P (PLP)

S. A. RAHMAN, J.

‑I agree that in view of the difficult questions of law involved in the case, it should be referred to a larger Bench, subject to orders of the Hon'ble C. J. MUHAMMAD MUNIR, C. J.--‑On 17th March 1949, Mr. Abdur Rahman, Legal Adviser, Special Police Establishment, Lahore, acting as Public Prosecutor, stated before Mr. S. M. Baqar, Special judge, appointed under the Pakistan Criminal Law Amendment Act, 1948, (XIX of 1948), the following particulars of the offences alleged to have been committed by Sardar Muhammad Khan Alvi, Maulvi Ata Muhammad, Jamaat Ali Shah, Muhammad Tufail, Rustam Ali and Akhtar Ali Amongst the charges which would be the subject of the accused, charge No. 1 formulated below, consists of several incidents and acts of Mr. S. M. K. Alvi prior to 17th April 1948, Accused Nos., 2 to 4 being respectively, the real brother of Mr. Alvi, the Manager of the Standard Engineering Co., Jaranwala, and an employee of the above said Company, were the persons benefited, or intended to be benefited, jointly and severally, by the acts of Mr. Alvi, but these persons were not directly concerned in the actual commission of the offences which resulted in the unlawful gain to them and the correspond ing unlawful loss to the Government. This charge, which is not common to Mr. Alai and the afore‑aid persons is therefore a separate and distinct charge, which it is respectfully submitted, may be tried separately against Mr. Alvi only. The remaining charges come within the definitions of different offences, as given in the Indian Penal Code, and Act II of 1947, and relate to offences which are alleged by the prosecution to have been committed, or abetted by Mr. Alvi, and other accused in prosecu tion of the common object of a Criminal Conspiracy between him and his co‑accused during the period between 15th April 1948 and 1st May 1948. These latter may be tried jointly against all the accused in a separate trial, Charge No. 1.‑That Mr. S. M. K. Alvi, as a public servant holding the important and responsible post of Steel Licensing Officer, Punjab, during the period beginning from June, 1 47, habitually abused his position as ,a public servant :‑ (1) in the matter of issuing permits for various quantities of steel, by a dishonest or fraudulent shower of favours on his own relatives and fiends to the exclusion of other deserving persons, (2) Similarly in the matter of allotment of valuable Hardware shops and the securing or appointment or nomination of his relatives and friends as registered stockists'; thus obtaining for himself, or other persons, valuabls things or pecuniary advantages, of dishonestly or fraudulently allowing other persons to misappropriate iron and steel entrusted to him or under his control as such public servant, thereby committing the offence of criminal misconduct as defined in section (c) and (d) of Act II of 1947. "Charges against all the accused.‑--(1) That Mr. Alvi, as al public servant, holding the aforesaid post, in conspiracy with his co‑accused, by corrupt or by illegal means, or by otherwise abusing his position as a public servant, had been obtaining for his brother and other relations many a pecuniary advantage or valuable thing by issuing iron and steel from the Government dumps under his control in excess of the quantity charged for, or entered in the permits issued in that behalf, and that in l pursuance of that conspiracy, and as a part of his usual practice, he had, on 18th April 1948, issued iron and steel from the Government dumps under his direct charge as ' Steel Licensing Officer., Punjab in excess of the quantity entered in permit No. 4941, dated 17th April 1948, ostensibly in the name of ` J. A. Shah & Co. of Jaranwala, which quantity was, in fact, intended for the Standard Engineering Co., stated to have been allotted to his real brother, accused No. 2, but actually a joint family concern, in which Mr. Alvi was himself also vitally in order to facilitate the commission of the aforesaid offences, or to destroy the evidence in support there of, and cover up the track of the offences, Mr. Alvi with the active assistance of his co‑accused, committed, or abetted the commission of several forgeries in the records of his office relating to the issue of iron and steel pertaining to the above said permit. The accused had, therefore, committed offences defined in 1 sections 380, 409, 411, 468, 477‑A and 218 read with section 120‑B, Indian Penal Code, which offences are triable by the Court of Special judge appointed under Act XIX of 1948. These particulars were‑stated in compliance with the terms of section 242 of the Code of Criminal Procedure which in the case of trials of summons cases requires the Court, when the accused appears or is brought before it, to state to him the particulars of the offence of which he is accused and to ask him if he has any cause to show why he should not be convicted. On the following day, Sardar Muhammad Khan Alvi accused objected to the prosecution's prayers for the separate trial of charge No. 1, but the learned judge overruled the objection remarking that it was the right of the prosecution to have a joint or a separate trial and that he saw no harassment as alleged by that accused in the course proposed by the prosecution to be adopted. All the accused then pleaded not guilty to the other charges and claimed trial. After a protracted trial the learned judge wrote a lengthy judgment, convicting Ata Muhammad under section 379, and Rustam Ali and Tufail Muhammad under section 379 read with sections 109 and 114, Indian Penal Code, and sentencing the first to six months' simple imprisonment and a fine of Rs. 500 and the latter two to three months' simple imprisonment and a fine of Rs. 50 each. Sardar Muhammad Khan Alvi, Jamaat Ali Shah and Akhtar Ali were acquitted. The three persons who have been convicted appeal against their conviction, while Government being dissatisfied with the acquittal of Sardar Muhammad Khan Alvi and the sentences passed on those found guilty, have appealed against the former and put in a petition for revision of the sentences of the latter. Before the Government had preferred the appeal or the petition for revision, I had suo motu issued notice to Sardar Muhammad Khan Alvi, Jamaat Ali Shah and Akhtar Ali requiring them to show cause why their acquittal be not set aside and a retrial ordered as well as notice to Ata Muhammad, Rustam Ali and Tufail Muhammad to show cause why their sentences lie not enhanced with or without altering the findings. All these matters were first heard by a Division Bench consisting of Mr. Justice Rahman and Mr. Justice Jan, but in view of the im portance of a law point involved, have been referred to a Full Bench. Sardar Muhammad Khan Alvi, who will hereafter be described as Alvi, was the Steel Licensing Officer for West Punjab function ing under the Iron and Steel (Protection, Distribution and Imports) Control Order, 1948. He was also an Assistant Rehabilitation Commissioner for the Province, and in the latter capacity was incharge of two Government dumps of iron and steel goods collected from different shops of hardware merchants who had migrated to India just before o office on the Abbott Road and the two dumps were close by. He himself resided in a house oat far from the Nishat Cinema which is also on Abbott Road. Ata Muhammad is the brother of Alvi. Before the partition, Ata Muhammad managed a joint family concern at Jullundur, called the Standard Engineering Company. On Partition, he left Jullundur and came over to Pakistan and was allotted a concern at Jaranwala called the Sant Engineering Company which was owned by a Sikh evacuee. Ata Muhammad changed the name of this concern from Sant Engineering Company to Standard Engineering Company. Nothing is known about Jamaat Ali Shah except that his name appears, in the salary bill register of the Standard Engineering Company, Jaranwala, and in the month of March 1948, he is shown to have worked for 22 days and received an advance of Rs.

40. Tufail Muhammad also, as appears from the salary bill register of the Standard Engineering Company for February 1948, was an employee of that Company working as a moulder on a salary of Rs. 35 per mensem. Rustam Ali and Akhtar Ali were clerks in the office of the Steel Licensing‑Officer. Under section 4 of the Iron and Steel Order, 1.948, no person can acquire any iron or steel except under the authority and in accordance with the conditions contained or incorporated in a general or special written order of the Controller. When a person, whether an individual, firm or company, wishes to acquire any iron or steel he has to apply to the Steel Licensing Officer in the prescribed form stating the nature of the work for which the steel is required and the various categories, sections, sizes and quantity of the steel required, solemnly declaring that no application on his behalf has been made or accepted for the period for which he has applied and undertaking that the material asked for shall not be used ‑for any purpose other than that applied for. After the preliminary noting the application is submitted to the Licensing Officer who sanctions or‑refuses to sanction all or any part of the material applied for. The application then goes to the office for the preparation of the estimate. If any of the material applied for is not available in the stock, the matter has to be referred back to the Licensing Officer for orders. After the estimate has been prepared, the office prepares a permit in the prescribed form giving therein the name and address of the department, firm or individual, authorizing him to acquire the materiar from the stockist named therein, stating the purpose for which the material has been acquired and dir ting the permit holder to return the permit to the authority that issues the material. On the back of the permit are entered the serial numbers of the various categories of the material permitted to be acquired, their specifications, i.e., sizes and types, and the quantity and weight of each category. The permit is then signed by the Licensing Officer. After this, another` docu ment called the route permit is prepared in the office and signed by the Licensing Officer and Assistant Rehabilitation, Commis sioner, referring to the application for the supply of the material, giving the number and date of the permit the weight of the material sanctioned and authorizing the removal of the material from the store on which the permit is issued. On 17th April 1948,.Alvi as Steel Licensing Officer or Assistant Rehabilitation Commissioner, put his signature on three documents. (1) Ex..2, a permit in the name of Syed J. A. Shah & C o., Jaranwala, authorizing them to acquire from the Abbott Road Stores Officer dump, 3 tons 13.cwts 1 qr. and 19 lbs. of material specified therein ; (2) Counterfoil or carbon ropy of Ex. 2 ; and (3) Ex. 3, the route permit, authorizing Messrs. S. J. A. Shah & Co., Jaranwala, to remove 3 tons 13 cwts. 1 qr. and 19 lbs. material under permit No. 4941, dated the 17 h April. The acquirer's name both in the permit and its counterfoil was written on an obviously erased space and while the former was in the name of Syed J. A Shah & Co, in the latter the words " and Co." were struck out under Alvi's own signature. The name " Syed J. A. Shah & Co." in the permit was also signed by Alvi. The word M/S before " S. J. A. Shah & Co." in the route permit did not appear in the permit or‑its counterfoil. On the authority of the permit Ex. 2, a truck was loaded with some material from both dumps on the Abbott Road on 18th April 1948 which was a Sunday. The loading finished at about 4‑30 p.m. and the truck left the dump sometime afterwards and stopped opposite the Nishat Cinema at a distance of about half a furlong from Alvi's residence. There is no dispute about the facts stated so far, but here after reference may be made to the evidence of Muhammad Shaft P. W. 2 in order to understand further developments. This witness is himself an Assistant Rehabilitation Commissioner one of whose, function was to watch the movements of industrial stores including iron and steel. In the afternoon of 18th April the witness was going with a friend Ghulam Sarwar from Abbott Road to Nishat Road where he had to attend a wedding when opposite the Nishat Cinema he noticed a truck loaded with iron and steel: He stopped near the truck and made some inquiries from the persons in it who told him that the owner, who was not present, had the documents relating to the material in the truck and that he alone could give the particulars required. Shortly afterwards Ata Muhammad came up and showed the witness two documents. Ex. 2 the acquisition permit, and Ex. 3 the route permit. The witness examined the permits and on checking the contents of the truck found that the weight and the quantity of the meterial in the truck appeared to be more than what was mentioned in the permit. There were also ten iron sheets on top of the truck which the witness thought were not covered by the permit. He walked to the Nishat Cinema where there was a telephone and attempted to get in touch with the Director of Industries. Just then Alvi came up and inquired from him what the matter was. The witness told 'Alvi that the truck was carrying more than what was permitted and offered to show it to him by taking him in the truck. Alvi, however, insisted that the witness should go not to the truck but to Alvi's house to avoid a scene and talk the matter over with him there. The witness had posted his friend Ghulam Sarwar, and a nearby constable to watch the truck when he had gone to the Nishat Cinema to telephone. While on the way to Alvi s house, Alvi told the witness that there might possibly be some excess in the contents of the truck but that it was a common occurrence in those days that when articles of one category were not available, those of another category were substituted. When the wit ness and Alvi reached the latter house, they found a. may sitting there who was introduced by Alvi as his brother. During the conversation, Alvi again told the witness that there was u, question of there being much excess in the material as he hall himself supervised the loading. The witness decided to leave the matter there and returned both the permits to Ata Muhammad. Muhammad Shafi returned to his car and was about to leap leave place when he saw Ata Muhammad and his companion, unloading some iron sheets from the truck in the presence Alvi. He drove to the residence of Muzaffar Hassan, another Assistant Rehabilitation Commissioner, and apprised him of what had happened, Muzaffar Hassan advised the witness to go to the Ravi Checking Post and there check the contents of the truck after having it weighed. Consequently Muzaffar Hassan; Muhammad Shafi and Ghulam Sarwar drove to the Ra, Checking Post but found that the truck had not yet arrived. Thereupon they went to Sarai Rattan Chand where he truck was supposed to be at that time. Reaching the Sarai, Muhamtmi Shafi left Ghulam Sarwar and Muzaffar Hassan there, directing them to follow the truck and himself went to Nisbat Road tea attend the wedding. Some time later Muzaffar Hassan also came to the wedding and told Muhammad Shafi that he had checked the truck, discovered excess in the material, recorded the statements of the occupants of the truck, taken in to the office of the Director of Industries, and asked the chowkidar to keep guard over it. The story is continued by Muzaffar Hassan who was examined as the lath prosecution witness in the case. He states that with Ghulam Sarwar he returned from Sarai Rattan Chand to the Ravi Checking Post at about 8 P.m. Some 15 minutes later the truck arrived and on his demanding the documents relating to the material the acquisition permit Ex. 2 and the route permit Ex. 3 were produced by Ata Muhammad who was one of the persons in the truck. Directing some coal‑bags and beddings that were in the truck to be removed, Muzaffar Hassan had the truck weighed and it was found to be 224 maunds. He then took the statements of Ata Muhammad and Tufail Muhammad and Rashid, the driver, Abdul Aziz, the assistant driver, and Mu hammad Ismail, the cleaner of the truck that very night he also write in the office of the Director a report about the in cident, which he took and showed to Muhammad Shafi at the wedding. Both he and Muhammad Shafi attempted to get in touch with the Director of Industries but could not find him. On the following day the witness submitted his report to Mr. B. A. Kureshi, Director of Industries. Giving evidence as the 15th witness for the prosecution Mr. B. A. Kureshi stated that at about midnight on 18th April 1948 while he was entering the Metro Hotel, Alvi came to him and mentioned the incident about the truck, Alvi requested that the truck might be sent to his office instead of being detained in the witness's office. The witness, however, said that the truck was in safe custody in his office and that lie would look into the matter next morning. When the witness returned to his house from the Hotel, Alvi again came to him arid insisted on his being permitted to remove the truck to his office on the ground that his prestige and a relation of his were involved. Next morning the witness saw the truck in his office under the guard of a chowkidar and received a report from Muzaffar Hassan. He telephoned to Mr. Mahmud‑ul‑Hassan, Secretary to Government in the Industries Department, and apprised him of the facts. Mr. Mahmud‑ul‑Hassan suggested that the truck should be re weighed under the supervision of Afzal, Deputy Iron and Steel Controller. The witness sent for Afzal but discovered that he had gone to Lyallpur. At about the same time a Deputy Super intendent of the Special Police Establishment came for the witness and said that written information had been received by him about the incident and that he had been deputed by his department to investigate. The police officer also alleged that according to his information relevant records were being tampered with. The witness then made a report to Mr. Mahmud‑ul- Hassan and directed the Deputy Superintendent of Police to go to him for further instructions. In the report submitted by him to Mr. Mahmud‑ul‑Hassan Mr. Kureshi referred to Muzaffar Hassan's report, to the visit to him of an officer of the Special Police Establishment, to the allegation that an attempt was being made to tamper with the office records and to the desire of the police that investigation into the matter be at once placed in their hands. He also said in that report that he was taking necessary steps to guard the truck and was sending all the rele vant papers in his possession. For some unknown reason Mr. Mahmud‑ul‑Hassan has not been called as a witness but his noting on Mr. Kureshi's report shows that on the night of 19th April 1948 he had ordered Ch. Abdur Rahim, Secretary, Industrial Planning Committee, to take the truck in his possession and that the material in the truck on being weighed was found by Abdur Rahim not to be in excess of the permit. Mr. Mahmud ul‑Hassan thought that the only question that arose was whether the permit was genuine or bogus, that it was not de sirable for the police to raid the office of the Steel Licensing officer, and that if any document was forged, it would automati cally be produced in defence. He, therefore, handed over the documents to the police with the direction to inquire whether the firm in whose name the permit had been issued was a genuine one or not. Ghulam Muhammad, Chowkidar P. W. 11 states that on that night of 18th‑19th April, Muzaffar Hassan brought a truck to the office of the Director of Industries at about 10 P.M. and left it in the charge of the witness, with the direction that he should permit nobody to touch it. On the following day Alvi accompanied by Abdur Rahim and a peon of the Secretary, Industries Development, came to him and asked him to hand over the truck to Abdur Rahim. The witness refused, where upon he was taken to the house of Mr. Kureshi. As Mr. Kureshi was not at home, the witness was taken to the house of Mr. Mahmud‑ul‑Hasan who inquired from the witness why he was not handing over the truck. The witness replied that the truck had been left in his charge by the Director of Industries with the direction that he should not permit any one to touch it. On this Mr. Mahmud‑ul-Hassan wrote ran order on a slip of paper which the witness took to the Director of Industries but could not find him. The Directo'r's wife, however, told the witness that he should comply with the order and hand over the truck to Abdul Rahim. The witness then agreed to hand over the truck on the condition that a Chowkidar from his office would remain with the truck during the night. Accordingly another Chowkidar, also named Ghulam Muhammad, accompanied the truck which was taken away by Abdul Rahman and Alvi. The Chowkidar returned in the morning at 7 or 8 A.m. but the truck did not return to the office of the Director of Industries before midday. The truck remained in the office of the Director of Industries where it began to be unloaded on 29th April. An inventory of the staff unloaded was prepared by Sana Ullah, an Inspector in the office of the Steel Licensing Officer, and Ch. Hashmat Ali, Inspector, Special Police Establishment. It is a complete in ventory giving detailed specifications of the stuff and estimates, the weight of the material to be 122 maunds, 27 seers according to Tata's Reference Book. After some confidential inquiry in which. Ch. Hashmat Ali recorded no statements,. the case was regularly investigated by Fagir Syed Moiz‑ud‑Dingy,. D. S. R., Special Police Establishment, under the supervision of Mr. Habib Ullah, ,also a Deputy Super intendent of. Police is the Establishment. The investigation was commenced in June 194$, and a formal accusation was put in Court on 17th March 1949. The prosecution examined nine teen witnesses and the defence only two; including Jalal Din, an Inspector in the once of the Steel Licensing Officer, who was originality one of the accused but against whom the charge was withdrawn because sanction for his prosecution had not been received. The allegation against Alvi is that he fraudulently issued a permit in the name of Syed J. A. Shah & Co. being fully aware that the material to be acquired under that permit was not meant for any firm of the name of A. Shah & Co. but for his brother Ata Muhammad who was an allottee of the Standard Engineering Company, Jaranwala, that on 18th April 1948, he dishonestly permitted the removal of some material from the office dump that was not covered by the permit and that after the truck carrying the unauthorized material was captured, he on 19th April 1948, forged the documents Exh. E. 17, 18, 19, 21 and 30, with a view to concealing the fraud to which both he and his, brother Ata Muhammad were parties. The charge against Ata Muhammad is that in collusion with his brother Alvi he first obtained a fictitious permit in the name J. A. Shah & Co. and then dishonestly removed from the office dump more material than was covered by the permit. Against Jamaat Ali Shah the allegation is that he was a party to the conspiracy to remove unauthorised material from the office dump as yell as to the subsequent conspiracy to forge the documents Exs. E: 21 and

30. Against Tufail Muhammad the accusation is that in conspiracy with Ata Muhammad he dishonestly removed unauthorized material from the office dump. Rustam Ali and Akhtar Ali, who are clerks in the office of the Steel Licensing Officer, are alleged to have been parties to the conspiracy to remove from the Government dump unauthorized material dishonestly, and the latter is alleged subsequently to have forged the document Ex.

