2010 Y L R 2309
[Quetta]
Before Jamal Khan Mandokhail, J
Dr. NASEER KAKAR ---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No. 292 of 2002, decided on 3rd June, 2010.
Penal Code (XLV of 1860) ---
----Ss. 409, 468 & 477 -A---Prevention of Corruption Act (II of 1947), S.5(2) ---Criminal
misconduct of public servant, criminal breach of trust, forgery and falsification of accounts ---
Appreciation of evidence ---Accused, cashier of a government hospital, was alleged to have
misappropriated medicines which he used to collect from Medical Store Department as
incharge of Medical Store of said hospital ---Accused contended that he had nothing to do
with receiving medicines, and Medical Store Incharge was responsibl e for all transactions of
medicines ---Evidence on record showed that the accused used to collect medicines from
Medical Store Department but prosecution failed to place on record any notification showing
posting of accused as Medical Store Incharge ---Accus ed, in fact, .was given charge of
Medical Store unofficially but it could not be found out as to who had given him charge of
such important position orally or unofficially ---Prosecution, thus, failed to prove appointment
of accused as Incharge of medical s tore---Indents issued by Medical Superintendent of the
hospital to the Incharge, Medical Store Department showed that medicines were requisitioned
but it was not proved that the medicines were received and misappropriated by the accused ---
As per procedure, medicines were requisitioned through indents issued by the Medical
Superintendent of the hospital and were received by Incharge of Medical Store --- Indents
produced by prosecution showed that alleged medicines were received by the Store Incharge
who was n ot competent to alter indents issued by the Medical Superintendent ---Record of the
case revealed that alterations made in indents were endorsed by the Medical Superintendent
but he disowned his initials in the court ---Prosecution had held the accused solel y responsible
for alleged offences without associating the Medical Superintendent ---Prosecution also failed
to place on record the Stock Register which could prove whether the medicines were received
by Incharge, Medical Store from Medical Store Department and given to patients ---
Allegations levelled by prosecution were of vague nature because exact value of embezzled
medicines could not be determined without ascertaining the quantity of medicines so
misappropriated -Non-production of Stock Register, theref ore, made the case of prosecution
highly doubtful ---Evidence revealed that the Medical Superintendent and Incharge of
Medical Store were responsible for requisition, management and distribution of medicines ---
Prosecution failed to show that the accused was Incharge of Medical Store and he received
medicines which were allegedly misappropriated ---Appeal was accepted and accused was
acquitted of the charges in circumstances.
Naeem Akhtar Afghan for Appellant.
Noman Shafique for Respondent.
ORDER
JAMAL KHAN MANDOKHAIL, J. ---This appeal has been presented against the judgment
dated 31.12.2002, passed by Special Judge, Anti -Corruption Balochistan, Quetta, whereby;
the appellant was convicted and sentenced as under: -
(i) Under section 409, P.P.C . to suffer R.I. for a term of five years with fine of
Rs.82,44,791 which shall be recoverable from moveable and immovable properties
owned by the convict/accused. Process as provided under section 386, Cr.P.C. be
issued to District Revenue Officer, Pishin, fo r attachment of the properties owned by
the convict and their sale by way of auction to satisfy the sentence of fine.
(ii) Under section 468, P.P.C . He is convicted and sentenced for a term of five years
R.I. with fine of Rs.10.00,000. In default of paym ent of fine, he shall further undergo
for 1 1/2 years' R.I.
(iii) Under section 477 -A, P.P.C . He is convicted and sentenced for a term of five
years R.I. with fine of Rs.10,00,000. In default of payment of fine, he shall further
undergo for 1 1/2 years R .I.
(iv) Under section 5 (2) Prevention of Corruption Act of 1947 , to suffer R.I. for a
term of three years with fine of Rs.1,00,000. In default of payment of fine to further
suffer R.I. for a term of one year.
However, benefit of section 382 -B, Cr.P.C . is extended in his favour.
2. Briefly stated facts of the case are that, an F.I.R. was registered through written complaint
of Dr. Mian Ajmal Latif, Medical Superintendent, Helper Eye Hospital, Quetta, against
Cashier of the hospital namely Taj Muhamma d with allegation of misappropriation of the
amount.
