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Criminal Appeal No. 498 of 1964, decided on 4th March 1968.

Ss. 406 & 409 read with Pakistan Criminal Law (Amendment) Act (XL of 1958), Ss. 3 & 5-- Criminal breach of trust by public servant‑Object of Act XL of 1958‑To provide for speedy trial and effective punishment of offences committed by public servants‑Expression "by any public servant as such" in S. 409, P. P. C.‑Construction placed on expression that a public servant could be tried for such an offence only if it was relatable to and committed "in course of normal discharge of his official functions"‑Held, wholly misconceived.

The object of the Criminal Law Amendment Act creating tribunal of special jurisdiction and laying down special procedure for trial of offences committed by public servants, was to provide for speedy trial and effective punishment of the offences mentioned in the Schedule. The reason for simplifying and short‑circuiting the normal procedure of warrant cases and appointing high powered Special Judges to deal with offending public servants, is not far to seek. Such stringent measures were necessitated to check the growing incidence of corruption amongst public servants which was sought to be curbed and controlled by an effective punitive machinery.

The accused, Wasil Baqi Navis, who maintained the record of land revenue assessed to the land owners and recoverable from the Lambardar was charged with the duty of keeping documents relating to the pecuniary interest of the Government. He received certain amounts on behalf of a Lambardar as land revenue for being deposited in the treasury and misappropriated same

Held, the construction sought to be placed on the ex pression "by any public servant as such" obviously pur ported to mean that a public servant could be tried for such an offence only if it was relatable to and was committed in the course of the normal discharge of his official functions. The argument seems to be wholly misconceived. The interpreta tion sought to be placed on the expression "by any public servant as such" cannot be spelt out either from the statutory provision nor has it any warrant on known principles of interpretation.

Quite irrespective of the fact whether it was or was not a part of the accused: official duties to receive the amounts in question, he was undoubtedly a public servant at the relevant time and committed the alleged offences in his capacity as such. The interpretation suggested would obviously lead to an arbitrary distinction between two kinds of offences committed by public servants, namely, offences relatable to the discharge of their official duties and those not so related. An absurd con sequence would also follow from this that the Special Judges would be competent to deal only with the first category of offences and would be simply helpless in regard to the second which in a way appear to be more serious in nature. This interpretation, therefore, besides being unreasonable, would not advance the remedy and prevent the mischief which is one of solitary rules of interpretation of statutes. The untenability and hollowness of the argument stands further exposed, if considered, from another point of view. Besides other offences, those punishable under sections 403 to 409 have all been included in Part (b) of the Schedule. Section 406, P. P. C. punishes an offence of criminal breach of trust whereas section 409 punishes criminal breach of trust when the entrustment of or dominion over property is in his capacity as a public servant. The offence contemplated by this section obviously corresponds to the position taken up by the accused, but it does not mean that a public servant could not be convicted for an offence under section 406. Otherwise the inclusion of section 406 in the Schedule would be simply absurd and meaningless. It cannot be denied that people can be more readily tempted to repose trust in a public servant on account of the credit enjoyed by him by virtue of his office. If, for instance, the accused had not, at the relevant time, held the office of Wasil Baqi Navis and were merely an ordinary citizen, few Lambardars would have reposed confidence in him so as to hand over to him Government dues and thus fallen into the trap. It was obviously for this reason that delinquent public servants were sought to be dealt with more severally and promptly by creation of a special machinery for their trial. Thus the question whether be was under the rules entitled to receive the amounts or not, would be wholly irrelevant. The matter could also be considered from yet another point of view. Assuming for the sake of argument that a Special Judge would be competent to punish a public servant only if the alleged offence is directly relatable to the discharge of his official functions and if on this assumption that the accused were sent up to stand his trial. If after a protracted trial lasting say for a year or so it is ultimately revealed that the alleged offence is not relatable to the discharge of his official functions and the criminal misappropriation did not relate to property entrusted to him in the ordinary course of business and in the ordinary course of his duty as a public servant, the inescapable consequence of this disclosure would be to send back the case to an ordinary Court more to the agony and expense of the accused person than of the prosecution. No doubt, the question of jurisdiction is to be determined strictly on the legal plane on the basis of statutory provisions yet this would also tend to show, though in a collateral manner, the unreasonableness of the distinction sought to be created leading to the absurd conclusions of the helplessness of a high powered tribunal specially created to deal with scheduled offences committed by public servants. In other words, it would mean that at least in cases of this kind the scope of jurisdiction of an ordinary Court would be wider than that of a Special Judge whose orders are directly appeal able to the High Court. This appears to be quite contrary to the object of the special legisla tion.

