IN THE HIGH COURT OF SINDH BENCH AT
SUKKUR
Crl. Appeals
No.S-37 of 2013
Dates of hearing: : 04.11.2021
Date
of Judgment : 04.11.2021
Appellant Zakir Ali Gondal : through Mr.
Allah Bux Gabole,
Advocate.
Respondent/State : through
Syed Sardar Ali Shah,
Addl. Prosecutor General, Sindh.
---------------------------------------
Muhammad Saleem Jessar, J.- By means of this Criminal Appeal
appellant Zakir Ali Gondal has assailed judgment dated 31.05.2013 handed down by
learned Special Judge, Anti-Corruption, Sukkur, in Special Case No.44/2006 (Re
State Vs. Zakir Ali), being outcome of Crime No.11 of 2005, registered at P.S.
ACE Khairpur Mirs,
under sections 409, 201, 218 and 468 PPC read with Section 5(2) of Prevention
of Corruption Act (Act II of 1947), whereby the appellant has been convicted
and sentenced to undergo R.I. for three years and to pay fine of Rs.21,00,000/-
(Rupees Twenty One Lac only) and in case of non-payment of fine, the appellant was
ordered to suffer S.I. for one year more. However, he was extended benefit of Section
382-B Cr. P.C.
2. The crux of prosecution case are that during
crop season 2003-04 accused Zakir Ali Gondal, who was posted as Food Supervisor
and Incharge wheat procurement, Choondiko, District Khairpur Mirs, thus in the capacity
of public servant, had misappropriated government wheat viz. 1834 bags valued
at Rs.20,80,250/- and caused wrongful loss to the Government and obtained
wrongful gain by preparing forged documents/record, therefore, a raid was
conducted by Anti-Corruption Establishment Authority, Khairpur in presence of Judicial
Magistrate and then such FIR was registered by Anti-Corruption Police Khairpur
against accused.
3. After usual investigation, the
Anti-Corruption Police Khairpur submitted challan against the accused before
the concerned Court. Necessary papers were supplied to him vide receipt at
Ex-1. Formal charge against the accused was framed at Ex-2, and his plea was
recorded at Ex-3, wherein he pleaded not guilty and claimed trial.
4. In support of its case, prosecution
examined PW.1 Khadim Hussain at Ex.4, who produced copy of order as Ex.4-A.
P.W.2 Imtiaz Hussain was examined at Ex.5, who produced relevant papers as
Ex.5-A/1 to 5-A/109 and office order of accused, surety bond, bank authority
and other letters as Ex.5-B/1 to 5-B/11. He also produced mashirnama of recovery
of documents as Ex.5-C. P.W.3 Hussain
Bux was examined at Ex.6, who produced letter as Ex.6-A. P.W.4 Himath Ali was examined at Ex.8, whereas
P.W.5 Syed Haider Ali Shah was examined at Ex.9, who produced permission letter
for submitting challan as Ex.9-A. P.W.6 Sultan Ahmed Chandio was examined at Ex.10,
who produced FIR as Ex.10-A. Learned S.P.P. appearing for the State filed
application Ex.11 under Section 540 Cr. P.C. for calling Magistrate,
consequently Miss. Samina Mangi, J.M. was examined as P.W.7 at Ex.12, who
produced raid report as Ex.12/A. Thereafter, prosecution side was closed vide
Statement Ex.13.
5. Statement of accused under Section 342
Cr. P.C. was recorded vide Ex.14, in which he denied prosecution allegations
and claimed to be innocent. He further stated that he has been falsely involved
in the case by the officers of Food Department and one Abdul Jabbar, Food
Contractor, who being in league with officials of Food Department, had
misappropriated wheat during transportation of wheat from Choondiko Centre to
Khairpur Godown and when he (accused) smelt some foul-play, he moved applications
to higher authorities but no heed was paid. Accused produced Photostat copies
of applications as Ex.14-A to Ex.14-C and statement as Ex.14-D. However, he neither
examined himself on oath nor produced any witness in his defence.
6. After formulating the points for
determination, recording evidence of the prosecution witnesses and hearing
counsel for the parties, learned trial Court vide impugned judgment convicted
and sentenced the appellant as stated above. Against said judgment the
appellant has preferred instant appeal.
7. I have heard learned counsel for the
appellant as well as learned A.P.G. appearing for the State and perused the material
available on the record.
