P L D 1961 (W (PLP)

A. H. Najafi for Appellant. Nazar Muhammad for Respondent. Dates of hearing : 23rd and 24th May 1961. The appellant in this matter Inayat Ullah Hairat, son of Sardar Abdullah Khan, was placed on trial before the S. D. M. and Special Judge, Bhakkar, and the statement of allegations against him stated that while he was working as Cashier in the office of the Divisional Engineer, Operations, Agricultural Machinery Organisation, T. D. A., Bhakkar, he committed the theft of Rs. 4,188‑6‑3 from the chest of the office and mis appropriated it, thereby committing offences under sections 409 and 380, P. P. C. In reply to this statement of allegations he stated that he would submit a written statement. The case proceeded in the Court of the Special Judge, Bhakkar, from the 26th August 1959 to the 4th June 1960 on which date, because of the transfer of the former trying Judge, this case was heard by the Special Judge, Mianwali. Sixteen prosecution witnesses and two defence witnesses were by then examined by the former trial Judge, and his successor, the Special Judge, Mianwali, examined thirteen more defence witnesses. On the 24th September 1960, the Special Judge, Mianwali, delivered his judgment in this case convicting the appellant of offences under section 409, P. P. C. and in the alternative under section 380, P. P. C. and sentenced him to suffer rigorous imprisonment for a period of two years on each charge, both the sentences to run concur rently. The present appeal is from these convictions and sentences. The appeal was filed by the appellant from jail, but at the hearing he was represented by Mr. A. H. Najafi, Advocate, who argued the matter on his behalf. Mr. Nazar Muhammad, Advocate, appeared on behalf of the State.

2. The facts giving rise to this matter are that the appellant Inayat Ullah Hairat was employed in the year 1959 as Cashier in the Thal Development Authority. At that time Captain A. G. K. Niazi was employed as a Divisional Engineer, Operations. Agricultural Machinery Organisation of T. D. A.' at Bhakkar, and the appellant used to work under him as his cashier. The cash used to be kept in a chest placed in Captain Niazi's office. This chest had double locks and was operated by four keys, two of which, Nos. 1 and 4, remained with Captain Niazi and the other two, Nos. 2 and 3, with the appellant. On the 31st January 1959, Captain Niazi verified the cash balance then held in this chest from his cash book and certified to that effect in his cash, book. On the 1st, 2nd and 3rd February 1959 this chest was not opened. On the evening of the 3rd February 1959 Captain Niazi Proceeded on leave from Bhakkar and returned to his duty on the forenoon of the 11th February 1959, as he was due to leave on the next day, namely, the 12th February 19_59 for Quetta where he had to report for training on the morning of the 14th February 1959. Before proceeding on leave, on the morning of the 3rd of February 1959, Captain Niazi had given instruc tions to the appellant who was his cashier and also to Mr. Said Rasul (P. W. 5), who was his accountant; to, keep in readiness their account etc. so as to facilitate his handing over charge to his successor on the expiry of his leave. On the 11th February 1959, when Captain Niazi returned to duty after the expiry of his leave, he directed the appellant to bring his cash book up to date and to keep things ready so as to enable Captain Niazi to hand over charge that same evening to his successor, Ch. Ghulam Hasan (P. W. 14). As there was some delay on the part of the appellant in doing so, Captain Niazi decided to open the chest himself and towards‑ this and he unlocked his drawer of his office table in which drawer he used to keep his own set of keys, namely, Nos. 1 and 4, relating to the chest. On opening his drawer he was amazed to find that his pair of keys, Nos. 1 and 4, was missing. He enquired from the appellant as to where keys Nos. 1 and 4 were to which the appelfant pleaded ignorance. He then asked the appellant to produce his own set of keys Nos. 2 and 3, but the appellant instead produced keys Nos. 1 and

4. The appellant was then directed to produce his own keys Nos. 2 and 3 to which he replied that they were lost. On account of the absence of keys Nos. 2 and 3 the chest could not be opened and so a Mistri was sent for and the chest forced open. The cash therein was totalled and was found to be a sum of Rs. 6,001‑8‑

