Safdar Ali vs State

JUDGMENT SHEET

IN THE LAHORE HIGH COURT,

RAWALPINDI BENCH, RAWALPINDI

JUDICIAL DEPARTMENT

Criminal Appeal No.253 of 2013 (Safdar Ali Versus The State)

JUDGMENT

Date of Hearing. 15.04.2014

APPELLANT BY Syed Ali Shah Bukhari, Advocate.

STATE BY Ch. Qaiser Mushtaq, A.D.P.P.

Syed Shahbaz Ali Rizvi, J:- This judgment will dispose of the above criminal appeal filed by the appellant Safdar Ali against the judgment dated 06.06.2013 passed by learned Special Judge, Anti Corruption, Rawalpindi in case FIR No.7 dated 12.04.2004 registered u/s 409 PPC, read with section 5 of Prevention of Corruption Act No.II, 1947 whereby the appellant was convicted and sentenced infra: -

(i)Under section 409 PPC to undergo Seven years RI and fine of Rs.50,000/- (fifty thousand). In default of payment of fine, to further undergo six months SI.

(ii)Under section 5 (2) of the Prevention of Corruption Act, 1947 to undergo Seven years RI and fine of Rs.50,000/- (fifty thousand). In default of payment of fine, to further undergo six months SI.

Both the sentences were ordered to run concurrently and the appellant was also extended with the benefit of section 382- B of Cr.P.C.

2.The facts in brief as disclosed by Riaz Hussain Shah, Inspector/SHO P.S Waris Khan, Rawalpindi (PW.2), are that he had moved an application (Ex.PA) to EDO (R) maintaining therein that Safdar Hussain HC/712 (appellant) Moharrar on 14.02.2001, according to record, had deposited a parcel containing an amount of Rs.29170/- and mobile phone Nokia, case property of FIR No.620 dated 12.10.2000 under Section 6 of Prevention of Gambling Act, 1977 of Police Station Waris Khan; as FIR No.323 dated 09.06.2003 u/s 409 PPC was registered at Police Station Waris Khan against Safdar Ali HC for embezzlements and misappropriations so inspection of above case property was also necessary and in this regard, when the said parcel was opened in the presence of learned Special Judicial Magistrate, the amount recovered from the same was Rs.630/- instead of Rs.29,170/-; hence this case.

3.On this complaint Ex.PC, formal FIR Ex.PF was registered, the case was investigated and on completion of investigation, the challan was submitted in the Court.

4.Learned trial court, summoned the appellant and framed formal charge against him on 10.07.2012, to which he pleaded not guilty and claimed to be tried.

5.Prosecution was asked to produce its evidence. The prosecution got examined as many as 7 witnesses in all. Malik Muhammad Arif, D.O Budget office, F & P Jhelum, appeared as PW.1 who deposed that

on 14.12.2001 he was posted as Asst. Treasury Officer, Accounts Office, Rawalpindi when the appellant deposited 23 sealed packets, which he kept in the safe custody and on 24.06.2003 two out of 23 packets were handed over to SHO Riaz Hussain Shah PW.2. PW.2 is Riaz Hussain Shah Inspector (R). He being complainant of the case, reiterated the facts, as mentioned in his complaint Ex.PC. PW.3 is Zahoor Ahmad ASI who deposed that he produced attested copies of Register No.19 P.1 and road certificate P.2, which the I.O secured through memo Ex.PD, attested by him. Anwar ul Haq, the then Ahlmad in the court of Mr. Muhammad Akram Bhatti, Special Judicial Magistrate, Rawalpindi, appeared as PW.4, in whose presence the alleged parcel was opened under the direction of learned Magistrate and an amount of Rs.630/- was recovered, instead of Rs.29170/-.

PW.5 Muhammad Aslam on 25.6.2003 kept the amount of Rs.630/-, a mobile phone and a torn parcel pertaining to FIR No.620/2000 of P.S Waris Khan, Rawalpindi in Malkhana, which later on were taken into possession by the I.O vide memo Ex.PE. PW.6 Raja Muhammad Fazal conducted partial investigation of this case and he also appeared in place of Muhammad Khalil (since dead) and verified documents i.e FIR Ex.PF, rough site plan Ex.PG, recovery memos Ex.PD and PE and statements u/s 161 Cr.P.C to be in the hand of said Muhammad Khalil (since dead) and in the end, PW.7 is Muhammad Akram Bhatti,

Judicial Magistrate in whose presence the parcel was opened and the amount Rs.630/- was recovered instead of Rs.29170/-.

Learned prosecutor gave up PWs Adalat Hussain, Manzoor Ahmad SI, Muhammad Mumtaz ASI being unnecessary and Muhammad Khalil being dead and finally closed the prosecution evidence.

6.Thereafter, statement of the appellant was recorded u/s 342 Cr.P.C wherein he denied the allegations leveled against him and pleaded his innocence and in answer to question No.8 as to why the case was against him and why the PWs deposed against him, the appellant maintained as under: - “Parcel was deposited in Malkhana before my posting as Moharrar there. Parcel was prepared by the investigating officer of FIR No.620 and subsequently I deposited the same intact with other parcels in treasury. If there was any wrong, for that investigating officer of that case was accountable. I have been falsely involved in this case only on the reason that I became absent from my duty. I have been victimized by the then CPO Rawalpindi. I am innocent. Witnesses have deposed falsely against me.”

