P L D 1950 Baluchistan 13 (PLP)

Briefly, therefore, the accused, a Railway Officer, is alleged to have had certain clamps prepared in the Quetta Railway Workshop which were for his private use for his own beds. Secondly, he is further alleged to have employed certain carpenters who were Railway servants, to prepare beds for private work in his own house. The facts, therefore, of the case are relatively simple and the evidence in regard to these alleged acts is equally simple. Before I proceed to examine the evidence and the judgment of the learned Special judge, who acquitted the accused of both these charges, it is necessary for me to examine the grounds on which a High Court normally exercises its powers in such case when an accused person has been acquitted and when an appeal against the acquittal is lodged. It has been laid down by a Bench of the Judicial Commissioner's Court, Peshawar A I R 1934, Peshawar, p. 129), that in an appeal by Government from acquittal the accused starts with a double presumption in his favour. Firstly, there is the rule that it is for the prosecution to make out their case. Until they do so beyond reasonable doubt the accused must be presumed to be innocent. Secondly, the accused having succeeded in securing acquittal from the Court, the Superior Court will not interfere a until the Crown shows conclusively that the inference of guilt is irresistible. I am in full agreement with the views expressed by the learned judges on this aspect of appeals against order of acquittal and it will, therefore, be necessary to assume that as the accused in this case was found innocent and was acquitted by the learned Special judge, the case for the prosecution must be irresistibly strong, if I am to set aside the acquittal and convict the accused. Moreover, it has been ruled frequently that it is not only necessary for the prosecution to prove to the satisfaction of the Appellate Court that the accused is guilty but also to prove that the grounds given by the Lower Court in acquitting accused are unreasonable and unsound. The acquittal in this case has been based on an appreciation of evidence and is largely a case of fact and not law. A Division Bench of the Allahabad High Court A I R 1940, All. 291 has ruled that while in considering an appeal of this nature the whole case is at large before the High Court, both as to the facts and as to the law, the Appellate Court will be slow disturb a finding of fact arrived at by a Judge who had opportunities for assessing the value of evidence which the Appellate Court has not had. An Appellate Court pursuing the principle will be slow to substitute a view of the facts of its own for an opposite view of the facts held by the judge below, where the latter are, upon the evidence, reasonable views, even though the judges in the Appellate Court might have preferred a view of their own if the matter had been res integra. Moreover, the presumption of innocence and the title of the accused to the benefit of any doubt are certainly not lessened by the fact that he has been acquitted at his trial. I am in complete agreement with the principles enunciated in the aforesaid rulings and accordingly I propose to deal with this appeal in the light of these principles. The written grounds of appeal, which were filed and which were first before me when the case was heard, are mainly legal grounds for setting aside the order of acquittal. It is necessary for me to examine the grounds set forth as well as to consider the arguments adduced by the learned counsel for the accused to see whether. these grounds are sufficient to consider that the jurisdiction of the Lower Court was ultra vires or not. The first ground for appeal, as stated, is that the Lower Court erred in assuming jurisdiction without proper sanction as required by section 6 of Act II of 1947 and section 5 (5) of the Pakistan Criminal Law (Amendment) Act (XIX of 1948). In the first place, it is somewhat surprising to me that the prosecution should, in appealing against this acquittal, produce legal grounds claiming that the Lower Court had no jurisdiction to try the case or that certain actions of the learned Special judge were illegal and 'that for these reasons the judgment should be set aside. The grounds of appeal, as adduced, were such that bad the `prosecution during the course of the trial felt that the Lower Court had neither jurisdiction nor was acting in a proper manner, it would have been the duty of the prosecution to make an objection or representation at that stage of the trial and not leave these matters until they were before this Court in appeal. In reverting to the first grounds for appeal, I observe that the Governor General passed sanction for the prosecution of the accused by an order which is dated 11th May, 1948 and which has been exhibited as Exhibit

12. I therefore, fail to follow the argument that the Court had no jurisdiction to try this case in the absence of proving the sanction order. Proof of this order was not, in my opinion, necessary. More so, as this order had never been challeng ed by the defence the presumption therefore is that this order was a legal and a valid order and I hold that the learned Special judge was fully competent to try this case after necessary sanction had L .... The next ground for appeal `is that the learned Special Judge ignored the provisions of section 356 (iv) of the Criminal Procedure Code in not recording the reasons for his inability for making a memorandum of the substance of the evidence of each witness. Here again the record clearly indicates that the learned Special judge by an order dated 13th July 1949, stated that he was unable to record the statement of witnesses in his own handwriting and as the parties had no objection to his dictating the statements in open Court, the statements of the witnesses would be so record ed. This clearly indicates that no objection was ever raised to the method of recording the statements of witnesses and this can be no ground for appeal. The same argument must apply to the third ground of appeal in that the learned Special judge did not record the examination of the accused in his own handwriting. Clearly, in expressing his inability to record the statement of ' witnesses, it follows that the same reasons must have existed for his, inability to record the statement of the accused. Even if the learned Special judge can be held to have committed an irregularity in failing to record the necessary certificate to this effect, I do not consider this failure on his part is reason which would invalidate the Trial. The next ground for appeal is that the learned Lower Court, erred in not reading out the evidence of the witnesses to them after the same was recorded and that this failure was in contraven tion of the provisions of section 360 (2) and (3) of the Criminal Pro cedure Code. I observe, however, that all the evidence record. ed ends with the usual letters "R.O.