18. The learned judge has held the prosecution case, so far as it relates to dishonest removal of the material, proved against Ata Muhammad, Tufail Muhammad and Rustam Ali. So far as Alvi, Jamaat Ali Shah and Akhtar Ali are concerned, his finding is that neither the charge of dishonest removal nor the charge of forgery has been established. Before the case is considered on the merits, it is necessary to deal with a point that has been raised for the first time in this Court by Mr. Manzur Qadir, learned counsel for the defence, because if the point is good the whole trial will have to be illegal and it will not be necessary to discuss the case on the facts. Mr. Manzur Qadir's contention is that the offences charged against the accused persons could not be said to have been committed in the course of the same transaction and that, therefore, their joint trial on different charge was illegal. To‑ be able to deal with this question it is necessary to refer to the opening paragraph of this judgment where the accusation as formulated by the prosecution has been reproduced. The prose cution case as unfolded at the trial was that all the accused who were tried together conspired dishonestly to remove Gov ernment material from the dump and in prosecution of the common object of that conspiracy did remove such material on 18th April and that after the truck was captured, Alvi in conspiracy with some of the other accused forged some documents on 19th April to provide evidence that no unauthorised material have been removed from the dump on the previous day. The accusa tion as read before the trial, however, did not clearly state that the forgeries charged were all subsequent to the removal. A reference to the accusation as read in Court before the trial commenced which has been quoted in the beginning of this judgment would show that the charge of conspiracy related both to the removal of the material and the forging of documents and that there was nothing m that accusation to indicate that the conspiracy to forge was different from or subsequent to the conspiracy to remove. In fact, the second portion of the accu sation under "charges against all the accused" alleged that the forgeries were committed "in order to facilities the commission of the aforesaid offence", i.e., the offence of dishonestly removing the material, "or to destroy the evidence in support thereof and cover up the track of the offences." On the statement of the accusation in this form there can in my opinion be no doubt that the accused men in this case were "accused of different offences committed in the course of the same transaction" within the terms of clause (d) of section 7.39' of the Code of Criminal Procedure, and this finding is sufficient to hold the trial to .be:.‑in order even if it transpired after the trial that there: was to con spiracy or that there were in fact two distinct conspiracies: one to remove the material dishonestly and the other subsequently to forge documents with a view to showing that no unauthorized material was removed from the dump. I have stated that be fore the trial opened, the Public Prosecutor decided to drop the charge that was peculiar to Alvi on the ground that it would be tried separately after the trial of the other charges and that counsel for the accused objected to this procedure by means of an application complaining that the separate trial of Alvi on the charge which related to him alone would amount to harassment of his client. The application prayed that that charge also should be tried jointly with the other charges but the learned fudge acceded to the request of the prosecution and permitted them to withdraw that charge for a separate trial. I have mentioned these facts at some length just to show that every one concerned thought at that stage that the joint trial of all the charges and of all the accused persons was perfectly in order. There was a general allegation of conspiracy to which all the accused were said to be parties and in prosecution of the object of that conspiracy two sets of offences were alleged to have been committed. Thus conditions requisite for a joint trial of charges and persons existed, and the Judge before whom the, trial was to open and the counsel for the accused both thought that such joint trial could under the law be held. Not, only that, learned counsel for the accused seems to have been of the view that the charge which was peculiar to Alvi could also be tried jointly with the other charge because that was also a part of the transaction, the whole of which had become the subject matter of inquiry before the learned Judge. The position taken up by Mr: Manzur Qadir before us is that, on the accusation having been read out, the learned judge should have come to the con4lusion that the two portions of the charge which was common to all the accused persons related to two different transactions and that for that reason a joint trial was not permissible under clause (d) of section 239 of the Code of Criminal Procedure which authorises joinder of different charges and different accused persons only if they are alleged to have committed different offences in the course of the same transaction. In order .to understand the position of this clause, it is necessary to refer to the general scheme of the Code of Criminal Procedure in regard to the joinder of charges and persons. The set of sections which deal with this matter occur in Chapter XIX of the Code. The general rule on the subject is contained in section 233 which gays that for every distinct offence of which a person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in section 234, 235, 236 and 239 Section 234 permits three offences of the same kind committed within the space of twelve months to be tried at one trial. Section 235 contains some more exceptions to the general rule, the most important being that in subsection (1) according to which more offences than one committed by the same person may be tried at one trial if they were committed in one series of acts so connected together as to form the same transaction. Section 23.6 mentions another exception to the general rule of separate trial for each offence, which is not of much importance for the purposes of the present case. Then comes section 239 which enumerates cases for the joint trial of different persons and different charges. According to clause (d) of that section, persons accused of different offences committed in the course of the same transaction may be charged and tried together. 1t will be noticed that the words " same transaction " occur both in subsection (1) of section 235 and clause (d) of section

239. The difference between the language of these provisions is significant because, whereas under the former to justify a joint trial the offences must have been committed by the same person in one series of acts so connected together as to form the same transaction. Under the latter all that is required is that the persons intended to be tried together should be accused of different offences committed in the course of the same trans action. It may be argued, and I mention this merely incidentally and with out expressing any opinion on it, that whereas to justify the trial of a person on two charges under subsection (1) of section 235, it may be necessary for the prosecution to slow that the offences were committed in one series of acts so connected together as to‑form the same transaction, the wording of clause (d) does not require as a condition precedent to a joint trial that the offences must have been committed in the course of the same transaction. All that is necessary to justify a joint trial under that clause is that the accusation must be of the commission of different offences in the course of the same transaction. It may be that after evidence is recorded and the judge has to give his findings, he may come to the conclusion, that no offences were committed in the course of the same transaction. Any such finding; it goes without saying, would not affect the legality of the trial, the only test for which is whether the persons tried together were accused of offences committed in the course of the same transaction. That this is the correct position is clear from the Privy Council decision in Babulal Chaukhani v. Emperor (A. I. R. 1938 P. C. 130) which contains an exhaustive exposition of those sections of the Code which deal with the joinder of persons, and charges at one trial. Lord Wright delivering the judgment of the Board said in that case :‑ "The common concert and agreement which constitute the conspiracy, serve to unify the acts done in pursuance of it. So far seems clear; but the point of difficulty which has been strenuously argued in this appeal relates to the point of time in the proceedings at which the condition prescribed by the clause must be fulfilled. To put it more exactly, is it enough if the conspiracy is to be found in the accusation or must it be found in the eventual result of the trial ? Is the relevant point of time that of the accusation, or that of the eventual result ? For the former view there is an unbroken series of authorities in the Indian Courts, but the matter has not until now come before the Judicial Committee and must now be decided by them. It is a question of principle, or perhaps more correctly, construction. Their Lordships are of opinion that the view adopted in India is correct, as the High Court have held in the present case. The clause deals with three matters, accusation, charge, trial. It says nothing about verdict. The condition is expressed in the words persons accused of different offences, etc." It does not say " rightly accused " or " accused and convicted." It is on the basis of what appears on the face of the accusation that the Court may proceed to charge arid try. The accusation is necessarily anterior to the exercise of the discretion to charge and try. These are stages subsequent to the accusation. This view is strengthened by reference to section 254 which states the duty of the Magistrate in warrant cases, such as the cases in question here. The duty so stated is that the Magistrate, when evidence has been taken or at any previous stage of the case if of opinion that there is ground for presuming that the accused has committed an offence triable under Chapter 21, which he is competent to try and which in his opinion could be adequately punished by him, should frame in writing a charge against the accused. Similarly in the case of trials in the High Court or Courts of Session, Charges will be framed on the accusation. It is true that the opinion of the Magistrate may be wrong in law as to there being a same transaction, or the evidence which led him to think Prima facie that this con dition existed, may be insufficient or may eventually be falsified. It would result in any such events that the pro secution is enabled at the trial to join separate offences contrary to the terms of section 234 and 235: And it has been affirmed that improper advantage is taken of section 239 (d) so as to bring into one proceeding a great number of accused and a great multiplicity of offences, with serious hardship and injustice to the accused. If that were indeed the result of the section, as the High Court seem to be apprehensive it might be, it would be much to be regretted and might well be a ground for an amendment of the section by the Legislature if such practice prevailed notwithstanding the warning of the High Court and their determination to gee that accused are not being unfairly dealt with and to prevent any procedure by which cases which should be comparatively short and simple become unwieldly, com plicwed And lengthy. But even so that can be no ground why the Court should misconstrue the section". The matter is, therefore, concluded by these observations because what was alleged before the Special judge when the particulars of the offence where read out by the Public Prosecutor was that all the accused persons were members of a criminal conspiracy, an offence, itself punishable under section 120‑B of the Indian Penal Code, and that in prosecution of the object of that con spiracy they had committed offences which were punishable under sections 380 409, 411, 468, 477‑A and 218 of that Code, and if this is how the accusation was understood, then the objection must be overruled even though the Court, after recording the evidence, came to discover that the offences of forgery were alleged by the prosecution to have been committed subsequently to the removal of the unauthorised material from the dump and the commission of offences under sections 380, 409 and 411, etc. Mr. Manzur Qadir contends that it was impossible for the accusation to have been so understood and that it should have been construed so as to charge the accused persons with having engaged in a different and subsequent conspiracy to forge the documents after the offences, under sections 380, 409 and 411 had been committed. But it is clear from the second part of the charge common to all the accused persons that the forgeries were alleged to have been committed either to facilitate the commission of the offences mentioned in the first part or to destroy the evidence in support of, and cover up the track of, those offences. In the presence of the allegation that the forgeries were committed to facilitate the commission of the principal offence, it seems to me to be clear that the joint trial was in order even if the accusation contained the alternative allegation that the forgeries were committed to " cover up the track " of the primary offence. But even if it be supposed that the learned Special judge after reading the charge and perusing the police file had discovered that the forgeries were alleged to be subsequent to the removal of the un-authorised material, the joint trial would still be legal because the forgeries must be deemed to have been committed in the course of the same transaction. The word "transaction" has not been defined in law and seems to have been used in section 235 and 239 of the Code of Criminal Procedure in its ordinary signification. The question whether certain acts or events constitute a single transaction is in each case a question of fact, and as has been observed in several cases, as for instance, Amrita Lal Hazara v. Emperor. I. L. R. 42 Cal. 957, a comprehensive formula of universal application cannot be framed regarding the question whether two or more acts constitute the same transaction and the circumstances which must bear on its determination in each individual case are proximity of time, unity or proximity of place, continuity of action, community of purpose or design. The relative emphasis to be put on any of these factors will depend upon the circumstances of each case. Two facts may occur at the same time and place and yet there may be no connection between them. Contrary to this, the Court may hold two facts to be parts of the same transaction though they are separated by a vast distance of time or place. In other cases, it may be the right course to emphasize the factor of time and place and pay little regard to the community of purpose or design. Thus while transaction, which is not a natural event but generated by voluntary human agency, is taking its intended course, its progress may be arrested or interrupted by an unknown and unexpected event or by the unanticipated action of a third party, and its course diverted to another channel entirely different from the original course. Where that happens the factor of time and place may acquire signal importance, and on some casual connection being established between the two facts may become the sole determining test. I respectfully agree with the observations of Allsop, J. in Mirza Zahid Beg v. Emperor. A. I. R. 1938 All. 91, where that learned judge said that "though it is conceivable in some circumstances that the primary offence and the offence of destroy ing evidence of the primary offence are two unconnected matters, it cannot be said that they can, in no circumstances, be parts of the same transaction and that where the incidents are so closely connected in point of time that the acts, which resulted in the commission of the primary offence, and those which resulted in commission of the offence of destroying evidence of the primary offence, form parts of the same transaction, the two offences can be tried together and there would be no misjoinder of charges. In the case in which these observations were made the accused was a Sub‑Inspector of Police got angry with the deceased who had come to make a report about a murder, on the ground that he was concealing some facts and slapped and thumped and knocked him down. The deceased then went to the police station and came back after his report was recorded, without any assistance but complaining that he was in great pain. The accused then took him to his house where, according to the prosecution, he was killed and his body thrown in a ravine in a jungle with the aid of two other persons. It was held on these facts that the accused could be tried at the same trial on charges under sections 304 and 201 Indian Penal Code. In Emperor v. Sanjiv Ratnappa, 34 Born. L. R. 1090 the accused, a Sub‑Inspector of Police, was convicted of forgery under section 465, Indian Penal Code, for having made a false document, viz., alteration of his case diary, as evidence in his favour after the inception of proceedings against him under sections 330 and 348 of the Indian Penal Code. An objection to the joinder of charges being raised before the High Court, it was held that as there was continuity of action and purpose in the acts of the accused, they formed one transaction and that there was no misjoinder. Baker, J. who delivered the judgment said : ‑ " According to the prosecution, accused No. 1, beat and confined the Katbus in order that they might confess their share in the theft info which he was enquiring and might produce property. When, however, the present proceedings were instituted against him, according to the prosecution, he altered his diary in order to save himself from the consequences of his own acts, and these acts seem to be all parts of the same transaction, and the case is as a matter of fact very similar to that in which persons are charged with murder under section 302 and causing the disappearance of evidence under section

