Akram appellant was tried by a learned Special Judge, Anti-Corruption, of Gujranwala at Lahore for the alleged commission of an offence punishable under section 409, P.P.C.
2. He was found guilty of the said charge through a judgment, dated 22-6-1989 of the said learned trial Court and was sentenced to six months' R.I. And to a fine of Rs.2,000 or sufferance of two months' R.I. In default of payment of the said fine.
3. The criminal proceedings in question started with an application (Exh. P.A.) made by one Ch. Ghaus Muhammad on 31-12=1983 stating that a revolver bearing No. 34441/A belonging to his late father had been seized by the police in pursuance of F.I.R. No.86/77 of Police Station Miana Gondal; that the same had been entrusted to Muhammad Akram appellant who was the Muharrir of Malkhana at Mandi Bahauddin and which had been allegedly sent on to the District Naazer of Gujrat but on checking the record it had transpired that this weapon had never been sent to the District Naazer and the entry to that effect in the relevant register was fake.
4. On the basis of this application a formal F.I.R. (Exh.PA./1) bearing No.19 was recorded at Police Station Mandi Bahauddin on 17-1-1984 for the alleged commission of an offence punishable under section 409, P.P.C. And after investigation, Akram appellant was challaned to face trial on the said charge.
5. Nazar Hussain S.I. (P.W.1) and Muhammad Ijayab Constable (P.W.3) appeared at the trial and testified about the seizure of the weapon in question and its entrustment to Akram appellant.
6. The entrustment of the weapon in question to Akram appellant was, however, not challenged and these two P.Ws. Were not cross-examined on that point.
7. Even in his statement recorded under sections 342 and 340, Cr.P.C., the appellant did not controvert the entrustment of the weapon in question but claimed that after his arrest in the year 1981, in pursuance of F.I.R. No.152/81, he was dismissed from service and he was not allowed to hand over the articles lying in the Malkhana in his charge in accordance with the rules and that it was in his absence that the locks of the said Malkhana had been broken open and consequently he did not know as to what had happened to the revolver in question.
8. From the record it appears that no evidence was produced by the prosecution to demonstrate that on breaking open the locks of the Malkhana, the weapon in question was not found there. The inventory made in that connection was never brought on record.
9. The prosecution did not even care to examine the Investigating Officer at the trial and the appellant was thus obviously handicapped of the benefit of questioning the Investigating Officer about his findings regarding the issue in question or about the other material aspects of the prosecution case.
10. During his examination under section 342, Cr.P.C. He was questioned about the entrustment of the revolver in question only which entrustment had been admitted by the appellant in his statement but no question was ever put to him regarding the misappropriation of the revolver in question on his part.
11. Non-confrontation of the appellant with this material question during his examination under section 342, Cr.P.C. Is another factor, which renders his conviction illegal on the charge of misappropriation of the item in question.
12. As has already been noticed above, no evidence was produced at the trial to prove that the weapon in question had not been found in the Malkhana when the same was broken open and had been taken over after the dismissal of the appellant.
13. In view of these facts, the conviction recorded against the appellant under section 409, P.P.C.
Becomes untenable.
14. Consequently, the conviction and the sentences recorded against the appellant through the impugned judgment, dated 22-6-1989 are set aside and he is acquitted of the charge under section 409, P.P.C.
15. The appellant is on bail and is set at liberty after being discharged from his bail/surety bonds.
16. Criminal Appeal No.521 of 1989 is accepted and disposed of in the above terms.