This appeal under section 10 of the Pakistan Criminal Law Amendment Act, is directed against the Judgment of Mr. Mushtaq Ali Kazi, Special Judge (Central), Karachi, dated 7-4-1969, whereby he tried and convicted the appellant for offences under section 409, P. P. C. And section 5 . (2) of the Prevention of Corruption Act, 1947, and sentenced him to undergo five years' R. I. And to pay a fine of Rs. 50,000 or in default to suffer R. I.For a period of two years under section 409, P. P. C. The appellant was further sentenced to undergo R. I. For three years for offences under section 5 (2) of the Prevention of Corruption Act, 1947. The sentences of imprisonment were to run concurrently and it was directed that out of the fine if realized, an amount of Rs. 34,666.51, may be paid to the Drawing & Disbursing Officer, Ministry of Food and Agriculture, Government of Pakistan.
2. The facts briefly are that appellant Syed Muhammad Rizvi, joined the services of Ministry of Food and Agriculture, Government of Pakistan, Karachi, sometime in 1958, as an Accounts Clerk and on 29th April 1959, he was authorised in the same capacity to receive cheques and encash them from the State Bank of Pakistan, as a stop-gap arrangement vice Mr. S. M. A. Hashim who was then lying ill in the hospital, by order of Mr. Izhar Ahmad, Assistant Secretary to the Government of Pakistan Exh.
32. This letter being very important is reproduced as under :-- No. DY AI/3077/59 Government of Pakistan Ministry of Food & Agriculture.
(Food Division)
Karachi, the 29th April 1959.
To The Accountant-General, Pakistan Revenue, Karachi.
Sub :Appointment of Mr. S. M. Rizvi, Accounts Clerk as Cashier as a stop-gap arrangement.
Sir, I am directed to authorise Mr. S. M. Rizvi, an Accounts Clerk in the Food Division, to receive cheques from your office in respect of pay, alto lances contingencies, etc. Etc. Of the officers and Non- Gazetted staff of the Food Division and to encash them from the State Bank of Pakistan. This is a stop-gap arrangement vice Mr. S. M. A. Hashnli, who is lying sick in hospital.
2. Attested Specimen signatures of Mr. S. M. Rizvi are appended along with his attested photograph.
Yours obedient servant, (Izhar Ahmed), Assistant Secretary to the Government of Pakistan."
The appellant was working under Mr. S. H. K. Zubairi, Section Officer and Drawing and Disbursing Officer in the Ministry of Food and Agriculture, Karachi, whose office was on the first floor and there was a safe containing the cash which was allegedly kept in the office on the ground floor by the side of the table of the appellant. The safe had two keys, one of which remained with the appellant rind the other key remained with Mr. Zubair but it was available to the appellant for taking out cash.
However, Mr. Zubairi had also a key of the inner compartment of the safe. It is the case of the prosecution that Mr. Zubairi never visited the office of the appellant in order to open the safe because he was busy with his work in his office and for few years the appellant is stated to have worked honestly and created confidence in the mind of Mr. Zubairi. On 29-6-1964 an Audit party it is case of the prosecution, conducted physical verification of cash with the cash balance shown in the account books which tallied with the cash in hand. However, on 28-2-1966, Mr. Zubairi Drawing and Disbursing Officer it is alleged verified the cash books maintained by the appellant. These books were under separate heads namely, 25-General Administration, showing the balance of Rs.
32.699.22, 87-Capital Outlay (Accounts) showing the balance of Rs. 26,536.38, 87-Capital Outlay (D.
G. F.) showing the balance of Rs. 20,005 and 57-Misc. Showing the balance of Rs. 1,591.30, the total cash balance in the four cash books, as it stood on that day, was Rs. 80,821.91, but on physical verification of the cash, Mr. Zubairi found that there was cash in hand amounting to Rs. 18,929.05 only. The paid vouchers and advances given by the accused amounting to Rs. 15,150.52. Thus the total cash including paid vouchers and advances was only Rs. 34,079.57, hence there was a shortage of Rs.46,742.34 for which the appellant could not satisfactorily account to Mr. Zubairi who accordingly reported the matter to the Deputy Secretary (Food) on 2nd March 1966, one Mr. F.
