Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Criminal Appeal No. 7 of 1951, decided on 13th March, 1953.
(On appeal from the judgment and order of the High Court of Judicature at Lahore, dated the 10th May, 1950, in Criminal Appeal No. 629 of 1949).
Objections as to validity or sufficiency of‑Not open to defence to take one ground in trial Court and to raise com pletely different objection before Federal Court‑Cancellation of earlier sanction and substitution by another‑Operative effect of earlier not to affect jurisdiction assumed under it‑Case not to be considered withdrawn by mere withdrawing of sanction.
It is not open to the defence, if they object to the validity or sufficiency of the sanction, to take one: objection in the trial Court and to rely on a completely different objection relating to the sufficiency of the sanction in this Court, specially when the objection could have been easily met by the production of a single witness in the trial Court. It must be mentioned that no objection of any type whatever to the sanction was raised in the High Court though the hearing of the appeal lasted for several days. More over, there can be little, doubt that the operative effect of the first sanction, viz., to remove a bar to the prosecution, as well as to the taking of cognizance by the trial Court, was not affected by the purported cancellation. The sanction was not void ab initio, since the failure to mention facts then in could be remedied and no warrant can be found for the belief that the relevant power extends also to the withdrawal of prosecution launched thereunder or to depriving a Cobra of jurisdiction which it has commenced to exercise, by a mere cancellation of a sanction already issued. The issue of the second sanction, coupled with cancellation of the first, must be understood as amending or amplifying the first sanction, and the resultant effect is, in material respects, no different from that which the production of "extraneous evidence" might have brought about.
S. 239 (d)‑Applica bility to be determined by reference to accusation‑"Transaction" not synonymous with offence"‑Offence under S. 509 Forgeries to cover the offence, committed next day‑Same transaction.
The applicability of clause (d) of section 239 of the Criminal Procedure Code has to be determined by reference to facts mentioned in the accusation as read out to the accused persons. The accusation clearly stated that it was in order to facilitate the commission of the removal of excess material or to destroy the evidence in support thereof and to cover-up the track of the offence that Alvi, with the active assistance of his co‑accused, committed or abetted the commission of several forgeries in the records of his office relating to the issue of iron and steel.
The word "transaction" as used in section 239 of the Code can not be regarded as synonymous with the word "offence".
It is the continuity of design and purpose which determines JJ whether various acts or events, constitute one transaction.
It is well‑settled that the point of time at which, for the purposes of applying the provisions of section 239 (d), Criminal Procedure Code, it falls to be determined whether different offences charged were committed in the course of the same transaction, is the stage of the accusation, and not the stage of conclusion of the trial. The validity of joinder is to be judged in relation to the facts contained in the accusation, and not in relation to the facts eventually found.
Held, that there had been no misjoinder of charges in this case.
Choukhani v. The King‑Emperor A I R 1939 P C 130 ref./
‑
Mere disregard of technicality without resulting injustice not enough for interference by, in criminal cave.
S. 9‑Appeal from acquittal by Crown‑Competent.
The provisions of Chapter XXXI of the Criminal Procedure Code relating to appeals are fully applicable to the judgments delivered by the Special Judge under the provisions of the Pakistan Criminal Law Amendment Act. The provisions of Chapter XXXI authorise the Provincial Government to prefer an appeal against an order of acquittal. Sections 5 and 417 of the Criminal Pro cedure Code, read with section 9 of the Criminal Law Amendment Act, 1948, therefore, provided the machinery for the filing of the appeal by the Advocate‑General, Punjab, in the High Court under the orders of the Provincial Government. Section 404 of the Criminal Procedure Code lays down that no appeal shall lie from any judgment or order of a "Criminal Court" except as provided by that Code or by any other law for the time being in force. The expression "criminal Court" would include a Court such as that of the Special Judge. This provision can also be availed of by the Crown in support of the appeal preferred in the present case, and the appeal was entirely competent.
S. 342‑Failure to question accused on important ingredient of case though not of charge‑Not open to Court to come to a finding on such matter and thereby to come to an inference in regard to knowledge or intention of accused with reference to offence charged.
Previous acts similar to one charged‑When admissible.
‑Appearing as witness‑Evidence of=Necessity of independent corroboration.
Necessity of, in identification or writing Court's own opinion unaided by such evidence‑How far reliable.
Where the features relied upon are physical characteristics which are susceptible of examination by scientific methods, with a view to identification ; or as the case may be, differentiation, it is advisable that such aids should be called in for the resolution of doubts, which in the absence of reliable direct evidence must necessarily attach to such features, regarded as evidence. It can only be in a very rare case that mere visual inspection with the naked eye, unaided by scientific training or methods, can afford the necessary degree of satisfaction.
A. K. Brohi, Senior Advocate Federal Court (M. H. Munir, Advocate Federal Court, with him) instructed by M. A. Rahman, Attorney for Appellant.
Faiyaz Ali, Advocate‑General of Pakistan (M. Mahmud All, Advocate Federal Court, with him) instructed by M. Siddiq, Attorney for Respondent.
Dates of hearing : 18th, 19th, 20th, 23rd, 24th, 25th, 26th Ith and 28th February, 1933.
‑This is an appeal, by special leave, from a decision of the High Court of Judicature at Lahore convicting the appellant Sardar Muhammad Khan Alvi (who will hereinafter be referred to as Alvi) for offences under section 409 and section 465/109 (two counts) of the P. P. C. and sentencing him to imprisonment till the rising of the Court and a fine of Rs. 10,000 in respect of the first offence, and to a fine of Rs. 500 on each count under section 465/102. Five other persons, namely, Ata Muhammad, the brother of Alvi, Rustam Ali and Akhtar Ali, two clerks in the office of Alvi, and Jammat Ali Shah and Tufail Muhammad, servants of Ata Muhammad, were also jointly tried with Alvi under sections 409, 420, 380, 411, 201, 120‑B, 468 and 477‑A of the P. P. C., read with section 5 of Act II of 1947.
