P L D 1959 (W (PLP)

The provisions of this Ordinance, and any rule or order made thereunder, shall have effect notwithstanding anything incon sistent therewith contained in any other law for the time being in force, or in any instrument having effect by virtue of any such law." This Ordinance was repealed by the Pakistan (Administration of Evacuee Property) Ordinance (XVIII of 1956) which came into force on the 22nd of September 1956, and the provisions of law referred to above were re‑enacted in identical terms as sections 40, 32, 2 (3) & 4 respectively. The latter Ordinance was re‑enacted on the 17th of November 1956, as the Pakistan Administration of Evacuee Property (Second) Ordinance (XX of 1956) and the aforesaid provisions were incorporated exactly in the same terms in sections 36, 28, 2 (3) & 5 respectively. This last Ordinance was replaced by the Pakistan (Adminis tration of Evacuee Property) Act (XII of 1957) and the sections referred to above were replaced by sections 39, 31, 2 (3) & 5 respectively. As the relevant provisions of the various Ordinances and the Acts are identical, I propose to refer hereinafter, only to the provisions of Ordinance XV of 1949.

4. From a perusal of these provisions of law, it is perfectly clear that no Court could take cognizance of the offences made punishable under these provisions except on a report in writing of the facts constituting such offences made with the previous sanction of the prescribed custodian. But it is equally plain that the bar relates only to the offences made punishable under the laws referred to above, and not to any other offence which is punishable under the general law. In this view of the matter, both the lower Courts have erred in holding that the Court could not have taken cognizance of the offences for which the accused were sent up for trial, because these offences are punishable under the Pakistan Penal Code and not under the aforesaid laws.

5. Learned counsel for the respondents, however, contended that in the cases in hand, the unlawful conversion of the evacuee property to one's own use is punishable only under section 24 of Ordinance XV of 1949 or under section 32 of Ordinance XVIII of 1956. Here it may be pointed out that the challan out of which Criminal Revision No. 760 of 1957 has arisen was put in Court on or about the 8th of September 1956 and the remaining four challans were put in Court in October 1956. Learned counsel maintained that as the foundation of the case against the accused is laid mainly on the allegations that they had unlawfully converted to their own use, the property of the Syndicate which is an evacuee concern, therefore the Court was debarred from taking cognizance of the offences without any report having been made with the previous sanction of the Custodian as required by section 32 or 40 of the aforesaid Ordinances.

6. The first question, therefore, which arises in this con nection is whether the offences for which the accused were sent up for trial fall within the purview of an offence made punishable under section 24 of the Ordinance. It is indisputable that except for the offences under sections 408 & 409, P. P. C. the remaining offences have not the remotest resemblance with any of the offences under the Ordinance. However, it may be conceded that the main offences for which the accused were sent up for trial are sections 408 & 409 and the remaining offences are merely subsidiary, and were, in all probability, committed in order to cover up the offences under sections 408 &

409. These offences are aggravated forms of criminal breach of trust. The basic offence, therefore, is the offence of criminal breach of trust which is defined in section 405, P. P. C. For the purpose of finding out whether section 405, P. P. C. deals with the same offence as contemplated under section 24 of the Ordinance it seems necessary to analyse these sections to understand their full scope. The essential ingredients of these offences are as follows :‑ Section 405 P. P. C. Section 24 of Ordinance XY of 1949

