1. SHAFIUR RAHMAN, J.--Leave to appeal was granted to Mir Muhammad Bashir, formerly a Station Master posted at Chhab Railway Station, District Attock, to examine whether his conviction under section 409, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, has been correctly recorded and maintained by the judgment of the Lahore High Court, dated the 11th of March, 1984.
2. The appellant during the year 1974 was posted as Station Master, Railway Station Chhab in District Attock. Ghulam Sarwar Butt, Inspector, Coaching (P.W. 1) in routine conducted an inspection of the Railway Station and by his report, dated 5-10-1974 Exh. P.W. 1/1 mentioned as follows: -- "In the course of regular inspection of Chhab Station, it was noticed that the following Inward Invoices were not accounted for in the Delivery Book by S.M. Chhab:-- MFY to Chhab Inv. Nos. 101, 102, 103, 104, 105, 106, 107, 108 and 109.
3. LYP to CBB Inv. Nos. 145, 147 and 148.
4. PIK to CBB Inv. Nos. 88, 89 and 90.
5. Further examination of the record revealed that generally full wagon load was booked from these stations to Chhab. I am sure that heavy amounts on account of freight charges in connection with these Invoices had been misappropriated by the S. M. Chhab.
6. MFY to chhab Inv. Nos. 102,103,104,105,107,108,and 109 LYP to CBB Inv 145, 147, and 148.
7. PIK to CBB Inv. Nos. 88 and 90 Further examination of the record revealed that generally full wagon load was booked from these stations to chhab. I am sure that heavy amounts on account of freight chargesin connection with these Invoices had been misappropriated by the S.M Chhab.
8. As the forwarding stations do not fall within my beat, it is suggested that the case may be given to an I . C . G . (O . S. D . ) for obtaining booking and despatch particulars from the forwarding stations and then to proceed further in this case."
9. Mr. Muhammad Ramzan Qureshi (P.W. 3) conducted an inquiry and first submitted an interim report Exh. P.W. 3/17 and then followed it up with a final report Exh. P.W. 3/10 in the following words:-- "After the fraud had been detected in October, 1974, S.M. Chhab made entries of these wagons in Wagon Exchange/Wagon Transfer Register, Goods Unloading Book and in Goods Delivery Book on 4-11-1974 and remitted the freight charges embezzled by him on the same date.
10. Mr. Muhammad Bashir Station Master was posted at Chhab Station in 4/71 and as such the records of this station had to be checked with the help of Booking Stations records from 4/71. Unfortunately the I/W Goods Delivery Books of this station prior to 6/72 were not available and thus the records have been checked from 1-6-1972 to 30-11-1974. This check has revealed that the Station Master had started his fraudulent activities in 4/74. Three B.F.R. Wagons No. 44231, 44244 and 40373 booked under Invoice No. 5RR No. 050952, dated 27-3-1974 Ex. Kaurangi to Chhab involving to pay freight charges amounting to Rs.17,122.20 were despatched from Kundian to Chhab on 22-4-1974 at 14-45 hours by R-55 Up Train. Obviously the S.M. Had delivered the contents of these wagons on 23- 4-1974 and embezzled the freight charges realised from Manager O.G.D.C. When the fraud had been detected, he made accountal of these wagons on 6-11-1974 and remitted Rs.17,122.20 embezzled by him.
11. As explained in the foregoing paragraphs Mr. M. Bashir S. M. Chhab is responsible for misappropriation of Rs.49,370.60 (Rs.32,248.40 plus Rs.17,122.20) since paid by him. He may be taken up suitably for this misappropriation of Government money".
12. Mr. Muhammad Hamid Khan, Divisional Superintendent, Pakistan Railways, reported the matter to the Director, Federal Investigation Agency in March, 1976 explaining the case against the appellant as hereunder: -- "It is reported that Invoices Nos. 88 to 90 ex-Pai Khel Invoices Nos. 147 and 148 ex-Lyallpur and Invoices No. 101 to 108 ex-Mansfield Import Yard to Chhab were not accounted for and freight charges amounting to Rs.32,248.40 collected on different dates from 25-7-1974 to 26-8-1974 were misappropriated by Mr. Bashir Ahmed Station Master Chhab.
13. The modus operandi of the case is that the said wagons arrived at Chhab have not been entered in the Station Record by Mr. Bashir Ahmad Station Master Chhab with a clear intention to misappropriate the amount involved. Later on, on 14-11-1974 after detection of the fraud, he made bogus entries regarding the arrival of these wagons in the Station Record and remitted the amount to C. C. T. Lahore under proper C. R. Note No.791688, dated 6-11-1974".
14. The case was investigated by the Federal Investigation Agency and the appellant was put on trial.
15. The appellant admitted having received between the period 27-7-1974 to 26-8-1974 a sum of Rs.30,415.20 vide receipts Exh. P.W.3/ 1-8 but as regards having delayed its deposit and its misappropriation, he denied it explaining his conduct in the following words:---- "It was rainy season and the wagon contained imported Brayte, Powder in paper bags and there was no goods shed or watchman provided at Chhab to protect the consignment. The railway receipts had not reached from Karachi and it was not possible to ascertain whether the goods were not freight paid or freight due. I collected the money and issued a proper receipt for it".
