2008 S C M R 684

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

ABDUL SATTAR----Petitioner

Versus

THE STATE through Advocate-General N.-W.F.P.----Respondent

 Criminal Petition No.102 of 2005, decided on 13th July, 2005.

 (On appeal from the judgment of Peshawar High Court, Peshawar, dated 21-2-2005 passed in

 Criminal Appeal No.81 of 2005).


 (a) Criminal trial---

 ----Investigating Officer, examination of---Investigating Officer is not a formal witness and his

 evidence, subject to the qualifying test to be believed is at par with that of any other prosecution

 witness, therefore, his non-examination may cause prejudice to an accused in his defence---

 Importance of evidence of Investigating Officer depends upon the facts of each case and his nonproduction as witness is not always necessarily fatal to prosecution.


 (b) Penal Code (XLV of 1860)---

 ----Ss. 409, 468, 419 & 420---Prevention of Corruption Act (II of 1947), S.5(2)---Constitution of

 Pakistan (1973), Art.185(3)---Prosecution had mainly relied upon the official documents---

 Documentary evidence showed that non-production of Investigating Officer in Court had caused no

 prejudice to the accused as he was given full opportunity to cross-examine the relevant witness of

 the concerned Department, but he had not been able either to question the credibility of the

 documentary evidence or discredit the oral evidence produced by the prosecution---Cooperative

 Society admittedly was being run in the name of and President who was dead and thus, same was

 not validly constituted under Cooperative Societies Act, 1925---Cooperative Society had no legal

 status to obtain loan from the Department---Verification of the genuineness of the Society by the

 accused, therefore, was sufficient evidence of his involvement in the transaction---Accused being a

 representative of the Department, was responsible to supply correct information, but he knowingly

 having submitted an incorrect and misleading report to the concerned Authorities, had caused loss

 to the Government for wrongful gain---In the absence of any explanation of the accused of making

 verification of invalid Cooperative Society in good faith and that loan was actually utilized by the

 members of the society, a strong presumption was raised that he, in connivance with Secretary

 General of the Society, having obtained loan in the name of invalid and improperly constituted

 Society, had misappropriated the amount of loan---Concurrent findings of guilt of accused arrived at

 by the Courts below did not suffer from any legal or factual infirmity or defect of misreading or

 non-reading of evidence to call for interference of Supreme Court---Leave to appeal was refused

 accordingly.

 

State through A.-G. Sindh v. Bashir and others PLD 1997 SC 408; Allah Ditta v. State PLD 1958 SC (Pak.) 290; Muhammad Sharif v. State 1972 Cr.LJ 1259 ref.


 Mian Mohibullah Kakakhel, Advocate Supreme Court for Petitioner.

 M. Bilal, Senior Advocate Supreme Court for A.-G. N.-W.F.P. for Respondent.

 

Date of hearing: 13th July, 2005.

 

JUDGMENT

 

MUHAMMAD NAWAZ ABBASI, J

 

.--- This petition under Article 185(3) of the Constitution of

Islamic Republic of Pakistan has been directed against the judgment, dated 21-2-2005 passed by a learned Judge in Chamber in the Peshawar High Court, Peshawar, whereby criminal appeal filed by the petitioner against his conviction and sentence under sections 409/419/420/468/471, P.P.C. read with 5(2), PCA, 1947, was dismissed.

2. The charge against the petitioner was that he and his co-accused, who was Secretary-General of a registered Cooperative Society of village Karuna, in connivance with each other having obtained loan of Rs.2,00,000 in the name of Society from the Cooperative Department N.-W.F.P. in 1994,misappropriated the amount of loan. The Society was initially registered in 1988 and Hakeem Khan was its first President who died in 1989. Thereafter, the Society was not reconstituted and Hakeem Khan was continuously being shown as its President. The allegation against the petitioner was that he, in connivance with the General Secretary of the Society, verified that the Society was validly constituted and thereby facilitated the sanction of loan in the name of Society and subsequently shared in the misappropriation of the amount of loan.

   The petitioner denied the charge taking plea that the Society was genuine which was validly registered having been established in 1988 and the loan was sanctioned in the name of Society for supply of fertilizer and pesticides to its members by the Bank directly through its Secretary-General without the involvement of the representative of the Department. The petitioner thus, pleaded that he having no concern with the withdrawal and disbursement of loan was not responsible for the alleged misappropriation. However, the learned trial Judge having made a detailed scrutiny of the evidence concluded that the petitioner being party to the crime was guilty of the charge and consequently convicted and sentenced him as under:--

(i) Rigorous imprisonment for one year with fine of Rs.1,00,000 and in default of payment of fine, to suffer R.I. for four months under section 468, P.P.C.

(ii) Three years' R.I. with fine of Rs.1,00,000 and in default of payment of fine to undergo R.I. for four months under section 409, P.P.C.

(iii) Six months' R.I. with fine of Rs.5,000 each and in default of payment of fine to undergo S.I. for two months under sections 419/420, P.P.C.

