' Syed Kazim Raza son of Habib Hussain, clerk of Deputy Commissioner's office, Vehari, has been tried and convicted by Special Judge, Anti-Corruption, Multan under section 409, P.P.C. Who sentenced him till rising of the Court, vide judgment, dated 30-10-1980. Feeling aggrieved the convict has filed this appeal.
2. Briefly stated facts are that the appellant was posted as Ehlmad in the Court of Malik Imdad Ali, Extra-Assistant Commissioner, Multan P.W .8 in the year 1974-75 and was in-charge of record of the cases entrusted to the Court of said Magistrate for decision. Some 20 cases under West Pakistan Pure Food Ordinance against Muhammad Ramzan son of Barkat Ali Ansari were entrusted to the said Court for trial. Out of them files of 5 cases were found missing in August, 1974. Malik Imdad Ali P.W.1 conducted an inquiry under the orders of Deputy Commissioner, Multan and sent a letter No,177/MIC, dated 26-7-1975 Exh.P.B. To the Station House Officer, Police Station Old Kotwali, ,Multan whereupon F.I.R. Exh.P.B/1 of instant case was registered. After due investigation the police challaned the appellant.
3. The prosecution in support of its case examined 4 witnesses, namely, Fazal Hussain Qureshi, Reader to Ch. Nazir Ahmad M.I.C. P.W.1 who stated that he knew nothing about the case against the appellant. Ahmed Yar Khan D.S.P. P.W.2 stated that he partly investigated the case. Malik Imdad Ali.
E.A.C. P.W.3, the star witness in the case, stated that the appellant worked with him as Ehlmad. He stated that out of 20 challans under W.P. Pure Food Ordinance, against Muhammad Ramzan, file of 5 cases were missing and he, therefore, conducted inquiry and got a case registered with Police Station, Old I otwali, Multan, without naming anyone as accused. In cross-examination, admitted that the appellant produced 15 connected cases against uhammad Ramzan and reported that 5 cases were missing. He also admitted that files of the missing cases have since been reconstituted nd sent to the concerned Court for disposal. According to the witness, uring inquiry, he found that the appellant was negligent in performing I is duty but "was not guilty of misappropriation of the judicial record". .S.I. Syed Rizwan Hussain Shah P.W.4 stated that he had drawn up F.I.R. Exh.P.B.1 upon the letter Exh.P.B. Received from the magistrate. In his statement under section 342, Cr.P.C. The appellant tated that case against him had been concocted due to misunderstanding. Produced no evidence in defence.
4. Learned trial Court on the aforesaid evidence observed that nee the appellant was custodian of the missing judicial files of the out of Malik Imdad Ali, therefore, merely because he had reported at these files were missing would not absolve him of the custody of e files. By saying so he meant that by making report about the loss files the appellant was not absolved of the responsibility of keeping e files in his safe custody. He further observed that since Malik dad Ali, Magistrate, had got the case registered against the appellant, ere fore, it was immaterial if during the inquiry he held him guilty of gligence and not of misappropriation. Learned trial Court thus evicted and sentenced the appellant, as indicated above, hence this
5. At the outset, I may say that the approach of learned Special Ige in this case does not appear to be correct. Learned trial Judge missed to note that loss of property through negligence is not reared by section 409, P.P.C. Where under the appellant has been irged and convicted. Criminal breach of trust is defined in section P.P.C. Which contemplates dishonest misappropriation or.
Conversion A his own use of the property entrusted to the accused or its disposal violation of direction of law or the prescribed mode of discharge of :h trust. This implies men's rea (guilty intention) on the part of the used in commission of offence under section 409, P.P.C. But ligence negatives the intention much less dishonest intention. Again, rd "dishonestly" as defined in section 24, P.P.C. Means to do an act with intention of causing wrongful gain to one and wrongful loss to the other. There is nothing on record to show that the appellant had intentionally caused disappearance of 5 files of the criminal cases an thereby derived any wrongful gain for himself. The only incriminating statement on record is that of Malik Imdad Ali, Magistrate P.W.3 who stated that the appellant was "negligent", i,e, his negligence resulted in the loss of files. This, as said earlier, is not covered by section 409, P.P.C. Consequently, conviction of the appellant under section 409, P.P.C. Recorded by Special Judge Anti-Corruption, Multan, cannot therefore, be sustained. In the result, this appeal is accepted, th conviction and sentence of the appellant is set aside and he is acquitted