P L D 1959 (W (PLP)

The facts in brief are that on the day of occurrence which was 10th July 1956, both Ali Abbas and Muhammad Ahsan were employees of Public Works Department at Ghouspur Ali Abbas was a storekeeper and Muhammad Ahsan was a log book clerk. It has been established by the evidence of Saeed Ahmed P. W. 1, who is a driver of a Bus of Caltex Company that both of them placed twelve empty drums in his bus from P. W. D. Godown at Ghouspur, sat in the bus and unloaded the drums in front of Caltex Depot in Sukkur. To this extent the story has been proved beyond doubt and has been admitted by Ali Abbas too. No entry for the removal of these twelve drums from the Godown was made, as was required by the practice and the instructions. In Sukkur at the Caltex Depot tresc twelve drums were placed in two donkey carts and were taken to the godown of the firm Adam Ltd., where they were again unloaded It has been established by the evidence of the two donkey drivers, whose evidence cannot be disbelieved, for they have no reason for giving false evidence, that Muhammad Ahsan accompanied then to the godown of Adam Ltd. This has also been admitted by Sharif a broker, and Haroon agent of Adam Sons, who were also accused in the case. Special Police Officer received information that Government property was being sold to Adam Ltd. and Mr. Jaffari D. S. P. Special Police, after recording this information, proceeded to the godown of Adam Ltd., found drums in front of the godown and arrested Muhammad Ahsan there. According to the statement of Haroon, Agent of Adam Ltd., and Sharif who is a broker, these drums were to be sold to Adam Ltd., at a price of Rs. 25 each. But Haroon was to take delivery only after inspection. The arrest was made before actual delivery to Haroon and before any payment was made. Ali Abbas did not accompany the drums to Adam Ltd., but sent Muhammad Ahsan there. He proceeded to his own house from the Caltex Depot because he was not well at that time. When Muhammad Ahsan was arrested in front of Adam Ltd, he, under the supervision of Police Constable, was sent to bring Ali Abbas. He went to Ali Abbas's house and disappeared from there and secretly proceeded to Lahore. He was arrested some time later. Ali Abbas admitted that these drums belonged to the P. W. D. and he brought them frown Chouspur to Sukkur because these were to be deposited in the P. W. D. Godown there. These were unloaded in front of Caltex Depot, because the driver refused to carry them beyond that place. As he was not feeling well he told Muhammad Ahsan to take them to the P. W. D. Godown and it was Ahsan's fault that he took them to another place. Muhammad Ahsan, on the other hand, said that he was not an employee of the P. W. D. at Ghouspor on 10th July 1956. He had been dismissed on 4th of that month. On 10th July 1956, he returned to Sukkur by Caltex Bus which he boarded at the bus stand after paying fare to the driver and alighted from it at Shikarpur Bus Stand. He knew nothing about the drums at all. He denied his presence at the godown of Adam Ltd. and his arrest by Mr. Jaffari D. S. P. There is not a shred of doubt that both Muhammad Ahsan and Ali Abbas lifted these twelve drums together, from P. W.

13. Depot of Ghouspur and placed them in the Caltex Bus. This is clear from the evidence of Saeed Ahmed, the Caltex Bus driver. There is also not a shred of doubt that Muhammad Ahsan was found with these drums in front of Adam Ltd. in Sukkur. There is in support of this fact the evidence of Mr. Jaffari D. S. P., who arrested him there, the evidence of two cart‑drivers, who carried the drums from Caltex depot on Muhammad Ahsan's bidding, and the statement of Sharif broker and Haroon, agent of Adam Ltd. It is also clear that these drums were offered for sale to Adam Ltd., and these were for that purpose unloaded by Muhammad Ahsan in front of Depot of Adam Ltd. If Muhammad Ahsan was an employee of P. W. D. on 10th July, as he undoubtedly, was, as there is evidence that his pay was drawn for that day, he misappropriated these twelve drums when he lifted them from the P. W. D. Godown at Ghouspur, because the intention at that time was to sell them in the market. Although the sale was not complete and delivery of the drums was not taken by Haroon of Adam Ltd., but the act of criminal misappropriation was complete when the drums were taken out of P. W. D. Godown at Ghouspur or at least when they were removed to the Depot of Adam Ltd., and placed for sale after inspection. If he had not been guilty he would not have falsely denied his presence with the drums in front of Adam Ltd., and he would not have slipped away to Lahore after his escape from the police constable's custody. As regards Ali Abbas he was storekeeper of P. W. D. Godown at Ghouspur. If he was,. as he says, carrying these drums to Sukkur for depositing them in the P. W. D. Godown be should have made an entry of their removal in the Register at the Godown at Ghouspur. This was necessary under the instruc tions. He should not have left these in the care of Muhammad Ahsan but should have deposited them himself in the P. W. D. Godown. It appears that as he was not feeling well he left the remaining part of the transaction i.e., delivery of the drums to the vendor, to be completed by Muhammad Ahsan. He also became guilty of the offence of misappropriation when he removed the drums from the Godown at Ghouspur without making any entry of removal in the Register. He also became guilty of that offence when he placed these in the hands of Muhammad Ahsan at Caltex Depot to be disposed of in the open market. An attempt has been made to show that the drums were not identified to be Government property. There is admission in Ali Abbas's own statement that these drums belong to P. W. D. There was no attempt to show that they belonged to any other person. In fact Caltex man denied that these were their property. There is evidence that these were taken out of Government Godown at Ghouspur and this is evidence enough to show that these were the property of the Government. Much stress was laid on the fact that Muhammad Ahsan was not a Government employee on 10th July 1956. But there is evidence that his pay was drawn for 10th July 1954 and he was dismissed from 11‑7‑

54. But even if that contention be accepted he was aware, when the drums were lifted from P. W. D. Godown in Ghouspur and placed in the Caltex bus in his presence, that these belonged to P. W. D. and he became guilty of abetting Ali Abbas in the offence of misappropriation when he started negotiations through Sharif for their sale to Haroon Ltd. The conviction of both the accused on the two charges depend on reliable and cogent evidence and no valid ground has been adduced for interference. The trial Judge has committed an error in making the sentence of imprisonment in lieu of fine to run concurrently with the main sentence of imprisonment imposed for the offence. Section 64 of the Penal Code requires that sentence of imprisonment in lieu of fine .A should run in addition to the sentence of imprisonment imposed for the offence. This mistake appears to be common in this part of the country and attention to it has been drawn in another case too. There is perhaps another error in this case. The two accused have been convicted twice for the same offence. Their conduct is an offence under section 409, P. P. C. and also under,, section 5 (2) of Act II of 1947. They have been, at this trial, tried and convicted of both the offences. This is forbidden by section 26 of the General Clauses Act, which runs as follows :‑ "

26. Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence". In view of this provision it is not permissible to punish the accused twice for the same offence. Subsection (4) of section 5 preserves only proceedings instituted in respect of the same conduct which is offence under another law, but does not preserve, double punishment. On the point of punishment subsection (4) of section 5 is silent, and in the absence of provision preserving punishment as well the provisions of section 26 of the General Clauses Act will apply, to which all enactments are subject. That, forbids double punishment for the same act even if it is offence under another law (See A I R 1954 Saurashtra p. 121). The sentence of one year's R. I. and fine of Rs. 1,000 under section 409, P. P. C. is therefore set aside. Except for these alterations the appeal is dismissed. K. B. A. Appeal dismissed Sentence modified.