1970 P Cr (PLP)

Date of hearing :14th July 1969. Appellant Mohammad Nawaz son of Miran Bux has been convicted by the learned Special Judge‑cum‑Enquiry Officer, Hyderabad, for an offence under section 409, P. P. C. and sentenced to imprisonment till rising of the Court and to pay a fine of Rs. 100.00 in default of which he has been ordered to undergo R. I. for one month more.

2. The facts of this case which arc not in dispute are that the appellant was a Sub‑Inspector of Police and in his capacity as such he was in possession of a service revolver No. 105193 Weblyscott 4.55 bore with 18 live cartridges. On 24‑5‑1963 he proceeded on leave for two months as he was ill but while handing over charge he did not deposit the revolver back in the Armoury. This was done by him only on 21‑9‑1964, after a notice was served on him in a departmental enquiry for the same omission.

3. On 22‑9‑1964, S.

1. P. Niaz Ahmed Pirzada, Station House Officer of Diplo registered a case under sections, 409 and 19‑E of the Arms Act against the appellant on the same facts. He made an application to the Sub‑Divisional Magistrate for accord ing sanction to investigate the case and after receipt of this sanction, S. H. O. Niaz Ahmed started the investigations. On 26‑9‑1964, however, he received information that the appellant had deposited the service revolver and the ammunition in the Armoury of Police Lines, Mirpurkhas. On 4‑10‑1964, S. H. O. Niaz Ahmed went to Mirpurkhas himself and checked up the register of the Armoury, whereby he finally confirmed that the accused had actually deposited the revolver there. In spite of this, however, the appellant was challaned for an offence under section 409, P. P. C.

4. The appellant" in his statement has admitted that he was employed as S. H. O. Diplo on or about 4‑10‑1962 and that i:: this capacity was entrusted with revolver No. 105193 Weblyscott 4.55 bore with 18 live cartridges. He admitted that he handed over charge on 24‑5‑1963 but did not hand over the said revolver and the cartridges to his successor Haji Khan. He, however, deposited the revolver subsequently at the Police Armoury, Mirpurkhas on 21‑9‑1964.

5. The explanation given by the appellant was that he was ill throughout and on that account he could not deposit the revolver in the police Armoury at Mirpurkhas, which is at a considerable distance away from Diplo. In his defence, the appellant has examined four witnesses they are D. W. 1 Dr. Mohammad Saleh Memon, Professor of Medicine, Liaquat Medical College, Jamshoro, Hyderabad, D. W. 2 Dr. S. S. Zuha, District Health Officer, Khairpur, D. W. 3, Dr. Ali Mohammad Ansari, Professor of Surgery, Liaquat Medical College, Jamshoro, and D. W. 4 Ghulam Dastagir, Stenotypist, Jinnah Hospital, Karachi, who proved the certificate Exh. 17/1‑to the effect that Dr. Abu Bakar, Associate Surgeon of the Jinnah Central Hospital had reported on 21st September 1963 that appellant Mohammad Nawaz was undergoing treatment in the Surgical Out Patient Department since 20th September 1963. The evidence of D. Ws. 1, 2 and 3 as well as the certificates Exhs. 17/2, 16/4 and 17/5 respectively clearly show that the appellant was suffering from severe nervous anxiety and acute depressive Psychoris. Dr. Zuha in. addition certified that the appellant was admitted in the Mental Hospital, Hyderabad on 23‑7‑1965 and discharged therefrom on 23‑8‑1965. The evidence of these doctors and `the history of the patient, therefore, leaves no room for doubt that the appellant was mentally abnormal and most likely it was on this account that he proceeded on leave on the ground of illness. In these circum stances, to impute dishonesty to him in the absence of anything on record would not be correct. Section 405 of the Pakistan Penal Code reads as follows :‑ "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 directions 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'." Before any person is convicted under section 409, P.P.C, it is incumbent on the prosecution to prove that he dishonestly misappropriated or converted to his own use the property which was entrusted to him. It is not in dispute that the appellant had taken away the revolver and 18 live cartridges with him when he proceeded on leave. No witness, however, has said in his evidence and there is nothing on record to show that any demand for the revolver or the cartridges was made by his successor or his superior authorities. I may also mention that no rule or law has been cited whereby it was incumbent on the appellant to do so immediately on handing over the charge. On the other hand, Mr. Ale Reza, the learned counsel for the State contended before me that demand could not be made from him as the said revolver had to be deposited at the police lines Armoury Mirpurkhas which was at a considerable distance away from Diplo. Considering the mental state of the appellant and also the admitted position that he `was ill and was proceeding on leave on that account it would be too far‑fetched to presume dishonesty in a case like this. It may well be that the appellant was negligent or careless and he did not bother to go Mirpurkhas to deposit the revolver there. Merely because he retained the revolver for sometime would not show that he had dishonestly misappropriated or converted it to his own use. The appellant could be at the most liable for negligence, and he has been already dismissed from service, after a Departmental Enquiry in ‑respect of the same charge was held against him. This prosecution was not at all necessary as the appellant had been adequately punished by his dismissal from service as a result of the Departmental Enquiry. 6. .I may also add that although it was open to the prosecution in this case to show that the appellant dishonestly used this property in violation of some rule relating to this matter, no such rule has been proved or relied upon in this case. I have gone through the evidence of P. Ws. Niaz Ahmed, Nazir, Amolakdas, Tawab Gul and Karam Ellahi. None of ~ them has stated that when a Police Officer proceeds on leave he is not permitted to take his revolver with him. If this was merely a practice that would not make it a direction of law. If, on the other hand, it was prescribed by any rule that would be a direction of law and if the appellant disobeyed the rule he might be guilty of criminal breach of trust. In this case no rules or directions were cited by the learned counsel for the State. In these circumstances, the conviction of the appellant under section 409, P. P. C. cannot be sustained. Mr. Ale Reza, the learned counsel for the State in this case contended before me that this was nevertheless an offence under section 409, P. P. C. although, according to him it was a very "trivial offence". I do not agree with the learned counsel for the State for the reasons given above.

8. This appeal is accordingly allowed. The conviction and sentence imposed on the appellant are set aside and the fine if already paid be refunded to him. Appeal allowed.