P L D 1969 Peshawar 12 (PLP)

12. The learned Special Judge after having considered the whole evidence has convicted and sentenced the appellant, as indicated above. He has made certain observation in his judgment which shows that he did take into notice the trip of the appellant abroad as a relevant circumstance against him and observed that he must have incurred the expense on his own and friend's trip to Europe from the embezzled amount. This d observation has been the target of lot of criticism by the learned counsel for the appellant which I will deal with at the relevant place.

13. Mr. Peer Bakhsh Khan, the learned counsel for the appellant, addressed very lengthy arguments on various aspects of the case which can be summarised as follows

(i) that the cheque has not been proved to have been prepared or signed by the appellant ; (ii) that there is no proof that the cheque was presented to the Treasury Office or the State Bank or that the amount was received by the appellant ; (iii) that the cheque along with several other documents was sent to a Handwriting Expert for comparison of writings. The Expert has not been examined and the report submitted by him has been withheld ; therefore, a presumption should go against the prosecution, in that the writings and signatures on the cheque have not been proved ; (iv) that important prosecution witnesses, namely, Niaz Muhammad the Scroll‑writer, Sirajuddin and Muhammad Ali of Karachi and the Commissioner of Peshawar Division have been withheld by the prosecution. A presumption should, therefore, be raised against the prosecution in that behalf; (v) that the identity card said to have been issued to the appellant and the letter of authority, which is said to have accompanied the cheque when it was presented to the Treasury Office, have not been produced ; therefore it should be presumed that the entries therein are against the prosecution ; (vi) that according to the admission made by a witness from the bank, there was a great rush on 1st December 1961 in the bank; therefore the witnesses from the bank should have been put to an identification test parade, in absence of which the identity of the appellant as the person who withdrew the amount has not been established (vii) that the appellant was not examined according to law and, m any case, he has been prejudiced in the manner he has been examined ; (viii) that the defence has been arbitrarily curtailed by the learned Special Judge and the statement made by the appellant closing his defence was made under duress (ix) that the appellant could not be convicted under section 409, P. P. C. because entrustment has not been proved ; and lastly; (x) that the appellant could not have been awarded separate sentence under section 409, P. P. C. and under section 5(2) of the Prevention of Corruption Act, 1947 ; and, in any case, the sentence in default of payment of fine, i.e., two and a half years is illegal because it could be only one‑fourth of the sentence which could be passed under section 5(2) of the Prevention of Corruption Act. The learned counsel in this connection also argued that the appellant could have been sentenced only under an offence which awarded lesser punish ment, i.e., under section 5(2) of the Prevention of Corruption Act, 1947, and not under section 409, P. P. C.

14. In so far as the writings and the signatures of the ‑appellant on the cheque Exh. P. W. 3/A are concerned, I have analysed above that there is the evidence of Safdar Ali (P. W. 3) who was familiar with the handwriting of the appellant and who proved ft. It is true that in his cross‑examination he said that "as far as he thought" the writing on the cheque was in the hand of the appellant ; but in respect of signatures he said he was definite. The learned counsel has criticised the apse of words "as far as he thought". I am of the view that this is legal evidence; because in matter of handwriting it is the opinion of a person which is relevant and the opinion is expressed only by means of thought. However, this will not make any difference because the witness explained that the appellant had made an effort to disguise his writing. The learned counsel has submitted that this witness was not expert ; there fore he could not express such an opinion as to disguising the writing. I do not agree with the learned counsel. An officer who is familiar with the handwriting of a person can give opinion whether or not the handwriting is of the person concerned and whether or not it is his true normal handwriting or an effort of disguising the same has been made. In this very connection, the learned counsel further criticised the evidence of this witness by submitting that no questions were put to this witness in his Examination‑in‑Chief in obedience to the requirement contained in the explanation to section 47 of the Evidence Act ; which requirement is that the witness proving the handwriting should have seen the person concerned writing, ear when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of his business, documents purporting to be written by that person have been habitually submitted to him. In the opinion of the learned counsel, these matters should have been asked from the witness in Examination‑in‑Chief and it was not the duty of the appellant to test the statement of the witness made in Examination‑in‑Chief when he deposed that "he was familiar with the handwriting and signatures of the accused". The learned counsel read the following portion from the commentary on the Law of Evidence by Mr. Monir (4th Edition 1956 page 363) :‑ " This section makes relevant the opinion of a person who is acquainted with the handwriting of the person by whom the disputed document is alleged to have been written or signed, even though he is not expert. It is, there fore, the duty of the party calling the witness to show that the witness is acquainted with the handwriting of the alleged writer. But if, in examination‑in‑chief, the witness states that he is acquainted with the handwriting, his evidence will be admissible though he has not been questioned as to the means of his know ledge, unless the opposite‑party can show by cross‑examining the witness that he is really incompetent to testify under the section." The learned counsel laid stress on the earlier portion of the commentary quoted above; but did not attach any importance to the later part. I agree with the learned Commentator that when once a witness states in his examination‑in‑chief that he is acquainted or familiar with the handwriting of a person, the details as to how he is acquainted with, being a matter of explanation to section 47 of the Evidence Act, is the duty of the cross‑examiner to bring to light, if the competency of such a witness is questioned by the cross examiner. If no such cross‑examination is done, it will be assumed that the competency of the witness was not challenged. In fact, the cross‑examination on Safdar Ali does not challenge at all the circumstance that he was in such a position, as mentioned in the explanation t3 section 47 of the Evidence Act; that he could be familiar with the handwriting of the appellant. Therefore, I hold that the statement made by Safdar Ali P. W is relevant and admissible against the appellant, in so far as his handwriting and signatures on the cheque are concerned. I further hold that they have been proved by this witness to be that of the appellant. In this case it is not only the indirect evidence which is contained in the statement of P. W. 3 Safdar Ali; but there is direct evidence also to prove the signatures of the appellant on the reverse of the cheque. P. W. 5 Aziz Ahmad Khan has stated that the specimen signatures of the appellant were sent to the bank. This witness was not cross‑examined. Two witnesses from the bank, namely, P. W. 9 Abdul Mahmud Sethi and P. W. 20 Nisar Ali Khan have specifically deposed that the two signatures, one in blue ink and the other in red ink on the reverse of the cheque, were put by the appel lant in their presence in the bank premises. Their statements provide direct proof of the signatures of the appellant. No other evidence at all was necessary. The statement of P. W. 5 Aziz Ahmad Khan read together with the statements of P. W. 91 Abdul Mahmud Sethi and P. W. 20 Nisar Ali Khan shows that the specimen signatures of the appellant were with the bank. Moreover, the appellant did sign the cheque in presence, of P. W. 9 and P. W.

