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Criminal Appeal No.16 of 1982, decided on 17th April, 1986.

‑‑‑S.409/34‑‑Prevention of Corruption Act (11 of 1947), S.5(2)‑‑ Entrustment of property‑‑Illegal gratification‑‑Accused, a Challan Clerk in Court of Magistrate entrusted with two traffic challans alongwith route permits of vehicles‑‑Challans admittedly received by accused‑-Accused not presenting challans before Magistrate‑‑No explanation furnished nor challans and documents accounted for‑‑Witness stating to have received route‑permit back on payment of some money Accused not reporting about missing of challans from his custody‑‑Accused not alleging enmity with witness‑-‑Challans and other documents submitted in Court, held, were case property covered by S. 409, Cr.P.C. and witnesses could not be disbelieved‑‑Appeal dismissed in circumstances.

Usman Ghani Rashid for Appellants.

Makhdoom A. Wali for the State.

Date of hearing: 17th March, 1986.

Appellants were tried by learned Special Judge, Anti‑Corruption Karachi for the offences under section 409/34, P.P.C read with section 5(2) of Prevention of Corruption Act II of 1947 and have been convicted and sentenced to suffer R.I. for six months and pay fine of Rs.400 each is default to undergo R.I. for one month. They have filed this appeal.

2. The case of prosecution in brief is that on 16‑3‑1978 appellant Muhammad Iqbal, was working as Traffic Clerk in the Court of Sub‑Division Magistrate, Malir, Karachi and appellant Muhammad Shafiq was tout of Muhammad Iqbal and used to contact the accused who were challaned in traffic/cases and got them original challans and Route Permits back from the Court.

On 16‑3‑1978 Traffic Police, handed over two challans bearing Nos.20 and 21 relating to Hunda Van belonging to Muhammad Ahmed to appellant Muhammad Iqbal for producing before the S.D.M. Malir. But appellant Muhammad Iqbal returned the Route Permit and challans to owner through appellant Muhammad Shafiq without producing in Court. It is alleged that he accepted Rs.250 illegal gratification through his tout co‑accused Muhammad Shafiq. The owner was asked by tout if he would appear in Court he could be liable to pay fine of Rs.1,000.

After some time Anti‑Corruption Police received information. The matter was investigated and such case was registered on 1‑11‑1980.

3. Before the trial Court prosecution examined seven witnesses P. W.1 Muhammad Munir Exh.2 who in his evidence stated that in the year 1978 he was posted as Court Muharrir in Traffic Police Branch and on 17‑3‑1978. He received Traffic challans for producing in the Court of S.D.M. Malir. He handed over Challan Nos. 5054/20 and 5054/21 in respect of Vehicle No.KCM 6667 alongwith Route Permit to appellant Muhammad Iqbal and obtained his signatures on the challans which he produced as Exh.3 P.W.2. Muhammad Ahmed Exh.4 has stated that on 16‑3‑1978 a van bearing No.6667 registered in name of his father was challaned by Traffic Police. There were two challans one in the name of his father who was owner and other in the name of driver. The Route Permit was also taken by traffic police and copy of challan was handed over to them with directions to appear on 22‑3‑1978 in the Court of S.D.M. Malir. He went in Court where appellant Shafiq met him. He showed him challan and made enquiry about the procedure as it was his first time that he was appearing in Court. He stated that appellant Shafiq told him to wait. He went inside the office and came but after few minutes and told him that in case he would appear before the Magistrate he would be fined to the extent of Rs.1,000 but in case he would pay Rs.250 he would get his Route Permit back. He took Rs.250 and handed over Route Premit. P.W.3, Muhammad Suleman has stated that from 18‑2‑1978 to 14‑9‑1978 he was Traffic Constable and his duty was to prepare list of challans alongwith Documents of the Traffic cases. He has stated that vehicle No.KCM 6667 Mini Truck was challaned by Inspector. Ali Akber Baloch who handed over challans alongwith with Route Permit to him. He has stated that he handed over these challans, Exhs. 6 and 7 to Muharrir Constable for presenting in the Court. This witness was not cross‑examined. P.W.4, Sajjad Hussain was Reader in .the Court of S. D.M. in the year 1978. He has stated that appellant Muhammad Iqbal used to receive challans and documents from Traffic Police. He was to keep challans and documents in safe, custody and produce before the Magistrate. He has stated that on 16‑3‑1978 Traffic Police handed over 31 challans alongwith documents in the Court which were received by appellant Iqbal. This witness was not cross‑examined P.W.5 Ashraf Hussain Shah stated that on 16‑3‑1978 he was Head Constable Traffic Section Drigh Road, Karachi. He has stated that list of Traffic Challans Exh.3 bears his signature. He handed over challans to Writer Constable Suleman for submitting in the Court.

