2010 M L D 1424
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
IMTIAZ SHA H -Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No.28 of 2009, decided on 28th June, 2010.
Penal Code (XLV of 1860) ---
----Ss. 409 & 420 ---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach
of trust, cheating and cor ruption ---Appreciation of evidence ---Earlier, accused reported
an incident of dacoity allegedly took place in the Utility Store and F.I.R. in respect of said
offence was registered, but said incident remained uninvestigated ---Truth was not found
out by the Investigating Authority ---Alleged shortages in the stock in the Utility Store
were detected, it was required to be established by the prosecution that the shortage
occurred due to act of accused ---No investigation was made in that respect ---No recovery
of money or the stock was effected from the possession of accused, nor efforts were made
for the same, neither any material was collected in that connection ---Accused was in
custody of Police, when audit and scrutiny of stock were made in his absence ---Alleg ed
forged bank slips were also recovered when accused was not present at the site ---Trial
Court had failed to assess the material properly, ignorance showed by prosecution witness
in respect of accused being in custody of Police on relevant dates had discl osed the mala
fide on part of the prosecution, benefit of which was required to be extended to the of
accused ---Though charge of criminal breach of trust by public servant and criminal
misconduct was asserted, but the prosecution had failed to establish bo th charges against
accused free from reasonable doubt ---In view of material placed on record no offence
under S.420, P.P.C. was made out ---While extending benefit of doubt in favour of
accused, impugned judgment of Special Court, Anti -Corruption, was set a side---Accused
was acquitted of the charge and was ordered to be released, in circumstances.
Rauf Hashmi for Appellant.
Abdullah Kurd for Respondent.
Date of hearing: 19th March, 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J .---The appellant h as filed instant appeal assailing
therein the judgment dated 30 -3-2009 of Special Judge, Anti -Corruption Balochistan,
Quetta, whereby he has been convicted of the charges for offences under sections 409,
420, P.P.C. read with section 5(2) Act -II of 1947, w hile sentenced to suffer R.I. for a
period of six years and fine of Rs.700,000, in default to suffer further imprisonment for
a period of two years with further direction that in case of recovery of fine an amount of
Rs.6,89,950/50 be deposited with Utilit y Stores Corporation Quetta to cover the losses.
He prayed for setting aside of the same and his acquittal of the charge. It is his
contention that the impugned order is contrary to law and facts. In fact he reported
about occurrence of dacoity in Store on 3-6-2007, but on very next day he was arrested
and kept in illegal custody, the matter was assailed before the Sessions Judge, Quetta,
who decided the application through order dated 9 -6-2007. Despite the fact that he was
kept in custody, F.I.R. of instan t case was registered on 21 -6-2007. While he was
remanded to judicial custody on the same date. These facts remained unconsidered. The
material/receipts were neither properly examined by the Investigation Officer, nor by
the trial Court, who came to the conclusion which is not in accordance with law. There
is misinterpretation of evidence, while the statements of witnesses are not corroborative
to each other; rather there are dishonest improvements in the same. The decision of trial
court also based on mis -appreciation, misreading and non -reading of evidence. The
defence version and evidence are not even considered by the trial Court, while findings
are recorded in haphazard manner. He has prayed for setting aside of the impugned
judgment, thereby his acquit tal of the charge.
Counsel for the appellant heard at length, while learned State Counsel submitted written
arguments in rebuttal. It has been contended by the counsel for the appellant that benefit
of several facts was required to be given to him, such as two dates are mentioned in
F.I.R. about registration of case, there is delay of six days in recording of statements of
witnesses by the Police. Further, he was in custody when said reconciliation of stuff was
made. Furthermore, the original documents ar e not produced before the court.
