1. This is a revision petition under section 439, Cr. P. C. Which has been filed by Abdul Hafeez Khan, the Managing Director of Sea Rose Industries, Lahore Gujranwala, calling in question the acquittal of the Respondent No. 2 Soofi Mohammad Tufail, the former employee of the said industry in the Criminal Case No. 113/79 (Sate v. Soofi Mohammad Tufail, under section 408, P. P. C.). The said respondent was acquitted by the City Magistrate, Sukkur vide his judgment dated 31st January, 1981.
2. The facts giving rise to this petition are that the petitioner made an application to the Senior Superintendent, Sukkur, alleging therein that the Respondent No. 2 had misappropriated certain amount of money, collected by him on behalf of aforementioned industry from its customers.
3. The Senior Superintendent of Police forward-,d the application to the S. H. O., Police Station `A'
4. Section, Sukkur, who registered the F. I. R. In terms of the application. After usual investigation, the Respondent No. 2 was sent up to face trial on the charges of criminal breach of trust with the result mentioned above.
5. The learned counsel for the petitioner, who was heard in support of the petition, contended that the respondent Muhammad Tufail was employee of the above industry and in that capacity he had collected Rs. 23,670.71 from various parties to whom the said industry had supplied its products in the months of July and August, 1976. The respondent, however, did not remit the amounts collected by him to the industry mentioned above. The learned counsel further submitted that even though offence under section 408, P. P. C. Was proved against the respondent, yet the trial Court erroneously relying on the judgment of First Additional Sessions Judge, Karachi, delivered in a different case, acquitted the respondent.
6. It is not disputed that the Respondent No. 2 had collected the amount in question on behalf of the aforesaid industry as its employee. His case, however, is that he had either deposited the amount in the office of the industry or bad withheld portion thereof' pending the settlement of accounts between him and the industry. It was further submitted on behalf of the respondent that be owned certain amount from the industry as his commission which is outstanding against the said industry. He has also filed a suit for settlement of accounts against the industry, which is pending in the Court. In other words, the contention of the respondent is that if some of the amount collected by him has remained unpaid,. It is only a matter of civil dispute and he cannot be held to have committed any criminal offence. It was further submitted by the learned counsel for the respondent that even if the trial Court is held to have wrongly followed the judgment of Additional Sessions Judge, Karachi the error committed by the said Court could be rectified by this Court by considering the case from all angles instead c remanding it back to the lower Court.
7. It would appear from the impugned judgment that the learned Civil Magistrate has not applied his mind inasmuch as he has not evaluated the evidence on record nor on the basis of such evaluation has come to his own conclusions as to the truth or falsity of the charges made against the respondent He has instead chosen to base the order of acquittal solely on the judgment of the first additional sessions judge Karachi which is shown to have been delivered in criminal appeal No 58 of 1978 While acquitting the respondent the learned trial court has made the following observations.
8. "I have gone through the judgment. The facts of the case and the present case are identical and the points for determination in the case and in the present case are also the same."
9. The learned Sessions Judge in his judgment has observed that the accused was neither a clerk nor a servant of the Company. This issue is discussed in paras. 16 to 19 of the judgment.
10. As regards point No. 2, it is observed by the learned Sessions Judge that ingredients of section 408 were not present in the case.
11. The paras. Nos. 41 and 42 of the judgment are reproduced as under :- "41. For the above said reasons, I am of the view that appellant was neither servant of the complainant nor a trust was reposed by the complainant on the appellant. I am also of the view that the prosecution has failed to prove that misappropriation of any amount or even appellant had any dishonest intention to misappropriate the amount of Rs. 10308 received from Abas Hard Ware. It is apparently a dispute of settlement of account between principal and agent for which the appropriate forum is the civil Court, admittedly suits are pending in civil Court at Gujranwala.
42. This appeal is, therefore, allowed and the sentence is, therefore set aside the appellant is acquitted and his bail bond stands discharged.
12. Without going into the merits or demerits of the instant case I am of the view that I have to follow the observations of the superior Court. Accordingly, I acquit the accused under section 245(i), Cr. P.
13. C."
14. It would be noticed that the learned trial Magistrate was influenced by the views, expressed by the First Additional Sessions Judge in a case with similar facts. Without, however, formally adopting those view in the case before him, the learned City Magistrate entertained a thought that he was bound by the said judgment and as such he did not go into merits and demerits of the case but simply based the order of acquittal on the said judgment. In this connection the learned counsel for the petitioner has drawn my attention to the case reported as Yousuf v. The State (PLD 1981 Kar.
15. 672), where--in it was held that under section 42 of the Evidence Act, the previous judgment in criminal trial is relevant in the subsequent proceedings only to show that there was such a trial in which accused was convicted or acquitted. Thus the course followed by the learned City Magistrate was patent erroneous. In the case in which the Additional Sessions Judge had delivered his judgment, the parties were of course same as in the instant case but the amounts involved in that case were different. Therefore, the judgment of the Additional Sessions Judge could not operate as res judicata in the instant case nor would it be binding on the trial Court.