201. Under the rulings of this Court in Emperor v. Shernfalli I. L. R. 27 Bom. 135) and Emperor v. Balwant Shahapurkar (I. L. R. 30 Born. 49) there must be a continuity of action and purpose in order that the acts may form the same transaction and as a matter of fact the case is on all fours with the case in Emperor v. Balwant (14 Bom. L. R. 41), which is on precisely similar facts. In that case the accused was charged with having caused grievous hurt to a person for the purpose of extort ing from him confession of his guilt and having, after his death from the injuries, prepared also official records to conceal the cause of his death. He was tried at one trial for the offence under sections 331, 193 and 218 and convicted on all the charges. It was objected that the trial was bad on the ground of misjoinder of charges. It was held that there was no misjoinder as the case fell under the plain words of section 235 and its ill. (f) of the Criminal Procedure Code; the transaction of making a series of false entries so as to attribute another cause for the death was in continuation of and pursuant to the same transaction of voluntarily causing grievous hurt with the view of extorting confession. That case is on all fours with the present and is quite sufficient to dispose of the argument." In Mangal Seu v. Emperor. A. I. R. 1929 Lah. 143, Johnstone, J., held that a charge of criminal breach of trust of a sum of money can be tried under section 235 of the Code of Criminal procedure, as the same time with the charge of falsification of accounts to conceal the act of misappropriation as both offences constitute parts of the same transaction. The same view was taken in Emperor v. Jagat Ram. A. I. R. 1919 Lah. 440, and Michael John v. Emperor. A. I. R. 1931 Pat. 349, where a joinder of charges of criminal breach of trust and falsification of accounts to conceal the act of misappropriation was held to be in order because of the two offences being parts of the sane transaction. The case in Emperor v. Punya Naike, 4 B. L. R. 789, is more remarkable because therein a murder committed by the docits while they were on their way to the place where the dacoity was to be committed, and the distance was not insignificant, was held to be part of the same transaction as the dacoity subsequently committed. Similarly, in Emperor v. Balwant tondo Patole, 13 I. C. 825, where the accused was charged with voluntarily causing grievous hurt to a person with a view to extorting information from him and with making a series of false entries so as to attribute another cause for the death of that person who died from the effects of the injuries inflicted by the accused, it was held that the trial was not bad on the ground of misjoinder of charges because the act of making the false entries was in continuation of the transaction of causing voluntarily grievous hurt and the two acts formed parts of the same transaction. The common case of trying a man on the charge of murder and of causing the evidence of murder to disappear is also an instance in point, a procedure about the correctness of which there has never been any doubt. An analysis of these cases would show that the offences, the question of whose being parts of the same transaction was involved in them, were related to each other by a causal connection, and such connection seems to be absolutely necessary if two offences are to be treated as having been committed in the course of the same transaction. In such cases one offence may be the cause and the other the effect or one may be the occasion for the commission of the other. But while such causal connection is a sine qua non for the constitution of a single transaction, the converse of the proposition need not necessarily be true, and though two facts may be connected together as cause and effect, they may nevertheless constitute two transactions a joint charge respecting which may be wholly it admissible. In the present case, the object of the original transaction was dishonestly to remove the goods from the Government dump with a view to making them available for use in the Standard Engineering Company at Jaranwala. The goods had been put in a truck and on their removal the offence of theft or criminal misappropriation or of possessing stolen property became complete. But the word "transaction" does not mean the same, thing as offence and the transaction may continue though the, offence has been committed. The goods had not reached their destination and were intercepted in the way. This interception brought to light the offences that had been committed by Alvi, and during the night of the interception of the goods and on the following day Alvi made frantic efforts to get possession of the truck, and, according to the prosecution, the very first act he did on the day following the capture of the truck was to destroy certain documents and show that when the truck was captured, there were no un-authorised goods in it and that the whole material belonged to the concern owned by his brother. All these acts to my mind on the part of Alvi constitute one transaction, and it is wholly immaterial that some of the accused persons were not parties to the original conspiracy to remove the goods while some others who were parties to the conspiracy to forge the documents were not privy to the conspiracy to remove the goods. The central figure in the case was Alvi himself and therefore all that he did in collaboration with the others who had knowledge of what was intended to be done or had already been done, amounted to one transaction, participants‑in which could have been tried together for the different offences committed by them in the course of that transaction. If the offence had been tried separately, there would lave been considerable multiplication of evidence as the prosecution would have attempted to prove the forgery by proving dishonest removal and the dishonest removal by proving forgery. That evidence of one would have been relevant evidence of the other does not admit of any doubt, as the two facts were connected as cause and effect and this relevancy is itself a further reason to hold that both the facts were parts of the same transaction. In my opinion the joint trial of all the accused on different charges was perfectly legal. I now propose to deal with the case on the merits. The prosecution case in brief is that on 18th April 1948, Ata Muhammad and Tufail Muhammad, with the knowledge and consent of Alvi and Rustam Ali, dishonestly removed from the two Government dumps on Abbott Road, of which Alvi was incharge, material that was not covered by the permit Ex. 2 which had been issued by Alvi in the name of J. A. Shah & Co., that the truck in which the material was loaded having been captured, Alvi in conspiracy with others destroyed certain official documents and forged others in order to show that no un-authorised material was loaded on the truck from the dumps, and that thus the accused had been guilty of theft, criminal breach of trust and forgery or of the abetment of such offences. On the charge of theft or criminal breach of trust against Alvi the prosecution produced evidence to show :‑ 1. that on 17th April 1948 he issued a fictitious permit in the name of J. A, Shah & Co. which he delivered to his brother Ata Muhammad in order to enable him to remove the material. 2. that he made a special order requiring a few select rl< and an Inspector who were in his confidence to attend the office on 18th April which on account of Sunday was a closed holiday ; 3. that he was present when on 18th April 1948 the truck was loaded at the dump with unauthorised material ; 4. that after the truck was loaded, he telephoned to the Ravi Checking Post saying that the truck belonged to a relation of his and should be allowed to cross the barrier ; 5. that when the truck was intercepted opposite the chat Cinema he admitted to Muhammad Shafi that the truck was carrying un-authorised material ; 6. that after the truck was captured one iron sheets ere unloaded in his presence ; 7. that after the truck was taken to the office of the Director of Industries on the night of 18th April, he made frantic efforts on that night and the following day to regain its possession ; 8. that on 19th April, he tampered with official records by destroying some and forging others in order to show that there was no unauthorised material in the truck, and on the same day himself deposited the price of the material in the treasury ; 9. that on the night of 19th April, he succeeded in having possession of the truck delivered to Ch. Abdur Rahim and that the truck was not returned to the Director of Industries Office before midday on 20th April ; and 10. that sometime later he himself paid a portion of the freight for the truck. Against Ata Muhammad the evidence was that he secured a false permit in the name of J. A. Shah & Co., that he got the truck loaded at the dump with unauthorised material without surrendering the permit to the issuing authority, that he was in possession of both the relevant permits when the truck was inter cepted opposite the Nishat Cinema and later at the Ravi Checking Post and that when the material in the possession of the Standard Engineering Company and Sant Engineering Company, Jaranwala, was checked, a considerable quantity of controlled material was discovered which was neither included in the list of the material prepared at the time when the Sant Engineering Company was allotted to him nor in the two permits which had been issued to him subsequently by the Steel Licensing Officer. There was also evidence against this accused that the original application on the basis of which permit Ex. f was issued was written and signed by him, and not by Jamaat Ali Shah in whose name the permit was prepared. Against Jamaat Ali Shah and Tufail Muhammad the prosecution case was that neither of them had any interest in the Standard Engineering Company beyond that of an employee and that they lent themselves to Ata Muhammad's fraudulent design to remove the material from the dump, the latter being in the truck which was carrying the unauthorised material when it was captured. Rustam Ali alleged to be present when the truck was loaded with unauthorised material while Akhtar Ali is stated to have fabricated the cash receipt register Ex.

18. When questioned after the close of the prosecution evidence Alvi said that the charge against him was false, that the main witnesses in the case, i.e., Muhammad Shafi, Muzaffar Hassan and Mr. Kureshi, had bad relations with him, that the material in the truck was loaded in his absence, that he saw neither Muhammad Shafi nor the truck on the day it was captured, that he had no talk over the telephone with the Ravi Checking Post, and that he had neither committed any forgeries nor suppressed or destroyed any documents. Ata Muhammad alleged that he was falsely involved in this case because of his relationship with Alvi and that he neither applied nor obtained the permit for the removal of the material. He admitted that he had engaged the truck in question but alleged that he did so on behalf of Tufail Muhammad. He denied that he was present when the truck was loaded at the dump or when it was intercepted opposite the Nishat Cinema. He, however, admitted that he was in the truck when it was stopped at the Ravi Checking Post, having got into it from Sarai Rattan Chand where he had put some material in it which he had purchased from the market under the cash memos. Ex.

22. He also admitted that Muzaffar Hassan took down his statement but alleged that it was obtained from him under threat that he would be sent to prison and that he was made to sign it without having been permitted to read it. Jamaat Ali Shah also denied having committed any offence and pleaded that he was Manager of the Standard Engineering Co., that on a proper application he duly obtained the permits Exs. 2 and 3, that he did not himself take delivery of the material but handed over the permits to Mistri Tufail Muhammad accused, that some day before he obtained the permits he had been asked by one Muhammad Shafi of the Modern Foundry works, Multan, to take delivery from the office of the Steel Licensing Officer of some material which had been left by him in the dump and to send it to Lyallpur and that while handing over the permits to Tufail Muhammad he had directed him to take delivery of Muhammad Shafi's goods as well. He also alleged that he paid a sum of Rs. 1,470 in the office 'of the Steel Licensing Officer against the receipt Ex. 30, dated . 17th April 1948. Tufail Muhammad's statement was to the‑same effect as that portion of the statement of Jamaat Ali Shah in which he refers to this accused. He said that he had ,been instructed by Jamaat Ali Shah to take delivery of the goods on his behalf and that on 18th April he "loaded the material from the dump. He denied that any iron sheets were removed from the truck after it left the dump or that the contents of the truck were weighed at the Ravi Checking Post and alleged that some goods which were purchased from the market by him and Ata Muhammad a day before from a shop opposite Sera Rattan Chand were put on the truck at the sarai. Rustam Ali also pleaded innocence and alleged that he had been implicated in this case because he refused to give a false statement to the police. When questioned about filling in the permit and its counterfoil on erased space, he said that he going to prepare a permit in the name of some other Lyallpur and had just written its name and address when Din, Head Clerk of the office of the Steel Licensing Officer, came to him and asked him to prepare, on the basis of an estimate which he gave, a permit in the name of J. A. Shah of the Standard Engineering Company because it was urgently required and had to be given preference over others and that since he had received strict orders directing him to economise paper he did not prepare the required permit on a separate form but erased the name and address of the firm which he had already written and filled in the name of Syed J. A. Shah and Co., Jaranwala. The words "and Co.", he said, were written by mistake in the 'permit Ex

2. He denied that the truck was loaded under his supervision. Akhtar Ali said that he was quite innocent and denied having opened the register Ex. 18 for the first time on 19th April and making entries that exist there on that day and antedating them to 17th April. He explained that the register was opened Nome 20 or 25 days before and that the entries other than those that relate to J. A. Shah were made long before and on the dates that are mentioned in the register. The entry relating to J. A. Shah, according to him, was made on 17th April. The reason given by him for his being involved in the case was that he is distantly related to Alvi and is like him an Awan. The findings of the learned judge are that none of the forgeries charged has been proved, that the excess weight of the material found in the truck was 18 maunds and that this excess was obtained and removed by Ata Muhammad, with the assistance of Tufail Muhammad and Rustam Ali. No offence is found by him to have been committed by Alvi or Jamaat Ali Shah or Akhtar Ali. While dealing with the circumstantial evidence against Alvi, he records no finding whether Alvi was present when the truck was loaded at the dump, but assuming the prosecution evidence to be true, considers that Alvi could not have supervised the loading so thoroughly that he should have had knowledge of the fact that unauthorised material was being removed. As regards the telephone talk which Alvi is alleged to have had with the Ravi Checking Post, the learned judge seems to accept `the allegation that there was some such talk but he holds it not proved that what Alvi told the listener on the Ravi Checking Post telephone was that the truck should be permitted to proceed even if it contained excess material. He does not reject the evidence that the truck was checked by Muhammad Shafi opposite the Nishat Cinema or that Muhammad Shafi had some talk with Alvi, both near the Nishat Cinema and his house, but takes the view that the so‑called confession by Alvi admitting that the truck contained excess material has not been proved. He attaches‑ no importance to the fact that the truck was loaded on a Sunday because of some earlier orders by which some clerks of the Steel Licensing Officer's office had been required to attend on closed holidays. He finds that ten sheets were unloaded from the truck after Muhammad Shafi's interview with Alvi, but he does not accept the allegation that this was done in the presence of Alvi. As the case of all the six accused men is before us on appeal or revision, it is necessary to state the points that re quire determination in order to find whether any offence has been established against all or any one of them. As the allegation of the prosecution is that of theft or criminal misappropriation i coupled with an attempt to destroy certain documents and forge others, the cardinal point that falls for decision is whether any material which was not covered by the permit Ex. 2 was removed. If the answer to this question be in the affirmative, the further question that would then require decision is whether any of the accused persons was privy to this removal in such a way as to make him criminally liable. In order to seek an answer to the question whether any material not covered by the permit was removed from the dump, it has first to be determined whether when the truck was stopped at the Ravi Checking Post, it only contained material that had been loaded from the dump. On this part of the case while the allegation of the prosecution is that all the matterial found in the truck at the Ravi Checking Post had been removed from the dump, the contention of the defence is that nine maunds of the material then found in it had been put into it at Serai Rattan Chand, where it had been taken after it was stopped by Muhammad Shafi opposite the Nishat Cinema. On the basis of the cash memos Ex. 22 taken into possession by Inspector Hashmat Ali from Tufail Muhammad, it is alleged that the goods found in the truck answer to the description given in these cash memos and were actually loaded in the truck from Serai Rattan Chand before the truck left for the Ravi Checking Post on its way to Jaranwala. These cash memos are five in number and purport to have been issued, two from the Coronation Machinery Stores at Brandreth Road, one from Dawn Bearing Company, Brandreth Road, one from Khalid and Co., Brandreth Road, and one from Business Sales Cor poration on Railway Road. Though the defence have produced evidence on other points, they have made no effort whatsoever to have any one of these cash memos. proved or to show that the goods covered by them were purchased by Ata Muhammad or Tufail Muhammad and put in the truck at Serai Rattan Chand. The only material on which reliance is placed in support of these cash memos is a sentence in the statement of Mr. Kureshi, Director of Industries, that when on 19th April Jamaat Ali Shah appeared before him he showed him a cash memo. The evidence of Khan Bahadur Habibullah, however, makes it clear that it was not any one of these cash memos. that was shown by Jamaat Ali Shah to Mr. Kureshi but that the document actually shown to him was Ex. 17, a receipt for Rs. 1,470 from the Steel Licensing Officer in favour of Jamaat Ali Shah. When Mr. Kureshi was in the witness‑box none of these cash memos. was put to him. The fact in issue, which the defence were under an obligation to prove if they intended to rely on some additional loading at Serai Rattan Chand, was that Ata Muhammad and Tufail Muhammad had purchased goods under these memos. From the shops from which these cash memos. purport to have been issued and put them in the truck at Serai Rattan Chand. The cash memos do not prove themselves and therefore there is no material whatsoever on the record to ,show that any .goods that had not been removed from the dump were actually loaded in the truck at Serai Rattan Chand. If these cash memos. had been genuine docu. ments and related to actual transaction effected between the shops from which they have been issued and Ata Muhammad or Tufail Muhammad, there was nothing easier for the defence than to call the salesmen from these shops in evidence and have the transactions embodied in these cash memos proved. The defence summoned one Muhammad Shafi of Business Sales Corporation but then decided not to produce him. No reason able explanation has been given by counsel why no attempt has been made to prove the transaction to which these cash memos. profess to relate.' These memos. come from various shops on Brandreth Road and Railway Road, which are quite different localities from Serai Rattan Chand, while the state ment of Tufail Muhammad is that all, the goods alleged to have been put in the truck at Serai Rattan Chand were purchased from only one shop which is opposite to that Serai. Further, while according to this appellant the goods were purchased on 17th April, one of the cash memos., is dated 19th April and another 10th or 16th April and each of these cash memos. with the exception of the one dated 19th and another dated 17th April from Khalid & Co. bear unmistakable indications of alterations in the dates. And some of the goods mentioned in these memos, e.g., those in memo. No. 147 and items 1, 2, and 3, i.e., tappers and drills in memo. No. 143 were not at all found in the truck. The learned Judge rejected these memos as unproved and suspicious documents _ and there being no evi dence in proof of them, it is impossible to accept the allegation that either Tufail Muhammad or Muhammad purchased any goods under these cash memos. which were put in the truck at Serai Rattan Chand on 18th .April before it was driven to Ravi Checking Post. The weight of the goods covered by these cash memo:, is nine inaunds and though Rashid P. W. 5, the driver of the truck, admits that he left the truck for an hour or so at Serai Rattan Chand in order to go home and bring his wife who was to accompany him to Jaranwala, he is definite that there was no additional loading at Serai Rattan Chand with the exception of a few bags of coal which were needed to keep the gas plant of the truck going. Before the truck left the dump, Rashid had started complaining of overloading and the manner in which the truck teas loaded, and learned counsel for the defence admits that if this additional weight of nine maunds had been put on the truck in the absence of Rashid, it could not have escaped his notice. Any surreptitious putting of this additional load on the truck being impossible, learned counsel for the defence is driven to the argument that Rashid is not telling the truth when he says that there was no additional loading at Serai Rattan Chand. I can however, see no reason whatsoever to reject his evidence on this point or to differ from the finding of the Special judge that no additional loading at Serai Rattan Chand has been proved. If there had in fact been any such loading, both Ata Muhammad and Tufail Muhammad should have mentioned it to Alvi who in turn could not have omitted to disclose it to Mr. Kureshi when he saw him on the night of 18th April. There is, however, no indication in the evidence of Mr. Kureshi that any such thing was mentioned to him by Alvi : nor is there any reference to this additional loading to be found in the statement of the occupants of the car including Ata Muhammad and Tufail Muhammad recorded by Muzaffar Hassan when the truck was captured at the Ravi Checking Post. I may here notice a point taken by Mr. Manzur Qadir in support of his contention that the goods covered by the cash memos were not removed from the dump. On the basis of a register, which has been described as a stock register, it is attempted to be shown that goods of the descrip tion mentioned in the cash memos. had never been deposited in the dump and that therefore they could not have been removed from there. But the register on which reliance is placed in this connection is in no sense a stock register showing daily receipts issues and balances. It is nothing but a copy of some inventories that are stated to have been made when material was removed from abandoned shops and brought to the dump. Admittedly such inventories were never regularly copied in the register and there are still several such inventories which have not yet found their way in the register. The inventories themselves are in a hopeless mess and there is no guarantee that the file in which they are at present is a complete record of all the inventories made from time to tine. While some of the inventories bear an endorsement that they have been entered in the stock register, and such endorsements, after the date of the present incident are pretty regular, others are without any such endorse ment. I do not therefore think that the mere absence of entries in the stock register relating to the material mentioned in the cash memos is sufficient to cast any doubt on the evidence that there was no additional loading of the truck at Serai Rattan Chand. When the truck was captured at the Ravi Checking Post, it was, according to the evidence of Muhammad Zaman, A. S. I. weighed after removing the bags of coal meant for ‑the gas plant and found to be 224 rnaunds. According to the registration certificate of the truck its unladen weight is 6772 lbs. which is equal to a little less than 80‑maunds, and this fits in with Rashid Driver's estimate' of 80 to 82 maunds. But since the figure in the registeration certificates is exact to a pound and must have been entered after weighing the truck, the unladen must be held to be 80 maunds. Thus the weight of the material in the truck comes to 224 minus 80, i.e., 144 maunds, and as the weight of the material to‑be carried under the permit was 100 maunds, the excess load from the dump comes to 44 maunds. It is contended by Mr. Manzur Qadir that the evidence of the truck having been weighed at the Ravi Checking Post is unreliable and that it cannot for that reason be found that the excess came to 44 maunds. The evidence as to the weighing of the truck at the Ravi Checking Post is to be found in the depositions of Muzafi'ar Hassan P. W. 14, Ghulam Sarwar P. W. 3, Rashid, driver P. W. 5, and Muhammad Zaman, Assistant Sub‑Inspector of Police P. W.

