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Criminal Appeals Nos. 566 and 704 of 1976, decided on 27th May, 1984.

---S. 409/405--Prevention of Corruption Act (II of 1947), S. 5(2)- Misappropriation--Evidence of entrustment of case property (fans) allegedly misappropriated available on record--Property not produced or got identified by prosecution at time of trial--Doubtful whether temporary use of fans in circumstances of case would amount to criminal misappropriation within meaning of definition of misappropriation as given under S. 405, Penal Code--Conviction under S. 409, held, not sustainable--Accused acquitted.

Sh. Nisar Qutab for Appellants.

Rafi Siddiqui for Respondent.

Date of hearing: 6th May, 1984.

These two Criminal Appeals Nos.566/76 and 704/76 filed by Ghulam Jilani and Ch. Nazir Ahmad Rashid, the appellants respectively, arise from the judgment of learned Special Judge, Anti-Corruption whereby he on 12-5-1976 convicted the two appellants under section 409, P.P.C., read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced them to imprisonment till rising of the Court and a fine of Rs.500, in default thereof to 6 months R.I. I propose to dispose of these appeals through single judgment.

2. Ghulam Jilani appellant was a Store-keeper in Silver Division Forest Department whereas Ch. Nazir Ahmad Rashid was Head Clerk in the same Department. The charge against them is that they mis appropriated 2 fans belonging to the department by giving the same to Maqbool Hussain P.W.1, Rana Muhammad Haneef P.W.4 and Muhammad Aslam P.W.12 of the same department.

3. The appellants denied the charges and claimed to be tried.

4. In order to prove its case, the prosecution examined as many as 13 witnesses, Maqbool Hussain P.W.1 stated that he obtained the fans departmentally. Rana Muhammad Haneef P.W.4 stated that a fan was sent to his house by Ch.Nazir Ahmad Rashid for using the same for 2/3 months. In cross-examination tie stated that lie did not know as to who had left that fan at his residence. P.W.12 Muhammad Aslam stated that Ch.Nazir Ahmad Rashid had given him one fan which he used for one month and then produced it before Anti-Corruption Police. Ghulam Rasool P.W.2, Muhammad Ismail Magistrate P.W.11 and Muhammad Sharif Cheema P.W.13, the Anti-Corruption Inspector, are the witnesses of the recovery of fans from the houses of Maqbool Hussain, Rana Muhammad Haneef and Muhammad Aslam P.Ws. The rest of the evidence is more or less of formal nature.

5. The appellants when examined under section 342, Cr.P.C denied the incriminating circumstances and produced Manzoor Ahmad D.W.1 and Muhammad Iqbal D.W.2.

6. The learned counsel for the appellants contended that the prosecution has failed to prove entrustment and criminal misappropriation by the appellants. Conversely, the learned counsel for the State has supported the judgment of the trial Court.

7. I have considered the arguments advanced by the learned counsel for the parties with care. I find that there is no evidence of the entrustment of fans allegedly misappropriated by the appellants; that the case property, i.e. the three fans, were not produced and got P identified by the prosecution at the time of trial and that it is doubtful whether the temporary use of the fan, in the circumstances of the case, would amount to criminal misappropriation within the definition of misappropriation as given under section 405, P.P.C.

8. For what has been found above, I am of the view that the conviction of the appellants under section 409, P.P.C. is not sustainable. Giving them the benefit of doubt, they are acquitted of the charge.

They are on bail. The bail bonds shall stand discharged.

M. Y. H.

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