20. Therefore, there is no doubt about his, signatures on the cheque. However in order to satisfy myself, I myself compared the specimen writings and signatures Exh. P. W. 17/A to P. W. 17/J proved by P. W. 17 Muhammad Din, Magistrate 1st Class as to be that of the appellant. This witness was also not cross‑examined. My comparison shows that the disputed writings and signatures on the cheque do tally with the specimen writings and signatures of the appellant. Therefore on consideration of the evidence and all the relevant circumstances in this connection, I am satisfied that the appellant and none else is the author of the disputed writings and signatures on the cheque in question. In view of what I have said above, the criticism by the learned counsel that the Handwriting Expert was not produced or that his report was not proved, should be taken as a strong circumstance against the prosecution, loses all force. However, I am not ready to raise any presumption against the prosecution on account of that circumstance, because the prosecu tion did place on record the report submitted by the Handwriting Expert and, in fact, cited the Expert as a prosecution witness and made efforts to procure his attendance; but due to the fact that the case was being delayed, the Prosecutor thought it fit to abandon that witness. He might have at that time thought that he could save the time of the Court by abandoning that witness and at the same time his case would not suffer because there was ample other evidence, as indicated by me above, to prove the handwriting and signatures of the appellant. Therefore, in my view, there is no substance in any of the points raised by the learned counsel in respect of the handwriting and signatures of the appellant. This disposes of points Nos. 1 and 3 of the learned counsel mentioned above in para. No. 13.

15. The learned counsel, in support of the contention that the evidence produced to support the appellant having withdrawn the amount from the State Bank of Pakistan through the Treasury Office falls short of legal proof, criticised the statements of only some of the P. Ws. About P. W. 9 Abdul Mahmud Sethi of State Bank, the learned counsel submitted that in his cross‑examination the witness explained that as, he issued the token after seeing the identity card, about which he made a note on the cheque ; therefore, he could say after seeing the cheque as to who had presented the same ; otherwise it was not possible for him to recollect the name of the person who visited him on such an occasion ; therefore, the evidence of this witness about the identity of the appellant is not direct. I do not agree with the learned counsel. In fact, in cross‑examination the witness explained a usual procedure and phenomenon. Earlier in his examination‑in‑chief, the witness made the following statement after having given the direct evidence of the identity of the appellant, as analysed in paragraph No. 4 above:‑ "I know the accused present in Court. He used to bring the cheques for encashment personally." I have already noted in some other connection that specimen signatures of the appellant were with the State Bank. This witness says that he used to visit the bank. Therefore in respect of the appellant this witness, when he said that he know that the cheque was presented by the appellant, was giving most direct evidence about what he, in tact, saw and not as to what he gathered from some other circumstance. It is also pertinent to note that this witness saw the identity card of the appellant and made an endorsement on the cheque in the words "I. C. S. No. 320" which means that he saw the identity card of the appellant and only then gave him the token. This identity card, the learned counsel has criticised, has not been produced by the prosecution. It was not necessary for the prosecution to have produced the identity card which must have remained with the appellant. If the appellant had any ground available to him on the basis of that identity card, he could have produced it in Court. His failure to do so goes against him. Though I have absolutely no doubt about the statement made by P. W. 9 Abdul Mahmud Sethi mentioned above ; yet if, in any case, that statement is open to some criticism, the statement made by P. W. 20 Nisar Ali Khan, the Teller of the State Bank, which has not been challenged by the appellant in cross‑examination, is most damaging to him. He has given direct evidence to the effect that it was the appellant, whom the witness knew who had brought the cheque Exh. P. W. 3/A and got the cash, i.e., Rs. 60,000 from the witness ; who handed over the money to him after checking the necessary entries and signatures on the cheque and obtained the signatures of the appellant on the reverse of the cheque. The learned counsel did not make any criticism on the state ment of this witness, except for a general submission that the bank witnesses should be treated as interested witnesses ; because if they had not deposed against the appellant, there would have been some accusation against them. I am not prepared to accept the last‑mentioned general criticism. In fact, there is absolutely no allegation or even a surmise against the bank officials that they in this case either com mitted any illegality or were even careless. It is in evidence that the appellant was a person who used to go to the bank and used to encash the cheques. It is also in the evidence that the signature on the cheque of the drawer and of the payee were, in fact, of the Commissioner who is admittedly the drawer and the payee. Moreover, the other requirement that the cheque should have been passed by the Treasury office, had also been fulfilled in this case which, in fact, has not at all been denied by either the appellant or his learned counsel in his arguments before me. Therefore, there is absolutely no scope for any suspicion to have been levelled against the bank officials. In view of the above discussion and in view of the fact that P. W. 20 Nisar Ali Khan was not cross‑examined at all nor any suggestion was put to the witnesses from the bank that they had any adverse interest in the matter, I hold that these witnesses have made truthful statements and they did prove the withdrawal of the money by the appellant from the bank.