&A C." which, in the absence of evidence to the contrary, I must take to mean as "read over and admitted correct". The next ground for appeal is that .the two prosecution witnesses‑‑Allah Ditta and Said Muhammad‑having once been examined as Prosecution witnesses should not have been re summoned under section 257, Criminal Procedure Code as this section is applicable to the trial of warrant cases, whereas 'the present case was being tried under the provisions of Chapter XX of the Criminal Procedure Code and section 6 (I) and (II) of Act XIX of 1948. I have carefully perused the order of the learned Special judge passed in this connection and I observe that the main grounds for the prosecution objecting to the re summoning of these two witnesses were that the proceedings would be unnecessarily prolonged. In the course of the learned judge's order he correctly, in my view, rejected the plea of the defence to recall these two witnesses immediately but agreed to their recall at a large stage of the case. There is a ruling of the Patna High Court A I R Pat. 1928, p. 253) to the effect that the principle of section 257 of Criminal Procedure Code applies even to summons cases. With this view I am disposed to agree and on these grounds, I do not consider that the order passed by the learned Special judge is illegal nor was it to the prejudice of the Crown. As regards the further grounds for appeal in regard to the resummoning of Captain Saleh Muhammad, the City Magistrate, Quetta, allegedly at the option of the accused, this is not in fact n. This witness was resummoned by the Court under section 540, Criminal Procedure Code as will be apparent from the final sentence of the learned Special ,Judge's order of 21st July, 1949, appearing at page 57 of the record. I. have therefore, so far' disposed of the arguments ,adduced by the learned Public 'Prosecutor in his written grounds of appeal in so far as the legal aspects of the appeal are‑concerned. To sum up, I find there are no legal grounds on which the procedure adopted by the Lower Court can be challenged I: accordingly find no irregularity in the procedure which may be regarded as vitiating the proceedings in any way. I now come to the grounds for appeal on the merits of the case. As I have already stated the facts of this case are relatively simple. I will deal firstly with the question of the preparation of the brass clamps for the beds. It is necessary to see whether the action of the accused in ordering clamps from the Loco‑shed was such as to fall within the purview of criminal mis appropriation as defined under section 405, Pakistan Penal Code read with section 5 (c) of Act II of 1947 and whether the judgment of the Lower Court is. sq perverse as to warrant interference, by this Court to the extent of setting aside the acquittal order and convicting the accused. I do not propose to deal at great length with this asp8ct of the‑case for, I have already stated, this Court would be extremely reluctant to interfere in. a finding of fact unless the judgment of the Lower Court was not logical on the facts before it. The learned Special judge has given great care and attention to both the prosecution and the defence stories in this connection and he has been careful to. weigh the evidence fully both for the prosecution and for the accused in. his defence. The salient feature of this part of the charge against the accused is the fact that the accused never denied ordering the clamps, for his private use and claimed that this was permissible according to the Railway rules. Much argument has been brought forward on the question of whether or not this was permissible and I do not propose to, go into this matter in any great detail ; for it is clear to me that in freely admitting his actions .the accused could, in my opinion, have had any criminal intent. Not only did he give a verbal order for. the preparation of the clamps, which has been argued by the prosecution to have been illegal, but also he subsequently confirmed that order in writing. It appears to me immaterial whether the order in writing was given after the clamps had been seized or before, because if the intention of criminal mis appropriation was apparent in the mind of the accused, he could not possibly have condemned himself by' confirming his act of criminal' misappropriation in writing. Moreover, it is pertinent to notice, as the learned judge has remarked, that the clamps never came into the physical possession of the accused. They were seized from the Loco‑shed and even if it might conceivably be held that the accused had acted illegally in ordering private work to be done in the shed he did not obtain possession of these clamps. It has been argued at some length on behalf of the prosecution, that the accused was in charge of workshop and therefore he had dominion over all property in this shed. In my view, this is an incorrect inference. The evidence of Mr. Keating, P. W. 5, clearly shows that he (Mr. Keating), and no one' else, was directly in charge of the Loco‑shed and if I were to accept the argument that the accused was directly in charge of the shed, it might equally be argued' that the Divisional Superintendent N. W. R. Quetta, who has the over‑all responsibility for all Railway activities, might he considered to be directly in change of all parts of the Railway system in the Quetta Division. That of course, is not so and power and authority has been clearly delegated to subordinate officers. In this