1. M. R. KHAN, J.--This appeal, by special leave, is against the judgment and order of a Division Bench of the High Court of West Pakistan, Karachi Bench, in Criminal Acquittal Appeal No, 45 of 1961 by which the trial Court's order acquitting the appellant of the charges of 'criminal breach of trust' and 'criminal misconduct' were set aside and he was convicted and sentenced for those offences.
2. The salient facts revealed in this case were as follows :-- The appellant Sirajul Islam was appointed Superintendentcum-Drawing and Disbursing Officer of the Establishment Branch of the Department of Manpower and Employment Exchange (Labour Division), Ministry of Health and Social Welfare,. Government of Pakistan. He took over charge of his office on 7-3-58 from Mr. Ghulam Mustafa. At that time, Hamid Hussain was the cashier in that office. On the said date, the cash balance, according to the cash-book, was Rs, 4,278-7-5. On 11-3- 58, Hamid Hussain prepared a statement tExh. 43) according to which the actual cash in hand on that date was Rs, 1,434-11-5. Taking into consideration the entries in the cash-book from 8-3-58 and 11-3-58 along with statement--Exh. 43, it appeared that there had already been a shortage of Rs, 2,624-2-0 on the date of assumption of charge by the appellant. Hamid Hussain made over charge to his successor cashier Abdul Aziz Syed on 30-4-58. Thereafter, the appellant continued to hold the office of Drawing and Disbursing Officer and Abdul Aziz continued as cashier. At the time of taking over charge from Hamid Hussain, Abdul Aziz found shortage in the cash for which he was unwilling to take charge. Hamid Hussain then produced the list (Exh. 39) showing the details of the advances already made against chits and cheques etc. and the cash in hand on 30-4-58 according to this list, the actual cash in hand on 30-4-58 was only Rs, 842-4-8 as against the cash balance of Rs, 7,128-9-11 and the short-fall of Rs, 6,286-5-3 was accounted for by the advances- made against chits and cheques etc. which were yet to be recouped A note was appended to the list (Exh. 39) by which the responsibility for the shortage in cash was undertaken by Hamid Hussain.
3. Thereupon, Abdul Aziz took over charge from Hamid Hussain. Some of the items advanced against chits and cheques etc, were realised subsequently, but the short-fall in cash, more or less continued. In this state of things, an application (Exh. 22) was made by Shoab, a clerk in the same office to the Secretary of the Ministry of Health and Social Welfare (Labour) on 4-3-59 at 3 p.m. This application was not put up before the Secretary of the department, but Mr. Karamat Elly, an Assistant Secretary in the department required the Director-General of Manpower to take immediate action on that application. Accordingly, Mr. Qaiser Ali Khan, the Director-General, after consultation with Mr. Karamat Elly, appointed, Mr. M. B. Farooqui (P. W. 3), an Information Officer in the Labour Division M. R. Khan, to inquire into the matter and to submit a report. Mr. Farooqui held an inquiry at 4 p.m. the same day and found only Rs, 1,916-10-11 in the cash-box. Mr. Farooqui reported that a rough cash-register, in addition to the regular cash-book, was being maintained in this office. The regular, cash-book of the department, according to his report, was not verified from 6-1-59 and no entry relating to the cash received or disbursed was made in the cash-book after 13-2-59. In the absence of entries in the regular cash-book, Mr. Farooqui looked into the rough cash-register and some other rough papers and therefrom estimated that the cash in hand on 4- 3-59 should have been Rs, 4,215-6-8 and not Rs, 1,9 i 640-11 as found in the cash box. Accordingly, he reported that there was a shortage to the tune of Rs, 2,200 approximately. After the receipt of this report, the Director-General, Manpower, requested the Accountant-General Pakistan Revenues to get the accounts examined. Accordingly, Mr. Saleh Ahmad (P. W. 1), a Superintendent in the office of the Accountant-General, Pakistan Revenues, examined the accounts maintained in the office of the appellant and sent a report. He also found that in the regular cash-book no entry was made for many days and that the account was maintained most irregularly. However, having regard to the accounts, as they were, the said Superintendent, in his audit report worked out a shortage of Rs, 2,043-13-9 in the cash balance on 4-3-59, but, on the basis of the statement of the cashier Abdul Aziz, reported that Rs, 200 was lying with Mr. Zahurul Hug, Rs, 1,300 with Mr. Rahman Ghani and Rs, 650 with the appellant himself, and these amounts were ultimately made the subject-matters of the charge against the appellant. In the audit report, the cashier, the Drawing and Disbursing Officer and other higher officers of the department were blamed for utilizing the public money in contravention of the financial rules. After the receipt of this report, prosecution was launched against the appellant alone in the Court of the Special Judge (Anti-Corruption), Karachi, making the two successive cashiers Hamid Hussain and Abdul Aziz as prosecution witnesses.
