1969 P Cr (PLP)

AMIRUDDIN AHMAD, J.‑

These are appeals by special leave of this Court from the orders of the High Court of Judicature at Lahore in four appeals, which were preferred by the present appellant against his conviction and sentences under section 409 of the Pakistan Penal Code, by the Special Judge, Rawalpindi. In Case No. 125/2 of 1953, the appellant was sentenced to three years' rigorous imprisonment and a fine of Rs. 3,500 in default to further rigorous imprisonment for one year. In Case No. 120/2 of 1953, he was sentenced to one year's rigorous imprison ment and a fine of Rs. 220 in default to further rigorous imprisonment for six months. In Case No. 127/2 of 1953, he was sentenced to three years' rigorous imprisonment and a fine of Rs. 2,100 in default to further rigorous imprisonment for six months, and in Case No. 124/2 of 1953, he was sentenced to three years' rigorous imprisonment and a fine of Rs. 3,600 in default to further rigorous imprisonment for one year. The sentences in all the cases were ordered to run consecutively, and out of the fine, if realized, Rs. 9,079 were ordered to be paid to the Municipal Committee, Murree. The appellant during the relevant period was the Accountant and Treasurer of the Municipal Committee, Murree, and in this capacity he used to receive the daily income of the Municipality, Which he was required to deposit in the local Sub‑Treasury. All cheques drawn on municipal funds for disbursement were cashed by him and he was to account for the amounts of these cheques, maintain various books of account, cash book, monthly re‑conciliation statement and counterfoils of the treasury chalans etc. He was to work under the supervision of the Secretary, whose duty it was to check the total income received on each day with the record and to see that the income of the Municipal Committee was duly credited and properly disbursed. But the Secretary at no stage actually handled the cash and the treasury chalans, by which the daily income was to be deposited into the local Treasury, were to be prepared and the amount was to be actually deposited by the appellant. On the 2nd November 1950, during the temporary absence of the appellant, the Superintendent of the Tax Branch in the Municipal Committee, found the window‑panes of the doors of the Accounts Branch broken and he noticed some blood‑stains on the floor and found that a part of the municipal records had been set on fire.. The matter was reported to the Police, who made investigations and found that the fire was not accidental, but was by design by someone with the intention to destroy the municipal records relating to its income and expenditure. As a result of this incident, the Examiner Local Funds, Punjab, appointed Mr. Ghulam Muhammad, a Senior Auditor, to make a special audit of the income and expenditure of the municipal funds from September 1947 to the end of October 1950. He compiled his accounts from the original counterfoils of receipt books, municipal chalans and payment vouchers. The report of the Auditor disclosed that during the period under audit a sum of Rs. 80,000 had been misappropriated by the municipal employees and one of its contractors. A number of criminal cases were started against various persons, four of which were against the present appellant, out of which the four appeals now before us arise. In the first case, namely, No. 125/2 of 1953 the appellant was charged with having committed criminal breach of trust as a public servant in respect of a sum of Rs. 3,302‑13‑9 between the 15th July and 28th October 1950. In the second case, namely, Case No. 120/2 of 1953 he was similarly charged in respect of the sum of Rs. 218‑4‑0 between the 2nd and 31st October 1950. In the third Case No. 127/2 of 1953 he was similarly charged with having committed criminal breach of trust in respect of the sum of Rs. 2,002‑8‑0 between the 30th May and 29th June 1949. In the fourth Case No. 124/2 of 1953, he was similarly charged in respect. of a total sum of Rs. 3,561‑4‑0 between the 1st August 1949 and 3rd May 1950. The appellant in his defence, which is embodied in a long written statement, disowned any responsibility for the, non‑deposit of any amount in the municipal funds on the grounds that the res ponsibility lay with the Secretary of the Municipal Committee to handle the cash. He also relied upon a portion of the Auditor's report, where it was stated that at an earlier stage of the period of audit he had found that a sum of Rs. 19,000 had been credited to the account of the Municipal Committee, of which he could not trace any source. The appellant urged that this sum of Rs. 19,000 covered the entire amount, for which he had been charged in the four cases. The High Court rejected this plea as what was described as excess credit at one stage could not be treated as such and it merely meant that the sources of these deposits could not be traced on account of the non‑availability of the relevant record. On the other hand on an accounting of the whole period there was an overall shortage of Rs. 80,000 which far exceeded this amount and the total amounts for which the appellant had been charged. In fact there had been no excess credit at any stage in the account of the Municipal Committee. In view of the points raised before us it is necessary to state certain facts with regard to the earlier stages of the trial. The trial of the four cases started under the ordinary procedure before Mr. Allah Ditta Cheema, a Magistrate with special powers under section 30 of the Code of Criminal Procedure, who recorded the bulk of the prosecution evidence. On transfer he was succeeded by the two other Magistrates, who did not record any further evidence and it was taken up by Mr. Khadim Hussain Butt, another Magistrate with similar powers, who recorded further evidence and framed charges against the appellant under section 409 of the Pakistan Penal Code, and recalled witnesses for cross‑examination. His last order in the case is dated the 30th July 1953. The cases were then finally transferred to the Court of Mr. Sher Bahadur Khan, Additional District Magistrate, Rawalpindi, who continued to be in seisin of the cases till he was himself appointed a Special Judge and became vested with the power to try the cases under section 4, sub sections (3) and (4) of the Pakistan Criminal Law Amendment Act (XIX of 1948), as amended by Act XXXVII of 1953. During all these changes of