2021 M L D 60
[Balochistan]
Before Abdullah Baloch, J
MUHAMMAD ZEESHAN---Petitioner
Versus
The STATE--- Respondent
Criminal Revision No.10 of 2019, decided on 19th March, 2020.
Penal Code (XLV of 1860) ---
----Ss. 182, 211, 409, 380 & 454---False information with intent to cause public servant to
use his lawful power to the injury of another person, false charge of offence made with intent
to injure, criminal breach of trust by public servant, theft in dwelling house, lurking house -
trespass or hous e-breaking in order to commit offence punishable with imprisonment ---
Appreciation of evidence ---Absence of mens rea---Effect ---Complainant/police constable got
lodged FIR that his official Kalashnikov was stolen from his house ---Prosecution case was
that t he complainant had failed to deposit the Kalashnikov with the department; that he had
embezzled the official Kalashnikov; that he got lodged a false FIR and that during investigation no signs of theft were observed---Prosecution case was based upon
presump tions and assumptions ---Complainant himself had reported to police station with
regard to missing of official Kalashnikov from his house, thus, he discharged his liability and apparently no mens rea existed on this part ---Petition was accepted, judgments p assed by
Magistrate and Sessions Judge were set aside and the complainant, was acquitted of the charge.
Rehmatullah Sodozai for Petitioner.
Wajahat Khan Ghaznavi, State Counsel.
` Date of hearing: 17th March, 2020.
JUDGMENT
ABDULLAH BALOCH, J. ---This ju dgment disposes of Criminal Revision Petition
No.10 of 2019 filed by the petitioner Muhammad Zeeshan Yousuf son of Muhammad
Yousuf, against the Order dated 12th February 2019 passed by learned Additional Sessions Judge -I Quetta ("appellate Court"), whereby the appeal filed by the petitioner was dismissed,
maintaining the judgment dated 13th September 2018 passed by learned Judicial Magistrate -
XIII Quetta (hereinafter referred as "the trial Court"), whereby the petitioner was convicted under Section 182, P.P .C. and sentenced to suffer R.I. for six months; he was also convicted
under Section 211, P.P.C. and sentenced to suffer R.I. for one year; besides he has also been
convicted under Section 409, P.P.C. and sentenced to suffer R.I. for one year with fine of
Rs.10,000/ - and in default thereof he shall further suffer two months' SI, with the benefit of
Section 382 -B, Cr.P.C. The appeal filed by the petitioner(sic).
2. Facts of the case are that on 24th August 2017, the complainant Gul Faraz Jadoon, SI,
lodged F IR No.131 of 2017 at Police Station Zarghoon Abad Quetta, with the averments that
on 5th April 2017 the petitioner (Muhammad Zeeshan) has lodged a report at police station Zarghoon Abad Quetta that he and his wife are constables in police department and pr esently
they are residing in Nawa Killi Quetta and a year before the Kalashnikov bearing No.4604991 was issued to him by the department as he was serving his duties with Hon'ble Justice Kamran Mulakhail. Approximately 40/45 days before he was transferred t o MT
section, hence he kept his official Kalashnikov in his house. On the fateful day he and his wife both went to their duties and when at about 05.00 p.m. they returned to their home and they observed that the locks of the door were broken, while the off icial Kalashnikov with two
magazines, Rs.80,000/ - and jewelries were also missing. Hence, FIR No.40 of 2017 was
lodged at the said police station under Sections 380, 454, P.P.C., thus investigation was conducted and the I.O. sent his report that no evidenc e was found showing that such incident
has taken place. Inquiry conducted by DSP Airport, who submitted his report that the accused embezzled the official Kalashnikov and lodged a false FIR of its theft.
3. On completion of investigation; challan was submi tted in the trial Court, which
indicated the charge to the petitioner, who denied the same. Hence, during trial the prosecution produced five witnesses. On close of prosecution side the petitioner was examined under Section 342, Cr.P.C. He also recorded hi s statement on oath under Section
340(2), Cr.P.C. and also produced four DWs in his defence. On conclusion of trial and after
hearing arguments, the petitioner was convicted and sentenced by the trial Court as
mentioned above. The appeal filed by the petit ioner was also dismissed. Whereafter, instant
petition has been filed.
