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Criminal Appeal No. 19, of 1967, decided on 2nd April 1968.
‑Crimes committed at chosen time in secrecy‑Cannot be proved by direct or positive evidence‑Court must act upon such indication as facts and circumstances of case present.
It is clearly established law that crimes, which are committed at chosen time in secrecy cannot be proved by direct and positive evidence and the Court must act upon such indication as the facts and circumstances of the case present. The cumulative force of the facts though individually of no little significance, .may in a particular case be such that they cannot be reasonably explained %n a manner other than the guilt of the accused. (p. 1230)
S. 235‑Joint trial- Expression "same transaction" in S. 235 (1)‑Object‑Continuity, of action and purpose‑Words "continuity of action"‑Meaning.
The expression "the same transaction" in section 235 does not require that there should be the proximity of time. Its object is the continuity of action and purpose. The words "continuity of action" mean the following up of some initial act through all its consequences and incidents until the series of acts or group of connected acts come to an end, either by attainment of the object or by being put an end to or abandoned.
Ghulam Rasool v. State P L D 1965 Kar. 189 and Emperor v. Sharufalli 4 Bom. L R 930 ref.
Ch. Abdul Rehman for Appellant.
Tajammul Hussain for the State.
By his order dated 22nd December 1966, the learned Special Judge, Lyallpur, convicted Shahnawaz, son of Badar Din, under section 409, P. P. C. and sentenced him to six months R. I., and a fine of Rs. 300, or in default one month's further R. I. He was also convicted under section 468, P. P. C. and sentenced to three months' i . 1. He has come up in appeal against his convictions and sentences.
2. While admitting the appeal to hearing, a sue mote notice was issued by my learned brother Muhammad Gul, J. to the appellant to show cause why his sentence be not enhanced. This order will dispose of the appeal and the criminal revision.
3. The case against the appellant is the outcome of the following facts: ‑
The appellant was Patwari at the material time in Chak No. 287 G.B., Tehsil Toba Tek Singh and Hakim Khan (P. W. 13) was Lambardar. An amount of Rs. 287‑14‑0 was outstanding against Khizar Hayat on account of land revenue. This amount was recovered by the appellant from Khizar Hayat, which he neither paid to the Lambardar nor deposited in the treasury. Later the Lambardar deposited the arrears including this amount and got issued warrants for the arrest of Khizar Hayat being ostensibly a defaulter. On his coming to know of the warrants having been issued for his arrest, Khizar Hayat submitted an application Exh. P. B. to the Tehsildar stating therein that the land revenue had already been paid by him to the appellant on 16‑7‑59 against a receipt Exh. P. A. for Rs. 287‑14‑0 which wag written and signed by the appellant. Saifullah Khan, Tehsildar, Toba Tek Singh (as then he was) P. W. 10, on receiving the application Exh. P. B. ordered that the explanation of the patwari should be obtained. However, it appears that no such explanation was offered. The matter was referred to the police and on 1‑11‑63 case was registered against the appellant. On 2‑11‑63 Muhammad Wasil Baqinawis, Toba Tek Singh (P. W. 2) produced before Hamid Ali, H. C. (P. W. 11) two challan forms Exh. P. E. and P. E. 1/1 --------arsal, Exh. P. F., an application in Urdu of Hakim Khan Lambardar Exh. P. G. (for the arrest of Khizar Hayat), ford relating to arrears of land revenue for Rabi, 1959, against Khizar Hayat, Exh. P. H., warrants of recovery of land revenue Exh. P. L., copy of Khatauni from Kharif to Rabi, 1963. Exh. P.D, and specimen of the seal of the Treasury, Tehsil Toba Tek Singh, Ali. Exh. P. K., which were taken, into possession vide recovery memo. Exh. P.,J.
4. On 12‑11‑63 Khizar Hayat (P. W. 1) produced the receipt Exh. P. A. for Rs. 287‑14‑0 relating to land revenue for Rabi 1959. It was taken into possession vide memo. Exh. P. A.
5 On 18‑11‑63 the appellant produced to the I. O. the receipt Exh. D. A. Against this receipt the appellant has tried to show that the land revenue recovered by him from Khizar Hayat was paid to one Ahmad Khan, Karinda of Hakim Khan Lambardar.
6. On 5‑12‑63 Ali Muhammad, Additional Wasil Baqinawis produced a copy of Khatauni for Rabi, 1963, relating to arrears of land revenue outstanding against Shah Rukh Lambardar of Chak No. 278 about an entry for Rs. 7.57 (Exh. P.C.). He also produced to the I. O. Exh. P. E. the challan form bearing serial No. 234, relating to payment of arrears of land revenue outstanding against Hakim Khan.