P.W.6 Ali Akbar Baloch has stated that on 16‑3‑1978 he was Section Officer Traffic Section, Drigh Road, Karachi and on that day challaned Driver Zahoor of Vehicle No.6667 under sections 44/106 and 107/112 and also challaned the owner. He has stated that challans Exh.6 and Exh.7 are same. He has stated that Writer Head Constable produced list Exh.3 which included the two challans. P.W.7 Isherat Yar Khan was Anti‑Corruption Inspector. He has stated that or 1‑11‑1981 Inspector Wajiul Hssan handed over enquiry papers to him and also some documents. He recorded statements of witnesses and lodged F.I.R.Exh.12 on behalf of the State. He investigated the case and during investigation secured documents such as list of challan etc. He has produced prosecution sanction Exh.13. He submitted challan in the Court against both appellants.

Appellant Muhammad Iqbal in his statement under section 342. Cr.P.C. stated that list of challans Exh.3 bears his initial but stated that 2/3 clerks use to deal with challans and he did not receive Challans Nos.20 and 21, Exhs.6 and 7. He has admitted that in the year 1978 was working as Traffic Clerk in the Court of S.D.M. Malir, Karachi. He stated that co‑accused Shafiquse is not known to him and he does not know why witnesses are deposing against him. He has not examined any‑witness in his defence. Appellant Muhammad Shafiq's statement is simple denial and he has not alleged any enmity with witnesses. He has shown ignorance as to why witnesses are deposing against him. He has not led any defence.

Mr. Usman Ghani Rashid has submitted that there is no evidence' against appellant and case does not come under purview of section 409 P.P.C. He has produced unreported judgment in Criminal Appeal No.97 of 1978 and order of Supreme Court in Criminal Appeal No.K‑28 of 1973.

Mr. Makhdoom Abdul Wali appearing for the State supported the conviction and stated that prosecution has proved the case.

It has been admitted that appellant Muhammad Iqbal was public servant and working as Clerk in the Office of the S.D.M. Malir. Karachi the day when challan bearing Nos.20 and 21 of Van No.6667 were presented. It has also been admitted by appellant Muhammad Iqbal that list of challans Exh.3 bears his signature, therefore, it is clear that he received 31 challans including two challans for which he is charged. The challans and Route Permits were entrusted to him for which he has not been able to account for. He did not present both the challans before the Magistrate. He has not been able to furnish any explanation about the challans and documents which he received. On the other hand there is evidence of Muhammad Ahmed who fully implicated appellant Muhammad Shafiqne and stated that he got back Route Permit on payment of Rs.250. Appellant Muhammad lqbal did not file any report about missing of challans from his custody, it is clear that Muhammad Iqbal gave Route Permit to his tout Muhammad Shafiqne who got Rs.250 on his behalf. There is ample evidence that vehicle 6667 was challaned by Ali Akbar Baloch and Route Permit and challans were handed over to appellant Muhammad Iqbal. Both the appellants have not alleged any enmity with Muhammad Ahmed. I have no reason to disbelieve his evidence. Now, I revert to legal plea taken by Mr. Usman Ghani Rashid. Whether in these circumstances offence falls under section 409, P.P.C. It is contended that documents do not come under the definition of property. On this I re‑produce section 409, P.P.C. which reads as under:‑--

"409. Criminal breach of trust by public servant or by banker, merchant or agent however, being in any manner entrusted with property or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine."

The definition of movable property is given in section 22 of P.P.C. which is as follows:‑

"The word 'movable property' are intended to include corporal property of every description, except land and thing attached to the earth or permanently fastened to anything which is attached to the earth."

The challan and other documents submitted in the Court are case property and in my view this fully covers the ingredients of property as mentioned in sections 409, P.P.C. and 405, P.P.C.

Upshot of above discussion is that prosecution has proved the charge against both the appellants. The appeal is dismissed. Appellants are on bail. They shall be remanded to custody to serve out the remaining sentence. The benefit of section 382‑B , Cr. P . C . shall be given to the appellants. The Jail authorities to verify and compute the period they remained under, trial prisoners if any.

S . A . Appeal dismissed.

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