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Criminal Appeal No. 47 of 1963, decided on 4th December 1963.
Expression "gain found to have been derived"‑Breach of trust-- Accused derives gain immediately he commits offence‑Refund of money subsequently --‑ Immaterial ‑ Non‑imposition of fine by Special Judge‑Violation of mandatory and express provision of section‑Fine imposed by High Court in exercise of its revisional powers suo mote‑Criminal Procedure Code (V of 1898), Ss. 435 & 439.
Khalid M. Ishaq A: G. for Petitioner.
Nemo for Respondent.
Date of hearing : 2nd December 1963.
The relevant facts of this case are that one Nazir Husain, an Extra‑Departmental Postmaster of village Sidhar, Chak No. 67/J.B., was convicted on three counts under sections 409 and 467, P. P. C. and sentenced to two years' rigorous imprisonment on each count. His appeal to this Court was dismissed except to the extent that the sentences were ordered to run concurrently, but it came to my notice that the learned Special Judge had failed to impose any fine under section 9 of the Pakistan Criminal Law (Amendment) Act, 1958, which requires that when any person charged before a Special Judge with an offence triable under the said Act is found guilty of the offence, the Special Judge shall, notwithstanding anything contained in any other law, whether or not he imposes a sentence of imprison ment, imposes a sentence of fine which shall not be less than the gain found to have been derived by the accused by the commission of the offence. Notice was accordingly issued to Nazir Husain and to the State.
2. At the hearing the learned Assistant Advocate‑General expressed the view that as Nazir Husain had subsequently refunded the money in respect of which the offences under section 409, P. P. C., were committed, section 9 of the Pakistan Criminal Law (Amendment) Act, 1958 had no application. Since the above view did not appear to me to be prima facie correct, the learned Advocate‑General was requested to give his opinion, which is that immediately the offence of criminal breach of trust is committed, the accused has derived a gain within the meaning of section 9 of the Pakistan Criminal Law Amendment Act, 1958, the fact that he subsequently refunds the money being immaterial.
3. I am in full agreement with the view of the learned Advo cate‑General. Attention may be drawn in this connection to explanation 1 to section 403, P. P. C., which lays down that a dishonest misappropriation for a time only is a misappropriation within the meaning of the section, and to section 405 of the same Code, which makes criminal misappropriation one of the possible elements of criminal breach of trust. The same principle will also, in my view, apply to the case where a public servant accepts a bribe, even though the amount may be recovered from him within a matter of minutes by a raiding party.
4. I, therefore, hold that in the circumstances of the present case the learned Special Judge, in failing impose a sentence of fine, violated the express and mandatory provisions of section 9 of the Pakistan Criminal Law (Amendment) Act, 1958. In the exercise of my revisional powers I accordingly impose on the respondent a total fine of Rs. 750, with six months' rigorous] imprisonment in default of payment.
K. B. A.
Sentence of fine imposed.
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