7. They all say that the truck was weighed at the Ravi Checking Post and the result entered in the register Ex. 15 kept at that Post in the ordinary course of official business. Mr. Manzur Qadir admits that while an entry relating to this truck must have been made in the register, the figure 224 maunds appearing in the column relating to weight was not filled in then but was inserted subsequently. In this respect I have no reason whatsoever not to accept the evidence of a responsible official like Muhammad Zaman who is not only corroborated by the other three witnesses just mentioned but also by a record made in an official document. Two circumstances have been relied on by Mr. Manzur Qadir in support of his contention that there was no weighing at the Ravi Checking Post. It may be mentioned that when under the order of Mahmud‑ul-Hassan, Secretary, Industries Department the loaded truck was made over to Ch. Abdur Rahim .on the night of 19th April, it was removed from the office of the Director of Industries and is alleged by the defence to have been weighed next morning at the Misri Shah Octroi Post. The net weight of the material then found is stated to be 130 rnaunds. The prosecution, however have neither called Ch. Abdur Rahim in evidence nor proved the result of the weighing at the Misri Shah Octroi Post. Mr. Manzur Qadir's argument, therefore, is that because the prosecution had decided not to prove the result of the weighing at the Misri Shah Octroi Post, they subsequently prevailed upon Muhammad Zaman, Assistant Sub‑Inspector of Police, to enter the figure 224 maunds in the relevant column of the register. I am unable to accept this argument because there is nothing to show that in this respect any of the witnesses who have given evidence about the weighing at the Ravi Checking Post have any real reason for giving false evidence in order to oblige the prosecution. Muhammad Zaman is a responsible officer who was then incharge of the Ravi Checking Post and I cannot imagine that he would be willing to fabricate an entry in his register which he must have known was liable to examination and would in all probability be checked immediately after the incident. The entry contains no apparent sign of any subsequent tampering and appears in the proper column which the Checking Officer was required to fill in the ordinary course of his duty. Further, I do not see how if the prosecution had decided not to prove the result of the weighing at Misri Shah Post, they should have decided to prove the excess to be 24 maunds, 27 seers from the evidence of Ghulam Qadir who calculated the weight of the material on the basis of Tata's Reference Book, thus reducing the weight of the excess material as calculated from the weighing recorded at the Ravi Checking Post by as much as 20 maunds. The second ground on which the evidence of weighing at the Ravi Checking Post is assailed is that, there is no reference to the fact of weighing in any of the documents that came into existence in regard to this case on Nth or 20th April. I have already mentioned that the two permits that had been taken into possession by Muzaffar Hassan from Ata Muhammad were sent by him together with the report about the incident to the Director of Industries who was the Head of his department. The Director of Industries sent these documents with his report to Mr. Mahmud‑ul‑Hassan that very day and Mr. Mahmud‑ul‑Hassan made some noting on the case. In none of these documents, except the report of Muzaffar ‑Hassan, was there any occasion to mention the fact that the truck had been weighed at the Ravi Checking Post. Muzaffar Hassan says that he did not consider it necessary to mention this fact because the essential point that had to be mentioned in his report was that the goods in the truck were in excess of the permit and this he did mention. Therefore, merely because there is no detailed reference to this fact in the report of Muzaffar Hassan or any of the documents that were seen or made on the 19th by the Director of Industries or the Secretary to Industries Department, I cannot brush aside the body of evidence that the truck was in fact weighed at the Ravi Checking Post and the result entered in an official register. The truth of this evidence does not appear to have been challenged before the Special judge either by any of the accused men or by their counsel. In fact, the judgment under appeal seems to indicate that the weighing at the Ravi Checking Post was used by the defence in an involved argument to reduce the weight of excess to 18 maunds. In the course of his judgment the learned Judge says :‑ "When the truck was weighed at the Ravi Checking Post, the load including the weight of the truck itself came to 224 maunds (vide Ravi Checking Post Register Ex 15, Serial No. 11178). This is not disputed by the parties," In a subsequent passage while dealing with the question of excess weight he again says :- "The learned counsel calculated the excess in this way that according to Ghulam Qadir, the weight of the entire unloaded material was 124 maunds and 27 seers. To this should be added the weight of the unloaden truck, i.e., 82 maunds. The total would come to 206 maunds, 27 seers. If we deduct 206 maunds, 27 seers out of 224 maunds which was the weight found out at the Ravi Checking Post, which included the weight of the truck, the balance would come to 18 maunds, 27 seers which should be deemed to be the excess and which was fully covered by the cash memos. Material and the balance of material due to the Modern Foundry Works, Multan." I have not been able to understand what the learned Judge means by this ; nor has counsel been able to explain the point that was sought to be made by .the defence before the Special judge, and who seems to have accepted it. In fact, Mr. Manzur Qadir has expressly disclaimed the argument put forward in the passage just cited and I have referred to this passage just to show that the evidence about the truck having been weighed At the Ravi Checking Post is so strong and convincing, that neither the learned counsel in the lower Court nor the Special judge found it possible to reject it: The other proof of ‑excess is "to be found in the evidence of Ghulam Qadir, Steel Distribution Inspector, P. W.

10. It may. be mentioned that when the truck was unloaded on 29th Aprill an inventory Ex. 20 of the goods was made by Sana Ullah, Stee Distribution Inspector, from 29th April to 1st May in the presence of Hashmat Ali, Inspector of Police. According to this, inventory the total weight of the material unloaded from the truck was 122 maunds, 27 seers. The weight of the excess material. according to this inventory, would be 22 maunds 27 seers as 100 maunds of material was covered by the permit. Mr. Ghulam Qadir made his calculations on the basis of the inventory made by Sana Ullah and using the Tata method calculated the excess to be 24 maunds, 27 seers. If the calculations by Ghulam Qadir are correct, and there is no reason to come to a different conclusion, then the excess weight of the material would be 24 maunds, 27 seers as against the 44 maunds at the Ravi Checking Post. The question naturally arises why there is this discrepancy between the result of the weighing at the Ravi Checking Post and the calculations of Mr. Ghulam Qadir. It is suggested by the learned counsel for the Crown that after the truck was made over to Ch. Abdur Rahim at Alvi's request, the latter must have. removed some stuff from the truck while it remained away from the office of the Director of Industries. I have already referred to the evidence of Ghulam Muhammad P. W. 11 who states that when on the night of 19th April the truck was taken into possession by Ch. Abdul Rahim, Alvi and a peon of the Director of Industries, a Chowikar was deputed by the witness to guard the truck and that while the Chowkidar returned alone at about 7 or 8 a.m. on the 20th the truck itself did not return to the Director of Industries' office before midday. This action on the part of Mr. Mahmud‑ul‑Hassan undoubtedly furnishes ground for the argument that since Alvi brought Ch Abdur Rahim with him to take possession of the truck remained unattended by a Chowkidar of the‑Director of Industries' office for several hours in the morning of 20th April, Alvi might have during this interval, with or without the knowledge of Ch. Abdur Rahim, removed some part of the stuff ‑from the truck. In reply to this, Mr. Manzur Qadir argues that if Alvi had the opportunity and the intention to remove some material from the truck in order to reduce the weight of the excess, he would not have removed only 22 maunds but such quantity as would have been sufficient to reduce the weight, to that covered by the permit. The prosecution case, however, is that on the day following the capture‑‑of the truck Alvi had thought of a clear‑cut defence, namely, to explain the excess by alleging that ten maunds of material belonging to the Multan Foundry Works which was not covered by the permit and nine maunds of material purchased from the market had been put into the truck and that the weight entered in the permit was short of the sanctioned weight by about seven mounds. To show this inadvertent shortage of weight in the permit Alvi is alleged to have abetted Inspector Jalal Din to forget the Estimate Ex, 19 on 19th April and to show therein about seven maunds of more material than the weight entered in the permit. In view of this defence which Alvi had decided to adopt, it became unnecessary for him to remove the entire excess material and a partial reduction of the excess then appeared to him to be sufficient for his purpose. There is no evidence of what was done to the truck after it was removed by Ch. Abdur Rahim and Alvi on the night of 19th April. As Ch. Abdur Rahim has not been examined either by the prosecution7lr by the defence, it is impossible to treat the record of this proceeding and the result of the weighing at Misri Shah Octori Post as evidence. Alvi has himself invited this criticism on himself and no such position would have arisen had he, if he felt convinced of his bona fides made a straight forward request to the Director of Industries or the Secretary, Industries Department, to have the contents of the truck immediately examined and Weighed by an independent and responsible officer) whether a police officer or not. His first concern. however, seems to have been to take possession of the truck himself or to have it delivered to a nominee of his. Mr Mahmud‑ul‑Hassan appears to have acted, quite inadvisedly in acceding to Alvi's request for the possession of the truck when he should have known that the weight and the condition .of its contents might be made the subject‑matter of an important investigation. I cannot accept the learned judge's argument that the weight of the truck as found at the Ravi Checking Post cannot be accepted because the weighing machine at that post might have been out of order or because there is a difference of 20 mound: between the weight as ascertained there and that subsequently calculated by Ghulam Qadir according to Tata's method. Of the machine being defective there is not the slightest‑ indication in the evidence and the basis of the argument sought to be found on the alleged diQcrepancy between the Ravi Checking Post and Ghulam Qadir's figures is Alvi's own action which was certainly not prompted by a desire to let the truth be known. The truck having been found at the Ravi Ravi Checking Post to weigh 224 maunds, it was for the accused to show why that weight could not be accepted and to this end they have made no effort. As they have neither called Abdur Rahim nor produced any other evidence to show that the truck was not tampered with while it was in the custody of Abdur Rahim and that when weighed at the Misri Shah Octroi Post its weight was substantially less than the one recorded at the Ravi Checking Post; it must be held that the weight of the truck and the material in it was 224 maunds when it was captured at the Checking Post. Deducting from it 80 maunds on account of the weight of the truck and one hundred maunds on account of the material covered by the permit, the truck was carrying 44 maunds of excess material when it was captured. To this excess of 44 maunds must be added another four maunds, being the weight of ten sheets that were removed either near the Nishat Cinema or at the dump on the evening of 18th April. The learned judge has not rejected the evidence that when Muhammad Shafi after his interview with Alvi decided to let the matter go, ten iron sheets were removed from the truck at the dump. The evidence of Muhammad Shafi and Ghulam Sarwar is that when after the episode near the Nishat Cinema they were about to drive their car, they found some people including Ata Muhammad removing some sheets from the top of the truck in the presence of Alvi himself. The evidence of Rashid driver, however, is that first an attempt was made to unload the sheets near the Nishat Cinema but that when the coolies refused to take them to the dump, the truck itself was taken to the dump and the sheets were unloaded there. I shall discuss later the question whether Alvi is responsible for this removal but what is necessary at the present stage is to find whether or not this removal of ten sheets of iron has been proved. This removal is not only deposed to by Muhammad Shafi, Ghulam Sarwar and Rashid but also finds place in the statements recorded by Muzaffar Hassan at the Ravi Checking Post and in the report made by him to the Director of Industries on the following day. Of course, some of these statements, as for example, those of Muhammad Ismail and Abdul Aziz, are in admissible in evidence, because neither of them is a witness or an accused in the case and both Ata Muhammad and Tufail Muhammad denied the removal in their statements. The statement of Rashid, however, that ten sheets were removed from the truck by daftarwalas is good corroboration of his present testimony that this did occur. When the truck was stopped by Muzaffar. Hussan and Ghulam Sarwar, they did not find the top load of the sheets which earlier the latter had seen when the truck was checked by Muhammad Shafi near the Nishat Cinema. It is, therefore, clearly established that ten sheets were removed Trom the truck before it reached the Ravi Checking Post. It in agreed that the weight of these sheets was four maunds and this will have to be added to the figure of excess already ascertained. Thus the net excess weight removed from the dump was 48 maunds. I may now deal with the defence contention that from this excess of 48 maunds, ten maunds have to be deducted as being the weight of the material that was put into the truck not under the authority of permit Ex. 2, but under the directions of Muhammad Shafi of the Multan Foundry Works. The story about some goods having been acquired by Muhammad Shafi from the dump and their removal by the truck in which the goods under the permit Err 2 were loaded, is that sometime before 18th April 1948, the Multan Foundry Works had been permitted to acquire some controlled material from the dump incharge of Alvi. Included in this material was a billet which was not removed by the Multan Foundry Works. On 2nd March 1948, the Multan Foundry Works requested the Steel Licensing Officer to issue to the firm three inch or 21 inch rounds in place of the billet which had not beer, taken delivery of. This application was granted by the Steel Licensing Officer on 12th March‑1948. According to the defence, another letter from the Multan Foundry Works, Ex. 21, was received on 10th April in the office in continuation of the letter of the 2nd March requesting for permission to acquire whatever material was available in the dump in wire flats, rounds and squares to the extent of the value of the billet, namely Its.

