P L D 1956 (W (PLP)

AKHLAQUE HUSSAIN, j.‑The appellant Muhammad Yaqub, who was employed in the office of the Deputy Director of Agriculture, Multan, has been convicted by the learned Special Judge, Multan, by his order dated the 27th of May 1954, for an offence under section 409, P. P. C., and sentenced to eighteen months' rigorous imprisonment and a fine of Rs.1,750 or in default further rigorous imprisonment for one year more. As the accused was tried in accordance with the provisions of the Prevention of Corruption Act, the procedure applicable to the trial of summons cases was adopted. The prosecution case is stated with clarity and fullness in the following questions put to the accused at the time of his examination under section 242 of the Code of Criminal Procedure :‑ " Q.‑The prosecution case against you is that on 7th February, 1950, as a Storekeeper of the office of the Deputy Director of Agriculture, Multan, you had dominion over Rs.936‑4‑0 on account of sale proceeds of produce, property of the Department, an amount duly entered in, the cash book, and that you criminally misappropriated the amount by not crediting it to the Department. It has been further alleged that you had in your custody as the said Storekeeper a sum of Rs.1,358‑7‑6, duly entered in the cash book, on 7th March, 1950, but that only Rs.358‑7‑6, were deposited by you in the Government treasury and that you thereby committed criminal breach of trust in respect of Rs.1,

000. Yet another allegation is that a sum of Rs.358‑7‑6 was in your possession, as shown by the cash book, on 28th February, 1950, and that you failed to credit it to the treasury and thereby criminally misappropriated the said amount. Will you show cause why you be not convicted under sections 409, 467 and 468, P. P; C.? A.‑No. I shall show cause. . Q.‑Have a look at the treasury challan Exh. P. A., and say if you signed it at 'A' on 28th February, 1950, and if thereby you deposited in the treasury a sum of Rs.358‑7‑6 (in the Government treasury Multan). A. The signatures at 'A' are mine, but I could not say if and when what amount was deposited without seeing the relevant record:'' P. W. 2, Mr. Nisar Ahmad; Agricultural Assistant, Daska, stated that he was the Manager of the Agricultural Farm at Multan in 1950, and that the appellant was the sole clerk in his office working as clerk, cashier, storekeeper, bills clerk and typist In the cash book Exh. P. 3 there is an entry dated the 7th of February 1950 (Exh. P. 3/Z) showing that the amount of Rs. 936‑4‑0 had been credited into the treasury through the office of the Deputy Director of Agriculture on that date. Similarly, there is an entry in Exh. P. 3, dated the 7th of March, 1950, (Exh. P. 3/Y) to the effect that a sum of Rs. 1,358‑7‑6 had been credited into the treasury. Again, on the 28th of February, there is an entry (Exh. P. 3/X) showing that Rs. 358‑7‑6 had been credited into the treasury through the office of the Deputy Director of Agriculture. All these entries are proved by P. W. 2 to be in the handwriting of the appellant. In cross‑examination P. W. 2 stated that it was the duty of the accused to receive and keep the cash. Thus the dominion of the accused over these three amounts is proved beyond a shadow of doubt. Learned counsel for the appellant was unable to point out to me any reason whatever for doubting the statement of P. W.