Mukhtar Ahmad v. The State P L D 1965 Lah. 266 and Sayeed Hai v. The State P L D 1967 Lah. 768 distinguished.

S. 21‑Word "officer"‑Conno tation.

Although the word "officer" as used in the common parlance connotes the holder or incumbent of an office of authority, yet the definition has been interpreted by judicial authorities to include all incumbents of offices high or low irrespective of their status.

Karim Bakhsh v. The State P L D 1962 Lah. 144 ref.

S. 287‑Examination of accused‑Rule that statement of accused is to be accepted or rejected in toto ‑ Not to be rigidly applied as inflexible rule.

S. 35(1)‑ Con current running of sentences‑Can be directed by Court only when accused is convicted at one trial of two or more distinct offences.

Kamal Mandal and another v. Emperor P L D 1914‑‑1947 (Part II) Cal. 714 and Dulli and other, v. Emperor 85 I C 714 ref.

Nagappa Vyankappa Sall v. Emperor A I R 1931 Bom. 529 distinguished.

S. 9 read with Penal Code (XLV of 1860), S. 409‑Temporary misappro priation‑Sentence of fine ‑ Expression "gain . . . . . derived" in S. 9 of Act‑‑Not to be equated with "amount misappropriated."

[The State v. Nazir Hussain P L D 1964 Lah. 73 dissented from].

The State v. Nazir Hussain P L D 1964 Lah. 73 dissented from.

S. 409‑Criminal breach of trust‑Sentence‑‑Trial hanging fire for full one decade‑Accused in addition to agony of protracted trial losing his job, besides incurring considerable expense in his defence ‑ Sentence of imprisonment reduced to period already undergone.

S. 64 and Criminal Procedure Code (V of 1898), S. 386‑Directing that accused shall suffer further imprisonment in default of payment of fine‑Held, not mandatory.

Crown v. Beni Pershad 1878 P R 73 rel.

Rafiq Ahmad Bajwa for Appellant.

Raja Said Akbar, A: G. assisted by Qazi Ahmad Khan for Respondent.

Dates of hearing : 19th January and 7th February 1968.

Criminal Appeals Nos. 498, 499, 500, 501, 502 and 503 of 1964 all filed by Ashfaq Ahmad appellant and directed against six separate stereotyped orders of his conviction under section 406, P. P. C./5(2) of the Prevention of Corruption Act recorded by the Special Judge, Anti‑Corruption, Lahore, on 29‑7‑64 awarding him different terms of concurrent sentences and fine are disposed of by a single judgment.

2. The facts giving rise to the cases are that in the years 1953 and 1954, Ashfaq Ahmad appellant was posted as Additional Wasil Baqi Nawis in Tehsil Lahore (charged with the respon sibility of the realisation of land revenue from the Lambardars). Syed Baqar Hussain, Tehsildar, Lahore, on taking charge In November 1954, initiated proceedings against the Lambardars who had defaulted in the payment of arrears of land revenue. Some of them produced receipts before him purporting to show that the amounts had been entrusted by them to the appellant. This led to an enquiry which culminated in the registration of eleven cases of embezzlement and cheating against the appellant, in all of which he stood trial earning acquittal in five. Out of the six cases of conviction three which are the subject‑matter of Appeals Nos. 499, 500 and 503, were registered simultaneously on 21st February 1955 on the basis of the same F. I. R. whereas the remaining cases were registered on the basis of a subsequent report by the Tehsildar, dated 7th May 1956. It would be advantageous to summarise the different facts giving rise to the six appeals along with details of sentences.

3. In Appeal No. 498, the allegations related to the receipt of Rs. 500 by the appellant at the hands of one Muhammad Ashraf (P. W. 2) on behalf of Sughray Khan Lambardar of village Pandoki on 4th August 1954, as land revenue collected in Rabi, 1954, for being deposited in the treasury which were allegedly misappropriated by him. The appellant admitted having executed receipt Exh. P‑A in this regard which was admitted by him. He produced no evidence in defence. The position taken up by him, however, was that since Muhammad Ashraf was not a Lambardar, he wanted him to send Sughray Khan Lambardar along with the Dhal Bachh for assertaining the exact amount of land revenue, and three or four days, thereafter, Muhammad Ashraf contacted him again and took away the entire amount of Rs. 500 under receipt Exh. D. A. executed by Muhammad Ashraf. Significantly enough, this document Exh. D. A. was undated. Muhammad Ashraf admitted the receipt of the amount and the execution of Exh. D. A. but asserted that the money was returned to him about two years after it was entrusted to the appellant in the first instance, and that too when an enquiry had been initiated against him. The learned Special Judge came to the conclusion that the amount was not entrusted to the appellant in his capacity as a public servant nor was he entitled to receive and deposit the same in the treasury under the rules. As such the conviction was recorded under section 406, P. P. C. read with section 5(2) of the Prevention of Corruption Act. The sentence awarded was that of three months' R. I. with a fine of Rs. 500 or in default two months further R. I.