16. About P. W. 8 Khan Badar‑ud‑Din Khan, the Treasury Officer, and P. W. 12 Ghulam Sadiq Khan, the Accounts Clerk of the Treasury, the only criticism by the learned counsel was that they did not give direct evidence against the appellant. It is true that P. W. 8 has said nothing which could directly implicate the appellant ; but the learned counsel has not been able to criticise or comment upon the statements made by P. W. 16 and P. W. 18, the other two Treasury officials, who gave direct evidence against the appellant to the effect that he came to the Treasury with the relevant cheque and got it passed for the amount of Rs. 60,000 which was available in the particular account. It is pertinent to note that these two witnesses, Le., P. W. 16 and P. W. 18 were not cross‑examined at all. The statement of P. W. 12, I have already analysed in the earlier part of this judgment, is not without any value. He has also implicated the appellant directly and has also mentioned that there was a letter of authority with the appellant at the time he came to the Treasury. P. W. 21, the Superintendent in the office of the Director, Basic Demo cracies, where the appellant used to work, has proved the procedure and stated that on the noting part of the file concerned the name of the person who was authorised to withdraw certain amount used to be mentioned and also that a letter of authority used to be issued in favour of that person. The letter of authority which P. W. 12 saw must have been the letter of authority mentioned by P. W.

21. The learned counsel has criticised that the prosecution has not produced that letter of authority. This is the same criticism, as advanced in respect of the identity card produced by the appellant in the bank. This letter of authority was a document which must have been handed over to the appellant. It is in statement of P. W. 11 Abdul Qayyum Khan, Superintendent of the Comp troller's office that this cheque or the amount thereof was not entered in the cash book concerned by the appellant. Naturally, as the prosecution shows the appellant after having received the amount from the bank did not show it anywhere in the officials records as having been withdrawn, so much so that even the counterfoil of the cheque concerned was subse quently found to be missing and removed by means of a blade to an invisible manner. It is not expected from the culprit, whosoever he in such circumstances may be, to leave the letter of authority in the record. That letter of authority was used by the appellant in the Treasury for showing to the official concerned and thereafter he was not interested in keeping it in safe custody. Therefore, the non‑production of this letter of authority, the factum of which having been given in favour of the appellant has been proved by P. W. 12, does not make any difference. As mentioned above, P. W. 16 and P. W. 18 from the Treasury have given most direct evidence against the appellant that he was the person who got the cheque passed. Therefore, I hold that this allegation against the appellant has also been fully proved by the prosecution. Thus, in my judgment, the appellant has been proved, from the statements made by the witnesses from the Treasury and the bank, to have taken the cheque to the Treasury, got it passed from there and having presented it to the State Bank obtained the cash of Rs. 60,

000. In this connection, the learned counsel also criticised the non‑production of Niaz Muhammad, the Scroll‑writer mentioned in the statement of P. W. 9 Abdul Mahmud Sethi. Niaz Muhammad verified the signatures of the payee on the cheque and thereafter having made entries in the scroll passed it on to the next officials. It is an admitted fact that the drawer and the payee of the cheque is the Commissioner. It is also an admitted fact that the Commissioner had signed the cheque at two places as drawer and payee. Therefore, there being no dispute about the signatures of the Commissioner it was not necessary to produce Niaz Muhammad who verified the signatures of the Commissioner only. The same comment will apply to the criticism by the learned counsel in respect of the non‑pro duction of the Commissioner. His signatures were not in dispute. Moreover, those signatures were proved by P. W. 21 Insar Ahmad Khan, the Superintendent of the office concerned. to be that of Nawabzada Sher Afzal Khan, the then Commis sioner of Peshawar Division. Therefore, there is no force in this criticism of the learned counsel either.

17. It is true that one of the witnesses from the bank, i.e., P. W. 9 Abdul Mahmud Sethi has admitted that on the first day of month there remains a great rush on account of pay day. On this admission, the learned counsel tried to build an argument that due to that rush it was possible that the bank officials may have made some mistake in identifying the person who presented the cheque: and in absence of identification test parade the bank officials should not be believed in so far as they have given evidence about the identity of the appellant. I have already discussed the statement of P. W. 9 Abdul Mahmud Sethi and P. W. 20 Nisar Ali Khan, the latter of whom has not been cross‑examined by the appellant. They knew him and they gave direct evidence against him of having seen him on that day. The cheque was of very large amount, i.e., Rs. 60,

000. The appellant used to visit the bank in connection with encashing the cheques and his specimen signatures were with the bank. In these circumstances, the fact that he was not put to identification parade will not give him any benefit. Therefore, I find that there is no force in the above criticism of the learned counsel.

