1968 P Cr (PLP)

Malik Muhammad Nadir for A.‑G. for the State. This Criminal Appeal by Mustafa Shah, an Inspector Food grains the Food Department of Government of Pakistan, is direct ed against the order of the learned Special Judge, Multan, dated 2nd December 1964, whereby the appellant was convicted under section 409, P. P. C./5(2) of the Prevention of Corruption Act, and was sentenced to one year rigorous imprisonment and a fine of Rs. 3,000 or to further six months' rigorous imprisonment in de fault of payment thereof. A further direction was given that in the event of the realization of the fine, the same should be paid to the Food Department as compensation for the loss suffered owing to the shortage of wheat in the stocks entrusted to the appellant.

2. The brief facts giving rise to the case are that from April 1959 to October 1960, the appellant was posted as Inspector, Foodgrains at Dunga Bunga, district Bahawalnagar. He was the Incharge of the wheat stock stored by the Food Department in its bins comprising 28 cells. Of these, cell No. 7 contained 734 maunds, 36 seers and 4 chattanks of wheat, which was actually stored during the harvesting season of 1959. About a year later on 30th May 1960, this cell. was cleared of the stock which was to be despatched for milling to Lyallpur for supply of flour to defence services. On evacuation, a shortage of 152 maunds,17 seers and 2 chattanks was detected by the appellant himself who on the same day sent letter Exh. P. A. to the S. H. O. Police Station, Dunga Bunga for the registration of a case of theft as suspected by him. A copy of this letter was also sent for information to the District Food Con troller, Bahawalnagar. A few days later on 5th June 1 60, the appellant also sent report‑ Exh. P E. on the form meant for showing the position of stocks. This also referred to the shortage of 152 maunds and 17 seers of wheat detected during the clearance of cell No.

7. It was submitted in this report that this shortage being 20.98 % of the stock was rather unusual and could not be explained or covered by the normal shortage caused due to dryness, decay or other subsidiary losses, etc., and as such was suspected to have been stolen from the cell. The entire stocks of wheat entrusted to the appellant were got checked and a total shortage to the tune of 191 maunds 16 seers and 12 chattanks were revealed in cluding the shortage of cell No.

7. The shortage in excess of 152 maunds and 17 seers was deemed to have been covered by subsidiary losses and as such no action was considered necessary on that account .

3. As a result of his investigation of the case, Ch. Muhammad Ali, S. H. O. Police Station, Dunga Bunga challaned the appellant who had himself lodged report Exh. P, A. on the basis of which a formal F.I.R. Exh. P. B. was drawn up. The prosecution case rested on the testimony of Muhammad Abdullah (P. W. 2), Abdul Majid (P. W. 3) and Ghulam Rasul (P. W. 4), who deposed to show that the appellant had been selling small quantities of wheat to different persons on different occa sions. At the trial, the appellant frankly admitted the entrust ment of the stocks of wheat as also the shortage which was detect ed by none else but himself. He tried to explain that since he was often called to the Headquarters at Bahawalnagar in order to attend to official business, it was in his absence that somebody had stolen away the wheat. It appears that except the appellant and Mian Khan Chowkidar, who though cited as a prosecution witness in the calendar of witnesses was not traceable during the trial and as such was not examined, there was no third person connected with the custody of the what stocks. The appellant also admitted that he did not seal the stocks, although under the Rules the was supposed to do so and the seals were also supplied for this purpose. It appears that arrangements were also made on the top of the bins for putting locks to the cells, but since no locks were supplied by the Department for this purpose, the appellant was not to blame for keeping them unlocked.

4. The learned Special Judge discarded the testimony of Muhammad Abdullah (P. W. 2), Abdul Majid (P. W. 3) and Ghulam Rasul (P. W. 4) as being vague and of no consequence, but in view of the admitted position that the wheat stocks were entrusted to the appellant who had admittedly failed to seal them and also that the Chowkidar appointed to keep a watch was also supposed to work under his personal supervision, the offences of criminal misappropriation under section 409, P. P. C. read with section 5 (2) of the Prevention of Corruption Act were deemed to have been fully brought home to the appellant who was according ly convicted, as stated earlier.

5. The learned counsel for the appellant has strenuously contended that no evidence of criminal misappropriation has been brought on the record warranting the conviction of the appellant and that his conduct throughout has been very frank and far‑, in. that he himself had set the ball rolling and did not attempt either to suppress or distort the correct position, having consistently admitted the entrustment as also the shortage.

6. On the contrary, the learned counsel appearing on behalf of the State has argued that the appellant was rightly convicted for an offence under section 5 (2) of the Prevention of Corruption Act, inasmuch as the allegations of criminal misconduct as defined in section 5 (2) (c) stood fully established against him. It was argued that his case was covered by the expression "allows any other person to do so" as occurring in clause (c) of subsection (1) of section 5, of the aforesaid Act. It was further argued that the factum of entrustment and the responsibility to supervise the stocks and deliver them in tact having been admitted by the appellant, the onus to give a satisfactory explanation for the short age so as to take out his case from the mischief of section 409, P. P. C./5 (2) of the Prevention of Corruption Act was shifted on him which he failed to discharge. Reliance was placed in this regard on Emperor v. Kadir Bakhsh (11 Cr. L J 699) and Sargodha‑Bhera Bus Service v. Province of West Pakistan (P L D 1959 5 C 127). It was also urged by the learned counsel for the State that the learned Special Judge had no valid reasons to discard the testimony of the these prosecution witnesses produced in support of allegations of sale by the appel lant of different quantities of wheat to different persons.

