P L D 1959 (W (PLP)

2. Briefly stated the facts which the learned trial Judge has found established against the appellant are these. In 1948, the appellant 'was a telephone operator in the Post and Telegraph Office Department at Lahore, and on the 30th of July of that year he applied to the Manager of the Anglo‑Iranian Oil Company, Lahore, for appointment in that company. He was taken by the company and a letter of appointment having been sent to him on the 11th of November‑ 1948, he left for Saudi Arabia to take up his new appointment, though he had made the application for appointment by the company without informing the Post and Telegraph Department. As the appellant remained absent from duty from the 10th of November 1948 onwards, his services in the Post and Telegraph Department were terminated. On the 6th of February 1950, the appellant came from Saudi Arabia to Pakistan on leave, but did not go back thereafter. On the 24th of February 1950, he sent an application to the Postmaster General, Lahore, wherein he stated that he had gone to India in connection with the recovery of his neice who had been abducted during the disturbances of 1947 but had been detained there and, therefore, he requested that he may be allowed to rejoin his post. On this application the Postmaster General passed an order that the appellant was reappointed in his old post with effect from the 14th of April 1950. After working in the post given to him by the Postmaster General, Lahore, the appellant sent an application on the 24th of February 1953 to the Director General, Post and Telegraph, Pakistan, that the period of absence from duty from the 10th of November 1948 to the 14th of April 1950 should be treated as leave. In this application too the reason which the appellant gave for his absence from duty was the one mentioned by him in his applica tion to the Postmaster General, Lahore, namely that he had gone to India in connection with the recovery of his niece who had been abducted and had been detained in India. On this application the Director General, Post and Telegraph, Pakistan, passed an order that the appellant be given half of his salary for twelve months and was to be deemed to have been on extraordinary leave without pay from the 10th of November 1949 to the 13th of April 1950. Some months later an anony mous complaint was sent to the police that the appellant had obtained orders in his favour by making misrepresentations in his applications to the Postmaster General, Lahore, and the Director General, Post and Telegraph, Pakistan. The police investigated the case and sent the appellant for trial for an offence of cheating with the result already mentioned. I may add that the learned trial Judge convicted the appellant because of the misrepresentation made in the application sent to the Director General, Post and Telegraph, Pakistan, and the applica tion to the Postmaster General, Lahore, was held not to attract the provisions of section 417 of the Pakistan Penal Code because that application had resulted in an order of reappointment from the date of the order and not of reinstatement from the date on which the absence of the appellant from duty started.

3. A number of witnesses were produced at the trial to prove the guilt of the appellant. It is established beyond all reasonable doubt by the evidence on the record that, without obtaining the permission of the Post and Telegraph Department, the appellant had applied for a post in the Anglo‑Iranian Oil Company which he had got and to take up which he had left Pakistan without giving information to anyone in the Post and Telegraph Department. The evidence given at the trial by Mr. Asghar Ali (P. W. 1), who was then the Local Manager of the Anglo‑Iranian Oil Company and who produced the application of the appellant and his own order thereon, proves these allegations conclusively, and in fact the learned counsel for the appellant did not contest the finding of the learned trial Judge that the appellant had left Pakistan to take up appointment in the Anglo‑Iranian Oil Company. The applica tion which the appellant sent to the Postmaster General, Lahore, and the one which he sent to the Director General, Post and Telegraph, Pakistan, which were produced in Court show clearly that the appellant had not disclosed in those applications that his absence from duty from the 10th of November 1948 to the 14th of April 1950 was due to the fact that he had taken up service with the Anglo‑Iranian Oil Company. Both the applica tions are to the effect that the absence of the appellant from duty in the Post and Telegraph Department of Pakistan was due to the fact that he had been detained in India where he had gone with the laudable purpose of recovering his niece who had been abducted by non‑Muslims in disturbances of the year 1947. Neither the Postmaster General who had reappointed the appellant on the 14th of April 1950, nor the Director General, Post and Telegraph, Pakistan, who had passed the order that the appellant be given twelve months' salary at the rate of Rs. 33‑10‑0 combined with 150 days' extraordinary leave without pay from the 10th of November 1948 to the 13th of April 1950, was produced as a witness by the prosecution, but Mr. Shamim Ahmad, Assistant Deputy Director General, Post and Telegraph, Pakistan, who dealt with the application of the appellant and expressed the opinion which was accepted by the Director General, Post and Telegraph, Pakistan, that the appellant's absence from duty be treated as leave on half average pay for twelve months and as extraordinary leave for 150 days without pay, was produced as the second witness for the prosecution. The statement of this witness shows clearly that it was because of the misrepresentation with regard to the reason of the absence of the appellant from duty in the application sent by the appellant to the Director General, Post and Telegraph, Pakistan that the appellant received a concession of leave on half average pay for one year and of extraordinary leave without pay for 150 days.

