P L D 1959 (W (PLP)

Dilawar Mahmood for A. G. Respondent. Date of hearing : 28th January 1959. This is a petition for revision of the order of the learned Sessions Judge3 Rawalpindi, dated the 11th of March 1958, dismissing the appeal of the petitioner, who had been convicted under section 406, P. P. C. by a Magistrate of the 1st Class, Rawalpindi, and sentenced to one year's rigorous imprisonment and a fine of Rs. 500, with three months' rigorous imprisonment in default.

2. The facts briefly are that a money‑decree was passed in favour of one Kh. Abdul Majid against one Fazal Din. In execution of that decree certain property of the judgment‑debtor, valued at approximately Rs. 337, was attached and made over by the bailiff to the petitioner as sipurdar on his entering into the usual bond. On the 7th of June 1957 a notice (Exh. P. B.) was served on the petitioner calling upon him to produce the articles at the house of the judgment‑debtor on a certain date, but the petitioner failed to comply. A second notice, served on him on the 2nd of July 1957, met the same fate, and a bailable warrant was issued for his arrest. He was subsequently prosecuted under section 406, P. P. C. and convicted and sentenced as above stated.

3. The petitioner pleaded not guilty, and produced one witness in defence. He admitted service of the notices in dispute, but alleges that he went to the house of the judgment‑debtor to inform him that he (the petitioner) had been called upon to produce the property and that he was there told that the decree had been satisfied. He then handed over the property to the judgment‑debtor.

4. The first argument advanced by Raja Said Akbar for the petitioner is that since, under Rule 43‑D of Chapter 12‑K, High Court Rules and Orders, Volume I, any person who has under?taken to keep attached property under Rule 43 (1) (c) of the same Chapter shall be liable to be proceeded against as a surety under section 145 of the Code of Civil Procedure, the petitioner cannot be held to have been guilty of an offence under section 406, P. P. C. This contention is entirely without substance. The liability of the petitioner as a surety under section 145, C. P. C. is entirely distinct from his criminal liability under the Penal Code. In the case Doda Shah v. Bishen Das (A I R 1928 Lah. 181), relied upon by the petitioner, the only question before the Court was whether the liability of the respondent could be enforced in execution proceedings or whether it was necessary to bring a regular suit to enforce such liability. There had been a divergence of opinion on the point, and the learned single Judge before whom the case came up for hearing in the first instance referred it for decision to a Division Bench. The question of whether, by his default, the sipurdar was guilty of an offence under section 406 of the Penal Code, was never in issue, and I have no hesitation in holding that the only effect of the rule cited by the petitioner is to set at rest the question of his liability as a surety, and that it cannot be interpreted as an indirect decision that he cannot be prosecuted for an offence under section 406, P. P. C.

5. The learned trial Court in this case rightly relied upon Chanan Singh v. Emperor (A I R 1935 Lah. 31), in which it was held that a deliberate refusal of the petitioner to produce the property attached and given to him for safe custody amounts to a B repudiation of his trust, and that he is consequently guilty of criminal breach of trust and punishable under section 406, P. P. C. In the course of his judgment in the above case, the learned Judge discussed Harnam Singh and another v. Emperor (A I R 1918 Al1. 406 (1)) and distinguished it on the ground that in that case there was no refusal on the part of the accused to produce the property, they having simply evaded service. The reason actually given by the learned Judge in the Allahabad case for holding that the accused could not be convicted under section 406, P. P. C. is, however, that the property had not been misappropriated or converted to the use of the accused, nor used or disposed of in any manner contrary to the terms of the trust. It is not completely clear from the Allahabad judgment whether the learned Judge would have held that the property had not been used or disposed of in any manner contrary to the terms of the trust if, as in the present case, the notices issued to him had been served. On this point, there is no doubt in my mind that when a notice has been served upon a sipurdar to produce the property entrusted to him in Court on a certain date, his retention of the property beyond that date C amounts to using or disposing of it in a manner contrary to the terms of the trust, thereby rendering the accused liable under section 406, P. P. C.

6. Raja Said Akbar attempted to distinguish between two types of case, first, those in which the property attached is the actual subject‑matter of the decree, and, second, those in which, as in the present, the decree was for the payment of a sum of money, but this distinction is irrelevant. The essential fact is that the sipurdar was called upon to produce the property in dispute, and failed to do so. The purpose for which the property had been attached was immaterial so far as the petitioner's liability under his bond is concerned.

7. Raja Said Akbar produced a copy of an order of a Magistrate of the Third Class, Rawalpindi, convicting the petitioner under section 174, P. P. C. and sentencing him to a fine of Rs. 20, stating that the above conviction is based upon the same facts as in the present case, and that consequently the present conviction was illegal. This argument rests on a mis?apprehension. The ingredients of an offence under section 174, P. P. C., are entirely different from those constituting an offence D under section 406, P. P. C. If the petitioner had appeared in Court without the property, he could not have been convicted under section 174, though he might have been at the same time guilty of an offence under section 406, P. P: C. Conversely, if he had sent the property to the Court without appearing himself, he might be held liable for an offence under section 174, but would have a complete answer to a charge under section 406 of the Code.

8. It is next argued that as the judgment‑debtor had satisfied the decree the petitioner committed no offence in handing the property over to him. This contention is founded on the assumption that the petitioner was an agent of the judgment debtor, but he was not, his liability being to the Court. Morel over, Mr. Dilawar Mahmood for the State pointed out that in the present case the judgment‑debtor did not satisfy the decree till the 16th of September 1957, long after the notices in dispute had been served on the sipurdar.

9. No other argument advanced by the petitioner has any force, and on the merits there is no reason to interfere.

10. On the question of sentence, however, I consider that the substantive sentence of imprisonment imposed by the trial Court is sufficient to meet the ends of justice without the addition of fine. The order of fine is accordingly set aside, the revision being accepted to that extent only. K. B. A.?????????????????????????????????????????????????????????????????????????????????????????????? Sentence modified.