P L D 1955 Federal Court 129 (PLP)

MUHAMMAD SHARIF, J.‑This is an appeal, by special leave, against the judgment and order of the High Court of .Judicature at Dacca, dated the 5th April, 1954, by which the conviction of the appellant under section 409 of the Pakistan Penal Code and the sentence of six years' rigorous imprisonment were maintained and the appeal was dismissed. The appellant was Treasurer of the Faridpur Treasury and in the Company of Head Poddar was tried under section 409 in respect of the embezzlement of Rs. 7,818 4‑

1. Dealing with his case, learned Judges of the High Court observed as follows :‑ "If there were nothing else on the record, we should have inclined to accept this argument and hold that although the Treasurer's gross negligence prevented the detection of the Poddar's embezzlement for some days yet he was not criminally liable for abetment. There is. however, on record a slip of paper containing entries as to the total receipts and payments as at first noted in the Treasurer's cash balance of the 11th of November, 1950, and also an entry of the sum of Rs. 960 against the name of Safdar Hossain, entries which have been proved to be in the handwriting of the appellant Treasurer. This slip of paper was recovered from the possession of the Treasurer by the police, and in our opinion, its presence in the appellant Treasurer's pocket clearly shows that he was guilty of something more than gross negli gence. The Treasurer offers no explanation of this slip, Mr. Gani, when asked to explain why the appellant should keep in his pocket a piece of paper showing the total receipts and payments as first noted in the Treasurer's cash balance of the 11th of November, 1950, and also mentioning the sum of Rs. 960 against the name of Safdar Hussain, could only suggest the explanation either that the Treasurer did not know that the paper was in pocket or that he had kept the paper through inadvertence. In out opinion, the fact that he had kept that paper, clearly shows that he was aware, that he might on some subse quent date be called upon for an explanation and he wished to have it with him as aidememoire. The fact of the presence of this slip of paper, in our opinion, clinches the guilt of the Treasurer and shows that his failure to detect that the sum of Rs. 6,868/7 which had not been paid to Safdar Hossain was not recredited on the 9th, 10th or 11th, was not mere oversight on his part but was something much more." It would readily appear from the above excerpt that the learned Judges might have accepted the appeal and acquitted the appellant, but for the fact that a slip of paper which was found by the police in his pocket, was considered to connect him directly with the defalcation. The slip of paper which was given so much importance was never put to the accused, and he was never asked to explain what was it about and under what circumstances was it prepared. Section 342 deals with the examination of the accused with particular reference to the circumstances appearing in evidence against him. The question put to the accused were :‑ "Q. I.‑You have heard the evidence adduced against you, do you want to say anything? Ans.‑I am innocent. Q. 2.‑Do you want to say anything more? Ans.‑No." In fairness to the accused, it was necessary to call his attention to the slip of paper which was alleged to have been recovered from his pocket and to ask him for an explana tion, if any. It has been frequently observed, more particularly in cases coming up from East Pakistan, that the statement of the accused is taken not with a view to an explanation from him in relation to the matters appearing in evidence against him and which are likely to influence the mind of the Court in coming to an adverse conclusion, but merely as an empty formality. Compliance with section 342 of the Criminal Procedure Code is absolutely essential in accordance with . its terms, and where this is not done, the conviction might be quashed, or the trial might be set aside, if some prejudice appears to have been caused to the accused. Particular care should be taken, that the important elements in the prosecution case which need some explanation from A the accused should be put to him in a succinct form and his reply recorded. It is wholly against the provisions of the Criminal Procedure Code or the demands of natural justice that a person should be convicted on the basis of something, of which he was not given any notice, and to which he was never required to give his own reply. The) courts in Pakistan should make a notice of this, and the re quirements of section 342 must be fulfilled. Since the appellant was not given an opportunity to explain the figures etc. noted on the slip, his conviction cannot be allowed to stand. It is hereby set aside. The case is remanded to the Trial Court for retrial from the stage where the statement of the accused was to be taken. The accused should be specifically asked whether the slip of paper said to have been recovered from his pocket, was really so recovered, and if the answer be in the affirma tive what explanation could he offer regarding the figures etc. noted on it, with particular reference to the item of Rs. 960 against the name of Safdar Hossain. The appellant appears to have been in jail for more than a year. He shall be released on his furnishing security in such amount as the District Magistrate might fix. K. M. A. Retrial ordered.