9. The appellant handed him over a sum of Rs. 120 which he had with him at that time on account of tractor charges received by him from some customer. He also produced cheque No. 386805 of the value of Rs. 435‑12, dated the 6th February 1959 which sum was also credited to the amount in the chest. However, despite crediting these two sums mentioned above, there was a shortage of Rs. 4,185‑6‑3 in the chest according to the entries in the cash book. The prosecution further allege that the appellant was then asked to explain this shortage to which he stated that he did not have the necessary amount with him at that time in order to make good the deficit, but that he was prepared to sell his lands and make good this shortage. It is in evidence that Captain Niazi that same night sent for Malik Muhammad Ashraf (P. W. 1). Assistant Engineer attached to the same office, and requested him to assist the appellant with money as the appellant was a poor man With numerous children to support, Captain on receiving a reply in the negative from Malik Muhammad Ashraf requested him to consult his fellow Engineers in the matter of raising the necessary money to meet this shortage. The appellant remained away from duty and accord ingly Captain Niazi reported this matter to his superior officer, Mr. Muhammad Saeed‑ud‑Din, Director, A. M. O., T. D. A., Bhakkar (P. W. 11), as per Exh. P. O., dated the 12th February 1959, who then addressed a letter to the S. H. O., Bhakkar, which was registered as the F. I. R. Exh. P. V. in this case. The appellant was absconding till the 6th April 1959 when he was arrested by the police who, after completing the necessary investigation, sent up‑this case to the Court.

3. The appellant filed a written statement in which he denied having committed any offence and blamed Captain Abdul Ghafoor Khan Niazi (P. W. 9) as being responsible for the shortage in question and for having engineered this prosecution against him. He mentioned one Muhammad Umar Khan, retired S. P., a near relative of Captain Abdul Ghafoor Khan Niazi and one Sarfraz Khan Niazi, Sub‑Inspector of Police, S. H. O., Darya Khan, a real brother of Captain Abdul Ghafoor Khan Niazi, as helpers of Captain Niazi in launching this case against him. The appellant also pointed out in this written statement that Captain Niazi had made no mention in his confidential letter to his superior Circle Officer, Mian Said‑ud‑Din (P. W. 11), Exh, P. O. in this case, of the appellant's alleged extra judicial .confession before him when the shortage of money was first discovered. He further mentions how Captain Niazi broke open the cash chest con trary to existing rules and without first obtaining the permission of his Circle Officer. Finally the appellant states in his written statement how Captain Niazi was a spendthrift, main taining two wives, one an English Woman and the other a Pakistani, and having many children from each and thus living far beyond his means. The inefficiency of Captain Niazi is apparent from the fact that he was served with a show‑cause notice by the Screening Committee and was ultimately screened out of service. A departmental inquiry was held regarding the shortage of cash amounting to Rs. 4,188‑6‑3 and ended with a verdict against the Captain as a result of which the Government has withheld his general provident fund.