Alvi was the Steel Licensing Officer and an Assistant Rehabi litation Commissioner, Punjab, in the year 1948. He was placed in charge of several dumps of iron and steel, two of which were located near his office on Abbott Road, Lahore. Ata Muhammad (accused No. 2), the brother of Alvi, was the pro prietor of the Standard Engineering Company at Jullunder prior to August 1947. As a result of the communal disturbances that broke out all over the Punjab at the time of the Partition, Ata Muhammad had to leave his concern‑ at Jullunder and had to migrate to Pakistan. He settled at Jaranwala in the District of Lyalipur. In December, 1947, he presented an application to the Director of Industries, West Punjab, that the Sant Engineering Co., which belonged to a Sikh evacuee should be allotted to him. As soon as his application was granted, he started business at Jaranwala but altered the name of the "Sant Engineering Co." to the "Standard Engineering Co." On the 10th of March, 1948, Jammat Ali Shah (accused No. 3) made an application on behalf of the Standard Engineering Company for the purchase of 171 tons of material from the Government dumps which were under the charge of Alvi. This application was granted by Alvi for the purchase of "about four tons of various categaries" of the material asked for. A detailed "invoice" was prepared by Jalaluddin Inspector (D. W. 1), showing specifications, weights, rates and values of twelve categories of iron and steel which could be supplied, the total weight shown being "3.96 tons".
According to his estimate, a sum of Rs. 1,470 was fixed as the price of the material. On the 17th April, 1948, two permits were prepared by Rustam Ali (accuzed No. 5) in favour of Syed J. S. Shah & Co.. Jaranwala. The first permit (Exh. P. 2) authorised J. A. Shah to acquire iron and steel weighing 3 tons, 13 cwt., 1 quarter and 19 lbs. (about 100 maunds), and the second permit (Exh. P. 3) accorded permission to J. A. Shah to remove the materials from the dump. Alvi ordered Miraj Din, Head Clerk (P. W. 12) and some other clerks to attend office on the 18th April which happened to be a Sunday to issue the necessary material. The clerks who had been ordered to attend office came to the dump on Sunday. Ata Muhammad brought a truck which was loaded with iron and steel from two Government dumps on Abbott Road which were situated close to each other. Rustum Ali accused attended to the loading of the truck. Alvi came twice to the dump to supervise the loading: On the first occasion, he stayed there from 15 to 30 minutes between 11‑0 and 12‑0 a. m. He returned to the dump at about 1‑30 p.m., and remained there till the loading of the truck was completed. Ten galvanized iron sheets were placed on the top of the other material in the truck. Rashid driver (P. W. 5) told Alvi that as the truck had not been properly loaded and as some of the material was jutting out of the truck he was likely to be prosecuted for breach of traffic regulations. Alvi assured the driver that he would send a telephonic message to the Ravi Checking Post that the truck should be allowed to pass without any interference by the police. In the presence of Rashid, Alvi rang up the Ravi Checking Post, and requested the police officer‑in‑charge to allow the truck to pass, saying it was carrying goods belonging to a relation of his. While final touches were being put to the loading of the truck, Ata Muhammad went away to Alvi's house leaving a message that he should be picked up from there by Rashid. The truck left the dump in the evening and stopped a short distance away in front of the Nishat Cinemaaear Alvi's house to pick up Ata Muhammad. While the truck was waiting opposite Alvi's house, Muhammad Shafi (P. W. 2) who is also an Assistant Rehabilitation Commis sioner happened to pass by the truck in the car of a friend of his, named Ghulam Sarwar, (P. W. 3). When Muhammad Shaft passed by the truck he suspected that unauthorised material was being carried away from the Government dumps. The car was stopped and Muhammad Shafi and Ghulam Sarwar began to make enquiries from the driver as to the ownership of the material in the truck. The driver of the truck could not give Muhammad Shafi the required information and told him that the iron in the truck belonged to Ata Muhammad accused. Meanwhile Ata Muhammad arrived and showed Muhammad Shafi the two permits which authorized him to take the material to Jarawala. Muhammad Shafi and Ghulam Sarwar began comparing the contents of the truck with the permits. A discussion took place between Muhammad Shafi and Ata Muhammad. The latter contended that the truck did not contain any excess ; that he had purchased the material from the Government dumps and had paid the price therefor. Muhammad Shaft asked one of the constables who was nearby and Ghulam Sarwar to keep s watch over the truck. He himself resorted to the Nishat Cinema to send a telephonic message to his superior officer Mr. Kureshi, Director of Industries Punjab. In the meanwhile, Alvi arrived and went to the Nishat Cinema to persuade Muhammad Shaft to come to his house and have a talk with him on the subject, Muhammad Shaft at the time was insisting that according to his estimate the truck was carrying a great deal of material not included in the permit. As soon as Muhammad Shaft agreed to go to the house of Alvi, the latter told him that the contents of the truck belonged to his own brother ; that it was possible that there might be some excess ; chit it was a common occurrence in those days that when articles of one category were not available articles of another category were substituted for it ; and that Muhammad Shafi should not therefore create any further trouble and should over look any slight excess that there might be. As a result of these efforts, Muhammad Shafi handed over the permits Ata Muhammad. Before he left, however, he and Sarwar noted that some of the iron sheets were being unloaded.
Not being satisfied with the explanation given by Alvi. Muhammad Shafi decided to go to Muzaffar Hassan (P. W. 14) who was another Assistant Rehabilitation Commissioner in order to consult him. After Muzaffar Hassan had heard the whole story he decided to accompany Muhammad Shaft to the Ravi Checking Post and get the truck weighed. They went there, but as the truck had not arrived till then, they began to search for it, and ultimately found it standing near Serai Rattan Chand. Muhammad Shaft then went to attend a function while Muzaffar Hagian and Ghulam Sarwar went back to the Ravi Checking Post and waited for the truck. When it arrived, the truck was stopped there by the A. S. I. of Police in charge of the post, and the truck with the entire loaded material was weighed. The total weight was found to be 224 maunds whereas according to the permit it should have been 100 maunds, excluding the weight of the truck which is variously stated to be between 82 maunds and 90 maunds. After the weighing, Muzaffar Hassan recorded the statement of the driver, brought back the truck to the office of the Director of Industries, and recorded the statements of Ata Muhammad, Tufail Muhammad, Abdul Aziz, and Muhammad Ismail. He hurriedly typed out a report of the incident, put the truck in charge of the Chowkidar of the office of the Director of Industries, and then went and met Muhammad Shafi on Nisbat Road. Muhammad Shafi and Muzaffar Hassan then went to the house of Mr. Kureshi, Director of Industries, but he was not at home.
