IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Appeal No. D – 02 of 2019

Present:

Mr. Justice Muhammad Iqbal Mahar

Mr. Justice Irshad Ali Shah.

Appellant: Ghulam Hussain Kalwar

through Mr. Fidaullah Qureshi, advocate.

Respondent: The State, through Mr. Muhammad Zubair Malik,

Special Prosecutor NAB Sukkur

Date of hearing: 15-05-2019.

Date of decision: 28-05-2019.

J U D G M E N T

IRSHAD ALI SHAH, J-. The appellant by preferring the instant Criminal Appeal has impugned judgment dated 03-01-2019 passed by learned Judge Accountability Court, Sukkur in Reference No.23 of 2015 Tilted “The State v. Ghulam Hussain Kalwar”, whereby the appellant has been convicted and sentenced as under;

“ I am of the humble opinion that the prosecution has been successful to prove the indictment in respect of misappropriation of 2378 wheat bags at WPC Sunhari weighing 263.800 MT and 48.743 MT at WPC New Jatoi against accused Ghulam Hussain Kalwar s/o Roshan Ali Kalwar, beyond shadow of reasonable doubt u/s 9(a) (iii) and (vi) of NAO, 1999, hence, the accused is convicted u/s 265-H(2) Cr.PC and sentenced u/s 10 of NAO, 1999 to suffer R.I for 07 years and fine of Rs. 92, 82,743/- (Rupees Ninety Two Lacs, Eighty Two Thousand, Seven Hundred and Forty Three only). In case, he fails to pay the fine it shall be recoverable as arrears of land revenue in terms of section 33-E of National Accountability Ordinance, 1999.

Since the accused has been convicted as such he shall forthwith cease to hold public, office, if any, held by him and further he stands disqualified for a period of ten years, to be reckoned from the date he is released after serving the sentence, for seeking or from being elected, chosen, appointed or nominated as a member of representative of any public body or any statutory or local authority or in service of Pakistan or of any province as required u/s 15 (a) of NAO, 1999. Accused Ghulam Hussain Kalwar son of
Roshan Ali Kalwar is also disallowed to apply for or be granted or allowed any financial facilities in the form of any loan or advance or other financial accommodation by any Bank of financial institution owned or controlled by the Government for a period of 10 years from the date of conviction as required u/s 15 (b) of the Ordinance.

2. The facts, in brief necessary for disposal of instant appeal, are that NAB Authorities Karachi filed Reference against the appellant with the allegation that the appellant while posted at Wheat Procurement Centers Sunheri, New Jatoi and Masurjiwah as Food Inspector/Incharge for procurement of the wheat crop for year 2011-2012, misappropriated 2378 wheat bags containing 263.817 Metric tons of wheat thereby caused financial loss to the Public Exchequer to tune of Rs.92,82,743/- and he during course of inquiry, became voluntarily ready to return the amount under misappropriation his plea for voluntarily return was approved by the authorities concerned, but he did not deposit the amount against his plea of voluntarily return, as such, after due investigation, a reference was filed against the appellant for committing corruption and corrupt practices as is defined under section 9(a) of the NAB Ordinance which is punishable under Section 10 of the Ordinance and the schedule thereto.

3. At trial, the appellant did not plead guilty to the charge and the prosecution to prove it, examined PW-1 Sajjad Ali, Head Clerk at Ex.6, he produced number of documents at Ex.6/1; PW-2 Asghar Ali Shah, DFC at Ex.7; PW-3 Muhammad Ali, DFC at Ex.8; PW-4 Abdul Ghaffar Sheikh Section Officer, Public Health Engineering at Ex.9; PW-5 Ali Asghar Naich, DFC Dadu; PW-6 Sadoro at Ex.11; he produced documents at Ex.11/1; PW-7 Umesh I.O NAB at Ex.12, he produced certain documents at Ex.12/1, 12/2, 12/3 and lastly PW-8 Atta Muhammad Landlord at Ex.13, he produced documents at Ex.13/1 to 13/5 respectively. Thereafter learned Special Prosecutor NAB closed the side vide statement at Ex.14.

4. On closure of the side by the prosecution, the statement of the appellant was recorded u/s 342 Cr.P.C, (Ex.15) wherein he admitted to have entered in voluntarily return, thereafter, he examined himself on oath and then closed the side vide his statement at Ex.20.