185. In compliance with this letter material worth Rs. 185 weighing 10 maunds was issued from the dump and delivered to Tufail' Muhammad on behalf of Jamaat Ali Shah, which he loaded on the truck in which the goods under permit Ex. 2 had been put. The prosecution case in regard to the letter Ex. 21, however, is that it was obtained from Muhammad Shah on 19th April after the truck had been seized and that it is an attempt on the part of Alvi to account for the unauthorised material that was found in the truck. I shall later deal with the question whether this letter is proved to be a forgery or not, and all that is necessary to say about it at present is that, forgery or no forgery, it remains un proved. The defence had not called Muhammad Shafi and there is no other evidence to show that this letter was in fact received in the office on ‑10th April 1948. The goods requested in this letter to be supplied in substitution are flats, rounds wire and squares but those actually delivered also include hammer‑heads, and screw‑drivers, and it is difficult to understand how goods of wholly different categories and not asked for by the applicant were ordered to be issued when goods of the categories asked for in substitution were present in stock and were actually supplied to Ata Muhammad on that very day. Then there is the outstanding fact that if goods weighing ten maunds which were not, covered by the permit Ex. 2 had in fact been allowed from the dump, both Tufail Muhammad and Ata Muhammad should have known it and mentioned it to Muzaffar Hassan, the moment he charged them with carrying unathorised material. But neither in this statement of Tufail Muhammad nor in that of Ata Muhammad, and both these statements are admissible as admissions, is there any reference whatsoever to the goods belonging to the Modern Foundry Works having been put in the truck. Nor are these goods entered in the issue register Ex. 35 as having been issued and though they were acquired by a Multan firm, they are alleged to have been loaded on a truck bound for Jaranwala. It is suggested that Muhammad Shafi, proprietor of Modern Foundry Works, had directed Jamaat Ali Shah to send the goods to Lyallpur where he had a branch, but there is no evidence whatsoever that Muhammad Shafi had any such branch to which this controlled material could have been legally sent. There is nothing surprising in Muhammad Shafi having come to the rescue of Alvi on 19th April and to have written ' this letter to strengthen his defence. There is evidence vide the statement of M. S. Bokhari P. W.' 18, that Muhammad Shafi is on terms of unusual intimacy with Alvi and has reasons to be grateful to him. Muhammad Shaft was .cited as' a witness for defence but for some unknown reason he was not examined. If this letter had been written by Muhammad Shafi on 10th April 1948 or received in the office by post, there should have been an entry about it in the receipt register and Muhammad Shafi should not have felt hesitant or unwilling to appear in Court to support it. According to the directions contained, in this letter, the material could only be removed from the dump by Jamaat Ali Shah, but neither Ata Muhammad nor Tufail Muhammad had any letter of authority from Jamaat Ali Shah to remove this material from the dump. How this material could be delivered to Tufail Muhammad in the absence of a letter of authority from Jamaat Ali Shah nobody has attempted to explain. Thus there being no evidence that any material not covered by the permit Ex. 2, was loaded into the truck and the allegation of some uncontrolled goods having been put into the truck at Sarai Rattan Chand having been rejected, it must be held that the truck contained 48 maunds of unauthorised material when it left the dump. The next question is who is criminally liable for this removal. The case against Ata Muhammad is perfectly clear. It was he who according to the evidence of Rashid, driver P. W. 5, and Iqbal Muhammad Khan, Manager, Punjab Transport Operators, P. W. 4, engaged the truck and brought it to the dump from where the goods were loaded. He was found in possession of the two permits when first near the Nishat Cinema, Muhammad Shaft required the occupants of the truck to produce the authority for removal of the material and later when the truck was captured by Muzaffar Hussain near the Ravi Checking Post. Though he himself does . not admit that he applied for or removed the material, according to Alvi's own case, the material that was issued in the name of J. A. Shah & Co., was intended for the benefit of the Standard Engineering Company of which Ata Muhammad is the allottee. He cannot of course, be convicted on Alvi's defence but there is the evidence of Rashid, driver P. W. 5 and Muhammad Salem Chowkidar P. W. 8‑ that he was present when the truck was loaded, and of Miraj Din, Head Clerk P. W. 12 that permit Ex. 2 itself was handed over by. Alvi to this accused. J. A. Shah & Co., is an imaginary business name as no firm of that name exists. " Jamaat Ali Shah does not claim and has no interest in the Standard Engineering Company as it is an abandoned concern allotted to Ata Muhammad alone. There can, therefore, be no doubt about Ata Muhammad's guilt. Rustam Ali's guilt is equally clear. Though he denies his presence when the truck was loaded, it has been proved by office records that he was specially required to attend the office on 18th April which being a Sunday was a closed holiday, and both Rashid driver and Muhammad Salem Chowkidar, state that the truck was loaded under his supervision. The permit Ex. 2 had been prepared by, this appellant himself and therefore he must have known that the truck was being stuffed by Ata Muhammad with unauthorised material. Tufail Muhammad was also a party to the conspiracy to remove the goods dishonestly. I have already found that there is no such firm as J. A. Shah & Co., and this appellant claims to have taken the goods from ‑the dump under the authority of Jamaat Ali Shah. No written authority was produced by him when the goods were loaded and he being an employee of Ata Muhammad and being present when the goods were loaded, must be held to have acted in concert with Ata Muhammad and with the same intention and knowledge as the latter. He takes the whole responsibility for the removal on himself and since no valid acquisi tion by Jamaat Ali Shah is proved, and he himself is a petty employee of Ata Muhammad; his guilt is as clear as that of his employer with whom he was found in the truck, .both near the Nishat Cinema and at the Ravi Checking Post. Jamaat Ali Shah appears merely to have lent his name to his employer Ata Muhammad to sign the application for acquiring the material. The application relied upon by the defence and which Jamaat Ali Shah admits to have signed is alleged by the prosecution to be a forgery, an allegation which .will be dealt with later. It seems to me to be quite possible that Ata Muhammad obtained the signature of Jamaat Ali Shah on the form of the application to acquire the material and since there is nothing to show that he knew that his signature would be used for an illegal purpose, and he himself was not present when the material was removed, he cannot be held liable for the dishonest removal by Ata Muhammad. Akhtar Ali had no hand in the removal of the material, nor is there any evidence of his having abetted Ata Muhammad to remove the material dishonestly. He cannot, therefore, be made liable for any fraudulent removal. Last comes the case of Alvi. The evidence against him is wholly circumstantial and the finding of guilty or not guilty in his case will depend upon the application of the well‑recognised almost elementary rule, that to find a man guilty of a criminal offence on circumstantial evidence, the facts proved must all be consistent with the theory of his guilt and incompatible with the theory of his innocence. This is a statement of the rule is the abstract logical form but as applied by the law Courts, the rule may be stated to be, that no man is to be found guilty on circumstantial evidence unless the: circumstances established against him are such that no reasonable hypothesis other than that of his guilt can be built upon them. It is, therefore, necessary first to find what are the facts which have been proved against Alvi and then to consider the question whether any reasonable hypothesis compati ble with his innocence can be grounded on them. In this connec tion it is necessary to begin much earlier than the date of the transaction charged, since the main issue in the case being whether the unauthorized material was removed with or without his knowledge, an insight into his mentality with reference to his dealing with the Standard Engineering Company, of which his brother Ata Muhammad is the allottee, which ended in the transaction in question would be highly relevant, and this aspect of the case has been completely overlooked by the Special Judge. I have already stated that Ata Muhammad is a refugee from Jullundur and that on his coming over to Pakistan and settling at Jaranwala an abandoned concern called the Sant Engineering Company, including all raw material and stock‑in‑trade therein, which belonged to a Sikh evacuee was allotted to him on 10th December 1947. In January 1948 the Iron and Steel Order in force in West Punjab was the order of 1948 under which Alvi was functioning as the Steel Licensing Officer for this Province. Iron in those days was a very rare commodity in Pakistan as none was produced here and we had to depend on supplies from India, which were meagre, uncertain and intermittent. Many needed iron but few could get it, and the only authority in the Punjab competent to give a permit for its acquisition was Alvi. On some date which is not mentioned in the records but which must be between 7th and 30th January 1949, Alvi issued in the name of Messrs. Standard Engineering Company, Jaranwala, a name given by Ata Muhammad to the Sant Engineering Company which had been allotted to him, Permit Ex. 28 authorising Ata Muhammad to acquire 12 tons, 2 quarters and 14 lbs, of controlled iron. This was the largest permit which, if the records in the form of permit books produced by the prosecution are complete and exhaustive, had before or since the Partition ever been issued by Alvi to any individual, firm or department, with the exception of four other issues, one to the Superintending Engineer, Mechanical Circle, Lahore, the second to the Abbasi Textile Mills, Rahim Yar Khan in the Bahawalpur State, the third to the Executive Committee, Muslim Ganj, Jullundur, and the fourth to the New Holy Family Hospital, Rawalpindi. Withing a few days of this transaction, i.e., on 21st January 1948 Alvi again issued to his brother Ata Muhammad, in the name of Sant Engineering Company, Jaranwala another permit Ex. 27 for acquir ing five tons of controlled material. According to the evidence of Miraj Din, Head Clerk in Alvi's Office, this permit was originally prepared in the name of Standard Engineering Company but under the directions of Alvi the word "Standard" was cut off and the word " Sant " substituted in order, to suppress the fact that the issue under this permit was to the same party as had acquired more than 12 tons of controlled iron under permit Ex.

28. There can be no doubt that this allegation of Miraj Din is correct because nobody was interested in scoring out the word " Standard " and replacing it by the word ` Sant " except Alvi himself. The question whether Miraj Din is or is not an accomplice and what degree of corroboration has to be found to accept his evidence will be considered later when I will deal with the question of forgeries to which Miraj Din has deposed At present, it seems to me to be clear that Miraj Din's allegation that the word "Sant" was substituted for the word" Standard " under the directions of Alvi receives confirmation from the appearance of the document itself and the surrounding circumstances. In the course of arguments before us, it was suggested that this correction was made in accordance with instructions issued to the effect that pre‑partition business names had to be mentioned in the permits to acquire controlled iron but in reply to our inquiry no particulars of those instructions were given to enable us to verify the allegation by sending for them, and the explanation seems to be obviously incorrect, because if there existed any such instructions, the earlier permit should not have been in the name of Standard Engineering Company and the subsequent permit in the name of Jamaat Ali Shah & Company. Almost within three months of the previous two permits Alvi issued the permit in question in the present case which undoubtedly was meant for the benefit of Ata Muhammad but which was prepared in the name of Syed J. A. Shah for office record and was shown in the counterfoil to be for Syed J. A. Shah & Co., Jaranwala. Miraj Din, Head Clerk, says that the permit was originally prepared in the name of Standard Engineering Company but that under the directions of Alvi that description was erased and the name of Syed J. A. Shah written under the signature of Alvi. This allegation is borne out by the two documents, Ex. P.2 and Ex. 29, in both of which the erasure has been effected so clumsily that it still too obvious to escape notice. This erasure can be explained only on the ground that Alvi could not have wished the name of the Standard Engineering Company to be legible because that would have shown that lie had given more material, to his brother than he was entitled to claim and Alvi to give. Alvi gave no ex planation why he signed such patently suspicious documents and I am unable to accept his counsel's present explanation that he put his signature to the writing in the erased space in token of the writing being on an erasure. The explanation given by Rustam Ali who prepared the permits, that the permit was originally in the name of another firm of Lyallpur and the erasure was done to economies paper is on the face of it absurd; the real reason for the erasure being that as these permits have a serial number and cannot be destroyed, the form on which the Standard Engineering Company had been written had to be used and this could only be done by erasing the original writing as any overwriting would have left the name of Standard Engineering Company legible and this name Alvi did not wish to be decipherable in the document. As already pointed out, the permit and its counterfoil both differ in the description of the acquirer, the words " and Co" in Ex. 29 which was kept ,for office record having been struck out but left intact in Ex. 2 that was meant for the authority issuing the material. Both these descriptions of the acquirer are signed by Alvi and there is no explanation whatsoever why he cut the words " and Co. " from one but allowed them to remain in the other. The Licensing authority is required by the form in' which the permit is issued to state the purpose for which iron or steel is acquired by the relevant space in the permit in question was left blank. Both under the conditions of the permit and section 9 of the Iron and Steel Order, 1948, it is the duty of the person issuing controlled iron or steel to obtain from the person acquiring the material the document which is the authority for the disposal and acquisition of the material and to preserve it. It was, therefore, Alvi's own duty, he being the only senior officer present when the truck was loaded, to obtain the permit Ex. 2 from the acquirer, in the present case Tufail Muhammad, according to the defence version. This was not done and the permit was subsequently found in the possession of Ata Muhammad, both when the truck was inter cepted opposite the Nishat Cinema and later when it was a stopped near the Ravi Checking Post. In the issue register Ex. 35, in which details of the material supplied from the dump should be correctly entered, only rounds of three sizes are shown to have been issued, and since it .is deposed by M. S. Bukhari P. W. 18, and also appears from the instance of Modern Foundry Works, that if all the material under a permit is not issued at once, it may subsequently be removed under the original route permit, it is suggested by the prosecu tion that from the beginning the intention both of Alvi and Ata Muhammad was that the latter should remove as much material as he could on 18th April and come again for the material not mentioned in the issue , register of having been delivered and obtain it 'a second time on presentation of the permits Ex. 2 and Ex.

3. The argument has considerable force and receives confirmation from another fact. When the pre mises of the Standard Engineering Company were searched and a complete inventory of the rare material and stock‑in‑trade found there was prepared, it was discovered that Ata Muhammad was in possession of 53 maunds and 35 seers of sheets and plates and 11 maunds, 21 seers of channels which did not exist when the concern was allotted to him and were not supplied' under either of the two permits that were issued in Jannuary in the name of the Standard Engineering Company or the Sant Engineering Company. There is no explanation of how and wherefrom Ata Muhammad acquired this vast quantity of con trolled material, and the only obvious source for this unaccounted for supply seems to be the Government dumps in Lahore of which Alvi was incharge. I should mention one more fact at, this stage. If the supplies from the dumps have been correctly entered in the issue register, it is established from the entries in that register as well as the permit books that with the ex ception of an important foreign firm there is no other individual firm or department, that ever received a second supply from Alvi. As against this it is not denied that during the course of only three months the insignificant mofussil concern of Ata Muhammad received as many as three supplies. It is against this background that Alvi's conduct in reference to the transaction charged has to be judged. From the facts just mentioned one thing is obvious and that is that Alvi threw all rules and scruples to the wind in his anxiety to supply, the controlled material to his brother. That this supply to him was dishonest and fraudulent can also not admit of any doubt. No concern of the status of Standard Engineering Company, had ever been given as much controlled material as was given to it for the very first time in January 1948. . With the exception of four other permits, it was the largest permit ever issued by Alvi before or after the partition. No individual firm or department with the exception of a larger foreign firm, had ever been so fortunate as to receive a second supply from Alvi but in the case of the Standard Engineering Company, Alvi issued another permit within a few days of the first but concealed this fact by showing the permit to have been issued in the name of a different concern, i.e. Sant Engineering Company. No honest and impartial officer could thus have given a third permit to the Standard Engineering Company but within three months of the second permit, Alvi issued still a third permit to this concern, this time camouflaging the identity of the acquirer by describing him as J. A. Shah or J. A. Shah & Co. As an allottee of the Sant Engineering Company which he named as Standard Engineering Company, Ata Muhammad could not have been entitled to the material that he was permitted to acquire or else there was no reason for Alvi for not making a‑ straight grant to him or for attempting to camouflage the identity of the grantee by describing him under a false business name. I have therefore not the slightest doubt. or hesitation in holding that the permit Ex. 2 issued by Alvi was false and fictitious and was no authority for anyone to remove even one pound of con trolled material from the dump. Under this permit Ata Muhammad could not remove any material as the permit was neither in his name nor in the name of his concern. Knowing full well that he could not acquire, and his brother could not permit him to acquire, any more inater Ata Muhammad is compelled to take up the position that he neither applied for nor removed the material. The permit in question is therefore not claimed by him as an authority for the removal. Jamaat Ali Shah could not remove the material as it is nobody's case that as an individual he was entitled to apply for or acquire all this bulk of controlled industrial material. In the Standard Engineering Company Jamaat Ali Shah had no interest beyond that of a petty employee and the permit was not in the name of that Company but in the name of J. A. Shah & Co., a firm or concern that does not exist. This position was fully known to Alvi and it is not his case that any deception was practiced on him by Jamaat Ali Shah or anyone else Alvi's position would have been understandable had be pleaded that the permit in question was obtained from him by Jamaat Ali Shah by misrepresentation. That however is not, and could not be, his case as nobody knew better what J. A. Shah & Co, or Jamaat Ali Shah is. The permit for removal, therefore, not having been issued by Alvi in honest exercise of his functions as a Steel Licensing Officer but being a mere ruse for the removal of the controlled material, and the trick being known in all its details to everyone concerned, none could remove and Alvi could not permit removal of, any material from the dump under the authority of this fictitious document even on payment and no question of the material being or not being in excess of the permitted quantity arises have already pointed out that under the Iron & Steel Licensing Order; nobody can acquire or dispose of any controlled material except under a permit Therefore where, as in this case, there is no valid permit, and the fraudulent character of the document pur porting to be a permit is known to the authority issuing the permit as well as to the acquirer and the stockist, no authority for the removal exists in law or fact so far as the parties aware of the fraudulent character of the permit are concerned. Both the dumps consisted of evacuee property of which Alvi was incharge on behalf of the Custodian of Evacuee Property. Therefore, any dishonest removal of such property by Alvi or with his consent amounted to a criminal breach of trust by Alvi for which he could be convicted under section 409, I. P. C., irrespective of the quantity of controlled material thus removed. Learned Counsel for Alvi contends that his client cannot be convicted on the ground just mentioned because neither n the accusation nor in the arguments before the Special judge or us did prosecution counsel refer to this aspect of the case. He complains that in the accusation read out to Alvi before the Special Judge he was only charged with the removal of material in of the permitted material and that his conviction now on the ground that the permit itself being fictitious the removal of the material in excess of that permitted was unauthorised, be unfair. Though I am quite clear that this aspect of the case was throughout present to Alvi's mind, I feel that counsel's grievance is not justified and that conviction on a ground not stated at all by the prosecution would involve a certain amount of risk. I do not therefore wish to found the conviction on the ground that the permit being fictitious Alvi could not permit any removal of the controlled material. Accordingly I proceed to deal with the question whether the removal of the excess material was with or without Alvi's consent. But, as I have already stated, in approach ing this question the whole background of Alvi's dealings with his brother in the matter of the supply of controlled iron, leading to and including the present supply, has to be borne in mind. The circumstances on which the prosecution rely to prove that the unauthorised goods were removed with Alvi's knowledge have already been enumerated, The‑first question to be considered is which of those circumstances have been satisfactorily proved. To begin with, Miraj Din, Head Clerk, P. W. 12 states that on 17th April under the orders of Alvi he required some clerks to attend the office on Sunday, the 18th of April. This is not disputed and is sought to be explained on the ground that even on the Sunday preceding the 18th April as well as during the Easter Holidays a similar order was made and that there is nothing unusual or suspicious in it. The office record shows that whereas on 18th only four clerks and one Inspector were required to attend on 11th April ail the staff' and that during the Easter Holidays as many as seven clerks were required to be present. There is no evidence that there was any excess work in the office attention on the 18th. Miraj Din went away from the office at midday and Jalal‑ud‑Din did not come at all to the office. Rustam Ali had nothing to do on that day except to attend to this loading. Neither Alvi nor Ata Muhammad admits that he was present on the 18th when the truck was loaded but the evidence of their being present is so overwhelming that the learned Judge has not found it possible to reject it. As pointed out by him, such evidence is to be found in the statements of Miraj Din, Head Clerk, P. W. 12, Rashid, driver P. W. 5, Muhammad Salam, Chowkidar P. W. 8 and Muhammad Shafi P. W.

2. Miraj Din states that he also attended office on 18th April which was a Sunday under the order of Alvi but that he went away at about 12‑30 after finishing his work. Alvi came at about 11 a. m. while the truck was being loaded, stopped for ten or fifteen minutes, and then went away giving directions to Rustam Ali to remain present until the truck was loaded. According to Muhammad Salam P. W. 8, Alvi and. his brother Ata Muhammad were present when the truck was loaded and Alvi supervised the loading. Giving details of Alvi's presence at the dump the witness states that Alvi came after the arrival of the truck, remained there for an hour, then left at midday to attend a wedding, returned again at 1‑30 and remained there as long as the truck was being loaded. The evidence of Rashid about Alvi's presence is even more detailed and definite. He says that the loading was done in the presence of Alvi and Ata Muhammad arid that the former remained present until the truck was loaded. The loading finished at about 4‑30 p m., but as it had not been done properly, he said to Alvi that he would be challaned by the police for improper loading. Thereupon Alvi phoned to the Ravi Checking Post saying that the truck was carrying goods belonging to his brother and that it should be allowed to pass the Post without any obstruction. He further states that after the truck was loaded, ten more sheets were put on top and that it was after this that Alvi and Ata Muhammad left the dump giving him directions, that Ata Muhammad should be picked up from Alvi's house near the Nishat Cinema. During the time that the truck was being loaded, Rashid absented himself from the dump for only a short time when he went out to take his midday meals. Muhammad Shafi P. W. 2 merely gives evidence of Alvi having admitted to him after the truck was intercepted at Abbott Road that the loading was done in his presence. I shall later deal with the question what exactly Alvi stated to Muhammad Shafi and whether the statement amounts to a confession or not, the point to be considered at present being whether Alvi did or did not admit to Muhammad Shafi that the loading was done in his presence. Alvi denies that he met Muhammad Shafi on the evening of 18th April but the learned judge has not accepted this plea or rejected Muhammad Shafi's evidence on this point. Conclusive evidence about Alvi's presence, however, is to be found in the statements of Nazir Hassain P. W. 6 and Muhammad Zaman, Assistant Sub‑Inspector of Police. P. W.