Alvi received information that the truck had been detained by Muzaffar Hassan. He wanted to see the Director of Industries in this connection and ultimately found him at a restaurant at midnight. Alvi requested him to hand over the truck to him. The Director did not agree. Mr. Alvi followed him to his house add repeated his request on the ground that if the truck were not handed over to him his prestige would suffer. The Director of Industries, however, did not comply with the request of Alvi. When the Director went to his office on the 19th April 1948, Muzaffar Hassan handed over the report which he had typed the previous night to the Director and told him the whole story. The Director for sent a telephonic message to Mr. Mahmud‑ul‑Hassan, Secretary to Government Punjab, Industries Department, and told him all the facts. The investigation was then taken in hand by the Special Police Establishment Alvi wag anxious to get hold of the truck. He approached the Secretary and succeeded in getting his permission to remove the truck on the night between the 19th and the 20th April 1948. The material and the truck were again weighed at an octroi post where there was a weighing machine under the supervision of Ch. Abdul Rahim, Officer -on‑Special Duty. The weight recorded was 216 maunds.
It will be convenient at this stage to r‑produce the charges against the accused. They are in the following terms :‑
"(1) That Mr. Alvi as a public servant, holding the post of the Steel Lieencing Officer, in conspiracy with his co‑accused, by corrupt or by illegal means, or by otherwise abusing his position as a public servant had been obtaining for his brother and other relations many a pecuniary advantage or valuable thing by issuing iron and steel from the Government dump under his control, in excess of the quantity charged for, or entered in the permits issued in that behalf; and that in pursuance of that conspiracy, a d as a part of his usual practice, he bad, on 18th April 1948, issued iron and steel from the Government dumps under direct charge as Steel Licensing Officer, Punjab, in excess of the quantity entered in permit No. 4941 dated 17th April 1948, ostensibly in the name of J. A. Shah & Co. of Jaranwala which quantity was, in fact, intended for the Standard Engineering Co. stated to have been allotted to his real brother, accused No. 2, but actually a joint family concern, in which Mr. Alvi was himself also vitally interested.
(2) That in order to facilitate the commission of the aforesaid offences, or to destroy the evidence in support thereof, and cover up the track of the offences, Mr. Alvi, with the active assistance of his co‑accused, committed, or abetted the commission of, several forgeries in the records of his office relating to the issue of iron and steel pertaining to the above said permit.
The accused had, therefore, committed offences deferred in sections 380, 409, 411, 468, 477‑A and 218 read with section 120‑B, I. P. C., which offences are triable by the Court of Special Judge appointed under Act XIX of 1948."
The trial was conducted in the Court of Mr. Baqar who was a Special Judge appointed by the Government of Pakistan under the Pakistan Criminal Law Amendment Act, 1948. In accordance with the provisions of section 5 of the Act, the particulars of the offences stated in the complaint were read out to the accused. After the protracted trial, Ata Muhammad was convicted under section 379 and Rustum Ali and Tufail under section 379 read with sections 109 and 114 of the P. P. C. Ata Muhammad was sentenced to six months' simple imprisonment and a fine of Rs. 500, and Rustam Ali and Tufail were sentenced to three months' simple imprisonment and a fine of Rs. 50 each. Alvi. J. A. Shah and Akhtar Ali were acquitted. The three convicts preferred an appeal against their convictions in the High Court of Judicature at Lahore, while the Government preferred an appeal against the acquittal of Alvi. An application in revision was also presented for enhancement of the sentences awarded to the convicts. The case was placed before a Division Bench consisting of Mr. Justice Rahman and Mr. Justice Jan in the first instance, but in view of the important questions of law and fact involved in the case, the matter was referred to a Full Bench which consisted of the learned Chief Justice, and Rahman and Jan, JJ. The learned Chief Justice, with whom Jan, J., concurred, convicted Alvi under section 409 and under section 465/109 on two counts and awarded him the sentences already referred to. The sentences awarded to Ata Muhammad and Tufail Muhammad were maintained, while the sentence awarded to Rustam Ali was reduced in appeal.
Mr. Justice Rahman delivered a dissenting judgment holding that the guilt of Alvi had not been established beyond reasonable doubt ; that he may have been guilty of nepotism as a result of improper exercise of his official discretion for the benefit of hid brother Ata Muhammad; but that such favouritism could not be regarded as an offence under section 409 of the P. P. C. In respect of the charge relating to forgeries he was of the opinion that the evidence against Alvi consisted solely of the statements of accomplices, that this evidence had not been corroborated fn material particulars, and that therefore no convictions under section 465/ 109 of the Penal Code could be recorded against him.
The first question raised by Mr. Brohi on behalf of the appellant was that no valid sanction has been placed on the record by the prosecution and the Special Judge had therefore no jurisdiction to proceed against the appellant. Such sanction was required as a condition precedent to both the prosecution of Alvi, as well as to the taking of cognisance by a Court, of the case against him, under three separate provisions of law, specified in the sanctions issued by the Central Government.
There are two such sanctions on the record, one dated the 2nd February 1949, and the other dated the 10th March. The first sanction is in the following terms:‑
"(No. 18/6/49‑Police, Government of Pakistan Ministry of the Interior, Home Division Karachi the 2nd February 1949).
The Central Government hereby accords sanction under section 197 of the Cr. P. C., 1898, Act V of 1898, read with section 6 of the Prevention of Corruption Act, 1947 (Act II of 1947) and subsection (5) of section 5 of the Pakistan Criminal Law (Amendment) Act, 1948 (Act XIX of 1948), to the prosecution of Mr. S. M. K. Alvi, Steel Licensing Officer, West Punjab, under sections 409, 420, 380, 411, 201 and 477‑A read with section 120‑B, of the I. P. C., and section 5 of the Prevention of Corruption Act, 1947 (Act II of 1947) in the Court of the Special Judge appointed by the Central Government under section 3 of Act XIX of 1948."
The second sanction states in the opening paragraph that the Governor‑General is satisfied that Mr. S. M. K. Alvi should be called upon to answer charees relating to certain offences, of which details are given in three paragraphs together with the sections of the Penal Code under which Alvi should be prosecuted. At the end of this sanction the following paragraph appears :‑
" The sanction order forwarded with this Ministry's No. 18‑6‑49‑Police, dated the 2nd February 1949, may be considered as cancelled."
