P L D 1952 Lahore 648 (PLP)

CORNELIUS, J.‑This petition is by one Abdul Latif, who was employed as cashier in the office of the Lahore Omnibus Service. He was found guilty by a First Class Magistrate of Lahore of the offence of criminal breach of trust punishable under section 409 Pakistan P. C. in respect of sum of Rs. 5,000 admittedly received by him, in his capacity of cashier, on the 12th January 1949, and was sentenced to undergo 18 months` rigorous imprisonment and to pay a fine of Rs. 1,

000. Abdul Latif appealed to the Sessions judge, who dismissed his appeal, upholding both the conviction as well as the sentence. He has now applied for revision of his case. It is in evidence that the alleged embezzlement was not discovered until April 1949. Ali Muhammad (P. W. 5), a cashier in the Omnibus Service, who, was under suspension at the time when he gave his evidence, has stated that, in April 1949, when he was cashier, he discovered that this sum i.e., the amount of Rs. 5,000 received from Dera Ghazi Khan under an instrument known as a remittance transfer receipt (R T R), had not been credited in the Omnibus accounts. The General Manager, Mr. Moss (P. W. 2) has given a different version to this discovery. It is that it was brought to his notice by the Chief Accountant of the service that there "appeared to be a discrepancy of Rs. 5,000 plus some odd money in the re gisters of the cashier", whereupon Mr. Moss ordered that a balance should be struck, and then a shortage of Rs. 5,000 was discovered. The prosecution have not troubled to place any documentary proof on the record such as should have been readily available from the " registers of the cashier" that Rs, 5,000 odd was short, or from the contents of the safe or cash box, when compared with the accounts maintained up to the date when the balance was struck, that there was actually a shortage of Rs. 5,

000. However, the General Manager went on to explain that Abdul Latif appeared to have paid out Rs. 15,000 against two R. T. Rs. received from Dera Ghazi Khan office of Rs. 5,000 each, and although the General Manager states that he verified from Dera Ghazi Khan that in fact only Rs. 10,000 had been remitted to the Service, he has not explained that the payments of Rs. 15,000 made by Abdul Latif, as shown by the alleged registers, were made without authority or to unauthorised persons. An overpayment as alleged of Rs. 5,000 would undoubtedly create a shortage of that amount in the cash balance, but the mere fact of an overpayment is not sufficient for holding that Abdul Latif either misappropriated that amount, or converted it to his own use, or that he disposed of it in a manner contrary to his duty as cashier. In the absence or proof regarding such misappropriation or conversion or contravention of duty, the prosecution were not entitled to ask for a conviction under section 409 Pakistan P. C. It has been explained by the learned Advocate‑General appearing on behalf of the Crown that, in this case, the prosecution thought it was sufficient for them to establish that a particular sum of money was received by the accused on behalf of the Lahore Omnibus Service, and that he had failed to account for it, in order to establish the charge. The learned Advocate‑General admitted that the offence defined in section 909 is not established with out proof, by evidence or circumstances of misappropriation or conversion or contravention of duty or legal contract, as specified above, but he pleaded that, by reason of certain decisions of High Courts, the prosecution were misled into acting as they did. Among the judgments cited on this point were Shiam Sunder v. Emperor A I R 1932 Oudh 145 and Emperor v. Chaturbhuj Narain Choudhury A I R 1936 Pat. 350, which indeed go to support the plea advanced by the learned Advocate‑General. Speaking with the greatest respect, it seems to me that neither of these authorities lays down law for the purposes of the present case. There may be circumstances establishing that when an accused person has received money, if he fails to account for it, it can only be that he has mis appropriated or converted it to his own use, and the absence of direct evidence of misappropriation or conversion which in many cases would not be easy to obtain, may in such a case, be made good by the presumption out of the circumstance aforesaid. But, in a case where no evidence of misappropriation or conversion is available and the accused person was under obligation, in relation to the money in question, to deal with it in a particular way, the Court cannot reach any conclusion to the effect that the accused did not fulfil this obligation upon mere presumption, and it would be the duty of the prosecution to establish, by such evidence as may be available, that in fact the accused was guilty of contravening his duty in respect of the particular sum in question. Where the accused is employed in a Government or other office, and his duties in respect of moneys received by him are presum ably. specified in writing, and can be sworn to also by other persons in the office familiar with the practice and procedure, the production of such