PL D 1956 Supreme Court (Pak (PLP)

MUHAMMAD MUNIR, C. J., (MUHAMMAD SHARIF, J. concurring).‑This is an appeal, by special leave, from a judgment of the High Court of West Pakistan in a criminal matter. The appellant is Muhammad Rashid who, together with Abdus Sattar and Muhammad Rafiq, was tried by a Special Judge on charges under sections 411, 409 and 109 of the Pakistan P. C. Muhammad Rafiq was acquitted, but the appellant and Abdus Sattar were found guilty, convicted and sentenced, the former under section 409 to two years' rigorous imprisonment and a fine of Rs, 2,000 and the latter under section 409 read with section 109 to one year's rigorous imprisonment and a fine of Rs. 1,000: The convicts appealed to the High Court of West Pakistan but failed. The appellant alone applied to this Court for special leave to appeal which was granted to him for considering the question whether the evidence A was sufficient to support the conviction. They admitted, and otherwise clearly proved, facts, are these, The appellant was a storekeeper of Government Stores at Balloki Head Works. On 29th June, 1953, he delivered out of, his custody to Abdus Sattar 112 bags of Government cement. The cement was being carried in a truck by Muhammad Rafiq and Abdus Sattar when it was captured at a place between Bhai Pheru and Kote Mahjiwala. The log book of the truck showed that the cement was being taken for use in the construction of a mosque at Kot Mahjiwala, The question that requires decision in this appeal, therefore, is whether the cement was issued by the appellant from the Stores tinder a proper authority, it being admitted that the cement was Government property, that it was delivered by the appellant and that it was intended to be used for an un authorized purpose. The appellant pleaded that the material was issued by him in compliance with the letter Exh. P. G. written by Niamat Khan Overseer and delivered to him by some person whose name or description he does not remember. Niamat Khan, however, dented that the cement was issued under the letter Exh. P. G. and in support of his assertion produced a letter Exh. P. H. written to him by the appellant in which it was stated that the appellant was unable to supply the cement because he did not have the keys of the Store with him. Exh. P. H. does not bear any date, but it is the appellant's own case that it was written after he had received the letter Exh. P. G., his defence as placed‑by counsel before us being that on receipt of Exh. P. G. which required him to deliver to the bearer 180 bags of cement he delivered 112 bags, and subsequently to this, when a cartman appeared on the same or the hoilovlng day and made an oral request on behalf of Niamat Khan for delivery of the remaining 68 bags lie wrote the letter Exh. P. to Niamat Khan saying that he was unable to supply the balance. The contention on the face of it is assured because the 112 bags of cement having never reached Niamat Khan he could not have made, as alleged by the appellant, a verbal request for delivery of the remaining 68 bags. The cement in question could not therefore have been delivered by the appellant under Exh. P. G. unless there was some secret understanding between the appellant and Niamat Khan in pursuance of which the letter issued unofficial requisitions for stock for which there is no provision in the rules. Then there is the further fact that the appellant took no receipt for this delivery and acted contrary to rule in dealing with the original indent for this material and in issuing the material covered by that indent in driblets and on the basis of private letters from Niamat Khan without making simultaneous entries in the other official records, particularly the issue of Stock Register. There is also the statement of Ghulam Nabi (D. W. 3) which we see no reason to disbelieve, that the appellant had struck a private bargain for the sale of the cement to the arains of Kot Mahjiwala. All this evidence definitely implicated the appellant. The events which led to this prosecution should make one pause and ponder. Apart from the fact that Ghulam Rasul who is described as a Maulvi genuinely believes that merit can be earned by building a mosque even though its founda tions are laid on theft and dishonesty, this case illustrates how easy it is to defraud the State if a few officials of the Irrigation Department decide to depart from the rules with improper motives. If the fraud had succeeded, and it would have succeeded had not A. S. I. Muhammad Ali fortuitously come across the truck, 180 out of 400 bags of cement would have been misappropriated and lost to the State. It means that in the case of a material like cement forty‑five per cent of the stuff can be misappropriated in a perfectly simple manner, Under the original indent 400 bags of cement were needed for Burning a bridge. Out of these 400, 180 bags, in according to some design which can only be guessed, were to be misappropriated. Thus either the original estimate was prepared with the intention that forty‑five per cent of the estimated quantity of cement was to be misappropriated or, what is worse, the official or officials who were in charge of the construction expected that the work would be certified to be according to specifications even if only fifty‑five per cent, of the estimated quantity was used. It is impossible that the appellant should have, without the collaboration of others, dared directly to misappropriate forty‑five percent of the material. Having received in the Stores 400 bags he could not have expected to account for that quantity after removing 180 bags from the Stores. He must, therefore, have arranged with some one else to ensure that the removal of 180 bags would go unnoticed. And this result could be achieved in the indented quantity could be shown to have been actually consumed its tile timing. If this was the scheme, the man who is responsible for the consumption of the cement must enter the conspiracy and show that 400 bags had been used where