P L D 1952 F (PLP)

ABDUL RASHID, C. J.-This is an appeal, by special leave, against a decision of the High Court of Judicature at Lahore, convicting the appellant Rahim Bakhsh under section 406 of the Pakistan Penal Code, and sentencing him to one year's rigorous imprisonment. The case for the prosecution is that on the 15th March, 1949, Rahim Bakhsh was working as a Treasurer of the Taunsa Sub-Treasury. Mr. D. M. Dean, Naib-Tahsildar, was in charge of the Sub-Treasury as Sub-Treasury Officer. At about 3-0 p.m. Chaudhary Muhammad Nawaz, Revenue Assistant (P. W. 1) came up to Taunsa on a surprise visit. ~3e at first checked the currency chest and found it correct then he checked the funds in the double lock and found that the currency notes of the three different currencies were all mixed up. Rs. 10,300 had been transferred to the single lock on the morning of the 15th of March, 1949, and they were, in the exclusive custody of the appellant. The appellant was asked to bring all the money of the single lock to the Sub-Treasury including the income of the day. During the checking of this money, it was found that there was some shortage, and in view of this, the Revenue Assistant started a thorough checking of the entire Treasury. The accounts of the Treasury were in such a chaotic condition that the Revenue Assistant had to send telegram to the Treasury Officer of Dera Ghazi Khan to send the Head Treasury Clerk for a thorough examination of the account. The Revenue Assistant carried on the checking until midnight and could come to no definite conclusion about the shortage. At that time, however, Rahim Bakhsh, Treasurer, admitted that Rs. 1,468 were short as he had used this amount for his private purposes. According to Mr. Dean, Naib-Tahsildar, this admission was Made after midnight. The Revenue Assistant, however, states that the admission was made "late in the evening" of the 15th March. Rahim Bakhsh undertook to make up the deficiency. When this happened, the Revenue Assistant closed the Treasury, kept one key with himself, while the other key was given to the accused. The accused brought a sum of Rs. 1,468 immediately, and this was placed in the double lock in the presence of the accused. In order to do so, the Treasury was re-opened after mid night. Un the morning of the 16th, the checking was restarted with the assistance of the Head Treasury Clerk. As a result of a careful scrutiny, it was finally found that a sum Rs. 3,299 14-0 was missing from the double lock. On the 19th of March, 1949, the accused deposited. This amount of Rs. 3,299 14-0 in the Sub-Treasury. This amount, according to the Revenue Assistant, was deposited by the accused voluntarily, while according to Mr. Dean, Naib-Tahsildar, it was deposited by the accused under the orders of the Revenue Assistant and not voluntarily. The allegation against the accused was that on or about the 15th of March, being a servant of the Dera Ghazi Khan Central Co-operative Bank as a Sub-Treasurer of the Sub Treasury, Taunsa, and in such capacity being entrusted with Government money, he committed breach of trust with respect to two sums of Rs.1,468 and Rs. 3,299-14-0, res pectively. The Trial Court acquitted the appellant on the 23rd of July, 1949. It was held that it had not been established that the accused has misappropriated any sums of money, and that it was only under pressure and promises of non-prosecu tion that he had been made to pay up the amount of Rs. 4,767 14-0 alleged to have been misappropriated by him. The shortage in the Treasury was probably due to causes other than misappropriation. It was further held by the Trial Court that the admission or confession alleged to have been made by the accused before the Revenue Assistant was inadmissible in evidence and could not be taken into considera tion on that account. The provincial Government preferred an appeal against the order of acquittal. The learned judges of the High Court upheld the order of acquittal in respect of the sum of Rs. 3,299-14-0. The order of acquittal was, however, reversed in respect of the other item amounting to Rs. 1,

468. It was in respect of this sum that the petitioner was convicted under section 406 of the Pakistan Penal Code and sentenced to one year's rigorous imprisonment. The judgment of the High Court, in respect of the short age of Rs. 1,468, is a short one, and might be reproduced in extenso :- "There is no doubt that the shortage of Rs. 1,468 was in the cash which was entrusted exclusively to the respondent and he admitted that he had converted this sum to his own use. We therefore, find him guilty of having committed criminal breach of trust in respect of this amount and convict him under section 406 of the Pakistan Penal Code. In view of the fact that he has made good the loss caused to the Government, and it was largely his own confession which cleared the confusion we consider that the sentence of one year's rigorous imprisonment would meet the requirements of this case. We accordingly accept the appeal, set aside the order of acquittal, and convicting the respondent under section 406 of the Pakistan Penal Code sentence him to one year's rigorous imprisonment." It is obvious from the above quotation that the High court based the conviction of the appellant solely on the admission made by him before the Revenue Assistant at about midnight on the 15th March , 1949. The principal question that requires determination, therefore, is whether this admission, which forms the basis of the conviction of the appellant. Is admissible in evidence. In my opinion, the admission of the appellant alleged to have been made before Ch: Muhammad Nawaz, Revenue Assistant, cannot be taken into consideration in convicting him. This admission is stated by Mr. Dean to have been made at midnight on the 15th March, 1949. During the course of the trial, the appellant was examined twice by the Court, once at the start of the prosecution case on the 11th of May, 1949, and a second time on the 16th of July, 1949, after the prosecution evidence had been concluded. He was not asked on either of these occasions whether he had made any admission in respect of the misappropriation of Rs. 1,468 at midnight on the 15th March before the Revenue Assistant. It would be most unfair to the accused; and it would amount to a violation of a fundamental principle of natural justice if he is convicted solely on the basis of an admission alleged to have been made by him without calling his attention to the admission and asking for his explanation when he was examined in Court. Reference