P L D 1969 Lahore 217 (PLP)

7. Khan Muhammad (P W. 7) an employee of Abbasia Co‑operative Bank gave evidence to the effect that R. R. 481130 dated 9‑4‑65 had been received by his Bank on 15‑4‑1965 from Glaxo Laboratories, Karachi in favour of Shah Drugs Store Haroonabad. Since the amount of this R. R. was not paid by proprietors of Shah Drugs Store, it was sent back to the consignor. H. C. Muhammad Akhlas forwarded this memo sent to him icy Sharafat Hussain, Station Master, for registration of a case to the S. H. O. Railway Police, Bahawalnagar. He carried on the investigation of the case and according to him both the cases P. 14 and P. 15 were broken. He took the two invoices Exhs. P. E. anti P. F. into his possession from Sharafat Hussain P. W. and prepared memo. Exh. P. G. He also recovered attache‑case P. 16 containing 52 Articles of medicines from the quarter of the appellant. He did not remember whether he had weighed all the six cases relating to invoice Exh. P. E. nor had he made enquiries from the accused about five other cases. He was not able to tell the particulars of the stolen property without reference to the record.

8. Siraj Din P. W. 13 appeared to state that he had drawn up a formal F. I. R. Muhammad Ashraf (P. W. 14) is the broker of Khalid Trading Corporation, who booked the goods sent by the above firm to Shah Drugs Store, Haroonabad. P. W. 15, Khalid Mahmood, Proprietor of Khalid Trading Corporation testified to the fact that he had received order Exh. P. K. from Shah Drugs Store, Haroonabad and had supplied medicines to them vide Exh. P. H. which were booked through Muhammad Ashraf P. W. He also stated that R. R. had been sent to the Bank of Bahawalpur, Haroonabad and the price had been received by him through that Bank. He admitted that the wooden case despatched by him was not shown to him by the police.

9. The appellant was examined under section 342 of the Criminal Procedure Code and he admitted that Ghulam Farid had come to him for exchanging a currency note. He, however, denied the rest of the story regarding the recovery of bag Exh. P. 1 containing phials P. 2 to P.

13. He also denied that he had confessed his guilt before Sharafat Hussain P. W. while he was being led by Ghulam Farid and Azim Gul P. Ws. to the office of the Station Master. It was put to him that he had committed criminal breach of trust in respect of phials P. 12 to P. 13, which allegation he denied. He also denied the allegation that some medicines were recovered from his place, which he had kept in his possession dishonestly knowing them to be stolen property. He disowned the ownership of P. 2 to P. 13 as also of the medicines which were recovered from the attache‑case P.

16. He attributed the case to the enmity of Sharafat Hussain and stated that the other witnesses were deposing against him because they were under Sharafat Hussain.

