' Applicant abovenamed, being aggrieved by judgment dated 8th April, 1979 of the learned Additional Sessions Judge Karachi, given in Criminal Appeal No, 58 of 1978, by which he acquitted the respondent No, 2 and set aside his conviction under section 408, P. P. C. And sentences awarded to him, vide Judgment dated 8th April, 1978, by Additional Magistrate Nabi Bux Police Station, Karachi, has preferred the above petition on the following facts and grounds :-
2. The prosecution story in brief is that respondent No, 2, abovenamed was Sales representative/Agent of Messrs Searose Ltd., Gujranwala. He in that capacity was entrusted with the work of obtaining supply orders of the goods of the company from the parties and recovery of the amounts of sale-proceeds of goods supplied. He used to collect the amounts and deposit the same in the accounts of the Company and for that the Company used to pay his commission and also monthly salary. The Respondent No, 2 abovenamed in capacity of an Agent/Sales representative, besides other items recovered an amount of Rs, 10,398 from Messrs Abbasi Hardware, against the sale of goods of the Company on 29th July, 1976. The amount was neither remitted to the Company nor adjusted in the accounts of the Company. The respondent No, 2 thus in capacity of servant of the Company, misappropriated this amount and converted it into his own use. This transaction took place within the jurisdiction of Nabi Bux Police Station, hence this case was registered against the respondent No, 2, which after usual investigation was challaned in the Court.
3. Formal charge was framed against the respondent No, 2 on 14th June, 1977, to which he pleaded not guilty and claimed to be tried.
4. The prosecution has brought following witnesses to depose and establish allegations against the respondent No, 2.
(1) Abdul Hafeez Khan Exh.
1.
(2) Abbas Exh.
2.
(3) Sultan Ahmed Khan S. I. P. Exh.
3.
5. Statements of respondent No 2 was recorded under section 342, Cr. P. C. In which he has denied the allegations and has stated that he is innocent.
6. Before the case could proceed further, P. S.-I. Moved an application filed as (Exh. 6) requesting to call certain more witnesses to prove the allegations against the respondent No,
2. Since it was considered essential to call the witnesses for the just decision of the case, the application was granted and P. Ws. Mentioned therein were ordered to be called. Amongst them the prosecution has examined only one Malik Muhammad Aslam (Exh. 6).
7. Further statement of Respondent No, 2 was also recorded after the examination of above witness in which the respondent No, 2 has stated, that he had paid Rs, 62,000 to Mr. Haseeb Khan at Karachi Sind Club on 30th July, 1976. The amount involved in this case included that amount. He has further stated, that he has falsely been implicated in this case, only to restrain him from claiming his commission, which will be in lacs and for which a separate civil suit has been filed by him, in Civil Court at Gujranwala.
8. The respondent No, 2 has called one Haseen Khan as his defence witness.
9. The learned trial Court taking into consideration the evidence adduced by the prosecution as well as defence, convicted and sentenced the respondent No, 2, vide its impugned Judgment dated 8th April, 1978, as mentioned therein. Respondent No, 2 being aggrieved by the said judgment filed criminal appeal No, 58 of 1978, which was allowed by the learned Additional Sessions Judge, Karachi, vide his judgment dated 8th April, 1979 and respondent No, 2 was acquitted and consequently applicant has filed the above petition, on the grounds mentioned, in the memo. Of above petition.
10. The learned Advocate for the applicant in support of above petition, submitted before me, as under : -
(a) That learned Appellate Court has misread the evidence on record as well as misinterpreted the provisions of section 408, P. P. C, by coming to conclusion, that respondent No, 2, was not employee of Messrs Searose Industries and as such he could not have been convicted under section 408, P. P.
C. In support of this contention, the learned Advocate for the applicant relied upon cases reported in AIR 1919 Lower Burma 60, 1920 P Cr. L J 513 and PLD 1957 SC 176,
(b) That respondent No, 2 admitted receipt of the amount in question and as such burden shifted on him, to explain, what he did with the said amount, but the learned appellate Court failed to take into consideration this important legal point and as such came to wrong conclusion and acquitted the respondent No,
2. In support of this contention, the learned Advocate for the applicant relied upon cases reported in 1968 P Cr. L J 1712, 1975 SCM R 162, PLD 1959 SC 309, 1962 B L R 893 and 1950 P Cr, L J 382.