7. According to the former, between 4 and 5 p.m. on 18th April 1948 he received a telephone message from Alvi that a truck bearing No. P. B. L. 5711 driven by Rashid and carrying goods belonging to Alvi's brother, which were covered by a permit, was to pass the Ravi Checking Post and that it should be allowed, to pass: The witness replied that if there was nothing objectionable the truck would be allowed to pass, otherwise not. On this the witness was assured by Alvi that the weight of the load would not be in excess and that the truck would be properly loaded. As the truck did not arrive while the witness was on duty, he conveyed the message to Muhammad Zaman who succeeded him. The witness claimed that he knew Alvi before arid that he re cognised him by voice while he was talking to him over the telephone and demonstrated his previous acquaintance with Alvi by giving his telephone number in reply to the only question put in cross‑examination. Muhammad Zaman says that when he took over charge from Nazir Hussain, the latter told him that he had received a phone message from Alvi to the effect that truck No. P. B. L. 5711 whose driver was Rashid should be allowed to pass even if there was ‑any excess in the load. It is true that according to the evidence of Nazir Hussain, Alvi had told him that the weight would not be in excess. This is different from what Muhammad Zaman claims to have heard from Nazir Hussain, namely, that the truck should be allowed to pass even if there was excess load. For the purposes, of the present point it is unnecessary to determine what was the precise message which Nazir Hussain communicated to Muhammad Zaman. There is, however, no difficulty whatsoever in accepting Muhammad Zaman's evidence that a message received from Alvi by Nazir Hussain over the phone was communicated to him and that it related to truck No. P. B. L. 5711, the driver of which was Rashid. Similarly, see no reason whatsoever for not believing the evidence of Nazir Hussain when he says that Alvi phoned to him that the truck in question contained goods belonging to his brother and that it should be allowed to pass. The evidence of these two witnesses, therefore, is a complete confirmation of the evidence of Rashid, driver and Muhammad Salam, Chowkidar, that the truck was loaded at the dump in the presence of Alvi and that he was present when the loading was finished. As the last act in the loading was the putting of ten iron sheets on top, Alvi must also have been present when these sheets were loaded and that is what Rashid states. The question, therefore, is how far does the presence of Alvi when the truck was being loaded make him responsible for the removal from the dump of material that was not covered by the permit. The learned judge seems to think that even if the evidence of Alvi's presence while the truck was being loaded be accepted, it would not show beyond doubt that Alvi was aware of the unauthorised character of the goods that were loaded and that a general statement by the witnesses that the truck was loaded under Alvi's supervision would not make him liable for any unauthorised material that might have been put into it. If the possibility of unauthorised material having been removed without his knowledge existed, one might well ask why has Alvi chosen to deny his presence and why did he make payment of the freight to Rashid only on the condition that he did not bring him into the affair ? Is it not a consciousness of the position that' once his presence for any length of time is admitted or proved, the theory of unauthorised goods having been removed .without his knowledge will become impossible and thus the case against him conclude, that has prompted him to deny his presence? The evidence is that Alvi was present not in his office but at the dump where the truck was being loaded and that he came there twice. Now, There could be only two reasons for his presence there, no third reason being conceivable. Either he was at the dump to see that only permitted material was removed or to facilitate the removal of unauthorised material. The first reason is not even suggested by the defence and that could not be the reason is apparent from the nature arid weight of the stuff found in the truck. That' reason being excluded, the only other reason could then be to help his brother in removing whatever he could lay his hands on. In the ordinary course, no official would have permitted Ata Muhammad to remove even ten seers of iron more than that allowed by the permit or any material of specifications different from those mentioned in the permit. But removal of material substantially in excess and of different categories and specifications became perfectly easy if the officer in charge was himself present and was a willing party to such removal. I have found that excess load in the truck was 48 maunds but even if an allowance of six maunds in the unladen weight of the truck, and, in view of Rashid's statement to the police that the coal bags were not removed when the truck was weighed at the Ravi Checking Post, a further allowance of five maunds is made, the excess would still come to 37 maunds. A comparison of the specifications in the permit and those in Ghulam Qadir's comparative table Exhibit 23, would show that the goods unloaded from the truck were not only of categories different from those mentioned in the permit but also of different specifica tions. I do not consider it to be possible that excess to the extent of 37 maunds all the unauthorised variety of material could have been stuffed in the truck without directions from Alvi. Of course if there exists in this case the possibility of unauthorised material having been removed from the damp without Alvi being aware of it, he would be entitled to its benefit, but so that it may be accepted by a Criminal Court, such possibility must be a reasonable possibility and not merely a physical possibility. The possibilities that influence judicial determinations in favour of accused persons in cases pending on circumstantial evidence are not all conceivable possibilities, however remote and unlikely, but only such possibilities as, keeping in view all the circumstances surrounding the transaction in dispute, might well have existed. In the present case, the hypothesis of Ata Muhammad having removed unauthorised material without the consent or knowledge of Alvi appears to me to be as remote as the hypothesis that when the witnesses say they saw Alvi supervising the loading of the truck, they merely saw an apparition of Alvi or that though physically present at the dump near the truck he was there merely as a sleep‑walker or his mind at that time was a complete blank and not the mind of an intelligent and responsible officer to whom the important function of distribution of iron in the Province had been entrusted by Government, and whose experience in that work should have enabled him to distinguish at a glance the various classes of the material of which he was in charge. The permit was signed by Alvi not merely as a matter of routine but consciously and dishonestly. The details of the permitted material must therefore have been fully known to him. The permit authorised its holder to remove no more than rods, squares, flats, axles and sheets, but the truck when it was captured was found to have been loaded not only with these categories of iron, but also with a larger number of other goods, including such widely different articles as MS wire, band pieces, screw‑drivers, hammer‑heads, tap handles, bench‑vices, grinding stones, file brushes, twist drill, flat file, belt‑canvas, fasteners, hand‑saw, blades, ball‑bearings and carriage bolts. Alvi's presence for several hours being established beyond doubt, I cannot imagine that all this stuff which was not covered by the permit and included some bulky articles, e. g., wire, canvas‑belt and more than fifteen maunds of excess in flats and scraps, band‑pieces, could have been surreptitiously put into the truck, or that‑ having been so put could have remained unnoticed by him for the several hours that the truck was being loaded and its improper and excessive loading was being complained of by Rashid, driver. Nor only that, squares and sheets of dimensions entirely different from those given in the permit were also found in the truck, and the number of sheets, i.e., 44, was substantially in excess of those which on the most favourable view of the permit, could be removed. Thirty‑four sheets were actually found in the truck and there can be no doubt, and it has been found by the learned judge, that ten had already been removed at the dump. The maximum number, however, that could be removed under the permit was five MS sheets and, making all allowance for corrugations, 3: corrugated sheets. Thus there was an excess of at least seven sheets in the truck. Further, as a Steel Licensing Officer, Alvi should have known the difference between sheets of 20‑G and 21-G in the case of corrugated sheets and the difference in length‑and breadth of both corrugated and MS sheets. The ten corrugated sheets on top were definitely loaded in Alvi's presence and just before he left the dump when the truck was about to leave. The learned judge seems to think that ascertaining the dimensions of the various kinds of material and calculation of its weight is a laborious‑process and that in the absence of a weighing machine, weight is likely to be miscalculated. I have already pointed out that a permit is pre, pared only when the exact material to‑be permitted is reported to be in stock and the relative estimate giving dimensions, weight and price of the material has been prepared. This might take time, how much I cannot say, but from what we noticed when the material was brought to Court and the prosecution expert and Alvi both began to determine the exact dimensions of some of the disputed material, I received the impression that with a few simple instruments, as for instance, a scale, guage, and calipers, etc., it is the easiest thing in the world to deter mine the dimensions of various categories of the material, and the dimensions having been determined, calculation of the weight with the aid of Tata's Reference Book is a simple question in arithmetic. After a short experience of dealing in this kind of material one should at a glance be able to judge the exact dimensions of rods, Squares and flats of recognised standard and verification of visual impression by the appropriate instrument should remove all possibility of mistake. If Alvi was present when the material was loaded and was interested in seeing that only material of permitted categories and dimensions was to be loaded, he must have known whether what Ata Muhammad was being allowed to remove was not the ‑class of round, square, flat or sheet he had been permitted to acquire. I do not there fore find it possible to act on the hypothesis that not only all this unauthorised stuff but an excess weight of at least 37 maunds could have been put into the truck without Alvi being aware of it. And then who else except Alvi could have per mitted removal of the unauthorised material ? None else stood to benefit by it. It is ridiculous to suggest that some clerk from the office might have colluded with Ata Muhammad and permitted him to remove the excess material on receipt of illegal ,gratification from a person who was the brother of his own superior officer. It is in this connection that Alvi's action in arranging the removal on a Sunday and in the presence of himself and one or two favourite clerks acquires particular importance. He would surely not like to be seen by all the clerks in assisting his brother to remove the goods and if he himself had not been present, there was no reason for any one of the clerks to permit Ata Muhammad to remove the goods not covered by the permit. Jamaat Ali Shah, the person in whose name the permit was issued and who according to the defence was entitled to remove the goods, was absent when the goods were loaded, and one might well ask how the matter could be considered to be so urgent as to require the attendance of the staff and Alvi's own presence when the party who was to take delivery was unconcernedly absent and had not even cared to give a letter of authority to Tufail Muhammad who claims to be his nominee. In my opinion Alvi's anxiety to have the material removed on a close holiday and in his own pretence and in the absence of the party ostensibly entitled to take delivery or his duly authorised agent, can only be attributed to Alvi's intention to give to his brother as much as the truck could take. His telephone talk with the Ravi Checking Post also, even if it did not contain an admission of excess load, can only be explained on the hypothesis that being aware of the contents of the truck, he did not like it to be detained and was anxious to see it cross the barrier without check. The learned judge has found, and the evidence about it is par ticularly strong, that ten corrugated sheets loaded on top of the truck when it left the dump were sheets that were removed at the dump after it was intercepted by Muhammad Shafi, near the Nishat Cinema. There is evidence both of Muhammad Shafi and Ghulam Sarwar that these sheets were unloaded near the Nishat Cinema in the presence of Alvi. Rashid, driver however, states, though some of the sheets had been actually unloaded near the Nishat Cinema, the coolies refused to take them to the dump, with the result that they had to be unloaded at the dump. Rashid does not say whether Alvi was present near the Nishat Cinema or at the dump when they were unloaded, but assuming that they were unloaded at the dump, it is obvious that they could not have been so unloaded without a direction from Alvi. It was evening time when no clerks could have been in‑the office; and no body could have received or redeposited the sheets at the dump after office hours in the absence of instructions from Alvi who was the Officer in charge of the dump. And Alvi could have given the direction to unload only if he know that some of these sheets were unauthorised and while he was still expostulating with Muhammad Shafi. I have already referred to the evidence that these sheets are of a different guage from the one mentioned in the permit and that they were loaded in Alvi's own presence. The fact therefore that they were subsequently removed from the truck under Alvi's direction confirms the conclusion that Alvi knew that they could not be removed from the dump under the permit. Alvi's conduct in attempting to take possession of the truck after its capture leads to the same conclusion. He saw Mr. Kureshi twice on the night of 19th April and all that he said to him leas that the truck. should be released because his brother and his own prestige were involved. He did not at all then allege that the allegation of the truck containing unauthorised material was unfounded and that there should be a thorough examination of the contents which had been loaded in his presence. And then there is Alvi's conduct in issuing a false permit for the benefit of his brother. I have already remarked that Alvi did not permit any rule or scruple to come in between his duty the benefit to his brother or himself. If he could, have issue fictitious permit to enable his brother to acquire controlled go he would hardly hesitate to permit him to remove such good he could without paying for them. It would be a curious mentality indeed whose owner in the discharge of his public function should be willing to be palpably dishonest in letting in whom he is interested have what they are not entitled to in doing so, feel no hesitation in making false documents but when it came to help them by swindling Government, conscience should come in between his duty to Government his desire to benefit those men. I should not be understood saying that a man who has committed one offence should held to be likely to have committed another offence, but what I mean is that, when a man's mind becomes corrupt it ceases engaged in a corrupt activity to brother about fine shades distinction in the ethical aspect of the means, and that in particular case the transaction from its very inception dishonest, the inference of the dishonesty charged becomes more readily acceptable from the facts proved and involves less r I have therefore no doubt whatsoever that the unauthorized material was loaded in the truck with the knowledge of Alvi the benefit of hi: brother. I come to this finding whether any documents is proved or not proved to be a forgery. I now come to the charge of forgery. The documents alleged by the prosecution to have been forged are (1) Ex. E, an application dated 10th March 1948, by Jammat Ali for permission to acquire the material ; (2) Ex. 30, a recept dated‑ the 17th April, by Syed Jamat Ali Shah, acknowledging receipt of the balance of the material due to Muhammad Shafi of Modern Foundry, Multan (3) Ex. 21, a letter dated 10th April 1948, by Muhammad Shafi of Modern Foundry, Multan, to the Steel Licensing Officer asking for other material in place of the billet Which had not been delivered to him; (4) Ex. 17, a receipt dated 17th April 1948, signed by Nawab Din Nizami "for S. L. O." acknowledging receipt of Rs. 1,470 from Jamaat Ali Shah; (5) Ex. 19, estimate dated 17th April 1948, prepared by Inspector Jalaluddin for the material that was to be issued to Jamaat Ali Shah; and (6) Ex. 18, cash receipt register of the office of S. L. O. showing receipt of Rs. 1,470 from Jammat Ali Shah on 17th April. The basic evidence about these forgeries is to be found in the statements of Miraj Din, Head Clerk, P. W. 12, and Nawab Din Nizami P. W. 9, and to some extent in the statement of M. S. Bokhari P. W.