10. The appellant produced five witnesses in his defence. D. W. 1 Farzand Ali was Assistant Station Master at Haroonabad Railway Station. He stated that the relations of the appellant with Sharafat Hussain were strained and they were not even on speaking terms. The reason for the strained relations was that the appellant did not give adequate share to Sharafat Hussain from his illegal earnings. He admitted that the appellant used to pay him adequately from these illegal earnings but Sharafat Hussain was not satisfied with the share that he got. According to him the bag containing the phials of medicines was given by Ghulam Farid to the Station Master in his office and the Station Master Ghulam Farid and a Head Constable went to the Goods Office and asked the appellant whether he had stolen these articles and the appellant denied the charge. Muhammad Nazir (D. W. 2) and Mirza Muhammad Yousaf (D. W. 3) were actually the recovery witnesses of attache‑case P. 16 and its 52 contents from the quarter of the appellant. Muhammad Nazir stated that the Station Master led the police party to the room of the appellant where the medicine were lying. Sharafat Hussain pointed out to a trunk in the room, while the accused was following the police party. He also stated that a Panchayat was convened after 15 days of the recovery and Jalal Masih D. W. who was a sweeper employed by the railway at the relevant time, told the Panchayat that he had placed certain phials of medicines in the quarter of the appellant at the instance of Sharafat Hussain, Ghulam Farid and Azim Gul P. Ws. It was further stated by him that Azim Gul was asked to swear on the Holy Quran as to the guilt of the appellant, but he refused to do so. D. W. 3, Mirza Muhammad Yousaf was a vending contractor of the railway at the relevant time. He stated that phials of medicines were lying on the floor of the room of the appellant. He also deposed to the convening of the Panchayat, which according to him had found that the appellant was not guilty and that he had been involved in the case, because of a conspiracy between Sharafat Hussain and the watchmen. Jalal Masih appeared as D. W. 4 and stated that Ghulam Farid P. W. had handed over a bag containing phials of medicines and told him that the appellant had asked that witness to hand over these articles to Mal Masih for being placed in his quarter. He further stated that 15 or 16 days after this incident, he appeared before the Panchayat and told the whole story. He also produced an affidavit Exh. D. B. wherein he exonerated the appellant completely and had stated that an earlier affidavit implicating the appellant had been obtaining by Sharafat Hussain under coercion. D. W. 5 Jalal son of Maula Bakhsh appeared to state that he saw Ghulam Farid P. W. 2 holding a militia bag in his hand and on his enquiry, the latter told him that he was holding it in order to entrap somebody. He further went on to state that Ghulam Farid and two others conversed with each other and then Ghulam Farid went to the Station Master who came along with Ghulam Farid holding the bag in his hand. Nothing according to this witness was recovered from the possession of the accused.

11. The learned counsel for the appellant raised the following three points:‑ (i) That the Appropriate Government in this case was the Central Government and only a Special Judge appointed by the Central Government could try the appellant. (ii) That the appellant was not examined under section 242 of the Criminal Procedure Code and the whole proceedings stand vitiated because more than one offence had been lumped together, and the appellant had no opportunity to know as to what case he had to meet. (iii) That the prosecution bad not discharged their onus and had not proved that the appellant was guilty of an offence under section 409 of the Pakistan Penal Code.

12. In support of the first contention, the learned counsel referred to clause (a) of section 2 of the Pakistan Criminal Law Amendment Act of 1958. as it stood before the amendment ,affected by Order I of 1964 promulgated by the President. He said that the Central Government was the Appropriate Government in respect of railway employees in spite of transfer of the Railway to the Provincial Government by President's Order No. 33 of 1962 and the omission of the words `railway employee' by the amendment effected by Order I of 1964. He asserted that unless it was specifically enacted that the Appropriate Government was the Provincial Government, the Central Government would be the Appropriate Government in respect of railway employees. He, in this connection referred to State of Pakistan v. Dr. Abdul Aziz Qureshi (P L D 1963 Lah. 374). It was held In that case that notwithstanding Order XXXIII of 1962 promulgated by the President under Article 223 of the Consti tution transferring the Railways to the two provinces, the Appropriate Government under the Pakistan Criminal Law Amendment Act, 1958, in relation to the Railway employees, remains the Central Government and so long as the law is not altered or amended either by adaptation or fresh legislation the position will remain the same. It was further held that necessary changes cannot be read as a matter of course in the existing laws by reason of clause (a) of Article

225. The judgment relied upon by the learned counsel was delivered on 2‑4‑63 and certainly by then no adaptation had been made in the Pakistan Criminal Law Amendment Act, 1958 with a view to bring it in accord with the scheme of the Constitution of 1962. The position, however, changed by promulgation of President's ‑Order 1 of 1964 published in the Gazette of Pakistan (Extra ordinary) dated 28‑5‑1964. The words 'Federation or a Railway employee' were substituted by the words 'Central Government'. Clause (a) of section 2 of the Pakistan Criminal Law Amendment Act, 1958 as amended would read as under: "Appropriate Government" means in relation to a person serving in connection with the affairs of the Centre and any other person employed by the Central Government or by an organisation or Body Corporate notified by the Central Government in pursuance of next succeeding clause, the Central Government and in other cases the Provincial Govern ment concerned." Order I of 1964 was promulgated with clear intention of adopting various laws to the changed conditions created by the new Constitutional set up. The elimination of the words 'railway employee' from clause (a) of section 2 quoted above indicate that the intention of this adaptation was to bring the working of the Railways in accord with new constitutional changes and to give complete control of Railway employees to the Provinces. In my view, the appropriate Government at the relevant time was the Provincial Government and the objection of the learned counsel fails.