18. The learned counsel also referred to an admission made by some P. Ws. and also D. W. 2 to the effect Gohar Rehman, Safdar Ali and Ghulam Ahmad P. Ws. sometimes used to prepare the cheques and also used to get the cash from the bank and further that the cheques used to go to the Commissioner either in official dak or through peon; therefore, there is a possibility of somebody else having filled in the cheque, having taken it to the Commissioner for signatures and having obtained the money from the bank. He tried to support this argument by the circumstance that the embezzlement took place in December 1961, while the charge was handed over by the appel lant in March 1962, till then nobody took notice of the embezzle ment so much so that even in the charge report, nothing was pointed out to show that the embezzlement of taken place. Thus some one other than the accused must be responsible. In this very connection, the learned counsel referred to the non- production of two other cheques which were stated by the P. Ws. from the bank to have been taken by the appellant to the bank on 1st December 1961, for having those cheques encashed. This circumstances too, according to the learned counsel, pointed towards the possibility that somebody else other than the appellant was responsible for the whole incident. It is not correct that the other two cheques have not been produced. They have been mentioned in the statement of P. W. 12 and have been proved on the file as Exh. P. W. 12/A and Exh. P. W. 12/B. One of them is for Rs. 568.35 and the other is for ,Rs. 381.50. One relates to the Divisional Council Fund and the other to the Kaghan Valley Fund. These cheques related to small amounts and for that reason they have not been attached any significance either by the appellant who embezzled the bigger amount of Rs. 60,000; or by the Prosecuting Agency which did not refer to these cheques in detail. However, the omission with regard to bringing the details about those cheques on the file is not at all significant so long as we have ample evidence to prove the circumstances about the cheque in question, i.e., Exh. P.W.3/A. The appellant has not been charged or convicted about the other two. It is true that the charge was handed over by the appellant in March 1962, and nobody till then nor at that time took note ‑of this cheque. I will advert to this matter again while dealing with the question of sentence. But for the time being, I must comment that this matter could have been taken note of by the higher officers and other officials concerned with little more care. Undoubtedly, the counterfoil of the cheque was meticulously removed from the cheque book so as to put out of caution the person checking the counterfoils. I have seen the cheque book and am confident that a casual sifting of the counterfoils will not show that any counterfoil is missing, unless each one of the numbers of the counterfoils is carefully noticed and read. Therefore, I can presume that the person who took the charge from the appellant did not carefully notice the counterfoils. Had he done so, he could have detected the missing counterfoil. The further reason why the matter could not be detected by the person taking over the charge was that no entry about Rs. 60,000 was made in the cash book. Had that entry been made in the cash book, the person taking over the charge could have made the enquiry from the appellant as to where the amount had been spent. It appears that that amount was entered only in the cheque and could have been entered also in the counterfoil. Both not being there, the person taking over the charge could have been misled. By this comment, I do not at all mean to exonerate the person taking over the charge. As the matter related to money, he should have been more careful than an ordinary man. But that does not absolve the appellant of his responsibility or liability. It has been proved against him by direct evidence that he took the money from the bank and embezzled it. Similarly, the fact that some other person could also prepare the cheque, could take it to the bank for encashing it and after having done so was in a position to embezzle the same, casts only an aspertion on the weak system of maintaining the accounts and keeping the money in the relevant office; but does not detract even on iota from the liability of the appellant against whom the evidence, mentioned and analysed in detail above, is direct, strong and cogent enough to dispel any doubt whatsoever. This disposes of points No. (ii); No. (iv), except with respect to witnesses from Karachi; No. (v) and No. (vi) mentioned in paragraph No. 13 above.

18. The objection by the learned counsel that the appellant was not properly examined under section 242 Cr. P. C., is not based on true appreciation of that provision. That provision is meant only to give notice to an accused person in respect of the case against him. It is significant to note that the said provision itself provides that it will not be necessary to frame a D: formal charge against the accused person. Only particulars of the offence, of which he is accused of, are to be stated to WEI and then he is to he asked a question whether he has any cause to show why he should not be convicted. I have read the accusation put to the appellant carefully. The particulars of the offence, of which he is accused of, i.e., taking of the sum of Rs. 60,000 by the appellant belonging to the Government Department concerned and its criminal misappropriation, were specifically put to him. The provisions of law were also put to him. Therefore, I am convinced that section 242, Cr. P. C. has been fully complied with by the learned Special Judge. No more particulars were necessary to be put at that stage. Evidence had yet to be led against the appellant. The detailed particulars were yet to be brought on the file. There is another aspect of this matter. The appellant did not at that stage attempt at shoving any cause against the pro posed conviction. This circumstance can be taken note of for the purpose of ascertaining whether or not the defence plea taken by the appellant is sound. It is true that the normal practice is that accused person during examination under section 242, Cr. P. C. states that "he will show cause"; but the absence of any plea at that stage might be taken as a fact against him in the circumstances of a particular case. It is significant to note that the appellant did not take any plea whatsoever at that stage; and to say that it is the practice not to divulge the defence at that stage, will not benefit him. However, in view of the prevailing practice, I do not propose to take this circumstance of the non‑disclosure of the plea, (ultimately taken by the appellant in his defence) at the earliest stage, against him. In, a proper case this circumstance, in my judgment, can be used against an accused person. As discussed above, there is no force in the argument of the learned counsel that section 242, Cr. P. C., has not been complied with. Even if it had not been complied with, the learned counsel has not alleged or shown any prejudice, in absence of which even the non‑compliance of section 242,. Cr. P. C. will not benefit him. The next contention in this connection of the learned counsel was that the examination of the appellant under section 342,. Cr. P. C., i.e., after the close of the prosecution case, was also not proper. He has referred to two omissions; namely, (in that the appellant was not put any question about the writings and signatures on the cheque in question; and (ii) that the circum stances about the letter of authority, the identity card and his Presenting the cheque to the bank officials were not put to the appellant. A further objection has been taken that question No. 2, which included the two stages in completing the fact of withdrawal of money, i.e., Treasury Office stage and the bank stage had been combined in one question; and that it could mislead the appellant. There is no force in any of these points. The appellant in his statement, quoted in paragraph No. 11 above, has given explanation about the signatures and has denied them. There was no need of putting the questions about the letter of authority and identity card or presentation of the cheque as individual items, because there is nothing to be brought to the notice of accused person when he has already been put a question as to whether he encashed a particular cheque for a particular amount from a particular bank and that also through the treasury. Such a question puts the accused person on proper notice and he can give replies in respect of the subsidiary matters which appear in evidence against him, if he so chooses. The main items of the evidence were put to the appellant. It appears from the general answer of the appellant in the case that he fully understood the whole evidence produced against him and he took opportunity of denying certain circum stances and putting forward his own plea that some other person might have done it. Therefore, in my view, pro visions of section 342, Cr. P. C., have been fully complied with. However, the learned counsel in order to support his contention has cited some rulings, mention of which is necessary. They are :‑ Aminul Haque v. Crown (P L D 1952 F C 63), S. M. K. AM v. The Crown (P L D 1953 F C 189), Abdul Wahab v. The Crown (P L D 1955 F C 88), Ibrahim Bhak and another v. The Crown (P L D 1955 F C 113), Abdus Salam Molla v. The Crown (P L D 1955 F C 129) and Lalan v. The Crown (P L D 1955 F C 132). By reading of all these rulings shows that it all depends upon the circumstances of each case whether or not section 342, Cr. P. C., has been complied with. Furthermore, in each case the application of section 342, Cr. P. C. is not to be seen in a techni cal light. It is to be seen whether or not any technical defect with regard thereto has prejudiced the accused person. The learned counsel while advancing the argument about the examination of the appellant did not mention any particular prejudice to have been caused to the appellant. I have also noticed that no prejudice appears to have been caused to him. He is an educated person. He was an experienced official of the department, in respect of which the occurrence it was disclosed in the evidence to have taken place. He was represented by a counsel, who incidentally was also present during the course of the hearing of this appeal, and above all his answer to the general question shows that he fully understood the evidence produced against him and know what were the circumstances intended to be used by the prosecution against him for his conviction. Therefore, there is no force in the contention of the learned counsel that the appellant was not properly examined during the trial. This disposes of contention No. (viii) mentioned in Paragraph No. 15 above.

