P L D 1962 (W (PLP)

This is a reference by the learned Sessions Judge of Karachi recommending that the sentence of fine of Rs. 500 or 3 months' rigorous imprisonment in default imposed on the respondent Yousuf Qamar for an offence under section 406, P. P. C. be enhanced, as it was "inadequate and ludicrously low " for the reason that the criminal breach of trust was committed in respect of an amount of Rs. 2,

500. The respondent was convicted and sentenced by Mr. Zikarur Rehman, S. D. M. Harbour, Karachi on 3‑12‑1960.

2. Mr. G. M. Shah appearing for the respondent has contended that there is no question of enhancement of sentence as the conviction of the appellant cannot be sustained. In view of this contention raised on behalf of the respondent it is necessary to state the facts of the case in some detail.

3. The allegations against the respondent were that he had received an amount of Rs.2,500 on different dates from the complainant Muhammad Ghalif Qureshi (P. W. 3) for the construction of the roof of the complainant's house in Nazimabad. Rs. 1,000 were paid by cheque on 16‑10‑1956, another sum of Rs. 1,000 was paid on 5‑3‑57, by means of a second cheque, and the last instalment of Rs. 500 was paid on 1‑4‑57 also by a cheque on the same bank, namely, Habib Bank, Karachi. The respon dent furnished receipts (Exh. 3‑A, Exh. 3‑B, Exh. 3‑C and Exh. 3‑D) relating to these amounts. The complainant alleged that after buying some material for the construction of the roof in question and also putting up shutterings for this purpose, the respondent disappeared and also removed the material and the shutterings, thereby leaving the work unfinished. The respon dent was ultimately traced by the complainant and an acknowledg ment (Exh. 3‑E) was obtained from the respondent on 4‑9‑

57. In this document the respondent admitted the receipt of the sums mentioned above and promised that he would undertake the con struction of the roof on 25‑9‑57, and finish the job within one month. The respondent, however, did not carry out his undertak ing and once again disappeared. The complainant thereupon registered a case against the respondent under section 406, P. P. C. on 9‑10‑57.

4. When examined under section 342 of the Criminal Pro cedure Code, the respondent chose to make an evasive reply to all the questions put to him by the trial Magistrate, by stating that he did not remember anything and that he would put in a written statement. This examination of the accused was conducted on 8‑1‑

60. Nearly seven months later, that is on 1‑8‑60, the respondent submitted a written statement in which he admitted the receipt of these amounts and alleged that he had completed the work in question by December 1956. He produced certain evidence in his defence to support this contention.

5. Two of the defence witnesses, namely, Muhammad Fazal (D. W. 1) and Muhammad Qayum (D. W. 2), were officials of the House Building Finance Corporation from which the complainant had borrowed money for the construction of his house. These witnesses did not disclose anything useful for the defence. The third defence witness, Manzoor Husain, a police constable stationed at the Nazimabad Police Station, deposed that in September 1956, he had visited the house of the complainant and found that the roof was complete. He added that at that time officials of the House Building Finance Corporation were present for inspection of the house. The fourth defence witness Muhammad Yousuf deposed that he was a mason who worked on the construction of the house m question and that the roof was completed some time after Independence Day in 1956. Besides the oral evidence of these witnesses, it was asserted in the written statement filed by the respondent that the third instalment of the loan was drawn by the complainant on 17‑12‑1956, and it showed that the roof was complete at that time. In other words, the burden of the defence evidence pro duced by the respondent was that the roof had been completed in December 1956, and therefore the respondent had discharged his liability and there was no question of any misappropriation.

6. The entire defence is, however, negatived completely and effectively by the acknowledgment (Exh.3‑E) executed by the respondent on 4‑9‑

57. This very document shows that not only did the respondent admit the receipt of the money in question, but he also admitted that the job of constructing the roof had yet to be undertaken, and he promised to start the job on 25‑9‑57 and to complete it within a period of one month thereafter. If indeed the roof of the house had already been completed in December 1956, one fails to understand why in September 1957, the complainant was seeking to obtain a writing from the respondent regarding the completion of the roof and also why the respondent executed such a writing. It is not suggested by Mr. G. M. Shah, the learned counsel for the respondent, that the complainant wanted a double roof to be put on the house. It is also significant that the argument now advanced by Mr. Shah that Exh. 3‑E was obtained from the respondent under coercion` was not adopted by the respondent himself on the two occasions when he had the opportunity of taking such a plea, namely, when he was examined on 8‑1‑60 under section 342 of the Criminal Procedure Code and secondly on 1‑8‑60 when he furnished his written statement.

7. I am in entire agreement with the trial Court that the evidence on the record clearly proves that the respondent had received a sum of Rs. 2,500 for constructing the roof of the house of the complainant, that he did purchase some material out of this money for this job but subsequently he removed the material and misappropriated the material as well as the balance of A the money remaining with him and failed to execute the job as promised in writing (Exh. 3‑E). He disappeared from the scene his dishonest intention. The result, therefore, that an offence under section 406, P. P. C. stands clearly established against the respondent.

8. A sentence of fine of Rs. 500 is clearly inadequate in the circumstances of the case. The respondent was working as a building contractor and in that capacity he was entrusted with different sums on different dates, but not only did he fail to execute the job as promised, he also disappeared from the scene and it was with great difficulty that he could be traced. The record of the trial shows that in the first instance he was declared an absconder and proceedings started against him under section 512 of the Criminal Procedure Code. The amount involved is quite large, namely, Rs. 2,

500. It is necessary that offences of this kind should be punished adequately otherwise the day to day business of the community cannot be carried on. I consider that in this case a sentence of imprisonment is indicated in addition to a substantial fine. I would accordingly set aside the sentence of Rs. 500 fine imposed by the trial Court, and instead sentence the respondent to undergo rigorous imprisonment for one year and to pay a fine of Rs. 3,000 or in default to undergo further rigorous imprisonment for 6 months. Out of the fine, if realised, a sum of Rs. 2,500 shall be paid to the complainant as compensation. S. B. Sentence enhanced.