P L D 1954 Federal Court 263 (PLP)

AKRAM, J.

These two connected appeals, No. 42 of 1953 by Syed Ale Ali Jaffary and No. 41 of 1953 by Abdul Shakoor, preferred to this Court by our leave, arise out of a judgment of the Chief Court of Sind, whereby the sentences of fine of the appellants under section 120-B and 420 Penal Code imposed by the Sessions judge were set aside and the term of imprisonment of appellant Jaffary was reduced from 2 year to 1 years under each count, but otherwise the appeal was dismissed. Broadly stated, the case for the prosecution was this appellant Jaffary, Assistant Rehabilitation Officer, incharge of Railway Loco Shed Sukkur ; appellant Abdul Shakor, Proprietor Amin Stores; Gobind Ram, Price Controller and Abdul Alam, approver, in conspiracy with one another obtained delivery of some 6,000 yards of Bafta cloth worth Rs. 3,960-10-0 from the shop of Dada Limited on 25th Juk 1948, against permit Exh. No. 6, issued at the directions of the District Magistrate, Sukkur (P. W. 4) for distribution amongst the flood refugees, 'but misappropriated the sama committing thereby the offences of conspiracy to cheat and cheating ; that on P. W. 4 subsequently writing to appellant Jaffary enquiring about the Bafta cloth, he sent the reply that the cloth had not been supplied to the Loco camp not received by him for distribution (Exh. 4 B) ; that thereafter on the 5th October, 1943, Haji Muhammad Sulaiman, Anti -Corruption Inspector lodged the information at the Poli<-0 Station against the two appellants and Gobind Ram and Abdul Alam, but as Gobind Ram had absconded and Abdol Alam was made an approver, the case was proceeded with against the appellants only. The defence of appellant Jaffary was that the permit Exh. No. 6 was made out not in his favour, but in favour of "Loco Shed"; that he knew nothing about the missing Baft,: cloth. The defence of appellant Abdul Shakoor was that the Bafta cloth though brought to his godown was taken away after about an hour by Gobind Ram saying that the cloth was wanted for distribution amongst the refugees at Shikarpur. It appears that at the desire of Lady Hidayatullah, the District Magistarate, Sukkur (P. W. 4) gave verbal instruc tions to appellant Jaffary and Gobind Ram to obtain some cloth at Government expense and distribute the same amongst the refugees at the Loco Shed ; that Gobind Ram there upon issued permit Exh. No. 6 on 24th August 1953 (24-7-48 ?), for supplying 6,000 yards of Bafta cloth to the Loco Shed at Sukkur ; that on the next day i.e., 25th August 1953 (25-7-48 ?), Gobind Ram fabricated an unauthorised permit Exh. 7, and then alongwith approver Abdul Alam, who was asked by appellant Jaffary to accom pany Gobind Ram, went to the shop of Dada Limited and obtained therefrom 6,000 yards of Bafta cloth covered by Exh. 6, as also some other cloth covered by Exh.

7. We art not, however, concerned here with the cloth covered by Exh. 7, and the receipt of it Exh.

8. For the cloth covered by Exh. 6, Abdul Alam, signed the recepit Exh. 10 in the following words :- "A. Allam Khan for Mr. Jaffary Khan, hr di:jrtoc, Flood Refugees Camp, Sukkur", that all the cloth was thereafter taken in a truck to Amin Stores and the Bafta cloth covered by Exh. 6, was handed over to appellant Abdul Shakoor for cutting it into pieces of 2 yards each; that Gobind Ram and Abdul Alam then went to the house of K. B. Nizamuddin with the other cloth covered by Exh. 7, and informed appellant Jaffary that the Bafta cloth was made over to Amin Brothers; that some question having arisen with regard to the number of pieces supplied under permit Exh.