Mr. Brohi's argument was that the first sanction was not a valid sanction as it did not show that the facts of the case had been placed before the sanctioning authority and that the second sanction could not be availed of by the prosecution as the summons to the appellant had already been issued on the 3rd of March 1949, showing clearly that the prosecution had already been launched, and cognisance of the case had already been taken, when the sanction was issued, on the 10th of March. It was conceded, however, that so far as the contents of the sanction were concerned, the second sanction was a valid sanction.
The cousel for the appellant relied for the first contention on the judgment of the Privy Council in the case of Gokulchand Dwarkadas Morarka (75 I A 30). This was a case relating to clause 23 of the Cotton Cloth and Yarn (Control) Order, 1943, as amended, which provided that no prosecution for the contravention of any of its provisions should be instituted without the previous sanction of the Provincial Government. It was held by their Lordships that it must be proved that the sanction was given in respect of the facts constituting the offence charged. It was laid down that while it was desirable that the facts should be referred to on the face of the sanction that was not essential since clause 23 did not require the sanction in any particular form, or even to be in writing, but 4f the facts constituting the offence were not shown on the face of the sanction the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. Where, therefore, there was nothing on the face of the sanction, and no extraneous evidence, to show that the sanctioning authority knew the facts alleged to constitute a breach of the order, the sanction was invalid. It was urged that the first sanction in the present case did not show on its face that the facts had been placed before the sanctioning authority and that as no extraneous evidence had been produced to the effect that the facts had been placed before the sanctioning authority, the sanction was invalid and the Court had no jurisdiction to take cognizance of the case against Alvi.
A reference to the judgment of the trial Court shows that this objection was never raised in that Court, and that though it was contended that there was no valid sanction on the record, the validity of the sanction was challenged on different grounds. This is clear from the following extract from the judgment of the trial Court :‑
"The fourth objection raised by the defence counsel was that in any case there was no legal sanction so far as Mr. Alvi was concerned. As I have already sanctioned in the opening of my judgment that two sanctions were granted for his prosecution, the one dated the 2nd of February 1949 given by the Central Government and the other dated the 10th of March 1949 given by the Governor‑General cancelling the previous sanction. His defence counsel contention was that the first sanction was wrongly cancelled, and that the second sanction was belated by one week, and therefore it could not be deemed in law to be a valid sanction for the prosecution of Mr. Alvi as the Court bad taken cognizance of the case on the 3rd March 1949 when the summonses were issued to the accused and to the witnesses."
If objections are to be raised to the validity of the sanction all such objections should be taken at the earliest opportunity so as to enable the presumption to prove that, though the facts did not appear on the fact of the sanction, such facts were brought to the notice of the sanctioning authority before the sanction was awarded. It appears that in the case of Gokulchand (supra) such an objection to the sufficiency of the section was taken at the trial. This appears at page 33 of the report where the following facts have been mentioned:
"The question which arose for decision on this appeal was whether that sanction, read with the evidence adduced at the trial, constituted a due compliance with the provisions of clause 23 of the Order.
The trial Magistritte held that the sanction was sufficient, but acquitted the accused on the merits of the case. On appeal by the Government of Bombay against that acquittal the High Court (Sen and Gajt;ndragadkar, JJ.) convicted the appellant as already stated."
If the present objection had been taken in the trial Court it would have been open to the prosecution to produce an official of the Government of Pakistan to establish that the facts which are mentioned in the second sanction were placed before the Central Government when it accorded the first sanction dated the 2nd of February 1949.
In our opinion, it is not open to the defence, if they object tot the validity or sufficiency of the sanction, to take one objection in the trial Court, and to rely on a complete different objection relating to the sufficiency of the sanction in this Court, specially when the objection could have been easily met by the production of a single witness in the trial Court. It must be mentioned that no objection of any type whatever to the sanction was raised in the High Court though the hearing of the appeal lasted for several days. Moreover, there can be little doubt that the operative effect of the first sanction, viz., to remove a bar to the prosecution, as well as to the taking of cognizance by the trial Court, was not affected by the purported cancellation. The sanc tion was not void ab initio, since the failure to mention facts therein could be remedied and no warrant can be found for the belief that the relevant power extends also to the withdrawal of a prosecution launched thereunder or to depriving a Court of jurisdiction which it has commenced to exercise, by a mere cancellation of a sanction already issued. We consider that the issue of the second sanction, coupled with cancellation of the first, must be understood a5 amending or amplifying the first sanction, and that the resultant effect is, in material respects no different from that which the production of "extraneous evidence" might have brought about.
The next point taken up by Mr. Brohi was that the offence of criminal breach of trust by Alvi is alleged by the prosecution to have been committed by him on the afternoon of the 18th April, while the forgeries are found by the High Court to have been committed on the morning of the 19th April after the offence under section 403 had been completed and moreover they relate to that part of the transaction which, as brought out in the charges was not regarded as illegal. It was urged that the offence under sections 409 and 465/109 were not committed in the course of the same transaction or in pursuance of the same conspiracy and that therefore the provisions of clause (d) of section 239 of the Code of Criminal Procedure were inapplicable in the present case.
In order to deal with the contention raised by the defence it is necessary to refer to the two charges that have been reproduced in an earlier part of this judgment. The prosecution case in essence was that all the accused persons has entered into a conspiracy dishonestly to remove material from the Government dump in excess of the amount permitted and paid for and that in pursuance of this common purpose they had succeeded in remov ing such material on the 18th of April, and that after the truck had been captured Alvi, in agreement with some of the accused persons, forged a number of documents on the 19th April in order to establish that no unauthorised material had been removed from the dump on the previous day. The accusation, as read out to the accused, did not distinctly state that the forgeries were committed subsequent to the removal. 7 he fact that after the entire evidence had been recorded it was held to be established that the forgeries were committed after the truck had been removed from the dump does not alter the position as the applicability of clause (d) of section 239 of the Cr. P. C, has to be determined by reference to fact mentioned in the accusation as read out to the accused persons. The accusation clearly stated that it was in order to facilitate B the commission of the removal of excess material or to destroy the evidence in support thereof and to cover up the track oil the offence that Alvi, with the active assistance of his co‑accused, committed or abetted the commission of several forgeries, in the records of his office relating to the issue of iron and steel pertaining to the permit Exh. 2. No objection was taken to the joint trial of offences of criminal breach of trust and forgeries. In fact, when the public prosecutor sought leave to withdraw a charge that related exclusively to Alvi, the defence attempted, unsuccessfully as it appears, to resist the application, on the ground that Alvi's separate trial would cause him a great deal of harassment.