4. At the hearing the prosecution examined in all sixteen prosecution witnesses in support of their case. The main witness, amongst these, is, of course, P. W. 9 Captain A. G. K. Niazi who was examined at length and supported the prosecution story as set out in paragraph No. 2 above. He states how after discovering the shortage he sent immediately for his two Assistant Engineers, Malik Muhammad Ashraf (P. W. 1) and Malik Muhammad Afzal (P. W. 2), who came there and witnessed what then transpired, including the alleged extra‑judicial confession of the appellant and his request for time within which to dispose of his lands and thus make good the shortage. However, Malik Muhammad Afzal does not admit having visited Captain Niazi that night, and he is supported in this by Malik Muhammad Ashraf (P. W. 1) who states that after leaving the Captain that night, he (Malik Muhammad Ashraf) went to the residence of Malik Muhammrd Afzal and informed him of what had transpired that evening. It is worthy of note that in their police statements neither of these two Assistant Engineers P. Ws. 1 and 2, speak of the alleged extra‑judicial confession of the appellant to Captain Niazi. The prosecution also examined a third Assistant Engineer, name Ch. Abdul Ghani, as P. W. 3 and the Chowkidar of the office of the Divisional Engineer, Operations, byname Rustam (P. W. 4), to the effect that on Sunday, 1st February 1959 the appellant was seen working in his office. Curiously, this circumstance of the appellant attending his office on a holiday, which in the final summing up of the evidence against him has been used as a circumstance against him, was not put to the appellant during his examination under section 342, Criminal Procedure Code, by the trial Judge. The next prosecution witness was Said Rasul (P. W. 5), Accountant in the office of the Divisional Engineer, Operations, at the relevant time who was ordered by Captain Niazi at about 10 a.m. on the 11th February 1949 to prepare the checking of the cash on that day for the Captain's banding over charge to his successor. The Accountant passed the word on to the appellant who till 4 p. m. that afternoon bad not completed his cash book. This witness also speaks in Court of the extra‑judicial confession of the appellant and his offer to make good the shortage by disposing of his lands, but this alleged confession finds no place in his police statement Exh. D. B. In fact in his cross‑examination several omissions from his police statement have been brought on the record of this case. The next three prosecution witnesses are not of much consequence so, far as the case against this appellant is concerned. P. W. 6 Abdul Aziz is the Head Clerk of the Divisional Engineer, Operations's office, who merely testifies that the appellant had absented himself from the office after the incident in question. P. W. 7 Muhammad Anwar is the blacksmith who was summoned by Captain Niazi of breaking open the chest on the 11th February 1959 and P. W. f Abdul Rashid is a Mistri whose assistance was invoked by hi cousin, P. W. 7 Muhammad Anwar, for breaking open the chest on the 11th of February 1959. P. W. 10 Bashir Ahmad 18 a witness of importance so far as the case against this appellant is concerned. He is a mechanic attached in the year 1958 to the A. M. O. Unit, Mobile Workshop, and was working near Rore within the area of Tehsil Leiah, District Muzaffargarh. The case for the prosecution is that it was this Mistri whose services were. availed of by the appellant for the purpose of manu facturing a duplicated key to the office drawer of Captain Niazi so as to enable the appellant to open that drawer and lift therefrom the two keys. Nos. 1 and 4, pertaining to the chest which were in the custody of Captain Niazi. In his evidence this witness fixes the month of September 1958 as being the month in which he was summoned for the purpose of manufacturing this duplicate key. He also states that he was given a key in his hand by the appellant which was required to be duplicated and that he did so during office hours on a bench in the verandah and that Captain Niazi, Divisional Engineer was present in his office in the morning hours of that day when the witness went there: P. W. 11 is Mian Said‑ud‑Din, Director, A. M. O., T. D. A., Bhakkar, who, on receiving 'the report Exh. P. O. from 'Captain Niazi, lodged the F. I. R. in this case. He also admitted that he was unaware of any rule allowing the D. E. O. to break open the chest himself without informing him, and that there is a rule that in case of loss of keys, the D. E. O. should inform his superior officer. On the 11th of February 1959 the witness was present at Bhakkar Headquarters but the Captain did not' inform him either verbally or in writing about the loss of his set of keys. He confirms that Captain Niazi was screened out of service, P, W, 12 Muhammad Sadiq is the person through whom the Mistri P, W, 8 is alleged to have been summoned by the appellant but he denies having sent any message to Bashir Ahmad in that behalf, P. Ws. 13 and 16 are police officers who did the investigation into this case. It was P. W. 16 Sheikh Abdus Samad, then Inspector, C. I. D., Rawalpindi, who arrested, the appellant in this case on the 6th April 1959, almost two months after the alleged incident. P. W. 14 Ch. Ghulam Hasan is the successor of Captain Niazi as Divisional Engineer, Operations, A. M. O., Bhakkar, .who states that Captain Niazi did tell him that he used to keep his set of keys of the chest the drawer of his office table under lock and key and used to keep the drawer key with himself. He furth6r states that according to rules the D. E. O. should keep the keys of the chest in his personal custody and further that in the event of loss of these keys the D. E. O. should not break open the chest himself without the presence of his immediate superior. The last witness for the prosecution P: W. 15 Mr. Shamasud Din Yazdani stated that in September 1958 he was employed as Head Clerk in the office of the D. E. O. Bhakkar, A. M. O. At that time the appellant was also serving in that office as Cashier. Mistri Bashir Ahmad (P. W. 10) came to the office at Bhakkar on the 12th of September 1958 and worked' there till the 14th of September 1958 when he left. He thus corroborates the state ment of this mechanic P. W. 10 that he prepared the duplicate key of the drawer of the office table of the Divisional Engineer, Captain Niazi, in September 1958.

