PLJ 2023 Cr.C. 491
[Lahore High Court, Lahore]
Present: Muhammad Amjad Rafiq, J.
AMIR HAYAT--Appellant
versus
STATE--Respondent
Crl. A. No. 51224 of 2017, decided on 6.6.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 403--Dishonest misappropriation of property--The related provision in this case is clause (c) of sub-section (1), above which talks about misappropriation of property that is pari materia to Section 403 of PPC--Above arrangement however, shows some major difference between two. words ‘fraudulently’ and ‘entrustment’ are missing in definition under, PPC; and offence under cluse (c) above deals with ‘any property’ while offence under, PPC is confined to ‘moveable property’ only--element of entrustment of property has been procured to convert an offence of ‘dishonest misappropriation’ to ‘criminal breach of trust’.
[P. 496] B & C
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 403--Criminal breach of trust--Definition is wide enough with extended concept while erasing word ‘moveable property’ and adds word ‘entrustment’ as compared to Section 403, PPC--This definition too is at little contrast with clause (c) above as it does not find mentioned word ‘fraudulently’--Section 5(1)(c) of Prevention of corruption Act, 1947 covers misdemeanours like misappropriation committed either with dishonest intention or intention to defraud--Therefore, when evidence discloses element of fraud only, Section 405, PPC shall not be applicable for misappropriation, likewise rest of Sections for penal consequences including 409, PPC shall not be attracted, and in that situation offence shall only be dealt with under Section 5(1)(c) of Prevention of corruption Act, 1947.
[P. 496] D
Prevention of Corruption Act, 1947 (II of 1947)--
----Ss. 5 & 5(1)(c)--Criminal misconduct--Pakistan Penal Code, (XLV of 1860), S. 409-- One thing is very clear in this case that as per version in FIR and evidence, appellant has not obtained any gratification nor withdrawn amounts by forging any document or impersonated for anyone--Was it a case of criminal breach of trust or criminal misconduct attracting respective penal provisions of, PPC and Prevention of Corruption Act, 1947 against appellant or it was simply a misconduct calls for disciplinary proceedings against him is moot point in this case? Case adversaries in contest carried their divergent stances which require to examine requisite of criminal misconduct as mentioned u/S. 5 of Prevention of Corruption Act, 1947-- In all such expressions, it could easily be gathered that to prove misappropriation, use of misappropriated money for purposes other than that for which it is intended is essential, which prosecution has failed to prove in this case that where appellant has used such misappropriated money; therefore, in such situation keeping government money with him by civil servant for a longer period without his misuse or misappropriation cannot be termed as an offence falling under criminal breach of trust attracting Section 409, PPC or Section 5(1)(c) of Prevention of corruption Act, 1947--However, act of appellant if conforms to misconduct, this can be a good ground for initiating disciplinary proceedings under Punjab Employees Efficiency, Discipline and Accountability Act, 2006--Clause (i) and (iii) surely can be attracted in case of temporary embezzlement, similarly, conduct of civil servants is regulated through rules and as per clause (ii) of above definition; act contrary to conduct rules is also misconduct--PUNJAB GOVERNMENT SERVANTS (CONDUCT) RULES, 1966 throws light on different types of violations which can be committed during performance of official duties which are regarded as misconduct--Appellant/accused before registration of FIR has already deposited amount on 27.11.2014, therefore, this temporary embezzlement should not have been made subject for criminal misconduct or for offence under PPC--For how long a civil servant can retain government money is another question to be resolved by department if not backed by any rules if desirous of initiating departmental proceedings against appellant because Anti-corruption establishment has recommended judicial action against him only on ground that he retained money for a longer period--For what has been discussed, it is not a case of criminal misconduct u/S. 5 of Prevention of Corruption Act, 1947 nor an offence of criminal breach of trust attracting Section 409, PPC and other related offences, therefore, appeal is allowed.
