2018 Y L R 1958
[Balochistan]
Before Abdullah Baloch, J
ABDUL HAMEED---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.109 of 2009, decided on 22nd December, 2017.
Penal Code (XLV of 1860) ---
----S. 409---Prevention of Corruption Act (II of 1947), S. 5(2) ---Criminal breach of trust by
public servant, public servant committed or attempt to commit criminal misconduct---
Appreciation of evidence ---Benefit of doubt ---Prosecution case was that accused remained
posted as Incharge of Utility Store from July, 2007 to May, 2008---Audit of the said Utility Store was carried out and it was found that accused being incharge had misappropriated utility store items worth Rs.200,090 and thereafter remained fugi tive to handover the charge
of the utility store ---Ultimately, on the direction of Regional Manager, the locks of the utility
store were broken in presence of witnesses, further shortage of items worth Rs. 71,832/ - were
found---Record showed that locks of the store were broken and the inventory of shortage was
carried out, but neither any broken locks were taken into possession nor any inventory sheet was prepared containing details of missing items and the signatures of the witnesses allegedly present at t he time of inspection/checking of the store ---Accused had denied the charge and
alleged that the Audit Officer demanded Rs. 50000/ - as commission, but on refusal, he had
been falsely implicated in the case, however he relied upon audit sheet and ICL stock register, which showed that he received store from warehouse worth Rs.1323386/ ----Accused
deposited Rs. 623385/ - in the Bank within three months and on 26th August, 2008 stock
worth Rs. 700251/ - was available in the store---Complainant and Audit Officer ha d admitted
that stock position tallied with debit and credit side of balance sheet--- Admittedly, amount of
Rs.623385/ - was deposited in the Bank, while ICL balance on 26th May, 2008 was Rs.
70025/ ----Prima facie, prosecution had failed to establish the shortage of position of stock in
view of the balance sheet ---Circumstances established that prosecution had failed to establish
any criminal liability against the accused beyond any shadow of doubt ---Appeal was accepted
and accused was acquitted in circumstan ces by setting aside conviction and sentence recorded
by the Trial Court.
Abdul Khair Achakzai for Appellant.
Syed Ikhlaq Shah, Assistant Attorney General for the State.
Date of hearing: 21st November, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Appeal No.109 of
2009 filed by appellant Abdul Hameed son of Abdul Hakeem, against the judgment dated
19th August 2009 (hereinafter referred as, "the impugned judgment") passed by learned Special Judge Anti -Corruption Balochistan Que tta (hereinafter referred as, "the trial Court"),
whereby the appellant was convicted under section 409, P.P.C. and sentenced to suffer three (03) years R.I. with fine of Rs.20,000/ - or in default thereof to further suffer two (02) months
S.I.; he was also convicted under Section 5(2) Act -II of Prevention of Corruption Act, 1947
and sentenced to suffer R.I. for three (03) years with fine of Rs.271922/ -, which shall be
recoverable from moveable and immoveable properties owned by the appellant. Process as provided under section 386, Cr.P.C. was also directed to be issued to the District Officer
Revenue Khuzdar for attachment of properties owned by the appellant and its sale by way of auction to satisfy the sentence of fine, however, in case of non -recovery of fine amount in
whole, it was directed that the appellant will further suffer six (06) months S.I. The benefit of section 382- B, Cr.P.C. has also been extended to the appellant.
2. Facts of the case are that the on 16th July, 2008, the complainant Haji Muha mmad
Gul Shahwani, Regional Manager, Utility Stores Corporation Khuzdar, lodged FIR No.100/2008 at Police Station City Khuzdar under section 409, P.P.C., stating therein that the appellant Abdul Hameed was posted as Incharge, Utility Store at Bus Adda Khuz dar from
10th July 2007 to 26th May 2008, the audit of Utility Store was got conducted through Allah -
ud-Din Accounts Assistant, wherein it was revealed that Abdul Hameed has embezzled
government money Rs.200,090/ - and the store is closed from the said date . The charge of
store is also with appellant Abdul Hameed, who has refused to relinquish the charge of store. It has also come into the notice of the complainant that after audit, appellant Abdul Hameed has also embezzled some more utility items.
3. After usual inquiry, the investigation was entrusted to PW -6 SI Tahir Hussain, who
during investigation visited the store, took into possession all the relevant record; recorded the statements of witnesses under Section 161 Cr.P.C. PW -7 Manzoor Ahmed, SI, is the
Second I.O., who prepared memos and on completion of investigation submitted the challan in the trial Court.
