P (PLP)

R. K. M. SAKER, J. C.‑This is a revision petition against the judgment of the Sessions Judge in Baluchistan, dated 28th Augusti;1:950 in which he has upheld the order of conviction of the petitioner passed by the trial Court, on 11th May 1950 in finding, him guilty of an offence falling under section 409, Pakistan Penal Code though the learned Sessions judge has modified the sentence passed against the petitioner. I have heard learned counsel for the petitioner as well as the Public Prosecutor and I have also perused the records of the case. Very briefly the petitioner was originally charged with two offences of criminal breach of trust under section 409, Pakistan Penal Code but he was acquitted of one charge and all that remains is to examine the case against him in which he has been convicted. At the time of the alleged offence the petitioner was a Naib Tahsildar in the Food Supplies Department and was entrusted with the distribution of potatoes to certain zamindars and to recover from the zamindars at the time of harvest the cost of the potatoes which bad been supplied to them by Government for seed purposes. During the course of his Government duties the petitioner distributed 1,238 maunds of potatoes the total price of which was Rs. 9,

904. It was his duty ultimately to collect this sum from the zamindars together with a sum of Rs. 250 which was outstanding as arrears from the previous year: .The case for the prosecution is that after depositing certain sums of money for credit to Government a sum of Rs. 4,000 or Rs. 4,096 was outstand ing against the petitioner for which he could give no account despite the fact that this sum had been collected from the zamindars concerned. The prosecution case relies very largely on two documents which have been filed which are statements of accounts submitted by the petitioner to the Food' Directorate. Further documentary evidence has been adduced in the form of a register which was kept by the petitioner and from which the two abstract statements referred to above had been taken and from which the prosecution allege that the above sum was still outstanding against the petitioner. The learned Sessions judge in his judgment had held all these documents to be admissible in evidence and in upholding the conviction of the petitioner he has based his judgment mainly on the documentary evidence adduced. The learned counsel for the petitioner before me has argued the case, firstly on the ground that the requirements of an offence under section 409, Pakistan Penal Code have not been fulfilled ; secondly, that the statements of accounts submitted by the petitioner are inadmissible ; and finally that it was necessary for the prosecution to prove by the evidence of the zamindars concern ed that they had actually paid the price of seed potatoes supplied to them by the petitioner. Other points urged were that the examination of the petitioner in the lower Court was cruel and searching and that the Court attempted to procure corroboration of the case for the prosecution from the mouth of the accused (petitioner). It is also contended that the charge was both defective and bad in law since it did not state how the entrustment had been created ; nor was it made clear to the petitioner exactly what the charge was. In dealing with the first point, it is necessary to examine what the essential ingredients of a charge under section 409, Pakistan Penal Code are. Evidence must be conclusive that the petitioner was entrusted with property or with dominion over it and that he misappropriated it or converted it to his own use or disposed of it ; and finally that he did so in violation of any legal direction given to him. The evidence, together with the statement of the petitioner in Court, indicates that the petitioner received 1,238 maunds of potatoes for distribution and distributed them. It is also in evidence that the petitioner was responsible for the recovery of the cost of these potatoes. The register which I consider to be admissible in evidence clearly indicates that `taccavi ' or the recovery of advances was effected from the zamindars concerned and since this is in the handwriting of the petitioner and is a document admitted by him there can, in my opinion, be no doubt whatsoever that he did recover the money from the Zamindars concerned. It is perfectly clear therefore that the petitioner was entrusted with property, namely the property of Government in the form of money recovered from the zamindars, and it should have been credited to Government after recovery. As for the question of misappropriation ample opportunity has been given to the petitioner to explain .the position, but he has failed to give any convincing account of his failure to credit this money to Government. It is not, I consider, incumbent upon the prosecution to show exactly how a person who has misappropriated money has made use of it. If a relatively long period elapses during which time an accused person is unable to give an account of the money a presumption would, in my opinion, be raised against him to, the effect that since he was unable to account for it, or to pay it to Government; he had misappropriated it. The final ingredient that in misappropriating this money he did so in violation of orders given to him is clear in this particular case, since it needs no argument to show that an agent of Govern ment, who is responsible for the collection of money owing to Government is failing in his duties if he does not credit the money so collected. Such action would obviously be contrary to the directions given to a Government servant in this respect. As for the admissibility of the documentary evidence against him it appears to me to be immaterial to take into consideration whether or not the two statements of accounts submitted by the petitioner and admitted by him are admissions of guilt within the purviews of the Evidence Act. These statements of accounts, being in themselves contradictory, were drawn up, as admitted by the petitioner, from the register which had been kept in his own hand writing and on which he based his accounts. As for the argument that all the zamindars should have been produced to give oral evidence about the payment or otherwise to the petitioner this necessity hardly arises since oral evidence is of secondary value as compared with documentary evidence. It is also not incumbent upon the prosecution to produce any particular witness if they do not wish 'to do so and if, by other evidence, mainly documentary in this case, they are able to prove the charge. It was always open to the defence, during the trial, to call any of these witnesses if they were, able to assist in proving the innocence of the petitioner, or to disprove any of the evidence led for the prosecution. In reviewing the case at large against the petitioner I find that P. W. 1 who is the Accounts Officer of the Food Directorate .has stated in evidence that the petitioner had asked him for one month's time in which‑to credit the money. This I consider to be vital evidence for the prosecution because there is nothing to indicate that this witness was in any way biased against the petitioner since at the time the misappropriation took place this witness was not serving in Baluchistan. To some extent the evidence of this witness is corroborated by the written explanations of the petitioner filed with the Director of Food Supplies and proved by prosecution as Exhibit P/A and Exhibit P/Z, in which he alleges that the money was lost from his house. In examining this statement it appears evident to me that apart from the fact that it was improper for a Government servant to keep Government money in his own house when he should have credited it to Government the fact that no defence evidence has been led to show that a report of this loss was made to the police the statement of the petitioner must inevitably be viewed with extreme suspicion. There can be little doubt that if this statement were true any Government servant who had had Government money stolen or otherwise lost from his house would immediately have reported the matter to the police. The fact that the petitioner did not do so, since he had led no evidence to this effect must indicate that this statement is not the truth. To sum up, I would again reiterate that the powers of revision of this Court under section

439. Criminal Procedure Code will only, be exercised where there has been a clear miscarriage of justice and where the lower Court's judgment is clearly perversely based on the evidence of the case. It would not be proper for this Court to substitute an opposite view of the facts from the view, taken by the lower appellate Court particularly when that Court has come to the same view of the evidence as the original trial Court. Since the case is at large before me, both as to the law and to facts, I cannot find anything perverse in the judgment of the learned Sessions judge ; nor do I consider that there has been a miscarriage of justice in this case. The arguments adduced by learned counsel for the petitioner do not particularly attract me for I am of the same view as the Sessions judge in admitting the documentary evidence against the petitioner. Since this evidence is admitted the case is clear and there is no doubt in my mind that the petitioner has been properly convicted. Finally, I have perused the examination of the petitioner in the original Court since an allegation has been made that this examination was very cruel arid searching. I find no reason to assume that the examination was cruel though it was undoubtedly searching. This, however, I consider was necessary in the circumstances of this particular case since complicated accounts were involved and it was necessary in the interests of justice for the trial Magistrate to attempt to arrive at the truth and to give the petitioner the fullest possible opportunity of explaining the circumstances of the case against him. In the circumstances, for reasons stated above, I see no reason to exercise my powers of revision and accordingly reject the petition. A. H. Petition rejected.