[Pp. 494, 498, 499 & 500] A, F, G, H, I & J
1985 PCr.LJ 2089.
Misappropriation--
----Word—‘Misappropriation’--Offence of misappropration--According to NEW 9th Edition of Oxford Advanced Learner’s Dictionary Internal Student’s Edition, word “misappropriate” means to take somebody else’s money or property for yourself, especially when they have trusted you to take care of it--In law, misappropriation may be defined as “the unauthorized, improper, or unlawful use of funds or other property for purposes other than that for which intended.” Misappropriation commonly refers to situations in which offending party has an added measure of responsibility, such as misconduct by a public official, a trustee of a trust, or an administrator of a deceased person’s estate--An individual who has committed misappropriation may be liable to criminal prosecution for a form of theft as well as disciplinary action, if person is a civil servant. [Pp. 497 & 498] E
Mr. Shabbir Ahmad Khan, Advocate with Appellant in person.
Mr. Muhammad Moeen Ali, Deputy Prosecutor General for State.
Date of hearing: 6.6.2022.
Judgment
Aamir Hiyat being Cashier was tagged as delinquent for failure to re-deposit the public money in government treasury in time despite its receipt from different departments of DHQ Hospital, Bhakkar. Finally, the outstanding amount was assessed to the tune of
Rs. 649038/- which was communicated by the Medical Superintendent DHQ Hospital Bhakkar vide letter dated 20.11.2014 to the Executive District Officer, Health, Bhakkar where the appellant was transferred by the time with the request to take legal action against him along with direction to deposit the amount. Such complaint was also forwarded to Anti-corruption Establishment where after inquiry FIR was registered on 08.01.2015 and judicial action too was recommended against the delinquent/appellant.
2. Learned Counsel of the appellant stated that before lodging the crime report, appellant has already deposited the required amount and has not committed any offence and at the most it could be gauged only a temporary embezzlement for which criminal misconduct as envisaged in section-5 of the Prevention of Corruption Act, 1947 is not attracted. Further states that though official indiscipline is regarded as misconduct and it could be the matter of discussion under the provisions of PEEDA Act, 2006 but that too requires evidence which could only be collected through departmental inquiry and not by means of criminal trial. On the other hand, learned Deputy Prosecutor General softly set the tune of arguments that departmental and criminal proceedings can go side by side with different types of results and they are not exclusive of each other.
3. Arguments of proponents and opponents heard. Record perused.
4. One thing is very clear in this case that as per version in FIR and evidence, appellant has not obtained any gratification nor withdrawn the amounts by forging any document or impersonated for anyone. Was it a case of criminal breach of trust or criminal misconduct attracting respective penal provisions of PPC and Prevention of Corruption Act, 1947 against the appellant or it was simply a misconduct calls for disciplinary proceedings against him is the moot point in this case? Case adversaries in contest carried their divergent stances which require to examine the requisite of criminal misconduct as mentioned u/S. 5 of the Prevention of Corruption Act, 1947; related part of section is reproduced for reference;
Section 5. Criminal misconduct-
(1) A public servant is said to commit the offence of criminal misconduct ****
(a) If he ** accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in Section 161 of the Pakistan Penal Code, or
b. If he ** accepts or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been or to be, or to be likely to be concerned in any proceeding or business transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, or
c. If he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any person to do so, or
d. If he, by corrupt or illegal means, or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage or
e. For Central Government employees only--If he, or any of his dependents, is in possession, for which the public servant cannot reasonably account of pecuniary resources or of property disproportionate to his known sources of income.
Explanation,--In his clause, “dependent” in relation to a public servant, means his wife, children and step-children, parents, sisters and minor brothers residing with and wholly dependent on him.
2. Any public servant who commits or attempts to commit criminal misconduct ** shall be punishable with imprisonment for a term which may extend to seven years or with fine or with both.
(3) In any trial of an offence punishable under sub-section (2) the fact that the accused person or any other person on his behalf is in possession, for which the accused person cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may be proved, and on such proof the Court shall presume, unless the contrary is proved, that the accused person is guilty of criminal misconduct ** and his conviction therefor shall not be invalid by reason only that it based solely on such presumption.