in fact only 220 bags had been used. He, however, cannot expect to do this, unless the person who has to that the work has been completed according to specifications certifies that it has been so done. Similarly, the contractor who gave to the appellant a receipt for the delivery of 400 bags could at any time be required to deliver that quantity to the person in charge of the work, but if he himself was in the conspiracy, as appears to be the case because he is stated to have disappeared after signing the receipt but without taking actual delivery of the cement, he could leave the accounting part of the transaction to the person to whom he had to deliver the material and tire latter could requisition by chit ; what was needed for construction or for private sale. Thus fortified by the contractor's receipt the appellant could allege that he delivered the full quantity ; the contractor having signed the receipt could say that he delivered the full quantity to the man in charge of the work ; the latter could say that full quantity had been used in the construction the checking officer could certify that the work was according to the estimates, with the result that everything would appear to be in order, though in fact 180 bags had gone into the black market for sale, and all this in a petty work of which only an Overseer was in charge. I dismiss the appeal, but should mention that the observa tions made above are not to be considered as judicial findings against anyone except the appellant. SHAHABUDDIN, J.‑I agree that this appeal should be dismissed. CORNELIUS, J.‑‑The guilt of the appellant is clearly established. Certain Government property, vie. 112 bags of cement, which had beds entrusted to him in the capacity of store keeper, is proved to shave been delivered by him to his co‑accused Abdus Sattar, and by the latter's statement and other evidence it is proved that the property was being diverted to private use, in contravention of the conditions of the trust. These bags formed part of a lot of 180 bags, which were the residue of 400, bags, allotted under an indent presented by one Ch. Niamat Khan, P. W. D. Overseer, and the appellant's duty was to issue quantities out of the deposit, in accordance with written instructions to be issued by Ch. Niamat Khan, or by or on behalf of a contractor who had undertaken to transport the cement. On two previous occasions, 110 bags and 120 bags respectively were thus delivered, as shown by the receipts Exh. P. C., signed by the contractor's employee Rasul Khan, and Exh. P. C. 1 thumb‑marked by a cart‑man Ali Hassan, respectively. The appellant admitted having delivered 112 bags to persons who came with the truck in which the property was captured‑there were no other than Abdus Sattar and the driver Muhammad Rafiq. He claimed that he did so in compliance with a chit Exh. P. G. from Niamat Khan, dated 25th June 1953 (four days before the actual delivery;, which reads :‑ "Kindly give 180 cwt, cement balance of my indent to the man bearer of this slip and oblige". This chit .was produced by the appellant, before the Police, and his own books of account show that 112 cwt. had been debited, in conformity with the delivery in question. But that is by no means sufficient to establish the plea. For, in the first place, the chit bears no receipt, as was the case with the earlier chits. In the second place Abdus Sattar does not speak of passing any chit by Niamat Khan to the appellant to secure delivery. Thirdly, Niamat Khan says he sent the chit through .the transport contractor ; and the evidence of Ali Hussain (P. W. 5) and Shah Muhammad (P. W. 6) was led to show that this chit was handed over to the appellant, who replied that there was no cement in the store out of which delivery could be made Niamat Khan further says he received, on this occasion, through the contractor a chit Exh. P. H., which the appellant admits having written, and which reads as follows :‑‑ "Your carts came to receive the remaining cement of your indent. I am unable to give the cement as I have not got the keys of the store with me I request you to correct the account of the cement of the indent received by you". These circumstances are sufficient to disprove the defence plea but the appellant further contended that the chit Exh. P. H. was given by him to the cartman who arrived some time after the delivery to Abdus Sattar, and made an oral request for delivery of the balance of 68 bags. He relied also upon the statement of the cartman Ali Hassan that the appellant had returned to him the chit he had brought, with something written on the reverse. As no such chit has been produced, and the appellant himself does not claim to have sent any reply to Ch. Niamat Khan on the back of his chit, the statement of the illiterate Ali Hassan on this point need not be taken literally. And, of course, it is not to be believed in the face of the proved, practice, of asking for delivery against chits, that a mere oral request by cartman would have been attempted by Niamat Khan. As to the evidence of this person, it cannot be denied that the modus operandi in the case required his co‑operation, if it .was to be successful. Yet, the evidence of a P. W. D. mate Ghulam Nabi, who deposed as D.W. 3, goes to show that the reversion of the property was actively negotiated by the appellant himself. The last line in the chit Exh. P. H. could perhaps be read as an instruction to complete the accounts at Ch. Niamat Khan's end, but here again, having regard to the rapidity of events, the fact that the chit does not say anything about the exact number of bags to be accounted for in the absence of which there was a grave risk of the two sets of accounts not tallying, would seem to clear Ch. Niamat Khan of complicity' in this particular transaction. In any case, there are other circumstances besides the evidence of Ch. Niamat Khan, which serve to disprove the appellant's plea based on the chit Exh. P. G. I would accordingly dismiss this appeal. A. H. Appeal dismissed.