4. At the trial, the prosecution produced seven witnesses. The appellant was examined
under Section 342, Cr.P.C. The appellant has also recorded his statement on oath under Section 340(2) Cr.P.C. and produced Asadullah as DW -1 in his defence. On conclusion of
trial, the learned trial Court pronounced the impugned judgment dated 19th August 2009, by means of which the appellant was convicted and sent enced as mentioned hereinabove.
Whereafter, instant appeal has been filed.
5. The learned counsel for the appellant contended that the impugned judgment suffers
from misreading, non -reading and misappreciation of evidence; that the learned trial Court
while deciding the case mainly relied upon the documents from Ex.P/1- A-6 to Ex.P/1- A-37
and Ex.P/1- A-76, which was produced by PW -1 Muhammad, Gul Shahwani to the contrary
appellant produced audit sheets as Ex.D/A to Ex.D/86, which was duly signed by the PW -1
on 26th May, 2008; that the PW -2 in his statement admitted and identified his signature over
the same; that the prosecution has levelled baseless allegation against the appellant; that the version of the prosecution and the appellant was not taken in juxtaposition, which caused serious prejudice to the appellant; that the version of the appellant was also not discussed by the learned trial Court in its judgment; that the prosecution case is full of doubt, but the benefits whereof were not extended in favour of the appellant. He further contended that the impugned judgment also suffers from material illegalities and irregularities which is not
sustainable and liable to be set aside.
6. Conversely, the learned Assistant Attorney General, strongly opposed the ar guments
so advanced by the learned counsel for the appellant and contended that the prosecution has
proved it case through confidence inspiring evidence; that being Incharge of the Utility Store Bus Adda Khuzdar. The appellant embezzled a huge amount from the Utility Store; that the case of prosecution was proved through documentary evidence of audit report and inventory list of goods prepared by the responsible officers of the Utility stores; that the appellant has failed to establish any ill will for his false implication in prosecution case; that the learned trial Court after proper appreciation of evidence had rightly convicted the appellant for commission of offence.
7. Heard the learned counsel for the parties and perused the record minutely with thei r
valuable assistance. This is the case of prosecution that the appellant was remained posted as
Incharge of Utility Store Bus Adda Khuzdar from 10th July, 2007 to 26th May, 2008, the
audit of the utility store was carried out, wherein it was found that the appellant being
Incharge misappropriated utility store items worth of Rs.200,000/ - and thereafter remained
fugitive to handover the charge of the utility store ultimately on the direction of the Regional Manager, the locks of utility store were broken in presence of witnesses, wherein further
shortage of items worth of Rs.71832/ - were found missing.
8. To substantiate its case the prosecution produced as many as six witnesses. PW -1 Haji
Muhammad Gul Shahwani is the complainant of the case, who reiterated the contents of the Murasila Ex.P/1 -A - 2 and further stated that by his order audit of the store was conducted by
Allahuddin, Audit Officer, wherein found shortage of items of worth of Rs.200,090/ - and
thereafter the notice was issued to the appellant to hand over the charge, but despite service of notices, the appellant was remained fugitive, ultimately on 16th July, 2008, he in presence of other persons and DSP investigation broken the locks of utility store and on checking further found missing of items worth of Rs.71,832/ - and in this respect he sent murasila
Ex.P/1 -A-3 to SHO Khuzdar for lodging FIR.
PW-2, Allah- Ud-Din, Accounts Assistant Utility Store Corporation Khuzdar stated
that on 26th May, 2008 by the orders of Regional Manager USC Khuzdar he c onducted audit
of the Utility Store Bus Adda Khuzdar, where the accused/appellant was Incharge of the store and during the audit he found shortage of items worth Rs.200,090/ - and prepared inventory
control lager/ reconcile Statement Ex.P/1 -A 76 and Ex.P/1- A-77, he also identified his
signature and signatures of Regional Manager and accounts Officer on the aforesaid documents.
PW-3, Abdul Hakeem, UDC Utility Stores Corporation Khuzdar states that on 16th
July, 2008 Regional Manager handed over the documents Ex.P/3 -A-1 to Ex.P/3- A-13 to
Tahir Hussain and same were taken into possession. PW-4 Munir Ahmed Incharge warehouse Utility Stores Corporation Khuzdar stated
on 16th July, 2008 between 9/20 a.m. he along with DPS, SHO, Regional Manager and others
reached at new Bus Adda Utility Store Khuzdar, where they broken the locks of store and
after counting prepared stock return memo Ex.P/3 -A-3 to Ex.P/3- A-9.
PW-5 Muhammad Alam stated that on 16th July, 2008, he along with DSP, SHO and
others present during the course of broken of locks of utility store, the Manager found
shortage of items worth Rs.71,832/ -.
