IN THE HIGH COURT OF SINDH,BENCH AT SUKKUR

Criminal Appeal No. S-20 of 2006

Appellant: Mushtaque Hussain, through

Mr. Ghulam Shabbir Shar, Advocate.

The State: Through Mr. Zulfiqar Ali Jatoi,

Additional Prosecutor General

Date of hearing: 13.12.2021 and 20-12-2021.

Date of decision: 20-12-2021.

J U D G M E N T

ZULFIQAR ALI SANGI, J:- Through this appeal, appellant Mushtaque Hussain Mallah, has challenged the Judgment dated 04.03.2006, passed by learned Special Judge Anti-Corruption, Sukkur, in Special Case No.105/1997 re-“The State v. Mushtaque Hussain”, arising out of Crime No.24/1997, registered at Police Station ACE, Khairpur, under Section 409 PPC r/w section 5(2) Act-II of 1947,whereby the appellant was convicted for the offence u/s 409 PPC r/w section 5(2) Act-II of 1947 and sentenced to suffer R.I for five years and to pay fine of Rs.20,19,600/-, in default thereof to suffer R.I for two years more.

2. Succinctly the facts of the prosecution case are that on 28.10.1997, Circle Officer, Anti-corruption Establishment Khairpur, on receiving written report from District Food Controller, Khairpur and after getting approval from competent authority, registered FIR that during procurement season 1996-97, accused Mushtaque Hussain had mis-appropriated 2970 bags of wheat and had caused wrongful loss of Rs.20,19,600/- to the government.

3. After registration of FIR, Circle Officer Anti-Corruption Establishment Khairpur conducted investigation, and on completion of investigation submitted charge sheet against the accused for trial before the court having jurisdiction. After completing all the legal formalities the charge was framed against the accused/appellant to which he pleaded not guilty and claimed trial.

4. The prosecution in order to establish its case has examined P.W-1Abdul Wahab Khoso at Ex.4, who produced letter dated 01.08.1997 at Ex.4-A.PW-2 Shabbir Ahmed Ghumro Clerk DFC Office Khairpur was examined at Ex.5, who produced mashirnama of producing official record before Circle Officer at Exh.5-A, (66) leave of issue, arrival and stock report at Exh.5-B/1 to 5-B/66. PW-3 Investigating Officer Himath Ali Chandio was examined at Ex.7, who produced FIR at Exh.7-A, letter of Chairman ACC-III at Exh.7-B, authority letter dated 27.5.1997 at Ex.7-C letter to Mnanager NBP Khuhra at Ex.7-D, specimen signature of accused Ex.7-E last payment certificate at Ex.7-F and prosecution sanction at Exh.7-G.

5. Statement of accused/appellant was recorded under section 342 Cr.P.C at Ex.8, in which he has denied the allegations of the prosecution and claimed his innocence. However, neither he led evidence in his defence nor examined himself on oath u/s 340(2) Cr.P.C. After recording evidence and hearing the parties, learned trial court convicted the accused as stated above, hence the instant appeal.

6. Learned counsel for the appellant has contended that the prosecution has failed to prove its case beyond reasonable doubt; that the statement of contractor was not recorded; that the learned trial court has failed to properly appreciate the evidence led by the prosecution and the defence plea taken by the appellant; that the impugned Judgment is against the law, facts, principles of natural justice and equity; that learned trial court has erred in convicting the appellant by not taking into consideration the entire material and thus the impugned Judgment is liable to be set-aside; that actually the wheat was misappropriated by the contractor and the DFC but the appellant with malafide intention was involved in the case. He finally prayed that by extending benefit of doubt, the appellant may be acquitted.

7. Learned DPG appearing for the state has supported the impugned judgment and further contended that the prosecution has proved its case against the appellant beyond any reasonable shadow of doubt by producing oral as well as documentary evidence; that the learned trial court has rightly convicted the appellant and he does not deserve any leniency; that there appears no illegality or irregularity in the impugned judgment which is well reasoned and does not require any interference of this court.

8. I have heard learned counsel for the parties and have gone through the material available on record with their able assistance.

9. After reassessment of the entire evidence produced by the prosecution, I am of the view that the prosecution has proved its case against the appellant beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence in shape of oral as well as documentary evidence.

