1. ' By this appeal the appellant has challenged the judgment, dated 2-3-1994 of the learned III Additional Sessions, Judge, Karachi (South), whereby he was nvicted under section 409 of Pakistan Penal Code and sentenced to suffer simple imprisonment for 7 years and fine of Rs,500,000 and in default whereof o suffer further S.I. For 4 years.
2. ' The brief facts of the prosecution case are that M/s. S.B.B.M. Et Six Construct (BESIX), a foreign company through Mr. Dombert Louis son of Lajos Dombret, Administrative and Financial Manager, lodged complaint under sections 403, 406, 408 and 420, P.P.C. Before the Court of the learned Additional City Magistrate, Court No,III, Karachi (South), wherein it was said that in 1989, after inauguration of most awaited fish harbour at Gwadar the tenders were invited and complainant, being a foreign based company, was selected and was handed over the work of construction of the fish harbour at Gwadar. The complainant had its head office in Karachi which controlled its business transactions and other managerial and ministerial works also. The payments for the expenses and expenditures including salaries, monthly payments in the shape of cash as well as through cheques were being made at Karachi, as such the entire work being carried out at the fish harbour was being financed from Karachi head office. On assurance the appellant was appointed as an agent on behalf of the company to look after the matters relating to contingencies including payment of octroi charges at Gwadar. An agreement was executed in-between the complainant company and the appellant on 1-7-1990, wherein the appellant was termed as an exclusive agent for the settlement of and payment of octroi charges to the local municipality of Gwadar for fiscal year starting from 1st July, 1990 to 30th June 1991. Apart from the payment of octroi charges the company made payments in terms of its commission to the appellant. It was further mentioned that the company in terms of agreement started making payment to the appellant in cash and cheques and before such agreement was entered into the appellant was made a payment of Rs,200,000 vide receipt, dated 21-12-1989 and Cheque No,370850 drawn on Banque Indosuez, I, I.
3. Chundrigar Road, Karachi. Irrespective of above, the following payments were made to the appellant by cash and cheques as octroi charges for the Gwadar Municipality:-- CASH
(1) Rs, 30,000 vide receipt dated 14-7-1990. CHEQUES
(2) Rs, 120,000 vide receipt dated 8-8-1990 and Cheque No,57322 drawn on BCCI, I. I. Chundringar Road, Karachi.
(3) Rs,100,000 vide receipt dated 28-8-1990 vide Cheque No,392148 drawn on Banque Indosuez, I. I.
4. Chundringar Road, Karachi.
(4) Rs,200,000 vide receipt dated 5-9-1990 vide Cheque No,395600 drawn on same bank as above.
(5) Rs,50,000 vide receipt dated 20-9-1990 vide Cheque No,405395 drawn on same bank.
(6) Rs,200,000 vide receipt dated 1-10-1990 vide Cheque No,395522 drawn on same bank.
(7) Rs, 50,000 vide receipt dated 9-10-1990 vide Cheque No,553117 drawn on BCCI, I.I. Chundringar Rcad, Karachi.
(8) Rs,50,000 vide receipt dated 20-10-1990 vide Cheque No,411625 drawn on Banque Indosuez, I.I.
5. Chundrigar Road, Karachi.
(9) Rs,100,000 vide receipt dated 28-10-1990 vide Cheque No,01304496.
6. ' In this way the appellant received a sum of Rs,11,00,000 in instalments in a period of three months.
7. According to the complaint M/s. Ashraf Brothers, Octroi Contractor at Gwadar approached complainant's company for the payment of octroi charges from July 1, 1990 and on inquiry it was found that the appellant had made payment of Rs,200,000 only and the remaining amount of Rs,900,000 was with him and had not been paid to the abovementioned octroi contractor and was, thus, misappropriated. The complainant company in order to keep its dignity, repaid an amount of Rs,1,000,000 to M/s. Ashraf Brothers on 24-11-1990. Thus, the appellant received an amount of Rs,11,00,000 being octroi charges to be paid to M/s. Ashraf Brothers, out of which he paid Rs,200,000 only and pocketed remaining amount of Rs,900,000 and as such committed criminal breach of trust and put the complainant in loss and as such committed criminal breach of trust by causing wrongful loss to the complainant and making wrongful gain of Rs,900,000 for himself. It was lastly mentioned that the complainant in the first instance approached Arambagh Police Station, Karachi, within whose jurisdiction ofence was committed and on their refusal to register the case he filed the abovementioned direct complaint.
8. ' The learned A.C.M. No,IV, Karachi, on receipt of the above complaint examined complainant under section 200, Cr.P.C. And held preliminary inquiry under section 202, Cr.P.C. And brought the case on regular file under sections 406 and 408, P.P.C.