During course of investigation, the appellant, Dr. Noor Muhammad Bugti and Dr. Abdul
Rasheed Baloch were arrayed as accused in the case. Case to the extent of said Taj
Muhammad, Dr. Noor Muhammad Bugti and Dr. Abdul Rasheed Baloch was proceeded and
finally, the Cashier was convicted and the rest were acquitted of the charge.
Incomplete challan to the extent of appellant was submitted before the Court. While framing
charge, the appellant was shown as I ncharge of Medical Store of the hospital and an
allegation of embezzlement amounting to Rs.8244791 had been levelled, which the appellant
had denied and preferred to face trial.
To prove its case, the prosecution has produced fourteen (14) witnesses and placed on record
numerous documents, whereas, the appellant was examined under section 342, Cr.P.C. After
conclusion of case and hearing the parties, the trial Court has convicted and sentenced the
appellant as mentioned hereinabove, hence this appeal.
3. Learned counsel for appellant stated that the allegations levelled against the appellant are
baseless and without any substance. He never remained Incharge of Medical Store, Helper
Eye Hospital, Quetta, nor was connected in any way with receiving medicin es, therefore, no
question of its embezzlement arises. According to him, Store Keeper was held responsible by
competent Court of law for all the transactions of medicines, but the appellant has wrongly
been involved. The prosecution has failed to prove the allegation, as such, the judgment
impugned is bad in the eyes of law.
4. Learned State's counsel has vehemently opposed the contention of counsel for appellant
and submitted that the prosecution has fully established and proved its case against the
appe llant through oral, as well as, documentary evidence. He, while posted as Incharge,
Medical Store of Helper Eye Hospital, Quetta, used to collect the medicines from Medical
Store Department (M.S.D.), Quetta, but did not supply and has embezzled the same va luing
Rs.8244791. The trial Court has passed just and proper decision, which is required to be
maintained.
5. I have heard learned counsel for the parties and have perused the record, as well. Main
allegation against appellant as set out in the charge is that he was posted as Incharge, Medical
Store, Helper Eye Hospital, Quetta, w.e.f. December 1994 till November 1997 and has
embezzled an amount of Rs.8244791 by misappropriating the medicines. First of all, it has to
be seen, as to whether, the appellant was posted as Incharge of the Medical Store in the said
period? It is an admitted fact that a notification is required for posting somebody as Medical
Store Incharge. In present case, the prosecution has badly failed to place on record any such
notificatio n showing posting of the appellant as Medical Store Incharge, however, it has been
stated that, orally, the charge of Medical Store was given to him. It is strange to note here as
to how somebody could be assigned such an important job without any document ation. It is
not known as to who had deputed the appellant orally and why such authority was not held
responsible? Hence, the prosecution has not been able to prove appointment of the appellant
as Incharge, Medical Store. Thus, in the circumstances, first contention of the prosecution
that appellant was Incharge of the Medical Store, is disproved.
Apart from above, the prosecution has heavily relied upon certain indents issued by Medical
Superintendent to Incharge, Medical Store Department (M.S.D.), Quett a, which they have
produced as Art. A/29 to Art. A/60. These indents show that Medical Superintendent, Helper
Eye Hospital, Quetta, demanded medicines from Incharge, M.S.D., but it is nowhere proved
that the same were received by the appellant. The prosecu tion has produced Ex -Medical
Superintendent, Dr. Naimatullah Gichki, in evidence as P.W.9, who stated that the appellant
was Medical Store Incharge and Mr. Ali Ahmad was the Store Keeper. According to him, as
per procedure, the medicines were to be demande d through indents issued by Medical
Superintendent and to be received by Incharge, Medical Store, Helper Eye Hospital, Quetta.
He has admitted the fact that the indents, which the prosecution has produced before the
Court, show that, alleged medicines were received by Ali Ahmad, Store Keeper of the
hospital. The Medical Superintendent, in reply to question, has admitted the fact that no
addition, alteration and deletion in the indents can be done without his permission and
signature, as such, the Medical Of ficer of M.S.D. is not authorized to issue medicines other
than those mentioned on the indents.
