1. This Revision Application under sections 435 and 439, Cr.P.C., is directed against judgment dated 27-4-1985 of VIth Additional Sessions Judge, Karachi in Criminal Appeal No. 123 of 1983, whereby he acquitted the respondent Muhammad Shabbir while setting aside judgment, dated 20-10-1983 of Additional City Magistrate Court No. XV, Karachi South, where under the respondent was convicted of an offence punishable under section 406, P.P.C. And sentenced to suffer imprisonment for one year and pay fine Rs.1,000 or suffer simple imprisonment for three months.
2. The respondent Muhammad Shabbir was prosecuted on a report made against him by Tassaduq Hussain, an officer in the State Bank of Pakistan, Karachi, alleging that he had entrusted a sum of Rs.45,000 to the respondent, who was an employee in the bank, on 18-2-1981, for purchasing prize bonds for his brother Muhammad Ilyas but he did not deliver to him the prize bonds nor did he return the amount of Rs.45,000: He further alleged that the respondent Muhammad Shabbir kept him on hopes that he would deliver to him the prize bonds or return the amount but he did not do it. The report was made in the form of an application addressed to the D.S.P.A ram Bagh, on 25-3- 1981. The crime was registered at P.S. Kharadar on the very day. The respondent Muhammad Shabbir was tried in the Court of A.C.M. XV Karachi South on the charge under section 420/406, P.P.C. Prosecution examined complainant Tassaduq. Hussain Exh. 2, witnesses Sabir Hussain Exh. 3, Muhammad Ilyas Exh. 4; Muhammad Altaf Exh. 5 and Abu Zakaria S.I.P. Exh.
6. The respondent Muhammad Shabbir made denial of entrustment of money and alleged false implication. The learned trial Magistrate held by judgment, dated 20-10-1983 that the sum of Rs.45 000 was entrusted to the respondent Muhammad Shabbir and he had committed breach of trust in respect of it and was thereby guilty of offence punishable under section 406, P.P.C. And convicted him thereof and awarded on him the sentence mentioned above. The respondent Muhammad Shabbir preferred appeal in the Sessions court. The appeal was heard by VIth Additional Sessions Judge who, by his judgment, dated 27-4-1985, acquitted the appellant, holding that the evidence adduced by the prosecution did not conclusively prove that the money was entrusted to the respondent Muhammad Shabbir and also that there was legal flaw in convicting him of an offence punishable under section 406, P.P.C. As the charge against him was in respect of commission of an offence punishable under section 420, P.P.C.
3. The learned counsel for the applicant has urged, at the out set, that the view adopted by the learned Additional Sessions Judge that the respondent Muhammad Shabbir could not be convicted of an offence punishable under section 406, P.P.C. Without having been charged with therefore is erroneous as the charge framed by the learned Magistrate bears out that it included the offence punishable under section 406, P.P.C. The learned counsel has further urged that the evidence on the record is sufficient to prove the charge against the said respondent that a sum of Rs.45,000 was entrusted to him and he had committed breach of trust in respect of it.
4. The learned counsel for the State has endorsed the submissions made by the learned counsel for the applicant.
5. The respondent Muhammad Shabbir has appeared in person and pleaded innocence. The learned Additional Sessions Judge has reversed the judgment of the learned Additional City Magistrate on the grounds that conviction for the offence under section 406, P.P.C. Could not be recorded in absence of charge therefore, and, secondly, that the evidence did not warrant conviction. The charge framed by the learned Additional City Magistrate reads as under:-- "That on or about the 18-2-1981 by fraud at 1000 hours collected Rs.45,000. Complainant, Tassaduq Hussain employee of State Bank of Pakistan for giving him prize bonds of valued of Rs.510 each but you cheated the complainant and neither you supplied prize bonds nor returned the amount of Rs.45,000 to the complainant and thereby committed an offence punishable under section 420/ 406, P.P.C. And within my cognizance.
6. And I hereby direct that you be tried by the said Court (or me) on the said charge)."
7. It would appear that the charge included offence under section 406, P.P.C. And the particulars mentioned in the charge did have reference to the misappropriation of Rs.45,000. Of course, the charge is not well worded. The learned Additional Sessions Judge was obviously at error in adopting the view that there was no charge under section 406, P.P.C. Against the respondent. As regards the other ground that the evidence led by the prosecution did not satisfactorily prove entrustment of money to the respondent, prosecution case rests on the evidence of the complainant Tassaduq Hussain, his brother Muhammad Ilyas and. Two other witnesses Sabir Hussain and Muhammad Iltaf, and lastly the Investigating Officer Abu Zakria. Complainant Tassaduq Hussain has alleged that he entrusted Rs.45,000 to the respondent Muhammad Shabbir, on 18-2-1981 in his office for purchasing prize bonds for former's brother Muhammad Ilyes but he did not deliver to him the prize bonds nor did he return the amount given to him. He has further alleged that the respondent advanced pretexts that prize bonds could not be purchased on the first day and that they were given to respondent's brother on the next day and ultimately he disappeared and, thereafter made promises that he would deliver the prize bonds or return the money. The report was made on 25-3-1981. Muhammad Ilyas witness is a brother of the complainant and his evidence is that he had passed on Rs.45,000 to his brother Tassaduq Hussain for purchasing prize bonds for him and he was informed that money was given to the employee Muhammad Shabbir who had not purchased the bonds. The other two witnesses Sabir Hussain and Iltaf Hussain who are colleagues of the complainant Tassaduq Hussain in the Bank have stated that the complainant had entrusted Rs.45,000 to as respondent Muhammad Shabbir in their presence for purchasing prize bonds but the respondent did not deliver the prize bonds to the complainant. The evidence of these witnesses did not inspire confidence the mind of the learned Additional Sessions Judge. He did not find the prosecution evidence trustworthy on the ground that the report was made after about a month and there was no plausible explanation for such delay, particularly from the complainant who was a Bank Officer. He was not impressed by the evidence .Of other Bank Officers as well. It would appear that the report of the alleged commission of crime was made after more than a month. The explanation advanced for such delay was that efforts were made to keep contact with the respondent /accused to persuade him to give the prize bonds or refund the money entrusted to him. One witness Sabir Hussain has supported the complainant in this respect but the complainant Tassaduq Hussain did not mention, in his evidence that this witness Sabir Hussain was associated with him in his venture to approach the respondent/accused for returning money or delivering the prize bonds. On the question of entrustment of the money, the complainant Tassaduq Hussain did not disclose either in the report made by him or in evidence given by him that the entrustment of the money to the respondent was witnessed by these two witnesses Sabir Aussain and Muhammad Iltaf Even Sabir Hussain and Muhammad Iltaf have not made mention other's presence at the time of alleged entrustment, of money to the respondent/ accused. The evidence of the other, witness Muhammad Ilyas, who is the brother of the complainant is to the effect that he had entrusted Rs.45,000 to his brother for purchasing prize bonds. The last witness Abu Zakria is the Investigating Officer. It is evident that the appraisement of the evidence made by the learned Additional Sessions Judge was not unjustified.