19. The argument of the learned counsel in respect of the curtailment of the evidence intended to be produced by the appellant in defence, is based on certain facts which I have already mentioned in Paragraphs Nos. 8 to 10 of this judgment. This objection will have to be looked at with those facts. The learned counsel very vehemently argued that the reason why the defence of the appellant was curtailed was that the learned Special Judge received a letter on 7th June 1967, from the Director of Basic Democracies, requiring the learned Special Judge to decide the case promptly because the decision in this matter was being awaited in so many offices and certain proceedings in those offices were pending due to the delay in this case. It is true that such a letter was written to the learned Special Judge and it is available at page 162 of the file. The learned counsel developed an argument that after the receipt of this letter, the learned Special ,fudge did not follow the correct procedure of trial and curtailed the defence of the appellant. in order to please the Government Department con cerned. The resume of facts given by me in Paragraph No. 10 above shows that it was earlier on 2nd June 1967, that the learned Special Judge had expressed his opinion that the appellant was bent upon using delaying tactics. Therefore, it cannot be said that that letter influenced the mind of the learned Special Judge in so far as his view about the intention of the appellant was concerned. There is some background even earlier to 2nd June 1967. The two witnesses, i.e., Sirajuddin and Muhammad Ali, about whom an objection has been taken in appeal, were included in the list of the prosecution witnesses from Karachi and in spite of best efforts by the Prosecuting Agency, the Government and learned Special Judge, those witnesses could not be examined as prosecution witnesses. They were, therefore, abandoned by the prosecution. It was in these circumstances that the appellant wanted to summon those prosecution witnesses so as to examine them in defence. Thus the prime facie opinion about the intention of the appellant formed by the learned Special Judge on 2nd June 1967, was not unfound ed. However, following the golden principle of giving as such opportunity as possible to an accused person for producing his defence, the learned Special Judge adjourned the case thrice for the appearance of these witnesses and every time he made a serious effort that the witnesses are served. From the examination of the summons and the reports thereon, already analysed by me in Paragraph No. 10 above, it appears that Sirajuddin witness knew about the dates of hearing in the case (in fact he was served twice); but avoided the appearance for reasons best known to him. It appears from the statement of P. W. 2 Abdul Jalil that Sirajuddin is a friend of the appellant. I have noticed that Sirajuddin was served for 11th August 1967; but he chose not to appear on that day without any excuse. About Muhammad Ali, the reports on the summons show that each time the amount was sent for his service. He was not trace able because of wrong address. It is sufficient to presume that the appellant intentionally gave wrong address, so that Muhammad Ali could not be served any how, I am satisfied that the learned Special Judge in spite of his correct opinion that the appellant was using delaying tactics, did make an honest effort to examine the said defence witnesses. Whatever the position may be, there is a clear statement made by the appellant on 11th August 1967, which has not been denied by the learned counsel before me, that he closed his defence. The learned counsel has tried to show that this state ment was made by the appellant under duress, there is no circumstance to support this contention. The appellant was not bound to make such a statement. He was represented by a counsel. I cannot believe the statement which is being made at the appellate state. It is possible that the appellant might have been compelled by the circumstances to close his defence. Those circumstances may be that according to his own estimate, there would be some limits to the delay he could engender in the trial by his own conduct; and further that he may have by then realised that the evidence intended to be produced by him might not help him in the long run. Therefore, in my judgment, the learned Special Judge did not arbitrarily curtail the defence of the appellant and the appellant closed it out of his own free‑will. There is another aspect of this matter. In order to do full justice in the matter, I asked the learned counsel as to what was the purpose of producing the said two persons in defence. Mr. Inayat Ilahi who, according to the learned counsel, conducted the case of the appellant stated that Sirajuddin would have supported Abdul Jalil (P. W. 2) in that Sirajuddin provided the funds to the appellant for his trip to Europe. Thus if his statement would have been recorded, the learned Special Judge would not have made the observation, which he did make in paragraph No. 6 of his judgment, referred by me in an earlier part of this judgment. That observation relates to the fact that the appellant used the illgotten money on his European tour. I agree with the learned counsel that that observation has been made without any legal evidence on the record. It was a surmise of the learned Special Judge; but that opinion or surmise cannot affect his opinion in respect of the other evidence which has been scrutinised by me and has been found sufficient by the learned Special Judge as well as by me for conviction in this case. Therefore, I exclude the said surmise or opinion by the learned Special Judge from consideration. In view of this and in view of the fact that Sirajuddin was not intended to add anything to what had already been stated by Abdul Jalil (P. W. 2) and also in view of the fact that I am not ready to use Abdul Jalil's statement beyond what he stated, the evidence of Sirajuddin was not necessary. About Muhammad Ali, it was stated by the learned counsel that he was a businessman of Karachi and had a share in some firm. This firm through Muhammad Ali deputed the appellant to represent them in their business in Europe. Muhammad Ali, if appeared, would have proved this fact. I have noticed from the file that a mass of material was collected by the prosecution against the appellant showing that some firms were created in order to camouflage the embezzlement of Government money. Names of those firms appear to be a "JARIS QUIDAS" "multi concern", "M. Siraj Din & CO.",, etc. There is one note book purporting to have been prepared by some person connected with the said business containing certain entries relating to the account of the appellant and the figures are very high. If that evidence would have been produced:, against the appellant and it would have been used against him, the statement of Muhammad Ali to contradict or explain that evidence would have been relevant. I looked into these documents placed on the record only in order to satisfy myself whether or not the evidence of Sirajuddin and Muhammad Ali was necessary for the correct decision of the case. In fact, I, considered the question of summoning these witnesses under, section 428, Cr. P. C., in case there was some substance in the contention that their evidence was necessary. During the course of arguments. I mentioned section 428, Cr. P. C. in my comments; but the learned counsel did not avail the opportunity of making a request verbally or by application to the High Court to act under that section for recording additional evidence. I, on my own, considering the rights of an accused person in respect of his‑, defence as very valuable, considered the question of recording, additional evidence in appeal without even the request, as noted above, by the learned counsel for the appellant; in spite of my, pointing out that provision. As shown above, I looked into the papers placed on the file to ascertain whether the evidence of these two witnesses was essential in the case. I came to the conclusion that if they appeared the, prosecution might be able to get some more material against the appellant, from these witnesses. Therefore, I refrained from acting under section