4. The substance of the accusation against the appellant at the trial was that he, in his capacity as a public servant, had domain and control over the Government cash kept in the cash box under his charge and committed criminal breach of trust in respect of a sum of Rs, 2,150 between 7-3-58 and 4-3-59 and thereby committed the offence of criminal breach of trust and criminal misconduct punishable under section 409 of the Pakistan Penal Code and section 5 (2) of the Prevention of Corruption Act, 1947.
5. The appellant pleaded not guilty to the accusation and alleged that he was victimised by his enemy Mr. Karamat Elly, the Assistant Secretary of the department. He denied that he maintained the cash-book and stated that the accounts were used to be maintained by the cashier Hamid Hussain and, after him, by Abdul Aziz. The cash and the cash-book, according to him, remained in the custody of the cashier for the time being. As regards the rough cash-register, he stated that it was being maintained by the cashier Abdul Aziz for his own convenience. He admitted to have made endorsements in the cash-book as regards correctness of the accounts, but the cash balance was not ever actually verified by him. The position of the cash, according to him, was as explained by Hamid Hussain in Exh. 43, dated 11-3-59. He took the positive plea that advances to officers and other members of the staff were used to be made against chits or cheques in accordance with the practice obtaining in the department from before the assumption of charge by him. He admitted to have received Rs, 650 from the cashier Abdul Aziz as against his salary cheque for the equivalent amount, but denied his knowledge about the payment of Rs, 200 to Mr. Zahurul Huq and Rs, 1,300, to Mr. Rahman Ghani. These amounts of Rs, 200 and Rs, 1,300 according to him, were paid as advances to Mr. Zahurul Huq and Mr. Rahman Ghani by the concerned cashiers.
6. After an elaborate examination of the evidence and the relevant materials on record, the learned Special Judge found that there was already a shortage at the time of taking over charge by the appellant on 7-3-58 ; that further shortage accrued on account of advances made by the cashier Hamid Hussain against chits and cheques of officers of the department and that the responsibility for advances of Rs, 200 to Mr. Zahurul Huq and Rs, 1,300 to Mr. Rahman Ghani did not rest with the appellant and that the taking of Rs 650 by the appellant against his salary cheque did not involve any dishonest intention on his part. Accordingly, the learned Special Judge gave the appellant the benefit of doubt and acquitted him.
7. On appeal by the Public Prosecutor (Anti-Corruption), the learned Judges of the High Court, on the basis of the admission said to have been made by the appellant, reversed the order of acquittal, convicted the appellant for offences under section 409 of the Pakistan Penal Code and section 5
(2) of the Prevention of Corruption Act and sentenced him to imprisonment till the rising of the Court and to a fine of Rs, 1,000 and, in default, to six months' simple imprisonment.
8. Leave was granted in this case to consider the appellant's contentions that due weight had not been given by the High Court to the evidence in his favour or the findings of the trial Court and that the High Court acted contrary to the settled principle of giving benefit of doubt to the accused.
9. The entries in the cash-book on 7-3-58 considered along with the statement of cash balance (Exh.
10. 43) admittedly prepared by the cashier Hamid Hussain (P. W. 4) clearly show that there was a shortage of Rs, 2,624-2-0 in the cash balance when the appellant took over charge. The learned Special Judge found that the said sum was certainly not in the cash on 7-3-58. Again, the statement of cash balance as on 30-4-58 (Exh. 38) admittedly prepared by the cashier Hamid Hussain shows that the cash in hand on the said date was Rs, 842-4-8 as against the total cash balance of Rs, 7,128-9-11. In this regard, Hamid Hussain deposed as follows : "On 30-4-58 when I handed over charge to Aziz the balance shown in the case-book at page 45 was Rs, 7,128-9-11. But I had cash only Rs, 842-4-8. For the rest there were vouchers paid up but unrecouped which were shown in a separate list (Exh. 39) prepared on 30-4-58 on which I and Aziz both signed."