4. In Appeal No. 499, the allegations related to the misappropriation of Rs. 900 which were allegedly received by the appellant from Sharaf Din Lambardar of village Arora on 22nd June 1954, for being deposited in the treasury, for which he executed receipt Exh. P. A. The appellant admitted the execution of the receipt. It was found established that the appellant had deposited a sum of Rs. 368‑2‑0 on 23rd March 1955, and Rs. 531‑14‑0 on 11th April 1955. The position taken up by the appellant was that the amount of Rs. 900 had, in fact, been received by Abdul Aziz Tehsildar who had died before the commencement of these proceedings and that he (the appellant) had made the aforesaid two deposits at the instance of the Tehsildar as and when the amount was given to him by the latter. No evidence was led in defence. The appellant was awarded three months' R. I. with a fine of Rs. 900 or in default two months' further R. I. under section 406, P. P. C. read with section 5(2) of the Prevention of Corruption Act.

5. In Appeal No. 500, the allegations against the appellant related to the misappropriation of two amounts of Rs. 950 and Rs. 2,149‑6‑3 allegedly received by him from Khushi Muhammad Lambardar of village Ghanianke on 2nd February 1954 and 13th September 1954, respectively for being deposited as land revenue in the Government treasury. In token of the receipt of Rs. 950, the appellant admitted having executed receipt Exh. P‑B but denied the receipt of the other amount of Rs. 2,149‑6‑3 Khushi Muhammad could not produce any receipt in this regard, but produced a challan form (Form Dakhla) Exh. P‑A which was allegedly prepared by the appellant. The position taken up by the appell4nt in regard to the bigger amount of Rs. 2,149‑6‑3 was that he never received it nor did he fill in the challan form. As regards the admitted receipt of Rs. 950, it was stated by him that Mian Abdul Aziz Tehsildar who had since died, had actually received the amount and that he (the appellant) had executed the receipt on his behalf. No evidence was led in defence. The learned Special Judge came to the conclusion that the payment of Rs. 2,149‑6‑3 by Khushi Muhammad to the appellant was not established beyond doubt, inasmuch as there was no reason why Khushi Muhammad should not have insisted on getting a receipt from the appellant for a much bigger amount when earlier he had taken the necessary precaution of getting the same for a much smaller amount, and secondly, the entries is the challan form (Form Dakhla) were not proved to have been made in the handwriting of the appellant. However, the misappropriation of Rs. 950 having been found established, the appellant was awarded a sentence of four months' R. I. and a fine of Rs. 950 or in default three months' R. I. It would be pertinent to observe in this regard that at the time of hearing, receipt No. 837 dated 10th February 1955, purporting to show the deposit of Rs. 950 by the appellant on behalf of Khushi Muhammad Lambardar was produced in Court for the first time with an application for receiving it in as additional evidence. I will revert to this a little later in the judgment.

6. In Appeal No. 501, the allegations against the appellant related to the misappropriation of Rs. 243‑12‑0 out of an amount of Rs. 640 which he allegedly received from Massay Khan, Tehsil Peon, who had realised to same from Bundoo Khan Lambardar. of village Jano Chak, but only a short deposit of Rs. 396‑4‑0 had been made, the balance having been misappro priated. Massay Khan had obtained receipt Exh. P‑B from the appellant, whose execution was admitted by the latter. He also admitted having filled in the challan form (Form Dakhla) Exh. P‑D relating to the deposit of Rs. 396‑4‑0. He, however, explained that having checked up the record, .he found that only a sum of Rs. 396‑4‑0 was due from Bundoo Khan and, therefore, he returned the entire amount to Bundoo Khan himself together with challan form directing him only to deposit the sum due, i.e. Rs. 396‑4‑0. No evidence was led in defence. The position taken up by the appellant did not find favour with the learned Special Judge, who convicted him under section 406, P. P. C. read with section 5(2) of the Prevention of Corruption Act, awarding him a sentence of three months' R. I. plus a fine of Rs. 243‑12‑0 or in default one month's further R. I.