5. On conclusion of trial, the appellant was convicted and sentenced to undergo imprisonment for 10 years and to pay fine of Rs. 92,82,733/- with ancillary punishment as is prescribed by section 15 (a) and (b) of NAB Ordinance with benefit of section 382 Cr.P.C, by learned trial court vide judgment 5.9.2017, it was impugned by the appellant by preferring an appeal, it was disposed of by this Court on 25-10-2018 with the following observation;

“In view of above, we are of the firm view that the learned trial Court has not adopted the proper procedure in conducting the trial, therefore, instant appeal is allowed, impugned judgment dated 05.09.2017 is set-aside and the case is remanded back to the trial Court for a fresh decision after providing an opportunity to appellant to cross-examine the prosecution witnesses through his Counsel. Learned trial Court is directed to conclude the trial within two months positively after receipt of this judgment. However, on the plea of engaging his advocate, the appellant would not be entitled to delay the trial and he shall engage the counsel within ten days else he shall be debarred from taking such plea at any stage and the trial Court shall proceed the case in accordance with law.”

6. On remand of the matter, the witness so examined by the prosecution were recalled with opportunity to the appellant to cross examine them through his counsel, such opportunity the appellant availed to his satisfaction, the statement of the appellant u/s 342 Cr.P.C was recorded afresh, he examined himself on oath, produced certain documents to prove his innocence and illness, but did not examine any one in his defence.

7. The appellant in his statement on oath has inter-alia stated that:-

“ I was incharge of PRC Dharki and WPC Dharki in the year 2010-2011. For the year 2011-2012 one Minister namely Nadir Magsi has forcibly transferred me to WPC New Jatoi, WPC Sonehri and WPC Masur ji Wah of District Nausheroferoze. The target of WPC New Jatoi was 60 thousand wheat bags and the target of Sunheri was 40 thousand wheat bags whereas the target of WPC Masur ji Wah is 40 thousand wheat bags. I have requested the then Deputy Director, Sukkur Qaisar Khan Unar not to post me in the above WPCs as I was a local person. But Qaisar Khan Unar replied me that none of the Food Inspector is ready to be posted at these WPCs. He asked me that as I am senior officer, the WPCs were remained closed for 15 days. I reached at the aforesaid WPCs with the Bardana and issued the Bardana to the local Zamendars. There was no proper arrangement at WPC of wheat procurement its stacking and look after at the WPC, hence the local Zamendars used to keep the purchased wheat by the food department at their own otaqs, plots and godowns from where the wheat stock is taken by the government contractors which is issued by the incharge of WPC. In case the contractor is taking the stock very late or in case of rain fall. The wheat stock is damaged and the wheat stock is also vivilized. The wheat stock so issued by the Food Inspector is taken by the contractor after separating the good wheat and the damaged wheat is left by him. I had issued 140,000 wheat bags from the above WPCs out of which 14,300 and some wheat bags remained due against the private parties. I suddenly fell ill and I became the patient of Hepatitis. I was trying to recover the wheat stock from the private parties but the meanwhile my high ups issued the report the NAB of shortage of 14,300 and some wheat bags to the NAB authorities. I was in PRC Moro, when the DFC called me on telephone that NAB team is come to his office and it will visit my WPCs. The NAB team visited the above WPCs, when the Atta Muhammad Qureshi (NAB Official) visited all the three WPCs there was shortage of 2273 wheat bags at all the three WPCs. He praised for my recovery and he advised me to come to the DFC office Nausheroferoze along with record of the above WPCs. I went there he inquired me for the shortage of wheat bags to which I replied that the same was damaged. But I will pay for the damaged wheat stock to the government. Atta Muhammad Qureshi asked me not to pay to the food department but he will give me a challan and I shall deposit the amount to the NAB authorities. Atta Muhammad Qureshi got written from me an application and asked me for signature on it but I refused. Atta Muhammad Qureshi threatened me and pressurized me to put my signatures on the application else he will arrest me where after I put my signature on application. Two of the incharge of the labour are very well known regarding all the facts of issuance of the wheat stock as well as the damage of the wheat stock in all the three WPCs. Their names are Rizwan Ali Korejo and Jan Muhammad Pinayro both resident of Moro. I was removed from my service on the report of Secretary Food Department as well as on the report of NAB. Thereafter I preferred appeal to the Chief Minister Sindh on the above facts. I also requested the Chief Minister Sindh for conducting of inquiry the Chief Minister, Sindh conducted inquiry and call reports from my department and now I am reinstated into my post of food inspector.”