Ahmad. This officer came to the office of the appellant and counted the cash which he made over along with the vouchers and cash books to M/s. Usmani & Barni of that Directorate General of Food.
The last entries in the cash book were initialled by him. Mr. F. Ahmed, questioned the appellant, the Cashier about the shortage but he could not explain the discrepancy, thereupon he was placed under immediate suspension.
3. On 25-31967, the appellant was charge-sheeted. It appears that a Departmental enquiry vas held against the appellant and one Mr. K. A. H. Ghaurr, who is P. W. I- in the trial, was appointed as Enquiry Officer in spite of the protest of the appellant because this Mr. Ghauri was instrumental in filing the F. I. R. Against the appellant. However, the appellant was found guilty although without adducing any evidence or defending himself and was dismissed from Government service by letter Exh. 5 of Mr. F. Ahmed, Deputy Secretary.
4. Prior to the Departmental proceedings and dismissal from service on 31-8-1966, one Mr. Faiz Muhammad Qureshi, Assistant Accounts Officer, commenced the audit which he completed on 22nd October 1966. He found a shortage of accounts to the extent of Rs. 14,364.36. This is a lengthy report to which I will revert later on. However, for the present purposes during the audit the appellant was allowed to produce certain vouchers which were not posted and there were also totalling mistakes to the extent of Rs. 336.99 and also adjustments were allowed to the extent of Rs.
14,364.36 for non-posting of vouchers, contingent bills, temporary advances etc. The Auditor found the flee shortage of Rs. 34,666.51 on 28-2-1966. On the strength of this Auditor's report, a case was registered against the appellant and he was charge-sheeted, tried and sentenced as above.
5. The appellant has pleaded not guilty to the charges. He produced 7 witnesses in his defence. In his statement under section 342, Cr. P. C. He stated that he was Accounts Clerk and his duty was to collect cheques from the A. G. P. R. And get them cashed from the Bank. He used to write the cash book and maintain accounts. When he was questioned that he as a cashier was dealing in cash and had two keys of the steel almirah and also the cash book under his charge and control, he replied "I had both the keys of the steel almirah in my custody and Mr. Zuberi had a duplicate set of the same keys. The steel set keys, remained with me and Mr. Zuberi. I had one key and Mr. Zuberi had the other key. The key of the inner compartment containing cash remained with Mr. Zuberi." He further elaborated that he used to maintain the account books Arts. A to J and he used to write them himself and he admitted his initials, on every page of this exhibit. As to the question whether a physical check of the cash and verification of the cash was made by Mr. Zubairi and Mr. F. Ahmed on 28-2-1966 and found cash in hand Rs. 18,929.05 and paid vouchers and advances slips of the value of Rs. 15,150.52 in his possession and there was a difference, and shortage of cash amounting to Its. 46,442.34 as per Exh. 29, the appellant stated that "Mr. Zuberi and Mr. A limed had checked the cash on that day. The cash was kept in the inner compartment of which Mr. Zuberi had the key.
The vouchers ware not in my possession." On questioning he further elaborated with regard to deficiency on the relevant date that the actual cash remained with Mr. Zuberi himself and the shortage of cash was not to his knowledge, and he had not misappropriated any cash and when questioned as to why P. Ws. Were deposing against him he replied that Mr. Zubairi had implicated him to save his own skin.
