2015 Y L R 2214
[Balochistan]
Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ
The STATE through Prosecutor General ---Appellant
versus
MUHAMMAD KALEEM BHATTI ---Respondent
Cr. Acquittal Appeal No.40 of 2009, decided on 29th May, 2015.
Penal Code (XLV of 1860) ---
----S. 409---Qanun- e-Shahadat (10 of 1984), Arts.72, 75, 76 & 78---Criminal Procedure Code (V
of 1898), S.417(2- A)---Criminal breach of trust by public servant ---Proof of contents of
documents ---Appeal against acquitta l---Reappraisal of evidence---Accused, who remained
posted as cashier in the office of the Deputy Commissioner, was transferred to the office of
Deputy Commissioner of other District, but he failed to hand over complete record to the newly
posted cashier r elated to accounts of the office despite direction in that behalf ---Accused who
had denied the allegation against him, had neither recorded his statement under S.340(2),
Cr.P.C., nor produced any witness in his defence ---Trial Court, vide impugned judgment ,
acquitted accused of the charge against him ---Trial Court based its findings on the documentary
evidence tendered by accused ---Said documentary evidence had not been authenticated by
calling the representative of the concerned department ---No opportunity of cross -examination
was provided to the prosecution to challenge the authenticity of said documents, which was in
clear violation of Art.78 of Qanun- e-Shahadat, 1984---Contents of said documents were required
to be proved through primary and secondary evidence, as provided under Art.72 of Qanun- e-
Shahadat, 1984---Trial Court despite the fact that accused had declined to produce any evidence
in his defence, had taken photocopies of the documentary evidence on record on behalf of the
defence---Procedure ado pted by the Trial Court, was not only contrary to the provisions of
Arts.72, 75, 76 & 78 of Qanun- e-Shahadat, 1984, but the prosecution had been deprived to check
the authenticity of the documents by way of cross -examination ---Findings of the Trial Court,
appeared to be perverse, arbitrary, illegal and based on inadmissible evidence ---Alleged
documentary evidence tendered by accused in his defence in the manner being not recognized by
law, impugned judgment of the Trial Court, was not sustainable ---Appeal w as partly allowed,
impugned order passed by the Trial Court was set aside, and case was remanded to the Trial
Court for allowing accused to produce any documentary or oral evidence in his defence, in
accordance with law ---Trial Court was directed to hear t he parties and decide the case within a
period of three months, in circumstances.
2005 SCMR 152; 2009 PCr.LJ 619 and 2005 PCr.LJ 882 ref.
Miss. Sarwat Hina, Additional Prosecutor General for the Appellant.
Respondent (Present in person).
Date o f hearing: 29th May, 2015.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. --Allegation against the respondent was that he
remained posted as Cashier in the Office of the Deputy Commissioner, Quetta from 1985 to 30th
June 2001 and on 23rd October, 2001 he was transferred to the Office of the Deputy
Commissioner, Chagai, but he had failed to handover the complete record to the newly posted
Cashier related to accounts record of Deputy Commissioner Office, Quetta. The respondent was
directed vide letter dated 30th November 2001 to handover the record, but he failed to comply
with the said letter. On the basis of aforesaid letter. FIR No.143 of 2002 was registered with
Police Station Civil Line. Quetta on 9th July 2002, under Section 409, P.P.C.
2. At the trial, the prosecution examined P.W.1 Khalid Saifullah. P.W.2 Muhammad Saleem
ASI, P.W.3 Syed Aurangzaib Shah, Ex -EDO Revenue, Quetta, P.W.4 Muhammad Habib
Hashmi, District Nazir of EDO Revenue Quetta, P.W.5 Ibrar Hussain SI and P.W.6 Muhammad
Khan DSP.
3. When examined under section 342, Cr.P.C., the respondent denied the allegation of the
prosecution. He neither recorded his statement under section 340(2), Cr.P.C., nor produced any
witness in his defence.
4. The Special Judge, Anti -Corruption, Quetta (hereina fter referred as to "the trial Court")
vide judgment dated 31st October, 2008 (hereinafter referred as to "the impugned judgment")
acquitted the respondent of the charge.