8. Learned counsel for the appellant submitted that raid
was conducted by the then Civil Judge & Judicial Magistrate, namely, Ms. Samina Mangi on 13.12.2004 upon
the directions of the then Sessions Judge, Khairpur. Such report dated
13.12.2004, available at page 325 of the paper book, was prepared by her. In
her report, learned Magistrate had specifically mentioned that Food Inspector,
whose name was not disclosed, in connivance with former District Food
Controllers namely, Lala Anwar Pathan and Ziaduddin Shaikh by committing
misappropriation, had caused wrongful loss to the Government and obtained
wrongful gain. Learned counsel further pointed out that raid was conducted on
13.12.2004, yet FIR was registered on 13.05.2005 i.e. after a delay of about
five months. In the FIR the accused was
nominated stating that he, in connivance with District Food Controller namely,
Lala Anwar Palthan and Ziauddin Shaikh, had obtained wrongful gain by
misappropriating wheat bags, thus caused wrongful loss to the government to the
tune of Rs.64,01,120/-. According to him, mashirnama of recovery as well as
report were allegedly prepared in presence of mashirs i.e. Junior Clerks
namely, Khadim Hussain Tunio, Imtiaz Hussain Jumani and Misri Khan Dahani. He further submitted that FIR, which is
available at page 317 of paper book, clearly reflects that 1834 wheat bags
valuing Rs.20,63,250/- and 340 empty bags were misappropriated by accused /
appellant and the then District Food Controllers (DFCs) namnely, Lala Anwar
Pathan and Ziauddin Shaikh. Learned counsel further submitted that both
District Food Controllers, who were nominated as accused were let-off and besides,
they could have been examined as star witnesses of the case, but neither their
statements were recorded by the I.O. during the course of conducting
investigation, nor they were examined before the trial Court. He next submitted that no plausible
explanation has been furnished by the prosecution for their exoneration. In support of his contention, he placed
reliance upon the case reported in 2015 P. Cr. L.J. 1293.
9. Learned counsel further submitted that in the F.I.R.
alleged incident is shown to have occurred in the years 2003-04 and no specific
date or time has been shown. He, while drawing attention of the Court
towards raid report, submitted that raid was conducted on 13.12.2004, despite
that FIR was got registered on 13.05.2005 which shows the complainant had implicated only the
appellant, while aforesaid two co-accused after due deliberation and
consultation had been let-off. He further submitted that government contractor
namely, Abdul Jabbar Shaikh upon the direction of aforesaid District Food Controllers was taking
wheat bags from Choondko Centre without permission of the appellant whereupon
appellant had moved different applications to the high-ups / the then District
Food Controllers regarding forcibly taking away of wheat bags by the contractor
Abdul Jabbar; however, the then District Food Controllers had asked the
appellant not to restrain said contractor as he had been permitted by them to
do so and that such permission would be provided to the appellant subsequently.
The applications of the appellant are available with his statement under
Section 342 Cr. P.C. at pages 329 to 335 of the paper book. Learned counsel
further submitted that alleged misappropriation as well as wrongful gain
obtained by the appellant could not be proved by a single person during the
course of investigation or before the trial Court to establish that the
appellant had sold out or handed over the wheat bags to any such person and nor
a single bag has been recovered from his possession or from his house which may
constitute the offence under Section 409 PPC. He further submitted that as far
as wrongful loss to the government is concerned, it had also not been established
by the prosecution as none of the prosecution witnesses has specifically
deposed against the accused regarding alleged misappropriation. According to
him, despite this, instead of acquitting the accused, the trial Court has
convicted him. He further submitted that defence version was not brought on
record nor was considered by the trial court and the then District Food
Controllers who were made co-accused in the FIR, were also not examined by the
I.O. under Section 161 Cr. P.C., therefore, their non-examination was fatal to
the prosecution case and inference could be drawn that if those persons would
have been examined, they would not have supported the case of the prosecution.
10. Learned counsel further submitted that the attesting
mashirs in whose presence allegedly a raid was conducted and record pertaining
to different centers were secured, have denied the preparation of mashirnama of
recovery and report as well as conducting the raid in their presence, hence,
according to him, when the attesting witnesses, who were also officials of the
department, have not deposed against the accused and not supported the
prosecution case, then it is clear that the prosecution has miserably failed to
prove its charge beyond any shadow of reasonable doubt. He also pointed out
that no permission for lodging the FIR was sought, even no plausible explanation
has been furnished for such an inordinate delay in the lodging of FIR. In
support of his contentions, he placed reliance on the cases of Najaf Ali v. The State (2021 YLR Note 86), Syed Altaf Hussain Shah v. The State (2018 YLR 482), Muhammad Yousuf v. The State (2020 YLR Note
132), Abdul Karim Kumbhar v. The State (2021 YLR Note
10) and Imtiaz Ali v. The State (2019 YLR 2807). He ultimately prayed for acquittal of the accused /
appellant by extending him benefit of doubt.