The word "transaction" as used in section 239 of the Code cannot be regarded as synonymous with the word "offence". C The question whether several acts or events constitute one transaction is a question of fact which has to be determined by reference to the evidence and circumstances of each particular case. No test of universal application can be laid down in this respect. Sometimes it may happen that several acts committed on various occasion at different places and thus distinct in respect of time and location may form one transaction on account of continuity of design and purpose which actuated those acts. In other cases, it might be that various acts which are committed at the same place at almost the same time may form different transactions. It is the continuity of design and purpose which determines whether various acts or events, constitute one transaction. Assuming that the forgeries did take place the mere Assuming that facts that the excess material was removed from the dump on the evening of the 18th April and that several documents were forged on the morning of the 19th April do not show that the original conspiracy had exhausted itself and that a new conspiracy had come into being. That primary offence, that is, the removal of excess material from the dump, had not yet been successfully accomplished before the truck was captured. The forgeries, according to the prosecution, were resorted to by Alvi in order to show that the removal of the material from the dump by Ata Muhammad constituted a normal business transaction, and that no excess material bad in fact been removed. The purpose and the objective of the original conspiracy was therefore sought to be accomplished by resorting to forgeries. On the prosecution allegations the connection between the primary offence and the forgeries is so close and intimate as to render the carrying away of the excess material and the forging of the documents part and parcel of the same transaction. It is well‑settled that the point of time at which, for the purposes of applying the provisions of section 239 (d), Cr. P. C., it falls to be determined whether different offences charged were committed in the course of the same transaction, is the stage of the accusation, and not the stage of conclusion of the trial. The validity of joiner is to be judged in relation to the facts contained in the accusation, and not in relation to the facts eventually found. The learned Chief Justice has quoted extensively from the judgment of their Lordships of the Privy Council in the case of Choukhani v. The King‑Emperor (A I R 1939 P C 130) in this respect. It was alleged before the Special Judge when the particulars of the offences were read out that all the accused persons had entered into a conspiracy, an offence punishable under section 120‑B, P. P. C , and that in prosecution of the object of that conspiracy they committed offences which were punishable under sections 380, 409, 411, 468 478 and 218 of the Code. The existence of one conspiracy and one conspiracy only was alleged and it was stated that it was in pursuance of that conspiracy that various documents were forged in order to make it appear that no unauthorised material was carried away by Atta Muhammad. It is unnecessary to refer to a large number of authorities that were quoted at the Bar in support of their respective contentions by the counsel for the parties as they have been dealt with exhaustively in the judgment of the leaned Chief Justice. We would, therefore hold that there has been no misjoinder of charges in the present case.
The Advocate‑General of Pakistan contended that even if it be assumed that there had been a misjoinder of charges in this case that alone would not justify this Court in reversing the judgment of the High Court in this connection, he invited our attention to the following passage in the judgment of this Court in the case of Sarfraz AU Khan v. The Crown (P L D 1951 F C 41 at p.59).
"The rules of practice adopted by their Lordships of the Judicial Committee in granting or refusing special leave to appeal in criminal cases hat correctly been and should ordinarily be applied by this Court. This practice is; however, not in the words of Lord Thankerton; a dust iron one and this Court has and would have, in the absence of a statutory bar; full power to grant special leave to appeal or to hear appeals in suitable cases and pronounce such judgments as it de‑.ms to be just and proper. But it may be laid down for the sake of clarity that a mere technicality or even a disregard of forms of legal process would not usually be enough for our interference unless injustice to a party has thereby been occasioned."
In reply, it was urged by Mr. Brohi that the case of Subramania lyer (28 I A 257) lays down that if a positive provision of the Cr. P. C. for the trial of criminal cases is violated the whole trial stands vitiated and that all the proceedings must be quashed on account of misjoinder of charges. It was laid down in the case of Subramania lyer (supra) that provisions of section 234, Cr. P. C. ate mandatory and that a trial which contravenes these provisions is plainly prohibited and a conviction so obtained must De set aside. It was observed by their Lordships that a disobedi ence of an express provision as to the mode of trial cannot tie regarded as a mere irregularity. In the case of Subramania lyer (supra) the accused was tried on an indictment in which he was charged with no less than 41 acts, these acts extend ing over a period of two years. This was plainly in con travention of section 234 of the Cr. P. C. which provided that a person may be tried for as many as three offences of the same kind but not more than three and that such offences should have been committed within a period of 12 months. It appears that in that case the jury was completely bewildered by the multiplicity of charges and that the possibility of injustice result ing therefrom was present to the minds of their Lordships of the Judicial Committee. In the case of Abdul Rahman v. The Crown (54 I A 96) certain observations were made by their Lordships of the Privy Council in relation to the judgment in Subramania lyer case. The following passage from that judgment may be reproduced in extenso:-
"There have been a number of decisions in India upon these enabling or curing sections (sections 535 and 537 in the Codes of 1882 and 1898) but the only important one which came before this Board is Subramania lyer v. The King Emperor. There the trial of a man on charges of extortion in which forty‑one criminal acts extending over a period of two years were brought against him in contravention of a section of the Code which provides that a man can only be tried for three offences and those committed within a period of twelve months, was held bad, and the conviction was quashed, because the provisions of section 537 of the then Cr. P. C. did not cure it. The distinction between that case and the present is fairly obvious. The procedure adopted was one which the Code positively prohibited, and it was possible that it might have worked actual injustice to the accused."
It appears to us, therefore, that in the case of Subramania lyer (supra) the possibility of actual injustice having resulted on account of a violation of the provisions of the Cr. P. C. was not ruled out, and that it was a contravention of the positive provisions of the Code combined with the possibility of injustice that led to the quashing of the proceedings in Subramania lyer's case. it is unnecessary, however, to express any considered opinions on this point as we are clearly of the opinion that a joint trial for offences of criminal breach of trust and forgeries in the present case was permissible under clause (d) of section 239 of the Cr. P. C.
