1969 P Cr (PLP)

The facts material to this application are as follows:- The first respondent was employed in the Fakir Textile Mills, Gambat in the District of Khairpur in May 1964. On the 11th May 1964, he received a sum of Rs. 7,490 from P. W. Sultan Mahmood, Head Cashier of the said Mills, for the purpose of making payments to the staff of the workshop of the said mills. According to the prosecution, out of the said amount, he made payments to the labourers aggregating Rs. 4,102.99 and then absconded with the balance of the money entrusted to him. P. W. Sultan Mahmood, the Head Cashier, learned of the disappearance of the first respondent the next clay, therefore he informed P. W. Shafiq Abbas, the Manager of the said mills, and on 13th May 1964. P. W. Shafiq Abbas, Sultan Mohammad and Riaz Ahmed a Time Keeper of the paid mills, went to the room in which the appellant had been working and they searched this room, but they did not find any cash. However, they found a payment sheet in respect of the labourers, who had been paid by the first respondent and after inspecting this sheet it was discovered that a sum of Rs. 3,387 had not been paid by the first respondent to the labourers concerned. Therefore, P. W. Shafiq Abbas informed Mr. Aizasuddin, Resident Director of the said mills, about the occurrence and was told to try and find out the whereabouts of the first respondent. P. W. Shafiq Abbas made enquiries but could not find the respondent, therefore, he directed P. W. Ch. Adalat Khan, the Labour Officer of the said mills, to lodge a report with the police. Accordingly on 15th May 1964 at 11-00 a.m., P. W. Ch. Adalat Khan lodged a report at the police station, Gambat, against the first respondent in which he stated that the first respondent had received a sum of Rs. 7,490 from the Head Cashier for paying the wages to certain labourers that he had made some payments and then disappeared. Thereafter on 27th June 1964 a second report was lodged by the P. W. Ch. Adalat Khan in which it was alleged that the first respondent had misappropriated a sum of Rs. 3,387/1. It is material to state here that the first respondent was arrested on the same day on which this second report was lodged, and after completing investigations he was challaned. In his statement before the learned Civil Judge and First Class Magistrate, Gambat, the First respondent admitted the receipt of Rs. 7,490 in cash from P. W. Sultan Mahmood for the purpose of distributing the said amount to the labourers in his workshop, but he stated that he had distributed the full amount to the labourers, and he denied the alleged misappropria tion. He also stated that he had enmity with one Muhammad Shamil, Secretary of the Local Town Committee, Gambat, who had threatened him and that he had been falsely implicated on account of that enmity. He examined the Head Cashier of the said Mills P. W. Sultan Mahmood as a witness, although the said Sultan Mahmood had also been examined as a prosecution, witness. In support of its case, the prosecution had examined P. Ws. Shafiq Abbas, Ch. Adalat Khan and Sultan Mahmood to prove the payment of Rs. 7,490 to the first respondent. I may observe here that though such evidence was totally inadmissible the prosecution had also produced in the Sessions Court affidavits by some persons, according to which the deponents were labourers in the said mills but had not been paid by the first respondent. The prosecution also produced a payment sheet Exh. 14-A of which the first respondent had been in charge before he disappeared, and apparently according to this payment sheet, some labourers had not been paid although the first respondent had received payment for paying the wages of the said labourers. I have to observe here that the appellant was arrested more than a month after he had left the said mills on 11th May 1964. Apparently, after leav ing the said mills, he was living in Sukkur, where he was arrested. The learned Civil Judge and F. C. M. has held that because the first respondent had left the said mills without informing any body and was found after a month he was absconder. In view of his absconsion and the evidence of prosecution witnesses, he convicted the first respondent under section 408, P. P. C. and sentenced him to 12 months' R. I. and a fine of Rs. 1,000 or in default 3 months' R. I. Aggrieved by his conviction and sentence, the first respondent filed an appeal in the Sessions Court, Khairpur, which was allowed by the learned Sessions Judge by his judgment dated 8th November 1966. In allowing the appeal, the learned Sessions Judge appears to have drawn an adverse inference against the prosecution on account of the delay in lodging proper F. I. R. He has also held that the evidence of P. W. Sultan Mahmood, Shafiq Abbas, Jamil Ahmed and other was not sufficient to prove misappropriation. Accordingly he has set aside the conviction and sentence of the first respondent and further directed the prosecution of P. W. Ch. Adalat Khan, who had lodged the F. I. R. under section 211, P. P. C. Ch. Adalat Khan, therefore, filed a revision against the said judgment which has now come up for hearing before me. As the State has not filed any appeal against the acquittal of the first respondent, learned counsel for the appellant conceded that he could succeed only if he could show that the appreciation of evidence by Sessions Court was perverse. In the first place, as I have observed, the learned Sessions Judge has held that the evidence of P. W. Shafiq Abbas, Sultan Mahmood, Ch. Adalat Khan, and Riaz Ahmed was not sufficient to sustain the charge of criminal misappropriation. All these witnesses have merely stated that the first respondent had received a sum of Rs. 7,490 for payment to the labourers of the mills, but the first respondent has himself admitted this, therefore, the only question is whether the evidence of these witnesses is sufficient to prove that the first respondent had not paid out the labourers concerned the aforesaid amount of Rs. 7,