6. The prosecution in support of its case examined six witnesses who produced various documents audit reports and various lists of certain bills paid and unpaid. I will take up now important prosecution witnesses one of whom is P. W. 1 K. A. H. Ghauri, a Section Officer of the Ministry of Food and Agriculture, Karachi, and it may be noted that he was appointed as Enquiry Officer and filed the F. I. R. And objected to by the appellant. He stated that in 1967, he was Section Officer in the Ministry of Agriculture and Works and Mr. M. H. Soofi, Secretary ordered him to file a complaint about the case, charges were framed against him but the appellant failed to appear before the Departmental enquiry and ex parte proceedings were taken against him. He stated that no formal charge report is prepared for taking over and handing over charge by the Cashier or other non- gazetted Officer. Instead of it, a report is sent to the A. G. P. R: along with the signatures of the person concerned and also similar report along with the signatures is also sent to the State Bank but he admitted that the A. G. P R. Has not been able to locate the report and specimen signatures of the appellant, but the State Bank has furnished a copy which has been produced earlier. It may be noted here that the appoint--ment of the appellant as per State Bank letter referred above was a temporary measure as stop-gap arrangement. He admits in cross-examination that the appellant protested that since he had filed the F. I. R. He should not be appointed as an Enquiry Officer against him. The appellant had sent the protest to the Secretary and other officers. When questioned to produce the file containing orders appointing cashiers etc. He stated that the file has not been found in the office except for the letter received from the State Bank and admitted that there is no order appointing the appellant as a cashier. He denied the knowledge that Mr. Hashmi is predecessor of the appellant as cashier in the Accounts Branch. With regard to physical verification of the cash he stated that it was made by Mr. Zubairi and not by him and the report of shortage was made by Mr. Zubairi but he did not verify it with the audit report. He admits further that there is a Departmental enquiry conducted against Mr. Zubairi in connection with this case but he is not aware of the charge and he denied that he has any knowledge about the case against the appellant beyond what was contained in the audit report.
7. Statement this P. W. In my opinion in no way supports the prosecution case against the appellant. He admittedly had not checked the cash physically on the relevant date. He did not examine any document as he admits except the audit report and he otherwise failed tan produce the Departmental file to show the appointment of the cashier particularly of appellant except a letter of the State Bank of Pakistan. He was directed and he did file an F. I. R. Against the appellant based on an audit report. Apart from has evidence being of no value in any opinion to by prosecution of the appellant this witness was objected to by the appellant as an Enquiry Officer, he being prejudiced against him, it cannot be ruled out. I, therefore, attach no value to the statement of this witness.
8. The next witness and perhaps one of the most important witnesses of the prosecution is P. W. 3 S. H. K. Zubairi, Section Officer and Drawing and Disbursing Officer under whose direct supervision the appellant was working. It may be noted that a Departmental enquiry was conducted against this very P. W. Involving in this very case but he was not aware of its result as stated by P. W. Ghauri and also it was stated by the appellant in his statement referred earlier that it was this very witness who if at all misappropriated the amount involved and to save his own skin got the appellant implicated. He stated that he was Drawing and Disbursing Officer for the whole Ministry since 1959 and the appellant was working as a cashier under him since he took over and audit was held in 1962-63 and 1963-64. From 30th July 1964 to the end of 1965, in spite of his verbal and written orders the appellant did not reconcile the outstanding amount in his custody and on 28-2-1966, he made a physical check of the cash-books and on this date cash balance was Rs. 80,821.91. He inspected the chest and found Rs. 18,929.05 and also found paid vouchers and advance slips of the value of Rs: 15,150.52 and there was actual shortage of Rs. 46,742.34. He therefore, submitted his report to the Deputy Secretary about the shortage Exh.
29. The Deputy Secretary was called downstairs who also physically checked the cash personally and also checked the accounts. All the seven cash books he states were entirely in the handwriting of the appellant. The safe was kept in the office of the appellant downstairs while he used to sit in his office upstairs. Two keys were used for opening the iron safe. The safe has two keys because one of which used to remain with him while the other remained with the cashier, the appellant. Sometime the first key used to remain with the cashier.
