1990 PLP 1583 (MLD)

(9) Crime No. 174 of 1986, under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 (charas, weighing 40 grams). (10) Crime No. 183 of 1986, under section 13-D of the Arms Ordinance, 1965 (one country made pistol and four cartridges). (11) Crime No. 184 of 1986, under section 13-D of the Arms Ordinance, 1965 (one country made pistol and five cartridges). (12) Crime No. 185 of 1980, under section 13-D of the Arms Ordinance. 1965 (one country made pistol and five cartridges). (13) Crime No. 186 of 1986, under section 13-D of the Arms Ordinance, 1965. (one country made pistol and five cartridges). (14) Crime No. 206 of 1986, under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979. (charas, weighing 40 grams).

3. It is alleged that the applicant did not enter these case properties in Register No. XIX maintained at Naushero Feroze P.S. and misappropriated the same. Consequently on the direction of S.P. Anti-Corruption Establishment, Sukkur, the Circle Officer, A.C.E., Nawabshah registered five cases, viz. Crimes No. 2, 3, 5, 6 and 7 of 1987, against the applicant pertaining to above case properties and after usual investigation and obtaining requisite sanction prosecuted him before Special Judge, Anti-Corruption (Provincial) Sukkur. The applicant moved applications under section 249-A, Cr.P.C. before the trial Court seeking his acquittal, but the same were not disposed of. The applicant has, therefore, invoked the inherent jurisdiction of this Court for quashment of these proceedings.

4. I have heard Mr. Mumtaz Ali Siddiqui, learned counsel for applicant and Mr. Zawar Hussain Jafferi, learned A.-A.G. for State. The latter has raised a preliminary objection about the competency of these applications before getting an order on applications made under section 249-A, Cr.P.C. from the Special Judge. Admittedly the applicant had approached the trial Court by making applications under section 249-A, Cr.P.C. but the same were kept pending without an order, which amounts to denial of the prayer. At any rate the power of trial Court under section 249-A or 265-K, Cr.P.C., as the case may be, arc co-extensive with powers of High Court under section 561-A, Cr.P.C. and both can be resorted to. While dealing with this question in the case of Mian Munir Ahmed v. The State reported in 1985 S C M R 257, the Supreme Court observed) as follows:-- "It would, of course, be proper to approach the trial Court in the first instance but there is nothing to bar the High Court from entertaining, in appropriate cases, an application under section 561-A, Cr.P.C. directly." The case reported as Muhammad Tufail and others v. The State and another, 1986 P Cr. L J 2749, is also relevant on this point. In the circumstances mentioned above, the applicant had no other remedy, but to approach this Court under section 561-A, Cr.P.C. seeking appropriate relief:--

5. Section 405, P.P.C., defines criminal breach of trust in the following words:-- "

405. Criminal breach of trust: Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes 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 has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".

6. 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.

7. There are certain facts and circumstances in these cases which are not in dispute:-- (i) That the applicant worked as S.H.O. Naushero Feroze P.S. for a short period from 1-7-1986 to 16-10-1986. (ii) That there is no Malkhana attached to the Court of Civil Judge and F.C.M. Naushero Feroze, where the case properties, which are subject-matter of these cases were to be deposited, which is evident from the following certificate:-- "Certified that there is no Malkhana in this Court for keeping the case property, viz. arms and ammunition of the pending case, hence the same are to be kept in Amanat at P.S. Naushero Feroze." (iii) That the applicant had sent the case properties to S.H.O. Naushero Feroze on 26-11-1986, immediately after he came to know that they were mixed up with his luggage at the time of transportation to Dour, where he was transferred. (iv) That out of 14 items, five were returned duly sealed, which contained contraband charas. (v) That the applicant had informed S.P. Nawabshah also about the return of case properties, who also conveyed this fact to S.H.O. Naushero Feroze P.S. with direction to make such entry in relevant register. (vi) That the case properties were returned to S.H.O Naushero Feroze P.S. long before the registration of cases against the applicant.

8. As observed in Shakir Hussain v. The State, reported in P L D 1956 Supreme Court (Pak) 417, to establish a charge of criminal breach of trust the prosecution must prove not only entrustment of or dominion over property but also that the accused either dishonestly misappropriated, converted, used or disposed of that property himself or that he wilfully suffered some other person to do so.

9. In the case of Muhammad Nawaz v. The State, reported in 1970 P Cr.L J 97, Muhammad Hayat Junejo, J. (as he then was) observed that mere retention of service revolver by a police officer proceeding on leave on medical grounds for some time would not amount to dishonestly misappropriating the same.

10. The cases -reported as Naseer Ahmed v. The State 1985 P Cr. L J 2089, and Ahmed Ali v. The State 1989 P Cr. L J 2393, are also relevant in a situation like the one under consideration.

11. Broom says, "

as a general rule of our law, a guilty mind is an essential ingredient of crime at common law, and that prima facie penal statutes should be so construed as to make mens rea an ingredient of any offence created." Ordinarily every crime is understood as requiring the element of mens rea or a blame-worthy state of mind on the part of the accused involved in such a crime.) This most important element, is, however, lacking in this case.

12. The scope of section 561-A, Cr.P.C. was examined by the Supreme Court in M.S. Khawaja v. The State, reported in P L D 1965 SC 287, and it was observed:-- "Every prosecution for a criminal offence is to be deemed to have been commenced and continued in the public interest, as a duty of the State. It can only be in a very rare case that a superior Court acting under its inherent power `to prevent abuse of the process, of any Court or otherwise to secure the ends of justice,' would deem it appropriate to act so as to place an alleged offence outside the operation of the criminal law, on incidental grounds, such as that of delay, or for any reasons other than reasons going to the question whether the allegation is sufficient to constitute an accusation of an offence in law." At page 291, the Supreme Court remarked:-- "To quash a judicial proceeding in order to `secure the ends of justice would involve a finding that if permitted to continue, that proceeding would defeat the ends of justice, or in other words, would either operate or perpetuate an injustice. To end an `abuse' it would be necessary to see in the proceeding a perversion of the purpose of the law such as to cause harassment to an innocent party, to bring about delay, or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue and similar perverse results."

13. Ordinarily, the High Court will not interfere at an interlocutory stage of a criminal proceeding pending in a subordinate Court, but as observed by me in Ch. Muhammad Ashraf v. The State, reported in 1990 P Cr. L J 347, the High Court will certainly interfere in order to prevent harassment of a person who is prosecuted on a charge which on the face of it is groundless.

14. The act of the applicant in not entering the case properties in the relevant register may at best be of mere negligence, but it was not a case of prosecution in five criminal cases. I am told that the applicant is already removed from service. The allegations even if taken on their face value will not constitute an offence, as alleged.

15. In the result all the five applications made under section 561-A, Cr. P.C. are accepted and the proceedings pending against the applicant in respect of Crimes No. 2, 3, 5, 6 and 7 of 1987 A.C.E., Nawabshah, in the Court of Special Judge Anti-Corruption (Provincial) Sukkur, are hereby quashed. N.H.Q./M-1115/K Proceedings quashed.