' The appellant who was a Police Constable attached to the Police Headquarters, Karachi, was tried by the learned Special Judge-cum-Inquiry officer, Anti-Corruption, Karachi, for an offence under section 409, P. P. C. Read with section 5(2) of the Prevention of Corruption Act, 1947, and by his judgment dated 27th March 1974, the learned Special Judge convicted the appellant of the said offence and sentenced him till rising of the Court and to pay a fine of Rs, 40 or in default to undergo S. I. For one month.
2. The facts of the case, which are not in dispute, are that on 24-1-1972 the appellant was deputed on security duty at the Airport in connection with the arrival of the President of Pakistan, and for the purposes of this duty, he was entrusted with one rifle. He was also issued 10 live rounds for the rifle.
After performing his security duty at the Airport, the appellant returned the 10 rounds through Head Constable Behran Khan but failed to deposit the rifle in the Government Armoury. The failure of the appellant to return the rifle was brought to the notice of Syed Mazhar Hussain, Company Commander, under whom the appellant was working. He sent for the appellant and questioned him about the rifle but as the appellant gave evasive replies, the Company Commander sent a written report against the appellant, which was recorded at the Garden Police Station on 26-1-1972.
On the same day, S. H. O. Nazar Muhammad of Garden Police Station went to the house of the appellant, accompanied by two mashirs, Amanat Javed and Mumtaz Hussain Shah and from there the appellant produced the rifle in question, which was secured by the S. H. O. Under a mashirnama. Subsequently, the investigation of the case was entrusted to Syed Ahid Raza, Inspector, Anti-Corruption Police, who made further inquiries in the case and on 29-1-1973 obtained from the S. P. Headquarters, sanction for the prosecution of the appellant. Ultimately, on 6-10-1973, the appellant was challaned before the learned Special Judge to stand his trial for an offence under section 409, P. P. C. Read with section 5(2) of the Prevention of Corruption Act, 1947.
3. The appellant in his statement before the Court admitted that the rifle alongwith 10 rounds was issued to him from the Government Armoury on 24-1-1972 and that whereas he had returned the rounds, he had not returned the rifle which was secured by the Police. His contention was that he had deliberately not returned the rifle to the Armoury as he had grievances against the police authorities, and had been making a number of applications to the higher authorities, including the D. I. G., I. G. And even the Governor, but as no one took notice of these applications, he resorted to the device of retaining the rifle in his quarter, without any intention of misappropriating it or using it, so that he could be produced before the higher authorities to whom he could explain his grievances. In his defence, he has examined three witnesses, namely, Head Constable Bashir Ahmed Khan, Head Constable Farman Ali and Head Constable Muhammad son of Alafdin. The last mentioned witness has stated that the appellant had deposited the rounds which he had been issued and had told the Company Commander, Mazahir Hussain, in his presence, that he wanted to be produced before the D. S. P. Head Constable Forman Ali has stated that when the appellant returned from the security duty at the Airport, he had met him and had informed him that he had deposited the rounds, but had not deposited the rifle as he wanted to be produced before the S. P.
The evidence of D. W. Bashir Ahmed, who is also a Head Constable in the Police Headquarters, is to the effect that the appellant had informed him that he had made many applications to the S. P., D.
I.-G. And I.-G., but since he was not being produced before the officers in connection with his applications, he was not depositing the rifle so that he may be produced before the officers concerned. The appellant has also in his statement under section 342, Cr. P. C. Produced a number of applications which he had made to various police authorities, including the Governor, complaining of certain grievances, including mal-practices in the Police Department.
4. In order to establish an offence under section 409, P. P. C., it must be established (a) that the property was entrusted to the accused person; (b) that the person to whom the property was entrusted was a public servant and (c) that he committed breach of trust in respect of the same.
5. It is not disputed that the appellant at the time of the arrival of the President of Pakistan was entrusted with a rifle. The only question which required to be considered is whether he committed breach of trust in respect of the same. Criminal breach of trust has been defined in section 405, P.
P. C. The said section 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 trust, or wilfully suffers any other person so to do, commits "criminal breach of trust."
6. An essential ingredient of criminal breach of trust is that the person entrusted with the property should either dishonestly misappropriate or convert that property to his own use, or dishonestly use or dispose of that property in violation of any direction of law.
