' This is an application in revision by one Zafarullah Khan son of Doctor Abdul Latif Khan against the first respondent Fahimuddin Khokar calling into question the acquittal of the latter by a judgment of the Additional City Magistrate XXIV, Karachi. The case has had a somewhat chequred career both in the trial Court as well as in this Court and it is necessary to state certain datcs as these have a bearing upon a preliminary point in the case as well as upon the merits. On the 18th of May, 1964 the applicant filed a first information report which ultimately resulted in the sending up of the first respondent, by means of a police report, to the Court of a Magistrate for an offence under section 406, Pakistan Penal Code. On the 19th February, 1966 the learned Magistrate who was trying the respondent discharged him and against this order of discharge the applicant went in revision to the Court of Sessions in which Court a learned Additional Sessions Judge, accepting the revision application, set-aside the order of discharge and directed a further enquiry. A further enquiry accordingly took place and, finally upon the 3rd April 1970, the respondent was acquitted by means of the judgment which is now challenged before me. The case came up for Katcha Peshi upon a number of occasions but on the 18th of December, 1970, counsel for the applicant not being present, was dismissed for default by a learned Single Judge of this Court namely Mr. Justice Dorab Patel. An application for restoration was filed and Mr. Justice Ghulam Rasool Shaikh by an order dated 16th February, 1971 restored it, the order being in these terms:- "Satisfactory cause has been shown for absence. R. A. Is restored."
' Thereafter again it came up for hearing upon two occasions but had to be adjourned on account of the illness of counsel for the applicant but was ultimately admitted to regular hearing by an order dated the 16th March 1971. The matter, being now thus ripe for hearing, again has come upon several occasions but, for some reason or the other, had to be adjourned until it came up on the 2nd July 1573 before my learned brother Dorab Patel when Mr. Hayat Junejo filed in writing preliminary objections which in effect challenged the legality of the order of restoration, it being argued that there was no power to restore such a case and that therefore the order purporting to restore it was a nullity and the matter stood dismissed. Again upon that date the case could not proceed and Mr. Justice Patel, recording these objections, ordered that they be considered when the case comes up for hearing.
2. The case was listed on three more occasions when again it could not be heard an d being bud before me on the 30th of November, 1973, Mr. Hayat Junejo took up this preliminary objection first.
Now I myself have held in a case that restoration can be ordered in suitable cases but Mr. Hayat Junejo, while accepting the correctness of my decision in that case, argued that the present case was distinguishable and that even upon the principles that I had laid down in that case this kind of case could not be restored. Whatever may be the merits of the argument of Mr. Hayat Junejo which was not eventually canvassed before me, I felt the difficulty of holding that any order of this Court was a nullity more particularly since I myself was sitting as a Single Judge and I did not think that it was open to me to question the correctness of the decision of a brother Judge of equal jurisdiction; certainly there would be no question of my sitting in appeal over his order. I therefore suggested to Mr. Hayat Junejo that I should adjourn this matter and direct that it be placed before Mr. Justice Ghulam Rasool Shaikh, but in view of the fact that the matter was already an old one, Mr. Hayat Junejo withdrew his objection and argued the matter on merits. It is in these circumstances that I have heard the matter on merits without reference to this preliminary objection, regarding the restoration as being valid.
3. It is the case of the prosecution that Dr. Abdul Latif Khan, who is the father of the first informant Zafarullah Khan, was living in Kuwait when Martial Law was proclaimed in Pakistan in the year 1958.
The accused respondent Fahimuddin Khokar was married to the daughter of this doctor Khan Abdul Latif, a lady named Zaibun Nisa, a little earlier that is to say in July 1958. It is an admitted position between the parties that until the year 1962 the marriage continued to be a happy one but that a little before 1964 differences arose between the couple and the wife went to her father in Kuwait and that in May, 1964 she was divorced. This fact is material because while the prosecution alleges that monies which were entrusted to the respondent remained with him while there was mutual confidence he refused, on account of the divorce to return monies belonging to Dr. Abdul Latif, while it is the case of the respondent on the contrary that it is on account of the divorce that the false charge of breach of trust is being made against him. The fact however that in between the relations were happy and cordial and that there was a mutual trust, is common to the story of both sides. Consequent upon the promulgation of Martial Law certain Martial Law Regulations particularly relating to the accumulation of money in Pakistan by Pakistanis residents abroad and in regard to Income-tax were made, it being the general policy of the Government to grant an amnesty for past criminal conduct in regard to such transactions, substantially upon the basis that true declarations were now made and that Income-tax would be charged only upon so much of the money as really was earned in Pakistan. Pursuant to one such regulation a press note was issued by the Government of Pakistan which reads thus:- "It has been brought to the notice of State Bank of Pakistan and the Central Board of Revenue that certain persons who are non-resident in Pakistan under the Foreign Exchange and Tax Laws have Liquid assets in Pakistan which they hold in one or more of the following ways:
(a) In safe deposit lockers,
(b) With friends and relatives,
(c) Deposited in banks under names other than their own.
