IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Crl. Appeal No.S-118 of 2010
Rahmat Ali
Versus
The State
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Date of hearing |
26-05-2017
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Date of Judgment
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26-05-2017 |
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The appellant |
Rahmat Ali s/o Meenahl Khan, Mashori, Through Mr. Qurban Ali Malano, Advocate.
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Respondent |
The State Through Mr. Saleem Akhtar, Additional Prosecutor General for the State |
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RASHEED AHMED SOOMRO, J. The appellant, namely Rahmat Ali, was tried by the learned Special Judge Anti-Corruption, (Provincial) Sukkur in a Special Case No.24/1996, for offences under Sections 409 PPC r/w 5(ii), Act-II of 1947, registered at the Police Station ACE Nawab Shah, vide Crime No.02/1993. Vide impugned judgment dated 20.08.2010, the appellant was convicted and sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.50,000/- and in case of default of payment of fine, to suffer R.I for six months more. Benefit of Section 382-B Cr.P.C was also extended to the appellant.
2. Brief facts of the prosecution case as per FIR lodged by complainant Muhammad Maroof Memon Circle Officer ACE Nawab Shah are as under:
This case is registered under the orders of SP/ACE Sukkur vide his No.SP/ACE/R/247 dated 11.01.1993. The approval of registration of case was obtained from ACC-III Nawab Shah, in its meeting held on 23-12-1992. This case is the result of written report of DFC Naushehro Feroze vide his report No.443 dated 06.10.1992. The allegations against the accused official Rehmat Ali Baloch Food Supervisor are that, while working as incharge Wheat Procurement Centre Manharo, during crop season 1991-92, he procured the wheat on behalf of Government. Accused official procured in all 9300 bags and dispatched 9200 bags and thus mis-appropriated remaining 100 bags of wheat worth of rupees Rs.370/- per bags with bardana thus total amount comes to Rs.37,000/-. The accused official being a Government servant intentionally mis-appropriated 100 bags of wheat worth of Rs.37000/= and thus committed the offence punishable under above said sections.
3. After completing investigation challan of the present case was submitted before the learned trial court.
4. The trial Court framed the charge against appellant at Ex.02. to which the appellant pleaded not guilty and claimed to be tried.
5. At the trial, the prosecution in order to prove its case produced 04 witnesses i.e. P.W-1 Muhammad Sharif (Ex.4), P.W-2 Mumtaz Ali at Ex.5 he produced copy of letter addressed to the Circle officer Anti Corruption Establishment Nawab Shah, daily arrival report, daily report of issue of indent and daily stock report showing balance stock on 29-6-1992. P.W-3 Muhammad Maroof (Ex.6), he produced FIR. P.W-4 Muzaffar Ali , he produced mashirnama of collecting the record, daily approval report, last payment certificate of crop 91-92, arrival report and daily stock report. The prosecution after tendering in evidence closed its case.
6. The statement of appellant/accused was recorded under Section 342 Cr.P.C at Ex.08, in which he denied the allegations of the prosecution leveled against him. He claimed his innocence and further stated that out-standing wheat were with the growers and in this respect he has informed the officials of Food Department that 100 bags of wheat were out-standing against the khatedars. Neither he examined himself on oath nor led any sort of evidence in his defense.
7. After hearing the parties, the trial Court passed the impugned judgment dated 20.08.2010, in which the appellant/accused was convicted, as above, who has filed the instant criminal appeal.
8. The learned counsel for the appellant has contended that P.W Muhammad Sharif admitted the bags of wheat outstanding against the growers but appellant only responsible for re-collecting the bags of wheat; the learned trial court has miserably failed to appreciate and assess the evidence against the appellant on record; that impugned judgment is not sustainable in the eyes of law and is liable to be set side.
9. The learned Additional Prosecutor General has conceded that there are so many contradictions in the prosecution case and has recorded his no objection for the acquittal of appellant.