evidence should offer no difficulty whatsoever. I am unable to draw from either of the judgments cited for the Crown, any principle which would have the effect of avoiding the conclusion which I have reached above. On a review of the evidence led in this case, I have come to the conclusion that the prosecution has not succeeded in establishing anything more than the following facts :‑ (1) In April 1949 there was a shortage of a' little over Rs. 5,000 in the cash balance of the Lahore Omnibus Service. (2) On the 12th January 1949, the accused received a sum of Rs. 5,000 as the proceeds of a particular R. T. R. (3) The accused when charged with having misappro priated this sum, impliedly admitted his liability to pay by 'asking for time in which to make good the deficit, which time was extended on several occasions at his request, but he failed eventually to make up the loss and the case was reported to the police. I have examined the evidence on the last point, both oral and documentary, and am satisfied that the accused is not proved by word or action, to have admitted any element of the offence of criminal breach of trust. As cashier, he was subject to certain departmental and civil liabilities, and all that he appears to have admitted was that he was liable in this way to make good the loss occurring during the period when he was charged with the control of the cash. It seems to' me to be sufficiently obvious that much more is required than a mere acceptance of civil liability to make good an apparent loss of money, for holding that that loss is the result of breach of trust by the person making the admission, in the sense of section 409 Pakistan P. C. The mere fact of there being a shortage of Rs. 5,000 odd in the cash balance is not, and is not represented to be, suffi cient for the prosecution of the accused. It may or may not be significant that the deficit was riot of the exact sum of Rs: 5,

000. In other words, the possibility is raised that there may have been other causes for the deficit besides the alleged embezzlement of Rs. 5,000 on the 12th January 1949, and as I have remarked already, the prosecution have not shown by what means of accounting the conclusion was reached that there was shortage to this extent in the cash balance. In fact, the record does not even show on what date the balances were checked and the accounts finalised, on the basis of which this conclusion was reached. Even as .to the statement of the General Manager regarding the overpayment appearing from Abdul Latif's registers, the original registers have not been produced, and there is nothing beyond the statement of the General Manager, which in the circumstances can hardly be regarded as adequate in a case of this kind, for holing that there‑was such an overcharge. The possibility remains untest ed that the overpayment or overcharge may have been made in compliance with orders or in accordance with a recognised practice; or was otherwise made in good faith. In the absence of the original records and supporting evidence, these ques tions, which are of vital importance to the determination of the guilt or otherwise of the accused, remain unanswered. A lengthy argument has been addressed by learned counsel for the petitioner, and has been met in detail by the learned Advocate‑General, on the point that, since the accused is a public servant his offence falls to be prosecuted and punished exclusively under the Prevention of Corruption Act, 1947, of which clause (c) of subsection (1) of section 5 is particularly referred to. By this clause, it is made an offence of "criminal misconduct" for a public servant, "if he dishonestly or frau dulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do". The offence is made punishable by 'subsection (2) of the same section with imprisonment which may extend to seven years, or with fine, or with both. Section 6 of the same Act may be reproduced here, so far as it is relevant :‑ " No Court shall take cognizance of an offence punishable under section 161 or section 165 of the Indian Penal Code or under subsection (2) of section 5 of this Act allowed to have been committed by a public servant, except with the previous sanction. (a) * * * * * * * * * (b) * * * * * * * * * (c) in the case of any other person, of the authority com petent to remove him from his office." Section 7 of the Act provides that : "Any person charged with an offence punishable under section 161 or section. 165 of the Indian Penal Code or under subsection (2) of section 5 of this Act shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him * * *". A number of provisos subjoined to the section make it clear that no such person shall be called as a witness except at his own request, that his failure to give evidence shall not be held against him and that he shall not be questioned regarding the commission of any other offence, or in order to show his bad character, except in certain eventualities. Learned counsel for the petitioner has adapted on this part of the case the argument set forth in a recent judgment of the Punjab (India) High Court and published as The State v. Gurcharan Singh A I R 1952 Pb.