7. Gobind Ram, Abdul Alain and Jaffary went to the shop of Dada Limited at about evening and there Jaffary and Gobind Ram saw and examined Exhs. 6, 10, 7 and

8. The real point in the case seems to be whether tho Bafta cloth was misappropriated by the appellant. With regard to this matter, in the course of his evidence the District Magistrate of Sukkur (P. W. 4) whose evidence before the Committing Magistrate was transferred under section 33 Evidence Act to the Sessions file, had stated as follows :- "I ordered some cloth to be distributed to Flood Refugees under her instructions. I think I instructed Mr. Jafferv and Gobind Ram to obtain the cloth. I think the name of the cloth was Bafta. I think I ordered for one lot of cloth. That cloth was brought and was distributed by Lady Hidayatullah. I know Haji Sulaiman who was Anti-Corruption Inspector there. He saw me under the impression that the cloth had been misused. He said that was his impression. I gave him a notice to the Dada Limited for assistance in his inquiries. There was a camp at Shikarpur in the Eye Hospital. Lady Hidayatullah went there for distribution of cloth. Gobindram was in charge for giving permit for the whole district., There may possibly be details of the amount of cloth distributed in both the camps but I do not remember it". Ali Hassan (P. W. 3) who succeeded Gobind Ram as Price Controller, deposed inter alia in the Sessions Court as follows: "Lady Hidayatullah had come to Shikarpur also and distributed cloth there. Some cloth was sewn and some was unsewn. She had distributed bafta, sheet and one or two more varieties of cloth. She had purchased all this cloth she distributed at Shikarpur, from Shikarpur Syndicate. In addition she had brought some cloth with herself also". The statements in the judgment therefore

"The evidence of witness Ali Hassan, the Price Control Mukhtiarkar, who has taken the place of Gobindram when Gobindram absconded, showed that all the cloth which had been supplied to Lady Hidayatullah for distribution had Shikarpur had been obtained from the Shikarpur Syndicate. " "But the evidence quite clearly established that the Bafta cloth was not delivered to Lady Hidayatullah at all", seem to be obviously incorrect. Whether or not the Bafta cloth was distributed at Shikarpur by Lady Hidayatullah could have been easily ascertained by the examination of Lady Hidayatullah or perhaps even of the Private Secretary in attendance. If any difficulty was felt in summoning them to Court their statement could very well have been taken on Commission and that would have put all arguments to an end. The failure to do so clearly raises a presumption under section 114 Evidence Act against the prosecution. Unless there is cogent evidence in proof of the fact that the cloth in question was not disposed of either at Sukkur or Shikarpur by Lady Hidayatullah, the charges laid against the appellant cannot be held to have been substantiated. The observation in the judgment "that if in fact the cloth had been taken away by Gobind Ram for the purpose of distribu tion to the refugees at Shikarpur, this fact could very easily be proved" seems to place the duty of proving the distribu tion of the cloth upon the appellants, which is plainly erroneous. The proof of a criminal case does not depend upon the absence or want of any explanation on the part of the accused but upon the positive evidence of his guilt as given by the Crown. I further think that the introduction C of a mass of irrelevant evidence relating to the cloth covered by permit Exh. 7 and the receipt Exh. 8, has served to obscure the real issue in the case to the prejudice of the appellants. In our opinion the evidence in the case is not such as to sustain the conviction and the sentences of the appellants. I would, therefore, allow the appeal and set aside the convic tion and the sentences passed upon the appellants. SHAHABUDDIN, J.