(2) It has been represented that considerable portion of such amounts is, in fact, capital brought from abroad and does not represent income earned and taxable in Pakistan. In order to extend the benefit of Martial Law Regulation No, 43, as amended, to such persons it has been decided as follows:-
(a) That such persons should declare their total liquid assets in Pakistan, to the following officers of the State Bank of Pakistan.
(i) Deputy Controller, Exchange Control Department, Karachi.
(ii) Manager, State Bank of Pakistan, Dacca.
(iii) Manager, State Bank of Pakistan, Lahore. The declaration should be made by the 31st December 1958.
(b) They should then deposit the liquid assets in any bank in Pakistan under any name with a Pakistan address and communicate that name, address and the fact of having deposited, the assets in bank account to the authorities mentioned in (a) above. This information shall be kept completely confidential by the bank in question as well as by the State Bank of Pakistan from every authority except the Income-tax Department. The deposit should be made in the banks and this fact reported to the State Bank by the 31st January, 1959.
(3) The amounts in question all shall normally be regarded as capital unless it is proved that a part thereof was earned in Pakistan or the declarant himself states that a certain part thereof was income earned in Pakistan. In that case, only that part which represents income earned in Pakistan would be taxed at concessional rates under Martial Law Regulation No, 43 as amended, while the other part representing capital shall not be brought to tax at all.
(4) There shall be no question of the repatriation of these assets at any stage in future. However, after the tax, if any, levied under the foregoing paragraph has been paid, the accounts of these persons, would be considered to be resident accounts for all purposes and they would be allowed to operate them freely.
(5) Such non-residents may also at their option file wealth statements showing their total world assets and liabilities in order to safeguard themselves against future income-tax enquiries. These declarations may be filed in a sealed cover."
4. Wishing to take advantage of this, Dr. Abdul Latif Khan wrote to his son-in-law, that is the accused respondent, desiring him to collect on his behalf a sum of Rs, 17,000 which was lying with various relations of the doctor in Pakistan and then to take all such steps as might be necessary in the light of this press note. This sum amounted to Rs, 17,000, Rs, 10,000 being with Abdul Subhan, brother of Dr. Abdul Latif and 6,000 rupees with Rahimuddin, the father of the accused Fahimuddin.
This totals upto Rs, 16,000 and that there is therefore a discrepancy in the evidence of Dr. Abdul Latif Khan which does not account for the remaining 1,000 but, from the rest of the evidence, it can be gathered that the remaining 1,000 rupees came from the father of Dr. Abdul Latif Khan, namely Mohammad Omar Khan. One should have thought that Dr. Abdul Latif might have preferred to give these instructions to his son but it is a case of the prosecution that the son namely Zafarullah, was at that time in the United Kingdom. Accordingly this sum was collected by Fahimuddin and deposited in an account in his own name of which he gave intimation to Dr. Abdul Latif. The amount remained in this account, though the accused withdrew moneys from it from time to time and to one of these I shall again refer. In 1961 when Zafarullah having had come back from England and needing the money, Dr. Abdul Latif desired the accused to pay the money to Zafarullah. The accused did not pay the money and on the 15th March, 1964 Zafarullah Khan, by means of a written letter addressed to Mr. Mohammad Abbas Mien, Superintendent of Police, Special Branch, Karachi, lodged what has been treated as a first information report in this case. In the judgment of the learned Magistrate Dr. Abdul Latif is sometime referred to as the complainant or the first informant but it is clear that it was Zafarullah who was the formal informant but, since it is clearly a part even of the prosecution case that in lodging the first information report he did so on the express or implied instructions of Dr. Abdul Latif, this slight inaccuracy of description is entirely immaterial.