89. It is neither necessary nor desirable that in this judgment I should undertake a detailed examination of each argument set forth in the judgment cited above, which is not a precedent for the Courts of Pakistan. The contention raised by learned counsel for the petitioner is that, so far as public servants are concerned, the provisions of section 409 Pakistan P. C. have been repealed by those of section 5 of the Act of 1947, so that if it is sought to prosecute a public servant for such an offence as the present, it must be for criminal mis conduct under the Act of 1947 and for no other offence. On the basis of certain observations in English authorities of early date, which are cited in the well known treatises on Statute Law by Craies, and Maxwell, it is urged that when an act which is an offence covered by punishment under an existing statute is subsequently created an offence under a later statute which varies the procedure and applies a different punishment, it is only the later statute that will thenceforth be applicable to the prosecution and punishment of that act. Observations to this effect may be found in Michell v. Brown, (1859), 28 L J M C 53 and Henderson v. Sherborne (1837), 2 M & W 236, but both these authorities are prior in date to the English Interpretation Act of 1889, section 33 of which is in very similar terms to section 26 of the General Clauses Act, 1897, in force in Pakistan. The latter section runs as follows :‑ "Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be‑liable, to be punished twice for the same offence". It is arguable, and has been argued, that this section operates to obviate altogether any implied repeal of one penal law by another. For, the section does not deal only with the matter of punishment ; it provides also that the person offending may be prosecuted under any or all the relevant enactment's, and this must be understood to have been pro vided in the realisation that the procedure for prosecuting under one enactment may not be exactly the same as. that provided under the other or others. In other words, inter preting this rule in the full sense of the words in which it is couched, it must be understood to apply even where the subsequent enactment which may be brought into play for punishing the offender, provides a special procedure governing the trial for such an offence. The differences of procedure relied upon are firstly as to the requirement of sanction and secondly as to the right of the accused person to give evidence in his defence. Even under section 409, Pakistan P. C., as applied to public servants, the sanction of authorities mentioned in section 6 of the Act of 1947 is necessary with reference to persons employed in connection with the affairs of the Federation, who are not removable except with the sanction of the Central Govern ment, and persons employed in connection with the affairs of a Province, who are not removable except with the sanction of the Provincial Government. The difference only arises in the case of persons who are removable by authorities inferior to the Central Government and the Provincial Government res pectively, serving in connection with the affair of the Federa tion or a Province, and this is of course the largest category. The other special provision in section 7 is rather a rule of evidence than of procedure, although it has the effect of over riding the provision contained in the Criminal Procedure Code, governing the making or procuring of statements by or from accused persons, namely, that they shall not be made on oath. The latter provision of course, has the effect of render ing such statements not "evidence" in the sense of the definition contained in section 3 of the Evidence Act, 1872, and although found in the Criminal Procedure Code, must nevertheless be regarded as a rule of evidence. One further difference between the two enactments is that the maximum sentence provided under the later Act is much lower than under the Penal Code. A short answer to the argument that the Act of 1947 should have been applied in the present case is that on the facts as appearing from the charge, and from the evidence led by the prosecution, the accused is not alleged either to have misappropriated or to have converted the property in question to his own use or to have allowed any other person to do so. No attempt has been made to show misappropriation or conversion. As I have indicated above, the case is one falling under the following specific provision in section 409 Pakistan P. C. read with section 405, viz., dishonestly using or disposing of entrusted property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, express or implied, which the accused has made touching the discharge of such trust. It is not contended, and I do not think it can be contended, that criminal breach of trust of this type cannot possibly be com mitted by public servants. Therefore, it would appear that an offence of this particular kind, committed by a public servant, is punishable only under section 409 Pakistan P. C. and the further conclusion seems equally plain, that the omis sion of such offences from the definition of "Criminal mis conduct" in section 5 of the new Act, is deliberate.. In other words, it is not open to the Courts to presume that this particular type of offence of criminal breach of trust by a public servant is also within the meaning of the expression "criminal misconduct" in section 5 aforesaid or to act on the basis of any such presumption. The rule of statutory inter pretation applicable in this particular is expressio unius est exclusio alterius. But it seems to me that on general principles also, and having regard to the provisions of the new Act, it is suffi ciently clear that the Legislature did not intend an offence of criminal misconduct falling under clause (c) of subsection (1) of section 5 to be governed by the special provisions relating to sanction and the competence of the accused person to give evidence in his own behalf contained in sections 6 and 7 of the Act of 1947. For clauses (a) and (b) of the same subsection of section 5 describe in specific terms, offences which are akin to those punishable under sections 161 and 165 respectively of the Pakistan Penal Code, and by special expression in sections 6 and 7, offences under these two particular sections of the Penal Code, are made subject to the new provisions contained in those sections. Clause (c) of the same subsection, as already seen, provides for an offence within the definition of criminal breach of trust contained in section 405 and punish able under section 409 of the Penal Code; no mention is made of section 409 Pakistan P. C. in either section 6 or section

