1985 P Cr (PLP)

(4) P.W. Ali Nawaz (Exh. 14), (5) P.W. Muhammad Mobeen (Exh. 17), (6) P.W. Muhammad Ismail (Exh. 18), and (7) P.W. Abdul Hameed (Exh. 20). They have deposed the same thing about the three disputed items as they have deposed in Special Case No. 15/1978 in respect of the first item of Rs.128.87 the receipt of which had been produced a Exh. 3 in that case. The relevant receipts in respect of the three disputed items in this case have been produced as Exhs. No. 3, 7 and 8 by P.W. Khairuddin.

21. In both the cases appellant Ranomal has admitted that. he had received the amounts stated in the four receipts in question. He also admitted that he had not entered these amounts in the cash book, nor deposited the same in the Bank. His explanation is "head of disbursement was not decided, hence no entry was made in cash book". He has alleged that amounts in respect of all the four receipts which were issued by him, was lying in his charge in the office. He does not say as to when this amount was deposited in the Bank. But it is established from the record that he had not deposited the amount until the irregularity was discovered by the audit party at the time of inspection of accounts. From the judgment of the trial Court it appears that the amounts in respect of the four receipts were deposited after 15 months of receiving the same.

22. P.W. Abdul Hameed, Circle Officer Anti‑Corruption, who had partly investigated the case, has produced certain challans showing deposit of certain amounts in the Bank. He had secured these challans from the appellant during his interrogation. These challans have been produced as Exhs. 20, 21, 22 and 23 in Special Case No. 15/1978 (which is subject mattter of Cr. Appeal No. 181/1980). The particulars of the four challans are as under:‑ (1) Exh. 20, dated 20‑7‑1968 for Rs. 133.40, (2) Exh. 21, dated 11‑4‑1968 for Rs. 153.20, (3) Exh. 22, dated 3‑5‑1968 for Rs. 150 and (4) Exh. 23, dated 27‑7‑1967 for Rs.112.50. It would thus appear that excepting the amount shown in challan (Exh. 23), all the other amounts were deposited in the year 1968, whereas the receipts in question pertain to 1966‑

67. It is, therefore, proved from the very admission of the appellant that he had not deposited the amounts in the Bank for a considerable period i.e. for more than 15 months. From the challans it is also not clear as to which amount pertains to which particular receipt. Even the total of the four challans does not tally with the total of the amount of the four receipts in question. The total amount alleged to have been misappropriated comes to Rs. 743.24 (Rs.128.87 of Special Case No. 15/1978+Rs.617.37 in Special Case No. 20/1978), whereas the total amount of the four challans comes to Rs. 549.18. Thus, some amount still remains unaccounted for.

23. Mr. Azizullah K. Shaikh learned counsel for the appellant has challenged the decisions of the trial Court on two grounds: (1) that the sanction is mechanical and has been issued by the authority concerned without applying its mind to the facts of the case and (2) that the prosecution has failed to prove that the amounts received by the appellant, were misappropriated or converted to his own use.

24. So far as sanction is concerned, he has referred to the following cases:‑ (1) Mehmood Khan v. The State P L D 1977 Lah. 1195, (2) Sher Muhammad v. The State P L D 1962 Kar. 658; (3) Obaidul Haq v. The State 1970 P. Cr. L J 1185 and (4) Muhammad Shafiq v. The State P L D 1976 Lah. 105.

25. In Mehmood Khan v. The State P I, D 1977 Lah. 1195 it has been held that the discretion to issue sanction by the appropriate authority should be exercised judicially after taking into consideration all the relevant facts relating to the case. It has further been held that where facts are not referred to on the face of the sanction, nor it is otherwise proved that they were placed before the sanctioning authority, the sanction is invalid and the trial' Court is debarred to try that case by virtue of section 6 (5) of Pakistan Criminal Law Amendment Act, 1958, the provisions of which are mandatory.

26. In the case of Sher Muhammad v. The State P L D 1962 Kar. 658 it has been held that if the appointing authority is disinclined to accord sanction, but grants sanction on instructions from Suprerior Officer, then such sanction is invalid and the trial is vitiated on that account.