4. Heard the learned counsel and perused the available record. The perusal of record
reveals that it is a case of two versions i.e. first set -up by the petitioner and the second by the
prosecution. According to the plea taken by the petitioner that he is serving as Constable in
Police Department and whilst serving his duties with Hon'ble Mr. Justice Kamran Mulakhail, the department has issued him a Kalashnikov, while 40/45 days earli er he was transferred to
MT Section and on the unfortunate day of occurrence when he along with his wife were on their duties being police constables; unknown culprits trespassed their house by breaking the locks of door and have taken away the official Ka lashnikov along with magazine, cartridges,
jewelries and cash amount and in such behalf he accordingly lodged FIR No.40 of 2017 under Sections 380, 454, P.P.C. at the concerned police station. In support of his contention the petitioner produced four DWs.
5. The contra plea has been taken by the prosecution that after registration of FIR
No.40/2017 on the complaint of petitioner, the investigation in the matter was carried out and during investigation no signs of theft have been observed and it appears that the petitioner
has embezzled the said official Kalashnikov. In such behalf the prosecution has produced the evidence of five witnesses.
6. I have taken into consideration both the pleas in juxtaposition and observed that the
plea taken by the prosecution is mainly based upon presumptions and assumptions on the ground that since the transfer of the petitioner had taken much prior from the date of
occurrence, but the petitioner has failed to deposit the official Kalashnikov in the
department, thus it was pre sumed by the department that since the petitioner had not
deposited the official Kalashnikov in the department, as such, embezzled the same and in order to save his skin, he has lodged a false FIR No.40/2017 in the said police station. It has been observed that the entire plea of the prosecution is based upon presumption, thus a
presumption can also be drawn on the part of petitioner that might be he was right in his plea
and the occurrence of theft was committed in his house and unknown culprits had taken away
the official Kalashnikov. Admittedly, presumptions are being drawn from both the sides and it is unjustified to consider the one that was placed by the prosecution and to ignore the other taken by the petitioner.
7. Likewise, negligence is also being drawn from both the sides i.e. the prosecution and
the petitioner. Though, it was the negligence on the part of the petitioner that he had not deposited the Kalashnikov in the department soon after his transfer, but on the other hand it is also the neglige nce on the part of department that after the transfer of the petitioner, no
directions were issued to the petitioner for the deposit of the said official Kalashnikov and without proper handing/taking over of charge, he was relieved from his earlier duties and was assigned a new duty. Since, the petitioner himself has reported to Police Station with
regard to missing of official Kalashnikov from his own house, thus he discharged his liability
and apparently no mens rea exists on the part of the petitioner to embezzle the same
otherwise he could have kept mum for a considerable long period when otherwise the official authorities have not demanded the deposit of same.
8. In my opinion, since the petitioner has been involved in the instant case on the basis
of presumptions and assumptions that due to non- deposit of official Kalashnikov within time,
he has embezzled the same, but merely on the basis of presumptions it cannot be said that the same was embezzled by the petitioner, until the prosecution through suffi cient incriminatory
evidence succeeds in substantiating the charge. At the most, it is a case of negligence on the part of petitioner and not a criminal breach of trust or a criminal liability and at the most the petitioner could be penalized through depar tmental inquiry with the charges of negligence
under the applicable service rules, but he cannot be prosecuted solely on the basis of presumptions. The jurisprudential concept of negligence differs in civil and criminal law. For an act amounting to crimina l negligence, the degree of negligence should be much higher i.e.
gross or of a very high degree, however, the negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
9 The overall reappraisal of evidence would establish that the prosecution has failed to
prove the charge of embezzlement against the petitioner. The non- recovery of Kalashnikov
from the petitioner during investigation and not producing any single incriminatory evidence against the petitioner by the prosecution has created sufficient doubts in the case of prosecution, but it appears that both the Courts below have failed to extend such benefits of doubts in favour of the prosecution. The concurrent findings of both the Courts below are
suffering from illegalities, irregularities based upon wrong presumptions, hence are not sustainable.
For the foregoing reasons, the petition is accepted and the impugned judgment dated
13th September 2018 passed by Judicial Magistrate -XIII Quetta and Order 4th January 2019
passed by Additional Sessions Judge -I Quetta are set -aside, accordingly the petitioner
Muhammad Zeeshan is acquitted of the charge. He is on bail; his bail bonds are discharged
after lapse of appeal period.
SA/158/Bal. Petition 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.