9. ' In pursuance of the process the appellant appeared where charge was framed, to which he pleaded not guilty and claimed trial. Thereafter, the learned Magistrate initiated trial and on an application under section 227, Cr.P.C. Amended the charge from sections 406 to 409, P.P.C. And consequently sent up the matter to the Court of the learned District and Sessions Judge at Karachi (South) as section 409, P.P.0 was exclusively triable by the Court of Session. Subsequently the matter was transferred to the Court of III Additional Sessions Judge, Karachi (South) for trial.
10. ' On 23-12-1992 a formal charge was framed under section 409, P.P.C. Against the appellant, to which he pleaded hot guilty and claimed trial. At trial the prosecution examined complainant Dombret Louis, Administrative and Financial Manager, who produced the authority letter, permission for opening head office in Karachi and site office at Gwadar from the Prime Minister's Secretariat, agreement, schedule, receipt of Rs,200,000 from the appellant, photocopy of cheque regarding payment of Rs,200,000, receipt of Rs,30,000, receipt of Rs,120,000, receipt of Rs,100,000, receipt of Rs,200,000, receipt of Rs,50,000, receipt of Rs,200,000, receipt of Rs,50,000, another receipt of Rs,50,000, receipt of Rs,100,000, photocopies of various cheques indicating payments, bank certificate from Banque lndosuez, letter from Ashraf Bros. Demanding payment of Rs,500,000, letter from M/s. Ashraf Bros. Demanding payment of Rs,1,000,000, receipt of M/s. Ashraf Bross, in the sum of Rs,1,000,000, dated 24-11-1990, letter of authority from the appellant to dispose of his jeep for Rs,1,90,000, direct complaint, power of attorney in favour of the appellant. Thereafter, the complainant side produced Ghulam Rasool, the General Secretary of the company and Ashraf of M/s. Ashraf Bros. All the witnesses were duly cross-examined by the appellant's counsel and subsequently the prosecution closed its side.
11. ' The appellant in his statement under section 342, Cr.P.C. Admitted that he was appointed as agent of the complainant company for making payment of octroi charges at Gwadar. He also admitted in his statement that he failed to deposit the payments made to him by the company as octroi charges. He also categorically admitted that he misappopriated Rs,900,000 and simply paid Rs,200,000. However, he produced certain documents and letters for telephone connections alongwith bills and letters showing the rate of commission at 2.5% and some notices sent by him.
12. He examined himself on oath and produced his own letter dated 21-12-1989, agreement, certificate of no objection, plaint in civil suit, some letters and notices sent by him to the company. He also examined one Ghulam Hussain in his defence and closed the side.
13. ' The learned trial Court framed the following points for determination:
(1) Whether accused Badruddin Ramzan received a sum of Rs,11,00,000 from the complainant?
(2) Whether accused Badruddin Ramzan failed to make payment of the amount received by him to the concerned agency i.e, Gwadar Municipality as octroi charges and usurped a sum of Rs,900,000 and or any other sum and thereby committed criminal breach of trust?
(3) What should be the final order?
14. ' On the assessm ent of evidence the appellant was found guilty and was convicted and sentenced as abovementioned.
15. ' I have heared Mr. Syed Riaz Hussain Shah, the learned counsel for the appellant and Mr. S. M.
16. Sayedain Zaidi, the learned Assistant Advocate-General, Sindh, for the State at length and have gone through the R & Ps and the evidence in detail.
17. ' The learned counsel for the appellant mainly contended that the learned trial Court has erred in placing reliance on the prosecution evidence alone for the purpose of conviction, whereas did not pay any heed to the defence version. According to him D.W Ghulam Hussain was appointed as an arbitrator in-between the parties and filed his arbitration that a sum of Rs,140,000 was only outstanding against the appellant. It was further argued that the trial Court had no jurisdiction to conduct the trial and awarded conviction as the alleged offence had taken place at Gwadar where the agreement was got executed in-between the complainant company and the appellant as such the Courts at Balochistan would be competent to try the case. He lastly submitted that the appellant is aged 70 years and is suffering from diabetes, high blood pressure and heart disease, as such lenient view may be taken in the matter. In support of his contentions he referred to the following case-law:
(1) AIR 1955 Allahabad 363,
(2) PLD 1978 SC 251,
(3) PLD 1972 SC 271, and
(4) 1980 PCr.LJ 118.
18. ' On the other hand, the learned Assistant Advocate-General, Sindh vehemently opposed the above contentions and stated that the appellant has admitted his guilt in his statement recorded under section 342, Cr.P.C., as such he has been rightly convicted by the trial Court.
