Law: Penal Code (XLV of 1860)

Section: 405,409

Law: Prevention of Corruption Act, 1947

Section: 5(1)(C)

(a) Penal Code (XLV of 1860), Ss. 405, 409  Criminal breach of trust Essential ingredients of offence Mere disappearance of property entrusted Not sufficient to establish misappropriation un¬less accused is proved to be responsible for doing himself or suffering some other person to do acts mentioned in S. 405.   Shakir Hussain v. The State P L D 1959 S C 407 and Mir Ahmad v. The State P L D 1962 S C 4 89 rel.   (b) Prevention of Corruption Act (II of 1947), S. 5(1) (c) read with Penal Code (ALV of 18601, S. 409 Criminal misconduct-¬Criminal breach of trust Expression “allows any other person to do so” in S. 5(1)(c) of Act 11 of 1947  Word “allows” Meaning--Accused cannot be held guilty of criminal misconduct merely for suffering loss to be incurred unless he either himself dishonestly misappropriates property or deliberately allows someone else to do so¬-Failure to discharge responsibility for safe custody of property would not per se amount to establishment of offence of criminal mis-appropriation within meaning of S. 409, P. P. C. nor an offence of criminal misconduct under S. 5 of Act Il of 1947.   Murrays “New English Dictionary” Oxford Edition, Vol. I and Blacks, “Law Dictionary”, Third Edn. ref.   (c) Prevention of Corruption Act (II of 1947), S.5(1)(c) Criminal misappropriation Mere entrustment of property to accused and its shortage Not enough to establish guil of dishonest misappropriation.   (d) Evidence Act (I of 1872). S. 114 read with S. 101 Presumption Adverse presumption Burden of proof  Mere existence of adverse presumption Cannot be equated with establishment of guilt Circumstances of case giving rise to adverse presumption Onus probandi rests squarely on prosecution.   Khar Bahadur Mushtaq Hussain for Appellant.   Malik Muhammad Nadir for A. G. for the State. JUDGMENT This Criminal Appeal by Mustafa Shah, an Inspector Food¬grains the Food Department of Government of Pakistan, is direct¬ed against the order of the learned Special Judge, Multan, dated 2nd December 1964, whereby the appellant was convicted under section 409, P. P. C./5(2) of the Prevention of Corruption Act, and was sentenced to…

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