He never visited the office of the appellant in order to open the safe as he had lot of work. A special audit was carried out by Mr. Mohibul Haq subsequent to the submission of his report but that audit was not completed. Mr. F. M. Qureshi, Assistant Accounts Officer also carried out an audit which he completed. He denied to have dealt with cash which he stated was exclusively dealt with by the appellant. But he had been carrying out checks occasionally prior to June, 1964. In his cross- examination he admits that there is an enquiry pending against him connected with this embezzlement and states that the safe had three keys. Two were applied for opening the safe and third key was meant for opening the inner chest. The key of the inner chest used to remain with him all time. The actual cash in the safe on 29th June 1964, was Rs. 99,760.67 and he admits to have stated before the Police that Rs. 95,000 remained un-disbursed but this related to the period of 1961-62. He denied the knowledge as to what part of this cash of Rs. 95,000 was found by the- Auditor in the inner chest and what amount was found in the body of the safe. He stated that when on fat March 1966, Mr. F. Ahmed. Deputy Secretary physically checked the chest, he did not remember how much cash was found in the inner chest and how much in the body of the safe. He admits to have given the key of inner chest to Mr. F. Ahmed who had prepared a report of this check carried out by him and he had seen the report. It may be noted here that no such report as to how much cash was found in the inner chest and how much in the body of the safe was found by Mr. F. Ahmed, has been produced by the prosecution. This witness admits that Mr. F. Ahmed mentioned separately the amounts found in the inner chest, and in the rest of the safe, and this report was prepared by him on 1st March 1966. In my opinion this report of Mr. F. Ahmed is very important for the proper decision of this case to show that in fact who was in actual control of the cash allegedly lying in the inner chest and the body of the safe. I fail to understand if at all such report exists as stated by this witness, if so, why that has not been produced by prosecution which is a serious lapse on its part because it has been the case of the appellant throughout that no particular amount at any time was ever entrusted to him and he had no dominion over the cash so as to be able to misap--propriate. In cross-examination although he admits that he received a complaint about the non-payment from the staff between 1959 to 1st of July 1966, but he did not remember any of the name of the complainant and he further states that several persons have claimed in writing of non-payment of their dues after suspension of the appellant but he failed to name any of them nor any of those documents have been exhibited by the prosecution. He also shows his ignorance that any amount relating to the sale of rice remained unaccounted for. He denied the suggestion put to him that he took three days' casual leave `before the first audit held in 1964 and during that leave he collected Rs. 40,000 from his friends and put back in the inner chest and after audit he refunded that money to his friends. He admits that many vouchers which were not posted in the cash books were found after the discovery of shortage. With regard to appointment of the appellant he states that he was appointed as a cashier during the short illness of Mr. Hashmi. Mr. Hashmi bad another heart attack after working for about a month and appellant continued in the poet as a cashier from that date. As I have observed earlier that there is no order on record of Mr. Hashmi taking charge as cashier from the appellant after coming from hospital nor there is any second order appointing the appellant as a cashier. The formalities with regard to his signature and information to A. G. P. R. With regard to the second appointment, are not available and admittedly no such order exists on the record. It is interesting to note that this witness who was a Drawing arid Disbursing Officer admits in cross-examination that he does not remember what amount of cash was in safe when the appellant was appointed as a cashier for the first time yet he elaborates that the cash was actually counted and handed over to the appellant according to the cash book but no document was written about handing over charge to him (appellant) because Mr. Hashmi was removed to hospital all of a sudden. It is not plausible that if hard cash is handed over to the appellant by this witness without keeping any record pr obtaining receipt from him, Although he states that when Hashmi suffered his second attack he got the cash counted in the safe and delivered it to the appellant but no note was recorded any where so far as he remembers about the actual cash handed over to the appellant because he was given according to him the charge of cash as well as books. Now I fail to understand that when admittedly no record exists with regard to how much money on any particular date was handed over by this witness to the appellant, how it can be said that the appellant has misappropriated the amount within the mischief of section 409, P. P. C. ? With regard to enquiry against him he states that an officer of the Ministry of Home Affairs has been deputed as an Enquiry Officer against him. The application against him is of slackness and lack of supervision. The appellant, he states, had created confidence in his mind he used to keep one key with him and afterwards he used to leave it with him. Only on occasion when the appellant required to draw money from the inner chest be would take the key from him. Reading of the statement of this witness goes to show that at least he failed: to prove as to how much cash used to remain with the appellant and he failed to show at what time any amount was given to the appellant for disbursement. It appears to me from the statement of this witness that it was him who had control and dominion over the cash and when it was required by the appellant, this witness used to open the chest and give the cash. That is why no documents, were produced to show that how much money remained with the appellant although the appellant admittedly used to keep the cash books and made entries as required or directed by this officer s therefore, I am of the opinion that it was this witness who had control and access to the cash. Hs, admits that there was an enquiry against him, yet the result of which he does not know: It appears when discovery of shortage was made, he tried to shift the blame to his subordinate official the appellant, even in this attempt he failed. Mere shortage of cash without proving as to how much money was misappropriated and without proving that the amount was within the access or dominion of the appellant in my opinion, no charge can be brought against the appellant under section 409, P. P. C.