may Le made in this connection to the following observations which occur in the judgment of the Judicial Committee of the Privy Council in the case of Dwarka Nath Karma and another v. The Emperor, A. I. R. 1933 P. C., p.124. "The stress laid upon the failure to explain the absence of blood is subject to two criticisms. In the first place, the learned Chief Justice assumes that the doctor found no blood in the peritorial cavity which their Lordships venture to think is by no means established by the post mortem report. In the second place, it appears to their Lordships that in this res pect the accused doctor has serious ground to complain of his treatment. Section 342, Criminal Procedure Code, provides that for -the purpose of enabling the accused to explain any circumstances appearing in the evidence against him the Court shall question him generally on the case after the witnesses for the prosecution have been examined. In pursuance of this section one of the puisne judges put ques tions to the doctor. The only questions put on the contents of the post mortem report were as to the congestion of some of the organs, the cause of ante-peristalsis, and the omission from the report of the condition of faecal matter, and clots of blood at the orifices of the ruptures deposed to at the Sessions. The other question is a general question whether there was anything else he desired to say about the charges or the evidence. The learned Chief Justice told the jury that the absence of blood in the body cavity was a vital point. If so it is plain that under section 342 of the Code it was the duty of the examining judge to call the accused's attention to this point and ask for an explanation. Probably the departure from the statutory rule was due to the fact that one Judge examined the accused while another sum med up. But it deprives of any force the suggestion that the doctor's omission to explain what he was never asked to explain supplies evidence on which the jury should infer that six months before he had consciously abandoned a theory which four months before that he honestly held. I am in respectful agreement with the observations quoted above. The admission of the accused before the Revenue Assistant on the 15th of March must be excluded from the evidence on the ground that the accused cannot be prejudiced by his omission to explain what he was never asked to explain throughout his trial. The admission before the' Revenue Assistant could not, therefore, form the basis of conviction, and the learned Judges of the High Court should have placed no reliance on this admission. There is ample authority for the proposition that where the confession of the accused has been made an integral and substantial part of the prosecution case, the failure of the Judge to question the accused about it is clearly a serious omission which cannot be cured by the provisions of section 537 of the Criminal Pro cedure Code. The failure of the Trial Court to question the accused about his confession would amount to an infringe ment of the provisions of section 342 of the Criminal Pro cedure Code and the confession will have to be excluded from consideration in determining the guilt of the accused. Where such a confession or admission is the whole basis of the judgment convicting the appellant, the failure to question him about it must be held to have prejudiced his case substantially. The admission of the appellant on the 15th of March is inadmissible in evidence on another ground also. The allega tion of the prosecution is that the appellant had misappropria ted a sum of Rs. 4,767-14-0. It is clear from the evidence on record that the appellant was recorded to make up the deficiency as soon as possible. Within a short period of the discovery of this misappropriation, the appellant was subjected to such pressure that be had to sell away his movable and immovable property in order to make up the loss. The Trial Court has commented on this aspect of the case in its judg ment and has held that under pressure and promises of non -prosecution the appellant was made to pay up the amount of Rs. 4,767-14-0 alleged to have been misappropriated by him. It was deposed by Allah Ditta (P. W. 5) that the appellant went to him on the 15th of March, 1949, at about 11-0 p.m. and borrowed some money from him, as he had to make good the loss that the Government had sustained. The witness further deposed that the Sub-Inspector of Police, and the Naib Tahsildar, Sanghar, told the accused in his presence on the 16th or the 17th of March, 1949, that he should make up the deficiency, and that he would be discharged. The Revenue Assistant states in his evidence that the entire sum was paid by the accused willingly, and that no coercion was used against him. When we examine the evidence of Mr. Dean, Naib- Tahsildar, we find that the accused was made to deposit the sum of Rs. 3,299-14-0 on the 19th of March, 1949, under the orders of the Revenue Assistant. It appears tome, on a careful consideration of all the circumstances of the case, that a great deal of pressure was brought to bear on the accused to make up the loss, and that inducements were held out to him to the effect that hg would not be prosecuted if he made up the deficiency. The evidence of Allah Ditta refers to induce ments that were held out to the accused on the 16th or the 17th of March. It is highly likely that similar inducements were held out to him on the 15th of March in respect of the sum of Rs. 1,

468. It was as a result of such inducements that he took pains to pay the sum of Rs. 1,468 to the Revenue Assistant shortly after midnight on the 15th of March. Another circumstance that leads me to the same confusion, that is, the sum of Rs. 1,468 was paid as a result of induce ments held out to the appellant, is that no mention regarding the mis-appropriation of Rs. 1,468 was made in the First Information Report that was lodged on the 18th of March. As the sum of Rs. 1,468 had been paid up on the evening of the 15th, the charge with respect to the misappropriation of this sum was dropped before the 18th of March. It is clear, therefore, that the statement of Allah Ditta that inducements had been held out to the appellant that he will not be pro secuted in respect of any deficiency that might be made good emanated from the authorities early on the 15th of March, and such assurance continued to be given to the appellant on the 16th and the 17th of. March. The observations con tained in the judgment of the Trial Court in respect of the alleged admission or confession are instructive and may be reproduced :- "As regards the alleged confession before the Revenue Assistant, and Mr. Dean, it had been rightly conceded by the prosecuting Sub-Inspector that both of them being per sons in authority qua the accused the confession was not admissible in evidence." The concession made by the Prosecuting Sub-Inspector in the Trial Court necessarily implies that the confession made before the Revenue Assistant on the 15th of March was inadmissible in evidence as it had been caused by inducements or promises proceeding from a person in authority. The admission of the appellant must be excluded from consideration, and conviction being based solely on this admission must be set aside. The Advocate-General relied on the statement of the accused dated 11th May, 1949, and contended that in his statement the accused had practically admitted that he had misappropriated a sum of Rs. 1,