5. The appellant examined fifteen witnesses in his defence. The most important of these are D. W. 1 Malik Muhammad Ashraf, Administrative Officer, Supply, A. M. O., Bhakkar, who had worked under Captain Niazi for three years, and stated that Niazi Sahib used to keep the keys of the chest in his personal custody and that he never saw him taking out those keys from the drawer of his office table. The next important defence witness is D. W.

4. Raja Muhammad Akram, Naib Tehsildar, who served as Naib‑Tehsildar, Tehsil Bhakkar, in March 1959. The originals of certain documents were produced before him 'and he attested the copies thereof. These documents are receipts produced in evidence by the appellant as Exhs. D. M. to D. Q. and D. T. to D. Y. showing that they bore the counter‑signature of Captain Niazi who authorised the appellant to make these advances to the parties concerned. D. W. 5 Mumtaz Ahmad Khan was working as A. E. O., Bhakkar, in September 1958 under Captain Niazi and he then received a wireless message from Captain Niazi summoning a mechanic, but he denies having despatched any mechanic in response to that massage. D. W. 6 Munir Ahmed was stationed at Bhakkar as A. E. O. From 1954 to 1958 when Captain Niazi was the D. E. O. and he states that Captain Niazi used to keep the keys of the chest with him or at his house and that he never saw him taking these keys from the drawer of his table. The remaining defence witnesses have not been referred to by the learned defence counsel in his arguments in this case.