11. On the other hand, learned Additional Prosecutor
General, appearing for the State, opposed the appeal on the ground that
prosecution has established its charge against the appellant beyond any shadow
of reasonable doubt. According to him, as far as minor contradictions in the
evidence are concerned, due to passage of time such minor contradictions
usually take place and the same are to be ignored and not to be taken into
consideration as same cannot be made basis for acquittal of an accused. He; however, could not controvert the
fact that co-accused namely, Lala Anwar Pathan and Ziauddin Shaikh, who were
also nominated in the FIR as accused, were let-off by the police without giving
any cogent explanation for their exoneration and even they were not examined by
the I.O. under section 161 Cr. P.C. nor they were made witnesses before the
trial Court.
12. In instant case, most important document is the
report relating to raid which was conducted by the then Civil Judge & Judicial
Magistrate, namely Miss Samina Mangi upon the directions of the then Sessions
Judge, Khairpur on 13.12.2004. In her evidence said Judicial Magistrate, has
not specifically mentioned name of present accused / appellant that he had
committed the offence of misappropriation, whereas she has made specific
statement against Lala Anwar Palthan and Ziauddin Shaikh. In her evidence she
deposed as under:
“.. concerned Head Clerk informed C.O. that
mis-appropriation of wheat bags committed by the Ex: Food Inspector Lala Anwar
Pathan with one Ziauddin Shaikh and loss the govt: tune of Rs.64,01,120/- for
their gain.”
13. P.W. Sultan Ahmed, who was working as C.O. ACE at the
relevant time, in his cross-examination also admitted, “It is fact
that in raid report the name of accused Zakir is not mentioned.”
Besides, perusal of the contents of the F.I.R. shows that, it has been
mentioned therein that accused Zakir Ali Gondal in connivance with the then District Food Controller,
Khairpur namely Mohammad Anwar Pathan and Ziauddin Shaikh misappropriated 1834 wheat bags valued
at Rs.20,63,250/- and 340 empty bags valued at Rs.17000/-. In such an
eventuality, it is not understandable as to why said Lala Anwar Pathan and
Ziauddin Shaikh, who were the then District Food Controllers, Khairpur, have
not been arrayed as accused persons, and rather they were let-off without
disclosing any plausible justification. Not only this, even they have not been made
witnesses in the case, nor even their statements were recorded by the
Investigating Officer. This smacks something fishy on the part of Investigating
Agency.
14. Needless
to emphasize that ‘Rule of consistency’
demands that if an accused has been extended benefit on the basis of certain evidence
available with the prosecution, other accused charged with similar allegations
is also entitled to be extended same concession / treatment and he cannot be
convicted on the basis of same material / evidence. In this connection it would
be advantageous to refer to a judgment of Honourable Supreme Court passed in
the case of Mohammad Asif Vs. The State reported in 2017 SCMR 486 wherein it
was held as under:
“It is a
trite rule of law and justice that once prosecution evidence is disbelieved with respect to a co-accused
then, they cannot be relied upon with regard to the other co-accused unless
they are corroborated by corroboratory evidence coming from independent source
and shall be unimpeachable in nature but
that is not available in the present case.”
15. In another case reported as Umar
Farooque v. State (2006 SCMR 1605) Honourable Supreme Court held as under:
“On exactly the same evidence and in
view of the joint charge, it is not comprehendible, as to how, Talat Mehmood
could be acquitted and on the same assertions of the witnesses, Umer Farooque
could be convicted.”
16. Yet in another case reported as Mohammad Akram vs. The State (2012 SCMR 440)
the Apex Court while holding that same set of evidence which was
disbelieved qua the involvement of co-accused could not be relied upon to
convict the accused on a capital charge, acquitted the accused.
