MUHAMMAD MANSHA Versus STATE
This criminal appeal challenges the conviction and sentence of the appellant, a public servant, for the loss of judicial record (Suit No. 93 of 1970) and the preparation of forged documents, offenses punishable under Section 409 of the Pakistan Penal Code 1860. The core legal question was whether the prosecution sufficiently established the element of 'entrustment' of the judicial file to the appellant to sustain a conviction for criminal breach of trust. The trial court had convicted the appellant based on circumstantial evidence and witness testimonies. Upon review, the High Court held that the prosecution successfully proved beyond reasonable doubt that the file was entrusted to the appellant, who subsequently dishonestly secured and misappropriated it. The court affirmed that a public servant having dominion over property in their official capacity commits criminal breach of trust if they misappropriate it. While upholding the conviction, the court exercised judicial discretion to reduce the sentence to the period already undergone, considering the appellant's loss of service and the significant delay in the appeal's adjudication.
- Does the loss of a judicial file by a public servant constitute criminal breach of trust under Section 409 of the Pakistan Penal Code 1860?
- Is the entrustment of property a necessary ingredient to prove an offense under Section 409 of the Pakistan Penal Code 1860?
- Can a conviction for criminal breach of trust be sustained if the misappropriated property is not recovered?
- Section 409, Pakistan Penal Code 1860
- Section 405, Pakistan Penal Code 1860
- Section 342, Code of Criminal Procedure 1898
The learned Special Judge, Anti- Corruption, Gujranwala vide judgment, dated 28-9-1994 has convicted and sentenced the appellant for the loss of record pertaining to Suit No. 93 of 1970 and for preparing forged documents as follows:---
Muhammad Under section Sentence 2
Mansha son of 409, P.P.C. years' R.I.
Muhammad Fine of
Hussain aged Rs.10,000 or
35 years. in default six months' S.I.
2. The convict has filed Criminal Appeal No. 516 of 1994 against the conviction and sentence. The brief facts out of which this appeal arises are that Mst. Sakina Bibi filed Suit No. 93 of 1970 against Ghulam Haider which was decided by Ch. Anwar Ali the then Civil Judge Wazirabad on 3-10-1970, P.W.4 Khurshid Anwar Rizvi, the then Civil Judge, Wazirabad sent a complaint Exh. P.A. to the S.H.O. Police Station, City Wazirabad relating to loss of Civil Suit No. 93 of 1970 titled Sakina Bibi v. Ghulam Haider decided on 3-10-1970 by Ch. Anwar Ali the then Civil Judge, Wazirabad. The contents of the complaint revealed that appellant has been found responsible for the loss of the record and for preparing forged documents with regard to the aforesaid civil suit. Muhammad Ali, A.S.I. P.W.1 recorded formal F.I.R. Exh. P.B. The challan was submitted before the Court on 26-6-1993. The challan was submitted without completing legal formalities i.e. without obtaining sanction for prosecution of the case. On the reference of the Special Judge, Anti-Corruption the Commissioner granted sanction for prosecution vide Exh. P.L. The prosecution produced as many as seven witnesses in all.
(i) Muhammad Ali, A.S. 1. who recorded the formal F.I.R Exh. P. B.
(ii) Abdur Rashid P. W.2 who had handed over tile of civil suit to appellant who was Ahmad to the Civil Judge at that time. The appellant/convict had given robkar to him.
(iii) Muhammad Bashir P.W.3 Reader to District Magistrate Gujranwala had given statement that convict/appellant visited his office on 14-7-1992 alongwith another person at 9 a.m. The convict told him that the man with him was close relation of Judge Sahib and copies be prepared immediately. Appellant brought with him the photostat copies of the relevant record:. The convict informed him that he, had got the photostat copies prepared from the Record Room and copying clerk Nawab Mansab Ali (P.W.5) affixed the seals on the documents.
(iv) P.W.4 Mr. Khurshid Ahwar Rizvi, the then Civil Judge sent a complaint against the appellant for registration of a case Exh. P.A.
(v) P.W.5 Mansib Ali as copying clerk at the time of incident who corroborated the statement of Muhammad Bashir, P.W.3.
