No. 79 of 1977, heard on 23rd January, 1985.

‑‑‑S.409‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑Evidence, appreciation of‑‑Complainant on whose information matter was initiated not produced by prosecution‑‑Entrustment of articles to accused not proved‑‑Direct evidence to removal of articles from store and mis appropriation of various items by accused not forthcoming‑‑Alleged shortage successfully explained by defence evidence‑‑Defence evidence discarded by trial Court without sound and cogent reasons‑‑Prosecution, held, failed to prove its case beyond reasonable doubt‑‑Accused given benefit of doubt and acquitted.‑[Benefit of doubt].

Ch. Muhammad Farooq for Appellant.

Malik Muhammad Yusuf for the State.

Dates of hearing: 12th November, 10th December, 1984 and 23rd January, 1985.

This Criminal Appeal arises from the judgment of learned Senior Special Judge, Anti‑Corruption, Punjab, Lahore whereby he on 13‑1‑1977 convicted Khalid Hamid appellant under section 409, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to two years' R. I.

2. The appellant was a supervisor, working in the office of Assistant Engineer, Agricultural, Engineering, Sheikhupura. The charge against him was that he criminally misappropriated some items of plates etc. of the value of Rs.3,028.75. He denied the charge and claimed to be tried.

3. To prove its case, prosecution examined six witnesses. Anwar Ali P.W.1 was Bulldozar operator. In his presence the appellant produced registers and documents Exh. P. A. to Exh. P. E. before Pervaiz Sultan Magistrate P.W.S. The Magistrate checked the relevant register in his presence. At that time the witness made statement Exh. P.G. which was recorded by the Magistrate. Muhammad Sharif P.W.2 made similar statement. Muhammad Bashir P.W.3 appeared to prove sanction order Exh. P.W.3/A. Muhammad Aslam Senior Auditor P.W.4 after having assessed the value of different items had prepared document Exh.P.W.4/A. Pervaiz Sultan Magistrate P.W.5 was deputed by the Assistant Commissioner to supervise the raid. A raiding party comprising of Anwar Ali complainant, Manzoor Hussain Shah Sub‑Inspector and Muhammad Jameel Constable was organized. The raiding party under the supervision of the Magistrate went to the office of Assistant Agricultural Engineer, Sheikhupura. The appellant was present there. On the asking of the Magistrate the appellant produced before him, Stock register of spare parts Exh. P.A ; P.O.L. Register Exh. P.B., Vehicle Register Exh.P.C., Indent Book No.266 Exh.P.D. and Indent Book No.129 Exh. P.E. which were taken into possession vide memo. Exh.P.F. signed by the Magistrate. The appellant opened the lock of his office store. On checking the witness found shortage of the articles and prepared report Exh.P.W.5/E accordingly. Syed Mudassar Ahmad Supervisor produced stock register of spare parts P.O.L. Register, Vehicle Register, Indent Book No. 261 and Indent Book No. 267 which were taken into possession by the witness. On checking the store of Mudassar Ahmad Supervisor, shortage of 11 gallons of gear oil was detected. The witness handed over the relevant papers and record to the Investigating Officer. Manzoor Hussain Sub‑Circle Officer P.W.6 recorded statement Exh.P.W.61A of Anwar Ali complainant and sent it to Police Station Anti‑Corruption A.C.E. Sheikhupura for the registration of case. He got Pervaiz Sultan Magistrate P.W.5 deputed for the supervision of the raid. He as a member of the raiding party came to the spot. The stores were checked in his presence. The Magistrate after preparing his raid report handed over the relevant record to him for investigation. He after having obtained permission, investigated the case and submitted challan. He stated that the shortage detected in various items valued at about Rs.3,028.75. This value was got worked out from Muhammad Aslam store‑keeper vide his report Exh.P.W.4/A.

4. When examined under section 342, Cr.P.C. the appellant denied all incriminating circumstances. In defence he produced 12 witnesses. Through defence evidence, the appellant accounted for each and every item which was found to be short by the Magistrate.

S. The learned counsel for the appellant contends that prosecution has failed to prove its case beyond reasonable doubt; that there is no evidence of misappropriation of the articles by the appellant and that the appellant has successfully accounted for the items which were found short by the Magistrate.

6. I have considered the arguments advanced by the learned counsel for the parties with care. There appears sufficient force in the arguments of the learned counsel for the appellant. I find that Anwar Ali complainant on whose information the matter was initiated has not been produced by the prosecution; that the prosecution did not care to lead any evidence to prove entrustment of the articles to the appellant; that there is no direct evidence to the removal of the articles by the appellant from the store; that there is no direct evidence of the misappropriation of the various items by the appellant; that out of the witnesses produced by the prosecution, the statements of five witnesses namely Anwar Ali, P.W.1 Muhammad Sharif P.W.2, Muhammad Bashir P.W.3, Muhammad Aslam P.W.4 and Manzoor Hussain S.C.O. P.W.6 are not of much help to the prosecution. The statements of these witnesses did not connect the appellant with the commission of the alleged crime. As far, the shortage pointed out by the Magistrate the same has successfully been explained by the defence evidence. The documents produced by the appellant and proved by the defence witnesses also support the plea of the appellant. I find that the defence evidence which finds support from the documentary evidence has been discarded by the trial Court without sound and cogent reasons.

7. For what has been stated above, I am of the view that prosecution has failed to prove its case beyond reasonable doubt, giving him the benefit of doubt the appellant is acquitted of the charge.

M. A. K. Appeal accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.