13. The second objection relates to the procedure adopted at the trial. It was asserted that lumping together of offences under sections 379, 409 and 454 of tile Pakistan Penal Code in the challan and the omission to examine the appellant under section 242 of the Code and putting to him the specific offence far which he was being tried had vitiated the trial. The learned counsel has referred to the examination of the appellant conducted under section 342 of the Code in order to show that the Court itself was in confusion as to f,7r what offences the appellant was being tried. It is pointed out that in so far as articles P. 2 to P. 13 were concerned, the question put was whether the appellant had committed criminal breach of trust in respect of these articles, but so far as 52 articles recovered from the attach ‑case P. 16 were concerned, the question suggested that the appellant had kept these articles dishonestly knowing that they were: stolen property. It is regrettable that the learned Special Judge who started the trial failed to comply with an important requirement of law and did not examine the appellant under section 242 of the Criminal Procedure Code. The contention of the learned counsel that the Court itself was not clear in its mind, as to for what precise charge or charges the appellant was being tried also appears to have force. The question however for determination is, whether in fact a failure of justice has been occasioned on account of the omission of the trial Judge to examine the appellant under section 242 and putting questions to him under section 342 of the Code which indicate that he was also considered to be answerable to a charge under section 411, P. P. C.

14. The learned counsel referred me to pave 1105, Volume 11 of the Commentary of the Criminal Procedure Code by Mr. Shaukat Mahmood. The learned Author dealing with the effect of non‑compliance with section 242 of the Code has stated on the basis of certain Indian judgments that such non -compliance amounts to an illegality and is not curable under section 537 of the Code. Judicial opinion in India on the effect of the omission to examine an accused under sections 242 and 342 of the Code is not so uniform as would appear from the Commentary of Mr. Shaukat Mahmood. It was held by the Supreme Court of India in the cage Moseb Kaka Chowdhry and another v. Sate of West Bengal (P L D 1956 S C (Ind.) 303) that the omission to comply with the provisions of section 342 of the Code is not fatal to the proceedings unless it is shown that failure of justice had been occasioned. Similar view wag held in the case of Bidyadhar Turga Samantra v. Dahari Raga and another (A I R 1959 Orissa 121), Ahmad and others v. Sate (A I R 1955 Hyd. 174) and State of Rajisthan v. Bhanwarlal and another (A I R 1957 Raj. 296). It was held in Abdul Kadir v. Ghafoor Sheikh and others (A I R 1956 Assam 127) that failure to comply with the provisions of section 242 is curable in the absence of prejudice. A pre‑partition judgment from the Judicial Commissioner's Court. Peshawar i.e. Dost Muhammad and another v. Municipal Committee, Haripur Hazara (A I R 1941 Pesh. 9) may also be quoted in support of the proposition that failure to comply with section 242 of the Code is not in itself fatal to the proceedings of the trial.

15. It is not possible for me to agree to the contention of the learned counsel that the omission to examine the appellant before the recording of the prosecution evidence and lumping together of various sections in the report under section 173 of the Code leas resulted in an illegality which goes to the root of the case. Section 537 of the Code has been amended by West Pakistan Act, XVII of 1964. The effect of this amendment is that an error, omission or irregularity in the charge or mode of trial including any mis-joinder of charge will be curable unless such error or omission or mis-joinder has, in fact, occasioned a failure of justice. Even before this amendment the weight of authority in this country was for the proposition that an omission to comply with the provisions of section 342 of the; Code or a conviction based on a defective charge will not, render the proceedings illegal unless failure of justice has been caused. Reference in this connection may be made to Abdul Wahab v. The Crown (P L D 1955 F C 88). In the case of Abdul Wahab referred to above, the examination of the accused under section 342 consisted of only one question as to what was his defence to the prosecution evidence and the reply was that he was innocent. It was held that since the accused was literate and could very well follow the proceedings and was aware of the prosecution case, the irregularity was curable under section 537 as no miscarriage or failure of justice had been proved. The same is the view with regard to a defective charge. In Taheruddin Chaudhry and 3 others v. The State (P L D 1958 S C (Pak.) 76) the charge was defective but the facts of the case made oat a case against the appellant under the penal provisions of Prevention of Smuggling Act (LVIII of 1952). It was held that the accused knew what was the gist of the offence against him and there was no reason, to interfere with the convictions and sentences of the appellants as no prejudice had been established.