5. Before stating the case of the accused it is necessary to add that the sum of rupees ten thousand said to be lying with Subhan and collected from him was in fact, even according to the prosecution, collected from Subhan's wife in two instalments one of rupees six thousand and the other of four thousand, the former being in cash and the second by a cheque. In the statement which the accused made under section 342, Criminal Procedure Code, he admitted, of course, as could hardly be disputed, that Dr. Abdul Latif Khan was residing in Kuwait, that he was married to his daughter whom he later divorced and that the Martial Law Regulation to which I have referred and the consequent press notes were in fact issued. Except as to the sum of rupees four thousand received by cheque he entirely denied however that these monies belonged to Abdul Latif but expressly stated that the entire money had been given to him by his own father and that he had been depositing it in his own account and that therefore Dr. Abdul Latif or Zafarullah had no concern with the money at all. The money not having been entrusted to him no question of breach of trust arose at all. The payment of rupees four thousand he did indeed admit but stated that the money was required for payment to Messrs Zeman Nasir & Company, Income-tax practitioners, as their professional fees for dealing with the Income-tax case of Dr. Abdul Latif and that Mrs. Subhan had therefore given him a cheque for rupees four thousand and in turn he had paid the money to the said firm. The various letters that had been exchanged between him and his father-in-law also he admitted but denied that they constituted any kind of admission that he had received the money from or on behalf of his father-in-law. It is nowhere stated in his statement but it clearly was a part of his case as is reflected in the cross-examination of witnesses that the charge is being brought against him only because of the breakup of his marriage with Dr. Abdul Latif's daughter and this was orally stressed before me also, it being particularly emphasized that although the entrustment is alleged to have taken place in the year 1958 and even the demand for return made for the first time in 1961. It is not until 1964 that the matter was reported to the police. A matter which would certainly have been embarrassing for the accused to have stated in his statement, even if true, was however orally argued before me as explaining much that might otherwise remain obscure, namely that the purpose of depositing these monies was to take as great an advantage as was possible of the press note and the Martial Law regulation in question and to minimise the amount of money upon which income-tax could be paid, and that therefore all the money that belonged to the accused or his own relations was pooled together so as to enable Dr. Abdul Latif to state that this was money which he had from time to time sent from Kuwait, whether by legal means or illegal means it does not matter. Emphasis was laid upon the fact that in fact Abdul Latif raised no objection whatever to the money being deposited in the name of accused himself and the fact also that from time to time he had utilized monies from this account and finally closed it upon the 30th December, 1963. Indeed this was an answer to a question whLh was put to him under section 342, to Criminal Procedure Code. Of course as a background of the entire matter the disruption of his marriage was also prominently placed though each side puts his own interpretation upon that event and its impact upon the case.
6. Before I start examining the merits of the case, I think it is right to attempt to enunciate the principles upon which interference in the exercise of the Revisional Jurisdiction by this Court wits( acquittals can be justified. A number of cases were cited before me by Mr. Hayat Junejo, appearing for the accused respondent, for the proposition that this Court will not interfere unless the judgment of acquittal is perverse or manifestly wrong and, in any event, not interfere in such manner as virtually to direct the lower Court to record a conviction. The first of these is a Full Bench decision of the Lahore High Court, In re : Shaikh Abdul Karim, Advocate, (1). This was a case in which the real question before the Court was whether a certain Advocate in filing a revision application against an acquittal could be held guilty of professional misconduct and it therefore became necessary to examine the limits within which this jurisdiction is exercised so as to assess the conduct of the Advocate in question. Mr. Justice Mohammad Munir, then Chief Justice of the High Court of Lahore. Delivering the judgment of the Full Bench, observed at page 443 after referring to the High Court Rules which expressly directed the Deputy Registrar not to accept any such revision application unless it was accompanied by a copy of an order of a Magistrate of the District refusing to move the Provincial Government to file an appeal under section 417:- " The reason of the rule is that, if the Provincial Government appeals from the order of acquittal, there remains no occasion for a petition for revision. If, however, the District Magistrate does not agree to move the Provincial Government to appeal, a revision petition may be put in, and the Court will then consider whether the acquittal presents such a glaring instance of miscarriage of justice that a retrial, which in such cases is always a delayed and costly affair, is necessary in the interests of justice. Needless to say that where the Government is not interested and for that reason it has not appealed, this Court will order a retrial only if the case is of such a singularly exceptional character that, unless a retrial is ordered a grave and irremediable injustice must be the result, and such result can be apprehended only where the trial has been contrary to some fundamental rule of procedure or where the acquittal is based on a view of evidence which no reasonable judicial officer anxious to do justice, could possibly take."
' J. It will be seen that the limits within which the High Court thought this jurisdiction ought to be exercised were laid down in very narrow terms and with rigidity.
8. The question arose again in the case of Sher Mohammad v. Mohammad Hussain (2), a case decided by the then Chief Justice, Mr. Justice Manzoor Qadir and the learned Chief Justice observed:- "(4) Without going into the question whether the contentions of the learned counsel as to which party, if any, had the right of private defence, are prima fade sound or not, I think this petition ought to be {{FOOT NOTE}}
(1) PLD 1950 Lah. 439 (2) PLD 1963 Lah.
