IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

 

(Criminal Appeal No.S-10 of 2017)

 

Appellant         :                Nizakat Ali s/o Ali Hassan Abbasi, Through Mr. Safdar Ali G.Bhutto, Advocate

 

The State         :             Through Mr.Aitbar Ali Bullo, D.P.G.

 

 

Date of hearing:            24-02-2023       

Date of decision:           24-02-2023

 

JUDGMENT

 

ZULFIQAR ALI SANGI, J;- The listed criminal appeal is directed against the judgment dated 25.01.2017, passed by learned Special Judge Anti-Corruption (Provincial), Larkana, in Special Case No.46/2010 (Re. St. Vs. Nizakat Ali Abbasi), emanating from FIR bearing Crime No.05/2009, offence U/S.409 PPC r/w Section 5(2) Act-II of 1947, registered with Police Station, A.C.E, Larkana, whereby appellant was convicted for offence punishable U/S.409 PPC r/w Section 5 (2) Act-II of 1947 and sentenced to suffer R.I for four years with fine of Rs.100,000/- and in default whereof, to suffer R.I for six months more, with benefit of Section 382-B Cr.PC.

 

2.       Succinctly, the facts of prosecution case are that on 20.02.2009, Niaz Hussain Khajar Circle officer, A.C.E Larkana lodged FIR on behalf of the State with P.S, A.C.E, Larkana, to the effect that this case is registered after receipt of permission from competent authority viz. ACC-II Larkana held on 30.01.2009 in the result of inquiry into complaint No.66/2008 of ACE Larkana on the report of District Food Controller, Larkana reported vide No.DFC/Lrk/2008/-521 dated 24.03.2008 alleging therein that Nizakat Ali Abbasi, Assistant Food Controller and Incharge PRC Wagon Road Godown Larkana absconded from his duties on 18.03.2008 by sending application of medical leave for one week i.e 18.03.2008 to 24.03.2008. He submitted balance report of wheat on 17.03.2008 showing closing balance of 12563 bags of wheat with standard weight. It was also alleged that only releasing point to mills and chakies for avoiding interruption in supply of wheat to grinders and Atta to public, a committee has been constituted for issue of wheat from 18.03.2008 that is issuing the stocks through weight-bridge. It is alleged that due to presence of large number exceedingly short weight bags the committee was allowed to get ascertain actual loss of weight and issuing complete weight to the lifters by saving empty bags, the total 2952 bags storage amounting to Rs.40,12,977/- including penalty per K.G Rs.2/-. It is alleged that during inquiry it came on record that accused Nizakat Ali Abbasi, AFC remained incharge at Food Godown Wagon Road Larkana for the year 2005/2006 and 2006/2007 and during his posting he had misappropriated Government wheat 2952 bags amounting to Rs.40,12,977/- and caused loss to government, for that the present case was registered.

3.   On completion of usual investigation, the final report under section 173 Cr.PC against the accused was submitted by the police before learned trial Court, where the formal charge was framed against present appellant/accused, to which he pleaded not guilty and claimed trial.

4.    In order to establish accusation against the appellants/accused, the prosecution examined in all eight witnesses i.e PW-01 Clerk Madad Ali Bozdar, PW-02 ADFC Sabir Ali Kamario, PW-03 Food Supervisor Rajib Ali Larik, PW-04 Food Inspector Ayaz Hussain Lashari, PW-05 AFC Jamaluddin Jhulan, PW-06 Food Inspector Shahid Hussain Qadri, PW-07 SIO/Inspector Niaz Hussain Khajar, PW-08 Deputy Director Qaisar Khan Unar, who all produced certain relevant documents in support of their statements. Thereafter, learned State Counsel closed the side of prosecution.

5.   The present appellant/accused in his statement recorded in terms of Section 342 Cr.PC, denied the allegations leveled against him by pleading his innocence. He however, examined himself on oath in disproof of the charge and also examined DWs Muhammad Punhal Lashari and Abdul Raheem Kalhoro in his defence.

6.      The learned trial Court on evaluation of the material brought on record and hearing counsel for the parties convicted and sentenced the present appellant/accused vide impugned judgment, as discussed above.

 

7.       Per learned defence counsel, there are material contradictions in the evidence of prosecution witnesses which have shattered the veracity of their evidence; that there is no substance of misappropriation of the government wheat against the appellant; that there is no recovery of any incriminating article from the possession of the appellant to show his involvement in the present case. Summing up his contentions, the learned defence counsel submitted that the appellant has falsely been arraigned in this case with malice and thus lastly prayed that the case of prosecution is doubtful and the appellant is entitled to his acquittal in the circumstances of case. In support of his contentions, he relied upon case of Abdul Rashid Nasir and others v. The State (2009 SCMR-517) and unreported cases passed in Criminal Appeals Nos.S-25, 46 & 54 of 2016.

8.       On the other hand, learned Addl.P.G for the State submits that all the witnesses have fully supported the case of prosecution and no any major contradiction has been noticed in their evidence, therefore, learned trial Court finding the appellant guilty of the offence has rightly convicted and sentenced him by way of impugned judgment which does not call for any interference by this Court, hence, the appeal filed by him being meritless is liable to its dismissal.

9.       Heard learned counsel for the parties and perused the material made available on the record with their able assistance.