468. The contention is wholly devoid of force. The appellant never admitted that he had misappropriated any sum of money, or that he had used Government funds for his private purposes. It is clear, there fore, that the admission relied upon by the High Court relates to the admission alleged to have been made by the appellant before the Revenue Assistant on the evening of the 15th March. If the conviction of the petitioner is to be based solely on his statement in Court, dated the 11th May, 1949, it is obvious that this statement should be taken into consider ation in its entirety. In this statement the accused denied that he had committed any offence and urged that if there was any shortage it must have been due to theft committed by the other persons who were working in the same building in his absence. There is one peculiar feature relating to this case which must be alluded to briefly. The High Court convicted the appellant on the 7th of June, 1950. Special leave to appeal was granted to the appellant on the 16th of October, 1950. On the 21st of February, 1951, the Deputy Commissioner of Dera Ghazi Khan, who is also the Head Treasury Officer of the District, submitted a report (Exh. A) to the Commissioner, Multan Division, to the effect that grave injustice had been done by the conviction of Rahim Bakhsh, Sub-Treasurer, under section 406 of the Pakistan Penal Code. It was stated in the report that Rahim Bakhsh had made an excess remit tance of Rs. 5,000 to the Kashmir Fund to the refund of which he was entitled. The shortage of Rs. 4,767-14 in the Sub -Treasury was due to the excess remittance which had been made by Rahim Bakhsh, and this had been confirmed by the re-checking of accounts. Under these circumstances, the Deputy Commissioner requested the Commissioner to move the Government to sanction the refund of a sum Rs. 6,000 in favour of Rahim Bakhsh. He also sent a memorandum (Exh. B) to the Commissioner, Multan Division, on the 3rd March, 1951, stating that the conviction of Rahim Bakhsh was based on a misunderstanding, and that the Government should be requested to take action under section 401 of the Criminal Procedure Code and remit the sentence of Rahim Bakhsh. These reports were produced before us when this appeal came up for hearing on the 14th of March. On that day, the position of the Provincial Government was that no mis appropriation had taken place in the Taunsa Treasury at all, and that the whole confusion had been caused owing to irregularities in not keeping correct accounts of the Kashmir Palestine Fund and Red Cross Fund. The Advocate-General submitted that the reports could not be regarded as evidence without the Deputy Commissioner being examined. The Deputy Commissioner was accordingly summoned as a wit ness. The Deputy Commissioner appeared as a witness in this Court on the 15th of October, .1951. Meanwhile, on the 6th of August, he had made a report to Government (Exh. C) that his previous report, dated the 21st of February, 1951, may be considered as cancelled, and that no action under section 401 may be taken to remit the sentence on Rahim Bakhsh. The position taken up by the Crown authorities on the 6th of August, 1951, was that a sum of Rs. 4,767-14-0 had been misappropriated by Rahim Bakhsh. The evidence of the Deputy Commissioner and the conflicting reports and memoranda submitted by him have created an uneasy feeling in my mind to the effect that the guilt of the appellant is open to serious doubt. The conduct of the whole proceedings by the Crown has not imbued me with confidence that any mis appropriation has taken place at all. The evidence of the Deputy Commissioners show that the accounts relating to the Kashmir-Palestine Fund and the Red Cross Fund were kept in a helplessly irregular manner and the condition of the Treasury was in a chaotic state on the 15th of March. The handling of the Kashmir-Palestine Fund and the Pakistan Red Cross Fund was not a part of the legal duties of the Treasurer or the Sub-Treasurer and that is the reason why the accounts of these funds were so irregular and confused. The Deputy Commissioner deposed that it was possible that he might come to a different conclusion than his final report if other facts were brought to his notice. He, however, added that he believed his final report to be correct. In view of the circumstances outlined above, it appears to me that there is no legal evidence to support the conviction of the appellant. I would, therefore, accept this appeal, and acquit the appellant. AKRAM, J.-In the circumstances of this case I agree that the appeal be allowed, and the conviction and the sentence passed on the appellant be set aside. MUHAMMAD MUNIR, J.