6. Before I express myself as to the merits or demerits of this case on facts, there is an important point of law which goes to, the very root of this prosecution and which must be disposed of first. This is the absence or want of a valid sanction for the prosecution, as required by section 6 (5) of the Pakistan Criminal Law (Amendment) Act, 1958, (Act XL of 1958). The rubkari or the statement of allegations read out to the appellant at the commencement of the trial charged him with the commission of two offences under section 409 and section 380, P. P. C. When I put this legal objection to the State counsel his first argument was that the appellant has in the alternative been convicted of the offence of theft which is not scheduled offence and in respect of which no sanction is required, vide section 5 (7) of Act XL of 1958. 1, however, pointed out to the learned State Counsel that before section 3 (7) can apply to embrace or cover a non scheduled offence, there must first be a valid trial by the same A Special Judge in respect of a scheduled offence, and that in this case in respect of the scheduled offence under section 409, P. P. C. there is no valid trial because of the absence of a valid sanction. The learned counsel for the State then referred me to Exh. P. V., the F. I. R. in this case, which expressly refers to theft. He argued that the appellant had committed theft of money and he relied upon the reported case of Crown v. Babu Khan (P L D 1952 Lah.472) in support of his contention that the appellant in this case could successfully be prosecuted only under section 380, P. P. C. and that the trial was., not vitiated by the want of sanction contemplated by the Criminal Law (Amend ment) Act. I have closely examined the facts of this reported case and the learned defence counsel has been at pains to distinguish the facts of this reported case from those of the instant case. But, according to me, it is unnecessary to embark upon this process of distinguishing for the simple reason that I am not satisfied that in this case any offence under section 380, P. P. C. has at all been made out. I cannot conceive of any person who is entrusted with property committing theft of that very property. Surely, if any person, entrusted with property,, deals with it worngfully or contrary to the terms of entrustment then this is plain breach of trust of misappropriation and it can never be termed or described as theft. In this particular case it is admitted that the appellant was entrusted with the keys of the chest and that without these two keys the chest could not be opened. Thus, he was in the position of a trustee with regard to the money in this chest‑ and if he plays about with this money or converts it to his own use, such conduct can, in my opinion, never fall within the provisions of section 380, P. P. C. However, on my carefully examining the miscellaneous record of this case I alighted upon a sanction order, dated the 20th July 1959, signed by the Director, Agricultural Machinery Organisation, T. D. A., Bhakkar (P. W. 11 in this case), sanctioning this prosecution under subsection (5) of section 5 of the, Pakistan Criminal Law (Amendment) Act, 1948. In this sanction the sanctioning authority claims to be exercising powers conferred upon him by the rules framed under clause (a) of subsection (2) of section 11 of the Pakistan Criminal Law (Amendment) Act, 1958, notified by the Punjab Government Notification No. 6319/54/Gaz., dated the 2nd August 1954. I looked up this gazette notification and found that the rule referred to authorise an authority under the Punjab Government and having the power to dismiss a public servant to be competent to sanction his prosecution under the Pakistan Criminal Law (Admendment), Act, 1948, on behalf of the Government. This sanction, as mentioned above, was granted on the 20th July 1959, on which date the Pakistan Criminal Law (Amendment) Act, 1948, had ceased to exit, having been expressly repealed by section 14‑ of Act XL of 1958. Thus this sanction, though in existence but not proved in Court, is admittedly an invalid sanction, having been granted under an obsolete Act. I drew the attention of. the learned counsel c for the State to this sanction found by me among the miscel laneous papers relating to this, case and I invited him to make his submissions in regard thereto. He frankly admitted that this sanction being under a repealed Act is not valid and in the circumstances he was left with no other alternative but to pray for retrial of this case. In view of this admission by the State counsel and also as a result of my own findings above, I hold that this prosecution being without valid sanction is an illegal prosecution and that consequently the absence of a valid sanction has vitiated the conviction in this case. Hence, on this point of law which, as I have said above, goes to the very root of this matter, the conviction of the appellant in this case is wrong in law and must be set aside. I, there fore, set aside this conviction and the sentence imposed and direct that the appellant be set at liberty if he is not wanted in any other case.

7. There still remains the all important question of a retrial. This is a question that has seriously agitated my mind and to which I have given my most anxious consideration. It has been pointed out by the learned defence Advocate that the appellant in this case was arrested on the 6th of April 1959 and released on bail after more than three months on the 15th July 1959. He was convicted is this matter on the 24th September 1960 and is in jail ever since. Thus, by now the appellant has spent more than eleven months in jail. But, quite apart from this argumentum ad miseri cordiam, the facts of this case and the weaknesses in the prosecution story would show that this is not a fit case in which a retrial should be ordered more than two years after the commission of the offence. The learned defence Advocate has drawn my attention to these weaknesses in the prosecution case and I set them out below in this judgment.

8. The defence Advocate argued that in order to succeed in this case the prosecution must prove affirmatively that the appellant came into possession of keys 1 and 4 normally in the custody of Captain Niazi and that it was with the help of these two keys plus the set already in his possession that he succeeded in opening the chest and misappropriating the money therein. In the first instance, it is doubtful whether the prosecution story that keys 1 and. 4 were with Captain Niari and keys 2 and 3 were with the appellant is a true story. In his evidence Captain Niazi (P. W. 9) has produced in the cash book Exh. P. 3, a certificate in his own hand writing at page 28, stating that keys 2 and 3 were in his possession and not keys 1 and

4. No doubt in Court the Captain states that this was a clerical mistake, but that state ment is open to doubt. This entry on page 28 of Exh. P. 3 is countersigned by the appellant and by the Accountant P. W.