11. Thus, on Hamid Hussain's own admission, there was a shortage of Rs, 6,286-5-3 on 30-4-58. By the note appended to Exh. 39, Hamid Hussain himself accepted the responsibility for this shortage and its adjustment. The list (Exh. 39) showing the shortage was a matter between the two cashiers, and the appellant was not a party to it. This is evident from the following admission of Hamid Hussain : "The list relates to mutual understanding between me and Aziz."
12. Hamid Hussain said that Mr. Ghulam Mustafa was the appellant's predecessor-in-office and that advances were used to be made in the days of Mr. Ghulam Mustafa as well. In this regard, he admitted of a practice that was obtaining in the department from before the appellant's assumption of charge. As regards this practice, Hamid Hussain said : "There was a practice prevelant in the time of Mr. Ghulam Mustafa that he used to give me a chit as his cheque and take the amount from me out of the cash balance in my hand and thereafter he used to return back the amount."
13. The cashier Abdul Aziz (P. W. 5) also admitted this practice in the following words : "It is fact that there was a practice during the time of Hamid Hussain as also in my time that officers used to take advances from the Government cash imprest money."
14. Hamid Hussain also admitted it to be correct that most of the chits mentioned in Exh. 39 against which advances were made related to the period of Mr. Ghulam Mustafa. The list-- Exh. 39 mentions a cheque for Rs, 250. With regard to this amount, Hamid Hussain stated that the cheque for Rs, 250 as mentioned in Exh. 39 was the cheque given by Mr. M. B. Farooqui, a Class I Officer of the Labour Division. According to the evidence of Hamid Hussain, Mr. Farooqui gave this cheque, a post-dated cheque, and took Rs, 250 from the cash. Thus, Mr. Farooqui took an advance of Rs, 250 against a post-dated cheque. It may be pointed out that this Mr. Farooqui is the very officer who held an inquiry on 4-3-59 and reported an alleged shortage. According to Hamid Hussain, advances of the sums of Rs, 200, Rs, 222-8-0 and Rs, 25 mentioned in Exh. 39 were the advances to the members of the staff, and these were permitted by Mr. Ghulam Mustafa, the appellant's predecessor-in-office and not by the Accountant-General, Pakistan Revenues. It is thus abundantly clear from the evidence of P. W. 4 Hamid Hussain that from before the time of the appellant there had existed a practice in the department to make advances to officers and other employees against chits and cheques.
15. The accusation against the appellant should be considered in the background of the above state of affairs obtaining in the office from the time of the appellant's predecessor-in-office Mr. Ghulam Mustafa. The appellant was accused of having misappropriated a sum of Rs, 2,150 out of the money entrusted to him. This sum, according to the audit report--Exh. 8 made by Mr. Saleh Ahmad, consisted of three amounts, namely, Rs, 650, Rs 200 and Rs, 1,300. Of these amounts, Rs, 650, was said to have been taken advance by the appellant himself. The sums of Rs, 200 and Rs, 1,300 were said to have been given advances to Mr. Zahurul Huq and Mr. Rahman Ghani, respectively, who were the senior officers of the department. As regards the sum of Rs, 650, the evidence of P. W. 5 Abdul Aziz is as follows : "On 2-3-59 accused took Rs, 650 from me at the close of the day promising to return the amount the next day. He had also given the salary cheque for being deposited in the Habib Bank. On 3-3- 59 accused did not attend the office. He was also on leave on 4-3-59. On the morning of 4-3-59 I sent Daftari Aziz to his house to get Government Cheque signed and to obtain the duplicate key of the safe and also a private personal cheque for Rs, 650. At about 11 a.m. Aziz brought the key and cheque Exh. 32 as also the Government cheque.
