P L D 1956 (W (PLP)

LARI, J.--‑The appellant Khaliq Hussain was convicted under section 406 P. P. C. and sentenced to six months' R. I. by Syed A. M. Ghaznavi, Special Judge Karachi. The appellant was a Packer Postman in the Drigh Road Post Office. The prosecution case is that on 2nd May 1953 Muhammad Yunus P. W. 2 took a money order of Rs. 30 to Drigh Road Post Office. There was a heavy rush at the counter and consequently he gave Rs. 30‑7‑6 to the appellant with a request that he would post the money order and secure a receipt which Muhammad Yunus would take from him later. In the evening the appellant handed over to Muhammad Yunus a receipt bearing the seal of the Post Office. The appellant met Muhammad Yunus again on 5th or 9th May, as there are two different versions and informed him that money order form had got torn from him and consequently the money had not been sent by post. The appellant returned the money paid to him on 2nd May 1953, and asked for return of the receipt. The receipt had been lying with Taj Muhammad P. W. 6, who returned receipt next day. It is the practice in Post Offices that towards the close of the day a list of the entire money orders accepted is prepared in triplicate. One of these is sent to Head Office. The list gives the number of the receipts and amount remitted in respect of each money order. The list prepared towards the close of the 2nd May dealt with receipts upto 1469. The list of the subsequent day, however, commenced from receipt No. 1471. Neither of the two lists referred. to receipt No. 1470 and consequently investigation was ordered. The receipt book was taken in possession and it was found that receipt No. 1470 had been issued in respect of a money order for Rs. 30 but had not been included in the accounts of the Post Office. After due investigation the appellant was challaned for misappropria tion and forging a receipt No. 1470. The appellant had totally denied the prosecution case. The prosecution examined seven witnesses, Allahdad P. W. 1, Muhammad Yunus P. W. 2, Zafarali P. W. 3, Ishratali P. W. 4, Muhammad Islam P. W. 5, Taj Muhammad P. W. 6 and Abdul Rashid P. W. 7, Allahdad P. W. 1 stated that he received orders from Controller Post Offices to make an enquiry in the Drigh Road Post Office regarding money order receipt No. 1470, dated 2nd May 1953. Exh. P. 1 is receipt No. 1470. He took in possession the list submitted on 2nd and 3rd and the receipt Exh. P.