10. I have considered the above contentions of learned counsel for the appellant and learned Additional Prosecutor General for the State and have gone through the entire evidence minutely. The allegations against the appellant as mentioned in the letter of District Food Controller Noushero Feroz addressed to Circle Officer ACE Nawab Shah are that he has mis-appropriated 100 bags of wheat and 1384 bardana; but it is very surprising that no allegation of mis-appropriation of Bardana is alleged in the FIR; and no explanation has been brought on record in this respect by the prosecution; this shows that the allegation of mis-appropriation of bardana was might have not proved during investigation by the Circle Officer, Anti Corruption Establishment. Now there remains only the allegation of mis appropriation of 100 bags of wheat. Muhammad Sharif District Food Controller, who made complaint to ACE for registration of FIR himself admitted in cross examination that “During my inspection at WPC Manhoro I met with some dealers who told me that some stocks were outstanding against them and they will deliver the same to accused Rehmat Ali. He further deposed in cross examination that accused has also given in writing to Deputy Director Food for allowing him time for collecting the stocks outstanding against the growers etc. Furthermore, P.W- Mumtaz Ali in cross examination deposed that “there is no any godown at WPC Manohro. Normally when there is no arrangement for keeping the wheat at any WPC, the wheat after purchase is being allowed to be retained with the khatedars or the dealers and thereafter the Government Contractor used to transport the wheat from khatedars etc”.
11. Admittedly there is shortage of 100 wheat bags for which appellant has been made responsible for misappropriate. Admittedly there is no any evidence available on record that those 100 wheat bags were available at the food centre where from the appellant being its Incharge has dishonestly and fraudulently converted it into his personal use. It has been established that those 100 wheat bags were not supplied by the growers/dealers to the appellant within time, which has also been admitted by P.W Muhammad Sharif in his cross-examination (the then District Food Controller); that during his inspection at WPC Manhoro he met with some dealers who told him that some stocks were outstanding against them and they will deliver the same to accused/appellant Rahmat Ali. To established ingredients of Section 5(2) Act-II of 1947, it is mandatory requirement that if accused dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person. In the present case not a single word has come on record from any corner that the appellant has misappropriated 100 bags dishonestly or fraudulently or even nothing has come on record that he has allowed such misappropriation to any other person. The dealers/growers who did not supply bags of wheat in time voluntarily offered P.W Muhammad Sharif District Food Controller for delivery of those bags which was not accepted. The words dishonestly and fraudulently used in Section 5 of the Act have not been defined in the Act but their definition is clearly mentioned under Section 24 and 25 of the Pakistan Penal Code as follows:-
“Section 24. Dishonestly. Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing “dishonestly”.
Section 25. Fraudulently. A person is said to do a thing fraudulently if he does that thing with intent to deferred but not otherwise.”
12. From bare reading of whole the prosecution case, main ingredients of dishonestly and fraudulently used under Section 5 of the Act are missing. The case has been registered unnecessarily and it was the better course to make proper inquiry into the guilt and there was more probability that the recovery of 100 bags remained outstanding agaisnt the dealers/growers could have been obtained well in time, therefore, in these circumstances the offences of criminal misappropriation or criminal misconduct do not stand established beyond doubt. Mere existence of an adverse presumption cannot be equitted with the establishment of guilt and consistence attitude of the appellant coupled with position taken by him further renders the case against him doubtful. It is well settled that despite existence of circumstances giving rise to adverse presumption the onus probani still rests squarely on the shoulders of the prosecution which has miserably failed to discharged it. Accordingly prosecution has failed to prove its case against the appellant beyond shadow of reasonable doubt.
13. In consequence of the above discussion, I allowed the appeal and set-aside the conviction of the appellant. Appellant namely Rahmat Ali present on bail. His bail bond stand cancelled and surety discharged.
14. These are the reasons of my short order dated 26.05.2017.
JUDGE