1994 PLP 1360 (MLD)

Abdul Rashid being convicted under section 409, P.P.C. by the learned Special Judge Anti-Corruption, Multan, vide his judgment, dated 1-8-1984 and being sentenced to undergo one year R.I. with a fine of Rs.500 has filed this appeal impugning his conviction and sentence.

2. Briefly stated the case of the prosecution as revealed by the prosecution evidence is that Abdul Rashid appellant was posted as Union Clerk in the office of Municipal Committee, Dera Ghazi Khan in February, 1981. Ijaz Hussain, complainant P.W.4 submitted an application to the then Chairman of the Municipal Committee for the supply of a copy of his own `Parat Nikah' to him. This application ultimately came down to the appellant whom the complainant approached for the supply of the `Parat Nikah'. The appellant did not supply him the copy of his Nikah and directed Ijaz Hussain P.W.4 to meet him at his residence in this connection. Ijaz Hussain, complainant went to the residence of the appellant. where the appellant demanded Rs.500 as illegal gratification for the supply 'of the `Parat Nikah'. The complainant having no money went to the Chairman and lodged a complaint against the appellant. The Chairman directed the Chief Officer of the Municipal Committee to hold an inquiry into the matter during which the allegation against the appellant was found correct. Accordingly case F.I.R. Exh.P.W.1/G was registered under section 409, P.P.C. and the appellant was challaned.

3. To substantiate the charge against the appellant the prosecution examined seven witnesses in all including Abdus Salam P.W.2, a retired clerk of the Municipal Committee who had given the charge of the post to the appellant and Muhammad Pervaiz Iqbal, a clerk' who had taken over the charge of the post from the appellant. P.W.4 Ijaz Hussain is the complainant and P.W.5 is the Investigating Officer, P.W.6 Mehraj Hussain was the Chief Officer in the Municipal Committee and P.W.7 is also a clerk.

4. The appellant when examined under section 342, Cr.P.C. traversed the allegation of the prosecution levelled against him and while professing his innocence pleaded that he was falsely involved in the case by one Dr. Saeed Ahmad, Councillor who belonged to the party of Mr. Bilal Toor, the Chairman and the appellant had opposed him during the election. It was alleged that it was he who got him involved in this case. The appellant in support of his defence plea also produced D.W.1 Muhammad Sharif, a clerk who stated that the appellant was got involved in the case at the instance of Dr. Saeed Ahmad. D.W. 2 Abdus Salam also supported the same plea. The learned trial Court at the conclusion of the trial recorded the conviction against the appellant as mentioned above.

5. It was argued by the learned counsel for the appellant that even if the evidence and the facts of this case are accepted on their face value they do not constitute an offence under section 409, P.P.C. It was argued that the prosecution could not produce evidence, of the appellant having received `Parat Nikah' in dispute of Ijaz Hussain P.W.4,which leads to the conclusion that no wrongful gain to one person and wrongful loss to the other person accrued by its non-availability. It was lastly argued that the learned trial Court has based its judgment on conjectures as the vague evidence cannot be made the basis for conviction which has been done in this case.

6. The learned AA.-G. could not repel the arguments advanced by the learned counsel for the appellant and he rather conceded that in view of the statement of P.W.6, the Chief Officer, no offence under section 409, P.P.C. was made out.

7. After having heard the learned counsel at some length I have also gone through the evidence adduced on record with the able assistance of the learned counsel for the appellant. The case of the prosecution is that when Ijaz Hussain P.W.4 lodged complaint regarding the misconduct of the appellant as he was demanding Rs.500 as illegal gratification for the supply of `Parat Nikah' before the Chairman of the Municipal Committee he directed Mehraj Hussain P.W.6, the Chief Officer of the Committee to hold an inquiry against the appellant and then to report. Chief Officer when appeared as P.W.6 stated that actually one Head Munshi Allah Bakhsh had reported on 12-2-1992 that Nikah Register was missing. The Chief Officer made an endorsement on this report and sent the same to the Chairman for orders. The Chairman directed him for the registration of the present case with the local police so he sent the report to the S.H.O. When cross-examined this witness admitted that he is second in command in the Municipal Committee and the previous working of the appellant according to this witness remained very satisfactory. He states that no departmental inquiry was held against the appellant and the case against him was registered only at the report of the officials of the Municipal Committee. He also admitted that he did not summon the Nikah Khawan in this case to know about whether `Parat Nikah' of Ijaz Hussain P.W.4 had been deposited in the Municipal Committee.

8. To prove entrustment of `Parat Nikah' of the complainant with the appellant the learned trial Court has placed reliance upon the evidence of P.W.2 Abdus Salam and that of the statement of Muhammad Pervaiz Iqbal P.W.3.. Nowhere it has been stated specifically by Abdus Salam P.W.2 that the charge which he handed over to the appellant contained the `Parat Nikah' of Ijaz Hussain P.W.4 as well and he has not even made mention of the Nikah Register. Muhammad Pervaiz Iqbal states that he took over the charge from the appellant of various registers for which he reported to his officers and even some registers were not handed over to him. This witness has also stated that Ijaz Hussain made an application for the copy of his Nikah Nama but on searching the register his Nikah Nama was not traced out. Similarly some other pages from the register were missing so a report to this effect was made by Allah Bakhsh firstly to the Chief Officer which was placed before the Chairman who ordered the registration of the case.

9. Under section 405, P.P.C. it is the duty of the prosecution to prove firstly the entrustment or dominion over property by the accused and secondly that he dishonestly misappropriated, converted, used or disposed of that property himself or wilfully suffered some other persons to do so. Mere disappearance of property does not prove the guilt. Entrustment and misappropriation both must be proved to make out a case of criminal breach of trust. In this casein my view the prosecution has failed to prove that the Nikah Nama of the complainant was actually the part of the record which was entrusted to the appellant and nor there is any evidence that the appellant had received the `Parat Nikah' in dispute which he misappropriated. There is no description of the Nikah Nama in the record and nor there any mention of the ward number of the union council, police station, Tehsil or district where the marriage took place and who married with whom. No receipt for the deposit of Nikah Nama at the union council has been produced and nor any Nikah Khawan has been produced to prove that Ijaz Hussain was married and a Nikah Nama was prepared and registered. Nothing has been brought on record which may reveal that Nikah Nama in dispute was ever written or register when Nikah in dispute was never existed then there was no question of i4 misappropriation by the appellant.

10. While putting the prosecution evidence and the defence evidence in juxtaposition I am of the view that the learned trial Court passed its judgment mere on conjectures and presumptions and it has not deeply gone into the details of the prosecution evidence on record.

11. For the foregoing reasons I allow this appeal, set aside the judgment dated 1-8-1984 passed by the learned Special Judge Anti-Corruption and acquit the appellant from the charge under section 409, P.P.C., the same being not even supported from the given facts and evidence adduced on record. N.H.Q./A-595/L Appeal allowed