1985 P Cr (PLP)

‑‑‑S. 5(2)‑‑Penal Code (XLV of 1860), S.409‑‑Misappropriation‑‑No direct evidence available regarding entrustment of medicines to accused‑‑Only eye‑witnesses produced to prove entrustment unable to recognize signatures of accused on bills (produced by prosecution)‑‑No evidence of removal or misappropriation of medicines by accused being available‑‑Accused acquitted in circumstances. K.H. Khurshid for Appellant. M. Iqbal for the State. Date of hearing: 29th October, 1984. This criminal appeal arises from the judgment of the Special Judge Anti‑Corruption whereby he on 14‑3‑1983 convicted Shaukat Hussain appellant under section 409, P.P.C. read with section 5(2), Prevention of Corruption Act, 1947 and sentenced him to two years' R.I. and a fine of Rs. 10,000 in default thereof further six months' R.I.

2. The appellant was working as storekeeper in Cairns Hospital. The charge against him was that he criminally misappropriated medicines valuing Rs.7,

100. He denied the charge and claimed to be tried. To prove its case the prosecution examined 17 witnesses. When examined under section 342, Cr.P.C. the appellant denied incriminating circumstances. He, however, admitted his signatures on bills Exh.P.W.8/1, Exh.P.W.8/3 and.Exh.P.W.8/5. In defence he produced no evidence.

3. The learned counsel for the appellant submits that since the prosecution has not been able to prove entrustment of the medicines to the appellant or his signatures on bills Exh.P.W.8/1, Exh.P.W.8/3 and Exh.P.W.8/5, the trial Court should have accepted the statement of the appellant made by him under section 342, Cr.P.C. as a whole. Conversely the learned counsel for the State supported the judgment of the trial Court.

4. I have considered the arguments advanced by the learned counsel for the parties with care. Keeping in mind the guiding principles laid down for the appreciation of evidence in criminal cases I proceed to examine prosecution evidence first in order to arrive at a conclusion as to the truth of the prosecution case and would then look into the statement of the accused if necessary. I find that there is no direct evidence of entrustment of medicines to the appellant so much so Sardar Ahmad the only witness produced .to prove entrustment could not recognize the signatures of the,, appellant on bills Exh.P.W.8/1, Exh.P.W.8/3 and Exh.P.W.8/5. There is no evidence of the removal or misappropriation of medicines by the appellant. For these reasons I am of the view that the prosecution failed to prove entrustment of the medicines to and misappropriation thereof by the appellant beyond reasonable doubts.

5. For what has been stated above, the appeal is accepted and the appellant is acquitted of the charge. He shall be released forthwith if not required in any other case. M.A. Appeal accepted.