2002 PLP 1101 (YLR)

Rafique Ahmad Bajwa and Shaukat Rafique Bajwa assisted by Muhammad Akram Javaid and Sheikh Zulfiqar Ali for Petitioner. Tasnim Ameen for the State. As a result of the case bearing F.I.R. No.336 of 2001 registered under section 409, P.P.C. with Police Station Old Anarkali, Lahore, Manzoor Hussain petitioner stands involved in the allegation that when he was performing duty as a Assistant Writ Branch‑I, of this Court, the files of 10 writ petitions were lost/misplaced from his custody, the details of the writ petitions are given in Letter No.19396‑D.R(J) Writ‑I dated Lahore the 21st November, 2001, issued by the Deputy Registrar (Judi.) for Registrar on basis of which the above said case was registered.

2. The outcome of the investigation is that Manzoor Hussain petitioner could have no benefit of misappropriation of the files of the writ petitions nor there could be loss to any one and at the most there is a show of negligence on his part, therefore, he is found guilty in his affairs and being challaned.

3. Anyhow learned counsel argued that the petitioner remained on physical remand with the Investigating Agency but nothing could be recovered to establish dishonesty on the part of the petitioner; that even in the letter dated 21‑11‑2001 (supra) issued by the Deputy Registrar for Registrar there is no allegation of dis‑honesty but merely the allegation is to the extent of misplacement/lost, therefore, in these circumstances provisions of section 409, P.P.C. are not attracted and that being so it is a matter of further probe; that the files of writ petitions have already been reconstructed and the writ petitioners have sought relief from the departments concerned; that no preliminary inquiry was conducted nor any opportunity was granted to the petitioner to prove his innocence; that the Special Judge Anti‑Corruption while refusing bail to the petitioner did not appreciate that nothing could come on record to establish dishonesty or any gain on the part of the petitioner; that the petitioner is in the judicial lock‑up and no more required for any further investigation. He added that challan is also complete and that there is no chance of abscondance because the petitioner is a public servant and he is prepared to furnish surety bond as desired by the Court. He referred to the cases reported in Muhammad Shaheen Tariq v. The State 1995 PCr.LJ 1717; Muhammad Ali v. The State PLD 1996 Lah. 257; Muhammad Shaheen Tariq v. The State 1995 PCr.LJ 1717 (Lahore); Abdul Aziz v. The State 1997 MLD 1723, (Karachi) and 1997 MLD 1723; Manzoor Ali v. The State 1998 PCr.LJ 2042; Abid Rashid v The State 1995 MLD 1829; Mst. Hifsa Malik v. The State 1995 PCr. LJ 1042 (Lahore) and Ghulam Khaliq v. The State 1995 PCr.LJ 1042 in support of his arguments.

4. Learned State Counsel Mrs. Tasnim Ameen, Advocate submitted to this extent that during investigation negligence on the part of petitioner could be established.

5. Even at the bail stage without deeper appreciation of evidence the point for examination is as to what are the, ingredients of section 409, P.P.C., when there is an allegation of Criminal Breach of Trust against a public servant. The definition of Criminal Breach of Trust as explained in section 405, P.P.C. is to be taken into consideration which reads as under:‑ "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 use or disposes of that property, or dishonestly use or disposes of that property in violation of any direction of law of prescribing the mode in which such trust is to be discharged, 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"

6. It is obvious from the perusal of this section that Criminal Breach of Trust is complete when there is dishonest mis appropriation or conversion of any property to own use or dishonest use or disposal of the property in-violation of any direction of law on prescribing mode in which such trust is to be discharged. In other words it is obvious that repeatedly the words dishonest, wilful gain or wilful loss to anyone else have been used. So, it means, when basically there is an allegation of misplacement/lost and during investigation dishonesty on the part of the accused is not established, then it is a matter of further probe; even otherwise, when there is a strong suspicion about misplacement then at the same moment there is always positive expectation that files may be traced in near future as there is possibility of their amalgamation with other files due to rush of work. Petitioner is a public servant and there is no chance of abscondence. He is in the Jail and no more required for any further investigation.

7. As a consequence of it Manzoor Hussain petitioner is admitted to bail provided he furnishes surety bond in the sum of Rs.2,00,000 (Rupees two lacs) with one surety in the like amount to the satisfaction of Deputy Registrar Judicial of this Court.

8. He is directed to attend the trial on each and every date of hearing till the disposal of the case. N.H.Q/M‑1059/L Bail allowed.