2022 S C M R 998

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Sayyed Mazahar Ali Akbar Naqvi

and Jamal Khan Mandokhail, JJ

MUHAMMAD SAMIULLAH---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 91-K of 2020, decided on 9th February, 2022.

(On appeal against the judgment dated 12.05.2020 passed by the

High Court of Sindh, Karachi in Criminal Appeal No. 183 of 2019)

(a) Prevention of Corruption Act (II of 1947)---

----S. 5(2)---Penal Code (XLV of 1860), S. 409---Misappropriation of

machinery/equipment by government employee---Reappraisal of
evidence---Lack of direct evidence---Record reflected that there was no
direct evidence available on the record, which could connect the
accused with the commission of the crime---Prosecution's case mainly
hinged upon the testimonies of four prosecution witnesses, who
belonged to the same department as the accused---Crux of the
testimonies of the said four witnesses was that during the inquiry
proceedings the accused had confessed his guilt and had submitted an
application seeking time to return the articles---However, a specific
question in that regard was put to the accused while recording his
statement under section 342, Cr.P.C. but he categorically denied the
filing of any such application or his signatures on the said application--
-Neither the disputed signatures of the accused were sent to the
handwriting expert nor the forensic test of the same was done to get
them verified in a scientific manner and the Trial Court of its own
compared the admitted signatures of the accused with the disputed
signatures on the alleged application filed by him---At the time of
registration of the crime report neither the inventory of the alleged
stolen articles nor their description was given --- Petition for leave to
appeal was converted into appeal and allowed, and accused was
acquitted of the charge.
(b) Qanun-e-Shahadat (10 of 1984)---
----Art. 84---Power of Trial Court to compare signatures on disputed
documents---Scope---Article 84 of the Qanun-e-Shahadat, 1984
empowers the Courts to compare the disputed signatures in order to
ascertain whether the same is that of the person by whom it purports
to have been written or made---However, in matters where no direct
evidence is available and the prosecution case exclusively rests on
indirect evidence or where the prosecution's case is solely based upon
the alleged admission of the accused then as an abundant caution the
Courts while convicting an accused must adopt the safest way, which
furthers the true spirit behind the safe administration of criminal
justice.
(c) Qanun-e-Shahadat (10 of 1984)---
----Art. 61---Handwriting expert, opinion of---Reliance on such opinion--
-Scope---In absence of sufficient evidence available on the record in
the shape of oral or documentary evidence, the evidence of
handwriting expert is always considered to be most unsatisfactory,
weak and decrepit to deserve a place in the system of jurisprudence
and the courts are not to base their findings merely on the expert's
opinion.
Rubina Jamshed v. UBL 2005 CLD 50; Abdul Hamid v. Deputy
Commissioner 1985 SCMR 359; Shabbir Hussain v. The State 1968 SCMR
1126 and Anwar Ahmad v. Nafis Bano 2005 SCMR 152 ref.
(d) Criminal trial---
----Reasonable doubt, benefit of---Scope---Single circumstance creating
reasonable doubt in a prudent mind about the guilt of accused makes
him entitled to its benefits, not as a matter of grace and concession but
as a matter of right---Conviction must be based on unimpeachable,
trustworthy and reliable evidence---Any doubt arising in prosecution's
case is to be resolved in favour of the accused.
Anis Muhammad Shahzad, Advocate-on-Record for Petitioner.
Hussain Bux Baloch, Additional P.G. Sindh for the State.
Date of hearing: 9th February, 2022.
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Petitioner was
proceeded against in terms of the case registered vide FIR No. 25/2015
dated 14.07.2015 under section 409, P.P.C. read with section 5(2) of
Prevention of Corruption Act-II, 1947 at Police Station ACE East Zone,
Karachi on the allegation that he being incharge of Laboratory of
Regional Education Center, Shah Faisal Colony, Karachi had
misappropriated some of the machinery/equipment. The learned Trial
Court vide its judgment dated 19.03.2019 convicted the petitioner
while exercising powers under section 245(2), Cr.P.C. and sentenced
him to suffer rigorous imprisonment for 4 years for the offence under
section 409, P.P.C. He was also directed to pay fine of Rs.25000/- or in
default whereof to further suffer SI for 3 months. The petitioner was
also convicted under section 5(2) of Prevention of Corruption Act, 1947
and was sentenced to 4 years' RI with a fine of Rs.25000/- or in default
whereof to further undergo SI for 3 months. The sentences were
ordered to run concurrently with benefit of section 382(b), Cr.P.C. In
appeal, the learned High Court of Sindh, maintained the conviction
and sentences recorded by the learned Trial Court.
3. After completion of the investigation, report under section 173,
Cr.P.C. was submitted before the Trial Court. The prosecution in order
to prove its case produced 6 witnesses. In his statement recorded
under section 342, Cr.P.C. the appellant pleaded his innocence and
refuted all the allegations levelled against him. However, he neither
examined himself on oath under section 340(2), Cr.P.C. nor did he lead
any evidence in his defence.
4. At the very outset, learned counsel for the petitioner contended
that it was an unseen occurrence as nobody has seen the petitioner
