AALIA NEELUM, J.- Amjad Pervaiz son of Ghulam Haider , Caste Sheikh, resident of Chak Lala, Police Station, Qilla Soba Singh, District Narowal (in Crl.Appeal No.107815 of 2017), Muhammad Asif son of Muhammad Ibrahim, Caste Khokhar , resident of Chak No.20 Dogaje, Police Station, Saddar Nankana Sahib (in Crl.Appeal No.91254 of 2017) and Muhammad Zareen son of Muhammad Rasheed, Caste Rajput, reside nt of Street No.5, House No.4, Ramghar Mughalpura, Lahore (in Crl.Appeal No.91262 of 2017), the appellan ts along with their co-accused persons namely Sajjad Hussain (since acquitted), Shabbir Ahmad (since acquitted) and Muhammad Shamshad Ali (since acquitted) were involved in case FIR. No.85 of 2010, dated 07.11.2010, registered under Sections 409, 420, 109, 119 PPC read with Section 5(2)47 of PCA, at Railway Police Station (V) Mughalpura, Lahore and were tried by the learned Judge Special Court (Central-I), Lahore. The learned trial court seized with the matter in terms of judgment dated 12.10.2017 convicted the appellant- Amjad Pervaiz under Section 409 P.P.C., and sentenced him to rigorous imprisonment for five years , with the direction to pay fine of Rs.5,000/- and in default thereof, the appellant would suffer simple imprisonment for six months. The appellant-Amjad Pervaiz was also convicted under Section 5(2)47 of PCA and sentenced to rigorous imprisonment for two years, with the direction to pay fine of Rs.5,000/-and in default thereof, the appellant would suffer simple imprisonment for six months. The appellant-Muhammad Asif was convicted under Section 119 PPC read with Sectio n 5(2)47 of PCA and sentenced to rigorous imprisonment for two years, with the direction to pay fine of Rs.5,000/-and in default thereof, the appellant would suffer simple imprisonment for six months. The appellant-Muhammad Zareen was convicted under Section 409 PPC read with Section 109 PPC and sentenced to imprisonment for three years, with the direction to pay fine of Rs.5,000/-and in default thereof, the appellant would suffer simple imprisonment for six months. All the sentences awarded to the appellants would run concurrently .
2. Being aggrieved by the judgment of the learned trial court, the appellants, Amjad Pervaiz, Muhammad Asif and Muhammad Zareen have assailed their conviction and sentence by way of filing above stated criminal appeals. As all the matters are arising out of one and the same judgment, therefore, they are being disposed of through a single judgment.
3. The prosecution story as contained in the FIR lodged on the complaint (Ex.P A) of Muhammad Munir ,SI (PW-1)- the complainant is that on 02.11.2010, he (PW-1) received a secret information that the accused-Amjad Pervaiz, ASI-Moharrar , Sajjad Hussain, Naib Moharrar of Mughalpura Railway Station were fraudulently selling property of the railway to the accused-Muhammad Zareen (Kabaria) and in this connection, the accused persons had got loaded the material through Muhammad Asif 49/HC, Muhammad Jamil Constable, Sher Ahmad Constable and Zafar Iqbal Constable on truck No.LWN-4202 at 04:30 a.m and if a raid was conducted, the accused persons could have been apprehended whereupon, a raiding team consisting of Khurram Safeer 107/C (since given up PW), Mehmood-ul-Hassan 444/C (PW-2) and Muhammad Imran 14/H.C (PW-3) was constituted, who reached the spot and signaled the truck bearing registra tion No.LWN-4202 to stop, which was being driven by the accused- Muhammad Zareen. On search of the truck, different articles i.e. nine pieces of railway line, one piece of iron garder , one angel iron, one tie bar, one iron sheet, one trus bar, one anchor plate, four electric poles, one kammaira, one iron sheet, two iron jarhals were recovered, which were taken into possession by the complainant (PW-1) vide recovery memo (Ex.PC). The complainant (PW-1) also took into possession the truck vide recovery memo (Ex.PB). Thereafter , the complainant (PW-1) prepared rough site plan of the place of recovery (Ex.PD). On the complaint (Ex.P A) of the complainan t (PW-1), formal FIR was chalked out. Thereafter , the investigation was entrusted to Abdul Aziz, SI (PW-12), who arrested the accused persons and found them involved. Thereafter , on 24.01.201 1, Muhammad Arshad, SI (PW-11) prepared report under Section 173 of Cr.P.C and sent the same to the court of competent jurisdiction. On 21.07.201 1, the learned trial court formally charge sheeted the appellants along with others to which they pleaded not guilty and claimed trial.