428. Cr. P. C., and did not summon them for examination at the appellate stage. That might also be a possible reason why the appellant abandoned these witnesses by making a statement before the learned Special Judge ; and also the reason for the learned counsel appearing for him in not making a request for summoning them at this stage. In this very connection, the learned counsel raised a technical objection that once a Court summons a witness in defence in a summons trial, it becomes junctus officio in so far as the question. of abandoning that witness is concerned. He has relied on the provisions contained in subsections (1) and (2) of section 244, Cr. P. C. It is true that section 244 (1) provides that the Magistrate shall, after recording the prosecution evidence, hear the accused and shall take all such evidence as he produces in his defence; but in subsection (2) it is provided that the Magistrate has the power to refuse the summoning of a witness, if the application for summoning him, in his judgment, "is made for the purpose of vaxation or delay or defeating the ends of justice and that such grounds shall be recorded by him in writing". I have noted from the orders of the learned Special Judge, dated: 2nd June 1967, 4th July 1967, 21st July 1967, and 11th August 1967, that he did come to the conclusion that the summoning of the said D. Ws. was for the purpose of vaxation, delay, and for defeating the ends of justice. He also gave reasons for that conclusion in those orders. In spite of this, the learned counsel contended that the opening part of subsection (2) of section 244, Cr. P. C. (as amended) enjoins upon the Magistrate that once he has summoned the witnesses, he cannot subsequently refuse to summon him. The words relied on are : "The Magistrate shall on the application of the complainant or accused, issue a summons to any witness directing him to attend or to produce any document or other thing, unless he considers that ..". The precise contention was that in this case the learned Special Judge‑having once summoned the two witnesses, could not subsequently hold that the application, for their summoning, was for the purposes, mentioned above. According to the learned counsel, the learned Judge could refuse the summoning of the witnesses on those grounds ; but after having once summoned them, be could not abandon them for those reason. I do not accept the argument of the learned counsel. Every time that a witness does not appear, the Magistrate will have to summon him again. The word "issue" in the opening part of that subsection includes also the concept of reissue of summons. Therefore, every time that the Magistrate will be called upon to reissue summons, he can consider the question of the propriety of an order he has to make, keeping in view the later part of that provision. According to the learned Special Judge as shown in the orders dated 2nd June 1967, upto 11th August 1967, I am convinced that even before summoning those witnesses, he was of the view that the application was made by the appellant for the purpose of vaxation, delay and defeating the ends of justice. He should not have summoned those witnesses is view of the opinion held by him. However, it appears that as a matter of abundant caution and as a concession shown to the appellant, he summoned those witnesses. There is nothing wrong or illegal, if he would have abandoned those witnesses on the grounds, mentioned above, subsequently ; because that power, as shown by me above, it: inherent in section 244 (2), Cr. P. C. Therefore, there is no force in this contention of the learned counsel either. I hold that neither the defence of the appellant has been arbitrarily curtailed; nor his statement closing the defence was obtained under any coercion or duress; and nor the witnesses summoned by him were necessary for his defence. Their evidence is not necessary so as to invoke the application of section 428, Cr. P. C., and above all the appellant has not, at all, been prejudiced.