I agree that these appeals should be allowed and the appellants acquitted. I should, however, like to add some observations of my own. The charge on which the appellants were tried was as follows :- "That you on or about the 24th and 25th day of August 1948 at Sukkur, you Jaffary being a public servant, Abdul Shakoor, proprietor of Amin Store, along with Allana approver, and Gobindram then Price Control Mukhtiarkar entered into a conspiracy to cheat the Government and in pursuance of that conspiracy, Gobindram issued a forged permit for 6000 yards of Bafta cloth on which Abdul Alam and Gobindram obtained the cloth from Dada Limited ostensibly for Government use intending thereby to cheat. (either Dada Limited or in the alternative) the Government ; That further in pursuance of that conspiracy you Abdul Shakoor retained the said cloth which was subsequently mis-appropriated by you all conspirators and thereby you committed an offence punishable under sections 120-B, 468 and 420 I. P. C. read with the Prevention of Corruption Act 2 of 1947 and within the cognizance of Sessions Court, Sukkur". As the permit for Bafta cloth was issued under the instructions of the Collector, there was no question of forgery and the appellants were, therefore, not convicted under section 468 P. P. C. Regarding the conviction under sections 120-B and 420 P. P. C., it was argued in the Chief Court that the charge of cheating was not made out and facts relating to the offence of cheating were not sufficiently indicated in the charge. In disagreeing with this contention the learned judges pointed out that the order for payment for the cloth was obtained from the Collector on a false endorsement that the cloth had been distributed amongst the refugees. But having regard to the facts of the case it appears to me that a charge for mis-appropriation would have been more appropriate. However for proving `cheating' or `misappropriation it was necessary to establish beyond reasonable doubt that the cloth in question was in fact mis appropriated. It was contended for the appellants before us that this had not been done and that the very basis of the conviction of the appellants, therefore, disappeared. This contention in my opinion must prevail. The case for the prosecution was that the cloth was given to appellant Shakoor by Gobindram in pursuance of the conspiracy and that he retained it and subsequently he and the other conspirators misappropriated it. This appellant admitted that he received the cloth but his defence was what he had stated on 6th October 1948 in his statement recorded under section 164 Cr. P. C. According to Wahid Ahmad (P. W. 9) the S. I. P. Sukkur, this appellant was treated as a witness at that time. The version in that statement was to the effect that Gobindram and the approver brought the cloth to his shop, that Gobindram while giving the cloth to him asked him to have it cut into pieces of 2J yards each as it was to be distributed but that two hours later he came and took it back saying that it should not be cut up as it was meant for Shikarpur. At the trial he stuck to this version and examined in support of it two witnesses whom the Courts below disbelieved. But his version finds corroboration in the evidence for the prosecution itself. The approver deposed that while giving the cloth to this appellant Gobindram said that Collector's orders were that it should be cut into pieces of 2J yards each and that his men would come and take them. There is no direct corroboration in the prosecution evidence about Gobindram taking the cloth back saying it was required for distribution at Shikarpur; but the evidence of Ali Hassan who was an Assistant Rationing Officer at Shikarpur at about the relevant time indicates that Bafta cloth was taken by Lady Hidayatullah to Shikarpur which she visited after visiting Sukkur. Ali Hassan deposed as follows :- "I was in Shikarpur as Assistant Rationing Officer, when the floods came. About 4-5 camps were started for flood sufferers. There was one camp in Eye Hospital. Lady Hidayatullah had come to Shikarpur also and distributed cloth there. Some cloth was sewn and some was unsewn. She had distributed Bafta, sheet and one or two more varieties of cloth. She had purchased all this cloth she distributed at Shikarpur, from Shikarpur Syndicate. In addition she had brought some cloth with herself also. She had come to Shikarpur after she had visited Sukkur. Re-X. Lady Hidayatullah had brought Bafta, sheet and other varieties with herself". It is in the evidence of Mr. Ray that Lady Hidayatullah went to the Shikarpur Camp and in re-examination he added that he did not remember if he ordered any cloth to be distributed at Shikarpur. This evidence which clearly supports the version of appellant Shakoor was not carefully considered by the Courts below. In dealing with the case against Shakoor the Sessions judge referred to the evidence of the approver as proving that the cloth was given to this appellant but he did not take into consideration the approver's evidence that Gobindram told Shakoor that he would send his men to take back the cloth and that the cloth had to be cut up under Collector's orders. The learned Judges of the Chief Court observed that this evidence was given by the approver to exculpate himself ; but at no stage had the approver impli cated himself. What he deposed to was what he could have stated as an ordinary witness and yet pardon was tendered to him. The only circumstance which could be taken against him was that he signed the cash memos. on behalf of Jaffery, but he explained that he did so at the instance of Gobindram. His having taken the cloth from Dada Ltd. has also been explained by him by saying that it was handed over to Shakoor. That being so, there was no need for him to perjure himself in respect of what Gobindram told Shakoor. If in spite of the conditional pardon he had given evidence to exculpate himself then his statement that cloth was delivered to Shakoor should also be discarded in which case the version of Shakoor should be accepted as a whole especially when it is probable. As for Ali Hassan's evidence the Sessions judge observed :