27. In the case of Obaidul Haq v. The State 1970 P Cr. L J 1185, the facts of the case were that the Authorised Officer was unwilling to accord sanction, but Anti‑Corruption Committee decided to prosecute the accused Officer in the absence of the Authorised Officer. The Authorised Officer later accorded sanction due to some pressure of Martial Law Authorities when the country was engaged in war. It was held by a learned Judge of the Dacca High Court that the Authorised Officer was not in a position to form an independent opinion on the question of sanction, which was granted almost under the command of superior authority and as such the sanction was invalid and consequently the trial was vitiated.

28. In Muhammad Shafiq v. The State P L D 1976 Lah. 105, the facts of the case were that the accused employee continued to work on the same post and the same station throughout and was not suspended in spite of charge of having received illegal gratification. Sanction for prosecution was initially refused by the appropriate authority. But later on sanction was accorded by an authority not competent to reverse the same. It was held under the above circumstances that the appropriate authority was not inclined to accord sanction and that the sanction was accorded under advice of the Police. Consequently the sanction was held to be invalid and the trial was held to have been vitiated.

29. In this case sanction was also issued by Mr. Aziz Ahmed, Director, Agricultural Engineering at the relevant time. His deposition is Exh. 7 in Special Case No. 15/1978 in which he has stated that before issuing the sanction he had taken into consideration all the facts and that he was fully aware of the circumstances which had led to the prosecution of the appellant. He has further stated that in the first instance one sanction was issued for all the four items of alleged misappropriation. This sanction has been produced by him as Exh. 11 in Special Case No. 15/1978. He further stated that as the appellant could not be prosecuted for four items of misappropriation in a joint trial, therefore, the items were bifurcated and two sanctions were issued, i.e. one for three items of Rs.116.50, Rs.369 and Rs.128.87 and other for amount of Rs.128 which are subject matters of the two separate criminal cases (Special Cases Nos. 15/1978 and 20/1978). About the subsequent sanction, the learned defence counsel had made certain suggestions to Mr. Aziz Ahmed in cross‑examination to the effect that the same were issued without taking into consideration all the facts i.e. the letters of the Agricultural Engineer addressed to the Anti‑Corruption Police. The witness replied as under to the above suggestions:‑ "It is correct that since the facts of the case were known to me previously and since the sanction of my predecessor had already been granted in respect of this sanction the latter was separated and a revised sanction issued by me Exh. 8 and that is the reason why I had not looked into and taken into consideration letters Exhs. 9 and 10." (Underlining is mine).

30. On the basis of the above admission it has been argued by Mr. Azizullah K. Shaikh, learned counsel for the appellant, that the appropriate authority had issued subsequent sanction mechanically and without taking into consideration all the facts which were placed before him. The letters Exhs. 9 and 10 referred to in the above quotation, were written by the Agricultural Engineer saying that the appellant had not committed misappropriation of the amounts but the irregularity in maintaining the cash book was "on account of his calculating and totalling mistakes due to negligence and carelessness". The Agricultural Engineer further stated in the letter (Exh. 9) addressed to the Superintendent of Police, Anti‑Corruption Establishment as under:‑‑ "On the above charge, Departmental enquiry was conducted and the Superintending Engineer, A. M.O. G. M. B., Hyderabad verified and examined the record personally and he noticed that there is no misappropriation but a bona fide totalling and calculating mistake which generally happened to be accord by human being and there is no intention to convert a public money for his own use, decided the case by imposing a penalty of withholding one annual increment due to his carelessness and negligence in maintaining the accounts properly under E&D Rules vide his Notification No. SE/GMB Estt/13759, dated 25‑11‑1968 According to E&D Rules, 1973 the accused have already been punished departmentally after conducting the impartial and judicial enquiry in the matter under rule No. 7 of Sind Civil Servant E&D Rules, 1973 hence it is requested that there is no necessity of withdrawing the punishment already awarded to the accused in the above‑said enquiry as there is no any intention but a bona fide mistake which generally happened to be accord in the maintenance of account." The letter (Exh. 10) is very important and needs to be reproduced which is as under:‑ "To The Director, Anti‑Corruption Establishment, Sind, Karachi. Subject:‑ Crime No. 9/1970 A.C.E. Thatta against Mr. Ranomal Assistant, Office of the Agricultural Engineer, Thatta. I am forwarding herewith a copy of Confidential letter No.AE/ESTT/1788, dated 18‑8‑1975 received from the Agricultural Engineer, Thatta on the subject noted above. You are requested to go through the case, and direct the section concerned to return the seized record of the Agricultural Engineer, Thatta, to him, at an earliest. Sd/‑ (A.A. Tunic) Director Agricultural Engineering Sind, Hyderabad. O/C Sd/‑Illegible 15/11 Copy f.w.cs. to the Agricultural Engineer Thatta for information."

