1985 PLP 58 (MLD)

This Criminal Appeal arises from the judgment of the learned Special Judge, Anti-Corruption whereby he on 11-4-1982 convicted Muhammad Nazir appellant under section 409, P.P.C. and sentenced him to imprisonment till the rising of the Court and a fine of Rs.5,000 in default thereof to further R.I. for one year.

2. The appellant was working as senior clerk Building Branch, Lahore Municipal Corporation, Lahore in the year 1973. The charge against him was that he after having received file No. XXXLI 6-5-1954 on 13-1-1973 misappropriated the same. The appellant denied the charge and claimed to be tried.

3. To prove its case, the prosecution examined nine witnesses. Bashir Ahmad peon P:W.5 stated that on 13-1-1973 Muhammad Shafiq P.W. gave him Dak Behi Exh.P.B. alongwith Dak. He delivered Dak to the appellant and obtained his signatures Exh.P.B/1 on Dak Behi Exh.P.B. Mrs.Pervez Aslam P.W.9, a handwriting expert stated that signatures Exh.P.B/1 on register Dak Behi Exh.P.B. were identical with the routine and specimen signatures of the appellant. Muhammad Shafiq P.W.7 stated that he entered four files in the Dak Behi Exh.P.B. and sent the same through Bashir Ahmad peon to the Building Branch which were received by the appellant. The rest of the evidence is of formal nature.

4. The appellant when examined under section 342, Cr.P.C denied all the incriminating circumstances. He did not lead any evidence in defence.

5. The learned counsel for the appellant submits that the prosecution has failed to prove criminal misappropriation of the missing file relating to housing scheme 'Gul Fashan' Colony, Lahore, 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 in the light of record available before me. I find that the prosecution has not satisfactorily proved that file No. XXXLI 6-5-1954 was actually received by the appellant. The presence of signatures A P.B/1 on the Dak Behi do not prove that aforesaid file was actually received by the appellant. Furthermore, the prosecution has failed to lead any evidence to the effect that the said file was misappropriated by the appellant in any manner or that the appellant had wilfully suffered any other person to misappropriate the same. In the circum stances of the case, the possibility that the file was misplaced or dishonestly removed by someone else without the knowledge of the appellant cannot be excluded. The mere fact that appellant was careless or that he has not been able to account for the file or that he would be responsible for the loss of the file do not make out a case of criminal misappropriation within the meaning of sections 405 & 409, P.P.C. For all these reasons I am convinced that the prosecution has failed to prove against the appellant offence punishable under section 409, P.P.C.

7. For what has been stated above, the appeal is accepted. Giving him the benefit of doubt, the appellant is acquitted of the charge. He is on bail. He stands discharged of the bail bond. M . Y . H . Appeal accepted.