18. I am not prepared to attach much importance to the evidence of Bokhari on this point because at the time he gave evidence he was under a threat of prosecution fur receiving illegal gratification. Miraj Din and Nawab Din Nizami are on their own showing accomplices and I should be unwilling to act on their evidence, unless it received confirmation from other evidence showing that the particular document was forged and tending to show that any particular accused was concerned in the forgery. But in assessing the evidence of these witnesses, it cannot be overlooked that neither of them either benefited by the transaction to which he deposes or has any motive falsely to implicate anyone of the accused persons. They were both officials in an office the head of which was Alvi to whom they had reasons to feel grateful. Another point that at the very outset of this part of the case, I must make clear is that any finding in connection with the main charge which I have dealt with earlier that a document relied on by the defence has not been duly proved or that it might have been forged does not amount to a finding that it has in fact been forged. When a document is relied on by the accused, it is the duty of the defence duly to prove it, but when the prosecution alleges it to be forged and asks for conviction on that ground, it is the prosecu tion's duty to prove the forgery beyond all reasonable doubt. While dealing with the principal charge I have not accepted the defence allegation that some of the goods not covered by the permit Ex. 2 were delivered to Tufail Muhammad on behalf of Jamaat Ali Shah and that the latter had been instructed to take their delivery by Muhammad Shafi of Modern Foundry, Multan, who had been permitted to acquire these goods in substitution of a billet which had remained undelivered to him. The prosecution allegation is that any document which either shows Jamaat Ali Shah's presence in the S. L. O.'s office on 17th April or that any goods were permitted to be delivered to him on behalf of Muhammad Shafi, is a false document and was fabricated on 19th April after the truck had been captured on 18th April. Most of the documents falling under this charge and which have been particularized above come under one or both of the classes just mentioned. Miraj Din, Head Clerk, P. W. 12, states that the document Ex. 17 which purports to be a receipt dated 17th April acknowledging receipt of Rs. 1,470 from Syed Jamaat Ali Shah of Standard Engineering Company, Jaranwala, was signed by Nawab Din Nizami P. W. 9 on 19th April and then antedated to 17th April at the instance of Alvi; and the evidence of Nizami is to the same effect. Keeping in view the fact that both these witnesses are accomplices and were not willing in the earlier stages of the investigation to admit the forgery, it has to be seen whether their evidence on this part of the case receives confirmation from other evidence. I might mention that in the route permit Ex. P. 3 in the name of J. A. Shah & Co., which was issued under the direction of Alvi and handed over by him to Ata Muhammad in whose possession it was found on the 18th April when the truck was captured, it was stated that price of the material had been received. This permit, however, was practically to Alvi himself and therefore mere recital of the fact that price of the material had been received carries no significance and is no proof that the money had in fact been paid in the office and thus it is no contradiction of the evidence of Miraj Din and Nizami. I am quite convinced that Jamaat Ali Shah did not come to the office of the Steel Licensing Officer on 17th April because if he had been in Lahore on that day, there is no conceivable reason why he should not have been here also on the 18tb when according to the defence lie had to receive such an important delivery that special arrangements for it on a closed holiday had to be made and Alvi himself had to be present. Jatnaat Ali Shah is merely an employee of Ata Muhammad who had used his name, and perhaps his signature, to obtain the material for himself. Jamaat Ali Shah himself had no interest in the transaction, and he was so unconcern ed about it that he did not care to be present on 18th when Ata Muhammad took delivery. I cannot imagine that being in Lahore on 17th, Jamaat Ali Shall should have such an important engage ment elsewhere that he should not find it possible to be present to take such an envied delivery on the following day. Further, if some unavoidable engagement necessitated Jamaat Ali Shah's disappearance from Lahore after he had received the precious permit, how is it that he could not even give a letter of authority to Tufail Muhammad to take delivery on his behalf ? The position can only be explained on the hypothesis that Jamaat Ali Shah had taken no interest whatsoever in the transaction beyond perhaps lending his signature on some application to ‑ Ata Muhammad, and therefore, had no reason to be present at Lahore on 17th or 18th April. Consequently the fact that he was admittedly not present on 18th April when the goods were delivered to Ata Muhammad‑ is good corroboration of the evidence of Miraj Din and Nizami that Jamaat Ali Shah was not seen by them in the office of the Steel Licensing Officer on 17th April and that Alvi himself obtained from Nizami on 19th April a receipt in the name of Jamaat Ali Shah directing him to antedate it to 17th April. I do not say that the absence of a man from one place on a particular day is proof of his absence from that place on ‑the preceding day but in the circumstances of this particular cage Jamaat Ali Shah's absence from Lahore on 18th April is almost conclusive proof of his being absent from Lahore on 17th April. The document in question therefore having been antedated for the purposes of defence is a forged document. For the same reasons Ex. 30, receipt by Jamaat Ali, dated 17th April, acknowledging receipt of certain goods on behalf of Muhammad Shafi of Modern Foundry, Multan, is a forgery but as neither Miraj Din nor Nizami deposes to this document having b3en procured by Alvi, the basic evidence in the case of this document is missing and none can be held liable, except Jamaat Ali Shah himself. According to the evidence of Miraj Din and Nizami taken together, the Cash Receipts Register Ex. 18 was opened by Alvi on 19th April on which date all the entries that exist in it, including that relating to the receipt of Rs. 1,470 from Jamaat Ali Shah on 17th April, were made by Akhtar Ali accused on 19th April and the signature of Nizami obtained by Alvi on the same day. The basic evidence ‑again in the case of this document is that of Nizami but conclusive corroboration of his evidence is to be found in the document itself. The document contains only three entries on only one page, and they all seem to have been made by each signatory by this same pen ‑and in the same ink. The descriptive entries alleged to have been made by Akhtar Ali also are in one ink and by one pen. The forgery is so clumsy that it can be discovered at a glance. Alvi's case in the course of arguments before us was that he had this register opened from the beginning of the financial year to avoid retention of public moneys by the clerks in the office, but I cannot accept it as an innocuous coincidence that Alvi should have thought of bringing this register in existence a few weeks before the date of the transaction charged. I am satisfied that this register came into being only on 19th April as deposed to by Miraj Din and Nizami, that all the entries existing in it were made on that day, and that Nizami antedated his signature at the instance of Alvi. This document also is therefore proved to have been forged under the instructions of Alvi. Exhibit 19, the estimate of the material, is alleged by Miraj Din to have been prepared by Inspector Jalaluddin on 19th April and antedated to 17th April. This estimate is about 7 maunds in excess of the permit Ex. 2 and there is no explanation for this discrepancy except that suggested by the prosecution, namely, that it was substituted for the original to partially account for the excess removal. Miraj Din, however, does not say that this document was forged at the instance of any particular accused arid since Jalaluddin is not an accused in this case, it is unnecessary to consider this document any further. There is do corroborative evidence in the case of any other document and therefore the charge of forgery respecting them fail. Now coming to the question what offences on the findings recorded have been committed, I am of the view that the dishonest removal of the material from the dump does not amount to theft because Alvi being incharge of the dump the material therein must be deemed to be in his possession and the removal was not without but with his consent. But since the material wag evacuee property which was in trust with Alvi as a public servant, any dishonest removal of it by Alvi himself or by some one else at his instance amounted to a criminal breach of trust punishable under section 409; Indian Procedure Code, and those who knowingly facilitated such removal were guilty of abetment of that offence. Exs. 17 and 18 are false documents and since they were made to support the claim that money was deposited _in the office by Jamaat Ali Shah on 17th April 1948; they amount to forgeries rendering their makers liable to be punished under section

465. Indian Penal Code, and those who abetted the forgeries liable under that section read with section 109, Indian Penal Code. Criminal breach of trust by a public servant is a very serious offence and is included in the category of those offences which cannot but be punished with imprisonment, the Court in this respect having no discretion as in the case of numerous other offences which are punishable with imprisonment or fine or with both. In this case, however, there are several reasons why a substantial sentence of imprisonment is not necessary and a fair sentence of fine will meet the ends of justice. By reason of this conviction Alvi will be dismissed from his office and the proceedings in which he had to defend himself have been both costly. Considering all aspects I pass the following For the dishonest removal of the material (1) 1 convict Sardar Mohammad Khan Alvi under section 409, Indian Penal Code, and sentence him to a day's simple imprisonment, which he will suffer till the rising of the Court; and a fine of to thousand rupees. In default of payment of fine, he will undergo six months' rigorous imprisonment. If such imprisonment) is, suffered, no process for the recovery of the fine shall issue. (2) Ata Muhammad's, Tufail Muhammad's and Rustam Ali's convictions are altered to those under sections 409/114, and the sentences of the first two are maintained. As Rustam Ali derived no benefit and acted wholly under Alvi's influence his sentence is reduced to the term of imprisonment already undergone acrd a fine of Rs.

100. In default of payment of fine he will undergo two months' rigorous imprisonment For his having abetted Nizami to forge Ex. 17 Alvi is sentenced under sections 465/109, Indian Penal Cede., to a fine of Rs. 500 and to fifteen days rigorous imprisonment in default of payment of fine, The same will be the sentence in his case for his having abetted Nizami, Akhtar Ali and Miraj Din to forge Ex.

18. Government has not appealed against Jamaat Ali Shah and Akhtar Ali and I do not consider a retrial, which must ba lengthy and costly to the State, is necessary in their case. Notices issued to them to show cause against retrial are therefore Notice in revision to Alvi has become infructuous In the case of Ata Muhammad and Tulail Muhammad, the sentence in view of the findings appear to be adequate while Rustam Ali's sentence has been reduced in appeal. Notices in revision to these men also are therefore discharged. S. A. RAHMAN, J.‑I have had the advantage of seeing the judgment proposed to be delivered by my Lord the Chief Justice in this case. Unfortunately, I have not been able to divest my mind of what, in my humble judgment, should be regarded as a reasonable doubt on certain aspects of the case. With the greatest deference for the conclusions reached by my Lord, I am constrained to differ from him on certain points though I have done so after a good deal of hesitation. With regard to the objection raised on the point of alleged misjoinder of charges and persons, a complete answer is provided by the decision of their Lordships of the Privy Council in Babulal Chaukhani v. Emperor (A. I. R. 1938 P. C. 130). My Lord has dealt with the point, exhaustively and 1, there fore, need add nothing more on this point. I respectfully agree with the conclusion reached by my Lord that there has been no misjoinder and the trial consequently was not vitiated. The accusation in this case was expressed in a form which brings it within the four corners of the Privy Council decision. It would, therefore, be unnecessary, in my humble opinion, to consider the further question whether, in fact, the various acts on which the prosecution is based in this case, do or do not form one transaction. As has been observed by my Lord, the cardinal point for determination in the case is whether any material not covered by the permit Ex. 2, was removed from the dump or not. It was suggested on behalf of the defence in this connection that besides the material issued on the permit Ex. 2 from the dump, the truck also contained ten maunds of material issued for one, Muhammad Shafi, of the Modern Foundry, Multan and some material purchased from the market as evidenced by five cash memos. produced in defence Exhibit

22. The weight of the material alleged to have been purchased by means of the cash memo. would come to nine maunds. In this connection, our attention was drawn to the statement of Mr. B. A. Qureshi, Director of Industries (P. W. 15), to the effect that on the, 19th of April 1948, Jamaat Ali Shah, accused showed him a cash memo. My Lord has formed the view that Mr. B. A. Qureshi may have been mistaken in describing this document as a cash memo. and that it was identifiable with Ex. 17, a receipt for Rs. 1,470 issued by the Steel Licensing Officer in favour of Jammat Ali Shah. On this point, the testimony of Khan Habib Ullah Khan (P. W. 17) has been referred to. I am inclined to think that the explanation furnished by this witness is not correct. Habib Ullah Khan had taken possession of all the documents that had been sent by Mr. Qureshi to Mr. Mahmud‑ul‑Hassan,' Secretary, Industries Department, and the documents thus taken, over are described by this witness, as Ex. 2, 3, 5, 6, 7, 8, 9, 37 and

38. It will be seen that Ex. 17 does not figure among them and apparently, therefore, Ex. 17 never came into the possession of Mr. Qureshi. Consequently, the suggestion that Mr. Qureshi might have mistakenly described Ex. 1.7 as a cash memo. does not arise at all. It seems to me that on the 1‑9th April, Jamaat Ali Shah may have shown one of the cash memos.. out of the five produced in defence, to Mr. Qureshi, but that of course would be no guarantee that the goods purchased on that that cash memo. had been placed in the truck. The very fact that Mr. Qureshi mentioned only one cash memo., would appear to belie the defence allegation tat the goods purchased on the five cash memos. had been placed in the truck. Mr. Qureshi does not appear to have taken possession of that cash memo. Although, therefore, I differ on a minor point from the opinion expressed by my Lord, I am in respectful agreement with the conclusion arrived at by him to the effect that the goods represented by these cash memos. never found their way into the truck. I can add nothing usefully to the very cogent reasons advanced by my Lord in respect of that conclusion. It seems to me that these cash memos. were just procured from certain shops or individuals and pressed into service for explaining part of the excess of materials, in the truck over those ‑mentioned in the permit Ex.

2. I have similarly no doubt that the defence theory that certain materials intended for Muhammad Shafi of the Modern Foundry, Multan, had been included ‑in .the truck has not been substantiated. On this point, I have nothing to add to very lucid observations of my Lord. On this view, it is clear that there was certainly an excess of material discovered in the truck as compared with it that detailed on the back of the permit Ex.