20. The last two contentions Nos. IX and X in para. 13 above, i.e. those relating to the nature of offence committed by the appellant and the legality and propriety of the sentence, can be considered together because the contention in respect of offence committed was raised by the learned counsel in connection with the sentence. At first, the learned counsel raised the contention that the appellant has been punished twice for the same act which is punishable under two provisions of law; therefore, invoking the provisions of section 26 of the General Clauses Act, he argued that the sentence is illegal. It is true that section 26 of the General Clauses Act provides that if an act or omission constitutes offence/offences under two or more enactments, then the offender though can be prosecuted under either or any of those enactments, but cannot be punished twice for the same offence. Applying this provision, the learned counsel submitted that the appellant has been awarded nine years' R. I. under section 409, P. P. C. as well as under section 5 (2) of the Act (II of 1947); therefore, the sentence under section 5 (2) of the Act (II of 1947) is illegal because of section 26 of the General Clauses Act. He further pointed out that under section 5 (2) of the Act (11 of 1947), the maximum sentence is seven years' R. I.; therefore, the sentence is illegal to the extent of two years in excess of seven years. He further contended that under section 33 of the Criminal Procedure Code only one‑fourth of the period of imprisonment as substantive sentence can be awarded in default of payment of fine. The sentence so awarded in the present case is two and a half years" R. I. which goes beyond one‑fourth of seven years' R. I. provided for the offence under section 5(2) of the Act (II of 1947); therefore according to the learned counsel, this sentence in default of payment of fine is also illegal. The learned counsel in support. of his contention cited two cases, namely: Ali Abbas v. The State P L D 1959 Kar. 56; Niaz Ali v. The State P L D 1961 Lah.

269. The argument of the learned counsel is not based on the correct appreciation of the facts about sentence imposed in this case. The appellant has been found guilty, as mentioned in paragraph No. 50 of the judgment of the learned Special Judge under section 409, P. P. C. read with section 5 (2) of the Act (II of 1947) and has been sentenced accordingly under section 409 P. P. C. My reading of the finding of guilty mentioned above is that the appellant has been found guilty under both the provisions of law, i.e., under section 409, P. P. C. as well as under section 5 (2) of the Act (II of 1947). In fact, he was tried for both the offences. This is apparent from the accusation put to the appellant under section 242, Cr. P. C., wherein both the provisions are specifically mentioned. What the learned Special Judge appears to have done is that he did not pass any separate sentence under section 5 (2) of the Act (II of 1947) and passed the sentence only under section 409, P. P. C. Looking at this in circumstance, in the manner indicated above, the sentence of nine years' R. I. and a fine of Rs. 70,000 and in default whereof two and a half years' R. I., are not at all illegal. The objections o the learned counsel based either on section 26 of the General Clauses Act or on section 33 of the Criminal Procedure Code or for that matter on section 65 of the Pakistan Penal Code, which also relates to the quantum of imprisonment which can be ordered in default of payment of fine, have, therefore, no force. The learned counsel also argued that perhaps the appellant could not be convicted under two different laws mentioned above. There is no force in that contention either. The words of section 26 of the General Clauses Act are very clear. It prohibits punish ment under two different enactments; but it does not prohibit section 71 of the Pakistan Penal Code which provide that (he offences under the two enactments are to be treated as independent offences and one would not be impliedly considered to have abrogated by any provision of the other including that of sentence. Thus there is no question of applying the general principle of interpretation of penal statute, as argued by the learned counsel. My view expressed above has the support of an authority cited by Mr. M.

1. Ghaznavi, the learned counsel appearing for the State, and that is The State v. N. M. Puri and others (P L D 1959 Kar. 392). Having been confronted with this situation, the learned counsel then argued that even if the prosecution version is accepted, the appellant did not commit any offence under section 409, P. P. C. His precise contention was that the cheque being a valuable security, it must be treated to have been entrusted to the Commissioner who is the drawer and the payee of the cheque; therefore, no entrustment to the appellant has been proved in this case. The learned counsel has ignored the fact that the entrustment in this case is not of the cheque alone. The first entrustment is that of the cheque book. It has been proved that the appellant prepared the cheque from the cheque book over which he had the dominion. He dishonestly used that cheque book by preparing a cheque out of it in violation of his duty to and implied contract with the Government, touching the discharge of a trust which the Government reposes in all its employees. So long as he has dominion over the cheque book and also on the cheque, it cannot, be said that the same have not been entrusted to him and that the entrustment is only to the Commissioner. The allegation is not that the Commissioner dishonestly used this cheque. The allegation and proof is about the use of the cheque book and the cheque by the appellant. Therefore, there is no question of any such technical benefit going in favour of the appellant, by making the Commissioner a notional trustee of the cheque. The learned counsel also ignored the fact that it is not only a question of dishonestly using a valuable secu rity but the allegation is also of dishonestly misappropriating and converting to his own use, by the appellant, of the money, which he received from the bank, after encashing the cheque. According to the express as well as implied contract and duty, he was bound to disburse that amount for and in respect of the Government need only. When he received the money from the bank, the trust was immediately created in respect of the same and if the appellant failed to discharge the legal contract touching that trust, be has committed an offence under section 409, P. P. C. Throughout the arguments, the learned counsel did not argue about or contest the factum of misappropriation of Rs. 60,000 which was obtained from the State Bank. Moreover, there is ample evidence, as discussed by me above, to show that the said amount has been misappropriated. Illustration (e) to section 405, ; P. P. C. (definition of criminal breach of trust) applies fully to the present case. It is reproduced below for convenience sake:‑ "A, a revenue officer, is entrusted with public money and is either directed by law, or bound by a contract, express or implied, with the Government, to any into a certain treasury all the public money which he holds. A dishonestly appropriates the money. A has committed criminal breach of trust. Therefore, in my view, the offence under section 409, P. P. C. has been fully brought home to the appellant. The appellant has been rightly tried, convicted and sentenced under the correct provision of law and there is nothing in any law or principle of law which can help the appellant in this behalf.