16. He produced certain documents in defence and also examined a witness Muhammad Amin, Assistant Station Master.
17. The trial Court examined the plea of the accused and the evidence produced by the prosecution and recorded the following factual findings: ---- "The accused had not even made the entries regarding the arrival of these wagons in the Wagon Exchange/Wagon Transfer Register, Unloading Book and Goods Inward Delivery Book on the relevant dates and had shown their arrival on 5-9-1974. He remitted the freight to the head office on 5-11-1974. His explanation that the wagons in question did not arrive at Railway Station Chhab during his duty hours and so he had not shown their arrival till 5-9-1974 does not appeal to reason as it was he who had issued receipts to Zaka Ullah P.W. Regarding the freight in question at the time of delivery of the goods to him. Therefore, it cannot be said that the arrival of the wagons on the relevant dates were not in the knowledge of the accused. Moreover, he had shown the number of Railway receipts on the receipt issued in favour of Oil and Gas Development Corporation at Railway Station Chhab."
18. The appellant was on this finding convicted under section 409, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, and sentenced by the trial Court till the rising of the Court on each count. He was also sentenced to pay a fine of Rs.5,000 on one of the counts and to undergo six months' R.I. In default of it. He was allowed a month's time to pay the fine. His appeal against conviction and sentence was dismissed except for the fact that the fine was reduced from rupees five thousand to one thousand.
19. Mr. Mujeeb-ur-Rehman, Advocate, the learned counsel for the appellant, contended that according to the procedural rules applicable to the transactions, the appellant had to wait for source document for completing the Station Transaction Journal alongwith which the freight charges recovered had to be transmitted. In the working of the Railways, the source documents were sometimes not received or were delayed thereby delaying the completion of the Station Transaction Journal and the remittances. The temporary detention of the freight realized in such a circumstance cannot, on any interpretation of the law, be taken to be either misappropriation of the amount or a criminal breach of trust. It was a routine detention of the amount without any criminal liability attaching to it as the rules fully justified it. The learned counsel has relied on the decisions in Abdul Latif v. Crown PLD 1952 Lah. 648, Munusami Nainar v. Emperor AIR 1930 Mad.
20. 507, and Lala Raoji v. Emperor AIR 1928 Bom. 205 in support of his claim. According to the learned counsel, the appellant had rendered a long and meritorious service and had, in fact, before formal proceedings were initiated against him, deposited the amount with all the documents required to be completed, therefore, and was, therefore, neither in default nor in dereliction of duty when the criminal case was lodged against him.
21. The learned Assistant Advocate-General has, on the other hand, drawn our attention to the series of acts indulged into by the appellant, all directed towards maintaining the secrecy of the freight recovered and the deliveries made. The appellant took remedial steps only when the matter came to the notice of the Railway Establishment on the report of Ghulam Sarwar, Inspector, Coaching. It was not, in the circumstances, according to the learned Assistant Advocate-General, a bona fide retention of funds but manifestly a dishonest act amounting to criminal breach of trust. In support of his contention, the learned Assistant Advocate-General has relied on the decisions in Additional A.-G. West Pakistan v. Tahir Beg PLD 1965 Kar. 155 and Sutlej Cotton Mills, Okara v. S.M. Ilahee PLD 1960 (W.P.) Lah. 1060.
22. The freights realised by the appellant were between the period from 27-7-1974 to 26-8-1974 against printed receipts serially numbered by a machine and this, according to the learned counsel for the appellant, was a sure indication that the appellant had no criminal intention. The appellant admitted having received the amounts against the freight receipts during this period. It is true that unless dishonesty in intention is proved or reasonably inferred no offence of criminal breach of trust is made out and this is borne out by the decisions in Abdul Latif and Lala Raoji's cases referred to by the learned counsel for the appellant. For proving the required criminal intent, the trial Court has referred to the series of omissions deliberately committed by the appellant. The first of these was that though the wagon carrying the goods had arrived in July-August, 1974 and had been emptied and the contents thereof released to the consignees, the arrival of the wagon and the consignment was not shown in the appropriate registers till 4-11-1974 long after event and its detection. This has been made clear by Muhammad Ramzan Qureshi (P.W. 3). The Station Transaction Journal is according to the rules prepared on daily basis (vide 8.6.1 of the Accounting Procedure Manual) The Station Master is required to ensure that all source documents have been properly recorded and attached to the Station Transaction Journal. Apart from the freight receipts which the appellant did issue, he was required to make the necessary entries in the Wagon Transfer Register and Wagon Exchange Register and the Delivery Book for unloading, all of which were exhibited at the trial and showed conspicuously the entries relating to these freight receipts missing from those registers. These were made up on 4-11-1974. All this clearly indicates a scheme and a planning in doing things and in appropriating the amount realised as freight. Ghulam Sarwar (P.W. 1) stated "Whenever a Railway wagon is removed from the Goods Train the guard incharge of the goods train obtains signatures on a printed forms from the Station Master concerned". He denied the suggestion put forward by the appellant in the following words:-- "It is absolutely incorrect to suggest that the accused had made necessary correction in the Railway documents with my connivance. It is also incorrect to suggest that the accused told me that since he had not received RRS, he had failed to make entries in STJ Register".
23. A series of such omissions led the trial Court to believe and rightly so that it was an intentional omission on the part of the appellant so as not to disclose, independent of the freight receipts issued to the consignees, the arrival and disposal of the goods received at the Railway Station with a view not to account for the money thus received.
24. Having considered all aspects of the arguments addressed by the learned counsel for the appellant, we find that the conviction of the appellant under section 409, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, was rightly recorded and his appeal dismissed. There is no merit and this appeal too is dismissed.