10.     The meticulous re-appraisal of material brought on the record is entailing that though the prosecution witnesses have tried to support the case of prosecution but their evidence when scrutinized deeply was found coupled with material infirmities/improbabilities. In that the posting order of the appellant was neither produced nor exhibited in the evidence that the present appellant was posted as incharge of said Food Centre. Even otherwise, it is not alleged in the entire case that when and what quantity of wheat bags were entrusted to him, nor any such proof has been brought on record by the prosecution which is mandatory requirement of Section 409 PPC. It is however, admitted by the prosecution that the appellant moved application for leave on 17.03.2008 for 18.03.2008 to 24.03.2008. The question arises as to why the wheat was checked and weighed in absence of appellant. Such fact opens the room for false implication. Even otherwise, it has not come in the evidence that on what scale such wheat bags were weighed. PW-02 Sabir Ali admitted in his examination-in-chief that they were provided balance report dated 17.03.2008 which shows stock 12563 wheat bags and on same day they went at godown and counted available stock and found that number of bags was same as per balance report but there was shortage of weight in each bag. During cross examination, he stated that they got weighed stock through weighing scale at Al Razzak Measuring Kanta which is situated at Wagon Road Larkana and the distance between Wagon Road Larkana and Al Razzak Measuring Scale would be about less than one kilometer. He however, admitted during cross examination that they had not got measured total stock before release of stock. The prosecution has not produced any receipt of such weight nor they disclosed such fact before the cross examination, which creates very doubt. Prosecution has also failed to prove that who took the said stock from Godown to Al Razzak Scale, on which vehicle it was taken and who paid the hire charges of said vehicles, all these things make the entire case as doubtful. There is no evidence in respect of misappropriation of the wheat bags or disposed of the same by the appellant, therefore, the prosecution has failed to prove if any misappropriation has taken place. Over and above this, the broad features involved in this case were that the appellant was held responsible for misappropriation of wheat bags and subsequently an inquiry was conducted by Additional Secretary Food Department under the order of Secretary Food/Authority who vide order dated 23.05.2016 found the present appellant, Pir Maqsood Hussain Sarhandi Retired Deputy Director Food and Rajib Ali Larik Food Supervisor District Larkana responsible for shortages of 2900 wheat bags valuing Rs.40,12,977/- at Wagon Road Godown, District Larkana and thus imposed minor penalty of recovery of Government loss amounting to Rs.12,03,893/- as 30% of the total amount of Rs.40,12,977/- upon the appellant with direction to deposit the said amount in Government Treasury within thirty days which was said to be paid by the appellant and he was reinstated in his service. If the inquiry report of Food Department showing shortages of wheat bags (not misappropriation), is believed to be true then the registration of present case against the appellant that too before inquiry has lost its sanctity and this piece of evidence itself is also sufficient to render the entire claim of misappropriation of wheat bags at the hands of appellant to be highly doubtful. In that situation, the defence plea taken by appellant is found credible.

 

11.     It is a settled principle of law that no one should be convicted of a crime on the basis of presumption in the absence of strong evidence of unimpeachable character and legally admissible. Similarly, the mere heinous or gruesome nature of crime shall not detract the Court of law in any manner from the due course to judge and make the appraisal of evidence in a laid down manner and to extend the benefit of reasonable doubt to an accused person being indefeasible and inalienable right of an accused. It is also an established principle of law that an accused person is presumed to be innocent until and unless he is proved guilty beyond a reasonable doubt and this presumption of his innocence continues until the prosecution succeeds in proving the charge against him beyond a reasonable doubt on the basis of legally admissible, confidence-inspiring, trustworthy and reliable evidence. It has also been held by the Superior Courts that conviction must be based upon unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. The rule of giving the benefit of doubt to an accused person is essentially a rule of caution and prudence and is deep-rooted in our jurisprudence for the safe administration of criminal justice. In common law, it is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted". While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (Peace Be Upon Him): “Avert punishments (Hudood) when there are doubts” and “Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him [accused], let him have his way, because the leader's mistake in pardon is better than his mistake in punishment.” The Honourable Supreme Court has quoted probably the latter part of the last-mentioned saying of the Holy Prophet (PBUH) in case of Ayub Masih v. State (PLD 2002 SC-1048) "Mistake of Qazi (Judge)  in releasing a criminal is better than his mistake in punishing an innocent." The same principle has also been followed by the Honourable Supreme Court of Pakistan in recent Judgment in case of Naveed Asghar and 2 others v. The State (PLD 2021 SC-600). It is also settled principle of law that if a single circumstance creates reasonable doubt in a prudent mind about guilt of the accused, then the accused will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in case of Tariq Pervez v. The State reported as (1995 SCMR-1345), wherein the Honourable Supreme Court of Pakistan has held as under:-

"The concept of benefit of doubt to an accused person is deep-rooted in our country for giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is any 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".

12.     The sequel of above discussion is that the prosecution has miserably failed to establish the guilt against the present appellant beyond shadow of reasonable doubt. Consequently, the conviction and sentence awarded to the appellant by learned trial Court vide impugned judgment were set aside and the instant criminal appeal was allowed resulting to acquittal of the appellant.

13.     Above are the reasons of my short order dated 24.02.2023, whereby the instant Criminal Appeal was disposed of accordingly.

                                                                                    JUDGE