1985 P Cr (PLP)

Malik Ghulam Rasool for Appellant. Kh. Asghar for the State. Date of hearing: 26th January, 1985. This criminal appeal arises from the judgment of the learned Special Judge, Anti‑Corruption, Lahore whereby he on 31‑3‑1984 convicted Ghulam Mustafa appellant under section 420/409, P.P.C read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to three months' R.I. on each count and a fine of Rs.1,000 on each count. In case of default, one month's R.I. in each ease with the direction that the sentences shall run concurrently.

2. The facts giving rise to the prosecution case of the appellant briefly were that the appellant was a conductor on Bus No. DG/2636 of the Punjab Road Transport Board. The Bus was checked by the Transport Inspector on 14‑2‑1981 who found that the appellant had loaded two films weighing two maunds in the tool box of the bus and had not issued the luggage ticket. The appellant allegedly tried to issue luggage ticket at the time of raid. The ticket was however prepared by the Transport Inspector. Precisely the charge against him was that he after having received Rs.91 fraudulently from Muhammad Hameed P.W.1, and criminally misappropriated the same. He denied the charge and claimed to be tried.

3. To prove its case, the prosecution examined seven witnesses. Muhammad Hameed P.W.1 stated that he had booked two film prints through the appellant who was paid Rs.75 for each print as freight charges. The films were booked from D. G. Khan to Lahore and that the conductor had not issued luggage ticket despite repeated demands. In cross‑examination he stated that when he demanded ticket/receipt of the goods booked with that bus, the appellant told him that he would give the tickets on return to D.G. Khan for the reasons that Checkers of the G.T.S. may check the bus on its way to Lahore and he would show the ticket to him. Muhammad Ashraf, Transport Inspector P.W.2 stated that on checking of the bus, he found that the appellant was keeping some luggage in the tool box of the bus. On enquiry, the appellant told him that he had issued ticket for the two bags. The witness further stated that the appellant then went into the bus and tried to issue the tickets of the luggage but he (witness) took the charge bag in his possession and issued Ticket No. 162520 NC for Rs.91 which was Exh. PW. 2/B. In cross‑examination the witness stated that the accused had to deposit the proceeds of the tickets at D. G. Khan and not at Lahore. The witness also admitted that the amount was actually deposited by the appellant on his return to D. G. Khan. Muhammad Amin Ticket Examiner P.W.3 made almost the similar statement. The rest of the evidence is of formal nature.

4. When examined under section 342, Cr.P.C. the appellant denied all the incriminating circumstances. In defence he did not produce any evidence.

5. The learned counsel for the appellant submitted that the appellant could not have been convicted under section 420/409, P.P.C. for fraudulently receiving Rs.91 and its subsequent misappropriation by him; that there was no evidence of any inducement by the appellant to someone to deliver any property to him and that the money having actually been deposited on return to D. G. Khan, no case of criminal misappropriation punishable under section 409, P.P.C. was made out. Conversely, the learned counsel for the State supported the judgment of the trial Court.

6. I have considered the arguments advanced by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the appellant. To my mind, the appellant could not have been simultaneously convicted for cheating and criminal misappropriation; that there is no evidence of any inducement by the appellant to anyone to part with the property; that the charge as framed by the trial Court was that he received Rs.91 only from Muhammad Hameed which were the due charges; that as admitted by the prosecution witnesses, the money received by the appellant was to be deposited at D . G . Khan on return from Lahore; and that the bus was checked while it was on its way from D.G. Khan to Lahore and as such the offence of criminal misappropriation was not complete by that time. The possibility that the appellant might have deposited Rs.91 on his return to D.G. Khan cannot be excluded. For all these reasons. I am of the view that thel prosecution has failed to prove the commission of offences punishable under section 420/409, P.P.C. read with section 5 of the Prevention of Corruption Act, 1947. For what has been stated above, giving him the benefit of doubt, he is acquitted of the charge. M. A. K. Appeal accepted.