2. The tot;, weight of the laden truck was found to be 224 maunds the Ravi Road Police Checking Post. I see no reason t disbelieve the evidence led by the prosecution to establish that this was the actual weight of the laden truck. Unfortunately, however, the prosecution for some unexplained reason did not have the net weight of the material determined, either by having the unladen truck weighed as by, weighing the material itself. In the circumstances, the exact quantum excess depends on certain calculations that have to be mach My Lord has assumed that the estimate of the driver Rashid (P. W. 5) about the unladen weight being 80 or 82 maunds correct and in this connection he has been pleased to refer the registration certificate of the truck on the file, which gives the unladen weight as 6,772 pounds. I understand that then are 822 pounds in a maund. Even if the unladen weight 6,772 pounds, it would work out to nearly 83 maunds. I find that in this very registration certificate the figure 7,052 pounds is also given against the entry of unladen weight. There are, however, other documents on the file coming from official sources, which tend 4o support this higher figure. I: appears that when this lorry was purchased new, its weight was 5,600 pounds on 10th January 1944; as is evident from Form 'E' on the file, but that its unladen weight cane to be recorded as 6,480 pounds on 22nd June 1944. On th;t, date, the fitting of the gas plant appears to have been sanctioned, as evidenced by another document on the file issue, by the Regional Transport Authority. In the Form `E', date, 4th August 1945 on the file, the unladen weight of this vehicle is shown as 7,052 pounds. This is also the weight mentioned in a letter of the Registering Authority, Lahore, addressed to the Deputy Superintendent of Police, S. P. E., dated the 31st of March 1949. It may be, therefore, that the unladen weight was nearly 7,052 pounds, which would work out to about 86 maunds. Further, there is conflict in the evidence as to whether the sacks of coal loaded on the truck and the private baggage of the driver, Rashid, had been removed from it, before the weighing or not. Rashid's statement is that none of these articles had been removed, though Muhammad Zaman, A. S. I., deposes to the contrary. I would, therefore, hold that a further allowance of four to five maunds should be made in order to arrive at the net weight of the materials. Out of 224 maunds we should deduct 86 plus 5=91 maunds. This would give us the net weight of the material as 133 maunds. It is common ground between the parties that the permit Ex. 2 allowed the removal of 100 maunds of material. The excess, according to my calculation, therefore, would be of the order of 33 maunds. In this connection, it may be relevant to point out that according to the calculations made by Ghulam Qadir (P. W. 10), who determined the weights from the specifica tions of articles mentioned in the inventory of the material prepared' under the general supervision of Ch. Hashmat Ali (P. W. 16) and Sana Ullah Inspector (who has not been produced), the pieces was of 24 maunds and 30 seers. Ghulam Qadir has adopted the weights corresponding to these specifications, as given in Tata s book. That book, however, itself conveys the warning that a tolerance of 5 to 10 per cent of the calculations in the weights would be normal. One might, therefore, say that the excess weight probably lay between 25 and 33 maunds. A suggestion was thrown on behalf of the prosecution to the effect that Alvi, the principal accused in the present case, may have removed certain material from the truck while it was in the charge of Ch. Abdur Rahiman, Officer on Special Duty, for the purpose of being reweighed at the Misri Shah Octroi Post. I do not consider that this suggestion is fair, because the prosecution failed to call Ch. Abdur Rahim into the witness‑box. If he had been examined, the Court may have been in a position to judge whether Alvi had any opportunity to tamper with the material or not. In the absence of such evidence, no inference adverse to the accused can, in my humble opinion, be drawn. The prosecution case is that after the truck had been intercepted by Muhammad Shafi and Ghulam Sarwar P. Ws., ten galvanized iron sheets that lay on .the top of the remaining material were removed. The permit Ex. 2 does not give the number of galvaized iron sheets permitted to be removed, but it gives their weight and Specifications. The calculations made by the expert witnesses show that the number of galvanized iron sheets thus alleged to be taken away should have been 32 Actually 34 such sheets were found. This is curious in view of the statements made by Muhammad Shafi and Ghulam Sarwar P. Ws.. to the effect, that they counted the galvanized sheets at the time of the interception of the truck and found that besides the ten sheets on the top there were 22 more such sheets at the bottom. If the sheets at the top had been removed, it is not clear how the remaining 22 sheets swelled into 34 subsequently. The suggestion of the defence, therefore, is that the allegation about the removal of ten sheets is incorrect. In any case, the matter becomes somewhat doubtful. If it is held that ten sheets had also been removed, the excess in the truck should be regarded as of the order of 29 to 37 maunds, as the ten sheets would weigh about 4 maunds. In my opinion, this is not very material, because substantial excess was proved even otherwise and that could not possibly be explained away on the ground of honest error on the part of the issuing authority. I am in respectful agreement with the observations made by my Lord the Chief Justice as regards the guilt of Ata Muhammad, Rustam Ali and Tufail Muhammad accused in connection with the removal of the excess material. I also agree that Jammat Ali Shah merely lent his name to his employer, Ata Muhammad, to sign 'the application for acquiring the material and was not privy to the removal of this excess. Akhtar Ali accused No. 2 lad obviously nothing to do with this removal. The question, however, is whether Alvi, the principal accused, allowed this excess to be removed consciously in order to benefit his brother, Ata Muhammad accused. It is on this point that with the utmost deferred find myself constrained to differ from the conclusion react. It is undoubtedly true that Alvi had been favouring brother, Ata Muhammad, by frequent issue of permits controlled iron and steel goods from the dump in his charge. There is good evidence on the file in support of this allegation made by the prosecution. It was probably on this account on the present occasion, Ata Muhammad resorted to the device of putting forward his own servant. Jamaat Ali Shah as applicant for a permit. Ata Muhammad had been allot the Sant Engineering Company, Jaranwala, as he refugee from Jullundur where he was running the Stand Engineering Company before the Partition. The application, Ex. E., which has been placed on the file in defence, submitted by Jamaat Ali Shah on behalf of the Stanch Engineering Company, Jaranwala, which was the nameto the Sant Engineering Company after allotment, by Muhammad. The prosecution alleged that originally the application had been written out by Ata Muhammad himself, who appended the signatures of Jamaat Ali Shah, but later, after truck had been captured, the application Ex. E., which has Jamaat Ali Shah was substituted therefor. The contents of two applications were said to be the same. The learned Special judge has come to the conclusion that Ex. E could not be legal as a forged document and I am inclined to agree. There is no satisfactory evidence on the file besides the testing of accomplice witnesses to show that Ex. E was substituted any other application. Exhibit E was, therefore, a genuine document. Apparently, Alvi felt squeamish about the record show too frequent issue of permits to his brother, Ata Muhammad. It seems to me to be correct, therefore, that at his instance the name originally written in the permit Ex. 2 and its counterpart Ex. 29 was erased and J. A. Shah & Co." was substituted by the Clerk concerned. In the office foil, the words " & Co." were later cut out under the initials of Alvi. In the permit Ex. 2, he name of the applicant remained as J. A. Shah & Co. The idea might have been entertained by Alvi that by means of this camouflage, the discovery may be prevented that he was issuing a permit in favour of his own brother Ata Muhammad. A reference to the original application of Jamaat Ali Shah could have, however shown who the real recipient was, but it might have been hoped that nobody would delve into the official record for this purpose. My Lord has taken the view that the permit, Ex. 2, should, in the circumstances, be regarded as a false and fictitious document, which could not empower any one to remove the material from the dump. With the greatest deference for leis opinion, I am disposed to take the contrary view. If the explanation given by Rustam Ali accused, who prepared the permit and the office foil Ex. 29, to the effect that he wrote the words " Co." by mere force of habit, inadvertently, be accepted, it could follow that the permit had not been issued to a fictitious person and I consider that the explanation given by Rustam Ali in this connection may well be true. It appears that after the truck had been captured, Alvi noticed the word "Co." in the office foil and struck them put. The permit could obviously be traced to the application of Jamaat Ali Shah on behalf of the Standard Engineer ing company and that was no fictitious person. Sections 4 and 9 of the Iron and Steel (Control of Production, Distribution and Imports) Order, 1948, to which my Lord has referred, appear to me not to be attracted to the case in terms. Section 4 lays down that no person shall acquire or agree to acquire any iron or steel from a producer, importer or a stock holder, except under the authority and in accordance with the conditions contained or incorporated in a general or special written order of the Controller. It seems to me that in the present case, we are not dealing with the acquisition of iron and steel from a producer, importer or a stockholder within the meaning of these terms as defined in the Order. The issue was made in the present case from a Government dump of which the Steel Licensing Officer was in charge. I am doubtful whether he could be describ ed as a stockholder within the meaning of this Order. Section 9, therefore, which requires the producer, importer or a stockholder disposing of controlled materials, to obtain from the person acquiring that material, the permit issued to him by the relevant authority and to deliver it to the Controller or such person as the Controller may direct, would not in all probability apply to this case. Consequently, it could not be said shat there was a statutory duty on the part of Alvi to take back the permit, Ex. 2, from Ata Muhammad in this case, after the material had been issued. The sections in terms do not appear to be applicable. The reason may be that when the Order was promulgated, it was not within the contemplation of Government that some Government official will also be in charge of a dump of controlled goods and would issue therefrom, material to the public. The lacuna in the Order, therefore, is understandable. Although, consequently, there seems 'to have been no statutory provision, for the issue of such permits for removal of the material from the dump, permits were issued as a convenient procedure, in the same way as for controlled goods to be acquired from stockholders, etc. I do not think the fact that the permit was allowed to remain with Ata Muhammad or his agent should lead to the inference that the document was not taken back with a dishonest motive. Indeed, it seems to me that if the permit had not been with Ata Muhammad, a proper, check of the material in the truck could not have been made by the intercepting officers and to that extent, therefore, Ata Muhammad invited trouble for himself by carrying the permit on his person. Moreover, in my humble judgment, no adverse inference can be drawn against Ata Muhammad from the fact that some extra material was found on a check, at the premises of the Standard Engineering Company at Jaranwala, as I find that this accused was never asked to explain the existence of such unaccounted for material. While, therefore, I am prepared to hold that Alvi had a soft corner for his brother and showed partiality to him in the dis charge of his duties as a public servant, I am not convinced that he would have gone to the length of allowing his brother to take away the excess material from the dump under his charge without paying for it. The circumstances on which the prosecution relied for proving that Alvi was privy to the dishonest removal of the excess material may now be examined. The fact that the material was issued on a Sunday is not, to my mind, a very significant fact in the present case, as it appears that even on previous Sundays and on gazetted holidays some office hands were required to attend the office of the S. L. O. whenever there was work to be done. This fact has been substantiated from official files. In view of the past practice, this circumstance would be of a neutral character. The second circumstance urged against Alvi is that he was present at the dump while the truck was being loaded. On this point, the evidence is not quite uniform. Mehraj ud‑Din Head Clerk (P. W. 12), stated that Alvi came in the forenoon for a few minutes and then went away. As Mehraj‑ud‑Din himself left office at about 12‑30 p. m. he could not be expected to say anything as to whether Alvi returned to the dump in the after noon or not. Muhammad Salam, Chokidar of the dump (P. W. 8) deposed that Alvi remained for about an hour at the dump and then 1eft at 12 noon to join some marriage patty. If he is to be believed, Alvi returned at 1‑30 p. m. and remained there till about 4 p.m. He, however, states that the truck left the dump at 5 or 5‑30 p.m, Rashid, driver (P. W. 5) was himself absent from the dump between 12 or 1 p.m. and 2 or 2‑15 p.m. when he went away to take his mid‑day meal. According to him, the loading started at about 9 a. m. and went on till 4‑30 p. m. He was, therefore, not in a position to say whether Alvi had been at the dump during the whole time of the loading or not. According to other witnesses, Alvi arrived at the dump at about 11 a.m. Rashid's impression was that only iron sheets, iron bars and iron flats were loaded in the truck and nothing else. This by itself would show, that be was not present throughout the loading, as he has missed out several other categories of articles found in the truck. It appears, therefore, that Alvi also did not stay the whole time at the dump while the truck was in the process of being loaded. Ha does appear to have phoned up the Police Post on the Ravi Road and to have requested the police official there to let the truck pass through without much objection, as it belonged to his brother. An argument was advanced on behalf of the prosecution that this recommendation by Alvi was necessary in order that Ata Muhammad might be enabled to take away the excess material without let or hindrance. In this connection, it is pertinent to note, that according to Nazeer Hussain (P. W. 6), Alvi told him on the telephone that the weight of the load would not be in excess and that the truck would be properly loaded. The telephone call would appear to have been necessitated, because Rashid driver took exception to the manner in which the truck had been loaded. He said that some of the material was jutting out or projecting from the body of the truck. To re‑assure him, Alvi had phoned up the police post. Incidentally, Nazeer Hussain's claim that he had frequently talked to Alvi on the phone and knew his voice, does not appear to be correct. He gave his phone No. as 4149 which was not Alvi's number at all, but that of the Director of Industries, as a reference to the Telephone Directory would show. It is open to doubt whether Alvi would have mentioned anything about the excess to this witness (if by " excess " is meant " excess over the permit " as distinguished from overloading of a vehicle) ' when the only objection raised by Rashid driver was about the irregularity of the loading, Nazeer Hussain was replaced on duty by Muhammad Zaman, A. S. L, before the truck came, to the police post and he passed on the message of Alvi to Muhammad Zaman (P. W. 7). The latter improved upon Nazeer Hussain's statement by saying, that the message delivered to him was that Rashid driver was to be allowed to pass even if there was an excess in the load. In my opinion, there was no occasion for the excess or want of excess over the permit to be mentioned at all, as, even if there had been an excess, the mention of this aspect to a police official would have at once aroused his suspicion. The circums tance of Alvi having sent the phone message to secure smooth passage of the truck through the police post is explicable on the hypothesis that he did not want his brother's truck to be unnecessarily detained on the basis of a technical objection with regard to loading. Alvi, it is true, has denied sending the phone message or being present at any time while the truck was being loaded at the dump. In my opinion he has foolishly denied these facts under the impression that any such admission might go against him. In my humble judgment, no adverse inference should be drawn against Alvi from the fact that he was present during part of the time of the loading. It is not alleged, much less proved, that it was Alvi's personal duty to check the material being issued with the details mentioned in the permit. I do not imagine that he was during the time of his presence at the dump, verifying, either by means of any instrument or even by visual determination, whether proper categories of articles were being loaded into the truck or not. When we inspected the unloaded materials in the presence of the parties and their counsel, I noticed that even some of the expert witnesses, who were present to assist the prosecution, made certain mistakes about guages of sheets or thickness of bars present among the material. The visual examination, therefore, unless it was extremely carefully done, even on the part of an expect like Alvi, could not fix him with the knowledge that any extra weight was being allowed to be taken away. There is no definite evidence that any category of articles not covered by the permit were loaded in his presence. The evidence being wholly cir cumstantial, I am reluctant to believe that the circumstances narrated above are inconsistent with his innocence. It is even doubtful whether he had retained any recollection of the various categories of material which had been sanctioned in this case. The conduct of Alvi subsequent to the removal of the truck from the dump, can be explained on a hypothesis, which would be quite consistent with his innocence, There is no doubt, that he displayed anxiety when he found that Muhammad Shafi P. W. had intercepted the truck and wanted to check the material. It seems to me, that there had been a good deal of laxity prevailing in this office as regards the issue of material and measurements of the various categoties for the determination of the issuable weight. Alvi may have realised' that his brother might get into trouble and, therefore, in all probability tried to help him out of the possible impasse. It is quite likely that Ata Muhammad, who knew that there was an excess in the truck, conveyed the news of the interception to Alvi and told him the truth. After that the anxisty of Alvi becomes wholly understand able. This would explain why he considered it a matter of prestige to have the truck brought to his own office, as he thought that it might create a scandal if it was broadcast that his own brother had been caught removing excess material from the dump under his personal charge. It does not‑ necessarily follow that this conduct betrayed a guilty mind on the part of Alvi. It may be that if the ten sheets were removed from the truck, as the prosecu tion alleged, after the interception, this was done under Alvi's expressed direction, when his brother had brought to his notice that some excess material was being carried. His brother may not have even revealed the whole truth to him. He may have given out only that the ten sheets were extra. My appraisal of the prosecution evidence, therefore, leads me to the conclusion that Alvi may have been guilty of nepotism as the result of improper exercise of his official discretion for the benefit of his brother, Ata Muhammad, but 'I would draw a line between such favourtism and the commission of an offence such as would be involved in the illegal removal of excess material from the dump. The other circumstances brought out in the evidence might conceivably raise a suspicion against Alvi, but suspicion however grave, cannot be accepted as tantamount to I now take up the question of forgeries. I am not satisfied that the document Ex. 17, which evidenced the receipt of Rs. 1,470 from Sayed Jamaat Ali Shah of the Standard Engineer ing Company, Jaranwala, and bears the date, 17th of April, was necessarily fabricated on the 19th and antedated. As has been pointed out by my Lord, in the road permit, Ex. 3, itself, there was a recital that the price of the material had been paid. There is nothing inherently impossible or even improbable in the money having been received on the 17th April, which happened to be a Saturday, after the closing time of the Treasury and its deposit in the Treasury on the 19th, which was the next work ing day. This was the explanation furnished on behalf of the defence and I consider it to be a plausible one. The mere fact that Jameat Ali Shah was not present in the office of the S. L. O. on the 18th does not establish his absence from that office on the 17th. I find that J. A. Shah was not questioned at the end of the prosecution case as to why he had been unable to attend office to receive delivery of the material on the 18th. Moreover, it would be, in my opinion, risky to base an argument on the fact that only three entries exist in the Cash Register Ex. 18; which is alleged by the defence to have been started only a few days earlier. This circumstantial evidence is not of such an unequivocal nature as must necessarily lead to an inference of guilt. The oral evidence relied upon by the prosecution in holding these two documents to be forged consists of the testimony of accomplices only. I would, therefore, hold that the documents, Ex. 17 and Ex. 18, are not proved to be forged documents, beyond the pale of reasonable doubt. I respectfully agree with‑ the conclusion reached by my Lord that Ex. 30, which is receipt by Jamaat Ali Shah, dated the 17th April, acknowledging receipt of certain goods on behalf of Muhammad Shafi of the Modern Foundry, Multan, is forgery. This seems to have been procured later, but apparently, only Jamaat Ali Shah can be held liable for this document. I agree further that ‑Ex. 19. the estimate of the material alleged to have been prepared by Inspector Jalal‑ud‑Din must have been forged after the truck had been captured, as otherwise the discrepancies between this document and the permit cannot be explained on any reasonable assumption. Jalal‑ud‑Din, however, is not an accused in the present case and I agree that it would be unnecessary to labour this point further. I also agree that there is no corroborative evidence available in the case of any other document to enable us, to give a positive finding of forgery in respect of it. I concur in the finding that, if at all, the dishonest removal of excess material from the dump constitutes the offence of criminal breach of trust rather than theft. I also agree with the sentences proposed to be imposed on the other accused, besides Alvi, for this dishonest removal of the material but not for the alleged forgeries. MUHAMMAD JAN, J.‑After hearing arguments in this case, my learned brother S. A. Rahman and I referred it to a larger Bench because we had some doubts about the legality of the trial. The accused had been tried for theft and criminal breach of trust alleged to have been committed on the 18th April 1948 and forging certain documents subsequently, in order to cover those crimes. It was urged on behalf of the accused, that these offences did not form the same transaction and, on behalf of the prosecution, that they were committed in pursuance of a conspiracy, formed parts of the same transaction and could be tried together. For reasons given in his judgment my Lord the Chief justice, who has now heard the case with us, has arrived at the conclusion that the offences for which the accused were tried, were committed in the course of the same transaction and the trial was legal. With this finding my learned brother S. A. Rahman has agreed and I too respectfully concur. With regard to the forgeries, the evidence was of witnesses who were accomplices. The question, whether their evidence was sufficiently corroborated to warrant conviction was also referred by us to the larger Bench, with the request that the new Bench should hear and decide all questions of law and facts arising in the case. The Honourable Chief Justice has found that three docu ments, i.e., Exhibit 17, a receipt dated 17th April 1948 for Rs. 1,470 alleged to have been paid by Jamaat Ali Shah and Exhibit 18, the Cash Register, were forged at the instance of Alvi and Exhibit 30, a receipt by Jamaat Ali Shah, dated 17th April 1948, for certain goods belonging to Muhammad Shafi of Modern Foundry, Multan, has also been held by his Lordship to have been forged but no independent evidence has been found to show that it was forged at the instance of Alvi. My brother Rahman has come to the conclusion that Exhibit 30, above mentioned, and another document marked Exhibit 19, an estimate prepared by Jalal Din, were forged but not Exhibits 17 and

18. I agree with the learned Chief justice that Exhibits 17 and 18 were also forged, and forged at the instance of Alvi, because no one else had the motive for the fabrication of these documents and there is evidence that Alvi procured their fabrication. My brother Rahman and the learned Chief justice are agreed that Ata Muhammad, the principal beneficiary in this case, Rustam Ali, Clerk in the Steel Licensing Office, who prepared the permit Exhibit 2 and supervised the loading of the truck and Tufail Muhammad, servant of Ata Muhammad, who took the goods from the dump and was in the truck when it was intercepted, are guilty. No action has been considered necessary to be taken against Jamaat Ali Shah and Akhtar Ali who were acquitted I concur in these findings also. A difference has arisen between my Lord the Chief Justice and my brother Rahuian regarding the guilt of Alvi. The learned Chief Justice has held, for reasons fully stated in his judgment, that the complicity of Alvi in the crimes alleged, has been proved beyond reasonable doubt. My brother Rahman, J. has held that: (a) there was excess of iron and steel in the truck to the extent of twenty‑five to thirty‑seven maunds. (b) this excess cannot be explained on the hypothesis of honest error oh the part of the Issuing Authority. (c) Alvi had been favouring his brother Ata Muhammad by frequent issue of permits for controlled iron and steel goods from the Government dumps in his charge. (d) in order to hide this fact, the device of applying for more material in the name of Jamaat Ali Shah, in the present instance, was resorted to. (e) Alvi was squeamish about the record showing too frequent issues of permits to hi, brother and, therefore, the name originally written on the permit exhibit 2 and its counterfoil Exhibit 29 was erased, at his instance, and substituted by J. A. Shah & Co. (f) Alvi had a soft corner for his brother and showed partiality to him in the discharge of his duties as a public. My own opinion from the very initial stages of the hearing of this case has been that Alvi has undoubtedly been an accessory to the dishonest removal of property belonging to the Government. The question which has been engaging my attention has been, whether he was what may be called in terms of English Law an accessory before or an accessory after the fact. I have carefully considered 'the above‑mentioned findings of my learned brother Rahman and they clearly show that he was an accessory before the fact. These findings accord with the findings of the learned Chief justice and after hearing the case at length and taking everything into consideration, I am of the opinion that Alvi was a party to the crime and did not discharge his duties as an honest public servant. He did not merely try to hush up a scandal in which his brother was involved, nor did he come to know about the dishonest removal of goods only after the truck was intercepted and the material contained in it was checked Alvi's conduct both before and after the interception of the truck shows that he was the chief actor in the crime and betrayed the trust reposed in him. He also fabricated the documents Mention ed above in order to hide his crime. There is evidence that Alvi was present for several hours when the truck was loaded with iron and steel of several cate gories, not covered by and far in excess of the permit issued by him. There is evidence that he telephoned to the Ravi Checking Post to allow the truck to pass. It is not possible to believe that all the unauthorized material was loaded on the truck without his knowing anything about it. Nor is it possible that he tried to influence the officials at the Ravi Checking Post to let the truck pass unless he knew that there was something objectionable in the truck. My brother Rahman has held that the presence of Alvi at the time of the loading and his telephoning to the Ravi Checking Post have been proved. He has, however, observed that Alvi has foolishly denied these facts and no adverse inference should be drawn against him. Alvi has even denied meeting or having any talk with Muhammad Shafi P. W. near Nishat Cinema, or at his house. He has denied even seeing the truck in question on the 18th April. . These facts have been proved beyond dispute and their denial, to my mind is not merely foolish but dishonest. The findings of my Lord the Chief justice and my learned brother Rahman, .based on reasons stated in their judgments which I accept, have dispelled the doubts that I had at one time as to whether Alvi was an accessory before or only after the fact. I have no hesitation now in holding that he was an accessory both before and after the fact. In other words, I hold that he has been proved to be guilty of conspiracy, criminal breach of trust and fabrication of documents. I, therefore, agree to the convictions and sentences proposed by the learned Chief Justice. ORDER OF FULL BENCH . JUDGMENT. By reason of Para. 26 of the letters Patent the convictions and sentences in the case will be as ordered by the Chief Justice and agreed to by Mr. Justice Jan. A. H. Order Accordingly.