The appellant neither opted to appear as his own witness to make statement on Oath u/s 340(2) Cr.P.C nor to lead evidence in his defence.

7.On conclusion of the trial, the appellant was convicted and sentenced as mentioned above; hence instant appeal.

8.Learned counsel for the appellant has argued that the appellant is innocent and has falsely been involved in this case; that the appellant has nothing to do with the alleged occurrence; that the alleged parcel was not

opened in the presence of the appellant and no case is made out against him;

that it is shrouded in mystery that where the parcel remained before its alleged opening on 25.06.2003; that there is no evidence of entrustment of case property; that the offence u/s 409 PPC is not made out against the appellant;

that the alleged parcel was already sealed, so no responsibility lies upon the appellant; that neither there is evidence of any tampering on the said parcel nor it is alleged by the prosecution; that there are glaring contradictions and discrepancies in the statements of the witnesses; that the impugned judgment is illegal, unlawful and against the facts, therefore, liable to be set aside and the appellant is entitled for acquittal.

9.Conversely, learned A.D.P.P, representing the state, opposed the submissions by arguing that the learned trial court has rightly convicted and sentenced the appellant, in the light of unimpeachable and cogent evidence available before it; that evidence, in this case, was recorded after about ten years of the occurrence and minor discrepancies in the statements of the witnesses do occur with the passage of time on account of fleeting memory of human being; that the prosecution witnesses remained unshattered during cross examination by the defence and prayed for dismissal of the instant appeal.

10.Having heard the learned counsel for the appellant, learned ADPP representing the State and gone through the record, certain important aspects of this case have come to the surface. In this case, the allegation of misappropriation of amount of Rs.28,540/- is alleged against the appellant but

it is noteworthy that admittedly the parcel containing the total amount of Rs.29,170/- as alleged, when opened, was in a sealed condition as is evident from the statement of PW.1. Being so, how it can be safely inferred that the amount of Rs.28,540/- was misappropriated by the appellant, especially when the prosecution has not produced any evidence regarding the tempering of the seal available on the parcel in question. For this purpose, it was necessary for the prosecution to produce the Investigating Officer of case FIR No.620 dated 12.10.2000 registered under section 6 of Prevention of Gambling Act, 1977 P.S Waris Khan, Rawalpindi, the prosecution has not even bothered to produce the recovery witnesses of the said amount who were the witnesses of recovery and possession of amount of Rs.29,170/- and its subsequent making into sealed parcel but alarming is that even the supra referred FIR has not been produced to prove the allegation against the petitioner. The prosecution is not consistent regarding the date of deposit of the parcel as is evident from the statement of PW.1 Muhammad Arif who deposed that the sealed packet was deposited by Safdar Ali, the appellant on 14.12.2001 in Accounts Office, Rawalpindi for safe custody while the recovery memo of amount of Rs.630/- Ex.PB and complaint Ex.PC reflect the date as 14.02.2001. Moreover, the date mentioned in the attested copy of register No.19 is also 14.2.2001; Malik Muhammad Arif PW.1 deposed that on 24.6.2003 SHO Riaz Hussain Shah Police Station Waris Khan came at their office with the order of EDO(R) and they handed over two packets to him from the packets which were already deposited on 14.12.2001 but conversely Riaz Hussain Shah SHO PW.2 denies

the same fact during his cross examination saying “it is wrong to say that I obtained sealed envelop from Sub-treasury on 24.06.2003”. Another important fact of this case is that neither Muhammad Arif PW.1 nor PW.2 Riaz Hussain Shah, Anwar ul Haq PW.4 and Muhammad Akram Bhatti S.J.M/PW.7 in whose presence the parcel was opened, have uttered a single word that when the parcel was received by the treasury office on 14.12.2001 or when it was received by the complainant on 24.6.2003 or when it was opened in the presence of PW.4, PW.7 and the complainant himself, the same was already desealed or having a tempered seal on it. When it is so, coupled with the fact that preparation of parcel of any case property is the job of concerned investigating officer and not of Moharrar, then how it can be said that the amount secured in the parcel in issue was Rs.29,170/- at the time of sealing of the same. The prosecution is to stand on its own legs to prove the charge against the accused but in the instant case, leaving aside statement of the appellant u/s 342 Cr.P.C, no evidence has been produced by the prosecution to prove that the entrustment was of a parcel containing the amount of Rs.29,170/- and mobile phone Nokia and not of Rs.630/-, mobile phone Nokia to the appellant and further that misappropriation of amount of Rs.28,540/- by the appellant has not been proved by the prosecution beyond a reasonable doubt while it is by now established proposition of law that even a single reasonable doubt creating suspicion about the culpability of the accused is sufficient to extend benefit of the same to him. Moreover, in criminal administration of justice, conviction cannot be based on surmises and

conjectures and prosecution is duty bound to establish its case against the accused by leading cogent, convincing and plausible evidence, free from all hypothesis, which, as discussed above, is miserably lacking in this case. The case of the prosecution against the accused is highly doubtful, thus, he is entitled to the benefit of doubt as a matter of right and not of grace.

For what has been discussed above, this appeal stands accepted, the conviction and sentence awarded to the appellant u/s 409 PPC and 5 of the Prevention of Corruption Act No.II, 1947 is set aside and he is acquitted of the charge. The appellant is in jail, shall be released forthwith, if not required in any other case.

(Syed Shahbaz Ali Rizvi) Judge

Approved for reporting.

Judge

Rafaqat Ali