16. The appellant cross‑examined all the prosecution witnesses. He also gave evidence in his defence in order to meet the prosecution case. He is an educated person and was represented by a counsel. He was examined in detail under section 342 of the Code and all the incriminating circumstances appearing against him in the evidence of the prosecution were put to him. He, therefore, fully understood what the case was against him. Under the provisions of the Code, it is to be proved as a fact that prejudice has been caused. The whole evidence in possession of the prosecution was examined and it has not been shown that the appellant was misled in his defence.

17. The appellant does not appear to have raised any objection to the omission on the part of the Court to examine him before recording the prosecution evidence. It appears from the order‑sheet dated 18‑12‑1967 that the trial Court itself took notice of this omission on the part of its predecessor and heard arguments on 20‑12‑67 ors this aspect of the case.

18. In Shamim v. The State and another (P L D 1966 S C 178) it was complained before the Supreme Court that failure on the part of the Magistrate to examine the complainant before the issuing of process was fatal to the subsequent proceeding. It was held as under:‑ "There is no provision in the Code to the effect that a failure to follow the provisions of section 200 in respect of examina tion of the complainant entails invalidation of the proceedings taken. The history of this section apparently bears out the contention that the defect amounts to a mere irregularity and apart from the question of prejudice would be insufficient to vitiate the proceedings. The explanation to section 537 says that in determining whether any error, omission or irregularity in any proceeding under the Code had occasioned a failure of justice, the Court shall have regard to the fact whether the objection could or should have been raised at an earlier stage in the proceedings. In the instant case, the objection to the legality of the process was not taken till after the complainant and some other witnesses had been examined in the case, in the presence of the accused and a charge had been framed against him. Even then the objection was not raised in the trial Court. It was merely mentioned in a transfer application preferred to the District Magistrate and raised later in the High Court. That transfer application succeeded and the case went for disposal to another Magistrate. The appellant had the opportunity to cress‑examine the complainant and his witnesses, and it did not, therefore, appear that he had been, in any way, prejudiced in his defence." The trial Court has held that no prejudice has been caused to the appellant and I agree with it on this point. The contention of the learned counsel on this account also fails.

19. The third contention relates to the merits of the case. The appellant has been convicted under section 409 of the Pakistan Penal Code. In order to bring home a charge under this section, it has to be shown by the prosecution that the property had been entrusted to the accused and that he dishonestly misappropriated the same. The evidence led it this case shown that seven packages were despatched from Karachi for Shah Drugs Store, Haroonabad. It has also been proved that the two packages P. 14 and P. 15 which were taken into possession by the police contained medicines similar to those that were recovered from the appellant. In order, however, to prove that the articles recovered from the appellant were actually a part of the contents of the two boxes, it was necessary that it should have been proved by positive evidence as to what were exactly the contests of these two boxes, when they were despatched from Karachi and hose many and what articles were found less at the time when the police took these boxes into possession. The voucher and R. Rs. have been placed on the record, but there is no positive evidence showing that the articles recovered from the appellant were actually despatched from Karachi and were a part of the goods consigned in favour of Shah Drugs Store, Haroonabad.

20. The trial Court took notice of this lacuna, but has proceeded to convict the appellant on tae ground that since the contents of the packages P. 14 and P. 15 contained medicines similar to phials P. 2 to P. 13, the inference was that the appellant had taken away these articles from these two packages. It is true that the prosecution has proved that the appellant was Incharge of the Goods Shed and had the key with him. This would have been a very strong circumstance against him, if it had been proved that the goods recovered from the accused were a part of the consignments P. 14 and P.