19. ' The complainant Dombert Louis, Administrative and Financial Manager of complainant company and P.W., Ghulam Rasool, his Secretary-General, have fully supported the case of prosecution on the factum of incident of misappropriation committed by the appellant. Though they have been sufficiently cross-examined by the defence counsel at trial but their evidence has not been shaken and has remained intact. The complainant in his statement at trial has categorically stated that he was Administrative and Financial Manager of a foreign based company and his company was awarded a contract for the construction of fish harbour and mini port at Gwadar, Balochistan. For the purpose of accomplishment of the work a head office was set up at 11-F, Habib Ebrahim Rehmatullah Road, K.D.A. Scheme No,1, Karachi with the permission of Government of Pakistan.
20. According to him the appellant was appointed as an agent on the commission basis to make payments of octroi charges on behalf of the company to the Municipal Committee at Gwadar.
21. Such an agreement was reduced in writing in-between them for one year w.e.f, 1-7-1990. According to the complainant the appellant got an advance payment of Rs,200,000 on 21-12-1989 at Karachi and the said letter of request was exhibited and produced by him at the trial and the payment was made by way of cheque and the said cheque was also produced by the complainant in his evidence. The complainant further went on deposing that the payments of Rs,300,000, Rs,120,000, Rs,100,000, Rs,200,000 Rs,50,000, Rs,200,000, Rs,50,000, Rs,50,000 and Rs,100,000 from 1-7-1990 to 28- 10-1990 were made to the appellant by cash as well as cheques. The said receipts were produced in evidence by the complainant. The auction of the octroi charges was awarded to M/s. Ashraf Bros. To whom he had to make the payments but on 8-8-1990 M/s. Ashraf Bros. Wrote a letter to the complainant company demanding the payment of Rs,500,000 which was not deposited by the appellant. According to the complainant on inquiry from the appellant as to why he has not made such payments, he promised to pay later on. In spite of so many directions he failed to make the payments and misappropriated the above amount. According to him another letter was received on 31-10-1990 demanding payment of Rs,1,000,000 as the appellant had not made such payments to M/s. Ashraf Bros., to which also the appellant refused and had misappropriated the same.
22. Ultimately one Pajero Jeep of the appellant at his request was sold and an amount of Rs,190,000 realised from its sale was adjusted towards Rs,900,000 outstanding against him, leaving the balance of Rs,710,000 against the appellant. The complainant further deposed that the appellant vide letter dated 5-6-1990 acknowledged the balance of Rs,900,000 against him.
23. ' P.W. Ghulam Rasool has stated at trial that he joined the company in February, 1989 and left the services in January, 1992. He knew appellant present in Court who was appointed as agent by the company for the purposes of paying octroi charges at Gwadar and such agreement was entered into at Karachi in his presence. He has further deposed that an amount of Rs,11,00,000 was paid to him by the complainant company, out of which he deposited only Rs,200,000 towards octroi charges and usurped an amount of Rs,900,000. Later on the company realised an amount of Rs,190,000 by the sale of his vehicle and still the appellant has misappropriated an amount of Rs,710,000.
24. ' P.W. Ashraf, the Chairman of Business Community, has stated at trial that he was awarded contract for collecting octroi charges by Municipal Committee, Gwadar on 11-7-1990, within its territorial limits. The complainant company was awarded the work of constructing fish harbour at Gwadar and for that purpose machinery and so many other articles were to be transported and those articles were subject to the payment of octroi charges. The complainant company had appointed the appellant as its agent to make octroi payments on its behalf and who made payments of Rs,200,000 by two cheques in the months of August and September, 1990 and thereafter, he proceeded to London for treatment and assured that on return he will make the remaining payments. In the meanwhile they were clearing the goods and were keeping such entries in the record alongwith the rate of taxes. The appellant returned in October, 1990 and by that time an amount of Rs,11,00,000 was outstanding as octroi charges against him and requested for making the payments in instalments. On demand from the company they told that the said payments had been made to the appellant and after few days the company paid him Rs,1,000,000 and obtained such receipt. The appellant was identified in Court to be the same person.
25. ' The appellant in his statement under section 342, Cr.P.C. Entirely accepted the case of the complainant and categorically admitted that he was appointed as the agent for making the payment of octroi charges on its behalf at Gwadar and for that purpose he was entrusted the following payments which he failed to deposit with the octroi contractor of Municipal Committee, Gwardar:
(1) Average payment of Rs,Two Lacs on 21-12-1989.
(2) Rs,30,000 on 14-7-1990.
(3) Rs,1,20,000 on 8-8-1990.
(4) Rs,1,00,000 on 28-8-1990.
(5) Rs,2,00,000 on 5-9-1990.
(6) Rs,50,000 on 20-9-1990.
(7) Rs,2,00,000 on 1-10-1990.
