P L D 1961 (W (PLP)

M. Muhammad Akbar for A. G. for Respondent. Date of hearing: 20th September 1961. Munawar Ali and Muhammad Sadiq appellants, along with five others, were tried by the learned Senior Special Judge, Lahore for an offence under section 409, P. L. C. The appellants were convic ted and sentenced to imprisonment till the rising of the Court with a sentence of fine of Rs. 300 in the case of Munawar Ali and Rs. 200 in the case of Muhammad Sadiq. In default of payment of the fine, each one of them was to suffer rigorous imprisonment for six months. Both the appellants have filed this joint appeal against their conviction and sentence.

2. The brief facts are that on the 12th of May 1960 Muhammad shaft, Ward Keeper, Timber Store Depot, Railway Workshop, Moghalpura, (P. W. 4), entrusted 200 lining boards to Munawar Ali appellant for the purpose of taking them to the Railway Goods Sick Line, Lahore. He was given gate pass Exh. P. G. permitting him to pass through the main gate with the 200 boards. One of the demand notices issued for the purpose by the Train Examiner, Goods Sick Line, was converted into an issuing note and delivered to Munawar Ali for being taken along with the material. The delivery‑sheet Exh. P. J. was also given over to Munawar Ali to get it signed by the Store Keeper of the Goods Sick Line in token of the delivery of the goods. The two appellants and the five acquitted accused laid these boards on a rehri and started for the Goods Sick Line along with the rehri. When they reached just near the gate of the Goods Sick Line, they stopped the rehri. The two appellants who had their cycles with them, removed 20 boards from the rehri and each one of them tied 10 boards his cycle. Munawar Ali appellant then directed Muhammad Sadiq appellant to stand outside the gate near the two cycles, while he along with the other five acquitted accused, went inside the Goods Sick Line with the rehri. After some time Munawar Ali along with the five other acquitted accused came out of the gate with empty rehri. The two appellants took their cycles and started towards the opposite direction with the boards tied on their cycles. Ghulam Mustafa, Assistant Inspector, Watch and Ward, (P. W.1), Muhammad Iqbal, Foot Constable, Railway Police (P. W. 2) and Ali Gohar, Watchman, Watch and Ward, (P. W. 3), who were on duty at the gate to keep watch, saw this. When they had gone to some distance, the three P. Ws. Checked them. They were arrested and ultimately challaned under section 409, P. R. C., with the above result.

3. Another very important fact which has been stated by Bashir Ahmad, Store Clerk, (P. W. 5), is that when Munawar Ali brought the rehri inside the Line, he counted the boards and as he found a shortage of 20 boards he refused to sign the delivery receipt Exh. P. J‑ He asked Munawar Ali Appellant to bring the remaining 20 boards before he could get the receipt signed. The learned trial Judge has accepted this case of the prosecution and convicted the appellants.

4. I am afraid the conviction of the appellants cannot be maintained. According to Bashir Ahmad (P. W. 5) when he counted the boards he found that there was a shortage of 20 boards. Consequently he refused to sign the delivery receipt Exh. P. J. and asked Munawar Ali to make good the deficiency. According to Bashir Ahmad Munawar Ali, upon hearing this, kept mum, but we have the evidence of Amir Muhammad Khan. (D. W. 3), an employee in the Goods Sick Line, who had also counted the boards along with Bashir Ahmad P. W. who stated that when Munawar Ali was asked about the shortage of the boards, he told him that he would bring the remaining 20 boards and then got the receipt signed. I am prepared to accept the evidence of Ata Muhammad (D. W. 1) and Amir Muhammad Khan (D. W. 2) that they had seen these two appellants removing the boards from the rehri and tying them up to their cycles. May be, that at that time the appellants had the intention of misappro priating these 20 boards, but it is un-imaginable to think that after the shortage was detected and the receipt clerk had refused to sign the receipts the appellants could have tried to take away these boards for misappropriating them. I am not prepared to believe this part of the three witnesses that they had checked the appellants when they had proceeded 150 karams from the place where they' had placed the boards on their cycles. In the first information report, which was lodged by Ghulam Mustafa P. W., it is clearly stated that they had hardly gone 11 karams when they were arrested.

5. In order to prove an offence of criminal misappropriation against an accused person, it is essential for the prosecution to, prove the following two facts :‑ (1) That the accused must have been entrusted with propert or with dominion over property in his capacity of a public servant. (2) That he dishonestly misappropriated or converted to his own use that property or dishonestly used or disposed of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legacontract, express or implied, which he has made touching the discharge of such trust. In the present case the prosecution has proved the first ingredient as regards the entrustment of the property only. There is no evidence that the appellants misappropriated or converted to their use property entrusted to them. The case for the defence is that the 20 boards had fallen off the rehri and that Muhammad Sadiq appellant was left behind to guard those boards while Munawar Ali had gone in to deliver the remaining 180 boards. After delivering those boards he had come out and they were planning to take these 20 boards inside the Line when they were arrested. May be; this explanation of the defence is not correct. The prosecution at best proves that the appellants had an intention of misappropriating the boards or that they had even made prepara tions to misappropriate the 20 boards The action of the appellants cannot be taken to amount to either misappropriation or an attempt to misappropriate. There is no reason why the evidence of Amir Muhammad Khan (D. W. 2) be not accepted that when the short age of the boards was pointed out to Munawar Ali appellant he had stated that he was going to bring the remaining boards. Ata Muhammad (D. W. t), who is the Ward Keeper of Timber Depot, Railway Workshop, has given good conduct to Munawar Ali appellant during the past thirteen years of service. It cannot be expected that such an experienced man would try to misappro priate the boards even after the detection of the shortage. May be, if Munawar Ali appellant had manipulated to get the receipt signed by Bashir Ahmad by delivering him 180 boards only, he would have tried to mis-appropriate the remaining 20 boards, but it could not be possible for him to try to misappropriate these 20 boards which were of the value of less than Rs. 20 without having been able to get the receipt signed. The action of the appellants at worst amount to preparation, which is not an offence under section z09, P. P. C. In the circumstances, I would accept B the appeal, set aside the conviction and the sentence of the appellant and acquit them. The fine, if paid, shall be refunded. K. B. A. Appeal accepted.