P L D 1966 (W (PLP)

KADIR NAWAZ AWAN, J.‑

This is an appeal under section 417, Cr. P. C. by the State and is directed against the order dated 9th August 1962, of the Special Judge (Central) Karachi, acquitting respondent Muhammad Hussain of offences punishable under section 409, P. P. C. read with section 5 (2) of Act II of 1947.

2. The prosecution case in brief is that respondent Muhammad Hussain Khan was working as a deposit clerk in the Central Radio Office of Post and Telegraph Department, Karachi on 30‑5‑1961, when he is alleged to have received a sum of Rs. 667.80 on behalf of Postal and Telegraph Department from one Abdul Maroof of Czechoslovakia Embassy as telegram charges, Ire issued a receipt No. 52 Exh. 3, but made no entries about this amount in cash statements and remittance registers Exits. 4, 5 and 6, with the result that this amount could not be deposited in the Treasury. This offence was detected by P. W. Nisar Ahmed Khan when he prepared a statement M. R. 42 (Exh. 9) for the month of May 1961. He reported the matter orally to Abdul Marian Shah and thereafter P. W. Jehan Dad, Radio Traffic Officer, Karachi, sent a written report to the Special Police. The prosecution sanction was also granted by him.

3. Police during their investigation obtained sample hand writings of respondent Muhammad Hussain Khan in the presence of Magistrates and sent the same alongwith the dis puted documents Exhs. 3, 4, 5 and 6 to hand‑writing expert. Witnesses were examined and after the completion of these enquiries he was sent up to the above stated Court for his trial.

4. The respondent Muhammad Hussain Khan had pleaded not guilty and .had denied to have received this amount of Rs. 667.80 from Abdul Maroof on behalf of Czechoslovakia Embassy for postal and telegraph Department in his capacity as a deposit clerk. It was also denied by him that Exhs. 3, 4, 5 and. 6 were in his handwriting. The stand taken by him was that he was on duty on 30‑5‑1961 but had proceeded on short leave at about 11‑30 a.m. He had recalled some of the prosecution witnesses and examined them in defence.

5. The learned Special Judge (Central) Karachi (Mr. G. K. Pir) held that all these documents viz. Exhs. 3, 4, 5 and 6 were not in the handwriting of respondent Muhammad Hussain Khan and had acquitted him.

6. Before we discuss the merits of the case, reference to legal principles which are always taken into consideration while dealing with an acquittal appeal appears necessary. We must also keep in our mind the basic decision of the Privy Council reported in the case of Sheo Swarup v. King Emperor (AIR 1934 PC227). We have also to keep in our mind the various decisions of the Supreme Court thereafter. In deciding an appeal against acquittal order what has to be borne in mind is: (1) The views of the trial Judge as to the credibility of the witnesses. (2) The presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted by the trial Court. (3) The right of an accused person to the benefit of doubt. (4) The slowness of an Appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.

7. In considering these principles so laid down in dealing with an appeal against acquittal the views of the trial Judge in regard to the credibility of the prosecution witnesses and the slowness of an Appellate Court in disturbing the finding of fact must always be kept in mind because the trial Judge has dis believed them and rejected the entire evidence brought against an accused person, we have, therefore, to be extra cautious in accepting all this evidence. It has been observed by the Supreme Court in an unreported case (Cr. Appeal No. 27/1961) as follows: "It is true that an acquittal order passed by a trial Judge, who has seen the demeanour in the witness box should not be lightly set aside. As has been said by the Privy Council the presumption of innocence is by means weakened by the acquittal."

7. In cases of this nature there can be very little of ocular evidence to prove criminal breach of trust. In addition to other evidence what the prosecution has to prove is that the relevant documents are in the band‑writing of an accused person. In this particular case prosecution has examined four witnesses, who have proved that the relevant documents are in the hand writing of respondent Muhammad Hussain Khan and in this respect they are corroborated by the handwriting expert. But the learned Special Judge has rejected all ibis evidence and dis believed it for reasons which do not appear to us to be sound.