7. The coming to light of the facts relating to the offence of forgery shall be detailed later. It is sufficient here only to mention that in the carbon copy of the challan produced by the appellant it was found that the amount did not tally with the amount in the original and its copy in that the sum of Rs. 7.57 was converted into Rs. 287,57 by writing the digits "28" before "7" In these circumstances the case against the appellant was registered and under section 409 and 468, P. P. C.
8. In his statement at the trial the appellant admitted to have recovered 87‑14‑0 on 16‑10-59 from Malik Khizar Hayat, as land revenue and Chaukidara against the receipt Exh. P. A. He, however, offered the following explanation; ‑
"The amount of Rs. 287‑14‑0 was handed over by me to cane Ahmad Khan son of Qaim Din, a resident of Chak No 287 .G. B. who was at that tune acting as a Karinda of Hakim Khan Lambardar of that village, Hakim Khan was inimical to the complainant Malik Khizar Hayat, He took this opportunity and made it the basis of avenging leis enmity on Khizar Hayat in order to harass him"
Exh. D. A. is the receipt produced by the appellant allegedly executed by one Ahmad Khan allegedly having received; the sum ref Rs. 287‑14‑0 as the Karinda of Hakim Khan. The appellant has no evidence in defence, however, he had taken upon himself to produce Shah Rukh , Lambardar in defence.
9. In bringing ‑home guilt to the appellant for f ire offence of criminal breach of trust the prosecution examined besides Malik Khizar Hayat. Faqir Muhammad Patwari (P. W. 8), who stated that on being asked by Hakim Khan Lambardar, he prepared Fard Baqaya with regard tar Rabi, 1959 outstanding against Khizar "Hayat P. W. 13. The evidence of Hakim Khan (P. W.13) is to the effect that he was Lambardar of Chak No. 287 G. B. Tehsil Toba Tek Singh for Rabi, 1959 and deposited the entire land revenue for Rabi 1959 and that Khizar 1‑layat having been a defaulter an application for obtaining the warrants of arrest of Khizar Hayat was submitted by him to the Tahsildar Toba Tek Singh, He further stated that he himself used to realise the land revenue and did not allow any person to collect it on his behalf, and that there was no person by the name of Ahmad Khan, son of Qaim Din, who was ever appointed by him as his Karinda for collecting his land revenue and that the said Ahmad Khan had died about 9/10 years ago. Mushtaq Ahmad, Office Kanungo, Toba Tek Singh stated that the appellant worked under him from 7.3‑58 to 16‑12‑63 and that Exh. P. A. was in his handwriting. Similar was the statement of Muhammad Rashid, Naib Office Kanungo. The evidence of the prosecution witnesses and the admission made by the appellant of having received the amount proves beyond a reasonable doubt that the amount of Rs. 287‑14.0 was received by the appellant in his official capacity as a Patwari and dishonestly misappropriated it to his own use. The suggestion of the learned counsel that this amount was received by the appellant not in his official capacity but as a friend of Hakim Khan Lambardar is not borne out by the record of the case. The evidence of Khizar Hayat is:
"I had some differences with the Lambardar. He, therefore, sent a messenger to me for the payment of this amount. I told the messenger that I was prepared to pay the amount, if the dhai bash was shown to me. The Lambardar and the Patwari were collecting the land revenue. The Lambardar did not come to me himself but sent the Patwari with the dhal bash to collect the land revenue from me."
10. The appellant failed to prove that the sum realized by him was in fact not misappropriated. The mere production Exh. D. A. which under the circumstances is just a scrap of paper does not absolve him of the responsibility of shifting the burden from his shoulder. This aspect of the case against the appellant has been positively proved.