9. P. W. 5 Faiz Ahmed, is a Deputy Secretary who on report of P. W. Zubairi on 1-3-1966, afternoon went to the office and according to him checked the cash and' the books. He states that the cash was counted by other persons in his presence and prepared seizure memo. Exh. 34 which bears his signatures and also the signature of the appellant in addition to the signature of Usmani cashier of the Director-General of Food, to whom he made over the charge. Now this seizure memo. Shows the closing balance on 1-3-1966 on different heads as Rs. 80,821.91 and amount of cash in hand Rs.
18,427 and amount said to be lying in stamps and cheque but not handed over Rs. 502.05 and vouchers and records of advances amounting to Rs. 15,150.52, were not checked on that date and on this calculation the appellant was tried for the deficiency of the amount. Admittedly the cash books were opened in presence of Mr. Zubairi on 1-3-1966 by this witness the Deputy Secretary, and it is also on record that Mr. Zubairi had the key of the inner chest as well " one key of the safe. So it is quite possible to assume that it was Mr. Zubairi himself who brought out the cash and done his superior officer, the Deputy Secretary, count it. As the appellant was holding charge of the cash books he was made to sign on this seizure memo. Exh. 34 and this seizure memo. Does not show that in fact it was the appellant who had dominion and control over the cash and this witness does not say specifically that he had taken the keys from the appellant and notfrom Mr. Zubairi and thereafter checked the cash. Therefore, the benefit of doubt must go in the circumstances to the appellant because this witness in his cross-examination states that he does not remember how many keys were required to open the safe where the appellant used to keep the cash, and he does not remember who gave him the keys of the safe. The statement of this witness cannot be believed although he was reported about the shortage of the amount and he checked the accounts and the cash books in presence of Mr. Zubairi, but how he does not remember that who gave the keys of .The safe or who opened the cash box ? This leads me to an irresistible conclusion that this witness is not telling truth. He was given the keys it looks by nobody else than Mr. Zubairi, to whom this witness, it appears, is helping in his statement. I therefore, attach no importance to the statement of this witness either.
10. On the other hand the appellant produced seven defence witnesses who go-to show that the cash used to remain under the control of Mr. Zubairi and not the appellant. D. W. 1 Akhtar Ali, who is an Upper Division Clerk of the same Department stated that he paid an amount of Rs. 825 taken as advance against his pay to Mr. Burni Drawing and Disbursing Officer in place of Mr. Zubairi and he had taken a receipt of the same Exh.
67. D. W. 2 Syed Aley Nabi an Assistant of the same Ministry stated that he wanted some travelling advance in the year 1965, but the appellant refused to make him payment. He then went to D. D. O. Mr. Zubairi, who took cheque from him and gave from his own cash (box) and took a chit by way of receipt and then he gave the cheque to the cashier. In cross-examination he stated that the cashier explained that; he could not make payment because he had no cash amount available with him. The amount for advance was Rs.
80. Then there is statement of D. W. 3 Muhammad Hyder Qadri, Accountant of the same Department. He states that during the internal audit he had a chance to find a bundle of paid bills lying in the garage of that block. He picked them up and brought them to the accountant and gave them to the official concerned for checking. Cash used to remain in custody of appellant in a safe. Some cash remained in the safe in the outer compartment and some in the internal drawer. The key of the internal drawer called inner chest remained with the D. D. O. Mr. Zubairi. The safe remained in the office on the ground floor, and therefore, Mr. Zubairi used to come down to open the inner chest of the safe, and hand over cash to the appellant. In cross-examination he states that although both the keys of the outer compartment of the same remained with the cashier, the cash balance to the extent of only Rs. 500 remained with the cashier and' if it exceeds to that amount, it was kept in the inner chest of the same, the keys of which remained with the Drawing and Disbursing Officer. Now this is an accountant who used to work on the next table of the appellant and he knew the working of the Department and he specifically states that it was Mr. Zubairi who had control over the amount. Then there is the statement of D. W. 4 Muhammad Muslim, a peon of the same Department. He states that when he needed advance from his pay he used to go to the cashier and when he declined, he used to go to Mr. Zubairi who used to make him payment from his own almirah. Surprisingly this witness was not subjected to any cross-examination except one question that he used to give receipt to Mr. Zubairi for the advances, and the cashier used to deduct the advances from his pay. D. W. 5 Hassap Amir is a Superintendent of the same Department, he states that Mr. Zubairi had a steel almirah in his office room where he used to keep cash. . But he did not know whether it was his own cash or the Government each. The cashier used to pass on the cash to the clerks for disbursement, about the salaries of the staff. The appellant was asked to work in place of Mr. Alashmi who had fallen ill. He worked as cashier for 5-6 years but all that time he did not get the formal order of appointment as a cashier. His designation was that of accounts clerk.