1. Entrusting any person with property or with any dominion over property,

1. Any person, 2. the person entrusted ; (a) who wilfully causes damage to any evacuee property ; (a) dishonestly misappropriating or converting to his own use that property ; or (b) or allows damage to be caused to such property ; or (b) dishonestly using or disposing of that property or wilfully suffering any other person to do so in viola tion‑ (c) unlawfully converts it to his own use. (i) of any direction of law prescribing the mode in which such trust is to be discharged, or (ii) of any legal contract made touching the discharge of such trust. By a comparison of the ingredients of the two offences, it is apparent that the two offences are not identical. Whereas section 405, P. P. C. requires that the property which is the subject‑matter of the offence, must have been entrusted to the person accused of the offence, such entrustment is not at all necessary for an offence under section 24 of the Ordinance. Another important difference between the two offences is that dishonest intention is the gist of an offence of criminal breach of trust but such intention is not necessary for the commission of an offence under section 24 of the Ordinance. The word "dishonestly" is defined in section 24 of the Pakis tan Penal Code. It says: "Whoever does anything with the intention of causing wrong ful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly". Therefore, unless there is wrongful gain to one person or wrongful loss to another, an act would not be dishonest. But the word "unlawfully" used in section 24 of the Ordinance does not connote the doing of anything with the intention of causing wrongful gain to one person or wrongful loss to another person. "Unlawfully" is not defined in the Penal Code. Its dictionary meaning is some thing which is forbidden by law or is contrary to law. The dishonest intention which is the essence of the offence of criminal breach of trust is not a component part of an offence under section 24 of the Ordinance. Section 405 deals with any kind of property, but section 24 of the Ordinance refers to evacuee property only. From the above, it is clear that although the foundation of both the offences is "the conversion of the property to one's own use", yet the two offences in their scope cover different fields altogether. In my opinion, there has been no overlapping of legislation over the same field. This being so, I do not think that the offences for which the accused were sent up for trial fall within the purview of section 24 of the Ordinance and consequently the sanction of the Custodian was not necessary for initiating the pro ceedings against the accused.

7. But assuming for the sake of argument, that the offence of criminal breach of trust is also punishable under section 24 of the Ordinance, I see no force in the contention that the accused could not have been tried for an offence under section 406, P. P. C. or for that matter under section 408 or 409, P. P. C. and should have been tried only under section 24 of the Ordinance. Section 26 of the General Clauses Act X of 1897 provides as follows:‑ "Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be pro secuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence." In view of this provision of law, it was legally permissible to prosecute the accused either under section 406 or under section 24 B of the Ordinance. I am fortified in this view by a decision of a Division Bench of the Lahore High Court in the case of Crown v. Babu Khan (P L D 1952 Lah. 472) where the learned Judges held that the accused could be tried under section 408 of the Pakistan Penal Code without the sanction of the competent authority although the act complained of also constituted an offence under section 5 (1) (c) of the Prevention of Corruption Act, 1947, which could not have been taken cogni sance of without the sanction of the competent authority as required by section 6 of the latter Act. The Supreme Court of India has also dealt with a similar question in the case of Om Prakash Gupta v. The State of U. P. (P L D 1957 S C (Ind.) 513). Their Lordships after dealing with the question at some length arrived at the same con clusion as had been arrived at by the learned Judges of the Lahore High Court. It is true that these cases did not deal with the provisions of Ordinance XV of 1949, but by parity of reasoning, the principle laid down in the aforesaid rulings is fully applicable to the facts involved in the revisions under consideration.

8. Learned counsel for the respondents, however, relied on the case of Munshi Nur Ahmad and others v. Malik Abdur Rahman (P L D 1957 B J 10). The facts of that case were, that a complaint had been filed under section 467 of the Pakistan Penal Code on the allegations that the accused had misappropriated a sum of money by forging accounts. It was held by the learned Chief Justice that the allegation really amounted to charging the accused with misappropriation; of money and as this offence was covered by clause (c) of section 5 of the Bahawalpur Prevention of Corruption Act, it could only be tried after obtaining the requisite sanction under section 6 of that Act ; and without such sanction the case could not be proceeded with. The facts of that case are clearly distinguishable and consequently this ruling has no application to the facts of the present case.

