P L D 1996 Lahore 257 (PLP)

Through this appeal, the appellant has challenged the judgment dated 11‑4‑1992 passed by learned Special Judge, Anti‑Corruption. Sargodha whereby he was convicted under section 409, P.PJC. read with section 5(2) of Prevention of Corruption Act, 1947 and sentenced him to two years' R.I. and a fine of, Rs.5,000 or in default to undergo one year R.I. He was however, acquitted of the charge under section 468, P.P.C.

2. The prosecution story as given in the F.I.R. Exh.PC is that the residents of Rangpur Baghoor, District Khushab submitted complaint to the Deputy Commissioner/Deputy Director Anti‑Corruption, Khushab that Muhammad Ali, appellant who was Dispenser, had misappropriated the Government medicines while working as a Dispenser in Basic Health Unit, Rangpur, District Khushab. Pursuant to the. said complaint, Mr. Muhammad Asif Qureshi, E.A.C., Khushab (P.W.12) was diiected to hold an inquiry and after the receipt of said report, the Deputy Commissioner, Khushab directed registration of a case.

3. After necessary investigation conducted by Mr. Muhammad Sharif, the then C.O./A.C.E., Khushab, challan was submitted in the trial Court. .

4. During the trial, the prosecution examined 12 witnesses. P.W.1 Abid Hussain is a Judicial Ahlmad who produced inquiry report before the trial Court. P.W.2, Mulazim Hussain is one of those who alongwith Dr. Muhammad Afzal and others went inside the ' house of the appellant, witnessed exchange of hot words and saw the said Doctor recovering a "Dabba" from the appellant's house. According to him, the said Doctor, also prepared a list of medicines which were found in the "Dabba". P.W.3 is Ghauns Muhammad. He is also one of those who accompanied Doctor Muhammad Afzal to the house of the appellant and is a signatory to the complaint Exh.PC. P.W.4 is Muhammad Rasheed. He is aretired office Superintendent of the Office of the D.H.Q., Khushab. He produced the inquiry report Exh.PD/l and the transfer order Exh.PD/2. P.W.5 Ahmad Hussain is a storekeeper who prepared the list of medicines issued to B.H.U. Rangpur from 1‑7‑1982 to 15‑5‑1986. He admitted in cross‑examination that the medicines are received in the Centre by the Doctor Incharge and in the absence of said Doctor, they are received by the Dispenser. P.W.6 is Muhammad Akbir Khan. He is a Dispenser who succeeded the appellant after his transfer. He produced the list of medicines Exh.PG prepared by Doctor Muhammad Afzal before the 1.0. In cross‑examination, he conceded that he did not know as to how the said list was prepared. P.W.7 is Munawar Akhtar who prepared the final report pursuant to investigation. P.W.8 is Muhammad lqbal. He is also one of those who accompanied Doctor Muhammad Afzal to the house of the appellant. He states that the appellant begged the Medical Officer to sparehim by saying that he had brought the medicines to his residence out of mistake. In cross‑examination, he admitted that no list of medicines was prepared in his presence. P.W.9 is Muhammad Yasin Shakir. He also went to the house of the appellant and saw that the appellant was saying that the Doctor was unnecessarily blaming him for theft of medicines. He further'stated that despite his advice, the appellant did not apol(Fgise from the Doctor. P.W.10 is Doctor Aziz‑ur‑Rehman, Medical Officer, D.H.Q. Hospital, Jauharabad. In h , is cross? examination he stated that the accused had ‑not entered the medicines received? from his office in the stock register maintained by him. P.W. I I is Munawar Hussain who challaned the appellant. P.W.12 Muhammad Asif Qureshi conducted the inquiry pursuant to a direction from the Deputy Commissioner.

5. In his statement under section 342, Cr.P.C. the appellant has denied the prosecution story but admitted that some medicines were recovered from his house, However, he denied having misappropriated them. He stated that as Dr.' Muhammad Afzal was not present at the relevant time, he brought the medicines to the house for a safe custody. ???? 6.???? Learned counsel for the appellant Mr. Bilal Hassan Minto, in support this appeal, has raised the following pleas:‑‑ (i) That even if the entire prosecution evidence is accepted to be true, no . offence is made out; (ii) that there is no evidence of selling the medicines; (iii) that the statements, of the prosecution witnesses who allegedly accompanied Dr.Muhammad Afzal at the time of the surprised raid at the appellant's house are contradictory; (iv) that as the appellant admits the entrustment; in absence of 'evidence ol misappropriation, the explanation given ‑by him under section 342, Cr.P.C. should hold the field; . (v)?? that in any case the non‑appearance of Dr. Muhammad Afzal who prepared the list of medicines demolishes the prosecution case. In support of the above‑referred pleas, leamed counsel has relied upon the following precedent case‑law:‑‑‑ (i)??? Syed Mustafa Shah v. The State 1968 PCr.1j 358; (ii) . Khaliq Hussain v. The Crown PLD 1956 (W.P.) Kar. 212; (iii)?? The State v. Arta Ullah 1990 PCr.1J 163, (iv)? Muhlmmad Uris v. The State 1990 MLD 1~83; (v)?? Munir Akbar v. The State,1992 MLD 1428.