The next point taken up by Mr. Brohi was that as the appellant had been acquitted by the trial Court it was not competent to the Provincial Government of the Punjab to prefer an appeal against the acquittal under section 417 of the Code of Criminal Procedure. Section 9 of the Pakistan Criminal Law Amendment Act, 1948 lays down that an appeal from the judg ment of a Special Judge shall lie to the highest Court having appellate jurisdiction in the territorial limits in which the offence is tried by the Special Judge and the same Court shall also have powers of revision. It was urged that section 9 confers a right of appeal against a judgment by the Special Judge and also prescribe the Court which is competent to hear the appeal. It does not however, empower a Provincial Government to prefer an appeal. This argument appears to us to be devoid of all force. Subsection (2) of section 5 of the Cr. P. C. lays down that all offences under any law other than the P. P. C. shall be investigated inquired into, tried and otherwise dealt with according to the provisions of the Cr. P. C. but subject to any enactment for the time being in force regulating the manner or place of investigating, enquiring into, trying or otherwise dealing with such offences. It is clear, therefore, that the provisions of Chapter XXXI of the Cr. P. C. relating to appeals are fully applicable to the judgments delivered by the Special Judge under the provisions of the Pakistan Criminal Law Amendment Act. The provisions of Chapter XXXI authorise the Provincial Government to prefer an appeal against an order of acquittal. Sections 5 and 417 of the Cr. P. C. read with section 9 of the Criminal Law Amend ment Act, 1948, therefore, provided the machinery for the filing of the appeal by the Advocate‑General, Punjab, in the High Court under the orders of the Provincial Government. Section 404 of the Cr. P. C. lays down that no appeal shall lie from any, judgment or order of a "Criminal Court" except as provided by that Code or by any other law for the time being is force. The expression "Criminal Court" would, in our opinion, include a Court such as that of the Special Judge. This provision' can also be availed of by the Crown in support of the appeal preferred in the present case, and we accordingly find that the appeal was entirely competent.
Lengthy arguments were addressed to the Court regarding the merits, which we summarise below. Mr. Brohi contended that in regard to the transference of property on the 18th April, 1948 and the alleged forgeries, the view taken by the trial Judge and S. A. Rahman, J. was the only reasonable and probable inference from the facts. The learned Chief Justice's approach to these facts had been greatly affected by certain findings recorded by him with reference to incidents and matters not directly connected with the main events of the 18th & 19th April 1948, as well as by his finding that the permit Exh. P. 2 was a colourable document‑the expression used by the learned Chief Justice is "false and fictitious" created by Alvi to enable his brother to carry away about 100 maunds of material from the dump without any legal authority. The latter finding went clearly beyond the limits of the charge, which related only to the material carried in excess of that allowed by the permit Exh. P. 2; the charge also referred to a conspiracy to issue materials from the dump, but alleged that "many a pecuniary advantage or value" had previously been conferred upon Alvi's relations, by "issuing iron and steel‑in excess of the quantity charged for, or entered in the permits issued in that. behalf". All the permits in favour of the Standard Engineering Company were issued under the same power and the plain conclusion therefore was that the prosecution accepted the permits as valid. Particular reference was made to the following conclusions reached by the learned Chief Justice on matters which were not the subject of any specific charge :‑
(i) that at the material time iron was a "very rare commodity" in Pakistan ;
(ii) that, prior to the material date, on two occasions in early 1948, Alvi issued quantities of iron and steel totalling 122 tons and 5 tons respectively, to the same concern, in the same way ;
(iii) that on the second occasion, the name of the applicant was changed deliberately to "Sant Engineering Company" and on the third occasion, to "Syed J. A. Shah & Co.", both being fictitious names, in order to conceal the fact that the benefit was going to Alvi's brother's cancern ;
"(iv) that when on the 17th June. 1948 in the course of the investigation, an inventory of the material possessed by the Standard Engineering Works was prepared, it was found that there were about 55 maunds of two categories of iron and steel materials in excess of the stock declared when possession of the shop was taken in December, 1947, plus the quantities obtained from Government dumps under the two earlier permits ; the finding was recorded that "the only obvious source for this unaccounted for supply seems to be the Government dumps in Lahore of which Alvi was in charge."
It was contended that these findings were vitiated by being based on no evidence or inadequate evidence, that the learned Chief Justice's view regarding the legality of the earlier permits was erroneous. and that, in effect, he had found Alvi to be guilty of similar acts to those specifically charged or found without his being charged in respect of each earlier acts, or being asked to furnish an explanation for them, when he was questioned under section 342, Criminal Procedure Code, at the 99pplusion of the prosecution evidence. These findings, which were in themselves vitiated by lack of evidence, and absence of the necessary notice to the accused, had given rise to a strong prejudice, adverse to the appellant, in the mind of the learned Chief Justice, in his approach to the evidence relating to the specific charges.
The reply of the Advocate‑General of Pakistan was that, though prima facie, powers under the Iron and Steel Order of 1948 had been exercised, it was nevertheless unnecessary, for him to establish that the permit was "false and fictitious" qua this Order. Accepting that the permit Exh. 2 was valid, there was yet sufficient evidence to show that Alvi deliberately and knowingly allowed material in excess of that specified in the permit, to be removed from the Government dump under his control, by his brother. The findings of the High Court regarding incidents other than those of the 18th and 19th April 1948 were supported on the ground that, by the charge itself, Alvi had been sufficiently warned that he was accused of having dishonestly allowed his brother to remove materials from the dump without payment on previous occasions. The mere failure to put these matters, which constituted the background of the prosecution case, to Alvi, in the course of the trial, did not vitiate the conclusions reached by the learned Chief Justice.
As we are in agreement with the argument advanced by the learned Advocate‑General of Pakistan regarding the proper infer ence to be drawn from the proved facts relating to the transfer of material from the dump on the 18th April 1948, we propose to deal with the wider argument presented by Mr. 13rohi, as briefly as possible, consistently with the importance of the questions involved.
It must, in our opinion, be conceded that the findings relating to "background" matters, recorded by the learned Chief Justice suffer from apparent infirmities. On the point of absence or inadequacy of evidence to support them we observe:
(i) that there is no evidence to show that iron was "a very rare commodity" in Pakistan in 1948 and the matter did not lie properly, within the purview of "Judicial notice";
(ii) that proof has been adduced regarding only one of the two earlier permits, namely Exh. 36 (duplicate is Exh. 27) for 5 tons of galvanised sheets, and that also consists of uncorroborated evidence of an alleged accomplice ; the other Exh. 28 (a duplicate) remains altogether unproved ; and
(ii) that the only proof of an excess of 55 maunds of iron and steel in the possession of the Standard Engineering Company is a mere paper calculation by a witness Ghulam Qadir, who inventoried the stocks on the 17th June, 1948, but had to rely on paper entries of doubtful accuracy for the other quantities which were necessary for striking a balance.