7. In Appeal No. 502, the allegations related to the misappropriation of a sum of Rs. 726 allegedly received by the appellant from Rajmal Sarbarah Lambardar of village Nathoki on 18th October 1954, on account of land revenue to be deposited in the Government treasury. In support of his allegations Rajmal produced receipt Exh. P-A allegedly executed by the appellant and purporting to show the payment of Rs. 726 to him. The appellant admitted the execution of the receipt, but stated that Rajmal had paid him only a sum of Rs. 260 which the appellant had returned to him on his demand two or three days later and that the amount of Rs. 260 on receipt Exh. P‑A had been altered to Rs. 726 by means of a forgery. In defence he produced Karam Elahi (D. W. 1) a Zamindar of village Hira Singhwala who deposited that he was present with the appellant at the time when Rajmal alias Raju, Sarbarah Lambardar (P. W. 2) had asked him to return Rs. 260 on which the appellant brought the money from Abdul Aziz Tehsildar and passed it on to Raju. This evidence was not believed by the learned Special Judge. However, the appellant's allegations of forgery found favour with the learned Special Judge and it was held that the allegations of embezzlement stood proved only to the extent of Rs. 260. Consequently, he was convicted as usual with an award of a sentence of three months' R. I. and a fine of Rs. 260 or in default two months' further R.I.

8. Lastly, we come to Appeal No. 503 in which the case related to allegations of misappropriation of Rs. 1,400 allegedly received by the appellant from Nasir‑ud‑Din Lambardar of village Jaman on 18th July 1954. The execution of receipt Exh. P‑A produced by the Lambardar purporting to show the payment of Rs. 1,400 to the appellant was admitted by the latter. The position taken up by the appellant, however, was that Nasir‑ud Din who was not himself a Lambardar, had not brought the Dhal Bachh or Arz Arsal (warrant of deposit) and had left the amount with him in trust. Nasir‑ud‑Din's father who was the Lambardar, was murdered soon thereafter and as such Nasir‑ud‑Din did not turn up and the amount remained with him. He further stated that he had informed Nasir‑ud‑Din through Ramzan and Abdul Aziz Lambardars to get back the money from him and sometime later Nasir‑ud‑Din. sent him a word through Ramzan that the amount should be deposited in the treasury as he was unable to come himself. Accordingly, the entire amount was deposited on 18th November 1954, i.e. after four months of its receipt. This version was not put to Nasir‑ud‑Din P. W. during his cross‑examination, and con sequently, the appellant was convicted under section 406, P. P. C. read with section 5(2) of the Prevention of Corruption Act, for this temporary misappropriation with an award of a sentence of one month's R. I. and a fine of Rs.1,400 or in default two months' further R. I.

9. There are two glaring and significant facts which have straightaway attracted my attention in so far as the award of sentences is concerned.

(i) Firstly, that although the allegations of misappropriation found to have been established by the learned Special Judge related to different offences having been committed by the appellant at different points of time and in respect of different amounts having been received from different persons for each of which a separate trial was held, yet the learned Special Judge ordered that the sentences of imprisonment awarded by him in all the six cases shall run concurrently. It was, therefore, considered expedient by me in the interest of justice to issue notice to the appellant, who was present along with his learned counsel, of the possibility of a consecutive running of the sentence which could be construed as amounting to an enhancement, in case the convictions were ultimately maintained.

(ii) The second point which merits a reference, is the reliance of the learned Special Judge in awarding the punishment of fine on what he described as Criminal Appeal No. 733 of 1962, which according to the learned Judge laid down that notwithstanding the temporary or permanent nature of misappropriation, the amount of fine imposed as punishment should not be less than the amount embezzled. It was argued that this position was wholly misconceived and, if at all, this could possibly have been held only in regard to cases of complete embezzlement and not vis‑a‑vis those of temporary misappropriation. The reference to Criminal Appeal No. 733 of 1962, however, is wholly irrelevant as this case relates to . . . . . (sic).

10. The learned counsel for the appellant raised the following contentions before me which were common to all the appeals :‑

(i) that the learned Special Judge had no jurisdiction to try the cases;

(ii) that the investigation was conducted without a proper sanction;

(iii) that no offence under section 406, P. P. C. read with section 5(2) of the Prevention of Corruption Act was made out against the appellant, as the Lambardars who had allegedly paid the amounts to the appellant, were not trustees of the same;

(iv) that at least in Appeals Nos. 498, 499 and 503 where the amounts in question had been admittedly either returned by the appellant to the Lambardars or deposited in the treasury, there was no question of misappropriation, particularly when a satisfactory explanation had been given by the appellant for his retention and this also applied to Appeal No. 500 in which a receipt for the amount of Rs. 950 had been produced before this Court;

(v) that the appellant's conviction mainly proceeded on his own statement which, if at ail, had been relied in toto and not to be accepted in part and rejected in part;

(vi) that since the conviction had been recorded under section 406, P. P. C. as against a charge under section 409, P. P. C., the alteration had caused prejudice to the appellant who was given no opportunity to re‑examine the witnesses.