-I regret I have not been able to persuade myself to share the view held by My Lord the Chief Justice in argument with Mr. Justice Akram that any special ground for interference exists in this case. The appellant's concise statement of the case and the arguments addressed from the bar have produced on my mind the irresistible impression, which I have not been able to shake off, that even if we were a Court of Criminal Appeal, which we certainly are not, we could not have reversed the judgment of the High Court. A detailed statement of the facts is necessary, only to bring out the real issue in the case. Rahim Bakhsh appellant, who is a servant of the treasury contractor, was acting as Sub Treasurer at the Sanghar Sub-Treasury in the District of Dera Ghazi Khan in March, 1949. Mr. D. M. Dean, the Naib -Tahsildar of Taunsa, was in charge of that Sub-Treasury. On 15th March, 1949, at about 3 p. m. Ch. Muhammad Nawaz, Revenue Assistant, paid a surprise visit to the Sub-Treasury. He first checked the currency and found the balance to be correct. He than checked the double lock and found the cash lying about in complete disorder. In the morning of that very day the appellant had been entrusted from the double lock with Rs. 10,300 for the estimated daily disbursements and an aggregate amount of Rs. 2,701-3-6 had been received by him as deposits during the day. All this money was in the single lock which was in the exclusive charge of the appellant. While Ch. Muhammad Nawaz was checking the treasury the appellant was required to produce his accounts and the entire cash with him in the single lock to enable Ch. Muhammad Nawaz to check the entire accounts of the Sub-Treasury. While producing the cash the appellant is alleged to have admitted that the cash with him was short by Rs. 1,468 which had been utilised by him in his private business. He offered to make up the deficiency and by about midnight, while the accounts were still being checked, he produced before the Revenue Assistant and the Naib-Tahsildar a sum of Rs. 1,

468. The Revenue Assistant, however, could not determine the exact shortage in cash and at about 1 a. m. he put the entire cash, including Rs. 1,468 produced by the appellant, in the double lock, one key of which was given by him to the appellant and the other kept by himself. The services of the Head Treasury Clerk were requisitioned by a telegram, and on the following morning the checking was resumed and on its completion it was discovered that there was a deficiency of Rs. 3,299-14-0 in the double lock. This amount was also made good by the appellant on 19th March, 1949. A case of criminal breach of trust was formally registered at the police station on 18th March, 1949, on receipt of a tele gram from the Deputy Commissioner. The telegram which had been sent on 16th March, 1949, was addressed to the Superintendent of Police and stated "Revenue Assistant reports by telegram defalcation of Rs. 3,298 in Sanghar Sub-Treasury. Please make inquiries, register case, take what action necessary". After investigation the police reported the case to Mr. Muhammad Bashir, Magistrate 1st Class, who tried it as summons case. The accusation, as explained by the Magistrate to the appellant, was that on 15th March, 1949, he, having been entrusted with Rs. 10,300 and having also received on the same day an aggregate amount of Rs. 2,701-3-6 as deposits in the capacity of a Sub-Treasurer of the Sub- Treasury at Taunsa, misappropriated a sum of Rs. 1,468 and another sum of Rs. 3,299-14-0 out of the moneys received by him and thus committed criminal breach of trust in respect of those sums. To this accusation, the appellant made the following reply:- "On 15th March, 1949, the Naib-Tahsildar Mr. Dean entrusted me with Rs. 10,300 for daily transactions. This was given from the double lock and kept by me in the single lock for the said purpose. On that day there were receipts and expenditures also and till 3 p. m. I had not settled the accounts and the transactions were still going on. A chaprasi of tahsildar came to me that Revenue Assistant was present at the tahsil Treasury building and I was called by him. Again the jamadar of tahsal named Isa came to call me. Out of haste I came to the Revenue Assistant at the said building and could not lock the office in which I was working as a Sub-Treasurer. That office is a big barrack in which moharrir District Board, syah nawis, etc., also sit and work. I am not allowed to sit in the proper building of the Sub-Treasury. I work as a Sub-Treasurer in the said bar rack. I came to the Revenue Assistant in the Treasury building and found him sitting in the verandah with the naib-tahsildar. They checked the currency in the double lock, then the double lock cash. That was found not correct as I had been using the amount for daily transactions. I told them that I was working with those sums at ~ the barracks and that account might be checked. They checked that account in my company and brought all the cash lying in the barrack in my custody to the Sub-Treasury building. They counted this sum at the Sub-Treasury and found that Rs. 1,468 were missing. Syah Nawis Muhammad Nawaz, Wasil-Baqi Nawis Muhammad Nawaz, Naib Wasil Baqi Nawis Gul Muhammad were present at the barrack in my absence. They were not on good terms with me. I told the Revenue Assistant that they might have removed that sum by way of theft. I was asked by the Revenue Assistant to make up the deficiency. I borrowed this sum of Rs. 1,468 from Allah Ditta contractor, Master Rahim Bakhsh, Hdfiz Ali Muhammad, Qadar Dad Khan, Muhammad Amin and Fiaz and brought it to the Revenue Assistant. I paid it to him at 12 p. m. All the treasury cash entrusted to me and in my charge on that day was taken possession of by the Revenue Assistant and only the said amount of Rs. 1,468 was found missing that was paid by me. The keys of the treasury then remained with the Revenue Assistant for that night. Next day they checked the treasury and found Rs. 3,299-14-0 missing. I did not misappropriate any of those sums. These might have been stolen." As the appellant did not plead guilty, the evidence for the prosecution was duly taken and on its conclusion the appellant was again asked if he would like to add anything to his previous statement and produce any defence evidence. He said he had nothing to say except that Ch. Muhammad Nawaz P. W. be recalled as that witness had not been fully cross-examined. The request to re-call Ch. Muhammad Nawaz having been refused the learned Magistrate (Mr. Muhammad Yaqub who had succeeded Mr. Muhammad Bashir) proceeded to judgment and acquitted the appellant. From the statement of the prosecution case as set out above it is clear that the appellant was charged with having embezzled an aggregate amount of Rs. 4,767-14-0 from the single lock, namely, from the money which had been entrusted to him in the morning from the double lock and the receipts of the day in the single lock. As there was nothing in the prosecution evidence to show what the precise deficiency in the single lock was, the learned Magistrate took the view that the appellant had not been fixed with any liability inasmuch as the deficiency in the double lock might have been due to misappropriation by the officer in charge of the Sub-Treasury. Regarding the confession alleged to have been made by the appellant before the Revenue Assistant and the Naib-Tahsildar to the effect that out of the cash in the single lock the appellant had invested a sum of Rs. 1,468 in his business, the learned