4. The prosecution in order to substantiate its case produced as many as twelve (12) prosecution witnesses.
Muhammad Munir , SI (PW-1) is complainant of the case whereas Mehmood-ul-Hassan 444/C (PW-2) and Muhammad Imran 14/H.C (PW-3) are witnesses of the recovery . The statements of remaining prosecution witnesses are formal in nature.
5. On 02.02.2016, 17.12.2016 and 25.04.2017, the Prosecutor for railway gave up Khurram Safeer Constable, Iqbal Anjum, ASI, Muhammad Boota, SI, Aziz-ur-Rehman and closed the prosecution evidence on 07.09.2017.
6. After closure of prosecution evidence, the appellants were examined under Section 342 of Cr.P.C, wherein they refused to appear as their own witnesses in terms of Section 340 (2) Cr.P.C. in disproof of allegations leveled against them in the prosecution evidence but opted to produce evidence in their defence. While replying to the question that why this case was against them and why PWs had deposed against them, the appellant-Amjad Pervaiz made following depositions:- "I was found innocent by the first Investigation Officer Muhammad Munir PW1 and on 17.11.2010 closed Police line vide rapt No.20 of Roznamcha by handing over all the keys of Malkhana to the PW1. On 11.11.2010 Abdul Aziz SI PW12 was entrusted with the investigation who conducted the investigation malafide and without recording statement of any PW u/s 161 Cr.P.C arrested me on suspicion without any incriminating evidence against me. I correctly handed over all the case properties lying in the malkhana to my successor and no shortage or embezzlement was noticed in the record of railway police station Workshop Mughalpura Lahore."
While replying to the particular question, Muhammad Asif appellant made following depositions:- "I am innocent. No PW ever deposed against me. I was declared innocent by the Investigation Officer but was challaned malafidely by SHO PW1 1."
Muhamad Zareen, the appellant while replying to the particular question, made following deposition:- "I am innocent. I was malafidely arrested and tortured and after keeping in unlawful custody for three days received heavy amount as bribe by PW12 and malafidely then also challaned me. Report of Superintendent Camp Jail, Lahore is available on record as Mark-N."
7. Learned trial court after evaluating the evidence available on record found version of the prosecution proved beyond any shadow of reasonable doubt against the appellants, resulting into their conviction in the afore-stated terms.
8. I have heard the arguments advanced by the learned counsel for the appellants as well as learned Law Officer and have minutely perused the record.
9. In the instant case, the appellant-Amjad Pervez was prosecuted, convicted and sentenced under Section 409 P.P.C. as well as under Section 5(1) of the Prevention of Corruption Act 1947. Thus, question arises in this case for consideration as to whether same act or omission constitutes offence under Section 409 P.P.C. as well as under Section 5(1) of the Prevention of Corruption Act, 1947. Section 409 P .P.C. runs as follows: "S.409 Criminal breach of trust by public servant, or by banker , merchant or agent- Whoever , being in any manner entrusted with property , or with any dominion over property in his capacity of a public servant or in the way of his business as a banker , merchant, factor , broker , attorney or agent, commits criminal breach of trust in respect of that property , shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." (emphasis added)
From perusal of aforesaid provision, it appears that if a public servant is entrusted with a property and he commits criminal breach of trust with respect to the said property then he is liable to be punished under Section 409 P.P.C.
Criminal breach of trust defined under Section 405 P .P.C runs as follows: "405.Criminal breach of trust- Whoever , being in any manner entrusted with property , or with any dominion over property , dishonestly , misappropr iates or converts to his own use that property , or dishonestly use 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 has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".