(iv) Under section 5(2), P.C.A., 1947, one year's R.I. with fine of Rs.10,000 and in default of payment of tine, to undergo S.I. for three months.

The different sentences were directed to run concurrently with benefit of section 382-B, Cr.P.C. The conviction and sentences awarded to the petitioner was further upheld by the High Court by dismissing his appeal.

Learned counsel for the petitioner has contended that loan was sanctioned in the name of Society by the competent authority in the proper manner for supply of fertilizers and pesticides to its members which was disbursed through the Secretary-General of the Society and petitioner having no concern with the internal business of the Society could not be held responsible for the alleged misappropriation. The next contention of the learned counsel was that verification regarding the existence and genuineness of Society was correctly made by the petitioner as per official record and neither there was any allegation of preparing of forged documents nor it was proved through any evidence oral or documentary that petitioner was directly involved in the misappropriation of loan.

Lastly learned counsel contended that the Investigating Officer who was the most important witness, was not examined and his successor appearing in the witness-box, verified his investigation without proving his non-availability and thus, with the exclusion of the statement of (P.W.6) who was successor Investigating Officer and his evidence was hearsay, there was no other evidence on record to connect the petitioner with the commission of offence. The learned counsel placing reliance on State through A.-G. Sindh v. Bashir and others PLD 1997 SC 408; Allah Ditta v. State PLD 1958 C (Pak.) 290; Muhammad Sharif v. State 1972 Cr.LJ 1259 argued that the Investigating Officer was not an ordinary witness, therefore, his non-production has not only deprived the petitioner from valuable rights of cross-examination to this star-witness of the prosecution but also caused serious prejudice to his defence and in that he was condemned unheard. In nutshell, the learned counsel argued that prosecution instead of bringing any cogent evidence in support of the charge mainly placed reliance on general allegation and inadmissible evidence.

3. Mr. M. Bilal, learned counsel appearing on behalf of Advocate-General, N.-W.F.P., contended that the loan was sanctioned by the concerned authorities on the basis of verification of the petitioner and it was established on record beyond doubt that the Society was not validly constituted. The amount of loan was withdrawn by the Secretary-General of the Society from Cooperative Bank and he in collusion with the petitioner without utilizing it for the purpose forwhich it was given misappropriated the amount which was proved on record beyond any doubt. The learned counsel argued that in the facts and circumstances of the present case, the non-production of Investigating Officer who was sick and was not in a position to appear before the Court, was not fatal to the prosecution and submitted that evidence collected by Muhammad Anwar, A.C.E:, Swabi (P.W.), during the investigation mostly pertained to the official record which was proved by his successor, Syed Israruddin Bacha (P.W.6), being fully conversant with his handwriting and signatures, therefore, non-examination of Investigating Officer caused no prejudice to the petitionerat the trial.

4. We have heard the learned counsel for the parties at length and perused the record with their assistance. There is no cavil to the proposition that the Investigating Officer is not a formal witness and his evidence subject to the qualifying test to be believed is at par to that of any other prosecution witnesses, therefore, his non-examination may cause prejudice to an accused in his defence. However, the importance of evidence of Investigating Officer, depends upon the facts of each case and it is not necessary that non-production of Investigating Officer as witness is always fatal to prosecution. In the present case, prosecution mainly placed reliance upon the official documents and examination of the documentary evidence, would show that the non-appearance of Investigating Officer in Court has caused no prejudice to the petitioner as he was given full opportunity to cross-examine relevant witnesses of the concerned department but he has not been able either to question the credibility of the documentary evidence, or discredit the oral evidence produced by the prosecution. This is an admitted fact that the Society was being run in the name of a President who was dead and thus, was not validly constituted under Cooperative Societies Act, 1925. The Society had no legal status to obtain loan from the department, therefore, the verification of the genuineness of the Society by the petitioner would be sufficient evidence of his involvement in the .transaction. The petitioner being representative of the department, was responsible to supply correct information but he knowingly having submitted an. incorrect and misleading report to the concerned authorities, caused loss to the Government for wrongful gain. The prosecution successfully discharged its burden of the involvement of petitioner in the misappropriation of amount of loan and in rebuttal, the petitioner has not been able to bring on record any evidence to suggest that loan obtained by the Society was genuinely utilized for the benefit of its members as he in the capacity as representative of Cooperative Department, was also responsible to watch and verify the actual utilization of loan. In absence of any plausible explanation of the petitioner of making verification of invalid Society in good faith and that loan was actually utilized by the members of the Society, a strong presumption would be raised that he in connivance with Secretary-General of the Society, having obtained loan in the name of invalid and improperly constituted Society, misappropriated the amount of loan.

5. We having considered the contentions raised by the learned counsel for the parties in the light of evidence, find that the concurrent finding of guilt of the petitioner, arrived at by the trial Court and the High Court was not suffering from any legal or factual infirmity or defect of misreading or nonreading of evidence to call for interference of this Court.

6. For the reasons given above, we do not find any substance in this petition and the same is accordingly dismissed. Leave is refused.

N.H.Q./A-173/SC Leave refused.

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