2018 Y L R 187
[Balochistan]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
STATE through Special Public Prosecutor, Anti -Corruption ---Appellant
Versus
ALLAH DINA---Respondent
Crl. Acq. Appeal No.330 of 2011, decided on 15th May, 2017.
Penal Code (XLV of 1860) ---
----Ss. 409, 420, 465, 468, 471 & 109 ---Prevention of Corruption Act (II of 1947), S. 5(2) ---
Criminal Procedure Code (V of 1898), S. 417--- Criminal breach of trust by public ser vant or
by banker, merchant, agent, cheating and dishonestly inducing delivery of property, forgery,
forgery for the purpose of cheating, using as genuine a forged document, abetment, public servant committed or attempt to commit criminal misconduct---Appr eciation of evidence ---
Appeal against acquittal ---Prosecution case was that accused -respondent got transferred the
land of accused of another case in the name of his sister while the said accused of another case was in judicial custody ---Record showed that accused of another case was in judicial
custody from 8th September, 2008 to 30th September 2008, whereas the mutation showed his
presence before the revenue authorities on 22nd September 2008 ---Contents of mutation
reflected that same was prepared on 22nd August 2008, however, attested and signed by the
parties in presence of Naib Tehsildar on 14th October 2008 ---Said document showed that
transfer of property was made on 14th October, 2008 instead of 22nd September, 2008, while during the said dates, accus ed of another case was on bail ---Attending circumstances
suggested that presence of that accused before the Revenue Autho- rities on 14th October,
2008 could not be ruled out ---Circumstances established that there was no evidence available
on record to connect the accused -respondent with the commission of offence ---Appeal
against acquittal was dismissed in circumstances.
Amir Hamza Mengal, Additional P.G. for the State.
Muhammad Saleem Lashari for Respondent.
Date of hearing: 2nd May, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Acquittal Appeal
No.330/2011 filed by the State through Special Public Prosecutor Anti -Corruption
Establishment Balochistan Quetta, against the judgment dated 28th June 2011 (hereinafter referred as, "th e impugned judgment") passed by the learned Special Judge Anti -Corruption
Balochistan Quetta, (hereinafter referred as, "the trial Court"), whereby the accused/respondent was acquitted of the charge under Sections 409, 420, 465, 468, 471, 109, P.P.C. R/W S ection 5(2) Act -II of Prevention of Corruption Act, 1947.
2. Facts of the case are that on 4th June 2010 the complainant Malik Muhammad
Ramzan, SI, lodged FIR No.2/Q/2010 under above mentioned offences, at PS ACE Quetta
against the accused -respondent, stat ing therein that on 27th August 2009 Muhammad
Hashim, IP/CO ACE reported that in ACE cases bearing FIR No.1 /N/2008, 1/M/2008 and 1/L/2008 accused Syed Aurangzaib Shah, Ex -DCO Nasirabad, Kech, Turbat and Musakhail
during his tenure has embezzled government funds and caused huge losses to the government
exchequer, who was in judicial custody, during which the learned Special Judge Anti -
Corruption Balochistan called report from Revenue Department about the properties of Syed Aurangzaib Shah. It was further averred that during custody accused Syd Aurangzaib Shah with the connivance of accused -respondent Allah Dina Patwari got transferred his property
situated at Khushkaba Saddat Shadinzai -II measuring 22- rods, 19- poles upon the name of his
sister Bibi Atia Gul daughter of Syed Ali Gohar Shah through mutation No.1314 dated 22nd September 2008 by showing presence of accused Syed Aurangzaib Shah in Tehsil Office. It was further mentioned that the revenue department did not mention about the mutation No.1314 with ma la fide intention and this fact has also not been confirmed by Superintendent
District Jail Quetta that on 22nd September 2008 Syed Aurangzaib Shah was in custody.
3. In pursuance of above FIR, the investigation of the case was entrusted to PW -6 Malik
Muha mmad Ramzan, SI/IO, who during investigation took into possession the record of
mutation entries and all other relevant record; recorded the statements of witnesses under Section 161, Cr.P.C.; arrested the accused- respondent and subjected him to investigat ion and
on completion of investigation, submitted the challan in the trial Court.
4. At the trial, the prosecution produced six witnesses. The accused- respondent was
examined under Section 342, Cr.P.C. However, the accused neither recorded his statements
on oath under Section 340(2), Cr.P.C. nor produced any witness in his defence. On
conclusion of trial and after hearing arguments, the learned trial Court vide impugned judgment acquitted the accused -respondent of the Charge under Sections 409, 420, 465, 468,
471, 109, P.P.C. read with Section 5(2) Act -II of Prevention of Corruption Act, 1947.
