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Criminal Appeals Nos. 159 of 1962, 292, 293 and 294 of 1963, decided on 25th February 1965.

S. 6-Sanction for prosecution‑Mere fact that cases against accused have been split up and are covered by common sanction does not lead to inference that sanctioning authority had neither read papers nor applied its mind to facts of case‑Sanction clearly mentioning that sanc tioning authority had gone through all relevant papers and con sidered facts‑Sanction, held, valid.

S. 5 (2)‑Joinder of charges‑Charge under S. 5 (2) of misconduct in relation to an offence under S. 409, Penal Code (XLY of 1860)‑Offence under S. 409 can validly be founded upon numerous items of misappro priation regardless of time of commission‑Accused, held, can be tried for more than one item of misappropriation under S. 5 (2) Criminal Procedure Code (V of 1898), S. 234‑Penal Code (XLV of 1860), S. 409.

Where it was argued that the accused could not be tried for more than one item of misappropriation under section 5(2), Prevention of Corruption Act, 1947, in view of alleged bar of section 233, Criminal Procedure Code, 1898:

Held, that there was no force in this argument. The law permits numerous items of misappropriation to‑ be joined together for a charge of misappropriation against the accused. The charge under section 5 (2) of the Prevention of Corruption Act, 1947 relates to only misconduct on the part of accused referable to the offences committed under the Penal Code, 1860. The charge under section 5(2) consequently will be of misconduct in relation to an offence under section 409, Penal Code. If an offence under section 409, Penal Code could validly be founded upon numerous items of misappropriation regardless of the time at which those misappropriations were committed, there is no reason why a charge under section 5 (2) of the Prevention of Corruption Act, 1947 could not be framed against the accused.

S. 409‑Sentence‑Mitigation Detention of accused in custody for long time in cases not con nected with subject‑matter of appeal‑No mitigating circumstance for reduction in sentence‑Sentence passed otherwise not excessive but normal and adequate‑Sentence not reduced.

Tufail Ali and A. Hayee Qureshi for Appellant.

Murtaza Hussain for the State.

Dates of hearing : 15th and 22nd February 1965.

The appellant Qabil Shah has been convicted in four different cases. He has filed appeals in those four cases as Criminal Appeals Nos. 159 of 1962, 292 of 1963, 293 of 1963 and 294 of 1963. Criminal Appeal No. 159 of 1962 has been filed by him against his conviction under section 409, P. P. C., read with section 5(2) of the Prevention of Corruption Act (Act II of 1947) where as in all other appeals he has been con victed under section 5(2) of the Prevention of Corruption Act (Act II of 1947) only. He has been sentenced to suffer rigorous imprisonment for three years, three years, five years and five years respectively in all these cases, the sentences having been ordered to run concurrently: He has also been awarded sentence of fine of Rs. 12,500, Rs. 15,000, Rs. 1,00,000 and Rs. 50,000 in these cases respectively. He has been ordered to suffer rigorous imprisonment for 21 months in each of the cases in default of payment of fine by him. It has been argued at the Bar by both the counsel for the appellant and the State that all these four appeals can be disposed of under one judgment as they arise out of the cases which are founded upon common facts. I shall therefore dispose of these four appeals under this judgment.

2. The relevant facts on which these cases are based are that the appellant was the Chief Cashier in the Karachi Port Trust at the relevant time and had to deal with the disbursement of money to various people. The procedure for the purpose of payments prevailing in the Karachi Port Trust was that the Time‑keeper used to prepare a muster roll and allocation sheet which were to be checked by the Head Time‑keeper. The muster roll and the allocation sheet were then forwarded to the office of the Chief Engineer where after necessary check the were passed. The muster roll and the allocation sheet were then checked in the Accounts Department after which they were again passed. The muster roll and the allocation sheet were then placed before a clerk who used to write out cheques for the amounts involved in them and put theca up for the signature of the Chief Accountant. The Chief Accountant after signing the cheque used to make it payable to himself and endorse it for payment to the Chief Cashier. The Chief Cashier thereafter received money under the cheques and either dis bursed that money himself or passed it on to the other cashiers for disbursements. In the event of some money not being paid to the persons authorised to receive it, the money used to be retained by the Chief Cashier for a maximum period of one month and then re deposited through the same process. The appellant is said to have committed forgeries in respect of the money received under the cheques and misappropriated the excess amount received by him. It is these various amounts received by the appellant and misappropriated by him that have been the subject‑matter of these four appeals. I shall now deal with the amounts received by him and after disbursement excess amounts misappropriated by him in each appeal separately.