4. The provisions of this section shall be addition to, and do not in derogation of, any other law for the time being in force, and nothing contained herein shall exempt any public servant from any proceedings which might, apart from this section, be instituted against him.
The related provision in this case is clause (c) of sub-section (1), above which talks about misappropriation of property that is pari materia to Section 403 of PPC; both are reflected as under:
Section 5: Criminal misconduct: c. If he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any person to do so, or | 403: Dishonest misappropriation of property: Whoever dishonestly misappropriates or converts to his own use any movable property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. |
The above arrangement however, shows some major difference between the two. The words ‘fraudulently’ and ‘entrustment’ are missing in the definition under, PPC; and offence under cluse (c) above deals with ‘any property’ while offence under, PPC is confined to ‘moveable property’ only. The element of entrustment of property has been procured to convert an offence of ‘dishonest misappropriation’ to ‘criminal breach of trust’. For reference Section 405, PPC is reproduced as under:-
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 uses or disposes of that property, in violation of any direction of law 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.
The above definition is wide enough with extended concept while erasing the word ‘moveable property’ and adds the word ‘entrustment’ as compared to Section 403, PPC. This definition too is at little contrast with clause (c) above as it does not find mentioned the word ‘fraudulently’. Section 5(1)(c) of Prevention of corruption Act, 1947 covers the misdemeanours like misappropriation committed either with dishonest intention or intention to defraud. Therefore, when the evidence discloses element of fraud only, Section 405, PPC shall not be applicable for misappropriation, likewise rest of the Sections for penal consequences including 409, PPC shall not be attracted, and in that situation offence shall only be dealt with under Section 5(1)(c) of Prevention of corruption Act, 1947.
What the words ‘fraudulently’ and dishonestly connote, are reflected below as per respective Sections of PPC:-
24. “Dishonestly”.
Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing “dishonestly”.
25. “Fraudulently”
A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.
Above definition shows that a doer of a dishonest act may not have any interest in causing loss to any rightful claimant yet does the act for his own interest either to usurp the property or to alienate it in consideration of bribe given to him and the consequences of his act cause either wrongful loss or wrongful gain to any party in interest. Whereas fraudulent act contains malice, grudge, deception against a particular person with a targeted mind to ruin him or to deprive him from the property and for that end property is obtained from him through deception under grab or with temptation like increased value of the property. Example of above difference could be like that if a property is handed over by a person at his own to any other without any offer from any corner with the request to keep it as trust or use it under a contract between them, if it is misappropriated by the trustee, the matter is of criminal breach of trust but if a person persuades other with alluring offers to hand over the property for an increased benefit, misappropriation of such property shall be labelled as fraudulent which is not the subject matter of criminal breach of trust. Element of fraud is more serious and its proof requires evidence of precise and clear intention which is difficult to collect in ordinary circumstances unless ample material for deduction is brought on record that is the reason even in definition of cheating u/S. 415, PPC both the words ‘dishonestly’ and ‘fraudulently’ has been used.
5. Now the question that how the offence of misappropriation is completed requires what misappropriate/misappropriation implies, the word “misappropriate” has been defined in Concise Oxford English Dictionary, as:
“dishonestly or unfairly take for one’s own use.”
According to NEW 9th Edition of Oxford Advanced Learner’s Dictionary Internal Student’s Edition, the word “misappropriate” means to take somebody else’s money or property for yourself, especially when they have trusted you to take care of it. In law, misappropriation may be defined as “the unauthorized, improper, or unlawful use of funds or other property for purposes other than that for which intended.” Misappropriation commonly refers to situations in which the offending party has an added measure of responsibility, such as misconduct by a public official, a trustee of a trust, or an administrator of a deceased person’s estate. An individual who has committed misappropriation may be liable to criminal prosecution for a form of theft as well as disciplinary action, if the person is a civil servant.