7. Learned counsel for the State on the other hand, has submitted that inquiry report Exh.P.D. submitted by P.W.12 which is Exh.PR is part of the prosecution evidence and it should be taken as a corroborative piece of evidence in respect of the ocular account furnished by P.W.2, P.W.3, P.W.6 and P.W.9. He however, frankly admitted that in case the afore‑referred inquiry report is not taken into consideration, the prosecution case would fall to the ground. ???? 8.??? 1 have heard learned counsel for the parties and have considered the precedent case‑law.

9. To successfully bring home the charge of criminal misappropriation under section 409, P.P.C. it is essential to prove the following ingredients: ‑‑ (i)That the accused was entrusted with the property in terms of the afore referred section; (ii)?? That he dishonestly misappropriated or converted to his own use that ???????? property or dishonestly used or disposed of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract express or implied which he had made touching the discharge of such trust. ????

10. In the instant case, the prosecution did not produce Dr. Muhammad Afzal who is author of the list of medicines which were recovered from the house of the appellant, the said list was not put to the appellant in his statement under section 342, Cr.P.C. That being so, the statement of the appellant qua entrustment shall have to be taken into account who admits that the medicines were lying at his house and that he kept 'them in his house for safe custody as? Dr. Muhammad Afzal was not present at the time when he received the medicines in question. As P.W.5 Ahmad Hussain stated that in absence of Doctor Incharge, the Dispenser was authorised to receive those medicines, the explanation given by the appellant is tenable and no offence is made out. ??????????? Qua the second element i.e. misappropriation, the prosecution has led no evidence to prove that the medicines in question were either sold away by the appellant or he dishonestly converted them into his own use or in the use of some body else. In these circumstances, the mens rea and the actual misappropriation constituting important ingredients of the offence alleged are lacking. In such cases even if the prosecution successfully proves the first ingredient i.e. entrustment, but fails to prove that the accused actually misappropriated the property no offence under section 409, P.P.C. would be complete. In Muhammad Uris v. The State 1990 MLD (Karachi) 1583, it was ??????????????????????????????????????????????????????????????????????????????? 0 "Section 409, P.P.C. dealing with the offence of criminal breach of trust committed by a public servant is intended to punish an offence of which dishonesty is the essence ‑‑‑ Mere retention of case properties for a short period does not necessarily raise a presumption of dishonest misappropriation." In The State v: Atta Ullah 1990 PCr.LJ 163, it was observed:‑‑ "‑‑‑‑S. 409 ‑‑‑ Prevention of Corruption Act (11 of 1947), S.5(2)‑‑?Appreciation of evidence ‑‑‑ Case against accused was regarding shortage of goods but papers relating to handing and taking over charge were not brought on record casting serious doubt on prosecution case‑‑?Prosecution was bound to prove that stock in custody of accused not only suffered from shortage but that the same was misappropriated personally and physically by accused alone ‑‑‑ Evidence on record indicated that except shortage of goods nothing else was proved against accused ‑‑‑ Prosecution, held, had failed to establish its case against accused beyond any shadow of doubt ‑‑‑ Order of trial Court was not arbitrary ‑‑‑ Appeal against acquittal was dismissed." , , V Similarly in Syed Mustafa Shah v. The State 1968 PCr.LJ 358, it was held:‑‑ "(a) Penal Code (XLV of 1860), Ss.405 & 409 ‑‑‑ Criminal breach of trust ‑‑‑ Essential ingredients of offence ‑‑‑ Mere disappearance of property entrusted ‑‑‑ Not sufficient to establish misappropriation unless accused is proved to be responsible for doing himself or suffering some ‑other person to do acts mentioned in S.405. (b) Prevention of Corruption Act (11 of 1947), S.5(l)(c) read with Penal Code (XLV of 1860), S.409 ‑‑‑ Criminal misconduct ‑‑‑ Criminal breach of trust ‑‑‑ Expression "allows any other person to do so" in S.5(l)(c) of Act 11 of 1947 ‑‑‑ Word "allows "‑‑‑Meaning ‑‑‑ Accused cannot be held guilty of criminal misconduct merely for suffering loss to be incurred unless he either himself dishonestly misappropriates property or deliberately allows someone else to do so ‑‑‑ Failure to discharge responsibility for safe custody of property would not per se amount to establishment of offence of criminal misappropriation within meaning of S.409, P.P.C.‑ nor an offence of criminal misconduct under S.5 of Act 11 of 1947. " There is material on record to show that the relations between Dr. Muhammad Afzal and appellant were strained, that the complaint Exh.PC was filed before the Deputy Commissioner at the asking of the said Doctor, that there was exchange of hot words between the appellant and the Doctor and that there was a counter‑complaint lodged by the appellant.

12. For what has been discussed above, the prosecution has failed to prove its case against the appellant beyond a shadow of doubt to sustain conviction under section 409, P.P.C. read with section 3(2) of the Prevention of Corruption Act, 1947. The impugned judgment, therefore, is set aside and the appellant is acquitted. He is discharged of his bail/surety bonds. N.H.Q./M‑2609/L