7. Having reconsidered the statements of the three witnesses, which were discarded by the learned Special Judge, I have not been able to find any good reasons to take a view different from the one expressed by him. The testimony of these witnesses, who spoke from memory in respect of something, which had taken place about five years earlier, besides being vague does not inspire confidence. Even otherwise the witnesses appear to be men of no, consequence and could hardly be relied upon in the circumstances of the case and as such they were rightly disbelieved by the learned Special Judge. Once this evidence is ignored we are only left with the appellant's inevitable admission of entrustment and of the short age detected by him. He was undoubtedly responsible for the custody of the stocks and even the Chowkidar posted for that purpose was also supposed to work under his supervision. As such he cannot escape the responsibility of the shortage, but this per se does not amount to the establishment of an offence of criminal breach of trust, of which dishonest misappropriation, conversion to one's own use, dishonest use or disposal of that property in violation of any direction or prescribed mode, or wilfully suffering any other person so to do, are the essential in gredients. The mere disappearance of the property entrusted would not thus be sufficient to establish a misappropriation un less it is also proved by the prosecution that the accused is res ponsible for doing himself or wilfully suffering some other person to do the aforesaid acts. Shakir Hussain v. The State (P L D 1959 S C 407) and Mir Ahmad v. The State (P L D 1962 S C 489) may be cited as the two authorities in support of the proposition. In the latter authority it was held by their Lordships that although the accused was under a duty of furnishing an explanation for the short fall of the money entrust ed to him since the custody was exclusively his, but cases are conceivable for instance, e. g., of faulty accounting or of lack of con trol in access to the safe‑deposit, where it would also be necessary to furnish something by way of proof of conversion to sustain a conviction. In the case before their Lordships, the accused had admitted the entrustment of the money as also its shortage. There was no evidence of his having converted any part of the money, such as, for instance, that he had been seen spending sums of money beyond his visible means shortly before the discovery of the loss. I am disposed to think that this authority offers a near parallel to the instant case. As such I am clearly of the view that notwithstanding a lack of proper control or supervision on the part of the appellant, which might warrant departmental action against him, an offence under section 409, P. P C. is not establish ed against him beyond reasonable doubt.

8. This brings me to the determination of the next point whether an offence under section of (2) of the Prevention of Cor ruption Act is made out against him. In this regard the point which precisely falls for determination is whether the appellant is hit by the expression "allows any other person to 'do so" as occurring in clause (c) of subsection (1) of section 5 of the Pre vention of Corruption Act. Section 5 (I) defines criminal mis conduct and clause (c) reads as follows: ‑ "If he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person to do so."

9. The fate of the case thus depends on the precise inter pretation of the underlined expression towards the end of the clause. Allowing may be in two ways, firstly by active collusion or connivance and secondly, by negligence or lack of proper vigilance and supervision whereby misappropriation is suffered to be done by somebody else. The word "allow" according to Volume I of Murray's New English Dictionary Oxford Edition means to sanc tion, approve of, view or receive with approbation, lend oneself to, permit, concede, let any one have, etc. According to Black's Law Dictionary, Third Edition, "Allow" means to sanction, either directly or indirectly, as opposed to merely suffering a thing to be done. The latter meanings clinch the issue. Obviously, therefore, the appellant could not be held guilty of criminal misconduct merely for suffering the loss to be incurred unless he either him self dishonestly misappropriated the wheat or deliberately allowed someone else to do so. As stated earlier, in spite of the fact that the appellant was responsible for the safe custody and delivery of the consignment, his failure to discharge that responsibility would not per se amount to the establishment of the offence of criminal misappropriation within the mischief of section 409, P. P. C. Nor can he be held guilty of the offence of criminal misconduct under, section 5 of the Prevention of Corruption Act. No doubt, the non‑establishment of the offence of theft as suspected by the appellant is a circumstance which goes against him, yet in the absence of any convincing evidence of dishonest misappropriation of the wheat or conversion to his own use or its disposal, the mere entrustment and shortage would not be good enough to establish his guilt.

10. This brings us to the next contention as to whether in the circumstances of the case the onus would shift on the appellant and if so to what extent has he discharged the same. One signifi cant fact, which cannot be lost sight of in the case is the frank and straightforward manner in which the appellant admitted that he bad not scaled the cells. That would certainly amount to a serious dereliction of duty on his part, which ultimately led to or at least facilitated the disappearance of the wheat. This would be another circumstance, which could be construed against him. Yet the offences of criminal misappropriation or criminal misconduct do not stand established beyond doubt and the possibility of anybody else having constantly pilfered away the wheat in small quantities over the year that it remained stored in the cell cannot be posi tively ruled out. It may be a fit case for dealing departmentally with the appellant for his obvious negligence, but in view of P L D 1962 Supreme Court 489, the authority referred to earlier, he can not be found guilty of the offences with which he was charged. The mere existence of an adverse presumption cannot be equated with the establishment of guilt, and the frank and the consistent attitude of the appellant coupled with position taken by him throughout further renders the case against him doubtful. It is well settled that despite existence of circumstances giving rise to adverse presumption, the onus probandi still rests squarely on the shoulders of the prosecution. Safdar Ali's case (P L D 1957 F C 93) based in turn on the well known English authority in Woolington's case has settled the issue.

11. In consequence of the above discussion, I allow the appeal and set aside the conviction and sentence of the appellant. The fine of Rs. 3,000 if already deposited may be refunded to him. Appeal allowed.