1992 P Cr (PLP)

Bashir Beg for the State. Date of hearing: 1st April, 1991. Nazir Ahmad appellant alongwith Zahoor Hussain co‑accused was tried by the learned Special Judge Anti‑Corruption, Gujranwala, for misappropriating the record of the Court of Magistrate Ist Class, Sialkot, in case F.I.R. No.5, dated 22‑1‑1979, registered under section 13 of the Arms Ordinance 1965 at Police Station Head Marala. Nazir Ahmad appellant was at the relevant time Naib‑Court and Zahoor Hussain acquitted accused was Ahmad attached to the said Court.

2. On the conclusion of trial the learned trial Judge, vide his judgment, dated 25‑2‑1988, convicting Nazir Ahmad appellant under section 409, P.P.C. sentenced him to six months' R.I and fine of Rs. 500 or in default of its payment to further undergo two months' R.I. He, however, acquitted Zahoor Hussain co‑accused on benefit of doubt.

3. It was argued on behalf of the appellant that the case, to which the misappropriated file relate, had been decided and there was no reason for him to misappropriate it. At the most it could be some sort of negligence on his part and the element of mens rea was altogether absent in this case. He submitted that the learned trial Judge himself was doubtful if the file had really been returned by Zahoor Hussain Shah Ahmad, the acquitted co‑accused, to the appellant and even the register showing the receipt of record, according to the learned trial Judge did no inspire confidence as it was not properly paged and, if it was so, then how could the appellant be saddled with the liability of misappropriating the relevant file.

4. The learned State counsel has tried to support the impugned judgment.

5. The appellant, in his statement under section 342, Cr.P.C, had admitted the receipt of challan and police file from the Police Office through the Senior Naib‑Court and alleged that he had passed on the same to Zahoor Hussain Shah Ahmad. The latter also admitted the receipt of the missing record but took up the position that after the trial was over, he had returned the same to the appellant. The learned trial Judge, to some extent, doubted the stand taken by the co‑accused but still acquitted him on benefit of doubt. The appellant, who was not very sure about the return of the relevant file by his co accused, admitted his receipt reluctantly but alleged that he had in turn returned it to the Senior Naib‑Court. The receipt register of the Senior‑Naib Court was not found to be in good order by the trial Judge himself. If it was so, the benefit of doubt could also be extended to the appellant, who, according to the learned counsel, was either on the verge of retirement or had already retired and was likely to forfeit his pension.

6. In view of the above, the appeal is accepted, the conviction and sentence of the appellant are set aside and he is acquitted on benefit of doubt. S.A./N‑464/L Appeal accepted.