3. In Criminal Appeal No. 159 of 1962 the amount received by the appellant under the cheque issued on Muster Roll No. ME 103/1957 was Rs. 15,100/10/‑ whereas the amount to be disbursed and paid to several people under the same muster roll was Rs. 5,100/10/‑, the position in this appeal being that the amount Rs. 10,000/‑ is shown to have been misappropriated by the appellant. In the case covered by Criminal Appeal No. 292 of 1963 the total amount under the cheque received, by the appellant was Rs. 15,215/7/‑ whereas the amount to be dis bursed under Muster Roll ME 109/57 was Rs. 5,215/7/‑ only, the position in this appeal also being that an amount of Rs. 10,000/‑ was alleged to have been misappropriated by the appellant. The total amount received by the appellant in the case covered by Criminal Appeal No. 293 of 1963 was Rs.98,822/1/4 out of which the amount misappropriated by him was Rs. 90,000/‑. In the case covered by Criminal Appeal No. 294 of 1963 the total amount received by him were Rs. 14,554/14/‑ and Rs. 50,507/2/‑ out of which the amounts mis appropriated by the appellant were Rs. 10,000/‑ and Rs. 49,149/ respectively.

4. The witnesses examined in Criminal Appeal No. 159 of 1962 were Wajih‑ul‑Hassan P. W. 1, Sultan Ali P. W. 2, Saiful Islam P. W. 3, Arshadullah P. W. 4, Syed Muhammad Ali P. W. 5, Aftab Ahmad P. W. 6, Muhammad Ashraf Baig P. W. 7, Ziaullah Sharif P. W. 8, Jamil‑ur‑Rehman P. W. 9, Muhammad Ashraf P. W. 10, Muhammad Ahsan P. W. 11, Zahiruddin Zaidi P. W. 12, Sadruddin P. W. 13, Naimuddin P. W. 14, Noor Khan P. W. 15, Imtiaz Ahmed P. W. 16 and Nazim Hussain P. W. 17. Khurshid Ahmad Qureshi was also examined in this case on behalf of the prosecution as an Handwriting Expert. The appellant also examined Muhammad Khalil Khan D. W. 1 as a defence witness.

5. In the case covered by Criminal Appeal No. 292 of 1963 Sultan Ali P. W. 2, Saiful Islam P. W. 3, Muhammad Ahsan P. W. 11, Zahiruddin Zaidi P. W. 12, Sadruddin P. W. 13, Naimuddin P. W. 14, Noor Khan P. W. 15 and Ali Ausat P. W. 1 have been examined.

6. In the case covered by Criminal Appeal No. 293 of 1963 Muhammad Usman P. W. 1, Arshadullah P. W. 2, Muzaffar Hussain P, W. 3, Muhammad Ashraf P. W. 4, Wajihul Hassan P. W. 5 and Khurshid Ahmed Qureshi P. W. 6 were examined.

7. In the case covered by Criminal Appeal No. 294 of 1963 the following witnesses were examined

(1) Muhammad Usman P. W. 1,

(2) Arshadullah P. W. 2,

(3) Fernandes P. W. 4,

(4) Sultan Ali P. W. 5,

(5) Syed Muhammad Ali P. W. 6,

(6) Muhammad Ashraf P. W. 7,

(7) Wajih‑ul‑Hussan P. W. 8, and

(8) Khurshid Ahmad Qureshi P. W. 9.

8. The evidence of all these witnesses in all these appeals is to the effect that the appellant was the Chief Cashier at the relevant time and had received different amounts of money in volved in these cases under different cheques. Their evidence also is that the disbursements of the amounts mentioned above were also made by the appellant. They have also stated that the amounts in excess of the disbursements made by the appellant were retained and misappropriated by him. Mr. Khurshid Ahmed Qureshi, Handwriting Expert, has also proved that the hand writing and the signatures appearing on various documents are of the appellant.

