P L D 1953 Lahore 449 (PLP)

C. M. Sharif, Assistant Advocate‑General for Appellant. Nemo for. Respondent. SHABIR AHMAD, J.‑--This is an appeal presented by the Pro vincial Government under section 417 of the Code of Criminal Procedure against the order of Mr. Said K. Haq, Magistrate, 1st Class, Sheikhupura, acquitting Imdad Ali Khan respondent of an offence under section 409 of the Pakistan Penal Code. The prosecution alleged that the respondent had not deposited in the Government treasury Rs. 331‑2‑6 which, as a Lambardar; he had realized from the land‑owners as land revenue for the rabi crop of the year 1950, but had misappropriated that sum. Evidence was led, at the trial that the amount alleged to have been misappropriated had actually been paid to the respondent. The learned trial Magistrate, however, did not consider the question whether or not, the facts alleged by the prosecution were proved, but decided the case on the finding that even if the allegations of the prosecution against the respondent were correct, he had committed no criminal offence being only liable civilly. In coming to this conclusion, the learned trial Magistrate relied on a Single Bench decision of the Peshawar Judicial Commissioner's Court in Said Ahmad v. Emperor (A I R 1937 Pesh. 35) in which it was held that as the Government had a right to recover the demand of land revenue from a Lambardar irrespective of the fact whether the land‑owners had paid him or not, the liability of a Lambardar, if he failed to deposit any amount realized by him, could not be criminal in nature. The question to consider is, whether or not, the view taken by the learned Magistrate was correct. Section 409 of P. P. C. makes punishable criminal breach of trust committed by a person entrusted with property or with any dominion over it in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent. What is criminal breach of trust is defined in section 405 of the P. P. C. which reads as follows:‑ "Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other persons so to do, commits criminal breach of trust." if, therefore, it were to be held that the respondent was entrusted with the money which the land‑owners paid to him as land revenue and he converted that property to his own use in violation of any direction of law prescribing the mode in which such trust was to be discharged or of any legal contract, express or implied, which he had made touching the discharge of such trust, he would be guilty of an offence of criminal breach of trust and be punishable under section 409 of the P. P. C. if he were held to fall within any of the classes of persons mentioned in that section. The liability of a land‑owner to pay land revenue to Govern ment is created by the Punjab Land Revenue Act. The land‑owner may himself pay in the Government treasury, the money due from him as land revenue or may pay it to a Lambardar appointed under section 28 of the Punjab Land Revenue Act for the revenue estate in which he owns land and authorized to realize that amount. One of the duties of a Lambardar is to collect land, revenue and to pay it in the Government treasury and for this work he is, under the rules, entitled to a percentage of the money) realized by him for the Government. He is further, when authorized by a Revenue Officer to realize the amount as land revenue, given documents which show the amount due from different land‑owners as land revenue. When a land‑owner pays to a Lambardar the land revenue due from him, he does so as he is certain that the Lambardar will deposit the amount to the Government treasury and the lambardar by accepting the money impliedly undertakes to do that so that no demand be made on the land‑owner for that amount. It is fairly plain when he realizes land revenue from a land‑owner from whom it is due to Government, the lambardur is entrusted with the money for specific purpose which the law prescribes and if after realizing the money he does not pay it in the Government treasury, he is clearly guilty of the offence of criminal breach of trust defined by sec tion 405, p. p. C. It is hardly open to doubt that when he reali zes the land revenue from a land‑owner, the lambardar acts as an agent of the Government for realizing the amount and depositing it in the Government treasury. In these circumstances the case of a lambardar, who after realizing the amount due from a land owner as land revenue, does not deposit it in the Government treasury, clearly falls under section 409, P. P. C. The Peshawar case, relied upon by the learned trial Magis trate, did not, if I may say so with all respect, consider all aspects of the question. It is no doubt correct as mentioned in that decision that if a lambardar has not realized any land revenue from a land‑owner he is himself liable to pay it in the Govern ment treasury and with respect to that amount his liability will be entirely civil in character. But different considerations apply where the land revenue has been received by the lambardar but has been misappropriated by him. The view that I take of the law receives support from a Division Bench decision of this Court in A I R 1939 Lah. 340 and a decision of another Division Bench of this Court in Criminal Appeal No. 536 of 1950, with the reasonings of both of which decisions I am in complete and respectful agreement. It appears that even the former of the above two decisions which is avail able in a printed form was not brought to the notice of the trial Magistrate. The result, therefore, is that the appeal is accepted and the case is sent back to the trial Magistrate for speedy disposal on merits. K. M. A. Appeal accepted.