(c) That learned appellate Court failed to appreciate that civil remedy, did not bar criminal prosecution of respondent No, 2 and consequently came to erroneous and illegal conclusions and acquitted the respondent No,
2. In support of this contention, the learned Advocate for the applicant relied upon case reported in 1975 Cr. L J 45.
11. The learned Advocate for the applicant in view of his above contentions submitted that the learned appellate Court has misconstrued the law applicable to the case of respondent No, 2 and as such came to erroneous perverse and illegal conclusions and acquitted the respondent No, 2 and as such the impugned judgment of the learned appellate Court is liable to be set aside.
12. The learned Advocate appearing for the respondent No, 2, on the other hand submitted as under :-
(a) That learned Advocate for the applicant has failed to point out misreading and/or misinterpretation of the provisions of section 408, P. P. C. By the learned appellate Court, and/or to point out, that conclusions arrived at by the learned appellate Court are perverse or foolish so as to warrant interference in this petition. In support of this contention the learned Advocate for responpent No, 2 relied upon case reported in PLD 1966 SC 424, 1971 P Cr. L J 794, 1973 Cr. L J 1157 and 1973 P Cr. L J 231.
(b) That there is genuine civil dispute regarding accounts between the respondent No, 2 and Messrs Searose Industries, in respect of which civil suits are pending between the parties, and as such filing of complaint and issuance of process against respondent No, 2, amounted to abuse of the process of the learned trial Court. In support of this contention of his, the learned Advocate for respondent No, 2 relied upon cases reported in 1980 P Cr. L J 905, 1979 Cr. L J 569/924, 1975 P Cr. L J 637, PLJ 1975 (Crl.) Lah. 412, PLD 1971 Kar. 937 and 1968 P Cr. L J 1395/1432/ 1167/1818.
13. The learned counsel appearing for the State submitted, that he does not support the above petition, as the impugned judgment of the learned appellate Court is legal and based on cogent reasons and learned Advocate for the app licit has failed to point out any illegality and/or material irregularities in the said judgment. The learned Advocate further submitted that respondent No, 2 is not employee of Messrs Searose Industries and as such framing of charge under section 408, P. P.
C. By learned trial Court was not at all warranted. He further submitted, that even if this Court comes to conclusion, that respondent No, 2 has committed offence of criminal breach of trust under section 406 or 409, even then judgment of the learned trial Court cannot be sustained and case will have to be remanded back for retrial, with directions in this connection.
14. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court as well as through the judgment of the appellate and learned trial Court. I have also gone through the various authorities cited by the learned Advocates before me.
15. I find judgment of the learned appellate Court is based on evidence on record and undisputed facts on record and is fully supported by cogent reasons. Conclusions of the learned appellate Court, that respondent No, 2 is not employee of the Messrs Searose Industries and no money was entrusted to him, so as to attract charge of misappropriation and that the learned trial Court has conducted the entire trial in unusual manner and there is a genuine civil dispute of accounting between the respondent No, 2 and Messrs Searose Industries and consequently the criminal case was filed with mala fide intentions, are based on cogent reasons. These conclusions of the learned appellate Court cannot be considered to be perverse or foolish, as they are based on record of the learned trial Court. The learned trial Court failed to consider authorities cited by the Advocate for respondent No, 2, without cogent reasons. I do not find any misreading and/or misinterpretation of the provisions of law by the learned appellate Court and as such I see no reasons to disagree with the conclusions and findings of the learned appellate Court, which are legal and correct.
Authorities cited by the learned Advocate for respondent No, 2 are fully applicable to present case.
16. In view of my above conclusions, I see no force in the above petition, which is consequently dismissed as in my opinion, learned Advocate for applicant has made out no case for interference with the impugned judgment of the learned Appellate Court, in this Revision Petition.