514. {{FOOT NOTE}} dismissed. Even if the acquittal in this case is not right, an acquittal has sanctity which in the system of jurisprudence we are following, is not lightly to be disturbed. The original rule from which our law is derived is that it is not to be disturbed at all. Our law creates an exception to that rule and gives to the State not to private party the right to appeal against an acquittal. While granting that right of appeal, our law has placed certain checks on it. That right, namely, the right of appeal against acquittal is to be exercised at the highest level of responsibility. It is not to be exercised unless the Chief Executive of the Province sanction it, and it is not to be adjudicated upon except by the highest Court in the Province. This is the extent to which an inroad into the principle of sanctity of an acquittal is permitted. In all other cases, a specific limitation has been put in, debarring the Court from converting an acquittal into a conviction.
(5) In spite of this, it is contended that the meaning of the provision is that what the law forbids to be done except by way of an appeal against acquittal, may nevertheless be done otherwise than by that way, by first setting aside an acquittal in revision and then directing or permitting a re-trial.
It is correct that there is no express bar against the setting aside of an order of acquittal, the only bar being against converting a finding of acquittal into one of conviction. But nothing is achieved by setting aside the acquittal unless it is contemplated that a fresh trial be held and a fresh finding be recorded. Now the only justification for a fresh trial could be that on the previous occasion the trial was either illegal, or in its mode there was a defect which occasioned a miscarriage of justice.
If the trial on the previous occasion was neither illegal nor conducted with material irregularity there would be no occasion and there would be no justification for holding a fresh trial on the same charges. (Of course, if the re-trial is to be for offences that were never put into the charge, the case would be different). If, therefore, the High Court, on examining the record of a case under section 439, is of the opinion that the trial was not defective in any manner, but that upon the trial as held, a finding of acquittal was wrongly given, and that if it had the power, it would convert that finding, on the basis of that very record, into one of conviction, but not having the power to convert a finding of acquittal into one of conviction, it would set aside the acquittal and either direct a re- trial, or leave it to the prosecuting agency to prosecute again, a question arises which needs to be examined carefully. Is it right to order or to permit a re-trial when there was nothing wrong with the previous trial? Is not the object of the re-trial in such a case only to enable the Court to correct what it regard as an error of judgment in respect of a matter in which the law forbids the Court from correcting errors of judgment? Does it then not amount to an attempt to achieve indirectly, as a requirement of justice, what, for reason of public policy, is forbidden as a requirement of law.
(6) It seems to me that it is not the intention of the law that a trial he set aside unless there is a defect in the mode of the trial which makes it necessary to set it aside. It does not appear to me to be justifiable that a perfectly good trial should be set aside, if Sessions Judge in appeal or the trial Court itself came to what the High Court regards a wrong conclusion. And unless the earlier trial is regarded as having been set aside, there is no room for a fresh trial. Technically it may be permissible to regard the whole process of trial as nonexistent once its final conclusion is set aside, but, in substance, there hardly seems any reason for doing so. I am of the opinion that a re-trial is to be held only where there is a defect in the previous trial. It is to be held merely to enable the Court to correct what is regarded as a wrong finding."
9. Although here again the limits are laid down rigorously, the reasoning of the learned Chief Justice, if I may so with respect, is primarily based not only upon the sanctity of an acquittal but in the absence of power, except under section 417, Criminal Procedure Code, to convert the acquittal into a conviction and the consequent conclusion that interference in the exercise of Revisional Jurisdiction would be to do something indirectly which is forbidden by the law to be done directly.
10. Again in the case of Ann Coleman v. Aril' A. Lukmani (1) the late Mr. Justice Khamisani stated his view shortly but forcibly thus, although he then went on to cite cases in support of the proposition:- " The view of the Courts consistently has been that the order of re-trial on the revision against acquittal should invariably not be made unless it is made on technical ground as otherwise such an order would tantamount to a direction to the lower Court to convict the accused."
