ORDER MUKHTAR AHMAD JANEJO, J.- Akhtar Kiyani has moved this Cr. Revision Application against acquittal of respondent No. 2 Yawar Hussain in Case No. 76 of 1992 by the Assistant Commissioner & ACM Court No. XII South Karachi.
2. Admittedly respondent No. 2 was Manager Service Whole-sale Depot of Service Shoes Company at Karachi, with duty to sell goods of said company and remit the sale proceeds to head office of the company at Lahore. The allegation against the respondent No. 2 was, the at during the period from 16.11.1983 to 30.11.1983 there was sale worth Rs.4, 17, 368, 32 and Cut of said amount respondent No. 2 could deduct Rs.39,864,17 as miscellaneous expenses and balance of Rs.3,77,504.15ps was to be sent by him to head office of Service Shoes Company at Lahore but he failed to send the same.
In this way an amount of Rs.3,77,504.15ps was alleged to have been misappropriated by respondent No.2 as an employee of the company. The case was tried by the ACM Court No. XII South, who under the impugned judgment dated 31.1,1993 acquitted the respondent No.2. Hence this revision application.
3. Mr. Dewan Bashir Ahmed learned counsel for the applicant argued that there was a clear misappropriation of money by respondent No. 2, who was an employee of Service Shoes Company and supposed to send the sale proceeds to said company at Lahore but he had failed to do so. In respect of delay in lodging of the complaint, learned counsel was of the view that such delay of six months was not of any consequence. In support the cited the case of Shrimati Sawitri Vs Gopaldas end another (PLD 1963 (W.P) Karachi 66) where delay of eight months in filling petition by a private party under Section 439 Cr.P.C was held to be not inordinate and the petition challenging acquittal and retrial was ordered.
4. After hearing learned counsel for the applicant, I am not satisfied with the fact, that a criminal charge has been made out against the respondent No. 2. Admittedly respondent No. 2 was an employee of Sendee Sales Corporation (Pvt) Limited Lahore, which appears to have dispute with the former about non-payment of some amount realised out of sale of latter's goods at Karachi.
This dispute appears to be of civil nature as the element of mens rea is almost non existing.
5. Plea of the respondent No.2 during the trial was that he had remitted the entire sale proceeds, of the stock of shoes sold by him during the period 16.11.1983 to 30.11.83 to the said Corporation, through bank drafts without committing misappropriation of the funds of the corporation. He claimed to have remitted to the corporation Rs. 6,34,000/- under documents annexures EX.3-K, Ex,3-M/1 Ex.3-M/2, Ex3-M/3 and Ex.3-M/4. Respondent No. 2 also took plea that some sale were made on credit basis. He produced before the trial Court list of the dealers and non dealers as Ex.12-A and fortnightly statement Ex.12-B dated 31.12.1983 for the period 1.12.1983 to 15.12.1983 original of which was sent to the corporation at Lahore. Respondent No.2 also produced statement Ex.12-C showing that some amount pertaining to the period from 2.11.1983 to 6.11.1983 was lying with the declares, who were supplied stock on credit basis.
6. In respect of supply of goods on credit basis, there is admission by Muhammad Zaheer Ex.5. The trial court has mentioned that the Investigating Officer of the case admitted in cross that the documents Ex.3-C/1 and Ex.3-C/2 were the only documents relating to misappropriation.
7. There is also abnormal delay in lodging of the complaint. The complaint shows that the amount allegedly misappropriated was to be remitted to the company at Lahore by 1.12.1983. As against this, the complaint has been filed on 25.6.1984. In the case of Shrimati Sewitri (PLD 1963 (W.P)
Karachi 66) there is no observation about delay in lodging of the complaint. There was observation about delay in filling the criminal revision application and it was held that delay of eight months in filling criminal revision by a private party was not inordinate. In this case, the delay in lodging the complaint is said to be due to obtaining of the sanction from the head office at Lahore for prosecution of respondent No. 2. It is difficult to believe that in a private concern, such delay was due to obtaining of the sanction. Such dely can occur in a Government Department but not in a private organization.
8. P.W. Muzaffar Javed Ex. 4 stated in his evidence that the amount of arrears was outstanding against the parties and that the respondent No. 2 after his discharge from the hospital used to collect the money from parties and .Credited the same in account of the company and that some money was still lying with the parties. All these facts show that there was no criminal intent on part of the respondent No. 2 to misappropriate any amount. Consequently no criminal case is made out and the respondent No. 2 was rightly acquitted.
9. It may, however, be pointed out here that interference with acquittal is not a matter of course.
Where a Judge has read the evidence fairly and has formulated grounds of doubt which are not perverse or wholly illogical or unreasonable, there is a clear risk of departure from the rule of the benefit of doubt in reversing his findings, as observed in the case of Abdul Majid Vs Superintended & RIA Government of E.P (PUD 1964 S.C.422). In the case State Vs Abdullah and another (1979 P.Cr.LJ.891) it was held that while dealing with the acquittal appeals the High Court has to keep in view the factors that the trial court had an opportunity of seeing the witnesses, that trial court's opinion as to the credibility of witnesses deserves to be kept into consideration, that the High Court is to be slow in displacing findings of innocence, and that after acquittal of an accused presumption of innocence in the favour has been strengthened. In the case of State Vs Syed Mustafa Abbas and others (1986 P.Cr.LJ.1283) it was held that in deciding an acquittal appeal importance must be given to the views of the trial Judge as to the credibility of the witnesses, where the acquittal rests wholly on direct evidence of witnesses. It' was also held that the High Court must be slow at disturbing a finding of fact arrived at by a Court which had the advantage of watching the demeanour of witnesses. In the case of State Vs Muhammad Amin and others (1985 P.Cr.L.J. 472) it was held that where in acquitting the accused the trial Court did not violate any principle of law and did not ignore any material fact in appraising the evidence on record and its conclusion did not suffer from any patent error or exception, then there is no justification for interference with the order of acquittal, even if different view on some of the matters is taken.
9. For the foregoing reasons I dismiss this criminal revision application but this would not stand in way of the applicant or Service Shoes Company from filing a civil suit against the respondent No. 2 for recovery of any amount which is found due.