9. I have not discussed the evidence of these witnesses in detail nor have I quoted from their evidence chapter and verse to substantiate the allegations made against the appellant for the simple reason that the learned counsel. for the appellant has not questioned the evidence of these witnesses at all. In Criminal Appeal No. 159 of 1959 and Criminal Appeal No. 292 of 1963 even the appellant has admitted in his statement that the monies on the cheques involved in these two cases were received by him and paid to various people. What he has contended in these two appeals merely is that he had received in the case covered by Criminal Appeal No. 159 of 1962 only Rs. 5,100/10/ and not Rs. 15,100/10/‑ as alleged by the prosecution. He has also stated that in the case covered by Criminal Appeal No. 292 of 1963 he had received a sum of Rs. 5,215/7/‑ and not Rs. 15,215/7/‑. The statement of the appellant that he had received only the amounts he had disbursed cannot conceivably be believed. Even the learned counsel for the appellant con cedes this. The statement made by the appellant appears to be false, in that when he had gone to receive the money on the cheques involved in these cases he knew the amounts to be received by him as Rs. 15,100/10/‑ and Rs. 15,215/7/‑ respectively as these were the amounts mentioned in the cheques. He could not have therefore received the amounts less than the amounts mentioned in the cheques. The evidence also establishes conclusively that he had received the amounts mentioned in the cheques. Having received these amounts, the amount of Rs. 10,000/‑ in each case was to lie in excess with him after he had disbursed the amounts under the muster rolls. No report was ever made by him for this excess amount which remained with him. He had also made no effort to re‑deposit this money. The clear inference from this would be that after the monies were entrusted to him he misappropriated Rs. 10,000/ in each case. The learned counsel for the appellant also feels himself helpless and is not able to get over this hurdle in his way. He has very rightly conceded that the position reflected on these two cases against the appellant is untrovertible and no feasible answer can be given for the prosecution case set up against him.

10. In the cases covered by Criminal Appeals Nos. 293 and 294 of 1963 the position is almost the same. The learned Judge has prepared two charts giving the details of the amounts received by the appellant and the amounts disbursed by him. These charts also give details of how much was left with him in excess after the disbursement done by him. These charts appear in the paper‑books of Criminal Appeals No. 293 of 1963 and 294 of 1963 at pages 57 and 94 respectively. These charts have been prepared by the learned Special Judge on the evidence brought on record which has not been challenged. The learned counsel for the appellant on examination of these two charts very rightly conceded that there was not much substance in the appeals filed by the appellant on their factual side. The documents which are proved beyond doubt to be in the hand writing of the appellant have established that the amounts received by the appellant and mentioned above were misappro priated by him.

11. The learned counsel for the appellant conceded at the Bar that the cases on facts against the appellant were not of the type on which arguments could successfully be advanced in his favour. He rest himself contended with the legal arguments put into service in respect of Criminal Appeals Nos. 293 and 294 of 1963. He has also in the last resort argued on the question of sentence passed on the appellant.

12. I will now deal with the legal questions raised by the learned counsel for the appellant. The legal questions are as under :‑

(1) That the sanction given in the cases covered by Criminal Appeals Nos. 193 and 294 of 1963 is invalid and as such the prosecution of the appellant is without jurisdiction.

(2) That the cases from which these two appeals have arisen suffer from misjoinder of charges.

13. On the first question the argument pressed into service is that the sanction given in the case covered by Criminal Appeal No. 293 of 1963 shows that the misappropriation was done by the appellant from October 1956 to January 1957. The substance of accusation read out to the appellant in this case refers to the dates within which the misappropriation was done by him as between the 31st of January 1956 and 30th December 1957. The amount misappropriated and mentioned in the sanc tion also is Rs. 1,49,149 whereas the amount shown to have been misappropriated in the substance of accusation is only Rs. 90,000. In the case covered by Criminal Appeal No. 294 of 1963 the sanction filed in this case is verbatim copy of the sanction filed in the other case. The dates, how ever, which are given in the substance of accusations for misappropriation are September 1957 for misappropriation of a sum of Rs. 10,000 and 31st of January 1957 to 6th of July 1957 for misappropriation of a sum of Rs. 49,149. The argument advanced by the learned counsel for the appellant is that difference in the figures of money misappropriated by the appellant in the sanction and the substance of accusations in these two cases and the difference in the dates within which the misappropriation is said to ‑have taken place would clearly indicate that the sanctioning authority had not considered the facts of the case against the appellant nor had it applied its mind to those facts, although the sanction on the face of it indicates that the sanctioning authority had gone through the relevant papers and considered the facts on which the case against the appellant was founded. I see no force in the argu ment advanced by the learned counsel for the appellant. The sanction in both the cases covered by Criminal Appeals Nos. 293 and 294 of 1963 is admittedly the same. It admittedly mentions the amount misappropriated to be Rs. 1,49,149. The substance of accusation also gives the amount misappropriated in the case covered by Criminal Appeal No. 293 of 19.63 to be Rs. 90,000. The substance of accusation in the case covered by Criminal Appeal No. 294 of 1963 also gives the amounts mis appropriated by the appellant to be Rs. 10,000 and Rs. 49,149. The total amount misappropriated by the appellant and covered by these two cases is obviously Rs. 1,49,149 which amount is actually mentioned in the sanction. The sanction therefore covers the exact amount alleged to have been misappropriated by the appellant although the cases against the appellant had been split up and instead of one case two cases had been set up. Merely because the cases against the appellant have been split up and are covered by common sanction it will not lead to an inference that the sanctioning authority had neither read the A papers nor applied its mind to the facts of the case against the appellant. As far as the difference in the dates appearing in the sanction and the substance of accusations is concerned I attach no importance. Even if it be assumed for the sake of argument that the dates were wrongly given that may be on account of a clerical error. Even otherwise the mention of the wrong dates will have no relevance with regard to the considera tion of facts on which the case of the appellant was based. The sanction clearly mentions that the' sanctioning authority had gone through all the relevant papers and had considered the facts against the appellant. The presumption would be that the sanctioning authority had, as is said in the sanction, actually read the papers and considered the relevant facts against the appellant. This question was not even agitated in the trial Court. Under these circumstances, I see no force in the argu ment of the learned counsel for the petitioner that the sanction on which the cases against the appellant started was invalid.