Magistrate observed that because both the persons before whom the confession was made were persons in authority, the confession was not admissible in evidence. And as regards the admission by the appellant in his statement in Court that there was a shortage of Rs.1,468 in the single lock because this amount had been stolen by certain other officials who had been working near him, the learned Magistrate found that admission did not amount to a confession of misappropriation by the appellant. Dissatisfied with the acquittal the Provincial Government appealled to the High Court. The appeal came up for hearing before Muhammad Jan and Kayani JJ. The learned judges relied on the confession which they thought had been quite erroneously ruled out by the learned Magistrate and corroborated as that confession was by the conduct of the appellant in producing the sum of Rs. 1,468, they accepted the Government appeal in respect of this item and, convicting the appellant under section 406 of the Pakistan Penal Code, sentenced him to one year's rigorous imprisonment. They declined to record a conviction in respect of the item of Rs. 3,299-14-0 because that amount had been found missing from the double lock which was in the joint custody of the appellant and Mr. Dean, the officer in charge of the Sub-Treasury. The appellant applied for special leave to appeal to this Court and he was permitted to do so on the ground that as the cash in the single lock had been mixed up with the cash in the double lock before the deficiency was determined the case in respect of Rs. 1,468 rested on the same footing as the case with regard to the item of Rs. 3,299-14-0. Thus the real point to be determined in this appeal is whether there was any material to support the finding of the High Court that the shortage of Rs. 1,468 was in the single lock. It seems to me to be quite clear from the long statement that the appellant made when the accusation was explained to him that he admitted this deficiency to be from the single lock. In reply to a question by the Court the appellant stated "they (the Revenue Assistant and the Naib-Tahsildar) checked the currency in the double lock, then the double lock cash. That was found not correct as I had been using the amount for daily transactions. I told them that I was working with those sums at the barrack and that account might be checked. They checked that account in my company and brought all the cash lying in the barrack in my custody to the Sub-Treasury building. They counted this sum at the Sub-Treasury and found that Rs. 1,468 were missing. Syah Nawis Muhammad Nawaz, Wasil-Baqi Nawis Muhammad Nawaz and Naib Wasil Baqi Nawis Gul Muhammad were present in the barrack in my absence. They were not on good terms with me. I told the Revenue Assistant that they might have removed that sum by way of theft"- This statement is not susceptible of any other meaning than that when the appellant was called to the treasury where the double lock was being checked, a sum of Rs. 1,468 might have been stolen in his absence by the three officials named by him and that, when the cash from the single lock was produced by the appellant before the Revenue Assistant and the Naib- Tahsildar, it was short by a sum of Rs. 1,

468. This is the appel lant's own admission in Court and I know of no law which says that an admission made by an accused person in or out of Court, unless it be vitiated by any such circumstances as are mentioned in the Indian Evidence Act, cannot be considered to be a matter which the Court may take into consideration in coming to its conclusions. This admission is not to be confused with the confession which the appellant made before the Revenue Assistant and the Naib-Tahildar when he said that the shortage in the single lock was due to the fact that he had inves ted a sum of Rs. 1,468 in his private business. If, therefore, this shortage of Rs. 1,468 be found to be from the single lock, the ground on which the appellant was allowed to appeal would completely disappear. Even in the concise statement of the case, which has been put in this Court by the learned counsel for the appellant, it is admitted in the last paragraph that "the sole question to be determined is whether there is any evidence on the record that the shortage of Rs. 1,468 was out of the sum of Rs. 10,300 entrusted and Rs.2,701-3-6 received by the appellant on 15th March 1949". This is a correct state ment of the real issue in this appeal, but the issue must be held to be proved against the appellant by his own statement in Court, quite irrespective of whether any confession alleged to have been made by the appellant to the Revenue Assistant and the Naib-Tahsildar is proved or not and whether that confession is relevant or not, because, if the appellant was entrusted with a certain amount of money on the morning of 15th March and in the afternoon of the same day a shortage of Rs. 1,468 was discovered, it would be quite a safe inference to draw that the appellant himself parted with that amount unless he can suggest that the shortage could be due to some other person consistent with his innocence. In the present case, the appellant suggested that the amount might have been stolen by some other official working near him. But such officials have been called in to give evidence and they completely contradict the appellant s suggestion that anyone of them could steal the money. The appellant is not a fool or a simpleton. He runs a shop and for some time past has been working as Sub -Treasurer. He had a box which he could immediately lock if he had to leave his place of work, and I cannot imagine that when called by the Revenue Assistant he did not lock up the box, and left the cash lying about unprotected in the place where he was working. Nor can I see the slightest reason for excluding the confession on which the High Court acted. This confession was to the effect that the shortage of Rs.1,468 in the single lock, which the appellant himself admitted, was due to his having invested that amount in business. The learned Magistrate held the confession to be inadmissible because the Revenue Assis tant and the naib-tahsildar to whom the confession was made, were persons in authority. If the learned Magistrate and the pro secuting Sub-Inspector who conceded that the confession was inadmissible had referred to the relevant provision in the Indian Evidence Act, namely, section 24, they would have discovered that the mere fact that a confession is made to a person in authority is plainly insufficient to exclude that confession