11. In support of the first contention which, in fact, was the principal contention concentrated upon by the learned counsel, an argument was raised that Special Judges appointed by the "appropriate Government" under the Pakistan Criminal Law.

Amendment Act (XL of 1958) were competent only to try and punish offences specified in the Schedule as provided in sections 3 and 5 of the Act, and since Part (b) of the Schedule referred inter alia to offences under sections 403 to 409 "when committed by any public servant as such", the learned Special Judge having come to the conclusion that it was not one of the official duties of the appellant to receive the amounts in question pertaining to land revenue and deposit them in the Government treasury, had no jurisdiction to try the appellant for these offences, as they could not be deemed to have been committed by him in his capacity as a public servant. The construction sought to be placed by the learned counsel on the expression "by any public servant as such" obviously purported to mean that a public servant could be tried for such an offence only if it was relatable to and was committed in the course of the normal discharge of his official functions. Reliance was placed in this regard on Mukhtar Ahmad v. The State (P L D 1965 Lah. 266) and Sayeed Hai v. The State (P L D 1967 Kar. 768). The argument seems to be wholly misconceived. The interpreta tion sought to be placed by the learned counsel on the expression "by any public servant as such" cannot be spelt out either from the statutory provision nor has it any warrant on known principles of interpretation. The expression "public servant" as given in the Ninth Description of section 21, P. P. C. includes "every officer whose duty it is, to make, authenticate, or keep any document relating to the pecuniary interest of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government, and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty." Although the word "officer" as used in the common parance connotes the holder or incumbent of an office of authority, yet the definition has been interpreted by judicial authorities to include all incumbents of offices high or low irrespective of their status. The same view was expressed in Karim Bakhsh v. The State (P L D 1962 Lah.144). Even otherwise in his capacity as Wasil Baqi Nawis, the appellant was undeniably an Officer who maintained the record of land revenue assessed to the land owners and recoverable from the Lambardars, was charged with the duty of keeping document relating to the pecuniary interest of the Government. Thus the appellant's status of being a public servant could hardly be disputed. The entire argument was, however, built by the learned counsel on the use of the expression "as such" which, according to the construction placed by the learned counsel, could cover the appellant's case only if it had been a part of his official duties to receive the amount from the Lambardars. As stated earlier, this interpretation is wholly unwarranted. The object of the Criminal Law Amendment Act creating tribunal of special jurisdiction and laying down a special procedure or trial of offences committed by public servants, was to provide for speedy trial and effective punishment of the offences mentioned in the Schedule. The reason for simplifying and short‑circuiting the normal procedure of warrant cases and appointing high powered Special Judges to deal with offending public servants, is not far to seek. Such stringent measures were necessitated to check the growing incidence of corruption amongst public servants which was sought to be curbed and controlled by an effective punitive machinery. Quite irrespective of the fact whether it was or was not a part of the appellant's official duties to receive the amounts in question, he was undoubtedly a public servant at the relevant time and committed the alleged offences in his capacity as such. The interpretation suggested by the learned counsel would obviously lead to an arbitrary distinction between two kinds of offences committed by public servants, namely, offences relatable to the discharge of their official duties and those not so related. An absurd consequence would also follow from this that the Special Judge would be competent to deal only with the first category of offences and would be simply helpless in regard to the second which in away appear to be more serious in nature. This interpretation, therefore, besides being unreasonable, would not advance the remedy and prevent the mischief which is one of solitary rules of interpretation of statutes. The untenability and hollowness of the argument stands further exposed, if considered, from another point of view. Besides other offences, those punishable under sections 403 to 409 have all been included in Part (b) of the Schedule. Section 406, P. P. C. punishes an offence of criminal breach of trust whereas section 409 punishes criminal breach of trust when the entrustment of or dominion over property is in his capacity as a public servant. The offence contemplated by this section obviously corresponds to the' position taken up by the learned counsel, but it does not mean that a public servant could not be convicted for an offence under section 406. Otherwise the inclusion of section 406 in the Schedule would be simply absurd and meaningless. It cannot be denied that people can be more readily tempted to repose trust in a public servant on account of the credit enjoyed by him by virtue of his office. If, for instance, the appellant had not at the relevant time, held the office of Wasil Baqi Nawis and were merely an ordinary citizen, few Lambardars would have reposed confidence in him so as to hand over to him Government dues and thus fallen into the trap. It was obviously for this reason that delinquent public servants were sought to be dealt with more severally and promptly by creation of a special machinery for their trial. Thus the question whether he was under the rules entitled to receive the amounts or not, would be wholly irrelevant. The matter could also be considered from yet another point of view. Assuming for the sake of argument that a Special Judge would be competent to punish a public servant only if the alleged offence is directly relatable to the discharge of his official functions and if on this assumption that the accused were sent up to stand his trial. If after a protracted trial lasting say for a year or so it is ultimately revealed that the alleged offence is not relatable to the discharge of his official functions and the criminal misappropriation did not relate to property entrusted to him in the ordinary course of business as in the ordinary course of his duty as a public servant, the inescapable consequence of this disclosure would be to send back the case to an ordinary Court more to the agony and expense of the accused person than of the prosecution. No doubt, the question of jurisdiction is to be determined strictly on the legal plan on the basis of statutory provisions to which arguments have already been addressed, yet this would also tend to show, though in a collateral manner, the unreasonableness of the distinction sought to be created leading to the absurd conclusions of the helplessness of a high powered tribunal specially created to deal with scheduled offences committed by public servants. In other words, it would mean that at least in cases of this kind the scope of jurisdiction of an ordinary Court would be wider than that of a Special Judge whose orders are directly appeal able to the High Court. This, in my view, appears to be quite contrary to the object of the special legislation. The authorities relied upon by the learned counsel proceed on entirely different and distinguishable facts. In Mukhtar Ahmad v. The State, the learned Special Judge trying the appellant for an offence under section 161, P. P. C. convicted him under section 474, P. P. C. which was a‑ non‑scheduled offence. This conviction was based on an erroneous, interpretation of section 6(4) of the Criminal Law Amendment Act, which laid down that the Special Judge could convict an accused of any offence which he was found to have committed from the facts admitted or proved. Accepting the appeal, my learned brother Sajjad Ahmad, J. took the view that the expression "any offence" was confined only to the scheduled offences. This view, and I am in respectful agreement with it, besides being supported by authorities, was based on a proper and reasonable interpretation which otherwise has no relevancy to the case before me. Similarly, the next authority Sayeed Hai v. The State has no hearing. In this case accepting the convict's appeal, the learned Judge took the view that since the appellant was neither a public servant nor had he committed the alleged offence jointly with or abetting or attempting to abet or acting in conspiracy with any public servant, he could not be tried for an offence under section 420, P. P. C. by the Special Judge, and as such the conviction was unsustainable. The contention prevailed before his Lordship that in order' to be exclusively triable by the Special Judge, the scheduled offence must fulfill one of the two conditions, namely, it should be committed by a public servant, or if committed by any other person, he should have acted jointly with or abetted or attempted to abet or acted in conspiracy with the public servant. There is not a word to indicate that, if committed by a public servant, it should be relatable to the official discharge of his functions. The contention is thus overruled as being patently misconceived.