17. Another significant point in the case is that there
is inordinate delay of about five months in the lodging of F.I.R. as the raid
was allegedly conducted by the then Civil Judge & Judicial Magistrate
namely, Miss Samina Mangi upon the directions of the then Sessions Judge,
Khairpur on 13.12.2004, whereas FIR was got registered on 13.05.2005 i.e. after
a delay of about five months. No explanation has been furnished by the
prosecution for such an inordinate delay. This creates doubt regarding involvement of the
accused in the commission of alleged offence, particularly in view of the fact,
as stated above, that it
has been clearly mentioned in the FIR that accused Zakir Ali Gondal has
committed offence of misappropriation of 1834 wheat bags valued at
Rs.20,63,250/- and 340 empty bags valued at Rs.17000/-, in connivance with the then District Food Controller,
Khairpur namely, Mohammad Anwar Pathan and Ziauddin Shaikh and even the Judicial Magistrate,
who had conducted raid, has also specifically stated that the aforesaid two
DFCs have committed the alleged offence, despite that said Lala Anwar Pathan
and Ziauddin Shaikh, have been let-off without disclosing any plausible
justification.
18. In
the case reported as Ayub Masih v. The State (PLD 2002 SC 1048) Honourable
Supreme Court held as under:-
“The
unexplained delay in lodging the F.I.R. coupled with the presence of the elders
of the area at the time of recording of F.I.R. leads to the inescapable
conclusion that the F.I.R. was recorded after consultation and deliberation.
The possibility of fabrication of a story and false implication thus cannot be
excluded altogether. Unexplained
inordinate delay in lodging the F.I.R. is an intriguing circumstance which
tarnishes the authenticity of the F.I.R., casts a cloud of doubt on the entire
prosecution case and is to be taken into consideration while evaluating the
prosecution evidence. It is true that unexplained delay in lodging the
F.I.R. is not fatal by itself and is immaterial when the prosecution evidence
is strong enough to sustain conviction but it becomes significant where the
prosecution evidence and other circumstances of the case tend to tilt the balance
in favour of the accused.”
19. In
view of unexplained delay of at least about five months occurring in the
registration of FIR, possibility of deliberation and false implication of the
accused could not be overruled.
20. It is also worthwhile to point out at this juncture
that in his statement the accused has taken a specific plea that he has been falsely involved in the
case by one Abdul Jabbar, Food Contractor, who being in league with officials
of Food Department, had misappropriated wheat during transportation of wheat
from Choondiko Centre to Khairpur Godown and when the accused smelt some
foul-play, he moved applications to higher authorities but no heed was paid.
Accused also produced copies of such applications as Ex.14-A to Ex.14-C and statement
as Ex.14-D. However, it seems that learned trial Court has not properly take
into consideration said plea of the accused. The trial Court at page-4 of the
impugned judgment, after mentioning the aforesaid plea taken by the accused,
has observed, “The accused has failed to produce any complaint allegedly
made by him against the food Transport contractor Abdul Jabbar Shaikh.”
Such observation of the trial Court is totally incorrect. It seems
Ex.14/D produced by the accused in his Statement under Section 342 Cr. P.C.
shows that it is a Statement / Reply made by the said contractor Abdul Jabbar
in response to the complaint moved by accused Zakir Ali Gondal. Such statements
begins with the words, “I, Abdul Jabbar s/o Haid Bux Shaikh, Transport
Contractor do hereby state in respect of allegations made by Mr. Zakir Ali
Gondal Food Supervisor for missing of 1834 bags of wheat crop 2003-2004 during
dispatches from Choondiko W.P. Centre to Khairpur Godown.”
This clearly shows that, in fact, the accused /appellant had moved such
complaint and it was in response to the complaint that said Abdul Jabbar Shaikh has submitted said reply /
explanation.
21. Another interesting observation made by the trial
Court in the impugned judgment is, “…he is therefore duty bound to prove his version as
the entrustment of the job has not been denied by the accused therefore he can not take benefit of weakness of the prosecution
if any left in the evidence.”
22. Such
observation, on the one hand amounts to admission on the part of trial Court
itself that there is weakness in the prosecution case and, on the other hand, such
observation is in clear contravention of the principle laid down by the
Superior Courts that the prosecution must prove its case against the accused
beyond reasonable doubt and that before the case is established
against the accused by prosecution, the question of burden of proof on the
accused to establish his plea in defence does not arise. In this context, reference may be made to the case of Shamoon alias Shamma Vs. The State (1995 SCMR
1377), wherein it was held by Honourable Supreme Court:
“The
prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the
accused in his defenc. Failure of prosecution to prove the case against the
accused, entitles the accused to an acquittal.
The prosecution cannot fall back on the plea of an accused to prove its case…….Before, the case is established against the
accused by prosecution, the question of burden of proof on the accused to
establish his plea in defence does not arise.”