16. The next point to be considered is, if the view of the Additional Sessions Judge was correct inasmuch as that the respondent was neither servant of the complainant industry nor any trust was reposed in him by the said industry and, therefore, he was not liable for the offence under section 408, P. P. C-- The learned counsel for the petitioner has relied upon Aga S. Asghar Hussain v. The State (1981 SCMR 1112 ), wherein the person working as auctioneer to Government on commission basis was held to be a public servant within the meaning of section 21, P. P. C, The learned counsel, therefore, argued that even though the Respondent No. 2 worked on commission basis for the said industry, he had the status of the servant of the industry. On the other hand, the learned counsel for the respondent has placed reliance on Maung Chan Sein v. The King (1968 P Cr.
17. L J 432), where in the accused being a broker was held to be independent vendor of the complainant firm and was not trustee of advance mace to him by the firm and accordingly it was held that accused could not be convicted under section 408, P. P. C.
18. Assuming for the sake of arguments that the respondent was not servant of the complainant industry within the meaning of section 408, P. P. C., he would not by that reason alone be exonerated from his criminal liability. If it can be established from the evidence on record that the respondent had actually collected the money on behalf of the industry but had dishonestly withheld the same, he would be guilty of criminal offence and would be punished under appropriate provision of the law. However, it was submitted on the respondent's behalf that even if any amount of the Company was outstanding against him, it had been withheld by him in the bona fide belief that it would be adjusted towards the amount of his commission, that he owed from the industry and would ultimately be cleared on the settlement of accounts between him and the industry. The learned counsel for the respondent further submitted that it has been admitted on behalf of the industry though indirectly that some amount is payable to the respondent as commission. It is also admitted that the respondent has filed a suit against the industry for settlement of accounts which is pending in the Court. In view of these admissions, it was argued, that mens rea (criminal intent) which is an important element to constitute an offence being absent, the respondent cannot be held to have committed any criminal offence. If he had withheld the amount, he had done it in the bona fide belief that it would be adjusted towards the amount of his commission on settlement of accounts. Thus he cannot be held criminally liable for the same. In this connection, the learned counsel referred to M. Sadiq Khan v. M. Mueenuddin ((1941) 42 Cr. L J 776) wherein it was observed: "To me it is plain from perusal of all these documents that the dispute between opponent and applicant relates in the main to the settlement of their accounts arising out of the partnership entered into between them and that through this complaint the complainant is endeavouring to use the criminal Court for the purpose of enforcing a civil liability".
19. Proceeding further, the learned Judge observed: "These two civil suits filed on behalf of the opponent against the applicant relating to the same subject-matter of the present complaint would clearly indicate that the opponent is himself aware that his case against the applicant is based on contractual liability and is essentially a civil and not a criminal matter", The criminal complaint in view of above observations was quashed, as its pendency was considered as an abuse of process of the Court.
20. In the instant case, it is the prosecution's case that the respondent was engaged by the complainant company on commission basis to collect prices from customers of the said company for the goods supplied by the company. Thus, there was a sort of contract between parties, whereby the respondent was to collect moneys on behalf of the complainant company and the latte was to pay him commission in return. There are allegations and counter allegations that on one hand the respondent has not remitted certain amount collected by him on behalf of the complainant company and on the other hand the complainant company is accused of not having cleared the commission due to the respondent. This finds support from the fact which has been admitted by the complainant company that the respondent ha filed a suit against the company for settlement of accounts and that suit is still pending. In this view of the matter, even if the respondent has not paid certain amounts collected by him on behalf of the complainant company, he would not be criminally liable nor the complainant company could enforce its claim against the respondent through criminal Court.
21. Having arrived at the above conclusion, it is to be decided, whether in view of the defect in the impugned order of the lower Court, the case be remanded for retrial or this Court can rectify the error and dispose the case on merits. The learned counsel for the respondent has submitted that this Court is competent to decide the case on merits without remanding back to the Lower Court. In support of his arguments, he relied upon The State v: Karam All (1968 P Cr. L J 707), wherein the view taken was that accused being a petty peon having already undergone two trials in course of about 6 years, retrial was not in the interest of justice but was likely to amount to further harassment of the accused. Accordingly, although acquittal appeal filed by the State was allowed, no fresh trial was ordered against the accused.
22. The other case relied upon in this connection is of Mrs. And Coleman v. Arif A. Luqmani (PLD 1964 (W. P.) Kar. 81), wherein it was observed: "I am dealing with this matter in a revision against acquittal and if the acquittal has to be set aside in this revision, the result will be retrial. The view of the courts consistently has been that the order of the retrial on a revision against acquittal should invariably not to be made unless it is made on technical grounds, as otherwise such an order would tantamount to a direction to the Lower Court to convict the accused."
23. I am in agreement with the view that if this Court on going through the material available on record comes to the conclusion that no criminal offence has been committed or no case has been made out against the respondent/accused, it would not be necessary to order retrial or remand the case to the trial Court even for rewriting the judgment. As has been pointed out above, the evidence is not lacking to indicate that though there existed contractual relationship between the parties and if at all the respondent has done anything in violation of that relationship, he has incurred civil liability, raising a dispute of civil nature between the parties. In view of such position obtaining on the record, it would not be in the interest of justice to remand the case back to the lower court. For above reasons, the revision petition is dismissed.