Moreover, audit was also conducted in his absence. In rebuttal the arguments of the
learned counsel for respondent were to the effect that the appellant in order to conceal
the embezzlement made by him, reported commission of dacoity in the Store also
produced bogus sale deposit slips amounting to Rs.3,47,448, while this fraud was
detected by Accounts Officer of Utility Store Corporation named Muhammad Zaibullah
who prepared the audit report. In fact no dacoity was committed in the Store. Apart
from fake deposit slips further shortage was also detected. No mala fide intention on
part of prosecution is pointed out. He prayed for dismissal of appeal being on no
grounds.
As per record, the appellant reported an incident of dac oity allegedly took place in the
Utility Store situated at Wandat Colony Quetta on 3-6-2007. F.I.R. No.104 of 2007
Police Station Saddar Quetta pertains to said offence was registered. While F.I.R.
No.119 of 2007 Police Station Saddar, Quetta was registere d on 7.6.2007 on report
made by one Nazir Ahmed Sumoro Regional Manager Utility Stores Corporation
Quetta, it has been reported therein that on getting information about effecting burglary
at Utility Store Wandat Colony by the appellant, he visited the sit e and ordered for
physical audit, which was conducted by Accounts Officer, whose report disclosed that
the concerned Incharge i.e. appellant provided bogus sale deposit slips in monthly sale
statement for the month of May, 2007 of Rs.351690, while shortage of Rs.347448/50
was also detected up to 3 -6-2007. Whereafter, on reconciliation of store further shortage
of Rs.342142 was detected. On said report case was registered against the appellant,
who was arrested, investigation was made. Case was challaned whe reby charge was
framed on 16 -8-2007 and on completion of evidence from both the sides the decision
was made on 30 -3-2009 by the trial Court, thereby convicted the appellant for offences
punishable under sections 409, 420, P.P.C. read with section 5(2) Act -II of 1947, while
sentenced him to suffer imprisonment for a period of six years concurrently with fine of
Rs.700,000, in default further suffer imprisonment for two years. Hence this appeal.
The main contention raised by the appellant is to the effect t hat he has been falsely
implicated in present case, as he declined to accept illegal demands of Regional
Manager and also on reporting the incident of dacoity committed in the Store. It is also
his contention that audit was carried out at his back, while h e was in police custody.
The complainant namely Nazir Ahmed Sumoro, who appeared before the court as
prosecution witness No.1 (P.W.1) and recorded his statement, wherein he deposed that
on telephonic information given by the appellant about dacoity he visi ted the Store
himself, while deputed Zaibullah, Accounts Officer for verification of losses in Store,
who physically checked the stock and called the appellant on 4 -6-2006 for
reconciliation of stock, whereafter, it was informed that in May, 2007 bogus dep osit
slips valuing Rs,351690 were incorporated and also shortage of Rs.347448/50 was
detected against the appellant, thus on basis of the same he judged that no dacoity was
committed in the Store. According to him Handing and Taking Over of the charge was
held on 5 -6-2007, whereupon again stock was reconciled and further shortage of
Rs.342142 was found. During course of cross -examination he denied that at time of
handing/taking over of charge appellant was in police custody. P.W.2 Zaibullah is the
person wh o prepared the Audit Report Ex.P/1 -D. According to him he along with
Muhammad Asif A.J Account Clerk and Muhammad Asif Account Clerk conducted
audit of the Store. According to him Exh.P/2 -A-21 to Exh.P/2 -A-27 are bogus Bank
Deposit Slips as they do not con tain Bank receiving stamps on them. Further, on
handing over of charge to Muhammad Ashraf Assistant Salesman further shortage of
Rs.342142 was detected as such total shortage come to Rs.689590. He also denied that
audit was carried out in absence of the ac cused, while he was in custody of police from
3-6-2007 to 9 -6-2007. P.W.3 Javed Akhtar, Area Manager Utility Stores, also denied
that appellant was in custody of police from 3 -6-2007 to 9 -6-2007. P.W.4 Munir
Ahmed, Investigation Officer of F.I.R. No.104 of 2007 whereby incident of dacoity was
registered, though also denied having custody of the appellant during said period, but
during course of cross -examination he admitted filing of Habeas Corpus petition and
production of appellant in the court on 8 -6-2007 by him.