11. I have heard Mr. Khalid M. Ishaque, Advocate, for the appellant and Mr. Murtaza Hussain, Advocate, for the State. The learned counsel for the State conceded that the appellant could not be punished twice for the same offence under section 409, P. P. C. To 5 years' R. I. And Rs. 50,000 fine or in default to suffer two years' R. I. As well as three years' R. I. For offences under section 5 (2) of Prevention of Corruption Act, 1947, although the sentences were to run concurrently and the learned trial Court could not sentence under two different counts for the same offence, Counsel for the appellant relied on Lohana Kantilal v. Stale (AIR 1954 Saut.121) wherein it was held that -- "Separate sentences for the conviction under section 161 of the --Code and section 5 (2) of the Prevention of Corruption Act, are r therefore, illegal since there is only one Act which constitutes an offence under two enactments," because section 26 of the General Clauses Act, 1897, prohibits separate sentences under different Acts for the same offence. He next relied on Muhammad Sadiq Javeed v. State (PLD 1959 Pesh. 12) wherein it was held by my learned brother Mr. Justice Muhammad Afzal Zullah that section 26 of General Clauses Act, 1897 read with Penal Code of 1860, section 5 (4) of Prevention of Corruption Act, 1947, prohibits double punishment although trial and conviction for different offences is not prohibited. Accused was charged with offence under section 409, P. P. C. Read with section 5 (2), Prevention of Corruption Act, 1947, trial Court passing sentence of 9 years' R. I. And fine of Rs. 70,000 or in default 2-- years' R. I. Only under section 409, P. P. C. And not passing any separate sentence tinder section 5 (2) of Act, 1947, the sentence was not held illegal but in the case before me as I have observed separate' sentences have been passed under new enactments i.e. Section 5 (2) of the Prevention of Corruption Act, 1947, section 409 of P. P. C. The learned counsel for the State conceded that the second sentence was illegal. The result is I accept this contention and set aside the second sentence. Now I am left only with the charge under section 409, P. P. C. Against the appellant which is as under :--- ---409. Whoever, being in any manner entrusted with property or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
It is apparent from the bare reading of the section that before misappropriation is made, it is to be proved by the prosecution that accused was entrusted with property or had dominion over the property. Only then he can be convicted for the criminal breach of trust. Viewing the evidence discussed above I am of the firm opinion that in this case the prosecution has miserably failed to show that the appellant at any particular time had control or dominion .Of the cash entrusted to him which he could misappropriate. This is one of the main ingredient of the offence, which in this case is missing. In the present state of evidence the conviction of the appellant in my opinion cannot be maintained. I am supported in my this view by Bhag Singh v. The Crown ((1876) 2 P R 41) at page 49 wherein was held: "In order to bring a case within section 409 it is in my opinion necessary to show that property was entrusted to a public servant and that he accepted the property entrusted, being in his public capacity required or authorised to accept it. Otherwise in accepting the property he acts as a mere volunteer, and is not entrusted with it in his capacity of a public servant. It is not in my opinion sufficient to show merely that a person delivered property to him because he was a public servant.