11, There is however a later decision of the Supreme Court, which of coarse is of binding authority, and this is the case of Feroz Khan v. Ghulam Arabi Khan (2). The appellant in this case had been convicted by a Magistrate under section 307 of the Pakistan Penal Code but the conviction had been set aside but the Court of Sessions and against this acquittal, although the Government did not file an appeal, a revision application filed in the High Court succeeded and a re-hearing was ordered. It was against the order of the High Court that the appellant came by way of Special Leave to Appeal, which was granted, to the Supreme Court. The relevant observations of their Lordships appear at page 431: "Dr. Javid Iqbal, who appeared on behalf of the respondent complainant, invited our attention to the judgment of the Federal Court, reported as Anwar and others v. The Crown PLD 1955 FC 185 and to certain observations of this Court in Muhammad Sammiuliah Khan and another v. The State PLD 1963 SC 337 in support of the proposition that the revisional jurisdiction of the High Court, under section 439 of the Code of Criminal Procedure, is very wide and indeed unlimited in law and is not confined to mere correction of errors of law. In appropriate cases, even finding of fact could be disturbed in revision. This would be possible, for instance, where the subordinate Court had wrongly allocated the onus of proof, in not applying the correct principles relating to the appraisal of evidence, or some important piece of evidence had been ignored. No exception need be taken to this statement of the law. Interference in revision need not be confined to cases where the order of the Court below is "manifestly wrong or perverse or is based on the view of evidence, which no judicial officer would take", as was pointed out by the Federal Court in Anwar and others v. The Crown but the discretion vesting in the High Court under section 439 of the Code of Criminal Procedure has to be exercised in accordance with the dictates of justice arbitrarily, or in a fanciful manner. In particular in cases of revision petitions from an acquittal, where the State has not thought it fit to challenge the acquittal by an {{FOOT NOTE}}
(1) PLD 1964 Kar.
81. (2) PLD 1966 SC 424 {{FOOT NOTE}} ' appeal the Courts would be very slow to interfere, unless non-interference would involve an endorsement of a patently unfair order, or one which leads to miscarriage of justice. If the view taken by the Courts below is reasonably possible on a consideration of all the facts and circumstances of the case, then the entertainment of a feeling, that an alternative view of the evidence might have been taken, would not justify the superior Court in setting aside an order of acquittal. As was observed by this Court in Abdur Rashid Khandkar v. Chandu Matbar PLD 1964 SC 795, the governing consideration must always be whether in relation to the proved facts and circumstances, justice has been done in accordance with law."
12. It is possible to construe the judgment of the Supreme Court as modifying, in some measure the strictness of the limits within which interference in revision with acquittal has been regarded in the earlier cases. In the light of what their Lordships of the Supreme Court said I think it is still clear that the High Court should be reluctant indeed to interfere with an acquittal and clearly not merely upon the ground that itself it would have reached a conclusion different from that which had been arrived at by the acquitting Court. It is not in my view a matter of jurisdiction but one of self- restraint in exercising a jurisdiction undoubtedly vested in the High Court. In the context of the present case 1 would say that the judgment ought not to be interfered with if the trial Court, having examined the evidence, has come to a conclusion which it properly could upon that evidence.
Interference however would be justified if material evidence has been ignored or the opportunity of leading evidence to the prosecution denied or a conclusion reached upon the evidence which could not in any reasonable view of the matter be reached or by a mode of reasoning contrary to the principles of judicial appraisal of evidence. I do not think it possible or desirable to attempt to enumerate all the various possibilities where interference might be proper, for the class of cases in which safest injustice has been done cannot so easily be enumerated and reservation must always be made for that special kind of case which cannot be thus foreseen; for this among other reasons, I do not think it right to curtail the plenitude of jurisdiction which the Legislature has conferred upon the Court without restriction.
13. The most major complaint that was made by the applicant before me in the, case was that the learned trial Magistrate did not consider at all the various letters that had passed between Dr. Abdul Latif and the accused which according to him clearly showed that the money had come from Dr. Abdul Latif and not from any resources of the accused himself. The manner in which this evidence was, according to learned counsel, ignored by the Magistrate was to be deplored all the more because further enquiry was ordered by an Additional Sessions Judge to consider this evidence. I have read the order of the learned Additional Sessions Judge and I do not think it is quite accurate to say that he thought that the letters had not been considered and specifically directed that they be so considered. On the contrary the position was that the learned Magistrate who had discharged the accused had come to the conclusion that the letters did not clearly make out that the sum of Rs, seventeen thousand had in fact come from Dr. Abdul Latif Khan and, the learned Sessions Judge being of the contrary view, thought that the order of discharge was not therefore maintainable. He then went on to say that the trial Magistrate would of course be free to take his own view of the case in the light of the evidence produced by both the parties I cannot regard this as a specific direction to consider a particular piece of evidence and, even if there was, that duty is cast upon a trial Court in any event unless for valid reasons he comes to the conclusion that, whatever be the result of examining such evidence, it could not affect the issue in the case which by reason of some other factor is concluded. Now in the judgment which is now before me the learned Magistrate came to conclusion that the money, if given by Dr, Abdul Latif to the accused, was not given in trust or with any specific direction and therefore however he utilised, or refused to repay it, there would be no case of Criminal Breach of Trust. He quotes a short passage from the deposition of Dr. Abdul Latif which reads thus:- " 1 had my Rs, 17,000 in Pakistan. Rs, 10,000 were with my brother Abdul Subhan and Rs, 10,000 were with my father Mohammad Umer while Rs, 6,000 were with Rahimuddin Khokhar the father of the accused. 1 had written to the accused that he should obtain the said a sums and get them deposited in his name in the Bank and given a declaration to the State Bank."
