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Criminal Appeal No.383 of 1973, decided on 3rd June, 1987.

---Ss. 409/109--Misappropriation--Wheat stock--Witnesses were subjected to an identification parade held in jail but Magistrate who conducted identification parade not examined--Recovery of money at instance of accused without any significance and not in any way linked with offence--Recovery of wheat seeds at pointation of accused from a godown had no relevancy to case--One of recovery witnesses turned hostile and did not at all implicate accused while other recovery witness neither deposing that recovery was at instance of accused nor saying even about presence of accused at relevant time--Prosecution failing to prove that accused who was not a public servant had any connection with absconding accused official to prove charge of abetting criminal misappropriation of goods by him--Evidence on basis of which his conviction had been recorded not sufficient to bring home guilt to accused--Conviction and sentence set aside in circumstances.

Sardar Faiz Muhammad Khosa for Appellant.

Date of hearing: 3rd June, 198.

Muhammad Sadiq son of Muhammad Mirza appellant alongwith Ali Afzal Shah son of Syed Noor Hussain and others was tried by the learned Special Judge, Anti-Corruption, Multan for having misappropriated 1,333 bags of wheat-seed and 727 bags of fertilizer worth Rs.90,876,75 belonging to the West Pakistan Agricultural Development Corporation. By his judgment dated 7-6-1973 the learned trial Court convicted Muhammad Sadiq appellant under section 409/109 P.P.C and sentenced him to two years' R.I. and a fine of Rs.10,300 and to suffer further R.I. for one and a half year in lieu of the payment of fine. The amount of Rs.10,300 recovered from him was ordered to be returned to W.P.A.D.C. Ali Afzal Shah was also convicted under section 409, P.P.C and sentenced to two years' R.I. and to pay a fine of Rs.10, 300 or in default to undergo one and a half years' R.I. Muhammad Sadiq and Ali Afzal Shah had filed a joint appeal and their sentences were suspended by this Court on 10-7-1973. Later on when the appeal was set down for hearing, Ali Afzal Shah disappeared. Consequently non-bailable warrants of arrest were issued against him. A report was received from the Process Server that he had gone to Saudi Arabia. Further, efforts were made for his arrest but with no result. Neither he nor his counsel is present. Sardar Faiz Muhammad Khosa, learned counsel for Muhammad Sadiq appellant prays that the appeal of his client may be heard and disposed of as he is suffering unnecessarily in the absence of Ali Afzal Shah. Learned counsel for the State has not opposed the request. Accordingly the appeal of Muhammad Sadiq appellant is being taken up only.

2. The prosecution case is that in October, 1966 Ali Afzal Shah appellant (since absconding) was working as Depot Supervisor in West Pakistan Agricultural Development Corporation, Vehari and was incharge of store of wheat-seed and fertilizer belonging to the W.P.A.D.C. On 6-10-1966 it came to the notice of Abdul Ghafoor P.W.36, Assistant District Supply Officer, W.P.A.D.C. that Ali Afzal Shah aforementioned had removed a large quantity of the wheat-seed and fertilizer from the Government, godowns. Accordingly he got the present case registered by lodging the F.I.R. Exh.PW.36/A. The detail of the missing bags was supplied to the police vide Exh.PW.36/B. During investigation the police seized 414 bags of fertilizer (Indigenous) and 97 bags of fertilizer (imported) from the house of one Manzoor Ahmad, elder brother of Mukhtar Hussain accused (since acquitted). Muhammad Sadiq appellant is alleged to have led to the recovery of 416 bags of fertilizer through memo. Exh.PD. Later some more bags were recovered from different places at the instance of other co-accused. It is further alleged that Rs.13,000 were recovered by the police from the possession of Muhammad Sadiq appellant in the presence of Muhammad Ali Anwar, PW.17 and Amanullah Khan, PW.15. After the investigation Muhammad Sadiq appellant and others were challaned.

3. Relying on the evidence of Muhammad Iqbal PW.11 and Khalifa Allah Ditta PW.12, the trial Court convicted and sentenced Muhammad Sadiq appellant as described above.

It may not be out of place to mention here that no conviction was recorder on the basis of the recovery of 316 bags of fertilizer at the instance of Muhammad Sadiq appellant or for the recovery Rs.13,000 from his possession. He was convicted because according to Muhammad Iqbal PW.11 and Khalifa Allah Ditta PW.12 he had brought 200 bags of wheat-seed to their shop bearing insignia of A.D.C. According to them Muhammad Sadiq appellant had posed himself as Khushi Muhammad and had obtained Rs.10,265.34 from them through receipt Exh.PJJ/1.

4. Learned counsel for the appellant has seriously assailed the evidence of Muhammad Iqbal PW.11 and Khalifa Allah Ditta, PW.12. According to him it was not sufficient to bring home guilt to the appellant. He has referred to their statements. According to them Muhammad Sadiq appellant had posed himself as Khushi Muhammad and had received payment of Rs.10,265.34 from them as price of 200 bags of wheat-seed supplied by him after signing the bill EXh.PJJ. Khalifa Allah Ditta PW.12 stated that Khushi Muhammad Sadiq appellant) was not known to him earlier and that he had not given his description to the police. Both these witnesses were subjected to an identification parade held in Jail but Muhammad Ameer Ansari, Magistrate Section-30, PW.34, who conducted the identification parade, was not examined on this point. He appeared in the witness-box on 3-5-1972 but his evidence was not recorded for want of the record of the identification parade. Later he was given up. The specimen handwriting of Muhammad Sadiq appellant was taken in the presence of Mian Ghulam Jillani, the then S.D.M. Vehari, for comparison with the receipt /bill Exh.PJJ but no Handwriting Expert was to prove that they matched with each other. According to the prosecution allegations the appellant had supplied 200 bags of wheat-seed to Khalifa Allah Ditta PW.12 on 3-10-1986 for a sum of Rs.10,265.34 but as per statement of Khalifa Allah Ditta PW.12 he did not know him prior to the said date nor 'had he given his description to the police. In this view of the matter the appearance of the Magistrate who had conducted the identification parade in the Jail was very essential but as already stated he did not prove it for want of record. The other piece of evidence against Muhammad Sadiq appellant was his signature on the bill Exh. PJJ but no Handwriting Expert was examined to prove the same. The recovery of Rs.13,000 at the instance of the appellant is without any significance and is not in any way linked with the offence. According to the appellant this money was extorted from him by Hashim Khan, ASI and was his personal property Likewise, the recovery of ''316 bags of wheat seed at his pointation from a godown at Tiba Sultan has no relevancy to the case, Ghulam Hussain, PW.2 one of the recovery witnesses turned hostile and did not at all implicate the appellant. Ahmad Bakhsh PW.18, the other recovery witness also did not depose that the recovery was at the instance of Muhammad Sadiq appellant. He did not say even about the presence of the appellant at the relevant time.

5. In the circumstances discussed above, the prosecution ha failed to prove any connection between Muhammad Sadiq appellant and Ali Afzal Shah. The appellant is not a public servant and had been convicted for having acted in collusion with Ali Afzal Shah, Store Incharge of W. P. A. D. C. by abetting the criminal misappropriation of the goods by him. The evidence on the basis of which his conviction had been recorded is not sufficient to bring home the guilt to him. Accordingly, I accept his appeal, set aside his conviction and sentence and acquit him of the charge. The amount of Rs.13,000 secured from him shall be returned to him for not having been proved to be connected with the case in any manner.

M.Y.H/M-354/L Appeal accepted.

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