P L D 1961 (W (PLP)

This is an application for quasking the proceedings under section 406 of the Pakistan Penal Code pending against the peti tioner in the Court of the Magistrate 1st Class, Bhakkar. The allegations against the petitioner are that on the 27th of February 1950 he was issued coupons worth Rs. 21,500 for the collection of Quaid‑e‑Azam Memorial Fund. On the following day he deposited Rs. 1,100 in the Treasury Mianwali as the sale proceeds of eleven coupons bf the value of Rs. 100 each. On the 27th of November 1950, he deposited back in the treasury coupons of the value of Rs. 9,

400. On the 28th of January 1955, coupons of the value of Rs. 10,800 were collected by Muhammad Afzal, Siahnawis (P. W. 5) from the office of the Muslim League in the company of the peti tioner and these were deposited in the treasury the same day. Thus, the petitioner paid Rs.. 1,100 in cash and returned back the coupons of the value of Rs. 21,

300. The remaining coupons of the value of Rs. 200, of the denomination of Re. 1 each, were neither deposited back by the petitioner nor their value was paid by him. The Treasury Officer and the Tehsildar sent some robkars to the petitioner asking him to either deposit back the coupons or to pay the amount of Rs.

200. The petitioner sent them replies in which he stated that he had resigned from the presidentship of the Muslim League in the year 1951 and that he did not know as to what happened to those coupons and that he would try to find out from the Muslim League office bearers and then try to adjust the account. Nothing, however, was done and ultimately the Treasury Officer, by his memo, Exh. P. Q., dated the 8th of October 1959, got a case under section 406 of the Pakistan Penal Code registered against the petitioner.

2. The above facts stand proved against the petitioner and have not even been disputed at the time of the arguments by his learned counsel. In his letter Exh. P. J., which was sent by the petitioner to the Treasury Officer on the 2nd of June 1955, he specifically mentioned that he had left the Muslim League in Octo ber 1950 and that he had publicly resigned from the presidentship of the District Muslim League on the 15th of January 1951, that the record relating to the coupons remained in the office of the Muslim League, that in pursuance of an order he had got recovered coupons of the value of Rs. 10,800 from the office of the Muslim League on the 28th of January 1955 which had been deposited in the treasury, that he did not know as regards the coupons of the value of Rs. 200 and will have to find out from the office bearers of the Muslim League about those, and that he would ask the Muslim League office bearers to either pay the amount or to deliver the coupons, and that in case they did not pay the amount he would be even prepared to pay Rs. 200 from his own pocket. Exhibit P. N. is another letter written by the petitioner to the Treasury Officer on the 17th of January 1958 in which he again reiterated the above facts and further added that at the time when he was the President of the District Muslim League, the office secretary, the general secretary,.the joint secretary and members of the executive committee of the Muslim League used to collect Quaid‑e‑Azam Memorial Fund, and that since he had left the office and the unused coupons in the office, he did not know any thing as to what had happened to‑ the coupons of the value of Us. 200 which had not been accounted for. . He prayed that he may be allowed to inspect the record of the Muslim League office so that he might be able to find out as to what had happened to those coupons.

3. Habibullah Khan (P. W. 6) admitted that the petitioner had resigned from the presidentship of the Muslim League on the 15th of January 195 i and that he was turned out of the Muslim League office by police force. The witness claimed to have succeeded the petitioner as the President of the Muslim League.' Syed Baqar Hussain Shah, Advocate, P. W. 2, succeeded Habibullah Khan as the Pre'sident of the Muslim League in the year 1951 and continued as such till 1958. He stated that he had received a letter from the Treasury officer, Mianwali, to. hand over the coupons or the money realised from the sale of coupons which were issued to the President of the District Muslim League, Mian wali. Mr. Barkhurdar Khan, Advocate, Mianwali, P. W. 8, was the general secretary of the Muslim League. He admitted that the coupons relating to the Memorial Fund which were issued to the petitioner by the Treasury Officer used to be in the custody of the office secretary of the Muslim League and that the coupons were sold. by the office secretary and the other office bearers of the Muslim League including the petitioner.