' He then goes on to say that there is nothing whatever in the evidence from which it could possibly be inferred that he had placed any embargo upon the manner in which the money was to be used arid, regard being had to the fact that the accused had just been married to his daughter, he suggests and indeed holds, at least by implication, that the money was an out-right gift. In this view of the matter he did not consider it necessary to enter into the merits or demerits of the question whether the amount of rupees seventeen thousand had come from the relations of Dr. Abdul Latif or from the resources of the accused himself, for even if the former was the case, there could be no question of breach of trust. Now if this position is correct then of course a non- examination of the letters does not matter. In saying so I am not losing sight of the fact that the case of the accused himself was that the money was his own or at least that of his father for the falsity of the defence would not necessarily render the prosecution case true. Of course if there was good evidence that the money had been given by the doctor in some kind of trust and there were circumstances which would therefore needed explanation by the accused, it might be possible to say that his failure to give such an explanation and instead his attempt to put forward a case that he never received any money would lend support to the prosecution case. The prosecution case however must exist on its own first before any such support can be claimed from the claim put forward by an accused person.
14. I have myself gone through the letters with the help of learned counsel on both sides and have been unable to persuade myself even that the money at least in its entirety, really came directly or indirectly from Dr. Abdul Latif. It is true of course that there are various letters in which from time to time the accused has stated that the money, or rather various items of it, had been deposited in the account of the accused himself and, interspersed with family news, are references to how the matter is being handled before the State Bank authorities and the Income-tax authorities and asking for as well as offering advice as to what Dr. Abdul Latif should himself do in that regard. I am unable however anywhere to find any clear admission except as to the sum of Rs, 4,0J0 to which I shall presently come that the money did come from Dr. Abdul Latif and it is to be remembered that not only then but at least for four years thereafter the relations between the parties continued to be extremely cordial, and the explanation that is now offered therefore that these letters are no more than proof of the various stratagems that were being adopted for the purpose of minimising the tax liability, does not appear to me by any means implausible. It is true that according to the prosecution rupees ten thousand were taken from Mts. Subhan and that therefore this corresponds to the rupees ten thousands mentioned by Dr. Abdul Latif as to be taken from his own brother, namely the husband of this Mrs. Subhan. Learned counsel for the applicant asks me to mark carefully that a certified copy of the bank account in question shows that the deposit came in all exactly to seventeen thousands and corresponds to the various items that I mentioned. This argument however I think overlooks an important fact of the circumstances of the case. If the sum of rupees ten thousands for example was lying with Subhan why should it have to be given in two different instalments and one in cash and the other by cheque? Surely the entire amount could have been given in one lump sum either by cash or by cheque. Regard being had to the circumstance also I should think it very peculiar indeed if this money was given by cheque in its entirety. On the other hand it is a part of the prosecution case itself that six thousands were given by Rahimuddin who is the father, admittedly, of the accused and we have only Dr. Abdul Latif's word for it that this money was owed by Rahimuddin to Dr. Abdul Latif. Rahimuddin was examined as a defence witness and it is remarkable that it was not even suggested to him that he owed six thousand rupees to Dr. Abdul Latif.
15. On the other hand there are various passages in these letters which are clearly indicative of planning between Abdul Latif sitting in Kuwait and the accused in Pakistan for the best ways and means of protecting their interest. Naturally these passages are sometimes less than fully informative but, reading between the lines it certainly does seem that more were going on than either party is willing to state. It is also clear that legal advice, particularly the advice of those practising on the Income-tax side, was being sought. It would be both tedious and unnecessary to set out all the documents which have been produced in this case and the genuineness of which is admitted on both sides, but the following passages culled from various of these letters will illustrate what I mean. In a letter dated the 21st January, 1969 (Exb. 65) from the accused to Dr. Abdul Latif the writer acknowledges first an earlier letter from the doctor which contained the information that a declaration had been made. Clearly therefore the parties stood committed to the sum of rupees seventeen thousands which had been so declared. The letter then goes on:- "You know that I have opened the account in my own name in which father shall have to deposit R.
7,000 and Rs, 10,000 were arranged by the aunt. Perhaps today she shall give a cheque of Rs, 4,000 I shall also deposit the same. Two instalments are also to be made of the remaining seven thousands, though we can get in one instalment but it is to be set deposited through different people so that it may as shown that whole the amount was with various relations. So it was the reply to your questions which you had made to the father as is with which relations the amount was and in whose name it should be deposited. It is being deposited in my name. Do not worry. 15th February, is the last date to send the information. I shall deposit the whole amount before this and shall inform the State Bank of Pakistan, and shall send the copy to you.