9. Learned counsel for the respondents further maintained that the relevant provisions of law in the earlier enactments must be deemed to have been repealed. This point was also raised in both the rulings referred to above, but was not accepted. Learned counsel, however, invited my attention to section 24 of the Ordi nance which has been reproduced above. He contended that this section has by implication repealed section 405, P. P. C. I do not agree with this contention. It has not expressly repealed sec tion 405, P. P. C., nor has it repealed that section by implication. Having regard to the provisions of section 26 of the General Clauses Act, the implication must be quite clear. In my opinion, the provisions of the Ordinance do override other laws, but only to the extent of the inconsistency therewith, contained in those laws. I have already held that the two offences are distinct and separate and, in my opinion, there is no inconsistency in the provisions of section 405, P. P. C. and those of section 24 of the Ordinance. However, it does not appear to be necessary to determine this question, because the Ordinance had not been even promulgated at the time when the offences are alleged to have been committed. According to the prosecution, the amount involved had been embezzled before the 15th of October 1949, and it was only on this date that the offence under section 24 of the Ordinance was created for the first time, in respect of unlawful conversion of evacuee property to one's own use. Except for the paltry sum of Rs. 214‑2‑0 mentioned at entries Nos. 117, 118, 119, 120 and 121 in Exh. P. F. which is a statement showing the amounts transferred from the Syndicate to the Milling association, the huge amount of about Rs. 15,00,000 had been transferred before the 15th of Octo ber 1949. It is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construc tion appears very clearly in the terms of the Act or arises by necessary implication. There is no provision of law in the Ordi nance to the effect that it would have a retrospective effect. Excluding the amount of Rs. 214‑2‑0, the whole amount is said to have been embezelled before the 15th of October 1949. Conse quently, the accused could not have been tried under section 24 of the Ordinance and hence the question of the repeal of section 405, P. P. C. or of the initiation of the proceedings with the sanction of the prescribed custodian did not arise at all. The accused were, therefore, rightly sent up for trial for the offences under the general law, and the sanction of the Custodian was not necessary for initiating the proceedings against the accused. For the purpose of deciding these revisions, I have assumed throughout that the property in question was evacuee property, although I have some doubt if it was really so.

10. For the aforesaid reasons, I set aside the order of dis charge of the accused passed by the trial Magistrate under section 253, Criminal Procedure Code, and remit the case for trial in accordance with law to the Court of the Additional District Magistrate, Lahore, who may try the case himself or send it to some other Court of competent jurisdiction.

11. Now, I shall take up Criminal Revisions Nos. 759, 761, 762 and

783. In these revision petitions there are only two respon dents, viz., Mehar Karim Bakhsh and Mehr Khuda Bakhsh. The case for the prosecution was that as proprietors of the Electric Roller Flour Mill, they had committed criminal breach of trust in respect of wheat which had been entrusted to them by the Syndi cate for the purpose of grinding. 836 maunds, 7 seers and eight chhataks of wheat are alleged to have been dishonestly misappro priated between 27th August 1947 and 9th September 1947 ; 339 maunds, 13 seers and 3 chhataks of wheat are alleged to have been misappropriated between 22nd September 1947 and 14th Novem ber 1947, and 181 maunds, and 20 seers of wheat are alleged to have been misappropriated on the 22nd of January 1948. These relate to cases out of which Criminal Revisions Nos. 759, 762 and 761 of 1957 respectively have arisen. It is also alleged that the accused had realised Rs. 1,13,851‑2‑0 from the depot‑holders on behalf of the Syndicate from May 1947 to September 1947 and had also embezelled this amount. This relates to the case out of which Criminal Revision No. 783 has arisen.

12. I regret to note that the learned trial Magistrate did not care to read the police reports under section 173 of the Code of Criminal Procedure, which are on the files of these cases. He did not examine any witness in three cases and recorded the statement of only one witness in the fourth case. In his order of discharge, he did not refer to the facts of these cases at all. In all these cases the offences are alleged to have been committed long before the Pakistan (Administration of Evacuee Property) Ordinance XV of 1949 had come into force. The accused in these cases could not have been tried under section 24 of the Ordinance, as at the time of the commission of these offences, section 24 was not even in existence, and, consequently, the question of the sanction of the Custodian did not arise at all. For these reasons, and for the reasons given above in connection with Criminal Revision No. 760 of 1957, I set aside the order of discharge of the accused in all these cases and remit them for trial in accordance with law, to the Court of the Additional District Magistrate Lahore, who may try the cases himself or send them to some other Court of compe tent jurisdiction. K. B. A. Case remanded.