Muhammad Razzaq, son of Muhammad Hanif was sent up by Police Station Shakargarh, District Sialkot, for trial for an offence under section 409, P.P.C. Special Judge, Anti-Corruption, Lahore, vide his judgment , dated 1-11-1986 convicted and sentenced him to ten months' R.I. With a fine of Rs.50,000, or in default ten months' R.I. The convict has appealed. This judgment will dispose of the same.
2. The prosecution story in brief, as given in F.I.R. Ekh.P.W.6/1 lodged by Nasir Jalal, S.D.O., Public Health Engineering Department, Shakargarh, was to the effect that Muhammad Ram% appellant, was Sub-Engineer, Incharge, Store Public Health Department, Shakargarh in 1981. He absented himself from duty on 17-3-1981. Notices were sent to him to report for duty, which he did not. On the directions of the higher authorities, the store at Shakargarh which was in the charge of Muhammad Razzaq, was got physically checked and it was found that material worth Rs.49,673.60, the list of which was prepared, was short. Complaint Exh.P.W.l/1 was sent by Nasir Jalal. Nabi Bakhsh, A.S.I.
P.W., investigated the case. He raided the house of the appellant and learnt that he had gone abroad. Thereafter, the investigation was taken over by Muhammad Aslam, S.I. P.W. He checked the store with the officials of the department and prepared list Exh.P.W.5/1. Thereafter, he challaned the appellant.
3. The prosecution in support of its case produced seven witnesses in all. P.W.1 Nasir Jalal stated that checking of the store was done in the absence of the appellant, articles worth Rs.49,673.60 were found short. He sent complaint Exh:P.W.l/1 to the S.H.O. Who, accordingly, registered a case. In cross--examination he admitted that the checking was done in the absence of the appellant as he was not available. P.W.2 Mr. Saeed Akhtar, S.D.O. Stated that the appellant used to work with him as Overseer. He was Incharge Shakargarh Store. He absented himself from the office without leave, therefore, in the presence of the witness the store was checked and certain articles were found missing. P.W.3 Ghulam Ali Zahid, Sub-Engineer stated that on 2-12-1983 he was Sub-Engineer, Public Health Engineering Department, Shakargarh. On the said date he alongwith an A.S.I. Checked the store and found shortage of 61 items. A list was, accordingly, prepared vide Exh.P.W.3/1. Nabi Ahmad, A.S.I. P.W.4 had partly investigated the case. Muhammad Aslam, S.I., P.W.5 had investigated the case, prepared Report Exh.P.W.5/1 and challaned the appellant. In cross-examination, he stated that he had seen the list of items entrusted to the appellant but his signatures were not on the said list nor any other charge report was shown to him, which was signed by the appellant. He further stated that though he made efforts but the department did not show him any record. Muhammad Rashid, A.S.I. P.W.6 had recorded the formal F.I.R. Muhammad Safdar, P.W.7 who was S.D.O. Stated that he was Overseer in 1982. The appellant absented himself from duty on 17-3-1982. Since he did not resume duty, therefore, in his absence he took charge of the store. He also signed shortage list Exh.P.W.5/1. At the conclusion of the prosecution evidence, the appellant was examined without oath. He refuted the prosecution allegations and pleaded innocence. He also produced two witnesses in defence. Mr. Parvaiz, D.W.1 stated that on 2-12-1983 he was serving in the Public Health Department. The appellant with a Police Officer and an Overseer came there. The appellant got the store checked and no shortage was found. He was made to sign a blank paper. Muhammad Sharif, D.W.2 stated that he was watchman in the Public Health Engineering Department, Shakargarh. He used to have the keys of the store and the appellant did not steal or misappropriate any goods from the said store.
4. It was contended by learned counsel for the appellant that the prosecution has not been able to prove its case at all. Submitted that the appellant was convicted under section 409, P.P.C. For having criminally misappropriated the property which was duly entrusted to him. Argued that the prosecution has not produced even a single witness to prove the entrustment of property and, in such circumstances, the conviction was bad in law. The contentions were resisted by learned Assistant Advocate-General.
5. I have heard the learned counsel and gone through the evidence. The prosecution had produced seven witnesses in support of its case. Two lists Exh.P.W.3/1 and Exh.P.W.5/1 were also duly proved during the trial. One list indicated the articles found in the store, of which the appellant was incharge, and the other list indicated the articles missing from the store and which could not be accounted for. I have noticed that the prosecution has not produced any evidence whatsoever to indicate which of the items were entrusted to the appellant. Normally if some items belonging to the Department were to be entrusted to the appellant for safe custody, he should have received the same in writing and given a receipt to that effect as well. But there is no evidence to show entrustment to the appellant. In this connection statement of P.W.5, S.I., the Investigating Officer, is most material. In cross-examination, he had specifically pointed out that in spite of his insistence the department had not produced any charge report which was signed by the appellant. Even if it be accepted for the sake of argument that the articles worth Rs.50,000 were found missing, yet no offence under section 409, P.P.C. Would be made out because the main ingredient for proving the offence under section 409, P.P.C. Is entrustment of property. Section 405, P.P.C. Defines criminal breach of trust, which reads as follows:-- "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---.
This clearly indicates that unless it is proved that a person has been entrusted with property or any dominion over property and thereafter misappropriates the same, commits the offence of criminal breach of trust. Entrustment of property by the Department has not been proved at all. There is no evidence how much property was entrusted to the appellant. Unless that is done, it is impossible to determine how much of it was missing.
For what has been discussed above, I hold the prosecution has not been able to prove its case at all. Therefore, accepting the appeal, I set aside the conviction and sentence of the appellant. He is on bail. His bail bond shall stand discharged.