1983 PLP 288 (SCMR)

MIAN BURHANUDDIN KHAN, J.‑This petition is directed against the judgment and order of Lahore High Court, Rawalpindi Bench, dated 12‑12‑1981 passed in Criminal Appeal No. 85 of 1981.

2. Briefly stated the facts are that the petitioner was in the Agriculture Department as incharge of the Stores during the relevant time. A complaint regarding misappropriation of material lying in the store, was received by Abdul Qadir, Inspector, Circle Office. Anti‑Corruption Establishment, Attock who conducted an inquiry and at his request the Assistant Commissioner, Attock deputed Mr. Afzal Hayat Gondal, Naib‑Tehsildar to supervise a raid on the store in custody of the petitioner.

3. The raiding party visited the office of Extra‑Assistant Director, Agriculture, Attock, called the petitioner and asked him to open the doors of the store for checking. The petitioner on the pretext of bringing the keys disappeared. The door was forced open by breaking the lock in the presence of the supervising Magistrate and physical checking of the store was carried out. Necessary lists of the stock which should have been in the store and which was actually found available in the store, were prepared. Deficiency found was of the value of Rs. 2,21,

000. The accused was, later on, arrested and his trial commenced by examining Khaki Jan, P. W. 1, Ahmad Bakhsh, P. W. 2., Abdul Qadir, P. W. 3, Abdul Ghafoor, P. W. 4, Naveed Iqbal, P. W. 5 and Mr. Afzal Hayat Gondal P. W.

6. Lists Exh. P. W. 214 to Exh. P. W. 2/G and Exh. Pt W. 2/J to Exh P. W. 2/L were prepared by Ahmad Bakhsb, P. W. 2.

4. The petitioner denied the charge before the trial Judge and produced Muhammad Sabir, D. W.

1. Taj Muhammad, D. W. 2, Muhammad Farman, D. W.3 and Muhammad Akram Chowdhry, D. W. 4 and tendered in evidence documents Exh. D. W. 1/A to Exh. D. W. 1/C, Exh. D. W. 2/A to Exh. D. W. 2/C and Exh. D. W. 4/A. But he was found guilty under section 409, P. P. C. read with section 5(2) of Prevention of Corruption Act, 1947 by the Special Judge, Anti‑Corruption, Rawalpindi, was convicted and sentenced to undergo three years' R. I. and a fine of rupees two lacs or in default to undergo further R. I. for two years.

5. The convict filed an appeal against his conviction and sentence which was dismissed vide the impugned judgment of the Lahore High Court but his sentence of fine was, however reduced to rupees one lac or in default to suffer R. I. for one year. 6‑ Learned counsel appearing for the petitioner contended that the prosecution has failed to prove the entrustment of pesticide and the spare parts found short and the only documents which could prove the factum of entrustment was the original stock register which could show the stock position on the day of raid was withheld by the prosecution during the trial and instead the lists which were allegedly prepared from the original record, were produced ; that the prosecution has also failed to establish the dishonest intention of the petitioner to misappropriate the Government stores there being no evidence to suggest that the petitioner dishonestly misappropriated or converted to his own use or disposed of the stocks allegedly found deficient in the store.

7. We have gone through the judgment of the trial Judge and judgment of the learned Single Judge of the High Court and find that all these points, now raised by the learned counsel, have been satisfactorily dealt with by the two courts. The lists prepared by the prosecution witness regarding the deficiency or shortage of stock was proved according to the provisions of, Evidence Act and there is nothing on record to show that the original stock registers were not before the witness or the court at the time of their examination, or else there would have been objection to the exhibiting of various documents. This argument is also of no avail that the petitioner had not been entrusted with the store or misappropriated the same or had no dishonest intention to misappropriate the store in his charge as Field Agricultural Assistant. He had the keys of the store room with him and according to the statement of the Raiding Officer he (petitioner) disappeared when he was asked to open the store room, and was arrested later on. His' conduct points to his guilty conscience. No line can be drawn between the entrustment of store taking place in accordance with the prescribed procedure; and that made according to the accepted practice relating to posts' or appointment held by a public servant. Entrustment takes place in both the capacities of public servant. In Ziaul Haq v. State (1973 P Cr. L J 457v), it was field "Where the accrued public servant (Wash Baqi Navis) received revenue monies from Lambardars on promise of depositing same in treasury the question whether accused was under rules, entitled to receive such amounts or not and in any event whether offence committed by public servant should be relatable to official discharge of his functions was held, wholly irrelevant and repelled. No line can be drawn between entrustment taking place in accordance with prescribed duties and that made according to accepted practice relating to post or appointment held by public servant''.

8. The contention of the learned counsel that the petitioner was not in control of the property, is also belied by the testimony of Abdul Ghafoor, P. W. 4, Senior Clerk of the office of Agriculture Department. No doubt, there was no written order showing that the accused‑petitioner was the sole incharge of the store but the documents produced by the defence reveal that the accused/petitioner had full control over the stocks. We find no merit in this petition which is, accordingly, dismissed. Petition dismissed.