Whereafter, instant appeal has been filed.
5. Learned Additional Prosecutor General contended that the judgment passed by the
learned trial Court is arbitrary in manne r without taking into consideration the documents so
brought on record; that the judgment of trial Court is based on surmises and conjectures; that the prosecution produced sufficient evidence to establish the guilt of accused; that the trial Court did not consider the mutation No.1314, Ex.P/3- A Art.P/24 and P/25 by Mehboob Khan
Patwari; that the learned trial Court did not consider the custody Certificate dated 23rd April 2009 Art.P/6 issued by the Superintendent Jail; that the accused/respondent has shown the
presence of the accused Aurangzaib Shah on 22nd September 2008 in Tehsil Office when he was in custody in District Jail Quetta; that the judgment of learned trial Court suffers from misreading and non- reading of evidence and liable to be set -aside.
6. Conversely, the learned counsel for accused -respondent strongly opposed the
arguments so advanced by the learned Additional Prosecutor General and contended that the prosecution has failed to prove its case beyond reasonable doubt; that the transfer of the property was mutated in presence of the parties on 14th October 2008; that the revenue record contained the signatures of Syed Aurangzaib Shah and further attestation of the Tehsildar Quetta on 14th October 2008; that the learned trial Court had rightly acquitted the respondent of the charge.
7. Heard the learned counsel for parties and perused the record minutely. The record
reveals that the case was registered on 4th June 2010 vide FIR No.2/Q/2010 in Police Station
ACE Quetta by one complainant Malik Muhammad Ramzan, SI/ACE with the averments as stated above. It was further alleged that during his custody, the said Syed Aurangzaib Shah with the connivance of Patwari Allah Din got transferred his property situated at Khushkaba Saddat Shadinzai -II measurin g 22-rods, 19- poles upon the name of his sister Bibi Atia Gul
daughter of Syed Ali Gohar Shah through mutation No.1314 dated 22nd September 2008 by showing presence of accused Syed Aurangzaib Shah in Tehsil Office. It is further alleged by the prosecution that on the said date i.e. 22nd September 2008 Syed Aurangzaib Shah was in custody in District Jail Quetta. To substantiate its case the prosecution produced custody certificate of Syed Aurangzaib Shah through PW -5 Muhammad Asif Butt, Superintendent
District Jail Quetta and the said certificate was produced in the Court as Art.P/6 issued by the said witness, wherein it was mentioned that Syed Aurangzaib Shah Ex -DCO Naseerabad was
remained in judicial custody in FIR No.1/N/2008, 1/M/2008 and 1/L/2008 of ACE Police and he remained in judicial custody from 8th September 2008 to 30th September 2008. Be that as it may, the allegation against the accused/respondent is that he showed the presence of Syed Aurangzaib Shah in the Intiqal No.1314 on 22nd September, 2008, when he was infact in custody on the said date, but the perusal of Intiqal No.1314 reflects that though the same was prepared on 22nd August 2009, however, attested and signed by the parties in presence of Naib Tehsildar City Quetta on 14th October 2008 and it was also witnessed by one
Muhammad Qasim Khan son of Haji Syed Muhammad Khan, caste Badezai on the said date and it is also clearly mentioned in the second page of the mutation entry that the same was executed and parties were present before the Na ib Tehsildar City Quetta on 14th October
2008. It is further supported by Art.D/25 i.e. receipt No.81 dated 14th October 2008, the amount Rs.500/ - was deposited by the donee Bibi Atia Gul.
8. Perusal of aforesaid documents clearly showing that the transfer of the property was
made on 14th October 2008 instead of 22nd September 2008, while during the said date the accused Syed Aurangzaib Shah was on bail, as such, his presence before the Revenue Authorities on 14th October 2008 could not be ruled out. The pe rusal of record and thorough
evaluation of impugned judgment reflects that there is no iota of evidence available on record to connect the respondent with the commission of offence. The prosecution has failed to produce any cogent and confidence inspiring evidence against the respondent and the learned
trial Court has rightly acquitted the accused/respondents from the charge. It is a settled principle of law that double presumption of innocence is attached to the order of acquittal and interference is unwar ranted unless the acquittal is arbitrary, capricious, fanciful or against the
record. In the instant case the order of acquittal passed by the trial Court is neither arbitrary, capricious, fanciful nor contrary to the evidence on record, warranting interfe rence by this
court.
For the above reasons, the appeal being devoid of merits, is dismissed.
JK/78/Bal Appeal dismissed.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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