16. I went to the State Bank the very day to cash the Government cheque. As I was delayed in State Bank I did not go to Habib Bank to cash accused's present cheque.
17. It is pretty clear from this evidence that the appellant gave his own salary cheque to the cashier Abdul Aziz on 2-3-59 and took Rs, 650 from the cashier against this cheque. This appears to be a straight dealing without any element of dishonesty in it.
18. With regard to the sum of Rs, 200, the evidence of P. W. 5 Abdul Aziz is that Mr. Zahurul Huq, Director of the department had taken advance of Rs, 500 in October or November 1958, out of which he repaid Rs, 300 in January 1959, but the balance of Rs, 200 was outstanding which Mr. Zahurul Huq paid on 5-3-59. The prosecution did not examine Mr. Zahurul Huq, although he was a senior officer of the department. However, it appears from office note--Exh. 58 that Mr. Zahurul Huq was asked to explain about the advance said to have been taken by him. Accordingly, Mr. Zahurul Huq made an official note stating as follows : "In the last week of November 1958 on Saturday at about 12-30 noon I received orders from D. G. (D.
19. S.) to go to Dacca on tour. As there was no time to get advance from the A. G. P. R., cashier gave me Rs, 200 (two hundred) only which has been repaid on 4-2-59. There is, therefore, nothing outstanding against me."
20. It is clear from this note that Mr. Zahurul Huq took the advance from the cashier Abdul Aziz and not from the appellant. State At any rate, this advance was taken by Mr. Zahurul Huq in accordance with the established practice prevailing in the depart- M. R. Khan, ment. The appellant does not, therefore, appear to be responsible for this sum either.
21. The alleged advance of Rs, 1,300 said to have been made to Mr. Rahman Ghani, a Deputy Director of the department now remains to be considered. The cashier Hamid Hussain stated in .cross- examination "Rahman Ghani used to take amount on chits and cheques even during the time of Mr. Ghulam Mustafa and pay it back."
22. As a shortage of Rs, 2,624-2-0 was found in the cash balance on the very date of the appellant's assumption of charge on 7-3-58 and as Mr. Rahman Ghani, according to P. W. Hamid Hussain, used to take advances against chits and ch ques ,even during the time of the appellant's predecessor, it is a matter for consideration if the said shortage of Rs, 2,624-2-0 did not include the alleged advance of Rs, 1,300 to Mr. Rahman Ghani. It is an admitted fact that Mr. Rahman Ghani was under order of transfer to Lahore in March 1958 He claimed Rs, 1,500 as advance T. A. and one month's pay which was sanctioned on 15-3-58, but he could not draw the advance from the Accountant-General, Pakistan Revenues and had to leave for Lahore where he admittedly fell ill and was in the Mayo Hospital and ultimately breathed his last on 8-11-58. As Mr. Rahman Ghani could not draw advance pay and T. A. before his departure for Lahore, it was not unlikely that, following the established practice in the department, he was also given an advance of Rs, 1,300 out of the money in hand with the cashier. As an advance of this kind was against the financial rules, no entry about it could be made in the regular cash-book. However, Hamid Hussain declared in writing (Exh. 34) about the payment of Rs, 1,300 to Mr. Rahman Ghani. The declaration made by him was as follows: "I, Hamid Hussain hereby declare that I handed over the charge of cashier on the 30th April 1958 (A.N.) to Mr. S. A. Aziz and given a less amount of Rs, 1,300 (Rupees one thousand and three hundred) only according to the cash in hand to day as closing balance. This amount of Rs, 1,300 was given to Mr. H. H. Rahman Ghani, D. D. E. through Mr. Sirajul Islam, D. and D. 0."
23. This declaration was signed both by Hamid Hussain and the successor cashier Abdul Aziz and also by the appellant. The appellant gave an explanation that he put his signature as the two cashiers were unwilling to sign it unless he was himself a signatory to it. This explanation was accepted by, the learned Special Judge, but the learned Judges omitted to consider it. Again, this declaration as also the note appended to Exh. 39 lay which Hamid Hussain had taken the responsibility for the advances against chits and cheques etc., were earlier than the appellant's statement Exh. 4 regarding the advance of Rs, 1,300 to Mr. Rahman Ghani with the result that the appellant could not be pinned down to Exh. 4 alone. On 30-4-58 on which date Abdul Aziz took over charge as cashier, there was a heavy shortage in the cash balance. This was already explained earlier with reference to the list (Exh. 39) admittedly prepared by Hamid Hussain. With regard to this sum, Abdul Aziz gave the following answer in cross-examination: "There is no item of Rs, 1,300 in Exh.