Again, while failure to question the accused persons on every fact which is adduced in building up a prosecution case, does not necessarily vitiate the conclusions reached by the Court, it is certainly not open to a Court to reach a finding adverse to the accused, on some matter forming an ingredient of the case (though not of any specific charge) and then to proceed upon such sending to reach an inference of guilt in regard to so important an element of a charge as knowledge or intention (in a case like the present) when no opportunity has been allowed to the accuse to explain such a matter appearing to the Court to stand against him. The trial Court presumably did not regard the issue of the earlier permits as colourable and fraudulent acts, or that the alleged excess in the stock held by the Standard Engineering Company bore any relation to dishonest removals from the Government dumps at Lahore. This explains why no question on these points was put to Alvi at the trial and it seems to us that in the circumstances, if the appellate Court took a different view, it should have, at the least, called upon the accused for an explanation, before recording the adverse findings in question. This might, in the result, have entailed a retrial on the limited question involved, but in view of the conclusions which we have reached on the whole case, after excluding this infirmity, we do not find it necessary to give further consideration to that question.
It is clear from the judgment of the learned Chief Justice that certain matters had impressed him very strongly, as furnishing proof of a guilty intention in relation to the transaction of the 18th April 1948. We find ourselves in agreement with his view that three separate issues of large quantities or valuable material, made within a period of three months, to a firm in which Alvi's brother was the principal partner constitute strong proof of partiality, but with due respect, it does not necessarily follow that Alvi was making free gifts of material from the dump to his brother at the same time. Again, with respect, we are unable to agree with the learned Chief Justice that the permit Exh. 2 was illegally issued. The prosecution need not have confined the allegations of conspiracy and breach of trust to the quantities in excess of those shown in the permits, if this conclusion were supportable in law. The fact appears clearly that the Iron and Steel Order, 1948 did not govern Alvi's separate powers as a Rehabilitation Official, in relation to abandoned material at the dump, and although forms which were originally drawn up and issued under a previous Control Order for Iron and Steel in the year 1948 were used, for the purpose of issues from the dump, no inference of limitation of powers as a Rehabilitation Official can be drawn from this circumstance.
We consider that the learned Chief Justice is entirely right in thinking that the issue of the second and third permits in different names was a deliberate "camouflage", but this does not, in our opinion, suffice to round the further inference which he has express ed in the following words :‑
Ata Muhammad could not have been entitled to the material that he was permitted to acquire or also there was no reason for Alvi for not making a straight grant to him, or for attempting to camouflage the identity of the grantee by describ ing him under a false business name."
And, in another place, the learned Chief Justice has observed that Alvi was at pains to alter the name of the grantee in the permit Exh. 2 because "that would have shown that he bad given more material to his brother than he was entitled to claim and Alvi to give."
With due respect, it seems to us that these references to Ata Muhammad being entitled to claim any material from the dump, and to Alvi being entitled to give such material are misconceived. The record provides no indication of any limitation upon Alvi's powers of making such grants, in respect of either persons or quantities, in the capacity of a Rehabilitation official, under the West Punjab Economic Rehabilitation Ordinance, 1947, .which was then, in force. Ata Muhammad being a refugee to whom an abandoned engineering works had been allotted on condition of his re‑starting the business, was a suitable recipient of abandoned material appropriate to such business, and necessary for its combined working. In the absence of any right to allotment of such material, the question of his being entitled to receive it would not arise. Therefore it seems to us that a sufficient explanation for the "camouflage" is that Alvi was anxious that his books should not show, on their face, that he had been favouring his brother (or a particular firm) so markedly.
For the argument that prejudice had resulted to the accused Alvi, in consequence of certain of these findings, counsel for the appellant referred to the following passage in the judgment of the learded Chief Justice:‑
"I have already remarked that Alvi did not permit any rule or scruple to come in between his duty and the benefit of his brother or himself. If he could have issued a fictitious permit to enable his brother to acquire controlled goods, he would hardly hesitate to permit him to remove such goods as he could without paying for them. It would be a curious mentality indeed whose owner in the discharge of his public functions should be filling to be palpably dishonest in letting men in whom he is interested have what they are not entitled to, and in doing so feel no hesitation in making false documents, but that when it came to help them by swindling Government, his conscience should come in between his duty to Government and his desire to benefit those men. I should not be understood as saying that a man who has committed one offence should be held to be likely to have committed another offence, but what I mean is that when a man's mind becomes corrupt, it ceases when engaged in a corrupt activity to bother about fine shades of distinction in ethical aspect of the means, and that in this particular case, the transaction from its very inception being dishonest, the inference of the dishonesty charged becomes more readily acceptable from the facts proved and involves less risk."
I have therefore no doubt whatever that the unauthorised material was loaded in the truck with the knowledge of Alvi for benefit of his brother."
The learned Chief Justice has mentioned, in support of the conclusion reached above, a number or other factual grounds, arising directly from the incidents of the 18th April 1948, which, in our opinion, are in themselves amply sufficient to sustain it. In the passage cited above, certain of the premises viz., that a "fictitious permit" was issued, and that it was a case of "letting men have what they are not entitled to" are, in the view which we have taken, not well‑founded, and this may be thought to affect the further inference that another kind of dishonesty was also practised at the same time, namely the "swindling" of Government as well. Earlier in his judgment, the learned Chief Justice had recorded a finding, which has been reproduced already, indicating that, in his view, quantities of material in excess of the permitted amounts had been removed by Ata Muhammad under colour of the two earlier permits also. Both these are findings of other criminal acts which were not charged, and their use for the purpose of reaching a conclusion in regard to the commission of the offence which was charged raises a question of grave importance.
That such a situation should have arisen is, in part, due to the form of the charge, in which reference was made to a practice set up by Alvi under which advantages had been dishonestly given and received, in pursuance of a conspiracy.
It seems probable that this was done in order to meet the possible defence of absence of knowledge or intention, in relation to the excess which was alleged to have been transferred on the 18th April 1948, but it is to be noted that no evidence of any agreement between any two of the persons involved in the case was led. The sole evidence upon which the allegation of conspiracy could be founded consisted of the two earlier permits. and the calculation by Ghulam Qadir regarding an alleged excess of stocks in the possession of the Standard Engineer ing Company. In the result no aiding oz conspiracy was recorded.