15. With regard to the recovery of 52 articles of medicines from attache‑case P. 16. the trial Court has held that they were either taken from boxes P. 14 and P. 15 or from some other consignments. It was held that these articles had also been dishonestly misappro priated. I am afraid that in coming to this finding, the learned Special Judge departed from the cardinal principle that the burden of proving the prosecution case is always on the prosecution and this rule of onus never changes. The appellant could not be convicted on a mere conjecture that the goods recovered from him must be a part of the two packages which were taken into possession by the police. Inferential belief in a criminal case should be based on positive evidence and unless the prosecution can prove that the articles P. 2 to P. 13 and G those recovered from the attache‑case P. 16 were taken away by the accused from particular packages, which were put in his charge, it is difficult to sustain his conviction and sentence. The articles recovered from the appellant have not at all been proved to be a part of the consignments despatched from Karachi` for Shah Drugs Store, Harunabad.

21. I may also say that the evidence, of recovery witnesses about the recovery of medicines from the house of the accused is not consistent. Whereas Sharafat Hussain P. W. 1 states that the articles had been recovered from the room which was on the eastern side, Muhammad Sharif (P. W. 4) stated that it was the room on the southern side from which the articles were recovered. Sharafat Hussain stated that he and other members of the police party had gone into the room and that the Head Constable had opened the attache‑case P. 16 and another steel box was also lying in the room. Muhammad Sharif states that they were standing in the courtyard when the accused brought out the attache‑case P. 16 from the room. Muhammad Sharif is not the witness of the locality and resides at a distance of about a square from the railway station. According to him, he was proceeding to make some purchases when he was joined in the investigation. To other witnesses of recovery, namely, Muhammad Nazir and Mirza Muhammad Yusuf have appeared in defence. The story of the accused was that these articles had been foisted on him through Jalal Masih. The trial Court has given good reasons that Jalal Masih is not a reliable witness; but all the same in view of the contradictions in the statements of the two recovery witnesses, it cannot be held that the recovery was made in the manner in which it is deposed to by the prosecution witnesses.

22. The trial Court has also relied on a confession alleged to have been made by the appellant before the prosecution witnesses. According to Sharafat Hussain P. W. the appellant had confessed before him and other P. Ws. while he met him at the end of the platform on their way to the Goods Office. According to Azim Gul P. W. 2, the confession was made in the office of the Station Master. According to Ghulam Farid P. W. 5, the accused had even confessed earlier before him in the presence of Azim Gul and Muhammad Siddiq P. Ws. He is not supported by Muhammad Siddiq in this respect, who stated that he had no talk with the accused and Azim Gul, and that he had not made any enquiry from any one of them. Azim Gul P. W. 2 also does not refer to this earlier confession and stated that the accused had confessed after he had been taken to the room of the Station Master. The evidence regarding extra judicial confession is discrepant and is not worthy of reliance. The witnesses have not said that in what words the appellant made a confession and what were the reasons for which he confessed. I, therefore, do not think that this confession can form the basis of the conviction of the appellant.

23. I may also touch upon another aspect of the case. Admittedly Ghulam Farid had given the report of the incident in writing to Sharafat Hussain Station Master. Azim Gul P. W. states that it was handed over to the police. This document was not produced at the trial. It laid the foundation for the prosecution of the appellant. No satisfactory explanation has been given for the failure of the prosecution to produce it. In the telegram that was sent to the police by the Station Master only the name of Ghulam Farid was mentioned as a witness. No other witness was mentioned. It would therefore be legitimate, to draw a presumption against the prosecution for withholding this document. The possibility that the version given in this report may be at variance with the case unfolded by the prosecution at the trial cannot be excluded.

24. In view of what I have said above, I hold that this is a case where the appellant is entitled to benefit of doubt. I allow this appeal; set aside the conviction and sentence of the appellant, and direct that he be released forthwith, unless he is lawfully required to be detained in some other case. A. E. Appeal allowed.