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Criminal Appeal No. 860 of 1964, decided on 1st October 1968.

S. 5(2) read with Penal Code (XLV of 1860), Ss. 24 & 25‑Criminal misconduct Accused not established to have acted "dishonestly" or fraudu lently"‑Conviction set aside.

Muhammad Shaft Malik for Appellant.

Rustam Sidhwa for A.‑G. for the State.

This is an appeal by Muhammad Arif, aged 36 years, who has been convicted by Mr. Abdul Hamid, Special Judge, Anti‑Corruption Establishment, Lahore, under section 5 (2) of the Prevention of Corruption Act, 1947, and sentenced to a fine of Rs. 50. He has come in appeal against his conviction and sentence.

2. According to the prosecution, the appellant, who was a toot constable, Police, while working as driver of Jeep No. LE 1442, earmarked for the Deputy Superintendent of Police, Lahore Cantonment, had abused his position on or about the 21st of April 1963, and had used the same and the petrol in it for abducting Mst. Firdaus Begum P. W. The appellant was separately challaned under sections 363/366/376/392 and 342, P. P. C. Mst. Firdaus Begum aged about 18 years, had developed some illicit relations with Muhammad Iqbal, a shopkeeper in Anarkali Bazar, Lahore. Her aunt Mst. Shamim Akhtar knew of these relations. On the night between 20th and 21st April 1963 Mst. Shamim Akhtar met Mst. Firdaus Begum and advised her to marry the said Muhammad Iqbal. She promised to take her to the house of Muhammad Iqbal's sister in Dharampura from where Muhammad Iqbal was to take her to his own house. Firdaus Begum P. W. and Mst. Shamim Akhtar came to Ramgarh locality and were waiting for a rickshaw when the appellant, who was in uniform, came on a cycle and questioned Mst. Firdaus Begum. She was unnerved and gave her story. Mst. Shamim Akhtar slipped away. The appellant took Mst. Firdaus Begum to his own quarter situated near the Mughalpura Police Station. After laving her in his quarter he went to the Police Station and brought Jeep No. LL 1442. Mst. Firdaus Begum P. W. was seated in this jeep and he drove her away towards the Canal Park side and ravished her there during the night. He then left the girl near Police Post Dharampura where from she went to the house of Mst. Raeesa, sister of the said Muhammad Iqbal and therefrom to the house of Muhammad lqbal whom she married a few days later. Kalu, the father of Mst. Firdaus Begum lodged the report Exh. P. C. at Mughalpura Police Station on the 6th of May 1963, regarding the disappearance of Mst. Firdaus Begum. On the 8th of May 1963, Mst. Firdaus Begum made the report Exh. P. B. at the same Police Station and the case was formally registered and the appellant was challaned under section 409, P. P. C.

3. In support of the case, the prosecution produced Ch. Hassan Muhammad, D. S. P. (P. W. 1), Wazir Hassan Foot Constable (P. W. 2), Muhammad Khan Foot Constable (P. W. 3), Mst. Firdaus Begum (P. W. 4), Abdul Latif (P. W. 5) and Sub Inspector Kifait Ahmad (P. W. 6). Hassan Muhammad P. W. stated that the appellant was his Foot Constable Driver and that he had not authorised him to take out the Jeep from the Police Station on the night in question. Foot Constable Wazir Hassan P. W. stated that he was on duty at Police Station Mughalpura on the night in question from 3 a. m. to 6 a. m, that the Jeep generally remained at the gate of the Police Station, that at about midnight on the night of occurrence, the appellant had come to the Police Station, had taken away the Jeep on the pretext that it was required by the D. S. P. and that he had returned and, placed the jeep at the Police Station after about one hour.

4. The appellant in his statement under section 342, Cr. P. C. admitted that he was the Foot Constable Driver of the D. S. P. for the jeep in question and denied the other allegations of the prosecution. He did not produce any evidence in defence.

5. The learned trial Judge accepted the statement of Mst. Firdaus Begum and Wazir Hassan P. Ws. for the finding that the appellant had, on the night in question, used the official jeep for taking away Mst. Firdaus Begum to the Canal Bank. In the opinion of the learned trial Judge, however, the case was not covered by the term "criminal breach of trust" as laid down in section 405 of the Pakistan Penal Code and instead he convicted the appellant for criminal misconduct as defined in section 5 (1) of the Prevention of Corruption Act. Learned counsel for the State has not been able to challenge the view of the learned trial Judge that the facts proved do not make out a case under section 405, or section 409, P. P. C. In my opinion "Criminal Misconduct" as defined in section 5 (1) of the Prevention of Corruption Act, 1947 is also not established. Learned counsel for the State has tried to bring the case under clause (c) of sub section (1) of section 5 ibid which lays down that "a public servant is said to commit the offence of criminal misconduct‑if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person to do." "Clauses (a), (b), (d) and (e) of section 5 (1) ibid have no relevancy. For purposes of clause (c) it has to be made out that the accused had acted dishonestly or fraudulently. The terms "dishonestly" and "fraudulently" are defined in sections 24 and 25 of the Pakistan Penal Code. Since the intention contempla ted in sections 24 and 25 is not made out in the case, it cannot be said that the jeep had been taken away by the appellant at the time in question dishonestly or fraudulently. His intention was not to cause any wrongful loss or wrongful gain to any body but merely to give a lift to the girl. In these circumstances, the conviction of the appellant under section 5 (2) of the Prevention of Corruption Act, 1947 cannot be upheld. This appeal is, therefore, accepted and the conviction of the appellant as well as the sentence imposed upon him are set aside.

Appeal accepted.

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