Thus, if any property entrusted to a person and that person dishonestly misappropriates that property then he commits the of fence of criminal breach of trust.
It is not out of place to quote section 5(1)( c) of the Prevention of Corruption Ac, 1947, for better appreciation, which is as under: "5.Criminal misconduct.---(1) A public servant is said to commit the offence of criminal misconduct:- (a)...
(b)...
(c) if he dishonestly or fraudulently mis appropriates 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 so to do, or (d)...
(e)...
10. Thus, on joint reading of aforesaid provisions, it is clear that if a public servant dishonestly misappropriates property entrusted to him and convert it to his own use, he can be punished for the said offences. Under the said circumstance, the same act or omission i.e. dishonest misappropriation of property by a public servant constitute offence both under Section 409 P .P.C. as well as under Section 5(1)(c) of Prevention of Corruption Act, 1947.
11. From perusal of entire evidence available on record, I find that there is absolutely no evidence to show that the appellant-Amjad Pervez was entrusted with the case property. There is no evidence to show that the appellant- Amjad Pervez misappropriated case property. For convicting an accused under Section 409 of the P.P.C. and under Section 5(1) of the Prevention of Corruption Act, it is necessary for the prosecution to prove that the accused dishonestly misappropriated property entrusted to him/them and converted it to his/their own use. Thus, I am proceeding to consider prosecution evidence with a view to ascertain whether appellant-Amjad Pervez was entrusted with case property and the same was mis-appropriate by him. Muhammad Munir S.I. (PW-1)-the complainant stated in detail about intercepting of truck No.LWN-4262 and recovery of Railway material and preparing of recovery memos. He (PW-1) did not depose a single word that the appellant-Amjad Pervez along with Sajjad Hussain-Naib accused by way of cheating and dishonestly sold case properties (Railway material) of Malkhana to "Zareen Kabaria" and through Shabbir Hussain-Constable, Muhammad Asif-Head Constable, Muhammad Jamil-Constable and Zafer Iqbal-Constable got loaded in Truck No. LNW -4202. Muhammad Munir S.I.
(PW-1)-the complainant also deposed during cross-examination that he (PW-1) did not check record of the Police Station Workshop Mughalpura. It is deposed by Muhammad Munir S.I. (PW-1)-the complainant during cross- examination that the recovered items were not marked with any identification mark but after taking into possession he (PW-1) marked FIR on it. Mehmood-ul-Hassan 444/C (PW-2) deposed during cross-examination that recovered items were not marked with any identification mark or FIR number . In the similar lines Muhammad Imran 14/HC (PW-3) deposed. Muhammad Akram Foreman Grad-1 (PW-4), who identified "Truss Bar", deposed during cross- examination that, "---The recovered material was scrap material which was lying in the forewal of RPS workshop. I do not know whether the recovered material was in the Mall Khana or not ? There is no any tag regarding the number of case on the recovered material---" Javed Iqbal, Inspector of Works (PW-5) who stated during examination-in -chief that on asking of Amjad Pervez-accused he put his signature on the receiving of the case property of cases bearing No. 12/2008 and 22/2008 and deposed during cross-examination that "---The police did not record my statement in this regard, I only issued identification certificate. At the time of identification by myself, the recovered items were scattered in the courtyard of the police station, which was surrounded by a wall. There was no chit fixed over the case property containing number of instant FIR i.e., 85/10---The recovered items do not contain any stamp of Railway---" Sohail Zia Way Inspector (PW-6) deposed during cross-examination that "---The recovered items were lying in the ground. I got recorded my statement before the police u/s 161 Cr.P.C in the instant case and recorded the same as it was told by the SHO to me- - The case property was stolen by the accused person. I do not know from where it was stolen---" This evidence leaves no scope for doubt that the alleged case property identified by the above said persecution witnesses did not bear the identification mark or FIR number. It is also admitted fact that the prosecution has not produced register No. 19 of malkhana, police station Railway Police Workshop Mughalpura, Lahore to prove that the allegedly recovered material was under custody on or before 07-11-2010 of the appellant-Amjad Pervez. Even Javed Iqbal, Inspector of Works (PW-5) had not produced abstract of register No.19 whereupon Javed Iqbal, Inspector of Works (PW-5) got his signature for receiving of case property to substantiate his plea. Under the said circumstance it can safely be held that there is no iota of evidence to establish that allegedly recovered material was under the custody of the appellant-Amjad Pervez.
