P L D 1956 Federal Court 143 (PLP)

MUHAMMAD MUNIR, C. J.‑

This is an appeal by special leave from a judgment of the High Court of Dacca maintain ing the appellant's conviction under section 420, P. P. C. and the consequent sentence of 15 months' rigorous imprisonment and a fine of Rs.

600. The appellant, Muhammad Yakub, was tried by a Special Judge on the allegation that he was a party to a conspiracy between some members of Haji Maula Bux's firm and some officials of Land Customs Station at Dacca the object of which was to defraud the Pakistan Government of export duty due on certain shipments of hides to India and that in pursuance of this conspiracy the appellant did deprive that Government of an amount of such duty. Out, of the several accused persons only the appellant was convicted. We are not concerned with the reasons on which the order acquitting the other accused was passed though we have a distinct, feeling that but for the collusion of some customs officials with Haji Maula Bux's firm the alleged fraud could not have been committed The sole question that falls for decision in this appeal is whether the appellant's case falls into those special categories of cases where this Court interferes with criminal decisions the lower Courts. It is proved try documentary evidence that a permit for export of hides to India was obtained on the representation that the weight of the hides on which export duty had to be paid was 12,690 lbs., whereas in point of fact the goods weighed 29,430 lbs. The application for permit was addressed to the Officer‑in‑Charge of the Land Customs Station at Dacca and purported to be on behalf of Haji Maula Bux. It stated' that 250 bundles of hides, each containing 10 pieces, weighing 12,690 lbs., were to be shipped to Calcutta via Khulna and that the amount of duty to be paid on it was Rs. 1,205‑14‑0 for which a treasury receipt of payment had been obtained on 30th November 1948. The goods. however, when seized on the spot, weighed 29,430 lbs., i.e,, more than double the admitted weight. This application purported to bear the signature of M. Yaqub for Haji Maula Bux under a declaration dated the 24th November 1948, to the effect that the particulars given in the application were true. The application thus amounted to a misrepresentation as to the weight of the goods and if this misrepresentation was made by the appellant in order to defraud the Government of the export duty due there can be no question that the appellant was guilty of cheating punishable under section 420, P. P. C. It has been found both by the learned Special Judge, who tried the appellant, and the learned Judges of the High Court, who examined the evidence on appeal, that the declaration dated the 24th November 1948, was signed by the appellant. This finding is based on the evidence of one Ameluddin and that of Mr. Badruddin Ahmad both of whom claimed to be acquainted with the handwriting of the appellant and deposed that the words " M. Yaqub for Haji Maula Bux " on the application were in the appellant's hand. It may be that Ameluddin was unable to identify the appellant's signature on another document, but this defect in the witness's evidence has been noticed by the learned Judges of the High Court. As regards the evidence of Mr. Badruddin Ahmad all that Mr. Roy urged was that this witness was not acquainted with the handwriting of the appellant before the occurrence in question. This, however, is not correct because the witness did say in his evidence that he had become acquainted with the handwriting of the appellant before the events in question, and this claim of his was not tested in cross‑examination. The result, therefore, is that we cannot see any sufficient reason to interfere with the concurrent finding recorded against the appellant that he signed the application on the basis‑of which a permit was issued by the custom authorities under which double the weight of goods was attempted to be shipped. We see no force in the other contentions raised, namely, that the permit was not valuable property or that because the goods had to be checked once more at Khulna the appellant cannot be said to have made any false representation to the Customs authorities at Dacca. He undoubtedly made a false representation and thus obtained a valuable document which permitted him to ship a larger weight of hides to India. All the essentials of the offence of cheating exist and the appellant was rightly convicted. Before we conclude, we must express our regret at the perfunctory manner in which accused persons are being questioned by the presiding officers of original Courts in this Province under section 342 of the Criminal P. C. The law on this point has been explained in several decisions of this Court which are either not being studied by the subordinate judiciary or, what is more serious, are being ignored in this particular case, for instance, the main evidence against the appellant was the declaration that he is alleged to have signed on behalf of Maula Bux and yet, surprisingly enough, the appellant was not at all questioned whether the words " M. Yaqub for Haji Maula Bux " were or were not in his handwriting. We would have set aside this conviction if we had felt that the omission to question the appellant on this part of the case had resulted to a miscarriage of justice or prejudiced the appellant in his defence but no such suggestion has been made from the bar. If the appellant had been specifically questioned about the declaration he could either have denied the signature or admitted it and attempted to give some explanation of the circumstances in which lie signed the document. In the arguments before us however, what has been conten ded is that the signature is not proved to be in the handwriting of the appellant. If that contention is repelled, counsel is unable to indicate anything in the circumstances which might show that the appellant could have honestly signed this document. The evidence is that the contents of the application were written by M. Shafi, another clerk of Haji Maula Bux and that the declaration was signed by the appellant. The terms of the declaration clearly show that even if the document was written by somebody else, the appellant was vouching for is truth. He was, therefore, adopting the contents of the document and thus making a false representation. For these reasons the appeal is dismissed. The appellant who was released on bail by the High Court shall now be arrested to undergo the un expired term of his imprisonment. A.H. Appeal dismissed.