PW-6 SI Tahir Hussain and PW -7, SI Manzoor Hussain conducted investigation and
deposed the steps taken by them. Now adverting to the main allegation of prosec ution
witnesses produced against the appellant for responsibility of shortage of utility store items
worth of Rs.200,090/ - and 71,832/ -. The PW -1 complainant Haji Muhammad Gul Shahwani,
Regional Manager while reiterating the contents of FIR in its cross -examination stated that:--
The PW -1 also issued the notices of embezzlement to the appellant Ex.P/1- A-4 on
2nd June, 2008, wherein directed the appellant to hand over the charge of store. It is wroth to
mention here that simple allegations of embezzlement of Rs.200,090/ - were mentioned in the
notice without any supporting documents was annexed with the said notice to ascertain the details of missing items.
9. The main witness in the instant case is PW -2 Allahuddin, Audit Officer, who
conducted the audit of the utility store and estimated the shortage of stores worth
Rs.200,090/ -. He deposed that on 26th May, 2008, he carried out audit of the utility store Bus
Ada Khuzdar where the appellant Abdul Hameed was Incharge and he found shortage of items worth of Rs.200,090/ - and he prepared the inventory control ledger and reconcile
statement Ex.P/A -A-76 and Ex.P/A -77 and he identified his own signature and the signature
of Gul Muhammad Shahwani, Regional Manager and Accounts Officer Ashraf Ali and he further stated that after the audit the appellant remained absent and notices were issued to him
for handing over the charge of the store, but no reply received from him, ultimately on 16th
July, 2008 the locks of store were broken and found further shortage of items of Rs.71,832/ -
during the course of cross -examination he admitted that:--
10. The prosecution case merely relied upon the statements of above two witnesses being
the concerned officers of utility store Corporations and the rest of witnesses are formal. Even
otherwise, as alleged that on 16th July, 2008 the locks of store were broken in presence of
witnesses and the inventory of shortage was carried out, but it is worth to mention here that neither any broken locks were taken into possession nor any inventory sheet was prepared to contained details of missing items and the signatures of witnesses allegedly present at the time of inspection/checking of the store. Now adverting to the evidence of defence the appellant denied the allegation of prosec ution during the course of charge as well as in his
statement recorded under section 342, Cr.P.C. and in support of his version he also recorded his own statement, wherein categorically denied the charge rather alleged that the Audit Officer demanded Rs.50 000/- as commission, but on refusal, he was falsely implicated him in
the instant case, however, in support of his version relied upon audit sheet and ICL stock register produced and marked on record, which shows that he received store from where house Khuzdar worth Rs. 1323386/ - within three months and after sale he deposited
Rs.623385/ - in the Bank and on 26th August, 2008 stock worth of Rs.700251/ - was available
in the store, which is transpired from ICL balance. He also produced DW -1 Asadullah in his
defence he supported his version with regard to demand of commission of Rs.50000/ - by
Audit Officer Allahuddin.
11. Be that as it may, if both the evidences of the parties be taken in juxtaposition the
version of prosecution seems to be doubt full. The initi al burden lies upon the prosecution to
prove its case beyond any shadow of doubt, but bare perusal of admissions of PWs in cross -
examination creates serious doubts in the statements of prosecution witnesses. For the
reasons that on continuous conducts of a udits mostly after each three months the stock
position of balance sheet was admittedly found correct and subsequently during the period 17th March, 2008 to 26th May, 2008 the stock position as per the admission of the PW -1 and
PW-2 was tallied with debit and credit side of balance sheet, which also on calculation
become tally with the stock position, as per admission of PW -1 and 2 that was Rs.1323636/ -
during the course of 17th March, 2008 to 26th May, 2008 the amount admittedly deposited in the bank was R s.623385/ - while ICL balance on 26th May, 2008 was admittedly Rs.70025/ -
meaning thereby the balance tallied with the debit and credit side of balance sheet as equal to the stock position was available at the time of earlier audit, prima facie prosecution has failed to establish the shortage of position of stock in view of the balance sheet.
12. For the forgoing reasons, the prosecution has failed to establish any criminal liability
against the appellant and also failed to prove the charge against the appel lant beyond any
shadow of doubt and the learned trial Court failed to properly, appreciate the evidence brought on record by the parties to its true prospective, as such, the impugned judgment
passed by the learned trial Court is perverse, ridiculous and s uffers from misreading and non-
reading of evidence being not sustainable.
13. Accordingly the appeal is accepted and the impugned judgment dated 19th August,
2009 passed by the learned Special Judge Anti -corruption, Quetta is hereby set aside and the
appel lant is acquitted of the charge he is on bail his band stands discharged.
JK/5/Bal. 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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