4. The petitioner had tried to bring out in the cross‑exami nation of Mr. Muhammad Ramzan Khalid; Treasury officer, P. W. 10, and Sarfraz Khan Sub‑Inspector (P. W. 9) that the case laud been registered against him because of his personal enmity with Sarfraz Khan P.‑W. and Mr. Ghulam Farid, the then Deputy Commissioner, Mianwali, but it is unnecessary to go into these allegations.

5. The sole question for determination at the present stage is whether on these allegations a case under section 406 of the Pakistan Penal Code is even prima facie , made out against the petitioner. The prosecution evidence has undoubtedly established that the coupons of the value of Rs. 200, of the denomination of Re. I each, were neither returned back by the petitioner nor the amount representing their value was deposited in the treasury, but there is no evidence to prove that the petitioner had received any money by the sale of those coupons, nor is there any evidence to show that the petitioner had in any other way dealt with those coupons. 1n fact the evidence of the prosecution is that the coupons were. kept in the Muslim League office where all office bearers used to deal in those coupons. It is admitted by the prosecution witnesses that the petitioner was turned out of the Muslim League office in the year 1951. Mohammad Afzal (P.W.5) stated in his cross‑examination that he had accompanied the petitioner to the Muslim League office on the 28th of January 1965 and ihat they were able to recover coupons of the value of Rs. 10,800 from there. If during this period of four years, when the petitioner had nothing to do with the Muslim League Organi zation or the Muslim League office, the coupons of the value of Rs. 10,800 were lying in the Muslim League office, it is quite possible that someone might have sold some coupons during this .r‑ period and he did not account for the money. How on earth on the evidence on record it could be said that the petitioner had either misappropriated these coupons or had misappropriated tiiC proceeds thereof. Section 405 of the Pakistan 111cmd Code define criminal breach of trust as follows :‑ "Whoever, being in any manner entrusted with property, or with any dominion over property, dishonest v misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he had made touching the discharge of such trust, or wilfully suffers any other person so to do, commits criminal breach of trust." The evidence on the record only proved that the petitioner was entrusted with property and he was under an implied obligation either to return the coupons or to pay the amount realised on account of their sale. But the mere fact that he did not return the coupons of the value of Rs. 200 nor he paid the proceeds thereof would not prove that he had dishonestly misappropriated the coupons or had converted the coupons to his own use or Mid used or disposed of those coupons in violation of any direction of hiw or of any legal express or implied contract. The prosecution has miserably failed to prove this essential ingredient of an offence under section 406 of the Pakistan Penal Code.

6. In the year 1955 it had come to the knowledge of the Treasury Ofcer that coupons of the value of Rs. 200 were short but no case was registered until 1958. Even at the time when the case was registered, there was no evidence before the Treasury Officer that the coupons or their sale proceeds had been misappro priated by the petitioner. During the trial. no such evidence has been produced. The fact that after four years of the ,everance of the petitioner's connections with the Muslim League, the coupons of the value of Rs. 10, 800 were recovered front r h, office of the yfuslim League by Nfuirarnm:td Afzal Siahnawis (P. W. 5) proved beyond anvshadowofdoubt that after his resin=nation tile petitioner had nothing to do with these coupons which remained in the office of the Muslim League. This fact has been admitted by Mr. Bar khurdar Khan, Advocate, P. W., who was the general secretary of the Muslim League, that after the resignation of the petitioner, the coupons which had been entrusted to the petitioner had remained with the office secretary of the Muslim League. The learned counsel for the State is unable to point out any evidence to prove that the petitioner had dishonestly misappropriated or converted to his own use the missing coupons or their sale,proceeds.

7. In view of the facts stated above, I con~;d~:r that it is al'. sheer abuse of the process of law to permit such a ;,roceeding tol~ continue. I would, therefore, quash the proceedyings. tc. a. A. Proceedings quashed.