' You have made mother question as to what reply should be made if anybody asked to wherefrom the property came and it was purchased. You should not worry about that because the Govt. Has announced that the people who made the declaration by taking the benefit of concession promised by her, only that portion of their property, shalt be taxed which is proved to have been earned in Pakistan. Since you are residing in Kuwait for sufficient period so it cannot be proved that this income shall be considered to be the income earned from here and only this much shall be taxed."
16. In a letter dated the 30th December, 1958, Exh. B/2 the doctor in writing to Fahimuddin states:-.
" How it has settled with the Advocate and who shall pay his fee etc. Do inform me if you have any information with this regard."
17. Again on the 4th January, 1959 the doctor writes:- "From here I have made a declaration of case of Rs, 17,000 perhaps dear Abdul Subhan shall deposit this amount in your name or in his own name. Perhaps, he shall inform you very soon. This declaration was only from cash gold and ornaments. It does not include property, for example, house, land etc. Land and house are already registered with the Government and it is in the notice of the Government. It would have been enquired about cash and ornaments, because it was not in the knowledge of the Government. You need not worry about anything. You should consult with the Advocate as to what is to be declared. It has been clearly stated in Newspaper 'Dawn' dated 28th, There is no mention about landed property in it. Even if God forbid, it is as such father has already stated on my behalf and thus declaration has also been made for the same."
' Clearly more was involved than merely cash and other documents lend further support to this.
18. In another letter dated 14th March 1960, Dr. Abdul Latif after making mention of various articles of jewellery and things like watches and cameras proceeds:- " I am sending an old list. It is the list of those days and articles were taken alongwith as per the same. According to it one woman could have taken alongwith the ornaments worth of Rs, 5,000.
But it is also written in this list that the articles shall not be reliable. But after all one sells when he is in need and at same time it has to be sold. With the help of this list you shall be able to prepare one more good estimate.
(5) The articles t.e. Ornaments or cash which were taken alongwith is required to be declared to the customs (department) so it was done I could not remember as to how much declaration was made but it is a fact that it was made less.
(6) I am writing the weak points which I found so that you may keep in mind and may be able to get a reasonable reply, made.
(7) Besides it, you also keep in mind the amount which was brought from India and did medical practice at Abbotabad and Tando Adam for four years and paid the income-tax. Perhaps it will help you to prepare the account.
(8) After considering well, things appealed to my mind. If you like to make amendments or let it remain as such as you think proper and it may be correct account."
19. In a letter dated the 8th January 1959 (Exh. D/9) he is asking that the money be deposited in Savings Bank Account No, 1798, Lloyds Bank, Victoria Road, Karachi which is not the account opened by the accused, that being in the Habib Bank, The letter first recites the declaration of rupees seventeen thousands and then goes on to say after having explained certain circumstances that:- "Now it is better that you collect so much amount as you can from the following and deposit the same in account of the brother."
' That account being the Lloyd's Bank account I have referred to. Later in the letter some hints are given as to how much and from whom amounts may be collected and be deposited and this passage reads: "(1) Whatever amount my wife may have with her.
(2) If the amount has been paid back to the mother then again get from her.
(3) What amount may be taken out of the Bank A/c of my wife.
(4) Whatever Dady may have saved.
(5) Whatever amount may be obtained from Bashir Mian,
(6) Whatever help you may give.
(7) Let the remaining amount from Rahimuddin.
(8) You get some amount from your bank."
' Items 6, 7 and 8 are particularly revealing.
20. In yet another letter dated the 3rd March, 1960 (Exh. D/11) written by Abdul Latif Khan, though it is not clear to whom, this passage thus appears:- "Aslamo Alaikum, . . . . Today I received (torn) of Mian Latif. I am sending a copy of the same. Latif Mian has not received your (torn) after consulting with Advocate. You might not have written the letter due to any reason. Anyhow, now I have received his letter and it is necessary to inform you. {{DATA MISS ARANGE}}
(1) 30th May 1955 Abdul Razaq and Mubib.
400.00
(2) 7th July, .1955 Asad and Zafar.
400.00
(3) 12th June, 1956 Rauf mother Zaib, Qamar, Badar, Munni in cash. 1,200.00 20,000.00 12 Tolas gold. Case was instituted in customs and received hack 177 tolas of gold. The gold was in the form of ornaments. That was gold in the Bazar at a rate of about Rs, 112 per tola. Bazarwala did not give the receipt. It was sold for about Rs, 20,000 it was sold to different shops, the case was instituted in customs in the name of Sahkira Begum.