Though the prosecution witnesses denied detention of accused/appellant from 3 -6-2007
to 9-6-2007, but during course of cross -examination this fact has not been denied by
them, specially by the police officials, that a Habeas Corpus petition was filed before
the Court on 4 -6-2007 on behalf of the appellant, while in connection thereof the
appellant was produced in the court on 8 -6-2007 in custody, thus negating their own
version. The appellant during course of trial brought on record copy of said application
Exh.D/2, reply of Muhammad Tariq Exh.D/3, report Exh.D/4, statement of Detainee
Imtiaz Shah (appellant) Exh.D/5, Orders of the Sessions Judge, Quetta in Habeas
Corpus application dated 8 -6-2007 as Exh.D/6 and Exh.D/7, whereby the appellant was
produced before the court in custody and his statement was also recorded. The said
petition was disposed of through order dated 9 -6-2007 whereby the learned Sessions
Judge, held that he appellant was in illegal detention for five days. It was further
directed therein that disciplinary action be taken against Muhammad Tariq and Munir
Ahmed, (he appeared in present case as P.W.4). Apart from all other evidence relying
on this piece of evidence, it becomes an admitted fact that the appellant was in illegal
custody of police from 4 -6-2007 to 9 -6-2007, during the period when said Audit and
reconciliation of stock was made in the Store by the Management. Further, the appellant
asserted, while recording his statement on oath that he was brought in custody by polic e
on 5-6-2007 to Store for handing over of the charge, where his signatures were obtained
on blank papers and on handing over of charge to Muhammad Ashraf he was taken back
to Thana. This Muhammad Ashraf appeared and got recorded his statement as defence
witness (D.W.1), who deposed that at occasion of taking charge the appellant was
brought by the Police Authorities handcuffed, while his (appellan t's) signatures were
taken on blank Audit Sheets, whereafter, he was taken back. During course of cross -
examina tion both the appellant and D.W. 1 deposed the fact of bringing him in custody
by police for handing/taking over of the charge. This deposition is neither contested, nor
denied by the prosecution. The Investigation Officer while appearing as P.W.7 stated
nothing in same respect, but he admitted the suggestion put to him that in respect of
allegation of keeping him (appellant) in illegal custody proceedings were directed to be
held against police officials, whereby Munir Ahmed S. -I. and Tariq IP/S.H.O. were
suspended. He further deposed that the appellant was got arrested in present case on 21 -
6-2007.
Keeping in view the whole set of evidence and record it is evident that before
registration of instant case, an incident was reported by the appellant about c ommitting
of dacoity at the Store on 3 -6-2007, whereupon F.I.R. No.104 of 2007 Police Station
Saddar Quetta was registered on same date. While thereafter, on 7 -6-2007 Nazir Ahmed
Sumoro P.W. reported about shortage of Rs.689590/50 in Store whereupon F.I.R.
No.119 of 2007 Thana Saddar Quetta was registered on 21 -6-2007, wherein appellant
was nominated, investigation was made, whereafter, case was challaned before the court,
on completion of trial the appellant was convicted of the charge and this order of
conviction is presently impugned before this court. It is apparent from record rather
from statements of prosecution witnesses namely Munir Ahmed (P.W.4) and Malik
Murad Khan (P.W.7) that no investigation was made in respect of F.I.R. No.104 of
2007. It seem s to be quite strange that despite registration of report no investigation was
made in the matter in respect of commission of dacoity, though statements of two
witnesses namely Zahoor Ahmed and Muhammad Tahir were recorded, who supported
the occurrence of incident, despite the same no further probe was made in the matter.
The fate of said F.I.R. has also not come on record. These facts are not considered by
the trial Court while deciding the present case.
