1969 P Cr (PLP)

Jamil Hussain Rizvi, Advocate‑General West Pakistan (Abdul Qadir, Advocate Supreme Court with him) instructed by Ijaz Ali, Attorney for the State. Date of hearing : 12th November 1958. SHAHABUDDIN, J.‑Zille Hasnain Kazmi was convicted and sentenced to rigorous imprisonment for six months and a fine of Rs. 1,000 under section 5(2) of Act II of 1947 by the Special Judge, Hyderabad. On appeal the High Court of West Pakistan, Karachi Bench, altered the conviction into one under section 409, P. P. C. and maintained the sentence. This is an appeal by special leave from the judgment of the High Court. The appellant was the Head Clerk of the Executive Engineer, Jherruck at Thatta and his duty was to receive moneys from the treasury, disburse them and maintain accounts. There was a safe in the office which had double keys, i. e. it could not be opened unless both the keys were used. One of the keys was kept with the Executive Engineer while the other was with the appellant; and whenever the Executive Engineer went on tour he left his key with the Accountant as without both the keys the safe could not be opened. The case for the prosecution was that on 24th January 1953 when the Executive Engineer was camping at Jherruck the appellant wanted leave to go to Karachi on grounds of health, that the Accountant (P. W. 6) thereupon sent a telegram to the Executive Engineer informing him of the appellant's request for leave and that the reply was that the appellant could go on leave provided he handed over the charge of the cash etc. But the appellant had left before this reply was received and he did not hand over the cash to the Accountant. This aroused his suspicion and he wrote to the Executive Engineer who reported the matter to the police. P. W. 3 A. S. I. Thatta, received this report on 25th January 1953 and registering a case proceeded to Karachi where he found the appellant in the Sind Government Dispensary as an in‑door patient. The witness then took him to Thatta and searched his house for the key but it was not found. On 29th January 1953 the safe was broken open in the presence of P. W. 4 Subordinate Judge and Magistrate First Class of Thatta, as only one key which the Executive Engineer, (P. W. 2) had left with the Accountant when he went on tour and took it back on the 29th was available and not the other key without which the safe could not be opened and which should have been with the appellant. The Executive Engineer, the Accountant and the appellant were also present when the safe was broken open and what was found in it was only Rs. 4‑1‑0 while according to the accounts a large sum was to by accounted for. That sum, was Rs. 612‑12‑

0. The defence was that this amount was in the safe, that due to illness the appellant did not attend office for several days and during that period the Accountant sent for the key of the safe which the appellant sent through Majid a peon, who was examined as D. W. 1, and that it appeared that the Accountant removed the amount with both the keys which the appellant could not do as he had only one key and that too he sent to the Accountant. The evidence of peon Majid was that the appellant was ill for 3 or 4 days, that during that period he was asked by the Accountant to get the key from the appellant which he did and at that time the appellant was in bed. He admitted that that was the only occasion on which the Accountant had asked him to get the key. He stated that he was present when the safe was opened anti knew that the appellant was being accused of misappropriation of money and yet he did not then say that the Accountant had got the key, for the want of which the safe was being broken open. His explanation for the omission was that he was not questioned about it. The trial Court has noted in the deposition of this witness that his demeanour was "questionable." There was no controversy regarding the amount to be accounted for. Nor was it disputed that the appellant had to account for it. The main contention of Mr. Nasiruddin, the learned Advocate for the appellant, was that defence version that the Accountant obtained the key of the appellant before he left for Karachi was supported by D. W. 1 and that that witness, should have been believed. The Courts below have rejected this evidence and on a consideration of the entire facts of the case we think they were right in doing so. It is difficult to believe that the appellant would have sent his key to the Accountant without enquiring why it was required or obtaining an acknowledgement for it, when he was to account for the money and his case was that the amount was in the safe, that the Accountant was in need of money and not on good terms with him. Then again, the evidence of the Accountant that the appellant was present when the safe was broken open was not subjected to cross‑examination and D. W. 1 admitted that he was present on that occasion, but neither of them stated to the Magistrate (P. W. 4) in whose presence the safe was broken open that the key for the want of which that step was taken had been obtained by the Accountant from the appellant. If the defence version were true the appellant and D. W. 1 would not have failed to mention it on that occasion. The appellant does not say in his statement nor was any suggestion made in the cross‑examination of any of the witnesses to the effect that occasion it was stated brat the missing key was sent to the Accountant. D. W. 1's explanation that he was not questioned about it was, to say the least, puerile. The defence suggestion was no doubt put to the Accountant in his cross‑examination, but that was in 1956. In the circumstances, it is clear that the defence version was an afterthought and the Courts below rightly discarded it. It follows from this conclusion that the money was not in the safe when the appellant left Thatta, for, if it was there P. W. 4, the Magistrate, would have found it on 29th January 1953 as the Accountant could not have in the meantime opened the safe as he had only one key, while the other was with the appellant. It was then argued by Mr. Nasiruddin that if the appellant had been charged under section 5(2) of Act II of 1947 he could have offered to give evidence under section 7 of the Act and the fact that the charge was under section 409, P. P. C. deprived him of that right. It is no doubt true that dishonest or fraudulent misappropriation of any property entrusted to a person in his capacity as a public servant amounts to criminal misconduct punishable under section 5(2), but we have not beets shown any provision indicating that the appellant could not be charged under section 409, P. P. C. If the appellant was desirous of taking advantage of section 7 of the Act he could have raised this point at the time of the trial; but this was not done. No application offering to give evidence was made. As for the fact that the conviction was under section 5(2) while the trial was on a charge under section 409, P. P. C. the learned Judge of the High Court who heard the appeal altered that conviction. There is, therefore, no force in this contention either. Lastly, it was urged that the sentence of imprisonment should be reduced to the period already undergone by the appellant as the occurrence took place in 1953. But, this Court does not ordinarily interfere on the question of sentence and the delay in the disposal of this case was taken into consideration by the trial Court in passing the sentence. The appeal is, therefore, dismissed. The appellant will surrender to his bail bond and undergo the unexpired portion of the sentence. Appeal dismissed.