31. From the above letter it would appear that in the year 1975 the appropriate authority to accord sanction was Mr. A.A. Tunio, Director, Agricultural Engineering Sind, Hyderabad. This Officer was competent to accord sanction and also to reverse a decision regarding sanction. This Officer had agreed with the report of the Agricultural Engineer as contained in his letter Exh.

9. The Agricultural Engineer had endorsed a copy of this letter to the then Director of Agricultural Engineering, whereupon the latter had decided not to accord sanction and had requested the Anti‑Corruption Police to return the papers.

32. The admission of Mr. Aziz Ahmed who has succeeded Mr. A.A. Tunio as Director of Agricultural Engineering in the year 1978, shows that he had not considered all th, relevant facts. The concerned appropriate authority at the relevant time was Mr. A. A. Tunio who was not inclined to accord sanction and for good reasons. The circumstances under which the amounts were not deposited by the appellant in the Bank had been fully explained by the Agricultural Engineer in his letter (Exh. 9). Mr. Aziz Ahmed did not even care to look at this report. Mr. A.A. Tunio, the then Director of Agricultural Engineering had agreed with the report of the Agricultural Engineer that the conduct of the appellant merited only disciplinary action under the Civil Servants E&D Rules and that the case was not fit for sending up to a Court for trial.

33. I am, therefore, satisfied that Mr. Aziz Ahmed had issued the sanction mechanically simply on his previous knowledge that the amounts in question were received by the appellant and that he had failed to account for the same. From the report of the Agricultural Engineer (Exh. 9) it would appear that all the amounts received by the appellant had been subsequently deposited in the Bank and that at no time the appellant had converted these amounts to his own use. The trial is, therefore, vitiated on account of the sanction having been accorded mechanically and without taking into consideration the relevant report of the immediate officer of the appellant, who was fully conversant with the facts of the case.

34. Mr. Azizullah K. Shaikh has also argued that the prosecution has failed to prove that the accused had converted the amount to his own use and as such the offence under section 409, P.P.C. cannot be said to have been committted by him. In support of his plea he has referred to the report (Exh. 9) and the conduct of the accused in having deposited the entire amount in the Bank. He has further stated that since the appellant has rendered sufficient explanation for not entering the amounts in the cash book and not depositing the same in the Bank, hence no offence has been committed by him and that at the most he was guilty of irregularity in maintaining accounts for which he has already been punished under the E&D Rules.

35. In this connection he has referred to the case of Abu Saleh Chowdhry v. The State 1970 P. Cr. L J 612 in which it was held by a learned Judge of Dacca High Court that presumption of guilt under section 409, P.P.C. would arise against the accused if he fails to account satisfactorily for the shortage of goods received in official capacity. If the accused renders reasonable explanation for the shortage, then it is not possible to hold him liable for misappropriation. Mr. Azizullah K. Shaikh has also referred to the case of Shakir Hussain v. The State P L D 1956 S C