In addition as per record during course of investi gation and also during course of trial
the original record in respect of all exhibited documents was never produced by the
Investigating _Officer during course of investigation nor even the same was produced
before the trial Court for observations, rather only photo copies of the documents were
produced which were taken into custody by the Investigating Officer, who thereafter,
produced the same before the court and got them exhibited. About the original record
there is no explanation. Even the original for ged Bank slips were not taken into custody
by the Investigating Officer, which were required to be taken into custody at the time of
registration of the case, being the basic document. Though representative of United.
Bank Limited appeared as P.W.5, while recording his statement deposed that the Bank
slips were brought by Investigating Officer (I0) for verification and out of the same
Exh.P/2 -A-21 to Exh.P/2 -A-27 were found to be forged as per record. He admitted that
these slips were photocopies, further a dmitted that he did not issue any certificate in his
regard. The original slips are not confronted to this witness nor sent to the Bank for
verification by the Investigating Officer. The trial Court failed to consider this aspect of
the case also.
From w hole set of evidence it is an established position that the incident of alleged
dacoity remained uninvestigated, the truth was not found out by the Investigating
Authority rather they simply relied on observation of P.W. that no dacoity has taken
place at Store. The original record was never produced rather only photocopies were
produced, which were taken, into custody, thereafter, produced during course of trial
before the court. The Investigating Officer did not try to probe into the matter by
himself, ra ther relied on the statements made by the Authorities of the Store. The
appellant was admittedly kept in illegal custody of police, who was brought at site in
custody while handing and taking over of the charge was made. His successor appeared
as defence w itness D. W.1 confirming the same. Though during course of cross -
examination he was asked about the alleged shortages, but he (the witness) showed his
complete ignorance about the alleged shortage of Rs.342142. He was not further cross -
examined despite the fact that he was the most relevant person. Furthermore, in case the
shortages in stock were detected, it was required to be established by the prosecution
that the shortage was occurred due to act of the appellant and the forged Bank slips
were prepared b y him. But no investigation was made in same respect. Furthermore, no
recovery of money or the stock was effected from possession of the appellant, nor
efforts were made for the same, neither any material was collected in same respect.
It is an admitted position that the appellant was in custody of police since 4 -6-2007,
while the audit and scrutiny of stock were made in his absence. In addition the alleged
forged Bank slips were also recovered when the appellant was not present at the site.
The trial Cou rt though arrived to the findings that the appellant failed to establish that
the shortages detected are based on mala fides, as such no benefit is extended to the
accused/appellant. But the learned trial Judge failed to assess the material properly
despit e brining on record order of the Sessions Judge, Quetta dated 9 -6-2007 by the
appellant, during course of examination under section 342, Cr. P. C, the ignorance
showed by the prosecution witnesses in respect of appellant being in custody of the
police on s aid dates i.e. 4 -6-2007 to 9 -6-2007 disclosed the mala fide on part of the
prosecution, the benefit of which was required to be extended in favour of the accused
person i.e. appellant. Further, non production of original record, specially the Bank
slips, t he forged ones, an adverse inference can easily be drawn.
The trial Court has punished the appellant under sections 409 & 420, P.P.C. and under
section 5(2) Act -II of 1947, but in view of material placed on record no offence under
section 420, P.P.C. is made out. As far as offences under section 409, P.P.C. and section
5(1)(c) Act -II of 1947 are concerned, though charge of criminal breach of trust by
public servant and criminal misconduct is asserted, but in view of above discussion the
prosecution has fa iled to establish both the charges against the appellant free from
reasonable doubt. Thus in view of above discussion while extending benefit of doubt in
favour of the appellant, instant appeal is accepted. The impugned judgment dated 30 -3-
2009 of Special Judge, Anti -Corruption Balochistan, Quetta is hereby set aside. The
appellant Imtiaz Shah son of Rafique Shah is acquitted of the charge in respect of F.I.R.
No. 119 of 2007 of Police Station Saddar, Quetta. He be released at once if not required
in any ot her case.
H.B.T./78/Q Appeal accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.