(8) Rs,50,000 on 9-10-1990.
(9) Rs,50,000 on 20-10-1990.
(10) Rs,1,00,000 on 28-10-1990.
26. ' In his statement the appellant further admitted that he has misappropriated Rs,900,000 and made the payment of Rs,200,000 only. He has further admitted that the payments of Rs,1,000,000 were made by the complainant company to M/s. Ashraf Bros. In order to keep the honour as he failed to deposit the same. He also admitted the sale of his Pajero Jeep but it was without his permission and he had also acknowledged the liability of Rs,900,000 against him of the complainant company. In his statement on oath the appellant admitted to be the agent of complainant company and in his cross-examination admitted that the payments stated above were made to him by the complainant company at Karachi and he has further stated that vide his own letter dated 21-12-1989 he had permitted the complainant to sell his jeep which was sold for Rs,190,000 and the same was deducted from Rs,900,000 and a balance of Rs,710,000 was still outstanding against him.
27. ' D.W. Ghulam Hussain has simply deposed to the extent that he was appointed as an arbitrator and account was settled in-between the complainant and the appellant and an amount of Rs,140,000 was found to be due to the complainant company from the appellant on account of commission fee.
28. From the above discussion of evidence the elements of section 408, P.P.C. Are fully established. It has been proved beyond any shadow of doubt that the appellant, the agent of complainant company was entrusted with the abovementioned payments and had full and exclusive domain over the amount embezzled. It is also proved by the prosecution that an amount of Rs,900,000 was misappropriated by the appellant. Above all the appellant in his statement under section 342, Cr.P.C. Has clearly admitted the case of complainant to be true against him. He being an agent of complainant company was authorised to collect the payments of octroi charges to be made to the Municipal Committee, Gwadar. According to his own saying he received a sum of Rs,11,00,000 towards the charges and had paid Rs,200,000 only to M/s. Ashraf Bros., the contractor of Municipal Committee, Gwadar and taken away and misappropriated remaining amount of Rs,900,000. Again on his own application to complainant company he surrendered his Pajero Jeep for the sale and the sale amount worth Rs,190,000 was adjusted and still a balance of Rs,710,000 was outstanding against him. This all shows that the appellant being an agent of the complainant company was entrusted with the duties of collecting payment for making octroi charges and had full domain over the property and has, thus, committed criminal breach of trust in respect of the said property and misappropriated the same.
29. Adverting to the contention of the appellant's counsel that the trial Court was not competent to try the case as it had no jurisdiction does not carry merit mainly for the reason that according to his own admissions in the statement under section 342 as well as 340(2), Cr.P.C., all payments were made to him at Karachi either in cash or by way of cheques through the banks at Karachi.
30. Irrespective of this the appellant admitted that he had written a letter to the complainant company at Karachi wherein he allowed his Pajero Jeep to be sold towards the embezzled amount of Rs,900,000 which was done at karachi and an amount of Rs,190,000 was adjusted showing Rs,710,000 as balance. According to this the property was entrusted to the appellant at Karachi where he had the exclusive dominant over it which was later on misappropriated by the appellant at Karachi, where he had his permanent residence. Thus, the offence of misappropriation took place at the head office of complainant company at Karachi so the trial Court was competent to try the case.
31. ' The law cited by the appellant's -counsel is on different facts and circumstances and has no bearing with the facts of the present case. In the case of Ibarat Hussain and others v. The State through Jarar Hussain, AIR 1955 All. 363, it has been held that the Court at Khanpur had no jurisdiction over the complaint under section 499, P.P.C. As the complainant's wife was remarried with accused in Gonda District. In the case of Muhammad Khan v. The State, PLD 1978 SC 251, the Hon'ble Supreme Court has held that the order of the Summary Military Court cannot be said to be a nullity in the eye of law merely because it might have taken into account some inadmissible evidence in arriving at its findings. This case has hardly any relevance with the case of the appellant. The Hon'ble Supreme Court in the case of Rasheed Ahmed v. The State, PLD 1972 SC 271 has held that in cases where sanctions for prosectution have not been obtained the proceedings become illegal and without jurisdiction. Same is not the case here as the appellant is not a Government servant. The case of Mst. Hasina alias Munni and 36 others v. Muhammad Ismail and another, 1980 PCr.LJ 118 is on quashment and it had been held that the Courts where the alleged offence occurred has the jurisdiction. In the case in hand the alleged offence of misappropriation has taken place at Karachi, as such the trial Court was competent to try the case.
32. From the above discussion I am of the considered view that the prosecution has fully proved its case against the appellant beyond any shadow of c doubt. Accordingly the appeal is dismissed and the conviction and sentence is maintained. The above are the detailed reasons of the short order dated 22-9-1998.