5. Learned Additional Prosecutor General appearing for the appellant contended that the
respondent was posted as Cashier at DCO Office, Quetta from 1st July 1985 to June 1994 and
from 1st February 1999 to 30th June 2001, but on his transfer from Quetta to Nushki on 23rd
October 2001, he did not handover the proper charge to his successor , namely, Muhammad
Habib Hashmi; that Articles 20 to 26 and other essential evidence proved misappropriation and
breach of trust against the respondent, which aspects of the matter have altogether been ignored
by the trial Court, therefore, the impugned judgment reflects misreading and non- reading of the
evidence; that despite issuance of letter dated 26th December, 2001 for handing over the record,
the respondent failed to comply with the said letter and thereby found guilty of offence, but the
trial Court has failed to appreciate the evidence on record in its true perspective; that through oral
and documentary evidence, the facts related to entrustment of certain record and breach of trust a
well as misappropriation was proved, but the trial Court has not given any findings in respect of
the documentary evidence produced by the prosecution, that the respondent neither recorded his
statement under section 340(2), Cr.P.C. nor produced any witness in his defence, but the trial
Court not only relied upon the ce rtain documents to have been produced by the respondent, but
also rejected the case of the prosecution on the said documents regarding which no opportunity
of cross -examination had been extended to the appellant (prosecution), therefore, the impugned
judgm ent is perverse, arbitrary and cannot be sustained.
6. In rebuttal, the respondent argued his case in person and contended that he was
transferred to DCO Office, Quetta on 22nd October, 2001 and remained there till 23rd November
2001. Thereafter, he was transferred to the Board of Revenue and remained there till 12th
December 2001. Again, he was transferred to the Office of the Deputy Commissioner, Nushki,
where, he initiated his duties till 30th January 2002. He further contended that the record in
quest ion was never in his possession, as the same was taken by the Anti -Corruption authorities in
respect of case registered against Cashier Taj Muhammad and the missing record was not of his
tenure.
7. We have heard the learned counsel for the appellant and the respondent in person and
have gone through the record of the case. We find that prosecution alleged entrustment and
misappropriation of the following record to the respondent during his posting, as a Cashier at DC
Office, Quetta from 1985 to 30th June 2001: --
"The missing record includes (i) Cash Book of DC Office Quetta far the period from 3/97
to 30- 06-2001, (ii) Dead Stock Register, (iii) MNA/MPA's Release Order Funds (iv) Log Books
of vehicles (v) Trunk Call Register, (vi) Files of Zakat and Ushr , (vii) Cabin Rent Files, (viii)
Details of release of cheques for schemes and pay, (ix) List of Deputy Commissioners
Bungalows/funds released, (x) Service Role of Subordinate Offices/Courts, (xi) Consignment of
budget and (xii) Details of budget.
8. The impugned judgment passed by the trial Court reveals that despite of the fact that the
respondent had neither recorded his statement under section 340(2), Cr.P.C. nor produced any
documentary or oral evidence in his defence, but the trial Court based its f indings on the
documentary evidence i.e. Ex.D/1 to Ex.D/69, tendered by the respondent and determined as
under: --
"9. The evidence produced by the prosecution is oral and documentary. The accused
remained cashier in defunct D. C. Office Quetta from 1 -7-1985 till June 1994 and from 1- 2-1999
to 21- 10-2001 as is evident from posting/transfer orders and charge reports. Ex.D:10 to Ex.D: 15.
Besides admission of this fact by P.W.4 Muhammad Habib Hashmi Cashier.
13. In rebuttal the contention of accused rema ined that he was involved in this case
unjustly due to personal grudge by Abdul Wajid Superintendent and Zulfiqar Ahmed Senior
Clerk as he sent application for inquiry against them and assisted ACE in cases against Ex -
Cashier DC Office Taj Muhammad. He pro duced application for inquiry Ex.D:17, copies of FIR
No. 1/Q/99, 10/Q/99, 11/Q/99 registered against Taj Muhammad. He also produced copy of his
ACR for the year 1997 wherein, he was graded as excellent official, seizure memo of case No.
1/Q/99, wherein, AC E took record into possession of D. C. Office Quetta, reply of Audit paras.,
Extracts of Cash Book of MPA funds. The other documents produced by him are irrelevant,
therefore, not considered. He also produced during arguments extracts of cash books for the
period from 20- 6-2000 to 17- 10-2001 of defunct D. C. Office Quetta - Mark "A". Copy of Letter
No.228- E 6/2000- P.F. dated 16- 3-2002 sent by DCO Quetta to EDO (R) Quetta Mark "B",
investigation report by Aurangzaib Shah EDO (R) Quetta Mark "C", showing that he has not
misplaced the record.
14. The details of missing record is available at S.Nos.1, 2, 3, 5 to 16, 17 and 18 of
Art.A:5 (Ex.D: 10- A), which include cash book for the period from 22- 3-1997 to 30- 6-2001,
paid vouchers of gazzated officers from 3/ 2000 to date, Dead Stock Register from 1989 to date.
PLA list, year wise bank statement, assignment list of development and non- development
schemes, list of machinery, furniture register, log books, Trunk Call Register, Tender quotation
files of cabins, ac quaintance rolls of subordinate offices, grant -in-aid 1988 to 1993 and 96 to
date.
