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Criminal Appeal No.1305 of 1980, heard on 27th May, 1086.

---S.409--Mens rea--Loss of property through negligence--Accused alleged to be entrusted with judicial files--Some files lost during his entrustment--Nothing on record available to show intentional causing the disappearance of files-Magistrate stating accused to be negligent- Loss of property through negligence, held, was not covered by S.409, P.P.C. which contemplates dishonest misappropriation or conversion to his own use of property entrusted to him and implies mens rep--Conviction not sustainable in circumstances.

--- Word "dishonestly", means to do an act with intention of causing wrongful gain to one and wrongful loss to other:

S. Murtaza Ali Zaidi for Appellant.

Nemo for the State.

Date of hearing: 27th May, 1986.

Syed Kazim Raza son of Habib Hussain, clerk of Deputy Commissioner's office, Vehari, has been tried and convicted by Special Judge, Anti-Corruption, Multan under section 409, P.P.C. who sentenced him till rising of the Court, vide judgment, dated 30-10-1980. Feeling aggrieved the convict has filed this appeal.

2. Briefly stated facts are that the appellant was posted as Ehlmad in the Court of Malik Imdad Ali, Extra-Assistant Commissioner, Multan P.W.8 in the year 1974-75 and was in-charge of record of the cases entrusted to the Court of said Magistrate for decision. Some 20 cases under West Pakistan Pure Food Ordinance against Muhammad Ramzan son of Barkat Ali Ansari were entrusted to the said Court for trial. Out of them files of 5 cases were found missing in August, 1974. Malik Imdad Ali P.W.1 conducted an inquiry under the orders of Deputy Commissioner, Multan and stint a letter No.177/MIC, dated 26-7-1975 Exh.P.B. to the Station House Officer, Police Station Old Kotwali, Multan whereupon F.I.R. Exh.P.B/1 of instant case was registered. After due investigation the police challaned the appellant.

3. The prosecution in support of its case examined 4 witnesses, namely, Fazal Hussain Qureshi, Reader to Ch. Nazir Ahmad M.I.C. P.W.1 who stated that he knew nothing about the case against the appellant. Ahmad Yar Khan D.S.P. P.W.2 stated that he partly investigated the case. Malik Imdad Ali E.A.C. P.W.3, the star witness. in the case, stated that the appellant worked with him as Ehlmad. He stated that out of 20 challans under W . P . Pure Food Ordinance, against Muhammad Ramzan, file of 5 cases were missing and he, therefore, conducted inquiry and got a case registered with Police Station, Old Kotwali, Multan, without naming anyone as accused. In cross-examination, he admitted that the appellant produced 15 connected cases against Muhammad Ramzan and reported that 5 cases were missing. He also admitted that files of the missing cases have since been reconstituted and sent to the concerned Court for disposal'. According to the witness, during inquiry, he found that the appellant was negligent in performing his duty but "was not guilty of misappropriation of the judicial record". A.S.I. Syed Rizwan Hussain Shah P.W.4 stated that he had drawn up formal F.I.R. EXh.P.B.l upon the letter EXh.P.B. received from the Magistrate. In his statement under section 342, Cr.P.C. the appellant stated that case against him had been concocted due to misunderstanding. He produced no evidence in defence.

4. Learned trial Court on the aforesaid evidence observed that since the appellant was custodian of the missing judicial files of the Court of Malik Imdad Ali, therefore, merely because he had reported that these files were missing would not absolve him of the custody of the files. By saying so he meant that by making report about the loss of files the appellant was not absolved of the responsibility of keeping the files in his safe custody. He further observed that since Malik Imdad Ali, Magistrate, had got the case registered against the appellant, therefore, it was immaterial if during the inquiry he held him guilty of negligence and not of misappropriation. Learned trial Court thus convicted and sentenced the appellant, as indicated above, hence this appeal.

5. At the outset, I may say that the approach of learned Special. Judge in this case does not appear to be correct. Learned trial Judge. has missed to note that loss of property through negligence is not covered by section 409, P.P.C. whereunder the appellant has been charged and convicted. Criminal breach of trust is defined in section 405, P.P.C. which contemplates dishonest misappropriation or conversion to his own use of the property entrusted to the accused or its disposal in violation of direction of law or the prescribed mode of discharge of such trust. This implies mens rea (guilty intention) on the part of the accused in commission of offence under section 409, P.P.C. but negligence negatives the intention muchless dishonest intention. Again, word "dishonestly" as defined in section 24, P.P.C. means to do an act with intention of causing wrongful gain to one and wrongful loss to the other. There is nothing on record to show that the appellant had intentionally caused disappearance of 5 files of the criminal cases and thereby derived any wrongful gain for himself. The only incriminating statement on record is that of Malik Imdad Ali, Magistrate P.W.3 who I stated that the appellant was "negligent", i.e. his negligence resulted

in the loss of files. This, as said earlier, is not covered by section

409, P.P.C. Consequently, conviction of the appellant under section 409, P.P. C. recorded by Special Judge Anti-Corruption, Multan, cannot, therefore, be sustained. In the result, this appeal is accepted, the conviction and sentence of the appellant is set aside and he is acquitted.

S. A. Appeal accepted.

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