8. On conclusion of the trial, the appellant was convicted and sentenced again by learned trial court through impugned judgment, as stated above.

9. It is contended by learned counsel for the appellant that appellant being innocent has been involved falsely by the NAB authorities; the appellant has agreed before the Food authorities to return the amount due against towards shortage of the wheat and accordingly deposited rupees twenty four lac with his department; the appellant was dismissed from the service by his department without lawful justification, such order being illegal was not approved by Chief Minister of Sindh, who reversed the same; the appellant has never entered in to plea of voluntarily return, it was false and managed and shortage of the wheat according to him could never be said to be misappropriation, which could have provided a cause to NAB authorities to file reference against the appellant. By contending so he sought for acquittal of the appellant being ill person with a chance to him to cover-up the shortage of wheat. In support of his contention, he relied upon cases of (1) Muhammad Shah Vs The State (2010 SCMR 1009), (2) Mian Dad Leghari Vs. The State, (2009 P.Cr.L.J 1226), (3) Badar Munir Vs. The State and another, (2003 YLR 753), (4) Muhammad Ayuub Vs. The State (2008 MLD 430), (5) Tanveer alias Rabail and another Vs. The State (2012 YLR 2026), (6) Ayub Vs. Munsif and another, (2015 P.Cr.L.J 369), (7) Takdir Samsuddin Sheikh Vs. State of Gujrat and another (2012 SCMR 1869), (8) Abid Ali and 2 others Vs. The State (2011 SCMR 208), (9) Muhammad Nawaz alias Nawaza and others VS. Member Judicial Board of Revenue and others (2014 SCMR 914), (10) Tariq Pervez Vs. The State (1995 SCMR 1345), (11) Peer Zahoor Ahmed Vs. The State (2003 YLR 2000), (12) Kashif Ikram Vs. The State (2005 P.Cr.L.J 138), (13)Karachi Metropolitan Corporation and another VS. Raheel Ghyas and 3 others (1995 MLD 141), (14) Azizullah Vs. The State (2009 YLR 2077) and (15) Muhammad Asghar Vs. The State (2008 PLD [SC] 513).

10. It is contended by learned SPP NAB and learned DAG that the appellant being public servant was posted at the place of incident to make purchase of the wheat, which he purchased and then misappropriated 2378 wheat bags containing 263.817 MT of wheat worth Rs. 92,82,773/-, for such misconduct, he was dismissed from the service by his department, Chief Minister Sindh was having no authority to have reversed dismissal of the appellant, the appellant has not only defrauded his department on account of his failure to refund the money due towards shortage of wheat, but has failed to honour the plea of Voluntarily Return, which he himself agreed; misappropriation could not be defined as shortage only to benefit the appellant and no accused who has been found guilty of the offence could be absolved of the liability on point of ailment alone. By contending so, they sought for dismissal of the instant appeal.

11. We have considered the above arguments and perused the record.

12. The short-fall, during posting of the appellant, is not denied rather admitted by the appellant himself. It needs not be reiterated that in such like case (s), the prosecution is only required to discharge initial burden and is not required to prove the case as normally required for an ordinary offence. The peculiar nature of allegation was only requiring the prosecution to establish that:

i) appellant / convict was posted at relevant time;

ii) while taking charge of godown, he was entrusted with certain number of wheat bags;

iii) during his posting, there was shortage/misappropriation of wheat bags;

13. For this, in first instance it would be better to reproduce the evidence, which is produced by the NAB authorities before learned trial court in support of its reference.