1. In cross‑examination he admitted that the list concerning money orders accepted on 2nd May was in the hand of Ishrat Ali. He could not say whether receipt No. 1470 was in the hand of the appellant. Muhammad Yunus P. W. 2 corroborated the prosecution case in the main. He stated that he took a money order of Rs. 30 to Drigh Road Post Office. At that time there was a heavy rush. He gave the money and money order form to the appellant and told him that he would take the receipt later on. In the evening the appel lant handed over to him a receipt which bore the seal of Post Office. The appellant met him again on 9th May 1953 and informed him that money order had not been delivered and returned the money. The receipt was with Taj Muhammad and was subsequently returned to the appellant. Zafarali P. W. 3 is Post Master. He stated that Ishratali P. W. 4 was the money order clerk on 2nd May. It was he who received money orders and issued receipt in respect thereof on 2nd May 1953. He could not say in whose handwriting the receipt Exh. P‑1 was. He stated that receipt No. 1470 was a bogus one, but could not say whether it was in the hand writing of the accused. Ishratali P. W. 4 was the money order clerk on the relevant date. He stated that receipts of the money orders are issued in triplicate. Ones given to the sender, the other is kept in the Post Office and the third is daily sent along with issue list to the Head Office. He could not state in whose hand entries on receipt No. 1470 were. He, however, alleged that on 2nd May seals had been affixed on receipts and issue list by the appellant. Muhammad Islam P. W. 5 stated that on 5th May '1953, at about 8 p. m. the appellant came, returned the money entrust ed to him by Muhammad Yunus on 2nd May and asked for return of the receipt. The receipt was subsequently obtained from Taj Muhammad and handed over of the appellant. Taj Muhammad corroborated Muhammad Islam and Muhammad Yunus. Abdul Rashid P. W. 7 is a formal witness. It will appear from the evidence that nobody deposed that receipt No. 1470 was in the hand of the appellant and it is a matter of admission that issue lists were prepared by Ishratali. The issue list of 2nd May did not show that any money order had been accepted under money order receipt No. 1470. Three of the witnesses, however, had deposed that a receipt bearing postal stamp had been issued to Muhammad Yunus. Curiously enough the only question that was put to the appellant by the trial Court was this :‑ "You have heard the prosecution evidence, did Muhammad Yunus give you a M. O. form and Rs. 30‑7‑6 for posting it on 2nd May 1953 at Drigh Road 7" The appellant was not questioned as to whether receipt No. 1470 was in his hand or not. Nor was he asked whether he had handed over any receipt bearing postal stamp to Muhammad Yunus. The attention of the appellant was also not drawn to the evidence of the witnesses to the effect that he had requested for return of the alleged receipt and actually secured return thereof. The inevitable result of this non‑questioning is that no evidence as to passing of any receipt by the appellant can be taken into consideration. The learned trial Court has himself held that it has not been established that receipt No. 1470 was in the hand of the appellant. The evidence that can be taken into consideration against the appellant comes to this that on 2nd May 1953, Rs. 30‑7‑6 were given by Muhammad Yunus to the appellant for the purposes of remitting the same to one Zaman Gul. That the money order was not remitted and was actually returned by the appellant to Muhammad Yunus on 5th May 1953. The question is whether on the basis of this evidence it can be held that the appellant was guilty of criminal breach of trust. It was argued by the learned counsel for the appellant that it is incumbent on the prosecution to prove dishonest misappropriation of the amount paid to the appellant. Mere retention of the money for some days, even though it be with a dishonest intention, cannot amount to criminal breach of trust. Reliance was placed on the case of In Ramakkal and others (A I R 1938 Mad. 172), Justice Newsam, J. observed "Before a Court frames a charge of criminal misappro priation, it must satisfy itself that actual conversion or appropriation has taken place, because mere intention to mis‑appropriate or even preparation to that end are not sufficient to constitute the offence." A similar view was taken in the case of Rex v. Krishnan (A I R 1940 Mad. 329), In charging the jury Pandrang Row, J. observed "On the criminal side you can take it from me that mere retention of money entrusted to a person without any mis‑appropriation, even though he was directed by the person to pay it to so and so, or to deal with the money in a particular way, is not a criminal breach of trust ; unless there is some actual user by him which is in violation of law or contract, there is no criminal breach of trust ; and even if there is such user there must be a dishonest intention. In the case of mere retention it is impossible to say it is dishonest. Apart from that, there must be some definite act to show misappropriation." These two cases, to my mind, lay down correct law. It must be clearly established that the appellant had appropriated the money entrusted to him for his own use, and, had done that with a dishonest intention. There is no evidence as to how the appellant dealt with Rs. 30‑7‑6 from 2nd May when it was entrusted to him till 5th May when it was returned to the payer. The appellant was not duty bound to remit the money by money order. It was not his job, to accept money orders. The money must have been paid to the appellant as he was he was known to Muhammad Yunus and Muhammad Yunas expected a favour from the appellant purported to issue a false money order receipt then it could be held that a retention was in fact a misappropriation. But there is no evidence to that effect in this case. Whatever evidence there is bearing on this question has to he ignored in view of the failure of the trial Court to question the appellant about it. It is matter of admission that towards the end of the day issue list is prepared. The issue list of the day did not show issue of receipt No. 1470. The issue list had been prepared by Ishratali the money order clerk P. W.

4. Receipt No. 1470 was not included as presumably that receipt had not been issued on 2nd May. The issue list of the next day shows that the first receipt that was issued that day was receipt No. 1471. Receipt No. 1470 must have been prepared in between. Ordinarily the money order clerk would have detected that no money order had been accepted under receipt No. 1470 on 2nd May, and he must have enquired as to how receipt No. 1470 was a filled up docu ment. It may be that this escaped the notice of the money order clerk due to negligence. There is, however, nothing to show that it was the appellant who had dealt with receipt No. 1470. In fact no reference to this receipt or the alleged receipt said to have been issued to Muhammad Yunus is possible in the absence of any questioning of the appellant in this regard. The evidence only creates suspicion against the appellant but suspicion cannot take place of proof. The conduct of the appellant may be due to dishonest misappropriation but it is also explainable on innocent grounds of indifference and laches. The learned counsel for the Crown argued that the omission of reference to receipt No. 1470 in either of the issue list had been detected and the Post Office must have come to know of this detection. The mere fact that the appellant returned the money on 5th is evidence of guilty intention. There is force in this but intention in itself is not punishable. The prosecution must show by overt act done by the appellant that the appellant had actually mis appropriated the money. The case suffers from a lacuna both on account of lack of evidence and failure of the trial Court to question the appellant properly. The appellant is, therefore ; entitled to benefit of reasonable doubt. I have, therefore, no option but to accept the appeal and set aside the conviction and sentence of the appellant. The appellant is on bail and need not surrender. A. H. Appeal accepted.