' This criminal appeal arises from the judgment of the learned Special Judge, Anti-Corruption, Bahawalpur, whereby he on 1-3-1978 convicted Abdul Kalim appellant under section 409, P.P.C. And sentenced him to R.I. For one year and a fine of Rs,500 in default thereof to further R.I. For six months.
2. The appellant was working as a Guard Incharge Train No, 994 on 10/11-2-1971. The charge against him is that on or about 11-2-1971 when he was on duty as Guard with Train No,994 (Goods Train), having abused his official position, misappropriated four bags of rice of Zamir Hussain Hawaldar out of 200 bags of rice which were loaded in Wagon No,64133 somewhere in between Railway Station Pakpattan and Railway Station Sama Satta, and thereby committed offence punishable under section 409, P.P.C. The appellant denied the charge and claimed to be tried.
3. To prove its case, the prosecution examined 28 witnesses in all, Mahfooz Ali P.W.2, Nazir Ahmad P.W.3 and Muhammad Zafar appeared to prove that seal of wagon was found broken at Railway Station Sama Satta. Mahfooz Ali P.W.2, Nazir Ahmad P.W.3, Ali Nawaz P.W.7, Pir Bakhsh P.W.8, Ghulam Farid P.W.13, Muhammad Din P.W.14 Muhammad Sabir Hussain P.W.15, Muhammad Yasin P.W.16, Abdul Aziz P.W.20, Ghulab Khan P.W.21 and Yousuf Ali Khan P.W.10 are the witnesses of sealing of the wagon arid to the effect that the seal was found intact when it was rechecked. Riaz Hussain P.W.5 and Muhammad Rafiq P.W.11 stated that in their presence bags were counted by Maqbool Hussain P.W.6 at Railway Station Sama Satta and it was found that out of 200 bags of rice four bags were missing. Rab Nawaz P.W.12 and Rehmat Khan Watch and Wardman P.W.17 deposed that the seal of the wagon were intact when the train reached Pakpattan Railway Station. Abdul Latif Watchman Lodhran P.W.18 stated that when the train reached Lodhran, the seals were very much intact. Syed Sardar Hussain P.W.23 who is Guard and who brought train from Lahore to Pakpattan, stated that at Railway Station Baseerpur, when he took the charge, the bags were not counted in his presence.
The rest of the evidence is more or less of formal nature.
4. The accused when examined under section 342, Cr.P.C. Denied all the incriminating circumstances and raised plea of false implication. In defence he produced two witnesses.
5. The learned counsel for the appellant contends that the prosecution has failed to prove entrustment and misappropriation as well. Conversely the learned A.A.-G. 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 the prosecution has not produced Station Master Baseerpur or Zamir Hussain Shah Hawaldar, the consignor of the goods to state that in fact 200 bags of rice were loaded at Railway Station Baseerpur. I further find, that there is no evidence of conscious entrustment of 200 bags of rice to the appellant. The only evidence adduced by the prosecution is to the effect that when the train reached Railway Station Pakpattan, the seals were intact. In this view of the matter I am of the opinion that no doubt a case of entrustment of 200 bags to the Pakistan Railway is made out but as far as the appellant is concerned, there is no evidence on record to show that the 200 bags of rice were entrusted to him. So much so the bags were not even counted at Railway Station, Pakpattan. It was the duty of the prosecution to prove entrustment of the bags to the appellant. In the circumstances of the case, the possibility that four bags were not loaded at Railway Station Baseerpur or the same were removed somewhere between Baseerpur and Pakpattan cannot be excluded. To my mind, the prosecution has failed to prove entrustment which is one of the most important ingredients of an offence of criminal misappropriation.
' For what has been stated above, giving him the benefit of doubt,the appellant is acquitted of the charge. He being on bail stands discharged of the bail bond.
Acquittal ordered.