1. ' The appellant was charged and tried under section 409, P.P.C. Read with section 5(2) of Act II of 1947, before the learned Special Judge, (Central) Karachi, who has convicted him and sentenced him under section 409, P.P.C. To pay fine of Rs,6,000 or in default to suffer simple imprisonment for six months. He was further convicted under section 5(2) of Act H of 1947; and sentenced to pay fine of Rs,6,000 or in default to suffer further simple imprisonment for six months vide judgment, dated 3,0-9-1987.
2. The brief facts of the present case are that the appellant was working as Guard in Railway Department. That on 26th January, 1979, he acted as Guard on Shaheen Express from Kotri Railway Station to Rohri Railway Station, and in that capacity was entrusted with a colour television set. The T.V. Set was booked on 25-1-1978 under parcel way Bill No, 432559 consisting of five packages from Karachi City Railway Station for Sialkot. This was loaded in Brake Van No, 6317 in its third compartment. Besides the above consignment 14 other items were also loaded in this compartment, which were duly sealed. One Ghulam Haider Guard took charge of 9-Up Shaheen Express from Karachi City Railway Station, which included the luggage van while the present appellant took charge from Ghulam Haider at Kotri. When the train reached Rohri Railway Station it was found that off-side seal of the third compartment of luggage Brake Van No, 6317 was not intact. The accused then made an entry in seal checking register to the effect that the seal of third compartment of luggage Brake Van No, 6317 was found suspected hence it was sealed with temporary seal for destination checking. On 27-1-1979, when the train reached at Sialkot Railway Station, the van was opened in presence of Abdul Khalique Station Master, Shahid Nazeer, Clerk, and Muhammad Ilyas Railway Police Constable and it was found that one package containing colour TV valued at Rs,11,400 which belonged to one Nishat Ahmed was missing. The matter was, therefore, reported to Railway Police Wazirabad, and a case under section 379 was registered. The case was subsequently transferred to Railway Police, Sukkur, for want of jurisdiction where a fresh F.I.R. Was registered. After necessary investigation, the accused was sent up before the Court.
3. ' A formal charge was framed against the accused, to which he pleaded not guilty.
4. ' At the trial prosecution examined Shahid Nazeer, Junior Commercial Assistant parcel at Sialkot P.W.1, he had sent a complaint to Railway Police Sialkot P.W.2, Muhammad Shaukat, Parcel Clerk, City Railway Station, Karachi P.W.3 he has produced copy of parcel way bill as Exh.8, copy of forwarding note given by consigner as Exh.9 Muhammad Akbar, Parcel Clerk, City Railway Station, Karachi P.W.4 Nazeer Ahmed, Senior Commercial Assistant Karachi City Railway Station P.W.8. He has produced the loading summary in which description of packages is mentioned and which was prepared by Muhammad Akbar, Loading Clerk as Exh.11, he has also produced a telegram received from Sialkot Railway Station that one TV was missing as Exh.14, Zakir Hussain, Chief Train Clerk Rohri P.W.6, he has produced the note put by the accused in the train registered as Exh.15 Gul Muhammad S.I.P. Railway Police Station Wazirabad, P.W.7, he has produced the copy of report as Exh.17, which was recorded by him and letter forwarded to Railway Police Station Sukkur for further investigation. Akbar Ali, S.H.O. Railway Police Station, Sukkur P.W.8 he had registered the F.I.R. On receipt of papers from Wazirabad through S.P. Railway, Sukkur, as Exh.20. Zahoor Ahmed (the then Head Constable Crime Branch Pakistan Railway at Lahore). He had recorded the statement of some of the witnesses during the investigation. Ghulam Haider, Incharge Guard of 8-Up Shaheen Express from Karachi to Kotri, P.W.10, Imam Hussain the then S.I.P. Incharge Crime Branch, Railway Police Karachi, he had carried on report of the investigation.
5. ' After the close of the prosecution case, the statement of appellant was recorded under section 342, Cr.P.C. In which he denied the allegations. He also examined himself on oath as envisaged under section 340(2), Cr.P.C. And stated that on 26-1-1978 he was Guard of Shaheen Express from Kotri to Rohri but he had not misappropriated any property entrusted to him in the luggage van in the said compartment. He was innocent and that P.Ws. Had deposed against him at the instance of superior officers. In cross-examination, he has stated that seals of the brake van of the said train were intact, when he took over the charge at Kotri. He had also received vehicle summary from the Guard which only contained the number of Bogies in the said train but the summary did not contain the details of the luggage. However, the summary containing details of the luggage was placed inside the luggage van which is sealed. He could not say whether colour TV alleged to have been missing was actually misplaced or stolen while he was on duty from Kotri to Rohri. He has admitted that seals of the luggage van at Rohri were found broken.
6. ' That the learned trial Judge while relying upon the above evidence produced by the prosecution and the statement of the appellant on oath, was pleased to convict him as described above. The present appeal is directed against the said judgment of conviction.
7. ' I have heard Mr. Mian Mushtaq Ahmed, learned counsel appearing for the appellant, Mr. Jalaluddin, learned counsel appearing for the State, and have gone through the R&P of the case.
