1969 PLP 790 (SCMR)

ABDUL RASHID, C. J.‑The appellant, Hamid Hussain, and one Mangharam, were tried by the Special Magistrate, Hyderababd, for an offence under section 408 of the Pakistan Penal Code. They were alleged to have committed criminal breach of trust in respect of a sum of Rs. 10,600 as servants of the Electric Corporation, Hyderabad. The Magistrate acquitted both the accused on the ground that he was unable to make up his mind as to which of the two accused had embezzled the sum of Rs. 10,

600. He, accordingly, gave the benefit of doubt to both. Against this decision, the Provincial Government preferred an appeal in the Chief Court of Sind against both Hamid Hussain and Mangharam had meanwhile from Pakistan to India, and it was found impossible to secure his presence. The appeal of the Provincial Government against Hamid Hussain was accepted by the Sind Chief Court the order of acquittal was reversed, and the appellant was sentenced to two years' rigorous imprisonment. By an order dated the 14th February 1951, special leave was granted to Hamid Hussain to appeal to this Court. The material facts of the case may be shortly stated. Sardar Bahadur (P. W. I) was the Manager of the Electric Corporation of Hyderabad. He had retired as a Collector of Hyderabad in. 1946, and had taken service with the Electric Corporation. Mangharam, accused, was Secretary of the Corporation, and Hamid Hussain, appellant, was the Head Cashier. The permission of the Manager was necessary before any employee could take an loan from the Company. In February 1949, Mangharam wanted a loan of Ids. 5,

000. He was told by the Manager to raise as much money as possible privately. As Mangharam had a deposit of Rs. 1,000 with the Company, the Manager sanctioned him a loan of Rs. 4,

000. He was allowed to draw a sum of Rs. 5,000 that belonged to him. In the ordinary course of business, Hamid Hussain was in custody of the funds of the Company. It is the case for the prosecution that on the 11th of February 1949, Gaya Din, peon, was sent by Mangharam to bring Rs. 5,000 from Hamid Hussain as Mangharam had to deposit that sum in Court. The peon brought Rs. 4,000 to Mangharam and told him that the balance would be brought by the cashier personally. Hamid Hussain there came to Mangharam and stated that he had no loose cash.. Accused Hamid Hussain then took back the money, and according to Mangharam, promised to pay him the sum of Rs. 5,000 on the next day. The next day also Hamid Hussain offered to pay Rs. 4,

000. Mangharam did not take it, but instead got a cheque for Rs. 5,000 from the Manager, Sardar Bahadur. On the 13th of February 1949 Mangharam accused discovered that a sum of Rs. 10,600 had been taken away by the appellant and he informed the Manager about it. The Manager told him to report the matter to the Police. Sardar Bahadur has stated in his evidence that he was informed on the 13th by a telephonic message by Mangharam that the uncle and father of Hamid Hussain had come to the office of the Company to settle the matter by making good the loss. The Manager, however, insisted that a report must be lodged with the police. On the 14th of ‑ February, the appellant went to the Manager with the money, and wanted the sealed room to be unlocked, so that he may deposit the amount in the safe and the whole affair may be hushed up. The Manager, however, refused to countenance this procedure. The prosecution also relied on a confession of the appellant alleged to have been made on the 13th of February. Both the trial Court and the Chief Court of Sind have held that this confession was inadmissible in evidence. So far as the conduct of the accused in offering a sum of Rs. 10,600 on .the 14th of February is concerned, the trial Court held that the evidence of the Manager on this point could not be relied upon. The Chief Court of Sind has, however, attached a great deal of importance to the evidence of the Manager to the effect that the appellant had brought a sum of Rs. 10,600 to him on the 14th of February, and had asked that this sum be deposited in the safe after unlocking it and breaking the seals. It was contended by Mr. Bashir Ahmad, on behalf of the appellant, that the evidence relating to the fact that the appellant on the 14th of February had gone to the Manager with a sum of Rs. 10,600 and that he wanted this sum to be deposited in the safe, was inadmissible. He urged that this evidence in the circumstances of this case must be regarded as a part and parcel of the confession, as this course was adopted by the appellant in order to implement the confession. In our opinion, this contention is wholly devoid of force. The appellant had made a confessional statement on the 13th of February. After that statement had been handed over to the General Manager, the accused was asked to arrange to pay the money but he said that he had no money at the time. The Manager then asked him to give him a cheque, but the appellant and his uncle declared that they had no account in any bank, and that they would pay the money by cashing certain cash certificates. The appellant and his uncle left the office of the Company. On the next day, the accused came with the money, and wanted the sealed room to be unlocked so that he could deposit the money in the safe. The conduct of the accused on the 14th of February amounted to an entirely independent act, and could, under no circumstances, be regarded as a part and parcel of the confession. On the 14th of February, the accused did not admit his guilt. He, however, wanted to pay Rs. 10,600 to the Manager so that the whole matter may be hushed up. The conduct of the accused has not been relied upon by the Chief Court as amounting to an admission of guilt. It has been taken into consideration as one item of evidence in conjunction with several other items. The contention of the counsel is therefore untenable. Admittedly, the appellant was the Head Cashier, of the Corporation. It is beyond question that a sum of Rs. 10,600 was entrusted to him on behalf of the Company and that this amount of money disappeared between the 11th and 13th of February. The case for the defence is that this money was taken away by Mangharam. According to the defence, Rs. 4,000 were sent to Mangharam through the peon, while a sum of Rs. 6,600 was taken by the appellant from the safe and paid to Mangharam on the 11th of February. T lie Sind Chief Court has held that the defence version of the incident has not been established, and we are not prepared to go into this question of fact afresh in this Court. It has also been held that the evidence of the Manager relating to the conduct of the accused on the 14th of February, together with the evidence of the Accountant that he did not see any pencil note on the 11th of February relating to Rs. 10,600 on the rough cash book, and the absence of any voucher on the 11th February evidencing that a sum of Rs. 10,600 was paid by the appellant to Mangharam, were sufficient to establish that the appellant had committed criminal breach of trust in respect of this sum. The entire evidence produced in the case has been carefully) considered by the Sind Chief Court, and as no reliance has been) placed on any inadmissible evidence by the Court below, we cannot go into the credibility of the evidence which has been relied upon by the Chief Court. We accordingly dismiss this appeal. Appeal dismissed.