14. PW/1 Sajjad Ali has inter-alia stated that;

“Accused Ghulam Hussain Kalwar was posted as Incharge of WPC Sunhari, WPC Masurjiwah and WPC New Jatoi for wheat crop season 2011-2012. He further deposed that the posting order of accused Ghulam Hussain Kalwar was issued by Asghar Ali Shah, the then DFC on 28.4.2012. Accused Ghulam Hussain Kalwar was authorized to purchase 40 thousand wheat bags of WPC Sunhari and such authorization letters were issued to UBL, Moro Branch. Accused purchased 40 thousand wheat bags at WPC Sunhari, and 37622 wheat bags were dispatched by him from WPC Sunhari, hence the accused committed misappropriation of 2378 wheat bags thereat. He further deposed that letter of such shortage was written by DFC Asghar Ali Shah to headquarters Karachi on 17.2.2014. Per PW there was shortage of 48.437 MT wheat at WPC New Jatoi for wheat crop season 2011-2012, which was purchased by the accused. The total worth of shortage wheat was Rs.92,82,743/-. On the letter of DFC Ashgar Ali Shah, Additional Secretary Food, Government of Sindh namely Muhammad Nasir Jamali issued a show cause notice to the accused on 7.2.2014, which was not replied. Accused was also issued final show cause notice on 19.8.2014, by the then Secretary Food, Government of Sindh namely Saeed Awan regarding misappropriation. After publication in the newspaper, finally the accused was dismissed from Service on 19.9.2014. He produced the record along with seizure memo."

15. PW-2 Ali Asghar Shah has inter-alia stated that;

“Accused Ghulam Hussain Kalwar was incharge of WPCs, Sunhari, New Jatoi and Masurjiwah for the wheat crop season 2011-2012. He has further deposed that he was posted as DFC, Naushehro Feroze from 23-07-2012 and thereafter he was transferred to Head Quarters at Karachi. He further deposed that he was again posted on 04-09-2012 till 04-03-2013 as DFC, Naushehro Feroze. He also deposed that he issued orders of Centre Incharge of accused Ghulam Hussain Kalwar for WPCs Sunhari, New Jatoi and Masurijiwah for the wheat crop season 2011-2012 on 28-04-2012. He issued authorization letters to UBL Moro Branch. He authorized for procurement for 40,000/- wheat bags at WPC Sunhari and the accused purchased such quantity of wheat bags and stocked the same at WPC Sunhari. He found a shortage of 10505 wheat bags on 14-12-2012 at WPC Sunhari. On 28-12-2012 he again visited WPC Sunhari and New Jatoi and found the same position. The accused was seeking time to recoup the shortage, but he did not do so. On 31-12-2012 he also found shortage of 3600 wheat bags at WPC New Jatoi. On his again visit of WPCs Sunhari and New Jatoi, the accused recouped about 800 of wheat bags from the shortage of 10505 wheat bags at WPC Sunhari and 800 at WPC New Jatoi. He was then transferred from Naushehro Feroze to Karachi. He also deposed that accused was responsible for the shortage of wheat. He saw the letters dated 28-04-2012 for the posting of the accused, authorization letters to UBL Moro Branch, dated 02-05-2012, 07-05-2012, 09-05-2012, 14-05-2012, 15-05-2012, 24-05-2012 and 26-06-2012 annexed with Ex.6/1 and said that it were the same, correct and bearing his signatures. He also saw visit reports dated 11-12-2012, 31-12-2012, 14-01-2013 and 20-02-2013 annexed with Ex. 6/1 and said the letters were same and bore his signatures.”

16. PW/3 Muhammad Ali has inter-alia stated that;

“Accused remained incharge of WPCs Sunhari, New Jatoi and Masurjiwah for wheat crop season 2011-2012. He deposed that accused confessed his guilt before the NAB team in his presence and requested for Voluntarily Return (VR) to the NAB authorities. He also deposed that accused Ghulam Hussain Kalwar was responsible for shortage of wheat bags, he identified the accused in the Court to be same.”

17. PW/4 Abdul Ghaffar Shaikh has inter-alia stated that;

“DFC Naushehro Feroze sent a report to Food Department, Head Quarters, Government of Sindh, Karachi, disclosing shortage of 2378 wheat bags at WPC Sunhari and shortage of 48.437 MT of wheat at WPC New Jatoi for the wheat crop season 2011-2012. He further deposed that shortage of both the WPCs was worth Rs. 92,82,743/-. On receipt of report of DFC Naushehro Feroze, a show cause notice was issued to the accused by the then Additional Chief Secretary, Sindh namely Nasir Jamali. Accused did not reply of such notice as such the matter was got published into newspaper, but even then the accused did not reply of show cause notice, as such a final show cause notice was issued to the accused on 19-08-2014 by the then Secretary Food. The accused failed to submit the reply of final show cause notice as such the accused was dismissed on 23-09-2014. Besides dismissal of the accused, it was containing in the order that misappropriated amount would be recovered from accused by way of legal procedure. He saw report of the then DFC Naushehro Feroze dated 17-02-2014, show cause notice dated 27-02-2014, final show cause notice dated 19-08-2014, receipt of TCS dated 19-08-2014, dismissal order of the accused dated 23-09-2014, news clippings of daily Kawish dated 15-06-2014 and 19-08-2014 already produced with Ex. 6/1 and said that it was the same.”