23. In another case reported as Wazir
Mohammad Vs. The State (1992 SCMR 1134) it was
held by Honourable Supreme Court as under:
“In the
criminal trial whereas it is the duty of the prosecution to prove its case
against the accused to the hilt, but no
such duty is cast upon the accused, he has only to create doubt in the case of
the prosecution.”
24. Apart from above, from perusal of the evidence of
prosecution witnesses, it seems that there are glaring contradictions in their
evidence, so also they have made certain admissions which go in favour of the
accused and weakens the prosecution case.
25. P.W. 1 Khadim Hussain Tunio, who was Head Clerk in
DFC Office, Khairpur at the relevant time, in his cross-examination admitted, “I do not know
if raid was conducted by the Circle Officer, Chandio in presence of Samina
Magistrate and DFC Lala Pathan and Agha Ziauddin Shaikh were found accused.”
From this, it is apparent that he has shown his ignorance about the
conducting raid under the supervision of Judicial Magistrate namely, Miss
Samina Mangi, whereas said Judicial Magistrate in her evidence (Ex.12) has
clearly deposed, “Thereafter, I also got permission from Hon’ble
District & Sessions Judge and I went with them towards DFC Office at 12-10
hours, where C.O. got received record from concerned Head Clerk Khadim Hussain Tunio who handed over all the record to
C.O. Khairpur who prepared mashirnama in presence of me and other mashirs….”.
26. P.W.7, Miss Samina, Judicial Magistrate, in whose
supervision raid was allegedly conducted, in her evidence deposed, “..C.O. got
received record from concerned Head Clerk Khadim
Hussain Tunio who handed over all the record to C.O. Khairpur who
prepared mashirnama in presence of me and other mashirs Imtiaz Hussain, HC Misri Khan and readover the contents to them obtained their
signatures..”.
Such statement has been belied by P.W. 2, Imtiaz Hussain, who was working as Junior
Clerk in DFC Office, Khairpur at the relevant time and had allegedly acted as
mashir. In his cross examination, he admitted, “The mashirnama was not readover to
me”.
27. Besides, P.W. 6, Sultan Ahmed Chandio, who was posted
as C.O. ACE, Khairpur, at the relevant time, in his cross-examination made
following admissions:
“It is fact that in the FIR date of incident is not
shown…….At the time of raid proceedings both DFCs were not present in the
office…….It is fact that in raid report the name of present accused Zakir is
not mentioned. It is fact that in raid report the name of centre is not
mentioned. I do not remember the content of statement of accused Zakir which
was recorded by me…….”
28. It is also significant to point out that none of the
witnesses has specifically deposed that accused obtained wrongful gain for
himself which is also an important ingredient for constituting offence under
Section 409 PPC. Similarly, none of the
witnesses has said a single word that they had seen the accused or any other
person acting on his behalf to have sold out or handed over the wheat bags to
any person and nor a single bag has been recovered from his possession or from
his house which may constitute the offence under Section 409 PPC.
29. As stated above, the then District Food Controllers,
Khairpur namely, Mohammad Anwar Pathan and Ziauddin Shaikh, although having
been nominated in the raid report as well as in the F.I.R. to be involved in
the commission of alleged offence of misappropriation, were let-off by the
Investigating Officer without disclosing any plausible justification. Not only
this, even they were also not made witnesses in the case and neither their
statements under Section 161 Cr.P.C. were recorded by the Investigating
Officer, nor were they examined before the trial Court. This is also injurious to the
prosecution case as it is settled principle of law that despite availability of
material witness, non-examination of such witness in the case gives inference
that in case such witness had been examined, he would have deposed against the prosecution,
as envisaged under Article 129(g) of Qanoon-e-Shahadat Order, 1984. In the case of Bashir Ahmed alias
Manu vs. the State reported in 1996 SCMR 308 it was held by Honourable Supreme
Court that despite presence of natural witnesses on the spot they were not
produced in support of the occurrence an adverse inference under Article 129(g)
of Qanun-e-Shahadat Order could easily be drawn that had they been examined,
they would not have supported the prosecution version. In another case reported
as Mohammad Shafi vs. Tahirur Rehman (1972 SCMR 144) it was held that large
number of persons had gathered at the place of occurrence but prosecution
failing to produce single disinterested witness in support of its case,
therefore no implicit reliance could be placed on evidence of interested
eye-witnesses. In the case reported in 1980 SCMR 708, it was observed that no witness of locality nor owner of hotel was
produced in support of prosecution case nor any independent evidence to
corroborate testimony of the three eye-witnesses was produced, as such, the
acquittal was upheld by the Honourable Supreme Court.