2. P. W. 2 has further stated that the amounts of Rs.936‑4‑0 and Rs.358‑7‑6 shown in the cash books on the 7th and 28th of February 1950, respectively, were in fact never deposited in the treasury; and that only Rs.358‑7‑6 out of the amount of Rs.1,358‑7‑6 entered in the cash book on the 7th of March 1950 were deposited in the treasury on that date. Rs. 1,000 out of the last‑mentioned amount are, according to P. W. 2, still outstanding. Exh. P. A. is the challan by means of which the appellant deposited Rs. 358‑7‑6 on the 7th of March 1950 under the head, " XXIX‑Agriculture‑Agricultural Receipts ?Income from Agricultural Station, Multan." The appellant admitted his signatures on this document during his examina?tion under section 242 of the Code of Criminal Procedure. P. W. 3 was the head cashier of the Imperial Bank at Multan in July 1950, and has stated that on the 7th of March 1950, Rs.358/7/6 were deposited in the Bank by the appellant who was known to him. P. W. 4, the Head Treasury Clark, states that on the 7th March, 1950, the amount deposited under the Head " XXIX, Agriculture " was Rs.358/7,/6 and that neither the amount of Rs,1,358‑7‑6 was deposited on that day nor that of Rs.1,000 on or about the 7th of March 1950. He further stated that the amount of Rs.936‑4‑0 was not deposited either in February or March 1950, and similarly the amount of Rs.358/'7/6 was not deposited on the 28th of February 1950. It is thus fully and satisfactorily proved that the appellant misappropriated the three amounts as alleged by the prosecution. His learned counsel was unable to maintain that the evidence on the record does not satisfactorily establish the charge under section 409, P. P. C. The sole point urged before me by the learned counsel for the appellant was that the trial of the appellant is vitiated on account of the non‑observance of the requirements of section 342 of the Code of Criminal Procedure. After the close of the prosecution evidence the only question put to the accused by the learned Special judge was: "would you like to say anything after the close of the prosecution? ", to which the accused replied in the negative. I have already quoted above the statement of the accused recorded by the learned Magistrate under section 242 of the Code of Criminal Procedure which shows that the whole case of the prosecution had been put to the accused at that stage and that the latter was fully apprised of all the details of the charge which he had to answer in this case. Mr. Jamil Hussain Rizvi contended with reference to the language of section 342 that in spite of the exhaustive examination under section 242 it was the binding duty of the learned Magistrate to have questioned the accused on the case after the witnesses for the prosecution had been examined in order to enable him to explain the circums?tances, appearing in evidence against him; and that his failure to comply with the mandatory requirements of that section vitiates the trial. There can be no doubt whatever that even in a case, like the present one, where the accused has been examined at length during his preliminary examination under section 242 it is none‑the‑less the duty of the Court to faithfully comply with the provisions of section 342 at the later stage and require him to offer such explanation as he may desire to of the circumstances which had emerged against him from the evidence produced by the prosecution. The question, however, which is the pith of Mr. Rizvi's contention, is whether non‑compliance with the requirements of section 342 in such circumstances is necessarily fatal to the trial and can, under no circumstances, be covered by the provisions contained in section 537 of the Code of Criminal Procedure. That the answer, at any rate in this country, must now be in the negative is clear from a string of recent rulings of the Federal Court vide Abdul Wahab v. The Crown (PLD1955FC88),Ibrahim Bhak v. The Crown (PLD1955FC113), Abdus Salam Molla v. The Crown (PLD1955FC129) and Lalan v. The Crown (PLD1955FC132). In Abdul Wahab v. The Crown.11ae accused was charged with the offence of misappropriation under section 409 of the P. P. C. It was alleged that during the course of one year he had collected a certain sum of money from 86 persons but had not credited it to the Committee. T e only question which was put to the accused during This examination under section 342, Criminal P. C., was: You have heard the examination and cross‑examination of the witnesses. What is your defence? " Their Lordships of the Federal Court refused to interfere with the conviction on the ground that although the question put to the accused "would hardly meet the requirements of the section", "no miscarriage or failure of justice has been proved in this case". The reason for their conclusion was thus stated :‑ " The accused is literate and could very well follow the nature of the proceedings against him and was also aware of the prosecution case." That case on facts was a stronger case than the one before me inasmuch as in that case there had been no examination at all under section 242 of the Code of Criminal Procedure. Mr. Rizvi, however, contends that the present case is equally covered by the ruling in Abdus Salam Molla v. The Crown. In that case the accused was the treasurer of Faridpur Treasury and had been tried under section 409 in respect of the embezzlement of Rs. 7,818‑4‑

1. The questions asked from the accused at the time of his examination under section 342 are as follows :‑ " Q. 1.‑You have heard the evidence against you. Do you want to say anything? A.‑I am innocent. Q. 2.‑Do you want to say anything more? A.‑No." Their Lordships set aside the conviction and remanded the case to the trial Court for retrial from the stage where the statement of the accused was to be taken. Mr. Rizvi pointed out that in the last‑mentioned case too the accused was a literate person and, by reason of his work in the capacity of a treasurer, must have been fully aware of the prosecution case. This is true but this by itself is wholly insufficient to help Mr. Rizvi to get rid of the effect of the ruling in Abdul Wahab's case which, without any doubt, is fully applicable to the facts of his client's case. Learned counsel has to go further and contend that this ruling‑has been over‑ruled by the subsequent ruling in Abdus Salam's case?--a contention which he is unwilling and unable to advance. When asked to distinguish the two rulings, the learned counsel said that their Lordships had refused to interfere with the conviction in the earlier case because, sitting as a successor Court to the Privy Council, they were of opinion that the facts of the case failed to disclose any miscarriage of justice and, therefore, did not call for interference on their part. This contention is wholly without any force. As would appear from the following quotation from their Lordships' judgment, their Lordships clearly and specifically held that, in the circumstances of that case, it was the provisions of section 537 of the Code of Criminal Procedure which barred interference in that case, because there had been no "failure of justice ." " Since no miscarriage of failure of justice has been proved in this case, section 537 of the Criminal P. C., would cover it, and for that reason, no interference is called for by this Court." On a careful examination of the two judgments I am of the opinion that the real distinction between the two cases is to be found in their peculiar facts. In Abdul Wahab's case the receipt of the amounts in question by the accused was " not disputed "; and the only question for decision was whether those amounts had been credited to the Committee. That the amounts has not been so credited was apparent from the records kept by the accused himself. In those circumstances their Lordships came to the conclusion that the accused was fully cognizant of the charge he had to answer and, therefore, there was no question of failure of justice on account of the non‑compliance with the provisions of section