from evidence. Before that section is pressed into service to throw out a confession, the Court has to find several other facts in connection with that confession, the most important of which is that the person in authority should have held out to the con fessor some threat, promise or inducement having reference to the charge against him. Of such threat, inducement or promise, there is not the slightest evidence, and it is tot the appellant's own case that that confession was the result of some threat or improper inducement, his case, as can be ascertained from the arguments of counsel, the trend of the cross-examination and the appellant's own statement of the case (vide para. 8 of the petition for special leave to appeal) being a complete denial of the fact of his having confessed. Neither in his petition for special leave to appeal nor in the concise statement of the case does the appellant say a word about any threat, promise or inducement having been held out to him on 15th March either by the Revenue Assistant or by the naib-tahsildar. The High Court acted upon this confession as it was corroborated by the appellant's own conduct and gave reasons why the Magistrate had wrongly excluded it from consideration, and none of these reasons was challenged by the appellant at any stage of the proceedings in this Court. The fact that a prosecution witness Allah Ditta (P. W. 5) admitted in his cross-examination that the Sub-Inspector of Police and the naib-tahsildar told the appellant on 16th or 17th March that if he made up the deficiency he would be discharged is completely irrelevant because the prosecution proved no confession by the appellant to the Sub -Inspector of Police or the niab-tahsildar which might have been made by him on the 16th or 17th March and the High Court was right in pointing out that only evidence relating, to any inducement or promise was to be found in the evidence of Allah Ditta but that it had no reference whatsoever to the confession which was deposed to by the Revenue Assistant and the naib- tahsildar as having been made on 15th March. The entire evidence is to the effect that the appellant himself admitted while the Revenue Assistant was checking the accounts that the cash in the single lock was short by Rs. 1,468 because he had invested that amount in his own business and that he would and did make up the 'deficiency. There being no allegation nor any indication in the cross-examination of the Revenue Assistant or the naib-tahsildar that the confession was the result of some improper inducement, we would, I think, not be right in holding that the High Court was wrong in acting on that confession. The Revenue Assistant and the naib-tahsildar both state, and this is admitted to be true, that the precise deficiency in the treasury could not be discovered on the 15th March, and that being so, I cannot imagine that either of them would hold out to the appellant a promise that he would not be prosecuted if he made good only such deficiency as he had admitted. It may be that some pressure was brought to bear on the appellant on the 16th March to make good the deficiency that had been discovered. It may even be that on that day the appellant was promised that he would not be prosecuted if he made up the shortage and that the appellant paid the money in the belief that he would not be prosecuted. But can these promises be made the foundation of an inference that the confession made by the appellant in the evening of the 15th March when the checking had not been completed and the exact amount of the deficiency had not been ascertained was the result of a promise that if he made up the comparatively smaller shortage that he himself had admitted he would be discharged from all liability. I think, not. It is true that appellant when examined under section 342 of the Code of Criminal Procedure was not specifically questioned about he confession. But for that reason alone the confession does not cease to be admissible. It may be that where an accused person has not at all been questioned on the salient aspects of the prosecution case, the conviction becomes indefensible but the omission to put a particular incriminating; circumstance to him stands on a different footing. In such a case the Appellate Court will have to consider whether the omission occasioned any prejudice to the accused. In the present case there is no suggestion that the appellant was prejudiced in his defence by the omission of the Magistrate specifically to put the confession to him. It is quite clear to me from para. 8 of the petition for special leave to appeal and the arguments ad vanced that the appellant denies, and if questioned would have denied, having made the confession. There is, therefore, no question of any prejudice, and the only question as regards this aspect of the case is whether the confession has been proved. The Privy Council decision in Dwarkanath v. Emperor, A I R 1936 P C 124 is, in my opinion, not an authority for the abso lute rule that where an accused person has not been questioned about a criminating fact, the evidence as to that fact can never be accepted by the Court. In that case the jury had found a medical man guilty of perjury in his having deposed in Decem ber that the internal injuries he had found on the body of a person at the time of the post mortem examination in the pre ceding August were ante mortem. At his trial the accused doctor had not been questioned how he formed this opinion when in his post mortem report he had not mentioned the presence of any blood in the abdominal cavity. The honesty of his opinion as stated in the post mortem report that death was due to violence was not in issue and the only question was whether the same opinion expressed four months later when he gave evidence in Court was dishonest. After commenting on the Court's omission to draw in the examination of the accused his attention to this aspect of the matter, Lord Atkin observed that that omission deprived of any force the suggestion that the accused's omission to explain what he was never asked to explain supplied evidence on which the jury could infer that six months before he had consciously abandoned the theory which four months before he honestly held. The case, there fore, does no more than state the principle that if you intend to show that on a matter, which is a matter of opinion, a certain opinion could not honestly be held for a particular reason, it is your duty to put that reason to the person charged with dishonestly holding that opinion before you find him guilty of