12. The second contention relating to the competency of the Investigating Officer was not pressed and, in fact, it was considered that the investigation was not questionable on the ground of the alleged in competency of the Investigating Officer.

13. The next contention that the Lambardars who had allegedly paid the amount to the appellant, not being themselves trustees of the same, the appellant could not be convicted for an offence under section 406, P. P. C., suffers from an equally patent misconception. In the first instance, there can hardly be any doubt that a Lambardar charged with the duty of collecting land revenue on behalf of the Government, is in the position of a person being entrusted with property or having dominion over it, and if he dishonestly misappropriates or converts it to his own use or disposses it of in violation of any rules prescribing the mode in which the trust is to be discharged or wilfully suffers any other person to do so, would be guilty of criminal breach of trust as defined in section 405, P. P. C., but this. would be completely besides the point. The question of entrustment and dominion of a property is to be considered vis‑a‑vis the appellant. If the argument of the learned counsel is accepted, it would lead to the absurd conclusion that there could be no criminal breach of trust, unless the property is entrusted to the accused by a person who himself is a trustee. The question of the entrustment of the amounts in question to the appellant for the purpose of depositing the same in the treasury which in some cases at least was done by him after good deal of procrastination, stands fully established from the evidence on the record and as such he was rightly convicted for offences under section 406, P. P. C.