18. PW/5 Ali Asghar Naich has inter-alia stated that;

“In the year 2014 he was DFC Naushero Feroze and at that time Muhammad Rafique was posted as Deputy Director, Food, Sukkur. Deputy Director Sukkur issued a letter on 28-01-2014 to the PW requiring the report of shortage at WPCs Sunhari, New Jatoi and Masurjiwah for wheat crop season 2011-2012, when accused Ghulam Hussain Kalwar was the incharge of the aforesaid WPCs. He furnished details of record report of shortage of WPCs Sunhari and New Jatoi to the then Section Officer (Wheat), Karachi on 17-02-2014. He further deposed that accused caused loss to the exchequer to the tune of Rs. 92,82,743/- and the accused was responsible for such shortage. He also deposed that he requested for action against accused Ghulam Hussain Kalwar. He saw letter dated 28-01-2014, issued by the then Deputy Director, Food, Sukkur, Region Sukkur, which was already produced with Ex. 6/1. He further saw a report dated 17-02-2014 already produced with Ex. 6/1 and said that both are same. “

19. PW/6 Habibullah Branch Manager, UBL, Moro Branch inter-alia stated that;

“NAB authorities required Bank record of allocation for the wheat crop season 2011-2012 for WPC Sunhari in an ongoing inquiry against accused Ghulam Hussain Kalwar, which he produced before the I.O. he has further deposed that accused Ghulam Hussain Kalwar was authorized for purchase of 40 thousand wheat bags at WPC Suhari by the DFC Naushehro Feroze and the Bank also made payment of 40 thousand wheat bags for the wheat crop season 2011-2012.”

20. PW/7 Umesh has inter-alia stated that:

“After the inquiry was converted into investigation, he was authorized to conduct the investigation, he produced authorization letters of inquiry and investigation at Ex. 12/1 and 12/2. He deposed that during the investigation he found that accused Ghulam Hussain Kalwar misappropriated a quantity of 2378 wheat bags weighing 263.817 MT at WPC Sunhari and quantity of 48.437 MT wheat at WPC New Jatoi during wheat crop season 2011-2012 and the loss calculated thereupon was Rs. 92,82, 743/- to the National Exchequer. He further deposed that during inquiry the accused applied for VR with the NAB and after finalization of the investigation, he filed the instant reference. “

21. PW/8 Atta Muhammad has inter-alia stated that;

“During his posting period as Additional Director, in 2013 a news was published in Daily Ummat regarding corruption in Food Department by the officer/officials of the Food Department, Government of Sindh, on which he was authorized to inquire into the matter by the DG NAB vide letter dated 08-04-2013. In the course of inquiry he visited WPC Sunhari, where accused Ghulam Hussain was posted as Food Inspector/Incharge of WPC Sunhari. In the course of inquiry the PW found shortage of 2374 wheat bags pertaining to the crop season 2011-2012. The PW recorded the statement of the accused, in which the accused admitted the shortage which the accused promised to recoup. In the course of inquiry the total amount of shortage of wheat bags became Rs. 71,22,000/-. After the accused moved application for VR, the same was forwarded by the PW to the competent authority viz. DG, NAB, Sindh, which was considered and approved on 08-05-2013. Certain letters were written to the accused for accomplishment of his promise but the accused did not deposit the amount against his VR. On the completion of the period of the PW with the NAB, he handed over all the papers to Umesh Chawla.”

22. From above referral, it may well be said that all necessary aspects to prove the charge, being related to documentary evidence, were prima facie established by bringing such documentary evidence on record, therefore, initial burden was rightly discharged by the prosecution thereby burdening the accused to prove otherwise, so it appears from the reading of Section 14 of the Ordinance.