while stealing the equipment of the laboratory. Contends that the
prosecution's case revolves around the alleged admission of the
petitioner by filing an application but the fact is that the petitioner had
never filed any such application. Contends that the case against the
petitioner is highly doubtful and the courts below have failed to take
into consideration that the prosecution has miserably failed to prove
its case against the petitioner beyond any shadow of doubt and the
benefit of the same must be given to the petitioner. Lastly contends
that the judgments passed by the courts below are result of misreading
and non-reading of prosecution evidence whereby a huge miscarriage
of justice has been done.
5. On the other hand, learned Law Officer has defended the
impugned judgment. He contended that the appellant has been
specifically nominated in the crime report with an allegation of
misappropriation of office equipment and during departmental
inquiry proceedings, he had admitted his guilt and had filed an
application in this regard and sought time to return the equipment,
therefore, he does not deserve any leniency by this Court.
6. We have heard learned counsel for the parties at some length and
have perused the evidence available on the record with their able
assistance.
The perusal of record clearly reflects that there is no direct evidence
available on the record, which could connect the petitioner with the
commission of the crime. The prosecution's case mainly hinges upon
the testimonies of four PWs, who belong to the petitioner's
department. The crux of the testimonies of the four PWs who belonged
to the petitioner's department is that during the inquiry proceedings
the petitioner had confessed his guilt and had submitted an
application seeking time to return the articles. However, we have
noted that a specific question in this regard was put to the petitioner
while recording his statement under section 342, Cr.P.C. but he
categorically denied the filing of any such application or his signatures
on the said application. Perusal of the record reveals that neither the
disputed signatures of the petitioner were sent to the handwriting
expert nor the forensic test of the same was got done to get them
verified in a scientific manner and the Trial Court of its own compared
the admitted signatures of the petitioner with the disputed signatures
on the alleged application filed by him. There is no cavil that Article 84
of the Qanun-e-Shahadat Order, 1984 empowers the Courts to compare
the disputed signatures in order to ascertain whether the same is that
of the person by whom it purports to have been written or made but in
matters where no direct evidence is available and the prosecution case
exclusively rests on indirect evidence especially like the present case
where the prosecution's case is solely based upon the alleged
admission of the petitioner then as an abundant caution the Courts
while convicting an accused must adopt a safest way, which glorifies
the true spirit behind the safe administration of criminal justice,
which admittedly has not been done by the courts below. Even
otherwise, it is settled law that in absence of sufficient evidence
available on the record in the shape of oral or documentary, the
evidence of handwriting expert is always considered to be most
unsatisfactory, so weak and decrepit as scarcely to deserve a place in
the system of jurisprudence and the courts are not to base their
findings merely on expert opinion. Reliance is placed on Rubina
Jamshed v. UBL (2005 CLD 50), Abdul Hamid v. Deputy Commissioner
(1985 SCMR 359), Shabbir Hussain v. The State (1968 SCMR 1126) and
Anwar Ahmad v. Nafis Bano (2005 SCMR 152). It is also an admitted
position that at the time of registration of the crime report neither the
inventory of the alleged stolen articles nor their description was given.
If the foundation of the prosecution case is false and would not
conform to the doctrine of fairness then the very case of the
prosecution falls to the ground. In these circumstances, a dent in the
prosecution's case has been created, benefit of which must be given to
the petitioner. It is a settled law that single circumstance creating
reasonable doubt in a prudent mind about the guilt of accused makes
him entitled to its benefits, not as a matter of grace and concession but
as a matter of right. The conviction must be based on unimpeachable,
trustworthy and reliable evidence. Any doubt arising in prosecution's
case is to be resolved in favour of the accused as burden of proof is
always on prosecution to prove its case beyond reasonable shadow of
doubt. However, as discussed above, in the present case the
prosecution has failed to prove its case beyond any reasonable shadow
of doubt. Before parting with the judgment, we may observe that the
learned Special Judge, Anti-Corruption/Trial Court while un-
necessarily pressing into section 245(2), Cr.P.C. has convicted the
petitioner for the offence under section 409, P.P.C. Chapter XX of the
Code of Criminal Procedure deals with the trial of cases by Magistrate
and sections 244 and 245 lie in this Chapter, which prescribe the
procedure for trial of a warrant case instituted on a complaint.
However, as the prosecution has failed to prove its case, we do not
deem it appropriate to go further into this aspect of the matter.
7. For what has been discussed above, we convert this petition into
appeal, allow it and set aside the impugned judgment. The petitioner is
acquitted of the charge. He shall be released from jail forthwith unless
detained in any other case.
MWA/M-14/SC Appeal allowed.