5. Besides, when the Captain found keys 1 and 4 missing from his drawer he asked the appellant where they were to which the appellant pleaded ignorance. The Captain then asked him to produce his own keys on which the appellant produced keys 1 and 4 or keys 2 and 3 have not been discovered at all even up to this day. It is thus left uncertain as to whether keys 1 and

4. Keys 2 and 3 were in the custody of the appellant., The prosecution case is that keys 1 and 4 were kept by Captain Niazi in the drawer of his office table and that they were removed from that drawer by the appellant who had a duplicate key made to that drawer by P. W. 10 Bashir Ahmad. ‑Bashir Ahmad, however, states that made a dupli cate key in September 1958, five months before the date of the incident and five months before the duplicate key was to be used. Again, Bashir Ahmad states that the appellant gave him a key from which he manufaetured its duplicate. The key of the drawer of Captain Niazi's office table was in his personal custody and it is not shown how this key came into the possession of the appellant so that he could give it to Bashir Ahmad for manufacturing a duplicate. Bashir Ahmad further states that he made the key during office hours sitting on a Bench in the office verandah and on a day when Captain' Niazi was in the office in the morning hours. Surely, if the appellant had intended preparing a bogus key he would have done so clandestinely and not in such an open and brazen‑faced manner. The circumstances leading to the summoning of Bashir Ahmad are also not very clear because Muhammad Sadiq (P. W. 12) denies having received a wireless message in the field and Mumtaz Ahmad (P. W. 5) denies having sent a mechanic for making a duplicate key. Finally, on this question of the manufacture of the duplicate key to the office table drawer of Captain Niazi, there is Captain Niazi's own statement in Exh. P. O. his report to his superior officer, in para: 2 whereof the states that " usually I keep my set of chest keys 1 and 4 in the right hand top drawer of my office table under lock and key. This drawer's key in duplicate always remained with me and I carry these in my pocket even if I am on leave." If this is so, then it is difficult to understand how the appellant came by the key of this office drawer for the purpose of getting a duplicate thereof manufactured.

9. The second weakness in the prosecution case urged by the defence Advocate is with regard to the keys of the chest itself. The keys in possession of Captain Niazi were kept by him at his house and P. W. 1 Muhammad Ashraf, Assistant E.. O., admits in his cross‑examination that these keys were kept by Captain Niazi at his house and that on one occasion during the absence of Captain Niazi when the, witness had to make some payment " he personally went to Captain's residence and secured the chest keys from Mrs. Niazi and handed the keys to Muhammad Inayat Ullah Hairat accused and he applied those keys to the chest lock and also applied his own key to the second lock of the chest and opened the chest and took out money required for disbursement and passed it on to me after taking proper receipt from me." He further adds that after locking the, chest be went to the place of Mr. Niazi and handed back the keys to his wife again. D. W. I Malik Muhammad Ashraf worked under Captain Niazi for three years and states that "Niazi Sahib used to keep the keys of the chest in his personal custody. I never saw him taking out these keys from the drawer of his table. It happened once that within my presence he requisitioned these keys from his house through his servant." D. W. 6 Munir Ahmad who was stationed at Bhakkar as A. E. O. from 1954 to' 1958 and worked under Captain Niazi, then D. E. O. Bhakkar, states: "Mr. A. G. K. Niazi who was at that time D. E. O., Bhakkar used to keep the keys of the chest with him or at his house. He used to send his Chaprasi to bring this key from home whenever he needed it and forget to bring it, I never saw him taking out this key from the drawer of his table."