11, As regards the offence of section 468, P. P. C. the modus operandi of the appellant is shown by the following statement of facts: ‑
Ubedullah S. H. O. (P. W. 10) stated that the application Exh P. I. B. (submitted by Khizar Hayat) was sent to him for inquiry by the D. S. P. He sent for the appellant. On 23rd October 1963 the appellant made a statement that he had not deposited the amount. The following day the appellant however stated that the amount was deposited by him in the treasury. On 24‑10‑63 Saifullah Tehsildar (P. W. 12) found on comparison Exh. P. E./2 with Exh. P. E. (copy of the original Exh. P. E./1 which remained in the office with Sia Nawis) that the amount in the two challans was different, in that the one retained by the Sia Nawis contained Rs. 7.57 and the other copy Exh. P. E./2 (which is returned to the depositor) showed Rs. 287.57 (to have been deposited). He stated that all the three copies were signed by the Revenue Office, the Sub‑Treasure and the Sia Nawis. Ali Muhammad, Additional Wasil Baqi Nawis (P. W.) stated that the challan Form Exh. P. E., relating to Serial No. 234 for payment of the arrears of land revenue outstanding against Hakim Khan Lambardar through Shahnawaz was prepared by him on the request of the appellant as he wanted to deposit the sum of Rs. 7.57 on behalf of Hakim Khan Lambardar as arrears. Gulzar Ahmad Sia Nawis (P. W. 3) stated that the challan receipts Exh. P. E., Exh. P. E./1 and Exh. P. E./2 in triplicate were prepared in his office, the original Exh. P. E./1 was retained in the once, the copy where of Exh. P. E. was kept by the Wasil Haqi Nawis and the third one that is Exh. P. E./2 was given to the depositor. He further stated that in Exh. P. E./2 the grand total had been changed from Rs. 7.57 to 287.57. The third witness in the chain is Anwarul Haq Treasurer, Toba Tek Singh (as then he was). He stated that the appellant came to deposit Rs. 7.57 and three challans Exh. P. E., Exh. P. E./1 and Exh. P. E./2 were signed by him in the capacity of Treasurer, which were presented by the peon concerned along with the Register. The witness stated that the three challans when presented to him bore the same entry as in the original Exh. P. E./1. The witness was positive about the appellant having come at the time when the challan receipts were taken to the treasury. From the narration of facts detailed above, it becomes abundantly clear that it was indeed the appellant who took upon himself to deposit the sum of Rs. 7.57. The question is why he worried himself with all this botheration. After 1961 he had been transferred to Consolidation Department. It was no longer his duty to collect and deposit the land revenue. That being so what compelled him to have undertaken this responsibility. Obviously it was an endeavour to channelise the course of events in different direction, which came to light after fully many years. The coincidence of this attempt with the enquiry on the application of Khizar Hayat is not at all surprising which was made to attain the object initiated earlier and to put an end to the matter agitated against him. It is true, as pointed out by the learned counsel, that there is no direct evidence as to who added the two digits (28) before T, but piecing together the evidence detailed above it infinitely strengthens the conclusion of fixing the responsibility on the appellant's who obviously was impelled to exonerate himself of the legal responsibility of the amount admittedly realized by him from Khizar Hayat. It is clearly established law that crime which are committed at chosen time in secrecy cannot be prove by direct and positive evidence and the Court must act upon sue indication as the facts and circumstances of the case present. A The cumulative force of the facts though individually of no little significance, is that they cannot be reasonably explained in a manner other than the guilt of the appellant.
12. It was contended by the learned counsel that the trial of the appellant is vitiated on the ground that sections 409 and 468 being distinct offences, could not be tried together. In support he inter alias relied on the case of Ghulam Rasool v. State (P L D 1965 Kar. 189). That was a case in which the accused, person had forged signatures of the A. D. M. on the licenses of different individuals and of using a false seal of the A. D. M. whereby the amounts received were misappropriated. Another and real objection to the joinder was that the entrustment of money by one licensee for the renewal of his license could have no relation with the entrustment by another licensee of another sum for the purpose of renewal. These were distinctly independent transaction. The observation reproduced below runs counter to the argument raised: ‑
"It could be so that the obtaining of the money from one of these persons and the forging of the signature of the A. D. M. on the licence of the said person and the putting of a false seal upon that licence were offences In the course of the same transaction. If that was so, the trial would be valid having regard to the provisions of section 235 (1). This argument, however, could not be stressed so as to include three other persons" . . . . . .
The expression "the same transaction" in section 235 does not require that there should be the proximity of time. Its object is the continuity of action and purpose. In the case of Emperor v. Sharufalli (4 Bom. L R 930) it was observed: ‑
"That the real and substantial test for determining whether several offences are connected together so as to form one transaction depends upon whether they are so related to one another in point of purpose, or as cause and effect, or as principal and subsidiary acts, as to constitute one continuous action."
The words "continuity of action" mean the following up of some initial act through all its consequences and incidents until the series of acts or group of connected acts come to an end, either by attainment of the object or by being put an end to of abandoned.
13. For the foregoing reasons, I find no force in this appeal and dismiss it.
14. I accept the revision petition for enhancement of the sentences. The sentence of imprisonment of six months' R. I. under section 409, P. P. C. is enhanced to nine months' R. I. The sentence of fine remains unaltered for the default in payment of which further R. I. is one month. The sentence under section 468, P. P. C. is enhanced to six months' R. I. Both the sentences shall run concurrently. The convict, who is on bail, shall be arrested and sent to, jail to suffer the remaining period of his imprisonment:
Appeal dismissed.
Sentence enhanced.
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