21. The question of sentence in this case, otherwise, requires consideration on its own merits. The learned counsel for the appellant has submitted that the appellant is a young man of 30 years of age; has five children, all daughters the eldest of whom is 9 years of age; and is the only son of his old parents. On general principles these are, by no means, the grounds for a lesser sentence in an offence like the present one. The fact that the appellant has been sentenced to a fine of Rs. 70,000 and in default whereof he has been ordered to suffer further rigorous imprison ment for two and a half years, has to be kept in mind. I have no intention of nor there is any justification for reducing that sentence. Section 9 of the West Pakistan Criminal Law (Amendment) Act, 1963, provides that on conviction of an offence triable under that Act, a sentence of fine, not less than the gain found to have been derived by the accused, shall have to be imposed. The appellant has been proved to have derived a gain of Rs. 60,000, in this case. The sentence of fine of Rs. 70,000 is not at all disproportionate or excessive in such like case. Therefore, I do not reduce this sentence. The maximum imprisonment under section 409, P. P. C. being ten years, two and a half years' R. 1. is the one‑fourth which can be imposed under the law in default of payment of fine. Thus that sentence is legal and also proper and I do not reduce that either. However, the sentence of rigorous imprisonment of nine) years' R. I. under section 409, P. P. C. appears to be on the side of severity. The investigation and trial of the case has taken almost seven years. The appellant has lost his job and has to suffer in position in society for the whole life. The learned of Special Judge was also of toe view that the sentence on the face of~ the judgment was severe. He, however, justified it in the following observation made in para. 50 of his judgment :‑ "As discussed above and in my Parawise comments under the statements of the P. Ws., I hold the accused guilty under section 409, P. P. C. read with section 5(2) of the Prevention of Corruption Act, 1947 and accordingly sentence him to undergo nine years' R. I. and a fine of Rs. 70,000 (Seventy thousand) or in default to suffer further 2 years' (Two years and six months') R. I. The tentence on the face of the judgment seems to be a bit severe but if the facts of the case are looked into, it will be found that he betrayed the confidence of the Government and his immediate officers put in him and misappropriated the amount of Rs. 60,

000. The Government was kept deprived of the income and the interest on the amount of Rs. 60,000 from 1961 till today, i.e. 1967. Further More if such like accused are dealt with leniently and are punished with a nominal punishment, it may result in similar other offences and then there will be no safety to the Government Funds." The use of the words "such like accused" has some slight connection with, and has to a little extent been influenced by, the observation of the learned Special Judge in para. 6 of his judgment that the accused after encashing the cheque went on a pleasure trip to Europe and spent the illgotten money on this trip for his own as well as for his friend's (P. W. 2 Abdul Jalil) pleasure. I have already held that there are no basis in the prosecution evidence for such an observation which is nothing more than a surmise. For that reason I have kept cut of consideration the findings in the whole of para. 6 of the learned trial Court's judgment. If the mind of the learned Judge was, even to the slightest extent, influenced by those observations, and the same having been kept out of consideration for purpose of the determination of the guilt or otherwise of the appellant, it is both just and necessary that due benefit be given to him, in respect of the exclusion of the said observations, in matter of sentence also. Moreover, I have noticed from the evidence placed on the file that the system of maintenance of accounts and the custody of funds in vogue in the relevant office, at the time the appellant committed this offence, was such that a weak‑minded person would have been tempted to commit the offence. It is surprising that huge sums of money were allowed to be withdrawn by a single person. I have noticed that the security obtained from a person who was to handle huge sums (some time running into lacs) was comparatively much less than was needed. There was no proper, continuous or even occasional checking, by any superior or fellow officer of the appellant, on the records, books, of accounts or cash, which were being handled by the appellant In such circumstances, undoubtedly, if the appellant committed the offence, he is responsible for it and he must be punished for that. But if the controls were loose enough as to give temptations to a person like the appellant, who does not appear to be strong willed, the responsibility can, in my judgment, be divided; at least for the purpose of considering the quantum of imprisonment awarded as substantive sentence to the appellant. If proper care would have been taken, this embezzlement could have been very easily prevented. A very significant note, in the nature of a prologue to section II‑Part I (Embezzlement of Rs. 60,000) of the audit report, was made by the person who audited the accounts and detected the embezzlement (P. W. 11 Abdul Qayyum Khan) in connection with, what I have said above, the nature of controls and the possibility of prevention of the crime in the present case. After having mentioned as to how he detected this embezzlement, he observed as follows : "The embezzlement of Rs. 60,000 could be avoided or detected earlier had :‑ (1) The Drawing Officer while recording endorsement on the back of the cheque ascertained that entry of the cheque has been made on the receipt side of the Cash Book. (2) Kept the cash book to be closed daily. (3) Kept the Cheque Book in his personal custody. (4) The Pass Book been sent to the Treasury regularly for compliance." The opinion of the auditor, to my mind, is not beyond the point. May be that more measures than those suggested by him can be adopted in different offices for protecting and safeguarding Government interests in so far as the public money is concerned. But, in any case, the crime could have been prevented if proper precautions and controls would have been taken and applied. It is a pity that in many cases, embezzlement of huge sums are not detected till, some time after the occurrence, the audit takes place. There is need for some serious thinking on the question of maintenance and custody of accounts and account books and the measures for prevention of crime relating to public money in the public offices. If the preventive measures are tight and fool proof, may be that the embezzlement do not then take place frequently and of huge amounts; and when they do take place, they are detected soon. Some of the public money could thus be saved or recovered back if the offence is immediately detected. Depending on and waiting for an audit party to come after several months or years and then to detect some embezzlement, amounts to closing the eye on something, which is of most vital public interest and thus is very serious matter. In view of my discussion of the whole subject of sentence, in my judgment, the sentence of nine years' R. I. should be reduced to six years' R. I. in this case and I order accordingly. The sentence of fine of Rs. 70,000 in default whereof further rigorous imprisonment of two and a half years is maintained. With the above modification in respect of the substantive sentence of imprisonment only, this appeal is dismissed. S. Q. Sentence reduced.