8. ' It was contended by Mian Mushtaq Ahmed, learned counsel appearing for the appellant that the entrustment was not disputed/denied by the appellant but there was no evidence to prove that the appellant had himself committed breach of trust of colour TV in question or he had allowed somebody to take away the same from the wagon.
9. ' Mr. Jalauddin Baloch, learned counsel appearing for the State had contended that there was no evidence, direct or otherwise to show that the appellant had committed breach of trust or that he had allowed someone else to take away the colour TV and therefore, he did not support the judgment of conviction.
10. I have considered the contentions of the learned counsel. As far as allegation regarding entrustment was concerned, it has been proved through Muhammad Shaukat, Parcel Clerk, City Railway Station, Karachi P.W.3, who has also produced Parcel Way Bill No, 43559 for Sialkot containing five packages including colour TV Exh.8, Muhammad Akhar, Parcel Clerk, City Railway Station, Karachi P.W.4, who has also produced summary of Loading Book Exh.11. He had got the package including colour TV loaded, in the train, Nazeer Ahmed, P.W.5, under whose supervision TV was lodged in the Van and Mr. Ghulam Haider, Guard, who had gone with the train from Karachi to Kotri P.W.10. Even this position has not been challenged by the learned counsel for the appellant.
11. ' In view of the above position, it was to be seen whether the appellant misappropriated the alleged colour TV himself or got it removed through somebody else. Criminal breach of trust is defined under section 405, P.P.C. Which reads as under:-- "405. Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses 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 wilfully suffers any other person so to do, commits, 'criminal breach of trust'."
12. ' In the case of Shakir Hussain v. The State PLD 1956 SC (Pak.) page 417, it was observed by their Lordships of the Supreme Court that:-- "To establish a charge of criminal breach of trust, the prosecution must prove not only entrustment of or dominion over property but also that the accused either dishonestly misappropriated, converted, used or disposed of that property himself or he wilfully suffered some other person to do so."
13. ' In the present case the evidence of Shahid Nazeer, Junior Commercial Assistant Parcel, Sialkot P.W.1, Abdul Haq, A.S.M. Sialkot P.W.2 shows that when the train reached Sialkot a Colour TV was missing. As far as evidence of Zakir Ali, Chief Train Clerk, Rohri P.W.6, was concerned, it shows that the appellant was incharge of the train in question, and when the train reached at Rohri the appellant went to him and gave note in train register that the seal of the brake van was off and that thereafter temporary seal was put. The entry in the train register has been produced by him as Exh.15. The remaining witness namely Zahoor Ahmed P.W.9 was Head Constable C.I.A. Railway Police, Lahore, and had partly investigated the case, while Akbar Ali P.W.8 was S.H.O. At Railway Police Station, Sukkur, at the relevant time, and had registered F.1.R. On receipt of papers from Wazirabad Police Station. He has produced the F.I.R. As Exh.20. Ghulam Hussain, P.W.11 was Sub- Inspector, Incharge, Karachi Railway Police on 10-5-1980, and on receipt of paper through H.C.
14. Zahoor Ahmed had partly investigated the case, and thereafter sent papers to Sukkur Police Railway Station. From the above evidence produced by the prosecution it is clear that there is no direct evidence to prove that the appellant himself had removed the colour TV in question or had allowed sombody else to do the same. Apart from this, there is an admission made by Guard Ghulam Haider P.W.10, according to which it was not possible for the Incharge Guard to check entire train on every stop. He has further admitted in cross-examination that during those days there was one 'deed stop' between Khairpur Railway Station and Begamanjee Railway Station.
15. There were also different incidents of theft from other trains subsequent to this case. On account of those incidents of theft the Association of Guards had demanded from Railway Administration to attach the guard van next to the luggage van and this demand was subsequently accepted.
16. ' In the case of Syed Mustafa Shah v. The State 1968 P Cr. L J 358, it was observed that:- "Mere disappearance of the property would not thus be sufficient to establish misappropriation unless it is also proved by the prosecution that the accused is responsible for doing himself or wilfully suffers some other persons to do so."
17. ' It was further observed that:-- "It may be a fit case for dealing departmentally with the appellant for obvious negligence but in view of PLD 1962 SC page 489, he cannot be found guilty of the offence with which he was charged. The mere existence of an adverse presumption cannot be equated with the establishment of the guilt and frank and consistent attitude of the appellant throughout renders the case against him doubtful."
18. In view of the above discussion, it is clear that there was no evidence to prove that the accused had misappropriated colour TV in quest ion or he allowed someone else to take away the same. It may be a case of negligence but that will not be enough to convict the appellant for criminal offence. Even otherwise looking to the circumstances of the case it was humanly impossible for the appellant to keep eye over articles lying in a wagon from his guard van, therefore, while extending benefit of doubt to the appellant, I allow this appeal, set aside conviction and sentence of the appellant he is acquitted of the charge. He is on bail and his bail bond stands, discharged.
19. However, Railway Department will be at liberty to take any departmental action against the appellant if so advised.
20. ' I had decided the above appeal on 20-10-1988 by a short order and these are the reasons for the same.