8. The admitted position is that one Abdul Maroof on behalf of the Czechoslovakia Embassy at Karachi had deposited a sum of Rs. 667.80 on 30‑5‑1961 and a receipt, counter‑foil of which is Exh. 3 was issued to him. He has been examined and his evidence is to the effect that he had gone to the Radio Telegraph Department on 30‑5‑1961 and had deposited a sum of Rs. 667.80 with the Cashier on behalf of Czechoslovakia Embassy and he was given a receipt which has now been sent by this Embassy to Czechoslovakia. He has thus supported the prosecution that this amount was deposited by him on 30‑5‑1961 with the Cashier of this Department. Further admitted position is that this amount is not mentioned in the cash statements and remittance registers Exhs. 4, 5 and

6. It is also admitted that this amount of Rs. 667.80 has not been deposited in the Treasury. All these facts have then proved that this amount which was received on 30‑5‑1961 for which a receipt No. 52 (Exh. 3) was issued and for which there are no entries in cash statements and remittance registers Exhs. 4, 5 and 6 has not been deposited in the Treasury and has been misappropriated.

9. The material points for our consideration now would be whether respondent Muhammad Hussain was entrusted with the sum of Rs. 667.80 on 30‑5‑1961 and secondly, whether criminal breach of trust has been committed by him in respect of this amount. There is no dispute about his status as a public servant within the meaning of section 21, P. P. C. The admitted position is that he was working as a cash or deposit clerk in the Deposit Account Section of the Central Radio Office of Postal and Telegraph Department in the year 1961 and his duties were to receive payments both in cash and by cheques in respect of telegram charges. He has admitted this position in his statement made under section 342, Cr. P. C., before the trial Court. Apart from this fact several prosecution witnesses have deposed about his status as a public servant and they have also referred to his duties as a deposit clerk in this office.

10. Deposit of Rs. 667.80 on 30‑5‑1961 by Abdul Maroof has been proved and further that one receipt was given to him. He could not produce the original receipt as his evidence shows that the Embassy of Czechoslovakia has sent it to their own country. Its counter‑foil is Exh.

3. The prosecution case is that it is in the hand‑writing of respondent Muhammad Hussain Khan. Its further case is that respondent Muhammad Hussain has not shown this amount in the cash statements as well as in the remittance book. The relevant entries from these registers are Exhs. 4, 5 and

6. According to the prosecution, all these entries are in the handwriting of respondent Muhammad Hussain but he has not recorded the entry in respect of Rs. 667.80 for which receipt No. 52 (Exh. 3) was issued by him. The first witness who has supported the case of the prosecution on this point is Iftikhar Ahmed Lari (Exh. 2). He was working as a head‑clerk in the Central Radio Office, Telegraph Office, Karachi at the relevant time and he knows the respondent Muhammad Hussain. His evidence is to the effect that this, respondent was working as a deposit or as a cash clerk in the deposit accounts section in the year 1961 and his duties were to receive payments of deposit accounts and thereto make entries in the accounts books as well as in the remittance register. In his evidence he has explained the details of the procedure. for payment of such accounts and preparation of relevant registers. His evidence further shows that he is well conversant with the hand writing of respondent Muhammad Hussain and he can identify it as both have worked together. When he was shown counterfoil of receipt No. 52 (Exh. 3) he had stated in the trial Court that the hand‑writing is of respondent Muhammad Hussain and further that it bears his initials which were marked as Exh. 3‑A. Ibis evidence also shows that it is initialed by Wahidullah Assistant Radio Traffic Officer. Proceeding further he had stated that the duty of respondent Muhammad Hussain was to have made entries in the cash statements and remittance registers about the deposit of this amount. When he was shown statements Exh. 4, 5 and 6 from these registers he had stated that all these entries were in the handwriting of respondent Muhammad Hussain and further that these documents made no mention of Rs. 667.80. He had also stated that these entries were initialed by respondent Muhammad Hussain and these were marked Exhs. 4‑A, 5‑A and 6‑A. In his cross‑examination he had deposed that receipt books are not initialed by the Head‑clerk. When he was recalled and examined in defence he has deposed that the short leave register for the period from January 1961, to May 1961, was not available in the office. The learned Special Judge rejected his evidence and disbelieved him for the only reason that "to a naked eye, it is clear that Exh. 3 is not written by the same person who wrote other Exhs". This reason does not appear to be sound in the face of evidence of other pro secution witnesses and the opinion of the handwriting expert. We have also examined these documents and have found that the hand‑writing of Exhs. 3, 4, 5 and 6 and the sample hand writing Exhs. 15, 16, 17 and 18 are of the same person. We have specially found that the figure ("8" and letter "L" in all these documents have marked similarities and these similarities clearly indicate to us that all these writings, are by the same person.