4. Mr. S. M. Zafar, Advocate, the learned counsel for the appellant, admitted that the application sent by the appellant to the Director General, Post and Telegraph, Pakistan, Karachi, con tained misrepresentations‑and in view of the overwhelming evidence on the record he could not but make the admission‑but raised the following points during arguments :‑ (1) That no offence was disclosed because the department knew the real facts and the mere circumstance that the appellant mentioned in his application to the Director General, Post and Telegraph, Karachi, that his absence from duty was due to his being detained in India would not make the appellant guilty of the offence of which he has been convicted. (2) That as the Director General, Post and Telegraph, had not moved in the matter, the appellant could not be tried for the offence of cheating alleged to have been committed by him by making misrepresentations to that officer. (3) That, at any rate, the facts did not constitute an offence of cheating.

5. In order to dispose of the above contentions, it will be necessary to refer to the definition of "cheating", which is contained in section 415 of the Pakistan Penal Code and is as follows :‑ "Whoever, by deceiving any person, fraudulently or dis honestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not door omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to `cheat'. "Explanation.‑A dishonest concealment of facts is a decep tion within the meaning of this section."

6. I will first take up the contention that because the department was aware of the true facts, the act of the appellant in giving wrong reasons about his absence from duty was entirely immaterial. It cannot be doubted that if the officer who passed the orders in favour of the appellant knew the real facts, the act of the appellant in misrepresenting them would be immaterial because the officer could not be deemed to have been subjected to deception, and deception, as the provisions of section 415 of the Pakistan Penal Code which has been reproduced above would show, is an essential ingredient of the offence of cheating. All that the learned counsel for the appellant could point to with regard to his contention that the department knew the real facts was the statement of Muhammad Hussain who used to be the Head Clerk in the Telegraph Office where the appellant was working in 1948, and who appeared as the eighth witness for the prosecution. That statement can merely prove that the witness knew the real facts, but cannot be construed to mean that everyone in the department in which the appellant had been working knew them. If the appellant wanted to show that the misrepresentation made in writing was immaterial because the real facts were known to the officer who had passed orders in his favour, it was his duty to produce evidence to that effect which he did not even make an attempt to do. In the absence of cogent evidence to the effect that the Director General, Post and Telegraph, Pakistan, was in the know of the true reason of the absence of the appellant from his duty from the 10th of November 1948 to the 13th of April 1950, I cannot accept the contention of the learned counsel for the appellant that the facts were known to the officer who passed orders in favour of the appellant on the application sent by him.

7. I will now deal with the contention of the learned counsel for the appellant with regard to the trial being illegal on account of the fact that the officer alleged to have been deceived had not moved in the matter. The learned counsel for the appellant relied on Kapur Chand v. Ugar Sain (22 Cr. L J 672), Hira Lal Ghose v. Makhan Lal Daw (54 I C 64) and Muhammad Hayat Khan v. Ghulam Muhammad (P L D 1954 B J 5) to support his contention that the appellant could have been tried for cheating the Director General, Post and Telegraph, Pakistan, only if the police or the Court had been moved by that officer for proceedings being taken against the appellant. It is true that in the three cases cited by the learned counsel for the appellant proceedings were not allowed to proceed because they had not been initiated by the person who .had been cheated, but in none of the three decisions was it laid down that it was the requirement of the law that pro ceedings for cheating can be taken by a Court only if the person cheated initiates them ; and indeed, in view of the fact that no provision of law to that effect existed, such a thing could not have been laid down by a Court because the function of Courts is to interpret and not to make laws. Some of the sections of the Code of Criminal Procedure mention that certain offences cannot be taken cognizance of by a Court except on a complaint by the person aggrieved or by someone authorised by law to take proceedings on behalf of the person aggrieved and it is significant that the offence of cheating is not one of such offences. The fact that the Legislature did not consider it necessary that the offence of cheating should be taken cognizance of by a Court only if the person cheated approaches the Court is, in my view, conclusive, and though it cannot be denied that in some cases it would be desirable that the person cheated should initiate the proceedings before the Court moves in the matter, it cannot be said that it is incumbent that the person who has been cheated should initiate criminal proceedings for the offence. In the three decided cases mentioned above which were relied upon by the learned counsel for the appellant, orders in favour of the accused were passed because on the facts of those cases it was considered desirable that the Court should not move because the person cheated had not considered it necessary to come to Court for redress, but in the present case the circumstances are such that it was desirable that the appellant should be tried in spite of the fact that the Director General, Post and Telegraph, Pakistan, had not initiated the proceedings.

