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Petitions for Special Leave to Appeals Nos. 176 and 177 of 1968, decided on 5th June 1968.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 16th May 1968, in Criminal Appeals Nos. 695 and 694 of 1964, respectively).

S. 409‑---Criminal breach of trust by public servant‑--Entrustment admitted Mere fact that entrustment had not been proved by producing any official docu ment, held, of no consequence.

S. 45-‑Hand‑writing expert ---Evidence of expert neither only nor the best method of proving hand writing or signature‑Other direct evidence available--‑No question of illegality in accepting direct evidence and not examining hand writing expert.

The evidence of the hand‑writing expert is neither the only nor the‑best method of proving the hand‑writing or signature of a person. It is at best only opinion evidence. Where other direct evidence of the nature adduced in the case is available there can be no question of any illegality being committed by the acceptance of such direct evidence.

S. 409 read with S. 65 Sentence--‑Maximum punishment under S. 409. 10 years--- Sentence of 5 years in default of payment of fine imposed‑--Whether legal Special leave to appeal granted by Supreme Court.

Riaz Ahmad Sheikh, Advocate Supreme Court instructed by Masud Akhtar Sheikh, Attorney for Petitioner.

Nemo for the State.

Date of hearing: 5th June 1968.

‑The petitioner in these two petitions is the same person who, in his capacity of the Secretary, Town Committee, Khudian, Tehsil Kasur, District Lahore, was charged with the embezzlement and misappropriation of the funds of the Committee and sent up for trial in seven different cases under section 409 of the Pakistan Penal Code. He was acquitted in five cases but was convicted and sentenced in two of them by the Special Judge, Anti‑Corruption Establishment Lahore.

The High Court has in appeal upheld his convictions in both these cases, but in Criminal Appeal No. 695 of 1964 from which Criminal Petition No. 176 of 1968 arises reduced the sentence of imprisonment from one year's R.I. to the period already suffered and in Criminal Appeal No. 694 of 1964 from which Criminal Petition No. 177 of 1968 arises, reduced the substantive sentence of imprisonment from 5 years to one year's R. I. but maintained the sentence of fine of Rs. 10,000 or in default, further rigorous imprisonment for 5 years. Hence, the petitioner now seeks special leave to appeal from both these judgments.

In Criminal Petition No. 176 of 1968 the petitioner was found guilty of embezzlement in respect:

(a) of three sums of Rs. 70‑4‑0, Rs. 70‑14‑0 and Rs. 71.2‑0 drawn from the Bank on 4‑10‑60, 5‑8‑60 and 6‑9‑60, respectively in respect of the General Provident Fund of servants of the rows committee; and

(b) of Rs. 279 withdrawn from the income of the cattle pound on 6‑9‑1960.

The petitioner admitted the withdrawal and the receipt of the above amounts but contended that he had thereafter made over the amount of the General Provident Fund to the Accountant of the Committee for depositing the same in the Post Office Saving Bank Account. Similarly, he claimed that the amount withdrawn from the cattle pound account had been made over to Abdul Hamid (P. W. 6) who maintained that account. ‑The name of the accountant to whom the Provident Fund amount was made over was not however, disclosed and to Abdul Hamid (P. W. 6) no such suggestion even was made while he was giving evidence. In these circumstances the Courts below held that the embezzlement of these amounts had been established beyond any doubt.

The learned counsel for the petitioner, however, contend that no entrustment had been proved by producing any official document to show that the petitioner was ever placed in charge of these amounts. In our opinion this contention is wholly devoid of force, for, once it is admitted that the petitioner did withdraw the amounts in respect of the General Provident Fund of other employees as also withdrew the amount from the cattle pound account, he was entrusted with these amounts and was legally bound to have the first deposited in the Post Office Saving Bank Account and the second in the Treasury. This was not done. Therefore, both in entrustment and misappropriation were proved.

In the case from which Criminal Petition No. 177 of 1968 arises the petitioner was found guilty of having encashed Post office Saving Certificates purchased by the Town Committee in the name of its Secretary. The encashment of the Certificates was proved by the signatures of the petitioner on the reverse of each one of the Certificates encashed in token of the receipt of the amount thereof. But these amounts were not credited to the account of the Committee.

The learned counsel appearing on his behalf has raised two points in support of this petition for special leave to appeal, namely, that there was no proof of entrustment of either the Certificates or the amount thereof, and secondly, that in the absence of the evidence of any Hand‑writing Expert the alleged signatures of the petitioner on the reverse of the Saving Certifi cates had not been satisfactorily proved. We see no substance in either of the contentions. Once it is established that the Certifi cates were encashed by the petitioner he became a trustee of the money for the purposes of the Town Committee and the onus was on him to show that the money was spent for lawful purposes. So far as the proof of the signature is concerned, Abdul Hamid, the Head Clerk of the Town Committee had proved it as he claimed to he conversant with the hand‑writing of the petitioner. He also proved that the register relating to the purchase of the Certificates also showed the initials of the petitioner. The Administrator of the Town Committee, Mr. A. P. Gill, proved that these Certificates were not encashed with his permission or knowledge. The Postmaster who had actually paid the money at the relevant time had categorically stated that the Certificates were encashed by the petitioner who himself received the payment in his presence and affixed his signature on the reverse of the Certificates also in his presence. The signatures of the petitioner on the reverse of the Certificates were therefore, abundantly proved. The evidence of the hand writing expert is neither the only nor the best method of proving the hand‑writing or signature of a person. It is at best only opinion evidence. Where other direct evidence of the nature adduced in the case is available there can be no question of any illegality being committed by the acceptance of such direct evidence.

The entrustment of the petitioner is also established beyond doubt, for, even though the Certificates were purchased during the time of his predecessor in the office his initials in the register relating to the Certificates showed that the petitioner too accepted responsibility. There is no substance in either of the above contentions.

Lastly it is urged that in both these cases the petitioner had been prejudiced by the non‑examination of certain defence witnesses he had called to produce documents in the custody of the Town Committee which would have established his innocence. It appears that these witnesses had appeared with the documents called for in answer to the processes issued to those persons. They appeared on one date with the documents, but they did not appear on the adjourned date. The petitioner complains that this was because the trial Court had threatened these witnesses. There is nothing, however, on the record to show that any such threat was made by the Court. If that had been done, surely the petitioner would have moved for the transfer of the case from that Court. In the circumstances the petitioner now cannot complain if his witnesses did not turn up.

The learned counsel further contends that the sentence imposed by the trial Court in the case from which Petition No. 177 of 1968 arises is illegal in so far as it had provided a period of 5 years rigorous imprisonment in default of payment of fine. It is pointed out that under section 65 of the Pakistan Penal Code the Court cannot direct the offender to imprisonment in default of payment of fine for a period exceeding one‑fourth of the term of imprisonment which is the maximum fixed for the offence. The maximum imprisonment provided under section 409, P. P. C. is 10 years or transportation for life. So the sentence of 5 years in default of payment of fine, it is contended, is illegal. This is in our opinion, the only point of law that has been raised in this case. We accordingly grant leave to appeal in Criminal Petition No. 177 of 1968 to examine only the legality of the sentence in default of payment of fine.

The Petition‑No. 176 of 1968 is, however, dismissed.

Leave granted.

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