14. It would be wrong to suggest that the appellant's conviction proceeded exclusively on his own statement which could only be accepted or rejected in toto. In all cases the appellant was left with no option but to admit the execution of receipts issued by him in token of the payment of money to him. In Appeals Nos. 498, 499 and 503 the amounts had been admittedly paid by the appellant but quite sometime after their receipt, and as such he was found guilty for temporary misappropriation amounting to breach of trust. Even otherwise the proposition is not to be rigidly applied as an inflexible rule that the statement of an accused is to be accepted or rejected in toto, irrespective of its accord or disaccord with the rest of the evidence.

15. It was emphatically argued by the learned counsel that in four cases, subject‑matter of Appeals Nos. 498, 499, 503 and 500, out of which the amounts had been admittedly either returned to the Lambardars or deposited in the treasury, there was no question of any mens rea justifying the inference of criminal misappropriation amounting to breach of trust. Regarding the amount of Rs. 950 found to have been misap propriated leading to the appellant's conviction challenged in Appeal No. 500, reference has already been made in the earlier part of the judgment to receipt No. 837, dated 10th February 1955, purporting to show the payment of this amount by the appellant on behalf of Khushi Muhammad Lambardar. An application was also made for accepting this document as additional piece of evidence. Notwithstanding the fact that this document was produced for the first time in this Court which would cause serious prejudice to the prosecution case taking it by surprise. I would have been inclined to consider the question of its admissibility, if such a position had been taken by the appellant at the trial. In fact, in the statement made by him during his examination under section 342, Cr. P. C., the appellant did not, in the least, suggest that subsequent to the receipt of this amount he had deposited the same in the treasury. On the contrary, the position taken up by him was that the amount in question had been received by Mian Abdul Aziz Tehsildar, at whose instance he had executed the receipt Exh. P‑B. This statement which was made by the appellant on 26th June 1964 before the Special Judge, is at variance with the position now taken up by him. But even if one proceeds on assuming that the receipt related to the same amount which was allegedly received by him on 2nd February 1954 and now shown to have been deposited on 10th February 1955, the question of temporary misappropriation would still be very much there for which his convictions are challenged in Appeals Nos. 498, 499 and 503. A most charitable view for the appellant would, at best, warrant the remand of this case for retrial which, for reasons to be mentioned presently, I am not inclined to do. Having gone through the evidence in the aforesaid three appeals, I have no reason to take a different view from the one taken by the learned Special Judge. The very fact that several cases of criminal misappropriation resulting in criminal breach of trust were simultaneously registered against the appellant, in a majority of which he admitted the receipt of the amounts allegedly misappropriated having executed receipts in token thereof, would tend to show the hollowness of his explanations for the retention of the amounts with him for a period of two years in the case culminating in Appeal No. 498, of nine or ten months in that of 499 and four months in that of 503. The explanations, not being supported by any evidence, were rightly rejected by the learned Special Judge.

16. The last contention that serious prejudice was caused to the appellant as the allegations were put to him under section 409, P. P. C. whereas conviction was record under section 406, P. P. C., is simply absurd and is not worth a moment's consideration. Section 238 of the Criminal Procedure Code and the illustrations given below it, offer a complete answer to the argument. It needs hardly any authority to cite in support of the argument that a person charged with a graver offence could be punished with a lesser offence. The argument raised on behalf of the appellant that there was no direct evidence of misappropriation, would be of no avail to him in view of Jaikrishandas Manohardas Dasai and another v. State of Bombay (A I R 1960 S C 889), relied upon in Khalil N. The State (P L D 1963 Dacca 983), particularly on the following observation :‑--

"The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if . . . . proved, may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion."

The authorities relied upon by the learned counsel, namely, P L D 1961 Lah. 487 and 885, P L D 1964 Dacca 368 and other proceed on distinguishable facts which need not be discussed.