10. The third circumstance urged by the defence counsel concerns the breaking of the chest Captain Niazi contrary to rules and in the absence and without the permission of his superior officer. Both P. W. 11 his superior officer Mian Said‑ud‑Din, Director, A. M. O., and P. W. 14 Ch. Ghulam Hasan, his succes sor‑in‑office, have made it clear that Captain Niazi was not empowered to break open the chest on his own without the per mission or the presence of his superior officer. D. W. 2 Muhammad Ali Khan Tarin, Divisional Engineer, Operations, A. M. O., Bhakkar, stated that it is within his knowledge that in the case of loss of D. E. O's. set of keys of the chest he is not entitled to break open the chest without his superior's presence. Indeed, the anxiety of Captain Niazi to break open this chest would indicate that he not only had prior knowledge of the fact of there being a shortage in the cash but also that he was in a way responsible for that shortage. The chits Exhs. P. D. M. to D. Q. and D. T. to D. Y. produced in this case, show that the appellant made advances on the express instructions of Captain Niazi. Probably that is also the reason why, as stated by the appellant in his written statement, the departmental inquiry has not absolved the Captain from responsibility for this shortage of money.

11. The next circumstance in the prosecution story is the alleg ed extra‑judicial confession of the appellant which is testified to in Court by Captain Niazi (P. W. 9), Accountant Said Rasul (P. W. 5) and A. E. O. Malik Muhammad Ashraf (P. W. 1), but, as already mentioned above, it is worthy of note that Captain Niazi in his earliest report Exh. P. O. makes no mention of this alleged extra judicial confession or of the offer of the appellant to make good the shortage by selling his lands. Nor is there any mention of this confession in the F. I. R. Exh. P. V. In like manner P. Ws. Malik Muhammad Ashraf and Ghulam Rasul make no mention of this extra‑judicial confession of the appellant in their police statements. Besides, the story as put forward by the prosecution witnesses is that the appellant when first tackled denied knowledge of any shortage and if that were so it is difficult to believe that in the very next breath he would not only admit the shortage but offer to make it good by selling or mortgaging his property.

12. Finally, it was urged by the learned defence Advocate that there no eye‑witness in this case and that the conviction of the appellant rests on circumstances mentioned at page 12 of the judgment of the lower Court. It is well known that under the law of circumstantial evidence the circumstances must form them selves into a complete chain having strength in each of its links. In this case, however, the circumstances, such as they are fall far short of this requirement. The first circumstance mentionedand relied upon by the learned trial Judge is the appellant's absence from the office immediately on the next day of the occurrence until his arrest by the police. It is said, by way of explanation that the appellant's absence was due to the sudden illness of his wife who suffered a severe shock when she heard of this charge being brought against the appellant. The second circumstance mention ed in the judgment is the appellant's silence in respect of the reporting of such an important matter. It is urged that there was no duty cast upon the appellant to make such a report particularly when his senior officer was already aware of the facts of the case. The third circumstance relied upon in the judgment is the appel lant's offer to mortgage his land, but, as shown above, this is obviously an after thought, because it finds no place on Exh. P. O., Exh. P. V. or in the police statements of P. Ws. 1 and

5. The fourth circumstance relied upon in the judgment is the production of keys 1 and 4 by the appellant and his consequent non‑production of keys 2 and

3. It is clear from the preceding parts of his judg ment that the prosecution evidence is itself in doubt as to whether keys 1 and 4 or 2 and 3 were with the appellant. It has also been shown above that it would be incongruous for the appellant to produce keys 1 and 4 after having denied knowledge of their existence. In any even it is difficult to understand how, the appel lant could have come by keys 1 and 4 when those keys were normally kept by the Captain at his residence and even if the theory be accepted that they were kept by the Captain in his office table drawer, it is not shown how the appellant was able to come by the key of that drawer which, according to the Captain's first written statement Exh. P. O., he kept with himself and carried about in his pocket even when on leave.

13. In view of the above‑mentioned weaknesses in the prose cution story, the delay of more 'than two years since the alleged occurrence and the period of eleven months already suffered by the o appellant in jail, I am of the view that this is not a fit case in which a retrial should be ordered and I direct accordingly. A. H. Order accordingly.