Magistrates before the Special Judge took up the case, it does not appear that the appellant made any demand for a de novo trial. On taking up this case in his capacity of Special Judge the first order which appears to have been recorded by him is as follows :‑ "Muhammad Shafi accused present. In this case Muhammad Yousif and Ghulam Muhammad P. Ws. are to be called for further cross‑examination. I have to read the evidence in this case in order to take up this case in my capacity of Special Judge. Case to come up tomorrow." And the next order by him in the cases, dated the 25th April 1954, is as follows : "Accused present. Summon Muhammad Younis for 14‑6‑54 at Murree. Ghulam Muhammad has been given up. Remaining witnesses should also be summoned." After this also it does not appear that the appellant made any application for recalling any other witness for further cross‑examin ation, and Muhammad Younis, the witness, who was recalled according to the previous order of the Special Judge, was further cross‑examined before him. As there were no other witnesses recalled, the case was closed and ended in the conviction of the appellant ay stated above. The evidence disclosed that in the first case, namely, Case No. 125/2 of 1953, the sum of Rs. 3,302‑13‑9, in respect of which the appellant was alleged to have committed criminal breach of trust as a public servant, was made up of 27 items of receipt by him, out of which 12 related to cheques, all cashed by the appellant, and the rest cash receipts by him. These were paid to him to meet specific expenditure, which was not done, except in case of 3 items amounting to Rs. 172‑11‑0 for which the Court did not fix responsibility on the appellant, and it found that a total sum of Rs. 3,130‑2‑9 was proved to have been misappropriated in this case. In Case No. 120/2 of 1953 the charge related to sum of Rs. 218‑4‑0 which was a single item of receipt out of the proceeds of a cheque cashed by the appellant, which included a sum, out of which 25 items of payment were to be made. This sum of Rs. 218‑4‑0 was intended for payment to the Income‑tax Department on account of the income‑tax owing from certain employees of the Municipal Committee. This was proved not to have been done by the appellant, whose plea was that he had re‑deposited it in the municipal funds. It was held that having drawn the money for a specific purpose, there was no point in his re‑depositing it in the municipal funds and it was not supported by any evidence. In Case No. 127/2 of 1953 the charge related to a sum of Rs. 2,002‑8‑0 which was composed of two items of receipt by the appellant, namely, the amount of a bank draft for Rs. 1,335‑10‑0 and the amount of cheque for Rs. 666‑14‑0 realized by the appel lant. The sum of Rs. 1,335‑10‑0 realized as house‑tax, which was to be deposited in the local Sub‑Treasury, was not deposited. The amount of Rs. 666‑14‑0 on account of faxes was also not deposited. The appellant's plea, was that he re‑deposited the proceeds of the draft and the cheque in the municipal funds. This was not supported by any chalans or receipt or evidence. The appellant also relied upon excess credit of the sum of Rs. 2,002‑8‑0, but the Court held that it was not an excess credit really, but an amount the source of which in the documents could not be ascer tained. In Case No. 124/2 of 1953 the charge was with regard to a sum of Rs. 3,561‑4‑0 which was made up of 8 items of receipt, which were either received by the appellant on encashing cheques or withdrawn by him from the municipal funds, for specific payments, namely, payments of income‑tax of certain employees, price of certain medicines, for payment to the Postal Department and price of tubes of vaccine. On none of these accounts any payment was made by the appellant, whose plea was that he had re‑deposited these amounts in the municipal funds. The Court held that there was no point in re‑depositing the amounts when they were actually withdrawn by the appellant for the purpose of making certain payments, and as a matter of fact, there was no evidence that they had been so re‑deposited. In support of the appeals it was contended before us that in two cases, namely, Nos. 125/2 and 124/2 of 1953 there having been more than three items of income and expenditure included in the charge, the trial was vitiated by misjoinder of charges. The charge in each of the cases has specified the gross sum and stated two specific dates within the course of one year, between which the offence of criminal breach of trust was alleged to have been committed. This was strictly in compliance with the provisions of sec tion 222(2) of the Code of Criminal Procedure, by which the charge so framed was to be deemed to be a charge of one offence within the meaning of section 234 of the Code. We, therefore, see no force in this argument. It was next contended that his right to have his case decided by the Magistrate, who recorded the evidence and saw the witnesses, has been denied in the case; that at any rate the Special Judge should have recalled the witnesses to give the appellant a fair trial and that there was no legal bar to his doing so. Section 7 of the Pakistan Criminal Law Amendment Act of 1948 provides that a Special Judge was not bound to recall or re‑hear an witness whose evidence has already held. He was, therefore expected to proceed with the trial from the stage which the case had reached. As already stated the appellant did not apply to the Special Judge to recall or re‑hear any witness, except Younis, who was recalled by the Special Judge. There is no substance in this ground either. Lastly it was contended that the trial was vitiated by the Special Judge's non‑compliance with the provisions of sections 242 and 286 of the Criminal Procedure Code, which sections applied to the mode of trial prescribed for the trial of cases by the Special Judges under Chapter XX of the Criminal Procedure Code. This argument overlooks the fact that under section 7 of the Pakistan Criminal Law Amendment Act of 1948, which prescribes the special procedure for trial before the Special Judges, the Special Judge is to continue the trial from the stage which the case has reached at the time of the transfer. Sections 242 and 286 apply to the initial stages of a case, which in the present trials had long passed. This argument also is untenable. The result, therefore, is that these appeals are dismissed. Appeals dismissed.