The motive which induced the person to deliver the property cannot alone determine the guilty of the trust created. The mistaken belief of the person delivering the property or of the person accepting it, or of both, that the latter was authorised to receive in his public capacity cannot alter the, facts and supply the deficient and requisite authority so a to convert simple breach of trust into breach of trust by a public servant." Khirode Kumar Moakerjee v. Emperor (AIR 1925 Cal, 260) wherein itwas held that-- "The offence of criminal breach of trust involves entrustment or dominion over property and dishonest misappropriation, con--version, use or disposal thereof. It is not possible to find these elements unless one can form a conception as to what the property is, There must therefore, be a definite finding of a certain definite sum traced to the accused in order to form the basis of his conviction."
Emperor v. Ahmed Din ((1935) 36 Cr. L J 165) wherein it was held that "criminal breach of trust involves either dishonest misappropriation or conversion by the accused to his own use or wrongful disposition, as defined in section 405, of property which or the dominion over which has been entrusted to the accused. From section 405 it seems to me to be clear that the property entrusted or part of it must be actually misapplied." As I have observed earlier that the prosecution has failed to prove as to how much amount, was entrusted and at what time to the appellant and how it was misapplied ?
Hem Chandra Holder v. Emperor (AIR 1934 Cal. 407). This was a case where the accused was tried under section 409 of Penal Code and due to insufficiency of evidence it was observed: "In cases of circumstantial evidence in order to justify the inference of guilt the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. Circumstances of strong suspicion without more definite evidence are not sufficient to justify a conviction, even though the accused offers no explanation of them. The guilt of the accused cannot be taken to be established on the inconsistencies and improbabilities only."
Emperor v. Lala Raoji Mahale ((1928) 30 B L R 604). This was also a case of criminal breach of trust under section 409, P. P. C. Wherein it was held--- "Accused No. 1 was a range forest officer and accused Nos. 2 and 3 were clerks working under him.
It was the duty of all the accused to pay into the Government treasury from day to day the money collected by them. The clerks, however, conspired to keep the money with them for a number of, days, though eventually they paid it up without misappropriating any amount. There was no evidence to show that they used the money for their own purposes. Accused No. 1 convicted at the belated payments. On a prosecution of accused No. 1 for an offence of abetment of criminal breach of trust (sections 409 and 109 of the Indian Penal Code) :- Held, that though accused No. 1 was guilty of gross dereliction of duty in not seeing that the rules about payment into Govern--ment treasury were not observed and in conniving at the belated payments, yet he was entitled to a reasonable doubt as to whether his intention was dishonest in the sense that he, by his connivance, intended to let his subordinates have the use of the money to the detriment of Government during the period that the money was not remitted.
Section 409 of the Indian Penal Code cannot properly be construed as involving that any head of an office, who is negligent in seeing that the rules about remitting money to the treasury are observed is ipso facto guilty of the offence of criminal breach of trust ; but something more than that is required to bring home the dishonest intention, which is one of the essentials of the offence.
There should be some indication which justifies a finding that the accused definitely had the intention of wrongfully keeping Government of the moneys and ordinarily that would be shown by some overt act, which went beyond mere retention of money that should have been remitted to the treasury."
Sonaullah Dhali alias Md. Sonaullah Dhali v. The State (1970 SCMR 709). This was a case under section 409, P. P. C. Of criminal breach of trust. The accused was President of Union Board charged for misappropriating amounts deposited with him by Tax Collectors. Accused being illiterate all office work performed by clerk. Clerk falling ill but offering to hand over collection books and some money to accused's successor-in-office but latter refusing to accept same. Receipts of money by accused not proved beyond reasonable doubt. -He was acquitted in the circumstances. He was given the benefit of doubt arced acquitted in the circumstances.
12. The ratio in the above cases irresistibly leads to the conclusion that entrustment of property is to be proved against beyond any reasonable doubt before a person can be convicted under section 409, P. P. C. As I have observed earlier that the ff prosecution in my opinion has definitely failed to prove that any amount at any particular time was entrusted to the appellant, which he could and in fact did misappropriate. I therefore, following the principles laid down in the above cited cases, give benefit of doubt to the appellant, set aside the Judgment of the Special Judge (Central), Karachi dated 7-4-1969 and acquit the appellant. The bail bond if any stand cancelled.