12. It is relevant to mention that, the statements under Section 161 Cr.P.C of Zafar Iqbal Constable (PW-7) and Muhammad Jamil 277/Constable (PW-8) were recorded by the investigating officer on 16-11-2010 and before recording statements under Section 164 Cr.P.C, both witnesses i.e. PW-7 and PW-8 remained in police station.
Zafar Iqbal Constable (PW 7) deposed during cross-examination that,"It is correct that I got recorded my statement u/s 161 Cr.P.C on 16.11.2010 and statement u/s 164 Cr.P.C on 22.11.2010. I got recorded my statement u/s 164 Cr.P.C. I was taken in the court by Abdul Aziz SI Investigation Officer. At the time of recording my statement before learned Judicial Magistrate u/s 164 Cr.P.C none of the accused were present therein. The occurrence for removing the articles took place at about 5:00 a.m though I did not see the watch. I was not under custody but I was participating in the investigation proceedings. I was along with the accused present in a room. Jameel Constable was also present in the said room---"
Whereas, Muhammad Jamil 277/Constable (PW-8) deposed during cross-examination that,"- --We remained in police station for the purposes of joining investigation from 07.11.2010 to 22.11.2010---It is correct that myself, Asif and Zafar Iqbal accused were taken by Abdul Aziz to the court of learned Magistrate for statement u/s 164 Cr.P.C. At the time of recording my statement u/s 164 before learned Magistrate none of the accused was present at that time---" Apart from the fact that both prosecution witnesses remained in police station from 07.11.2010 to 22.11.2010 they were also suspended by the S.P. concerned. Muhammad Jamil 277/Constable (PW-8) deposed during cross-examination that,"- --It is correct that on 08.11.2010, SP concerned had suspended me along with all the accused. Volunteer we were not being heard as the order for suspension was received and we were sitting in the office. I do not have any knowledge regarding any reput if it is written in this regard. The SP concerned gave opportunity of hearing before our suspension.
I disclosed and narrated the full incident/occurrence happened last night of stealing the railway material from the police station by Amjad Pervez accused along his co-accused present in the court to the SP concerned---" Zafar Iqbal Constable (PW-7) deposed during cross-examination that,"---I do not know whether on the said date of occurrence I was on duty on PS Mughalpura Railway Workshop Lahore---" Abdul Aziz Inspector (PW-12) deposed during cross-examination that,"---The statements of the witnesses were recorded nine days after the occurrence---" The inordinate delay of nine days in recording their statements under Section 161 Cr.P.C and delay of fifteen days in recording their statements under Section 164 Cr.P.C create doubt as no satisfactory explanation of this delay was coming forth. Abdul Aziz Inspector (PW-12)-investigating officer deposed during cross-examination that,"---It is correct that accused were not present before the magistrate at the time of recording statements u/s 164 Cr.P.C. It is correct that in the diary No.08 dated 14.11.2010 I had suspected the involvement of the police officials accused due to the absence of concrete evidence against them---"
Similarly, Muhammad Arshad, S.I (PW-11)-investigating officer deposed during cross-examination that,"---It is correct that in the opinion of the Investigation Officer the accused official were involved on the basis of suspicion---" Thus, considering in the light of the surrounding circumstances, the delay in recording the statements of the material witnesses, casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story.
13. Thus, in view of aforesaid circumstances, offence under Section 409 of the P.P.C. is not made out. From perusal of entire evidence adduced by prosecution, I find that there is nothing to show that appellant-Amjad Parvez has misappropriated any property under his domain, thus, offence under Section 409 P.P.C. as well as under Section 5(1) of the Prevention of Corruption Act, 1947 is not made out.