10. The prosecution in order to prove the case examined Abdul Wahab as PW-1 who deposed that accused had worked under his supervision, during crop session, 1996-97 accused was posted as Centre Incharge W.P.C. Baharo. Accused purchased 9020 bags of the wheat at his center; he has made the payment of all the wheat bags to the growers/suppliers from whom he purchased wheat. He further deposed that accused dispatched in all 6050 bags of the wheat to different godowns as per policy and failed to dispatch remaining 2970 bags which remained out-standing against him. The accused thus has mis-appropriated these 2970 bags of the wheat and has caused wrongful loss of Rs.20,19,600/- to the Govt: Exchequer. He therefore, reported the matter to C.O ACE, Khairpur under letter No.1467 dated 1.8.1997. Thereafter a case was registered by C.O.

During the cross-examination on the question put to him on behalf of the appellant this witness replied as “It is not in my knowledge, if the accused has reported that the wheat was outstanding against the growers and has requested for help.” In reply of another question this witness stated that “I had also physically verified the center of the accused where outstanding balance of the wheat was not found available.”

11. The prosecution in support of the case examined Shabir Ahmed as PW-2 who deposed that accused was Food employee of Food department and during the crop year, 1996-97, accused was posted as Food Supervisor and Incharge at W.P.C Baharo. During the season, accused purchased 9020 bags of the wheat on behalf of Government. Out of this wheat he dispatched 6050 bags of the wheat to different godowns. He failed to dispatch remaining 2970 bags of the wheat to any of the recognized centre or Godown and it appears that he has mis-appropriated this wheat. The cost price of these 2970 bags at the rate of Rs.680 per bag costing to Rs.20,19,600/-. During lost five years, neither accused has returned the wheat nor he has deposited the price of this wheat with Govt:. DFC, Khairpur made a report with C.O.ACE, Khairpur and during the investigation, he was examined by Circle Officer and during his statement he had produced certain official record before Circle Officer, viz: Issue, arrival and balance reports under preparation of mashirnama. He produced mashirnama and , (66) leave of issue, arrival and stock reports.

During cross-examination of this witness another defence plea was taken on behalf the appellant and in reply of the question put to this witness he stated that “It is not on our record that 2970 begs of the wheat were handed over by the accused to transport contractor Ghulam Rasool Chandio for different centers and Godowns.” In another reply of the question put to this witness on behalf of the appellant it was stated that “It is not in my knowledge, if the accused has complained against the contractor that he has taken away the wheat from his center.”

12. The prosecution also examined the investigating officer Himat Ali C.O ACE Khairpur as PW-3 who deposed that during the year, 1997, he was posted as Circle Officer, ACE Khairpur. D.F.C. Khairpur made a report against accused Mushtaque Hussain Mallah informing that accused while posted as Incharge at WPC Baharo has mis-appropriated Govt: 2970 wheat bags, costing to Rs.20,19,600/-. On the basis of information of DFC, Khairpur he submitted report to his higher officials for permission of FIR, accordingly he received such permission and recorded FIR on 28.10.1997. He deposed that after registration of FIR, he started the investigation of the case and on 27.11.1997, he recorded statement of P.W. Shabbir Hussain Clerk DFC, office, Khairpur who produced certain official record regarding WPC Baharo. This record was secured under the mashirnama. He produced authority letter dated 27.05.1997, issued by DFC, Khairpur which was addressed to Manager N.B.P. Khuhra. He also produced specimen signature of accused attested by DFC Khairpur which were sent to Khuhra under his letter dated 21.04.1997. He also produced last payment certificate of Manager of N.B.P, Khuhra dated 25.7.1997, showing payment of 23858 wheat bags as Ex.7-F. On the same day viz: 27.11.1997, he recorded the statement of Syed Ali Muhammad Shah Head Clerk. He had also recorded the statement of DFC, Khairpur Mr. Abdul Wahab Khoso and of Sr. Clerk DFC, office Khairpur namely Khadim Hussain. Thereafter, on completion of investigation he submitted final report for seeking permission for prosecution. On 31.12.1997, he submitted charge sheet against the accused showing him absconding. He also produced later for prosecution sanction.