30. In order to constitute an offence u/s 409
PPC, there must not only be entrustment but dishonest, misappropriation or
conversion to one’s own use or dishonest disposal of property by the public
servant. Where such elements are missing accused is liable to be acquitted. In
instant case the prosecution did not examine any witness/competent authority
nor produced any official document therefore, application of Section 409 PPC
was not warranted by law even nothing was recovered from the possession of
appellant or at his pointation, through which appellant could be held
responsible for mis-appropriation of entrustment of the property hence, offence
u/s 409 PPC was not proved. Moreover, not a single person was produced by the
prosecution who could had deposed that he had purchased or obtained illegal
gain out of the property entrusted to the appellant. Therefore, circumstances
established reveals that prosecution failed to establish any criminal liability
against the appellant beyond any shadow of doubt. From a plain reading of the
material adduced by the prosecution through its evidence conclusion can be
drawn that without proof of entrustment or dishonest mis-appropriation on the
part of appellant, there can be no question of accused being guilty of the
offence u/s 409 PPC. Moreover, main co-accused who were not only nominated in
the FIR but were implicated by the PWs to the effect they had caused
mis-appropriation of 1834 wheat bags through contractor Abdul Jabbar Shaikh and
were released by the I.O. and suffice is to say no reasonable justification was
given by the prosecution how they were exonerated from criminal liability. In
case of Abdul Rasheed Nasir and others v. The State (2009 SCMR
517) the Honourable Supreme Court of Pakistan laid down dictum
in para-15 of the judgment, which reads as under;
15. In addition to above, it may be observed that to constitute an
offence u/s 409, PPC. there must not only be entrustment but dishonest,
mis-appropriation or conversion to one’s own use or dishonest disposal of
property by the offender. As clearly obvious from the scrutiny of evidence,
such ingredients are absolutely lacking in the present case. There is no evidence
to conclude that the Bank guarantee was encashed by the appellants, or by
someone else acting on their behalf and the cash was mis-appropriated. Even
there is no material to establish that the Bank sustained any loss attributed
to the appellants on account of alleged transaction.”
In the instant case neither the
entrustment nor dishonest misappropriation or conversion to one’s own use or
dishonest disposal of property has been established by the prosecution
therefore, basic ingredients for constituting an offence u/s 409 PPC are
lacking in this case.
31. Moreover, the defence evidence brought by
the appellant before trial Court was not considered even was not kept in
juxtaposition with the prosecution evidence. Therefore, the appellant was
deprived of his defence and the trial Court has failed to appreciate it.
Therefore, the impugned judgment in view of above suffers from material
illegality and cannot be maintained and is liable to be
set-aside. Needless to emphasize that it is a well settled
principle of law that the prosecution is bound under the law to prove its case
against the accused beyond any shadow of reasonable doubt. It has also been
held by the Superior Courts that conviction must be based and founded on
unimpeachable evidence and certainty of guilt, and any doubt arising in the
prosecution case must be resolved in favour of the accused.
32. The
accumulative effect of the above said factors is that serious dents have been
put and doubts have been created in the prosecution case. It is well settled
principle of law that the accused is entitled to be extended benefit of doubt
as a matter of right. In the present case, there are many circumstances which
create doubts in the prosecution case. Even an accused cannot be deprived of
benefit of doubt merely because there is only one circumstance which creates
doubt in the prosecution story. In the case reported as Tariq Pervaiz vs. The
State 1995 SCMR 1345 the Honourable Supreme Court held as under :-
“The
concept of benefit of doubt to an accused is deep-rooted in our country. For
giving him benefit of doubt, it is not necessary that there should be many
circumstances creating doubts. If there is a circumstance which creates
reasonable doubt in a prudent mind about the guilt of the accused, then the
accused will be entitled to the benefit not as a matter of grace and concession
but as a matter of right.”
33. For
the foregoing reasons by a short order dated 04.11.2021 instant appeal was allowed.
Consequently, impugned judgment dated 31.05.2012 handed down by learned Special
Judge, Anti-Corruption, Sukkur in Special Case No.44/2006 (Re State Vs. Zakir
Ali), being outcome of Crime No.11 of 2005, registered at P.S. ACE Khairpur, under
Sections 409, 201, 218 and 468 PPC read with Section 5(2) of Prevention of
Corruption Act (Act II of 1947), was set aside and the appellant was acquitted
from all the charges and was ordered to be released forthwith if his custody
was no longer required by the jail authorities in any other criminal custody
case.
Above are the reasons for the
said short order.
J U D G E
Ihsan/*