14. In the instant case, as noticed above, the learned court below prosecuted, convicted and sentenced the appellants under Section 409 of the P.P.C. as well as under Section 5(1) of the Prevention of Corruption Act 1947.
Thus, by doing so learned court below , in my view , has committed serious illegality .
15. As far as Muhammad Zareen and Muhammad Asif, appellants are concerned. The appellant-Muhammad Zareen was prosecuted, convicted and sentenced under Section 409 P.P.C. read with Section 109 P.P.C. and the appellant- Muhammad Asif was prosecuted, convicted and sentenced under Section 119 P.P.C. read with Section 5(2) of the Prevention of Corruption Act 1947. From perusal of entire evidence available on record, I find that there is absolutely no evidence to show that the appellant-Muhammad Zareen abetted the offence. Section 107 PPC defines abetment of a thing. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (3) intentionally aids, by any act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107 P.P.C. Whereas Section 109 P.P.C. provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. After perusing evidence on record, I find that there is no evidence to show that the appellant-Muhammad Zareen had abetted the offence. There is no evidence to show that the appellant-Muhammad Zareen met with any other accused and plan for misappropri ation of case property . Under the said circumstance, conviction of the appellant-Muhammad Zareen for the offences with the aid of Section 409 P.P.C. read with Section 109 P.P.C. cannot be sustained.
16. I have gone through entire evidence on the record and I find that there is absolutely no material to indicate prima facie that the appellant-Muhammad Asif had concealed the design to commi t the offence of misappropriation of case property . The offences under Section 119 P.P.C. is not made out, as there is no material to indicate prima facie that the appellant-Muhammad Asif had concealed the design to commit the offence by the appellant Amjad Parvez. Under the said circumstances, conviction of the appellant-Muhammad Asif for offence under Section 119 P.P.C. with the aid of Section 5(2) of the Prevention of Corruption Act 1947 cannot be sustained.
17. I, have also noted that the alleged recovered material i.e. nine pieces of railway line, one piece of iron garder, one angel iron, one tie bar, one iron sheet, one trus bar, one anchor plate, four electric poles, one kammaira, one iron sheet, two iron jarhals were found lying in the truck bearing registration No.LWN-4202 but the alleged recovered material i.e. nine pieces of railway line, one piece of iron garder, one angel iron, one tie bar, one iron sheet, one trus bar, one anchor plate, four electric poles, one kammaira, one iron sheet, two iron jarhals and truck bearing registration No.LWN-4202 in question were not produced before the court for its inspection. The most important piece of evidence was the alleged recovered material i.e. nine pieces of railway line, one piece of iron garder, one angel iron, one tie bar, one iron sheet, one trus bar, one anchor plate, four electric poles, one kammaira, one iron sheet, two iron jarhals and truck bearing registration No.LWN-4202 but the same were not produced in the court, which extract nexus with the edifice of the prosecution story . Learned Law Officer has frankly conceded that the case properties were not produced in the court. The prosecution failed to establish by cogent evidence that alleged recovered material i.e. nine pieces of railway line, one piece of iron garder , one angel iron, one tie bar, one iron sheet, one trus bar, one anchor plate, four electric poles, one kammaira, one iron sheet, two iron jarhals and truck bearing registration No.LWN-4202 were seized by the complainant. Practically the prosecution took upon themselves the risk of losing the case.
18. In view of the discussions made above, I find that the impugned judgment dated 12.10.2017 qua conviction and sentence suf fers from serious illegality , therefore, cannot be sustained in these appeals.
19. In the result, appeal Nos.107815, 91254 and 91262 of 2017 are allowed and as a result whereof Impugned judgment dated 12.10.2017 regarding conviction and sentence is set aside . The appellants are acquitted from the charges leveled against them. The appellants-Muhammad Asif and Muhammad Zareen are on bail. Their surety bonds shall stand discharged whereas the appellant-Amjad Pervaiz is in custody . He (the appellant-Amjad Pervaiz), is directed to be released forthwith, if not required in any criminal case.