11. The next witness examined on this point is Muhammad Ghous Bux, Head‑clerk, Central Radio Office, Karachi His evidence is to the effect that he was working as a Head‑clerk, Deposit Accounts section, in the year 1961. He had deposed that he was well conversant with the hand‑writing of respondent Muhammad Hussain as he had worked under him for a considerable long time. When he was shown receipt No. 52 (Exh. 3), cash statements Exhs. 4 and 5, the remittance register Exh. 6, he had stated that all these documents were in the handwriting of respondent Muhammad Hussain and further that initials Exhs. 4‑A, 5‑A and 6‑A as well as Exh. 3‑A on all these documents were his. Respondent Muhammad Hussain had pleaded before the trial Court that he was on duty on 30‑5‑1961, but had proceeded on short leave at about 11‑30 a. m. and had handed over the charge to this witness. Receipt book shows that receipts Nos. 49 to 53 were issued on 30‑5‑1961. The cash statements Exh. 4 and 4 of that date show that entries in respect of receipts Nos. 49, 50, 51 and 53 have been recorded and there is omission in respect of receipt No.

52. In the first place, there is no short leave register to support the stand taken by the respondent that he had proceeded on short leave at 11‑30 a.m. and handed over the charge to P. W. Muhammad Ghous Bux, secondly if respondent Muhammad Hussain had handed over the charge and proceeded on short leave he must have handed over cash also to P. W. Muhammad Ghous Bux and in that case receipt must have been obtained by him but it is not produced. Thirdly after he had issued the receipt in question viz. No. 52, one more receipt bearing No. 53 was issued thereafter till the accounts were closed at 12 O'clock. It would show that opponent Muhammad Hussain had worked till 12 O'clock as it has been proved that the statement of account Exhs. 4'and 5 are in his handwriting and in that case his plea that he had proceeded on short leave at 11‑30 is false. Evidence on record shows that such deposits are generally accepted till 12 O'clock and thereafter accounts are closed. Perhaps the respondent intended to prove that when be proceeded on short leave at 11‑30 a.m., the amounts shown in receipts Nos. 52 and 53 were not received by him. If this position was correct it is not explained by him why the amount in respect of receipt No. 53 is mentioned in Exh.

4. The learned Special Judge has not given convincing reasons for rejecting his evidence. He has merely referred to his evidence and stated that this witness had identified the handwriting of Muhammad Hussain on Exhs. 3 to 6 because the respondent had worked under him. Thereafter, his judgment recites that "it appears to me that this witness is also to be blamed a little and that is why he is deposing against the accused." He had failed to show how this witness is responsible. In this connection we would refer to the evidence of P. W. Iftikhar Ahmed Lari who had admitted during his cross‑examination that receipt books are not sent to the Head Clerk. The learned Special Judge has further remarked that if this witness had checked the receipt book he would have caught the culprit. But this is not his duty according to the procedure. The Head clerk has in his evidence stated that he used to check the cash statements and remittance registers and initialed the same. This procedure has been explained by P. W. Iftikhar Ahmed Lari also.

12. The next witness who has supported the prosecution is Nisar Ahmed Khan. He was working in the Central Radio Office, in May 1961, and used to prepare statements called M. R. 42 and such statement prepared by him for the month of May 1961 is Exh.

9. When he checked this statement with receipt book, cash statement and remittance register he detected that amount of Rs. 667.80 referred to in Exh. 3 was not mentioned and thereafter, he made a report. His evidence further shows that as he and the respondent had worked together, he was well conversant‑with his handwriting and could identify it. According to him Exhs. 3, 4, 5 and 6 are in the handwriting of the respondent and further that his initials on these documents are Exhs. 4‑A, 5‑A and 6‑A. During his cross‑examination he had admitted that he had worked in the same section but at different tables. His evidence has been rejected by the trial Court for this reason only which apparently is not sound, as this is not the only way of knowing the handwriting of a person. Friends who exchange letters can recognise handwriting in spite of the fact that they do not write letters in presence of each other. For the same reason an officer can identify handwriting of his clerk though he does not write in, his presence.