"But this is clearly incorrect and the obliging statement was made for the first time in this Court. This is also negatived by his earlier statement in the same deposition that all the cloth distributed at Shikarpur was purchased from Shikarpur Syndicate". But it is significant that in respect of a statement which the approver made against Jaffary for the first time at the trial the same judge rejected the contention that that was an improvement by observing that ostensibly no question was put to him when-his earlier statements were recorded, The same argument would apply to Ali Hassan's evidence. He did not mention this version before the Committing Magistrate as usually at that stage cross-examination is not detailed. The other reason viz. that in the next earlier sentence he said that all the cloth was purchased at Shikarpur is too artificial to be considered. The deposition should be read as a whole. Further it is significant that the statement that Lady Hidayatullah brought Bafta cloth with her was not mentioned in cross-examination but was elicited in re-examination. There is nothing to show that he was interested in the appellants. In the circumstances it seems hardly reasonable to regard his evidence as having been given to oblige the appellants. That the learned judges of the Chief Court did not con sider the entire evidence of this witness on this point is clear from their following observations: "It is perfectly clear that no cloth was ever given by the Collector of Sukkur to Lady Hidayatullah for distri bution at Shikarpur and we have already referred to the evidence of Ali Hassan that the cloth distributed by Lady Hidayatullah at Shikarpur was in fact supplied by the Shikarpur Syndicate". The portion of the evidence of Ali Hassan quoted earlier clearly shows that the above statement about what he said is not correct. The statement that it was perfectly clear that no cloth was given by the Collector for distribution at Shikarpur also seems to be incorrect. What Mr. Rave has deposed is "I do not remember if I ordered any cloth to be distributed at Shikarpur". This witness's memory regarding this incident does not appear to have been strong. Earlier in his evidence he deposed that the Bafta cloth he had ordered was bought and distributed by Lady Hidayatullah. In its context it means the distribution was at Sukkur but even according to appellant Jaffery there was no distribution of this cloth in his camp. Mr. Ray however passed the bill for payment. There is nothing inherently improbable in cloth purchased for Sukkur Camp having been sent on for distribution at Shikarpur. That at about that time there was no much of a system regarding distri bution of cloth amongst refugees is clear from the following statements of Anti-Corruption Inspector and Ali Hassan. The Inspector deposed that he did not know if any record about the distribution of cloth was maintained and that he did not see such record while Ali Hassan explained that prior to his joining at Sukkur no register for permits was maintained. In the First Information Report it was stated that Ghaffar a servant of Shakoor was a witness to the disposal of cloth by Shakoor, but Ghaffar was not examined for the prose cution. The Anti-Corruption Inspector did not explain in his evidence why he did not examine him, but after his evidence was closed the Court recalled him the same day and in answer to its questions the witness stated that Ghaffar was 'concealed' by appellant Shakoor and was not available. He did not explain what steps were taken to secure him or on what information he based the statement that appellant Shakoor `concealed' that witness. Nor did the Sessions Judge ask for those particulars. Apparently he was not impressed by this evidence for he did not put this matter to appellant Shakoor, when he questioned him under section 342 Cr. P. C. ; nor has he relied on it in his judgment. On the other hand he has blamed the Inspector for allowing Ghaffar to disappear. But in the Chief Court when it was argued that the non-examination of Ghaffar was a fatal defect in the prosecution case the learned judges observed that he was not traceable and that his disappearance did not help the appellants, and in that connection they quoted from the evidence of the Inspector the explanation for not citing Ghaffar including the statement that Shakoor had `concealed' him. Later in the judgment they observed: "The circumstances that statements made by Abdul Ghaffar, a servant of Shakoor and by Ahmad Ali the driver of the truck had led to the detection of this offence and that these two persons had disappeared after figuring so prominently during the investigation by the police, is also not without significance". This indicates that the learned Judges were influenced to some extent by the statement of the Inspector that Shakoor con cealed Ghaffar, overlooking the fact that to Shakoor this part of the case was not put when he was questioned under section 342 Cr. P. C. There seems to be nothing on record to show that Ghaffar figured prominently in investigation or that his statement led to detection of this offence. Neither the anti-Corruption Inspector who started the investigation nor Wahid Ali S. I. of Sukkur had deposed to that effect. It is clear that the version of appellant Shakoor receives support from the prosecution evidence itself and what is more Ali Hassan's evidence makes it probable that the cloth in question was taken to Shikarpur for distribution. In the circumstances it cannot be said that the case for the prosecu tion that the cloth was misappropriated has been established beyond reasonable doubt. In this view it is unnecessary to consider the rest of the evidence as once misappropriation is not proved the case for the prosecution has to fail. I would, therefore, set aside the convictions and sentences imposed on the appellants and acquit them. A. H. Accused acquitted.