39. This Rs, 1,300 is the balance unpaid by Hamid Hussain from the amounts in Exh. 39 rest of which it was paid."
24. The substance of this statement appears to be that out of the advances against chits and cheques etc. shown in Exh. 39, dated 30.4-58, a sum of Rs, 1,300 was outstanding and this sum of Rs, 1,300 was shown in Exh. 34 to be an advance made to Mr. Rahman Ghani. It appears from the above discussion that the sum of Rs, 1,300 might have been given to Mr. Rahman Ghani as advance on his transfer to Lahore or the same might be the amount of the unrecouped chits and cheques mentioned in Exh. 39, dated 30-4-58. In either case, it cannot be said with certainty if any element of dishonesty was involved in the transaction, although the transaction was highly irregular, the same being against the financial rules, and apparently called for departmental action.
25. The learned Judges of the High Court have taken that the appellant is responsible for the shortage of Rs, 2,150 on his own admission. In this regard, the learned Judges stated: "The respondent (i,e, the appellant herein), on his own admission, is responsible for the shortage of Rs, 2,150 as represented by the three amounts of Rs, 1,300, Rs, 650 and Rs, 200."
26. On the date of taking over charge, the appellant made the following endorsement in the cash- book: "Checked and found correct and charge taken over."
27. Thereafter, at the end of each month the appellant made an endorsement in the cash-book certifying that the account was checked, verified and found correct.
28. The learned Judges have taken these endorsements as the appellant's admission about the alleged misappropriation of the three sums of Rs, 650, Rs, 200 and Rs, 1,300. It is true that these endorsements in the cash-book were made by the appellant as required under the financial rules, but the learned Special Judge, for the reasons given by him, found that while the appellant made the endorsements, the cash balance was not actually checked by him. The reasons given by the learned Special Judge in arriving at this finding did not receive consideration of the learned Judges. It has already been noticed that on the very date of the appellant's assumption of charge there was a shortage of Rs, 2,624-2-0 and that the shortage on 30-4-58 was as much as Rs, 6,286- 5-3. The very fact that the shortage in the cash balance continued, appears to support the finding of the learned Special Judge that the appellant made the endorsements in the cash-book without actually checking the cash balance. The learned Special Judge further found that the duplicate key of the cash-box which was supposed to be kept by the appellant was, in fact, with the cashier Abdul Aziz. The reason in support of this finding did not also receive consideration of the learned Judges. It was urged before the learned Judges that a shortage of Rs, 2,624-2-0 was already there on the date of the appellant's assumption of charge, but the learned Judges did not take into consideration this shortage and its impact on the accusation against the appellant, although the same had received the due consideration of the learned Special Judge. In view of the shortage in the cash balance existing from before the appellant's assumption of charge, it cannot be said that the mere endorsements made by the appellant in the cash-book amounted to his admission of the accusation against him with regard 'criminal breach of trust' and 'criminal misconduct'. At any rate, admissions are always capable of being explained as has been _ held by this Court in (Advocate-General, Government of East Pakistan v. Benoy Bhusan Majumdar and others . The appellant took the plea that the sum of Rs, 1,300 was advanced to Mr. Rahman Ghani by the former cashier Hamid Hussain and not by himself. This plea was accepted by the learned Special Judge for which he gave reasons. Hamid Hussain made a declaration in writing (Exh. 34) stating that a sum of Rs, 1,300 had been given to Mr. Rahman Ghani. This declaration appears to be dated 30-4- 58, but it was admittedly made on the morning of 5-3-59 after the surprise inquiry was held on 4- 3-59. Although this declaration was, in fact made on 5-3-59, it relates to a transaction prior to 30.4.58, that is, before the assumption of charge by the cashier Abdul Aziz. Thus, according to this declaration a sum of Rs, 1,300 had been advanced to Mr. Rahman Ghani at some time prior to 30- 4-58. It might be that this sum as observed earlier, was advanced to Mr. Rahman Ghani when he was under order of transfer to Lahore in the middle of March 1958 or it might be an advance to Mr. Rahman Ghani at some earlier point of time, and the shortage of Rs, 2,624-2-0 found on 7-3-58 might also include the sum of Rs, 1,300. It is, no doubt, stated in Exh. 34 that the sum of Rs, 1,300 was paid by the cashier Hamid Hussain through the appellant, but the learned Special Judge found that the advance of that sum was not made through the appellant. The reason given in support of this view of the learned Special Judge was not adverted to by the learned Judges of the High Court.