490. It is true that the three prosecution witnesses have said that the first respondent had not paid some of the labourers although he had received money for such payment. In this connection learned counsel pointed out that affidavits by the labourers concerned had been filed in the Sessions Court to prove that they had not received payments. These affidavits were not admissible in evidence, therefore they have been rightly disregarded by the Sessions Court. The prosecution should have examined in the trial Court the labourers who had sworn these affidavits to prove that they had not received payment from the first respondent, and in view of its failure so to do, an adverse inference has to be drawn against the prosecution. However, learned counsel has pointed out that the payment sheet Exh. 14-A of which copies were filed in the trial Court, shows that some labourers had not been paid so that the first respondent had not accounted for the amount of Rs. 7,490 received by him. I have examined the payment sheet Exh. 14-A and the submission of the learned counsel is correct. However, no question was put in this respect to the first respondent in his examination under section 342, Cr. P. C. therefore I am compelled to reject this argument. The only other evidence in support of the prosecution case is the occular evidence. P. W. Shafiq Abbas was not at the mills when the occurrence took place, therefore his statement in evidence that some of the labourers were not paid is of o assistance to the case of the prosecution. P. Ws. Ch. Adalat Khan and Riaz Ahmed have supported this evidence. But as they were not the labourers who had to be paid by the applicant their evidence does not support the prosecution case. The only labourer examined by the prosecution is P. W. Jamil Ahmed. P. W. Jamil Ahmed has admitted that he had received his wages in full but he said that the first respondent had paid only two or four other labourers. But it was not the duty of P. W. Jamil Ahmed to be present when the first respondent paid the labourers, therefore the mere fact that payment was not made in his presence does not lead to the conclusion that no labourers were paid by the first respondent, except the few who had been paid in the presence of P. W. Jamil Ahmed. Additionally P. W. Sultan Mahmood has said in evidence that when labourers are paid an entry is made in a separate payment register, but in spite of this evidence, no such register was produced, therefore, the learned Sessions Judge has correctly drawn an inference against the prosecution. Additionally as the first respondent was alleged to have misappropriated a sum of more than Rs. 3,000 and as the mills were forced to make a necessary reimbursement to the labourers concerned, the prosecution should have been produced the books of accounts of the mills to show that the mills had made the payment which the first respondent had not made. The fact that no such evidence was produced also against the prosecution case. In the circumstances discussed, on account of its failure to produce evidence which was available, the prosecution has failed to prove beyond reasonable doubt the guilt of the first respondent. As the first respondent is entitled to the benefit of the doubt, I see no reason to interfere with the order of acquittal of the learned Sessions Judge in the very limited jurisdiction of, this Court in a revision application. However, learned counsel for the applicant has submitted that there is no justification whatsoever for the order direct ing the prosecution of the applicant under section 211, P. P. C. In support of his submission, he has referred me to the affidavits produced in the Sessions Court by the labourers who had not been paid by the first respondent and the payment sheet which itself shows that the first respondent had not paid some of the labourers for payment and their salaries out of Rs. 7,

490. Although the affidavits of the labourers filed in the Sessions Court are not admissible in evidence against the first respondent and have teen rightly rejected, the affidavits do show that the prosecution instituted was not mala fide. Further, as I have observed, the payment sheet Exh. 14-A itself showed that some laboureres had not been paid. This sheet showed many pay ments and there was a controversy before the learned Sessions Judge as to whether all the payments shown in this sheet had been made by the first respondent or not and the learned Sessions Judge held that the prosecution had failed to prove that all the payments shown on the sheet had not been made by the first respondent. Even if this finding is accepted, the pay ment sheet itself shows that several labourers had not been paid at all, although he had received money for the said pay ments. This was prima facie evidence of misappropriation by the first respondent. But he could not be convicted on the evidence because the learned Civil Judge and First Class Magistrate, who tried the case, bad failed to question him on this aspect of the said sheet. But because he was thus fortunate enough to obtain the benefit of doubt, it does not mean that the payment sheet ceased to be evidence. It was evidence and, in view of this evidence, the learned Sessions Judge erred in holding that P. W. Ch. Adalat Khan had deliberately brought false charge against the first respondent. The view of the learned Sessions Judge is based on a total misreading of evidence, therefore his order directing the prosecution of the applicant is illegal and has to be set aside. The Revision Applica tion is allowed to this extent only that the order directing the prosecution of P. W. Ch. Adalat Khan under section 211, P. P. C. set aside. Order accordingly.