15. The missing cash book pertaining to his period and paid vouchers are available as the
copy of cash book Mark "A" has been filed during arguments whereas paid vouchers / bills is
confirmed from list of record handed over by him to his successor Ex.D:1- A-1 to Ex.D:1- A-9.
The remaining missing record at S.Nos.5 to 16 and 18 are not directly concerned with him."
9. It appears that at the trial, a novel procedure was adopted by the trial Judge. The
documentary evidence from the side of the defence i.e. Ex.D/1 to Ex.D/69 had been taken on
record, either during the suggestion to the prosecution witnesses, or during the statement of the
respondent under Section 342, Cr.P.C. T he documents Ex.D/1 to Ex.D/69 are photocopies and
without adhering to the provision of Article 76 of the Qanun- e-Shahadat Order, 1984 (hereinafter
referred as to "the Order, 1984"), the said documents were taken on record. The alleged
documentary evidence pertain to the official record of DCO/DC Office, Quetta, but it had not
been authenticated by calling the representative of the concerned department. Moreover, while
bringing the aforesaid documentary evidence on record, no opportunity of cross -examinatio n was
provided to the prosecution to challenge the authenticity of the said documents, which is in clear
violation of Article 78 of the Order, 1984. The contents of the documents are required to be
proved through primary and secondary evidence, as provided under Article 72 of the Order,
1984. The contents of the documents can be proved through the secondary evidence, if the
conditions mentioned under Article 76 of the Order, 1984 are available. Reference in this context
can be placed to the judgments report ed in 2005 SCMR 152 and 2009 PCr.LJ 619. The
production of the documents and proof of documents are two different subjects. Documents
could be produced in evidence subject to proof as required under Article 78 of the Order, 1984,
which reads as under: --
"78. Proof signature and handwriting of person alleged to have signed or written
document produced.--- If a document is alleged to be signed or to have been written wholly or in
part by any person, the signature or the handwriting of so much of the document as is alleged to
be in that person's handwriting must be proved to be in his handwriting."
10. The aforesaid provision provides that document can be proved by calling such person, in
whose presence same were written and by proof of admission by the per son who was alleged to
have signed or written documents in question.
11. Besides, Article 75 of the Order, 1984 provides proof of documents by primary evidence
while Article 76 of the Order, 1984 provides that secondary evidence might be given, if
existe nce or contents of a document was not available. Secondary evidence cannot be admitted in
evidence except on completion of condition laid down in Article 76 of the Order, 1984, as held
in 2005 PCr.LJ 882.
12. In the instant case the respondent in his sta tement under section 342, Cr.P.C., while
answering the question No.2 produced documents Ex.D/10 to Ex.D/15 and on the question as to
whether he intends to record his statement under Section 340(2), Cr.P.C. and production of
witnesses in defence, he replied as under: --
"Q No.8 Do you want to be examined on oath?
Ans.. No Sir.
Q No.9 Do you want to lead defense?
Ans: No Sir.
Q No.10 Whether you want to say anything else?
Ans.. I am innocent. I tender documents Ex.D.16 to Ex.D:69 in support
of my contention for consideration."
12. From the above, it appears that respondent in his aforesaid statement specifically declined
either to record his statement on oath, as envisaged under Section 340(2), Cr.P.C., and or to
produce any evidence in defence, but the trial Judge, despite of the f act that respondent declined
to produce any evidence in his defence, had taken photocopies of the documentary evidence on
record, on behalf of the defence either in the statement of respondent under Section 342, Cr.P.C.
or through suggestion to prosecution witnesses and thereby considered the same as documentary
evidence on behalf of the defence i.e. respondent. The procedure adopted by the trial Court by
allowing the respondent to produce documentary evidence in his defence in a such manner, is not
only contrary to the provisions of Articles 72, 75, 76 and 78 of the Order, 1984, but on the other
hand the prosecution had been deprived to check the authenticity of Ex.D/1 to Ex.D/69 by way
of cross -examination; thus, the findings of the trial Court appears to be perverse, arbitrary, illegal
and based on inadmissible evidence. The alleged documentary evidence tendered by the
respondent in his defence in the manner, not recognized by law, therefore, impugned judgment is
not sustainable. Since, aforesaid documents were brought on record on behalf of the respondent
in the manner not recognized by law, therefore. without dilating upon the merits of the case, it is
appropriate that an opportunity is provided to the respondent for production of his documentary
or any o ther oral evidence in his defence.
In view of the above, the Criminal Acquittal Appeal No.40 of 2009 is partly allowed, the
impugned judgment dated 31st October, 2008, passed by the Special Judge Anti -Corruption
Balochistan Quetta is set aside and the case is remanded to the trial Court for allowing the
respondent to produce any documentary or oral evidence in his defence, if he desire so, in
accordance with law. The trial Court after hearing the parties, decide the case within a period of
three months.
HBT/71/Bal Case remanded.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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