14. So .far as the question of joinder of charges is con cerned the argument pressed into service is that the appellant could not be tried for more than one item of misappropria tion under section 5 (2) of the Prevention of Corruption Act (Act II of 1947), section 233, Cr. P. C., being a clear bar to it. I see no force in this argument also. It is conceded that the law permits numerous items of misappropriation to be joined together for a charge of misappropriation against the appellant. The charge under section 5 (2) of Act 11 of 1947 relates to only misconduct on the part of the appellant referable to the offences committed under the Penal Code. The charge under section 5 (2) consequently will be of misconduct in relation to an offence under section 409, P. P. C. If an offence under section 409, P. P. C., could validly be founded upon numerous items of‑ misappropriation regardless of the time at which those misappropriations were committed I can see no reason why a charge under section 5 (2) of the Prevention of Corruption Act (Act II of 1947) could not be framed against "the appellant. In view of what has been said above, I see no force in this argument of the learned counsel for the appellant also.

15. The last question that. has been agitated in these appeals is the question of sentence. It is stated that the appellant was arrested on the 7th of January 1958 on a charge of murder (sec tion 302, P. P. C.). He was also formally arrested on the 8th or 9th of January 1958 in the case covered by Cr. Appeal No. 159 of 1962. The appellant continued to be under arrest in the case under section 302, P. P. C., under which he was convicted by the Sessions Court. His appeal was, however, accepted and a judgment of acquittal was passed by the High Court on the 14th of December 1959. Bail to the appellant was granted in the case covered by Cr. Appeal No. 159 of 1962 on the 15th of December 1959. He was convicted in this case on the 25th of April 1962. On appeal bail was granted to him on the 2nd of May 1962. He continued to be on bail until he was convicted in one of the other three cases on the 8th of August 1963. Although the appellant was granted bail by the High Court on appeals filed by him he could not give bail and as such is in jail since then. It is contended by the learned counsel for the appellant that the appellant has remained in jail from the 7th of January 1958 till the present day and that he remained on bail only for the intervening period from the 15th of December 1959 to about 8th of August 1963. He has prayed for the deten tion of the appellant in custody to be considered as a ground for reduction: in his sentence. On the arguments advanced by the learned counsel for the appellant, I do not see my way to agree with him. The detention of the appellant in custody from the 7th of January 1958 to the 14th of December 1959 was not on account of cases which are the, subject‑matter of the present appeals. He was in jail in relation to a murder case in which he was acquitted. He has remained in jail only after his conviction in the case under Appeal, which period admittedly will be counted towards his sentence of imprisonment imposed upon him in these cases. There appears to be therefore no ground for detention of the appellant in custody for a long time to be considered as a mitigating circumstance for reduction in his sentence. The sentences of imprisonment passed against the appellant in these cases, in my opinion, even otherwise do not appear to be excessive. The appellant has misappropriated numerous items of money going into lakhs of rupees in a most high‑handed manner. Section 409, P. P. C. which applies to the cases of misappropriation and under which he has been con victed prescribes maximum. sentence of transportation for life, or with imprisonment of either description for a term which may extend to ten years. With the maximum sentence laid down in section 409, P. P. C. as transportation for life, or rigorous imprisonment‑ for ten years, I think the sentences passed on the appellant are quite normal and adequate. The learned trial Court has already done a great favour to the appellant in ordering the substantive sentences of imprisonment to run concurrently.

16. In view of what has been said above, I see no merit in all the four appeals filed by the appellant and I consequently dismiss them.

S. Q. Appeals dismissed.

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