8. The third contention of the learned counsel for the appellant may now be taken up. It is clear from the language of section 4t5 of the Pakistan Penal Code which has been reproduced in paragraph No. 5 above that before an act can amount to cheating in law, the following three facts must exist (1) somebody must have been deceived, (2) the person deceived must have been induced fraudulently or dishonestly to deliver any property to any person or to consent that any person retain any property or the accused must have intentionally induced the person deceived to do or omit to do any thing which he would not have done or omitted if he had not been so deceived, and (3) the act or omission mentioned in (2) above must have caused or was likely to cause damage or harm to the person deceived in body, mind, reputation or property. It is clear that the first two of the above‑mentioned ingredients were established as the Director General, Post and Telegraph. Pakistan, who passed the order in favour of the appellant, was deceived with regard to the reason which led to the absence of the appellant from duty and because of that deception passed an order in favour of the appellant and it is obvous that if he had known the real facts he would not have passed the orders which were to the benefit of the appellant. The learned counsel for the appellant urged that as the order of the Director-General, Post and Telegraph, Pakistan, did not result in that officer suffering damage or harm mentioned in section 415 of the Pakistan Penal Code nor was it likely that he should suffer that 'kind of damage or harm, the third one of the ingredients of section 415 of the Pakistan Penal Code was not satisfied and, therefore, the appellant could not be held guilty of an offence of cheating. It is clear that the Director General, Post and Telegraph, Pakistan, did not suffer any damage or harm in body or mind, but the question to consider is whether any damage or harm to reputation or property resulted.

9. It may be that if he had been much too suspicious, the Director General, Post and Telegraph, Pakistan, who passed the relevant order in favour of the appellant would not have passed that order, but the circumstance that the officer did not do more than what is ordinarily done in such cases to verify the correctness of the contents of the application on which the orders were passed, cannot have the effect of doing harm or damage to his reputation. He had acted on the application sent by the appellant as there was nothing in the papers sent to him to indicate that the application contained a misrepresentation. This is clear from the deposition of Mr. Shamim Ahmad, the Assistant Deputy Director General, Post and Telegraph, Pakistan, at the relevant time, wherein he said in clear terms that orders were passed in favour of the appellant because the contents of his application were accepted to be correct. If the reasons for absence from duty which the appellant mentioned in his application were correct, the order passed in the appellant's favour by the Director General, Post and Telegraph, Pakistan, was an appropriate order and, consequently, it follows that in the circumstances of, the case the passing of the order did not and was not likely to cause damage or harm to the reputation of the Director General, Post and Telegraph, Pakistan.

10. The learned counsel for the appellant contended that as no damage or harm resulted to the property of the Director General, Post and Telegraph, Pakistan, nor was damage or harm to the property of that officer likely, the appellant could not be convicted of the offence of cheating, notwithstanding the fact that he had made a misrepresentation in his application which had been acted upon. On the factual plane the contention is correct, because though he passed the order that the appellant get half of his average pay for the first twelve months of absence from duty without leave, the money was paid by some other officer on behalf of the Government of Pakistan and not by the Director General, Post and Telegraph, Pakistan, but after giving full consideration to it, I have arrived at the conclusion that the contention, though it appears to be correct at first sight, is not actually so. In law the orders passed by the Director General, Post and Telegraph Pakistan, are to be deemed to have been passed by the Government whose servants the Director General, Post and Telegraph, Pakistan and the appellant were. The money paid to the appellant in consequence of the orders of the Director General, Post and Telegraph, Pakistan, was paid out of the Government treasury which was the property of the Government, and the circumstances that the hand that paid that money was that of a servant of the Government cannot make the payment lose its character of payment by Government. It follows, therefore; that the Government, whose servant the appellant was, was deceived and because of that deception the Government so deceived paid him money which he was not entitled to and which would not have been paid to him if the Government had not been deceived into believing that the absence of the appellant from duty for the relevant period was for the reasons which he had detailed in his application. I might add that what I have said above about the Director General, Post and Telegraph, Pakistan, 'not having suffered and not being likely to suffer damage or harm in mind, body and reputation has full application even if the person deceived is to be taken to be the Government, because all considerations that would apply if the officer were to be deemed to be the person deceived will have application if the person deceived were the Government.