Dr. Muhammad Ismail appeared as P.W.2, who remained posted as Medical Officer M.S.D.,
Quetta, also explained the procedure for supply of the medicines. Accord ing to him, he used
to supply medicines to all the Government Hospitals on demand of their respective Medical
Superintendents. He stated that the appellant being Incharge Medical Store, and one, Ali
Ahmed, Store Keeper used to receive medicines from him ac cording to indents issued by
Medical Superintendent, Helper Eye Hospital, Quetta, and after supplying the medicines, said
Mr. Ali Ahmed used to put his signatures on copy of the indents. The medicines were to be
supplied on demand of the M.S. and in case o f any variation, signature of the M.S. was
necessary, whereas, Incharge, Medical Store, is not competent to alter the indents issued by
the M.S. He further admitted the fact that being a Medical Officer of M.S.D., he, too, is not
competent to issue medicin es other than demanded by the concerned M.S. According to him,
he issued medicines to Ali Ahmad, value of which is more than Rs.100,000,00.
Considering the statement of M.S. and comparing it with said indents, it reveals that the
medicines were received by Store Keeper, Ali Ahmad, through the indents issued by the M.S.
Most of the indents show alteration with initials of the M.S., but in the Court, the M.S. has
not accepted these initials to be his own. Now, question arises, as to how the Medical Officer
of M.S.D. was authorized to issue medicines in excess of demand of the Superintendent,
Helper Eye Hospital, Quetta. It is strange to note here that the prosecution has levelled entire
allegation upon the appellant and has not associated the M.S. of the Hos pital, as well as,
Medical Officer of M.S.D.
Perusal of statement of P.W.2, it is apparent that in the entire scenario, said Store Keeper, Ali
Ahmed, had a pivotal role of receiving medicines from M.S.D., Quetta. After receiving the
same, it was necessar y for him to have handed over these medicines either to Incharge,
Medical Store of the hospital or to have himself deposited those medicines in the store with
entry in stock register.
Astonishingly, the prosecution has not placed on record stock register to prove that the
medicines received by Ali Ahmed from M.S.D. were actually incorporated in the same or
otherwise? Such register was very important piece of evidence to determine as to who
received how much medicine and, out of which, how much were disbur sed to the patients,
attending the hospital. Thus, the prosecution has not been able to show as to how they have
assessed the alleged amount of embezzlement. The allegations are of general nature,
therefore, by not producing the stock register, the prosecu tion story has become highly
doubtful. Entire evidence and documents produced by the prosecution reveal that, M.S. and
Ali Ahmed were the main persons, who were responsible for demand, receiving, management
and distribution of the medicines. He, while appe aring before the Court, has not stated as to
what efforts t were made by him after issuing each and every indent. Had he been vigilant, no
embezzlement could have been occurred. The prosecution story, in the circumstances, is
highly doubtful and the eviden ce does not inspire confidence. By simply saying that the
appellant was posted as Incharge, Medical Store, Helper Eye Hospital, Quetta, is not enough
to constitute the offence against him.
To prove the allegation against the appellant, the prosecution ha d to show that the appellant
was Incharge of Medical Store and he had received the medicine, which were embezzled. The
evidence produced by prosecution is absolutely below the standard, which is not confidence
inspiring to convict the appellant. Though the prosecution has produced fourteen (14)
witnesses and exhibited numerous documents, but none was upto the mark, because; to prove
a case, quality is required, whereas, quantity does not matter.
6. The trial Court has not properly appreciated the evidence and material available on record
and has come to a wrong conclusion by holding the appellant responsible for commission of
offence being Incharge, Medical Store, which is an illegality and irregularity, on the basis of
which, impugned judgment is not sust ainable.
Thus, what has been stated and discussed hereinabove, I am inclined to accept the appeal, set
aside the judgment impugned dated 31 -12-2002, passed by Special Judge, Anti -Corruption
Balochistan, Quetta, resultantly, the appellant is, hereby, acqu itted of the charge.
A.R.K./68/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,
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