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Criminal Appeal No.91 of 1975, heard on 17th September, 1984

Penal Code (XLV of 1860)--

---S. 409--Misappropriation--Accused a Railway Watchman -Seals of wagon found broken during his duty and on checking one packet was found short--Accused reporting matter to authorities immediately after resuming duty--No direct evidence of entrustment to or misappropriation by accused found on record--Possibility of packet having been stolen away by someone else not ruled out--Prosecution, held, had failed to prove criminal misappropriation of missing packet by accused beyond doubt- Accused given benefit of doubt and acquitted in circumstances.

Mian Muhammad Bashir for Appellant.

Sh. Afzaal Hussain for the State.

Date of hearing: 17th September, 1984.

This criminal appeal arises-from the judgment of the Learned Special Judge, Anti-Corruption, Lahore whereby he on 28-12-1974 convicted Mukhtar Ahmad appellant under section 409, P.P.C and sentenced him till rising of the Court and a fine of Rs.500 in default thereof to further R.I. for six months.

2. The appellant was working as Watchman, Pakistan Railway. The charge against him was that he criminally misappropriated one packet containing medicine. He denied the charge and claimed to be tried.

3. To prove its, case, the prosecution examined 17 witnesses and through these witnesses tried to prove that it was during his duty that the parcel was removed from the wagon.

4. When examined under section 342, Cr.P.C., the appellant denied the incriminating circumstances.

5. The learned counsel for the appellant contends that the prosecution has not been able to prove entrustment as well as misappropriation of the missing packet by the appellant. Conversely, the learned counsel for the State has supported the judgment of the trial Court.

6. I have considered the arguments advanced by the learned counsel for the parties and examined the record with care. I find that there is no direct evidence of any entrustment to or misappropriation by the appellant. No doubt it was during his duty that the seals of the wagon were found broken and on checking one packet was found short but this does not mean that the appellant had misappropriated the packet. The possibility that the packet was stolen away by someone else cannot be excluded. It is worth notice that immediately after having resumed the duty, the appellant had brought it to the notice of higher authorities that the seals of the wagon were broken. For all these reasons I am convinced that the prosecution has failed to prove criminal misappropria tion of the missing packet by the appellant beyond doubts.

7. For what has been stated above, giving him the benefit of doubt, the appellant, is acquitted of the charge.

S.A

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