(Torn) House of Society and building was purchased
(torn) Razaq (14th May, 1956).
200.00 15,000.00 12,000.00 2,000.00
(Torn) i,e, Abdul Latif.
(7) On 15th June, 1957 Asad, his mother Zaib, Qamar, Badar, Munni. and ornaments valued.
(8) On 11th August 1957 Abdul Latif, The same year land was purchased in Thatta.
(9) On 15th June 1958 Zaib, Qmar, Badar, Munni and her mother and ornaments valued.
10,000.00 12,000.00 Total amount 67,200.00" {{DATA MISS ARANGE}} 21.I could give many other examples from these letters but these suffice at least to show two things at least, first that the entire sum of seventeen thousands was not given by Dr. Abdul Latif and certainly that the deposits were made with the purpose quite different than entrustment. Even after examining this correspondence therefore I am not able to agree with the learned Additional Sessions Judge that the Magistrate who first tried the case and discharged the accused was wrong in thinking that a clear picture could not be obtained from this correspondence. The learned Magistrate who has now acquitted the accused may or may not be correct in thinking that the money was a gift from Dr. Abdul Latif to Fahimuddin. I cannot however say that that would be an unreasonable conclusion to draw, regard being had to the fact that there was some money which could not be explained both in the hands of Dr. Abdul Latif and in that of the accused and his father and that the relations at that sime between the parties were extremely cordial and a gift by Dr. Abdul Latif to his son-in-law might well be regarded as, as good as a gift to his own daughter.
22.A circumstance very much against the prosecution is the delay in the lodging of the first information report in this case and no attempt whatever has been made either in the trial Court or before me to explain it. The entrustment in 1958 and, even granted that there being confidence between the parties, it is only when the demand for refund was refused, that any question of reporting would arise it is the case of the prosecution that such a demand was made in 1961 when Zafaruilah Khan, son of Dr. Abdul Latif came back from the United Kingdom and needed the money.
There was no question in 1961 of the relations between the parties being strained and yet the complaint has been filed upon the 16th May, 1964. In the meantime the divorce took place on the 4th of May, 1964 that is only eleven days before the complaint and that divorce was itself proceeded by a certain amount of acrimonious correspondence through lawyers it being admitted that the wife had already left her husband and joined her father in Kuwait some time earlier. Of course there is no such thing as limitation in a criminal prosecution but the delay of this nature must have some influence upon the credibility of oral evidence. If the documentary evidence had been clear and unambiguous, the delay might not have mattered but here everything depends upon the credibility of the oral evidence and I do think therefore that this delay is an important factor in rejecting the prosecution case.
23.As I have said earlier one item, however, was admitted by the accused to have been received from Dr. Abdul Latif or at any rate on his behalf, and this is the sum of rupees four thousand.
Learned counsel for the applicant says that this admission was deliberately made since the payment was made by cheque and could not be denied. This may be so but the fact remains that the admission has been made and I have already commented upon the improbability of the alleged sum of rupees ten thousands being paid at all by cheque and certainly by two instalments one in cash and one by cheque. Be that as it may this amount of rupees four thousands being admitted the accused explains it as having been handed over to his father for the purpose of payment as professional fees for Income-tax advice. I cannot accept the argument of learned counsel for the applicant that there was no question of Income-tax advice, extracts from letters which 1 have already reproduced clearly show that there very much was such a question. An order of assessm ent by the Income-tax Department has been produced in this case (Exh. 54). A certificate bearing the Exh. No, D/15 and purporting to be signed by Messrs Zaman Nasir & Company, Advocates to the effect that they received a sum of rupees four thousands from Mr. Rahimuddin Khokar (father of the accused) as professional fees for conducting the M. L. R.
Declaration of income-tax and also income-tax case of Dr. Abdul Latif and income-tax cases of Mrs. Subhan has also been produced as Exh. D/15 through the witness Saifuddin who was summoned as a Court witness and the only criticism which the learned counsel for the applicant made against him is that he is not the person who actually signed the certificate. He however claims to have worked in the company of Zaman Nasir & Company for twelve years and this part of his evidence does not appear to have been called into question at all. The admitted payment of rupees four thousands therefore is I think sufficiently explained.
24. In this case I have not therefore been able to come to the conclusion that had I tried this case as original Judge I would necessarily have convicted the accused. Regard being had therefore to the principles that I have earlier stated as to interference with acquittal in the exercise of Revisional Jurisdiction, I am entirely unable to hold that I ought to reverse this acquittal. This application for revision is therefore dismissed.