7. There is no evidence that the appellant had misappropriated or converted the rifle to his own use. Mere retention of the rifle in question in his house by the appellant for two days without having any intention to misappropriate or convert the same to his own use would not bring him within the ambit of section 409, P. P. C. It is clear from the evidence of the defence witnesses that on the earliest opportunity the appellant had disclosed to them his object for retaining the rifle in his quarter. His intention was not to misappropriate or convert the rifle to his own use, but was to compel the police authorities to send for him when he could get a hearing and ventilate his grievances.
8. Mr. Jamaluddin, learned counsel for the State, had specifically been given time by the Court for producing any rule requiring the appellant to deposit his rifle in the Armoury immediately after the performance of his duty, but the learned Advocate submitted that he had not been able to come across any such rule. Possibly, it is the practice in the Police Department that the rifle should have forthwith been deposited after the purpose for which it had been issued was over. But, since there appears to be no specific rule requiring such deposit, it cannot be said that the appellant used or disposed of the rifle in question in violation of any direction of law.
9. It is true that for establishing a charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion or misappropriation by the accused of the property entrusted to him or over which he had dominion, for misappropriation or conversion, which is the principal ingredient of the offence of criminal breach of trust, may not ordinarily be a matter of direct proof, and that entrustment of property and failure, in breach of an obligation, to account for the property entrusted, may in the light of the other circumstances, ordinarily and justifiably lead to an inference of dishonest misappropriation or conversion. But, where the circumstances show, as in the present case, that a person has merely retained a particular property for a limited period, not for the purpose of misappropriating or converting it to his own use, then in my respectful opinion, the person concerned would be entitled to the benefit of doubt.
10. I have been able to come across two authorities from the Indian jurisdiction where retention of property by a police officer for a limited period was held not to amount to the criminal breach of trust. These authorities are reported in Chander Kishore v. The State (1) and State v. Rawatsingh (2).
The facts in both these reported cases are somewhat similar. In the Ajmer case, a policeman, who had absconded with his kit, was prosecuted under section 29 of the Police Act, 1861 and under section 409 of the Penal Code. There was no evidence that he had absconded with the object of utilising his kit when he was not in service. It was held that the offence fell under section 29 of the Police Act and not under section 409 of the Penal Code. In the Rajasthan case, a constable in the Rajasthan Armed Constabulary Force left his post without leave and without depositing his kit. It was held that as it was not a case of desertion and the accused had not left the post with the intention never to return, it can hardly be said that merely because he retained some articles forming his kit for a short time, he is deemed to have misappropriated or converted the same to his own use. It was also held that there was no evidence to show that the accused had dishonestly used the property in violation of any direction of law prescribing the mode in which the trust was to be discharged.
11. Coming to the decisions of our Court I may refer to the decision in the case of Muhammad Nawaz v. The State (3). In that case, a Police Officer, while proceeding on leave on account of illness, failed to deposit his service revolver. It was found that there was no rule requiring deposit of arms immediately on handing over the charge, but there was a general practice of arms being deposited with the District Police Lines. In such circumstances it was held that mere retention of service revolver for some time by the accused, who was taking extensive medical treatment for mental disorder during the intervening period, would not, in the circumstances of the case, amount to dishonestly misappropriating or converting the revolver to his own use and the case at best was one of mere negligence. I may finally refer to the decision of their Lordships of the Supreme Court in the case of Sirajul Islam v. The State (4) wherein it was found that there was a practice against rules obtaining in Government Departments of the cashier making advances to the members of staff from cash in hand. It was not shown that the accused who was drawing and disbursing officer had the benefit of such advances. It was held that advances of Government money made to the members of staff could not, in the circumstances, be said to have been made with criminal intent or with a view to making any wrongful gain or wrongful loss, and accordingly benefit of doubt was given to the accused. {{FOOT NOTE}}
(1) AIR 1952 Ajm. 26 (2) AIR 1957 Raj. 26
(3) 1970 P Cr. L J 97 (4) PLD 1971 SC 213 {{FOOT NOTE}}
12. I have already shown that the prosecution has failed to show that the appellant had either misappropriated or converted to his own use the rifle in question or that he dishonestly used or disposed of it in violation of any direction of law. In fact, as already stated, the learned Counsel for the State has failed to produce any rule requiring the immediate deposit of the rifle by the appellant.
13. In view of the foregoing reasons, I would give benefit of doubt to the appellant, set aside his conviction and sentence and allow the appeal. The fine imposed on the appellant, if paid, should be refunded.