342. In the subsequent case, Abdus Salam, Treasurer of Faridpur Treasury, was tried along with the Head Poddar under section 409 in respect of the embezzlement of Rs.7,818‑4‑1 and convicted. The relevant facts of Abdus Salam's case are set forth in the following passage from the judgment of the High Court at Dacca:‑ " If there were nothing else on the record, we should have inclined to accept this argument and hold that although the Treasurer's gross negligence prevented the detection of the Poddar's embezzlement for some days yet he was not criminally liable for abetment. There is, however, on record a slip of paper containing entries as to the total receipts and payments as at first noted in the Treasurer's cash balance of the 11th of November 1950, and also an entry of the sum of Rs.960 against the name of Safdar Hussain, entries which have been proved to be in the handwriting of the appellant Treasurer. This slip of paper was recovered from the possession of the Treasurer by the police, and in our opinion, its presence in the appellant Treasurer's pocket clearly shows that he was guilty of something more than gross negligence. The Treasurer offers no explanation of this slip. Mr. Gani, when asked to explain why the appellant should ,keep in his pocket a piece of paper showing the total receipts and payments as first noted in the Treasurer's cash balance of the 11th of November 1950, and also mentioning the sum of Rs.960 against the name of Safdar Hussain, could only suggest the explanation either that the Treasurer did not know that the paper was in pocket or that he had kept the paper through inadvertence. In our opinion, the fact that he had kept that paper, clearly shows that he was aware, that he might on some subsequent date be called upon for an explanation and he wished to have it with him as aidememoire. The fact of the presence of this slip of paper, in our opinion, clinches the guilt of the Treasurer and shows that his failure to detect that the sum of Rs.6,868‑7‑0 which had not been paid to Safdar Hussain was not recredited on the 9th, 10th or 11th, was not mere oversight on his part but was something much more." There was thus no direct evidence of embezzlement against Abdus Salam. His conviction was founded only upon a piece of circumstantial evidence, which was furnished by the slip of paper. It was not possible for Abdus Salam in that case to have gathered from the general question "You have heard the evidence adduced against you, do you want to say anything? " Whether the trial judge was or was not attaching .any impor?tance to the slip of paper. It was eminently a case where it was the bounder duty of the Court to have questioned the accused specifically 1lgarding that slip of paper in order to enable him to explain the circumstance to which it attached crucial importance; and the failure to perform that duty may well have resulted in a failure of justice. Therefore, on facts the case of Abdus Salam is clearly distinguishable from the earlier ruling of their Lordships of the Federal Court in Abdul Wahab's case. The question whether non‑compliance with the provisions of section 342 of the Code of Criminal Procedure has occasioned a failure of justice (or was so likely to have occasioned failure of justice that it must be deemed to have occasioned it), is to be determined with reference‑to the peculiar circumstances of each case. It is, however, clear from the recent decisions of their Lordships of the Federal Court that, in the absence of special circumstances like those in Abdus Salam's case, where it is possible to say with certitude that, in view of the simple and straightforward nature of the charge and the position and comprehension of the accus?ed, non‑compliance with the requirements of section 342 could not have misled the accused regarding the. nature and effect of the evidence against him, the omission is not fatal and is one which can be ignored by the appellate Court under section 537 of the Code of Criminal Procedure. Applying the reasoning of their Lordships of the Federal Court in Abdul Wahab's case to the facts of the case before me, there can be no manner of doubt that the omission on the part of the learned trial Court to comply with , the provisions of section 342 of the Code of Criminal Procedure has not occasioned any prejudice to the appellant. Indeed learned counsel admitted that it was impossible for him to distinguish his client's case from that of Abdul Wahab. The simple case, against the appellant was that he had received three sums of money on behalf of his department and he failed to credit the same to it. This had been fully explained to the appellant at the time of his examination under section 242 of the Code of Criminal Procedure. On account of the position occupied by him in the department, the appellant could not possibly have been at all in doubt with regard to the exact nature of the charge for which he was tried. I, therefore, reject this appeal. Before parting with this judgment, I would like to add that it is wholly wrong on the part of any trial Court not to perform its duty under section 342 of the Code of Criminal Procedure with the utmost care and attention even in the simplest case simply because the appellate Court may apply the provisions of section

537. The trial Court cannot be. certain and it ought not to indulge in the speculation‑whether a slipshod and cursory compliance with section 342, Criminal P. C., would or would not in the judgment of the appellate Court call for the application of the provisions of section

537. Even in Abdul Wahab's case where their Lordships condoned the omission they observed :‑ " Where 'the circumstances appearing in evidence against him' are not put (to) the accused and his explanation is not taken thereupon, it cannot be said that the purpose of section 342 has been fulfilled. It is not a mere formality, but is an essential part of the trial that the accused should be given notice of the point or points which he must meet in order to exonerate himself," A trial Court failing to comply faithfully with the requirements of section 342, Criminal P. C., would be guilty o. failure to perform what is perhaps the most solemn act during a criminal trial, regardless of the fact whether that failure is ultimately held to vitiate the trial or not. A.H.???????????????????????????????????????????????????????????????????????????????????????? ??????????? Appeal dismissed.