13. One more witness examined on this point is Wahidullah, Assistant Radio Traffic Officer. He has explained the procedure regarding the payments of deposits and duties of Muhammad Hussain in this respect. His evidence further shows that after all these documents were prepared by respondent Muhammad Hussain, these were received by him and were initialled. He has supported the prosecution that all these document Exhs. 3, 4, 5 and 6 are in the handwriting of respondent Muhammad Hussain and also bore his initials as well as of this witness. He has been disbelieved by the trial Court for the reason that when he initialled these documents he did not detect this omission. The explanation given by this witness is that he had no opportunity to detect this amount as the receipt book was not sent to him when he initialled cash statements Exhs. 4 and 5 and the remittance register Exh.

6. This explanation has been disbelieved by the trial Court. According to it this was impossible and the learned Special Judge has marked that "when he initialled the receipt, he must see that the cash mentioned in it was mentioned in Exhs. 4 and 5, which he also signed." If we accept the reason given by the trial Court it would amount that this witness had not followed the procedure correctly. Apart from it, it is not the case of opponent Muhammad Hussain that this omission was not detected by the Head Clerk or Assistant Radio Traffic Officer when the relevant papers were produced before them. Even if they had detected this omission the offence had already been committed by Muhammad Hussain and this argument on behalf of the trial Court would not save the opponent Muhammad Hussain. His evidence on record shows that such receipt books are not received by the Head Clerk or by the Assistant Radio Traffic Officer.

14. The last witness is Abdul Waheed Khan, Upper Division Clerk, Radio Traffic Office, Karachi. He was working as a cashier on 30‑5‑1961, in the administration branch. He had prepared the challan after Exhs. 4, 5 and 6 were brought to him by Sajjad peon. His evidence shows that these 'documents did not mention the amount of Rs. 667.80. Sajjad peon has supported the prosecution that he had taken documents to Abdul Wahid Khan. Two other witnesses are M/s. Birgis Qadir and Syed Muhammad Mutahir, Additional City Magistrate who had taken the sample handwritings Exhs. 15, 16, 17 and 18 of respondent Muhammad Hussain. All these documents were sent to the handwriting expert along with the documents in question viz. Exhs. 3, 4. 5 and

6. Khursheed Ahmed Qureshi, (Exh. 25) had after examination and comparison of these hand writings deposed in the trial Court that the questioned documents and the sample handwritings were of the same person. He has given reasons for it but his evidence was rejected for the reason that it "does not inspire much confidence. Before he had actually seen Exh. 3, he was willing to say that it was in the handwriting of the accused." The learned Special Judge has not discussed anything about the reasons given by this expert.

15. Evidence of all these witnesses shows that respondent Muhammad Hussain Khan was on duty on 30‑5‑

61. He has failed to prove that he had proceeded on short leave at 11‑30 a.m. and had handed over his charge to P. W. Muhammad Ghous Bux. It has been proved by the evidence referred to above that receipt No. 52 (Exh. 3) is in his handwriting. It has also been satis factorily proved that cash statements Exhs. 4 and 5 and the remittance register Exh. 6 are in his handwriting. He had not mentioned the amount of Rs. 667.80 in Exhs. 4, 5 and 6 with the result that this amount could not be deposited in the Treasury. It would mean that the amount of Rs. 667.80 received by opponent Muhammad Hussain in his capacity as a public servant was not entered by him in the documents referred to above with the result that this amount was not deposited in the Treasury and lastly, that he has criminally mis‑appropriated it. Finding of the trial Court on this point appear to us to be perverse and unreasonable. He has, committed breach of trust in respect of this amount and this offence is punishable under section 5 (2) of Act 11 of 1947. We, therefore, allow this appeal and set aside the acquittal order passed by the trial Court. We convict the respondent Muhammad Hussain for this offence. As regards the sentence we are conscious of the fact that this offence was committed in 1961 and trial commenced against the opponent Muhammad Hussain Khan in April 1962, when substance of accusation was read over to him. He was acquitted by the trial Court on 9‑8‑62 and thereafter this appeal was filed by the State. He must have spent huge amounts in defending himself and passed very anxious moments even during the trial as well as during the pendency of acquittal appeal. For these reasons we take very lenient view of it. We, therefore, sentence him to undergo R. I. for 6 (six) months and also to pay a fine of Rs. 900 or in default to undergo R. I. for (six) months more.

16. Respondent Muhammad Hussain is absent today. Non‑bailable warrants to issue for his arrest and he be remanded to custody to undergo this period of sentence. K.B.A. Appeal accepted.