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Criminal Appeal No. 385 of 1983, decided on 13th November, 1984.

Penal Code (XLV of 1860)--

---S. 409--Prevention of Corruption Act (II of 1947), S. 5(2) Mis conduct Prosecution not showing that amount allegedly misappropriated by accused was ever entrusted to him Act of accused, held, did not amount to misconduct within meaning of S. 5(2), Prevention of Corruption Act, 1947--Accused acquitted in circumstances.

Raja Muhammad Anwar for Appellant.

Nemo for the State.

Date of hearing: 13th November, 1984.

This criminal appeal arises from the judgment of the learned Senior Special Judge, Anti-Corruption, Punjab, Lahore whereby he on 5-7-1983 convicted Maqsood-ul-Hassan appellant under section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to a fine of Rs.1,000 in default thereof to six months' R.I.

2. The appellant was a head constable, City Police Station Sheikhupura. The charge against him was that he checked Muhammad Ayub P.W.1 and his wife Nusrat Bano. P.W. 2, brought them to the Police Station where on his direction co-accused Shukar Din searched the person of Muhammad Ayub and took out Rs.263 from his pocket which were never returned to him:

3. To prove its case, the prosecution examined five witnesses.

4. When examined under section 342, Cr. P.C. the appellant denied all the incriminating circumstances and in defence he produced no evidence.

5. The learned counsel for the appellant contends that since the appellant has already been acquitted of the charge under section 409, P.P.C., therefore, there was no legal justification to convict him under section 5 of the Prevention of Corruption Act, 1947. No one has appeared for State to oppose this appeal.

6. I have considered the arguments, advanced by the learned counsel for the appellant. I feel persuaded to agree with him inasmuch as it was not the case of the prosecution that Rs.263 allegedly misappropriated by the appellant were ever entrusted to him. That being the position, the act of the accused does not tantamount to misconduct within the meaning of section 5(2) of Prevention of Corruption Act, 1947. To my mind the appellant is entitled to acquittal on this ground alone.

For what has been stated above, the appeal is accepted, conviction and sentence set aside and the appellant is acquitted of the charge.

M. A. K. Appeal accepted.

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