During the cross-examination of this witness third defence was brought on record on behalf of the appellant and in reply of one question this witness stated that “It is not in my knowledge if that Zahoor Memon contractor has mis-appropriated Govt: wheat and he was arrested at Ranipur.”

13. The appellant was examined under section 342 Cr.P.C and he while answering the question No.4 “Have you anything else to say?” has stated as under:-

I am innocent; after my appointment as Centre Incharge Baharo, I went there and purchased 9020 Bags of wheat. I produce Arrival report Register 57. I have exhausted 15 leaves of this register on different dates. I had issued wheat on different Godowns and Centers through Ghulam Rasool Chandio Contractor. I produce Issue Register No. 892, I have utilized 28 leaves of this register this wheat was dispatched under GP-13 register which is used at the time of dispatch of the wheat; Contractor also used to issue a bilty when he takes wheat. I produce G.P-13 Register No.2992 all 50 pages have been exhausted. I also produce G.P-13 Register No.2993, 28 pages of this register stand utilized by me, all the GP-13 are attached with Bilty issued by the Contractor. Four Trucks of wheat were forcibly taken away by Abdul Wahab Khoso DFC through Contractor Zahoor Ahmed Memon. The suppliers had taken such receipt from Zahoor Memon at the time of delivery of the wheat. I produce these four receipts, as Ex.8/E-1 to 4. The wheat has been misappropriated by the contractor and the DFC Abdul Wahab Khoso.

14. From the entire evidence produced by the prosecution, it established that the appellant has purchased wheat 9020 begs and dispatched only 6050 begs to different centers and 2970 begs of wheat were misappropriated by the appellant. The posting at the time of procurement of the wheat has not been denied by the appellant. Four different defence were taken by the appellant during the trial, however after the case was registered against him he has remained absconder till entire investigation was completed and challan was submitted before the court. The defence which were taken by the appellant are (1) that the 2970 begs were with the growers (2) that the wheat was misappropriated by contractor Ghulam Hussain (3) that the wheat was misappropriated by Zahoor Memon contractor and (4) that Four Trucks of wheat were forcibly taken away by Abdul Wahab Khoso DFC through Contractor Zahoor Ahmed Memon. The appellant has not made any suggestion to the PW Abdul Wahab Khoso DFC when his evidence was recorded that he has taken four trucks of wheat from the PRC where appellant was Incharge, by force nor any complaint was made by the appellant before or after the case was registered against him.

15. No doubt the accused can take several pleas in his defence to disprove the case of prosecution and the burden of proving the case is always lying upon the shoulders of the prosecution but in the case in hand no any supporting evidence which may includes oral as well as documentary evidence, is brought on record by the appellant to prove any of the four defence taken by him during the trial. However, the prosecution has prove its case against the appellant by producing reliable, trustworthy and confidence inspiring evidence which includes oral and documentary evidence.

16. It is observed that by the act of appellant a financial loss has been occurred to the exchequer/society and the financial loss to society from the persons like appellant is probably greater than the financial loss from burglaries, robberies and larcenies committed by the persons of the lower socio-economic class. It is high time to deter those from committing acts of corruption and to save the economic structure of our country which is already facing a serious financial situation.

17. Thus based on the particular facts and circumstances of the case the prosecution has proved its case against the appellant beyond a reasonable doubt. Learned counsel for the appellant has failed to point out any material illegality or serious infirmity committed by learned trial Court while passing the impugned judgment, which in my humble view is based on the appreciation of the evidence and the same does not call for any interference by this Court. The conviction and sentences awarded to the present appellant by the learned trial Court are hereby maintained and the instant appeal filed by the appellant merits no consideration, which is dismissed accordingly.

18. These are the reasons of my short order dated 20.12.2021 and same is reproduced as under:-

"On 13-12-2021, learned Counsel for the appellant read out entire evidence and concluded his arguments. Today learned Additional Prosecutor general has concluded his arguments. For the reasons to be recorded later on, instant Cr. Appeal is dismissed and the impugned Judgment dated: 04-03-2006, passed by the learned judge, Anti-Corruption, Sukkur, is hereby maintained. Appellant, present on bail, is taken into custody and remanded to Central prison to serve out his remaining sentence as per impugned judgment dated: 04-03-2006.

J U D G E