417. In this case it was held by the Supreme Court that in order to establish a charge of criminal breach of trust, the prosecution must prove not only entrustment of or dominion over property, but also that the accused either dishonestly mis‑appropriated, converted, used or disposed of that property himself or that he wilfully suffered some other person to do so. In Mir Ahmed v. The State P L D 1962 S C 489 following observations were made by the Supreme Court:‑‑ "Here, the charge was of misappropriation of the sum of Rs.3,000 which was found short in the cash box kept by the accused. The mere absence of the money without more is not, in all cases, suficient to establish misappropriation. The accused is under a duty of furnishing an explanation for the shortfall since custody is exclusively his, but cases are conceivable, i.e. of faulty accounting, or of lack of control in access to the safe deposit, where it would also be necessary, to furnish something by way of proof of conversion to sustain a conviction. Here, the accused admitted that the money was actually missing, and at the same time put forward an explanation for the disappearance of the money which was factual and circumstantial and which is shown to have received independent examination by the investigating agency of the Police in consequence of which it was believed. There was delay in making the disclosure, but in our opinion, the explanation offered for this was not necessarily unreasonable or unacceptable. It has not been considered by the Courts below from the view point of a man situated as was the accused. He had been negligent, and felt it his duty to make good the loss."

36. The above decisions are fully attracted to the facts of this case in which allegation of conversion of the amount by the appellant to his own use has been falsified by the very prosecution evidence i.e. the letters of Agricultural Engineer produced by Mr. Aziz Ahmed as Exhs.9 and 10.

37. There is one more reason for holding that the trial is vitiated and that is bifurcation of the case for separate trials in respect of three items of Special Case No. 20/1978 and one item of Special Case No. 15/1978, which are subject‑matters of two appeals (Cr. Appeals No.180/1980 and 181/1980) respectively. The four items which are subject matter of the two cases are as under:‑‑ (1) Rs.160.50 14‑10‑1966. of Special Case No. 20/1978 (2) Rs.369 13‑12‑1966. (Criminal Appeal No. 180/1980). (3) Rs.128.17 5‑1‑1967. or Special Case No. 21/1978 (Criminal Appeal No. 181/1980) (4) Rs.128.87, 7‑2‑1967 All these items of alleged misappropriation pertain to the period between 14‑10‑1966 and 7‑2‑1967 i.e. within one year. It was, therefore, wrong to have bifurcated the case and tried the appellant separately for three items in one case and for the 4th item in the other case These separate trials and separate convictions and sentences are in contravention of section 222 (2) of Cr. P. C. which runs as under:‑‑ "222.‑‑(1)........................................................... (2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234: Provided that the time included between the first and last of such dates shall not exceed one year." According to the proviso quoted above, if the period between the dates of the first and the last items does not exceed one year, then charge in respect of all the items shall be deemed to be charge of one offence within the meaning of section 234, Cr.P.C. Bifurcation of the items has resulted in serious prejudice to the appellant inasmuch as he has been punished for each item. In fact all the four items should have been included in one charge and tried accordingly. An accused who is tried for embezzlement of several amounts committed on different dates, is not to be punished separately for each item of embezzlement. All the embezzlements committed during a period of 12 months are tol be included in one charge and not separate charges and sentence is top be inflicted not for each item but for all the items combined in one charge.

38. Subsection (2) of section 222 embodies the principle that where the act of a person consists of several smaller acts, then he is to be punished for the whole and not each part of the whole. For example if an accused inflicts three blows with a weapon to a victim and causes simple and grievous hurts to him, then he is not to be punished for each blow inflicted to the victim. All the three blows shall constitute one offence of grievous hurt and the accused, in case of conviction, shall be sentenced for one charge of hurt only and not on three counts of hurt. The learned trial Judge has, therefore, violated the mandatory provisions of sections 222 and 234, Cr.P.C. by trying the appellant separately for different items of alleged misappropriation.

39. For the above reasons I hold that the prosecution has failed to bring home the charge of criminal breach of trust or of any other offence to the appellant. Both the appeals are allowed. The appellant is on bail. His bail bond stands discharged. M.A.K. Appeals accepted.