(vi) Ittefaq Hussain Process Server, P.W.6 had also given statement against the convict/appellant to the extent that he had written robkar Exh. P.J. under the direction of convict.
(vii) P.W.7 Ghulam Mohi-ud-Din, A.S partly investigated the case.
The convict/appellant had given statement under section 342, Cr.P.C. and denied the allegations levelled against him and also produced two defence witnesses in his support i.e. Abdul Majeed, D.W.1 and Muhammad Bashir D. W.2.
3. The learned counsel of the appellant submits as under:---
(i) The prosecution failed to establish case against the convict;
(ii) The prosecution did not bring on record any direct evidence and the convict was convicted and sentenced by the trial Court on surmises and conjectures on the basis of circumstantial evidence which is not sufficient;
(iii) There is no evidence regarding loss .of the file in question nor there is any cogent reliable evidence produced by the prosecution regarding alleged entrustment of missing file to the convict. The signatures in the register of Peshi Exh.P/1 alleged robkar was sent to the handwriting expert but the report of the hand writing expert was never obtained either by the prosecution or by the trial .Court;
(iv) Prosecution failed to produce any independent witness to connect the convict with the commission of offence;
(v) The prosecution witnesses had motive to make ' false statement against the convict to save their skin.
4. The learned Additional Advocate General supported the judgment of the trial Court on each and every point and argued as follows:--
(i) Prosecution proved on record that convict is found guilty qua the loss of file of the case titled Sakina Bibi v. Ghulam Haider which was decided on 3-10-1970 and the file was consigned to the Record Room: The convict gave a robkar Exh. P.J. to Abdur Rashid P. W. Naib-Qasid for bringing the file from the record room and said Abdur Rashid delivered the robkar and on 30-6-1992, he collected the record from Mahafiz Khana and delivered the same to the convict on 14-7-1992.
(ii) The prosecution witnesses are independent witnesses and had no enmity with the convict/appellant.
(iii) The prosecution witnesses are not involved in the case so the question of saving their skin does not arise.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. As far as the allegation regarding entrustment was concerned it has been proved through P.W.2 Abdur Rashid P.W.3 Muhammad Bashir, P.W.5 Mansib Ali and P.W.6 Attefaq. It is pertinent to mention here that the main ingredient for proving the offences under section 409, P.P.C. is entrustment of property section 405, P.P.C. defines criminal breach of trust which reads as follows:---
"405. Criminal Breach of trust. Whoever, being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly use or disposes of that property in violation of any direction of law of prescribing the mode in which such trust is to be discharged, or of any legal contract express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits 'criminal breach of trust.'
This clearly indicates that unless it is proved that a person has been entrusted with property or any dominion over property and thereafter misappropriate the same, commits the offence of criminal breach of trust. Entrustment of the property i.e. File of the case in question has been proved by the prosecution through the aforesaid prosecution witnesses. There is bundle of evidence on record to establish the case against the convict. I have carefully gone through the evidence recorded in-the case and found from the evidence several witnesses examined by the proseqution that it had conclusively proved beyond. any ' reasonable doubt that appellant had in fact been responsible for loss of the file of the case in question which was entrusted to him by the aforesaid witnesses. If is settled proposition of law that a public servant, having the dominion over a property in his capacity as such can be 'guilty of criminal breach of trust within the meaning of section 409, P.P.C. Coupled with the facts that the convict dishonestly with specific motive secured the file from the record room as is evident from Robkar. Mere fact that the file in question was not recovered could not be by itself established innocence of the convict. In arriving to this conclusion I am, fortified NLR 1998 Appeal Cases 202 Baland Rai v. The State the judgment of the trial Court is in accordance with the law laid down by the Hon'ble Supreme Court in Shameer's case 1982 SCMR 745.
In view of what has been discussed above the sentence and conviction is upheld. However, in the interest of justice and fair play keeping in view the following circumstances the sentence is reduced:---
The appellant has not only lost his service but also remained in jail before conviction and after conviction for 8 months and 9 days.
Since this appeal which was preferred in 1994, has now come up for hearing after almost 6 years, I would reduce the sentence of imprisonment of the appellant with 'sentence already undergone.
N.H.Q./M-646/L Sentence reduced.