17. After having overruled the contentions raised by the learned counsel for the appellant, I now proceed to consider the two other important questions involved in the case, namely, whether in the facts and circumstances of the case the learned Special Judge was competent to order a concurrent running of sentence, anti secondly, whether the imposition of the sentence of fine, even is case; where the entire amounts were admittedly repaid, was a must under section 9 of the Pakistan Criminal Law Amendment Act (XL ref 1958). In support of the view that wider section 35(i), Cr. P. C. the Court could direct a concurrent running of sentence only when the accused is convicted at one trial of two or more distinct offences, reliance was placed by the learned counsel for the Slate on Kamal Mandal and another v, Emperor (P L D 1914‑‑1947 (Part II) Cal. 714), Criminal References Nos. 61 and 62 of 1916, a D. B. authority, in which it was held that it was not competent to the Court to give a direction of concurrent running of sentences massed in different trials. This view was reiterated anal followed by Sulaiman, J. in Dulli and others v. Emperor (85 I C 714). On the contrary, the learned counsel for the appellant relied on Nagappu Vyankappa Sali v. Emperor (A I R 1931 Bom. 529) and A I R 1951 All. 637 to show that even in the case of different trials held simultaneously, it would be competent for the trial Judge to direct a concurrent running of sentences. The authorities relied upon by the learned. counsel proceed on the provision contained in section 397, Cr. P. C. which deals with sentences passed on offenders already undergoing sentences of imprisonment for other offences, and as such are riot attracted to the instant case in which all the sentences were passed simultaneously in different trials. Obviously, therefore, a direction as to tire concurrent running of sentences cannot be sustained. As stated in the earlier part of the judgment, a shoe‑cause notice was issued to the appellant as in the possible event of the dismissal of his appeals a co‑executive running of tare sentences amounting to enhancement appeared to be inevitable. To that extent, therefore, the impugned orders are unsustainable.

18. This brings me to the next contention relating to the imposition of fine. Even in respect of cases in which the amounts misappropriated were either returned to the Lambardars or deposited in the treasury, section 9 of the Criminal Law Amendment Act (XL of 1958) reads as follows:‑--

"When any person charged before a Special Judge with an offence triable under this 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 imprisonment, impose a sentence of fine which shall not be les', than the gain found to have been derived by the accused by the, commission of the offence."

It can hardly be disputed that an offence of temporary misappropriation as held to be established by the learned Special Judge against the appellant, is an offence referred to in the aforesaid provision. In regard to the inevitable imposition of line in the event of conviction the amount should not be less than the gain found to have been derived by the accused by the common of the offence. Significantly enough, the framers have not chosen the expression "the amount misappropriated by the accused", but have substituted it by the gain derived by the accused. To determine the quantum of gain in term, of money, is obviously not free from difficulty. In The Stare v. Nazir Hussain (P L D 1909 Lah. 73), a case of temporary misappropriation, the learned special Judge had, on conviction, sentenced the accused to two years' R. I. without imposing a sentence of fine, Mr. Justice Irtcheson, J, allowing the appeal by the State, imposed a fine of Rs. 750 or six months' R. I. in default of payment thereof. The amount found to be misappropriated by the accused in this case, though not mentioned in the judgment, was to the tune of Rs. 740 and as such his Lordship assessed the amount of gain derived by the accused to be almost equivalent to the same and consequently awarded a sentence of fine. With the utmost respect I find myself unable to subscribe to this view, inasmuch as the use of the expression "gain derived" by the taw‑giver in preference to the much handy expression "amount misappro priated" is not without purpose. I am, therefore, of the view that in cases of temporary misappropriation the gain in terms of money should, in no case, be equated with the amount misappropriated, and as such on this score also the impugned orders require an amendment. There may perhaps be other ways of assessing the same but one method of doing so, which appears to me to be quite reasonable, is to assess the amount of gain in terms of money at the rate of interest on which scheduled banks would be prepared to advance a loan, for the period for which the temporary misappropriation of the amount has been found to be established.

19. This brings us to the last consideration as to what should be the quantum of punishment in terms of sentence of imprisonment and fine. In this regard the important consideration that the trials kept on hanging lire for full one decade from It 1955 to 1964, cannot be lost sight of. In addition to the agony of an inordinate and protracted trial, the appellant also lost his job besides incurring considerable expense in his defence. On the top of it, was the agony of suspense for more than three years during the pendency of the appeals hanging like the Sword of Damocles over his head. It was stressed that this protracted litigation had completely ruined the appellant having driven him to starvation and beggary. In the circumstances of the case, therefore, I am inclined to think that the sentence of imprisonment already undergone by him in each case should be good enough to meet the ends of justice. Considering it safe to exclude the disputed amount of Rs. 950, the only amount not paid by the appellant in Appeals Nos. 501 and 502 comes to a little more than five hundred rupees. I accordingly award him a fine of Rs. 510 on this count. Assessing the gain derived by the appellant in the remaining cases of temporary misappropriation at the prevalent rate of interest calculated on the period for which the amounts were retained by him, I impose a fine of Rs, 190 on that score making it Rs. 700 (Rupees seven hundred) in all. I deliberately decline to direct that the appellant shall suffer any further imprisonment in default of payment of fine as the relevant provision contained in section 64 of the P. P. C. and section 386, Cr. P. Code, do not make it mandatory. Crown v. Beni Pershad (1878 P R 73) would be an authority in point. The appeals are accepted, to the extent just indicated.

S.Q, Appeals partly accepted.

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