perjury in stating that opinion in Court. No importance attaches to the fact that in the First Information Report only total deficiency in the treasury was mentioned and no reference was made to the deficiency in the single lock separately from the deficiency in the double lock because before that report was made the amount of Rs. 1,468 had been returned by the appellant. A First Information Report is not in the nature of a formal charge, and it was only during the investigation of the case that the importance of the appellant's own confession that he had applied a sum of Rs. 1,468 in his business was brought out. To the question whether there had been misappropriation of money in the Sub-Treasury, the position taken up before us after the admission of additional evidence being that there was no shortage at all, I have no doubt that the answer must be in the affirmative. In this connection a reference becomes necessary to certain proceedings taken by or under the orders of the Deputy Commissioner, Dera Ghazi Khan, and in this Court after special leave to appeal was granted It appears that besides the deficiency determined on 16th March and which was made good by the appellant, a further demand was subsequently made on the appellant to pay another sum of Rs. 123-8-0. On this the appellant requested for a recheck of the accounts which was carried out by the tahsildar Sanghar who after recording the statements of some witnesses and the examination of relevant documents came to the conclusion that there was some mistake in regard to a sum of Rs. 5,000 which was deposited at the Sadar in the Kashmir-Palestine Fund on 12th July, 1948. He concluded his report to the Deputy Commissioner with the following observation "there is no other explanation except that he (ex-Treasurer) sent the excess amount of Rs. 5,000 out of some other fund to the Sadar toward the Kashmir Fund on the 12th July 1948 without receiv ing the amount". This report was taken by the Deputy Com missioner to mean that a sum of Rs. 5,000 which had not been taken into account in the checking that was carried on 15th or 16th March had been remitted to the Sadar by the appellant from his own pocket or from the cash in his custody and that he was entitled to its refund. Consequently by his memo randum No. 271 dated the 21st February 1951 to the Commis sioner Multan Division he recommended that the Government may be moved to sanction the refund of Rs. 5,000 to the appel lant. By a subsequent memorandum No. 334 dated the 3rd March 1951 to the Commissioner, of which a copy was sent to the Deputy Secretary to Government in the Home Department, he suggested the Government to take action under section 401 of the Code of Criminal Procedure and to remit the sentence of the appellant. These proceedings having come to the notice of the appellant, by an application dated the 20th February 1951, he requested this Court to send for the report of the enquiry held by the tahsildar and verified by the Deputy Com missioner. These documents were accordingly sent for and produced in Court. The Advocate-General, however, objec ted to their admissibility and their being treated as substantive evidence in the case. Upon this the Deputy Commissioner and the tahsildar were ordered to appear in this Court to give evidence. Before these two officers appeared in Court, another check of .the Sub-Treasury was held, and this time it was found that the previous conclusion that a sum of Rs. 5,000 had been sent to Sadar by the appellant from the Sub-Treasury or from his private resources was incorrect and that the docu ments and witnesses examined conclusively established that the deposit of Rs. 5,000 in the Treasury at Sadar was merely a transfer from one account to another. The report of this second check which gives the facts in great detail states that while according to the record of the Sanghar tahsil a sum of Rs. 19,397 was collected in the Red Cross and Kashmir Palestine Funds, the sum remitted to the Sadar from the Sub- Treasury amounted to Rs. 24,397 the remittance being in excess of the deposits by Rs. 5,

000. In the receipts at Sadar where two sums of Rs. 5,000 each appear to have been received one of the sums purports to have been received on 28th June 1948 for which receipt No. 22146 was issued while the other is mentioned as having been received on 12th July 1948, against receipt No. 521.. Examining the position in regard to these two items the report states :- "Detailed checking of the accounts of the Pakistan Red Cross Fund and the Kashmir-Palestine Fund revealed that the amount of Rs. 5,000 shown against item (ii) of paragraph 1 had been transferred from the Pakistan Red Cross Fund and the Kashmir-Palestine Fund which is wrongly shown against item (iv) ibid as fresh receipt. In fact this is s double entry relating to a receipt in Pakistan Red Cross Fund and its subsequent transfer to the Kashmir-Palestine Fund. The latter fund was opened in the Central Co operative Bank, Dera Ghazi Khan, on 16th July 1948 and so the above-mentioned amount could not be transferred to this fund by book transfer and the money had to be drawn in cash in favour of the Assistant Nazir for payment into this Fund. The Assistant Nazir II due to ignorance of the procedure of accounts issued a receipt dated 12th July 1948 in favour of tahsildar, Sanghar, showing a receipt of Rs. 5,000 in Kashmir-Palestine Fund. "

3. The original amount of Rs. 5,000 was received from the tahsil Sanghar on 28th July 1948 through his Wasil Baqi Nawis in the Red Cross Fund and was accounted for by receipt No. 22146 of that date. Later this amount was ordered to be transferred to Kashmir-Palestine Fund under Additional District Magistrate's order dated 8th July 1948. Cheque No. 09094 dated 9t1: July 1948 was accordingly drawn from Pakistan Red Cross Fund in favour of the Assistant District Nazir who got it encashed from the Central Co operative Bank on 12th July 1948 and paid it to the Second Assistant to the District Nazir on the same day for credit to Palestine-Kashmir Fund. The recipient issued receipt No. 521 dated 12th July 1948, showing credit of the amount as a fresh receipt and this is said to have been issued to ensure that the amount of the fund shown in the register should tally with the receipts issued. All this happened due to inexperience on the part of the two Assistant Nazirs. "

4. Enquiries were made to find out whether any cash amount of Rs. 5,000 was received from tahsildar, Sanghar, between 28th June, 12th July, 1948. In this connection state ments on oaths were filed by :-