23. Without prejudice to above, the things would stand clear from referral of the cross-examination of the appellant / accused during his examination on Oath wherein he admitted that;

“he was the custodian of record of food center. He also admitted that there is no provision of advance payment of purchase of wheat stock under the law and there is no any specific permission throughout the Sindh. He further admitted that incharge of wheat center is responsible for any shortage at wheat center. He admitted only 2273 wheat bags were due against him, he admitted that he did not produce any record of the wheat which shows that he sent the wheat to the Godown with shortage. He did not remember that shortage of wheat bags at WPC Sunhari, whereas he admitted shortage of 48.437 of wheat stock at WPC, New Jatoi.”

24. After making above admissions, it was for the appellant himself to have brought on record any legal justification for such short-fall which, he (appellant) never succeeded. Once the appellant admitted his responsibility towards any shortfall then it was not open for the appellant to avoid consequences thereof. The appellant cannot take any benefit by uttering the word short-fall to avoid legal action because prima facie such act falls within meaning of ‘misappropriation’ ‘misuse of authority’ as well ‘breach of trust’.

25. It is also undeniable rather admitted position that appellant admitted that there exists no procedure or custom for giving away the wheat-bags without adopting the proper procedure. Such admission was always sufficient to believe that manner, in which the wheat bags in such huge quantity were removed, was indicative of the fact that it was for illegal means / gains. The provision of section 9(iii) of the Ordinance is not limited to word ‘misappropriation’ but includes :-

“… or otherwise converts for his own use, or for the use of any other person, any property entrusted to him, or under his control, or willfully allows any other person so to do; or”

26. It is matter of record that despite having acknowledged such removal of such huge number of wheat-bags/shortfall’. No plausible explanation has come on record from side of the appellant that same was bona fide or wheat-bags were not converted for his own use or for use of any other person. In absence of such explanation, the presumption, would be against the appellant.

27. Further, such admitted facts also falls within meaning of misuse of authority which, too, is an offence within meaning of the Section 10 of the Ordinance. We would add that the appellant admitted that he was having knowledge of the fact that there exists no procedure or custom of giving away wheat-bags except in the manner, prescribed by rules. Admission of such knowledge was always sufficient to presume that such removal of wheat-bags from direct custody / control of the appellant could not happen unless there exists both mens rea and “actus reus”.

In case of M. Anwar Saifullah Khan v. State (PLD 2002 Lahore 458) it has been observed by Hon’able High Court that;

“20. Misuse of authority means the use of authority or power in a manner contrary to law or reflects an unreasonable departure from known precedents or custom. Every misuse of authority is not culpable. To establish the charge of misuse of authority, the prosecution has to establish the two essential ingredients of the alleged crime i.e ‘mens rea” and “actus reus”. If either of these is missing no offence is made out. Mens rea or guilty mind, in context of misuse of authority, would require that the accused had the knowledge that he had no authority to act in the manner he acted or that it was against law or practice in vogue but despite that he issued the instruction or passed the order”

28. Further, it may well be added that since the appellant has admitted that he was entrusted with such wheat-bags and was responsible for any short-fall then his such act would squarely fall within meaning of ‘Criminal breach of trust’. Needless to add that all the acts of a public servant, if falling within meaning of above terms, would be offence (s), punishable under Section 10 of the Ordinance.

29. The witnesses so examined by the NAB authorities have not been alleged to have any animosity towards the appellant who, otherwise, stood on their version on all the material points therefore, there appears no justification to discard their evidence, it is proved by their evidence that the appellant while posted as Food Inspector/Incharge at wheat procurement center Masurjiwah, New Jatoi and Sunhari for wheat crop season 2011-2012 has committed misappropriation as detailed above thereby caused loss to public exchequer to the tune of Rs. 92,82,743/-, such misappropriation surprisingly is dubbed by the appellant to be shortage. The shortage for all intent and purposes is misappropriation which the appellant has committed willfully and then has failed to abide by his commitment with his department to refund the money under misappropriation/shortage and then before NAB authorities by enter into plea of voluntarily return. The appellant may be a ailing person, but ailment could hardly be made a legal ground to record acquittal of the appellant, specifically when prosecution has been able to prove its charge against him beyond shadow of doubt.

30. The case law, which is relied by learned counsel for the appellant is on distinguishable facts and circumstances. In none of the case so relied upon, the accused was acquitted after acceptance of guilt by making a conclusion that shortage of wheat is not misappropriation.

31. In view of the facts and reasons discussed above, the instant appeal fails and it is dismissed accordingly.

Judge

Judge

Nasim/P.A