12. To support his contention the learned counsel for the appellant relied on some decided cases which I will now consider Muhammad Bakhsh v. The Crown ((1941) 22 Lah. 718.), which was the first case relied upon by the learned counsel for the appellant, is a decision by two learned Judges of the High Court of Judicature at Lahore. In that case the accused had practised deception on a Government servant and had by the deception got some property belonging to a private person entered in the revenue records in his own name. Under the circumstances it was held that the case was not covered by section 415 of the Pakistan Penal Code because the person deceived had not been deprived of any property by reason of the deception practised on him. It is manifest that the facts of that case were entirely different from those of the present one, because the person deceived had not parted with property by reason of the deception, while in the present case, as I have indicated above, the person deceived, i.e., the Government, parted with property, i.e., money representing twelve months' half average pay of the appellant, which belonged to it. The second case relied upon by the learned counsel for the appellant is not reported in any law journal but is mentioned at pages 1964‑65 of Rattan Lal's Law of Crimes, 1953, (Eighteenth Edition). The case is Kashinath Mahadev Phatak v. The Crown (Criminal Application for Revision No, 402 of 1909,) decided by Chand avarkar and Knight, two learned Judges of the Bombay High Court on the 24th of February, 1910. The facts were that the accused in the case applied to the postal authorities and obtained appointment in that department but had not mentioned in his application for appointment that he had been dismissed from Government Service. He was charged with and convicted of cheating as he had not stated the fact of his dismissal in his application for appointment. On case coming up before the High Court on a petition for revision by the convict, Knight J. remarked as under :‑ "I find no difficulty in concluding that the petitioner's silence regarding his previous employment, deceived and was meant to deceive the authorities of the Post Office, and thereby procured him an appointment that he would not otherwise have obtained. But I do not think that this amounts to an offence under section 415 India Penal Code. For neither the act of appoint ment, no r the omission to inquire into the petitioner's antecedents caused, or was likely to cause, damage or harm to the body, mind, reputation, or property of the person deceived. Such damage or harm must, I take it, be the proximate and natural result of the act or omission : and we cannot include in it such vague and contingent injury as might arise from the discredit that might attach to the Department from the employ ment of a man of doubtful character. It has not been suggested that the damage to be apprehended was that which might be caused by the petitioner's dishonesty : and this too would be a consequence too remote for the purposes of the section. 1, therefore, agree that the conviction should be quashed". Now the above quoted passage would show that the question of damage or harm to Government property was not considered in the manner I have dealt with it, but if it were the decision may perhaps have been the same as it was. The man had worked and got money for the work he had done. The fact that he had been dismissed from Government service did not disentitle him to get payment for the work done by him, though if he had disclosed the fact of his dismissal, he would not have been appointed. In the present case the appellant got salary for a period during which he did not work for Government and during which he was getting more salary by serving another master and it is clear that the decision in the case relied upon by the learned counsel for the appellant does not deal with the facts with which the appellant is faced.

13. In view of what I have said above I hold that the facts established prove an offence of cheating against the appellant and his conviction is consequently upheld. It would appear that this case fell under section 420 of the Pakistan Penal Code, but because the learned trial Judge acquitted the appellant of that offence and there is no appeal by Government against that acquittal, I need not consider the question fully and would pass on to the question of sentence. Though the offence proved is by no means of a minor character, I think that because the incident took place very long ago, the appellant has had a protracted trial and the appellant has been on nail for quite some time, I reduce the sentence of imprisonment to the term already undergone but maintain sentence of fine and the imprisonment ordered by the trial Judge in case the appellant does not pay the fine. A. H. Sentence reduced.