1. M. Ghulam Yasin, Assistant Nazir.

2. Mr. Abdul Karim, Dak Muharrir.

3. M. Manzur Ahmad, former Wasil Baqi Nawis Sanghar tahsil.

4. M. Rahim Bakhsh, Assistant Wasil Bagi Nawis and "Ch. Atta Muhammad, the then tahsildar Sanghar was examined on oath. All these statements (copies of which are enclosed herewith) show that no amount of Rs. 5,000 was remitted from Sanghar tahsil between the above-mentioned two dates for credit to either of the two aforesaid funds. Rahim Bakhsh appellant was also invited to adduce any proof of having remitted any money between the aforesaid dates but he did not adduce any evidence. He has made a statement. "

5. From the above enquiry I am satisfied that the amount of Rs. 5,000 shown against item (i) of para. 1 was again shown as a fresh receipt against item (iv) ibid, which resulted in Rs. 5,000 having been shown as received in excess in Sadar account against the actual collection of Rs. 19,397 from Sanghar tahsil on account of the Red Cross and Kashmir-Palestine Funds. In view of the confusing entry in the receipt confusion was caused and Rahim Bakhsh took the position that his money was concerned. In fact no excess payment has been made by the ex-Sub-Treasurer Rahim Bakhsh, the appellant in the Federal Court appeal. My reference for the refund of Rs. 5,000 in favour of Rahim Bakhsh and for the remission of his sentence under section 401 Criminal Procedure Code may therefore be considered as cancelled. I am glad that a chance discovery has enabled us to clear the confusion". Two questions arise in regard to the admissibility and value of this additional evidence assuming that such evidence could be taken, despite there being no provision either in the Code of Criminal Procedure or in the rules of this Court specifically authorizing the reception of additional evidence. (1) Are the conclusions of the two enquiring officers relevant ? And (2) If they are, which of the two conflicting conclusions is correct ? The reports show that they are based on the examination of certain documents. and the statements o certain persons who were not examined under the authority of this Court. These conclusions are, therefore, completely irrelevant as they are no more than opinion of these officers on matters in issue which are not for expert testimony. But assuming that these opinions are relevant, the correct con clusion, in my opinion, is to be found in the later report dated the 6th August 1951 which is based on certain documents and evidence the significance of which had been completely missed at the time of the earlier enquiry. The exact position in regard to the disputed item of Rs. 5,000 as brought out in the subsequent report is that this amount was received at the Sadar on 28th June 1948 and credited to the Red Cross Fund. It was subsequently discovered that the true destination of this money was not the Red Cross Fund but the Kashmir Palestine Fund. Accordingly on the report of the Additional District Magistrate dated the 8th July 1948 the Deputy Commissioner drew a cheque for this amount on the Central Co-operative Bank on 9th July 1948 which was cashed by Ghulam Yasin, Assistant Nazir, and the money deposited at the Sadar against receipt No. 521 on 12th July 1948. Therefore, the amount of Rs. 5,000 for which the appellant claims credit was not provided by him or by the Sub-Treasury and the transaction was no more than a transfer at the Sadar from the Red Cross Fund to the Kashmir-Palestine Fund. The appellant himself did not state at the enquiry held by the Deputy Com missioner that he had prodded this money or that the money had gone to the Sadar from the Sub-Treasury in his charge. In fact, when required by the Deputy Commissioner to prove that this money came from him be said he was unable to make a statement because the record was with his counsel at Lahore, an obviously ridiculous excuse. I have, therefore, not the slightest doubt that the Deputy Commissioner's report dated the 6th August 1951 was correct and that as against his previous report we cannot but accept his evidence in Court that there was a shortage of above Rs. 4,000 when the accounts of the Sub-Treasury were checked on the 15th and 16th March. To conclude, special leave to appeal was granted in this case on the ground that there was no material in support of the High Court finding that the shortage of Rs. 1,468 was in the single lock. I have pointed out that there is no dispute about this and that the appellant himself admitted in Court that the cash in his charge in the single lock was short by Rs. 1,468 on the day in question. Neither in the petition for special leave to appeal nor in the concise statement of the case nor it counsel's opening argument was any objection taken to the admissibility of the confession on which the High Court had convicted the appellant and there is no evidence direct or circumstantial causing it to appear that the confession was the result of any inducement or promise. The appellant was not questioned by the Court about the confession under section 342 but that omission in no way prejudiced the appellant in his defence because as appears from the trend of cross-examination the appellant was conscious of the importance of that confes sion and his case in the petition for special leave to appeal was that he made no such confession. Thus there is no uneasy feeling in my mind about the guilt of the appellant and even if there had been any such feeling that would have been quite insufficient to sustain this appeal because as remarked by Lord Shaw in Arnold v. The King Emperor, 1914 A C 644 the judicial Committee was not a Court of criminal appeal and was, not guided by its own doubts of the appellant's innocence oil suspicion of guilt. This observation is fully applicable to this Court which is the successor of the judicial Committee. 11 would, therefore, dismiss this appeal. BY THE COURT.-In accordance with opinion of the majority we accept this appeal and acquit Rahim Bakhsh. A. H. Appeal accepted.