6. In all such expressions, it could easily be gathered that to prove misappropriation, the use of misappropriated money for the purposes other than that for which it is intended is essential, which the prosecution has failed to prove in this case that where the appellant has used such misappropriated money; therefore, in such situation keeping the government money with him by the civil servant for a longer period without his misuse or misappropriation cannot be termed as an offence falling under criminal breach of trust attracting Section 409, PPC or Section 5(1)(c) of Prevention of corruption Act, 1947. However, act of the appellant if conforms to misconduct, this can be a good ground for initiating disciplinary proceedings under the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (PEEDA Act, 2006); definition of misconduct is as under;
2 (n) ‘misconduct’ includes--
(i) conduct prejudicial to good order or service discipline; or
(ii) conduct contrary to the conduct rules, for the time being in force; or
(iii) conduct unbecoming of an officer and a gentleman; or
(iv) involvement or participation for gain directly or indirectly, in industry, trade or speculative transactions by abuse or misuse of official position to gain undue advantage or assumption of such financial or other obligations in relation to private institutions or persons, as may compromise the performance of official duties or functions; or
(v) any act to bring or attempt to bring outside influence directly or indirectly to bear on the Governor, the Chief Minister, a Minister, or any other authority in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditions of service; or
(vi) making appointment or promotion or having been appointed or promoted on extraneous grounds in violation of any law or rules; or
(vii) absence from duty without prior approval of leave; or
(viii) acquittal by a Court of law as a result of compounding of an offence involving moral turpitude or affecting human body; or
(ix) conviction for an offence by a Court of law;
Clause (i) and (iii) surely can be attracted in case of temporary embezzlement, similarly, conduct of civil servants is regulated through rules and as per clause (ii) of above definition; act contrary to conduct rules is also misconduct. THE PUNJAB GOVERNMENT SERVANTS (CONDUCT) RULES, 1966 throws light on different types of violations which can be committed during performance of official duties which are regarded as misconduct; reflected as follows:
(1) Acceptance of Gifts, (2) Acceptance of foreign awards, (3) Public demonstration in honour of Government servants, (4) Gift to Medical officers, (5) Subscriptions, (6) Lending and borrowing, (7) Declaration of property, (8) Disclosure of assets, immovable, movable and liquid, (9) Speculation and investment, (10) Promotion and management of companies, etc, (11) Private trade employment or work, (12) Subletting of residential accommodation allotted by Government, (13) Government servant not to live beyond his means, etc., (14) Insolvency and habitual indebtedness, (15) Unauthorized communication of official documents or information, (16) Approach to Members of Assemblies, etc., (17) Management, etc. of Newspapers or periodicals, (18) Radio Broadcast, Television Programme and Communication to the Press, (19) Publication of information, public speeches and television programme capable of embarrassing Government, (20) Evidence before committees, (21) Taking part in politics and elections, (22) Propagation of sectarian creeds, etc, (23) No Government servant shall express views detrimental to the ideology of Pakistan, (24) Government servants not to take part in or assist any public demonstration against Government decisions, etc, (25) Nepotism, favoritism and victimization, etc, (26) Vindication by Government servants of their public acts or character, (27) Membership of service associations, (28) Use of political or other influence, (29) Approaching Foreign Missions and aid-giving agencies.
It has been observed that appellant/accused before registration of FIR has already deposited the amount on 27.11.2014, therefore, this temporary embezzlement should not have been made subject for criminal misconduct or for offence under PPC as held in case reported as “Naseer Ahmad versus The State” (1985 PCr.LJ 2089).
7. For how long a civil servant can retain government money is another question to be resolved by the department if not backed by any rules if desirous of initiating departmental proceedings against the appellant because Anti-corruption establishment has recommended judicial action against him only on the ground that he retained the money for a longer period.
8. For what has been discussed, it is not a case of criminal misconduct u/S. 5 of the Prevention of Corruption Act, 1947 nor an offence of criminal breach of trust attracting Section 409, PPC and other related offences, therefore, this appeal is allowed, conviction and sentence passed by the learned Special Judge Anti-corruption, Sargodha Camp at Bhakkar through impugned judgment are set aside, appellant is acquitted of the charges levelled against him. He is present on bail. His sureties shall stand discharged of their liabilities.
(A.A.K.) Appeal allowed
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