29. Hamid Hussain, by a note appended to the list (Exh. 39), took the responsibility for the shortage of Rs, 6,286-5-3 that existed on 30-4-58. The appellant was not a party to this document. Hamid Hussain deposed that a cheque for Rs, 1,000 mentioned in Exh. 39 was a post-dated cheque given1 by Mr. Rahman Ghani against which a sum of Rs, 1,000 was given to him. This seems to explain the major portion of the advance of Rs, 1,300 to Mr. Rahman Ghani. It might be that the balance of Rs, 300 was advanced to him against one or more chits mentioned in Exh,
39. The learned Judges, however, appeared to have disbelieved the advance of Rs, 1,300 to Mr. Rahman Ghani and surmised that the said sum might have been used by the appellant himself for his own purpose.
30. The observation of the learned Judges in this regard is as follows: "The whole object of Exh. 34 was to show the name of the person to whom Rs, 1,300 were alleged to have been advanced by the respondent."
31. Thereafter the learned Judges reached the following conclusion: "In fact, we find that the evidence on record makes it very doubtful whether a sum of Rs, 1,309 actually represented a loan given to the late Mr. Rahman Ghani or whether it was not the balance due in respect of the unpaid chits mentioned in item (e) of Exhs. 39 and 40 and representing the advances taken by the respondent himself."
32. It is the prosecution case that the sum of Rs, 1,300 was given to Mr. Rahman Ghani as advance. So, the question of entertaining any doubt about the insertion of the name of Mr. Rahman Ghani in Exh, 34, does not arise. It has been found on evidence that there was a practice in the department to give advances to officers, although this was not warranted by the financial rules. In this regard, even the learned Judges themselves found: "It is in evidence that the practice of utilising Govern-ment moneys for private purposes existed in this particular office even before the time of the respondent and was availed of by his predecessor Mr. Ghulam Mustafa."
33. In view of this long-standing practice prevailing in the department, the giving of an advance of Rs, 1,300 on the occasion of his transfer to Lahore may not perhaps be ruled out altogether. Now, the pertinent question is whether this advance, though offended against the financial rules, was made dishonestly. Neither the cashier nor the appellant was to be benefited by this advance. The advance to Mr. Rahman Ghani might have been made only in accordance with their established practice in this department. Instances of taking advances have come into the record including an advance of Rs, 250 taken by Mr. M. B. Farooqui who was none else than the officer who had held the inquiry on 4-3-59. there was yet another instance of taking an advance of Rs, 200 by Mr. Zahurul Haq a senior officer of the department. In view of this practice and the precedents obtaining in the department, it cannot be said that the advance of Rs, 1,300 to Mr. Rahnam Ghani was made with a criminal intent or with a view to making any wrongful gain or wrongful loss. For all these reasons and in the facts and circumstances of this case, the learned Special Judge appeared to be right in giving a benefit of doubt to the appellant. The High Court's order of conviction was founded only on the alleged admission of the appellant as regards his guilt which, however, was deduced by them from the endorsements made by the appellant certifying the correctness of the accounts. But these endorsements, as already stated, did not amount to the appellant's admission of the accusation against him.
34. In the result, I would allow the appeal, set aside the judgment and order of the High Court and acquit the appellant.
35. SAJJAD AHMAD, J.-1 agree.
36. WAIHIDUDDIN AHMAD, J.--I agree. PLD 1971 SC 1791