case therefore the officer directly in charge of the shed was undoubtedly Mr. Keating and not the accused while Mr. Keating was directly responsible to the accused. It has been further argued that in giving a verbal order the accused has acted illegally and that by so doing he indicated his intention to misappropriate criminally the property for his own pulse, while I admit that it was not permissible according to the rules for an officer to give a verbal order for work to be done, it is in evidence by Mr. Keating that in receiving a verbal order he would not have carried it out until it had been committed to writing. As already stated, the verbal order was subsequently confirmed in writing. I cannot therefore assume that the action of the accused in regard to the bed clamps is in any way criminal. It is permissible for private work to be done in the Loco‑shed on payment and the only possible error of the accused was in giving to verbal order for this work. This, however, shows no criminal intent and was an irregularity of the most insignificant order. The learned Special judge has, in my view, come to an entirely correct decision in his judgment which I can, under no circumstances, hold as being perverse on the facts and on the evidence on record. I therefore find that there are no grounds for interfering in the judgment of the Lower Court in respect of this charge relating to the brass clamps. I come next to the case of the alleged employment of two carpenters, who were Railway servants, for private work. The case for the prosecution is that the two carpenters Allah Ditta (P. W. 9) and Said Muhammad (P. W. 13) worked at the bungalow of the accused who had been charged with the offence of cheating as defined under section 420, Pakistan Penal Code on the grounds that these two Government servants received their salaries from Government though in fact they were working for him privately. The judgment of the learned Special judge on this point is abundantly clear. He correctly states that the muster‑rolls which have been produced in evidence indicate that these two carpenters were recorded as working at the ,Railway Workshop at Quetta and Bostan during the time. Unless therefore entries in these muster‑rolls are proved to have been incorrectly made or falsely recorded. it must be presumed that the carpenters did in fact work at the Railway Workshop and not at the residence of the accused. The muster‑rolls therefore are evidence, in favour of the defence and as the prosecution have failed to prove the entries to be false, it would be entirely beyond the discrimination 'of any Court to make an assumption that they were false. However, it is' further necessary to examine the other evidence in regard to the allegation made against the accused in this respect. The only other evidence is the oral evidence of the two carpenters themselves, while the accused denies the fact that these two carpenters worked at his residence and states that another private carpenter was employed for this work. I would be reluctant to take anther view of the evidence of these two witnesses contrary to that taken by the learned Special judge, for he alone recorded the evidence of these witnesses who are not before me and it is the Lower Court alone whic4 is in the best position to weigh up the evidence and to believe it or discard it as the Court thinks best. I cannot, however omit taking notice of the serious discrepancies in the evidence of these witnesses. In examining both the evidence as recorded and the remarks in this respect made by the learned Special judge, in his judgment, there can be no possible grounds for me to disagree with the inference drawn by the Lower Court in this respect. It remains merely to say that the evidence of these two witnesses alone on which the charge is based is extremely unreliable arid could not possibly be sufficient to find the accused guilty. The question of corroboration of this evidence by Abdul Hakim (P. W. 7) is also, for the reasons stated by the learned Special judge, unreliable. Again, while dealing with only the salient points of this charge against the accused, it is perfectly clear from the evidence recorded on behalf of the accused, both documentary and oral, that the accused himself was out of the station on certain dates as proved by, his T. A. bills which have been produced and therefore very considerable doubt must 'be raised against the evidence of these two carpenters when they say that they met the accused at his bungalow on dates when he was not even in the station. In my view, therefore, the learned Special judge has correctly weighed the evidence and has come to a correct finding of fact in this case. I consider that there is more than an element of doubt against the accused in regard to the alleged case of cheating in employing Railway servants for private work. The evidence in favour of the accused is firstly the muster‑rolls, the falsity of which has not been proved in Court. In the absence of proof to this effect, they must be considered as evidence that the two carpenters concerned were lawfully employed on their legitimate Railway duties. Secondly, a very serious discrepancy in the evidence of these two witnesses to the effect that they bad met the accused in his bungalow when in fact he was not present in the station is sufficient to indicate that not only is‑the evidence of these two witnesses unreliable but also that it is false. I therefore am not disposed to take a view different from that taken by the learned Special judge in regard to the work alleged to have been carried out by these two carpenters for the private benefit of the accused. I have given careful consideration to the written arguments filed by the learned Public Prosecutor in this respect, but they fail to convince me on any of the points on which criminal charges have been levelled against the accused and I am unable to take a different view of the circumstances from that of the learned Special Judge. The result is that I do not find anything manifestly wrong or perverse in the conclusions at which the Special judge has arrived. Accordingly I uphold his judgment, dated 27th September 1949 and dismiss this appeal. A.H. Appeal dismissed.