7. Applying the maxim axpressio unius est exclusio alterius it must be concluded that the omission is not accidental but is intentional. There is only one contingency in which it is possible to suppose that the Legislature entertained no such discriminatory intention, and that is, if the express references to sections 161 and 165 Pakistan P. C. in sections 6 and 7 can be supposed to have been made merely for greater precaution, as indicated by the expression ex‑abundanti cautela. Reading the Act of 1947 as a whole, I am unable to discover a single reason why, if the Legislature considered it necessary that the new provisions in sections 6 and 7 should apply to all offences punishable under whatever statute, of nature similar to the types of criminal misconduct, specified in subsection (1) of section 5, it should have thought it necessary to make express mention in this connection only of the two section, viz. 161 and 165 of the Penal Code. The Legislature must be presumed to have been aware that one of the types of criminal mis conduct created by section 5 was in all respects similar to the offence of criminal breach of trust punishable under section 409 of the Penal Code, if committed in the same circumstances. Therefore, in my opinion, it must be concluded that the specific mention of sections 161 and 165 Pakistan P. C. in sections 6 and 7 has been made for purposes of discrimina tion and that these sections do not apply where the charge is of criminal breach of trust under section 409 Pakistan P. C. My attention has been drawn to certain authorities of the Indian Courts, in which it has been observed that where an act is punishable under two different statutes, but, under one of them can only be prosecuted with the function of the competent authority, the prosecution should be launched under the last mentioned statute. In no case, however, have the judges gone so far as to observe that the prosecution under the other statute is not competent, nor has any authority been brought to my notice in which section 26 of the General Clauses Act has been interpreted in any sense other than that which I have indicated above. There are observations in Craies on Statute Law (Fifth Edition) at pages 341 to 343 and in Maxwell on Interpretation of Statutes (Ninth Edition) at pages 194 to 197, which might be understood as leaning in favour of the possibility of implied repeal of one penal statute by another, despite the provisions of section 33 of the (English) Interpretation Act, 1889. The authorities cited in support of this view and it should be mentioned that authori ties are also cited by these learned authors which favour the view I take‑are of dates prior to 1839, with the exception of one case which I shall notice presently. It is significant that no case from the English reports has been adduced in which the effect of section 33 aforesaid on the question of implied repeal has been canvassed, and this goes, in my opinion, to indicate that the rule embodied in this section has effect of eliminating the possibility of implied repeal as between apparently conflicting penal statutes by the simple machinery of providing that an offence shall only be punished once. The exceptional case mentioned above is Fortescue v. The Vestry of St. Matthew. Bethnal Green (1891) 2 C B 170 which is mentioned in the book by Craies, as confirming the view that "where the same offence is re‑enacted with a different punishment it (the subsequent enactment) repeals the former law". Speaking with respect, it seems to me that the judgment does not have any such effect. The matter in issue was as to a projection in a street beyond a "general line" laid down by a municipal authority. An earlier Act empowered competent person to regulate and remove all projections from the fronts .of houses, "which in their judgment are inconvenient or incom modious to passengers along the footways", under prescribed penalties. By two later Acts these provisions were‑ varied. One of the Acts allowed projections beyond the general line" of fronts to a depth of ten inches. The other provided that there a projection placed in front of a house was an annoyance in consequence of rendering the passage less commodious, the competent authority could require the owner to remove it, subject ‑ to penalties. In the particular case, which arose after the later enactments had come into force, the projection was not more than nine inches beyond the general building line and as such was expressly within the limits rendered legal by one of the later Acts. Consequently, it would appear that there was no violation of law such as to attract the powers of the competent authority under the second of the later Acts, on the ground that there would in such cases be no nuisance or annoyance. For the same reason the provisions of the earlier Act were not applicable. The conflict, if any, was between the two statutes making the same act an offence but between enactments one of which expressly sanctioned the act in question as legal, while the other gave power to competent authorities generally, in their discretion to procure removal of projections which they regarded as annoyance; For these reasons, I am clearly of the opinion that the prosecution of the accused under section 409 was in accordance with law, and is not barred by anything contained in the Prevention of Corruption Act, 1947. It seems to me however, that there is not sufficient material on the present record on which a conclusion can be reached as to whether the accused person has been guilty of violation of any duty on implied contract applicable to him, and affecting the discharge of his trust in respect of the sum of Rs. 5,000, admittedly received by him on the 12th January 1949. Acting under section 428, Criminal procedure Code, I direct that further. evidence be recorded by the trial Court, with respect to the undermentioned questions :‑ (1) In relation to the sum of Rs. 5,000 received by him on the 12th January 1949, in what manner was the accused required, by his duty to deal with it, both corporally as well as by entry in records, and did the accused deal with this property in accordance with his duty? (2) Under the practice and procedure prevailing in the Office of the Lahore Omnibus Service, at the relevant time, what entries were required to be made with respect to this sum of money ; in what registers and by whom were such entries made; if they were not made, who is at fault? (3) What proof is there to establish that the general check of the cash balance was made, as a result of which the present defalcation was discovered? On what date was this check made, and what documents are available to show that it was correct? (4) What entries are available in the registers to support the statement that against two R. T. Rs. totalling Rs. 10,000, received from Dera Ghazi Khan, the accused charged or paid out Rs.15.000, and does this evidence establish that the accused acted in excess of authority, or in violation of duty, or otherwise irregularly. (5) Under the practice and procedure prevailing at the relevant time, was the accused in exclusive arid single control of the cash held by the Lahore Omnibus, Service, through out the period from the 12th January 1949, up to the date of the check at which the defalcation was allegedly discovered? The parties will be given reasonable opportunity to lead evidence on these points. Where documentary evidence is available, the Magistrate should not allow any oral evidence to be led except to support and elucidate such documentary evidence. Even as regards the practice and procedure, the Magistrate will require that documentary evidence should be led or its absence should be satisfactorily explained before accepting oral evidence. A return will be made by the 1st October 1952. A.H. Further evidence ordered to be recorded.