1985 P Cr (PLP)

Khalid Hussain for the State. Date of hearing: 6th November, 1984. This criminal appeal arises from the judgment of the learned Senior Special Judge, Anti‑Corruption, Punjab, Lahore Camp at Kasur whereby he on 27‑2‑1983 convicted Muhammad Siddique appellant under section 409, P.P.C. and sentenced him to two years' R.I. and a fine of Rs.500 in default thereof to six months' R.I.

2. The appellant was a Field Assistant in the Agriculture Department, District Kasur. The charge against him was that he absented from duty in April, 1980 without handing over the charge of store to anybody and that when the store was checked under the supervision of the Magistrate, shortage of pesticides worth Rs.9,679.66 was found which in fact had been misappropriated. He denied the charge and claimed to be tried.

3. To proved its case, the prosecution examined eight witnesses. Ahmad Ali P.W.1 stated that the Magistrate had broken open the lock of the store of the accused in his presence. In cross‑examine he stated that after opening the lock, the Magistrate went to the office of the Union Council, lists of the articles of the store were prepared by the Agriculture Officer and the Field Assistant while they were sitting in the office of Union Council. P.Ws. 2 and 3 are formal witnesses. Anwar Hussain P.W.4 Agriculture Officer stated that the appellant was Incharge of the Store of Dostpura and that he absented himself from duty w.e.f. 9‑4‑1980. He was issued letters for reporting for duty he did not turn up. Subsequently show‑cause notice was given to him but he did not care. So on 25‑10‑1980 the store was opened by breaking upon its lock in the presence of Muhammad Shafi, Magistrate and others. The inventory of the articles found lying in the store was prepared which is Exh.P.W.4/C, that list of the articles found deficient in the store was also prepared which is P.W.4/D. He further stated that on 1‑11‑1980 another store of Dostpura was broken upon in the presence of the same Magistrate and inventory P.W.4/H and shortage list P.W.4/J were prepared. He explained that the deficiency was calculated by comparing the articles lying in the store with the stock register. Muhammad Shafi P.W.5, the Magistrate stated that the stores of Agriculture Department were unlocked and list P.W.4/C of the medicines lying in the store was prepared. The record found lying in the store was incorporated in a list. He further stated that on 1‑11‑1980 the store of Dostpura was unlocked and lists of the medicines and record found in the store were prepared. S. M. Mal P. W.6 stated that the appellant was absent from his duty. The store was unlocked in the presence of Muhammad Shafi, Magistrate and others. Inventory Exh.P.W.4/C and list Exh.P.W.4/F were prepared which were signed by him. P.W.7 is a formal witness. Muhammad Yasin, Deputy Director of Agriculture Department P.W.8 got deputed Muhammad Shafi, Magistrate for breaking open the locks of the stores. He also got F.I.R. registered.

4. When examined under section 342, Cr.P.C. the appellant denied the incriminating circumstances. His plea was that the medicines were misappropriated by the Agriculture Officers and field assistant namely Matloob. In defence he produced seven witnesses.

5. The learned counsel for the appellant submits that the prosecution has failed to prove entrustment of the pesticides which were allegedly misappropriated by the appellant. Conversely, the learned counsel for the State has supported the judgment of the trial Court.

6. I have considered the arguments advanced by the learned counsel for the parties with care. I find that it is really unfortunate that the prosecution did not care to prove the entrustment of the pesticides to the appellant and that the original stock register was also not produced in the Court. Since entrustment is one of the main ingredient of offence of criminal misappropriation breach of trust which has not been proved by the prosecution, therefore, there is no alternative but to accept the appeal and acquit the appellant of the charge. Order accordingly. I.D. Appeal accepted.