We find it impossible to support the use made in the judgment of the learned Chief Justice, of the findings relating to previous criminal acts not charged against the accused, for holding him guilty of the offence charged. In this connection, we refer to the observations of the Privy Council in the case of Hakim v. Attorney General for New South Wales (L R (1894) A C 57), which are directly relevant to this case:‑
"It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried."
"the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime were designed accidental or to rebut a defence which would otherwise be open to the accused."
The question of accident does not arise, by way a defence or otherwise. It becomes therefore necessary to consider whether the evidence on the record regarding the issue of the two earlier permits and the unexplained stocks held by the Standard Engineering Company was relevant to any issue raised, or which could have been raised before the Court. In the a sense of relevancy, it would not be open to the prosecution to lend such evidence, not could the Court employ the evidence which it found on the record, for the purpose appearing in the first Of the two extracts from the judgment of Lord Herschell quoted above. We consider that the previous permits were only intended by the prosecution to furnish proof of partiality by Alvi, and we have already hold that the issue of the permit Exh. 2 was not, in itself, a criminal act. In any case, this act seems wholly irrelevant for determining whether the offence of breach of trust was committed. The evidence relating to the unexplained stocks seems to have been intended by the prosecution to show the existence of a conspiracy to confer dishonest advantages, but the attempt never progressed beyond the production of Ghulam Qadir's paper calculations, which were, in themselves, plainly insufficient to sustain any inference as the original of any of the goods found at the premises of the Company. Here again, the question of relevancy has to be examined in relation to a finding recorded by the learned Chief Justice that the only obvious source for this unaccounted for supply seems to be the Government dumps in Lahore of which Alvi was in charge. There seems no doubt that this conclusion has materially influenced the larger finding by the learned Chief Justice that one thing is obvious and that is that Alvi threw all rules and scruples to the wind, in his anxiety to supply the controlled material to his brother. The effect of this conclusion on the ultimate finding of dishonesty in regard to the third transaction appears clearly from the extract already quoted from the judgment of the learned Chief Justice.
Ignoring for the moment the complete inadequacy of evidence on the record to show 'unaccounted for stock', and the difficulty of describing them as such without allowing the accused an opportunity to explain their existence, it seems to us that if the circumstance is to be regarded as at all relevant to the question of knowledge or intention on the part of Alvi, in respect of the transaction which was the subject of a specific charge, one matter which it would be necessary to show is that he was aware that such excesses were being built up by the Company. For there is nothing on the record to exclude the possibility of material having been removed from the Government dump previously without his knowledge. There is no proof whatsoever that Alvi had any personal knowledge regarding the functioning of the Company, or of the stocks held by it. The position is the same whether the point of knowledge or intention be raised as an element of the specific charge of breach of trust, or by way of defence to such a charge. It follows that the evidence on the point, as well as the conclusion founded thereon should be excluded from consideration, in determining the guilt of the accused Alvi on the charges preferred. The discussion on this part of the case may be appropriately ended with a reference to a recent decision of the Privy Council, in the case of Noor Muhammad (A I R 1949 P C 161), where Lord Simonds observed as under
"It may be assumed that it is still true to say, as Lord Sumner said thirty years ago‑
'No one doubt] that it does not tend to prove a man guilty of a particular crime to show that he is the kind of man who would commit a crime, or that he is generally disposed to crime, and even to a particular crime' ".
We express our complete concurrence with this observation. The principle which it embodies, as further, amplified in Makin's case (L R (1895) A C 57) cited above, is one which should be jealously guarded by the Courts in Pakistan.
Nevertheless; as we have already indicated above, there is in our opinion, ample evidence of events which occurred on the 18th April 1948 which goes to sustain the view of the learned Chief Justice that AM is fixed with knowledge that, under the permit Exh. 2, his brother Ata Muhammad was taking away from the dump, considerable quantities of articles not covered by the permit, of every appreciable weight. Nor only is this conclusion sustained by a number of cogent circumstances to which the learned Chief Justice has referred, and which are quite unconnected with the matters discussed above, which we have found to be extraneous and irrelevant to the matters for decision, but we agree with the view of A. Muhammad Jan, J. that it may also be founded on certain conclusions reached in the dissenting judgment of S. A. Rahman, J.
Precise knowledge of what could be taken under the permit must be attributed to Alvi, who had himself ordered the permit to issue, and had signed it. As a special case, delivery of the goods from the dump was ordered by him to take place on a Sunday, and all the Judges who have considered the case previously are agreed that Alvi's denial of his presence at the dump that day is false. The learned Chief Justice and A. Muhammad Jan, J. have held that he watched the loading of the truck for several hours; the finding of the Chief Justice is that Alvi remained at the dump until the loading was completed, and saw the placing of the last item on the truck viz., ten sheets of corrugated iron. These findings are in better accord with the evidence than that of the trial Judge and S. A. Rahman, J. which is that Alvi was present only for short intervals, anti could not be supposed to have supervised the loading in detail. Detailed checking was, in our opinion, entirely unnecessary to prove knowledge in the sense material for this case. It is sufficient that all these learned Judges are agreed that there was much more weight of iron and many more things, of diverse categories, on the truck than appear in the permit. The excess of weight was admitted in the trial Court to be of the order of about 22 maunds, and it was sought to explain away most of this by alleging that about nine maunds were represented by articles separately acquired mentioned in a number of cash memos which were put in, but not proved, by the defence, and about 7 cwt. equivalent to about 10 maunds was the weight of articles which Ata Muhammad was carrying from the dump on behalf of one Muhammad Shafi Bhatti. Each of the Judges in the Courts below has, after due consideration of the evidence held that the defence had failed to establish this explanation. There is neither suggestion nor proof that anything was placed on the truck otherwise than as alleged by the prosecution, at the dump, or as alleged by the defence. The defence allegation has been held to be false. Now, the additional articles, in excess of the raw materials, mentioned in the permit fall under 17 different categories such as galvanised iron wire, screw‑drivers, bench vices, etc. which are all unmistakably different from those enumerated in the permit. The latter, in the language of the learned Chief Justice, consisted of 'no more than rods, squares, flats, axles and sheets'. The evidence which has been accepted by both the Courts below clearly shows that when the contents of the truck were inventoried after its capture, 5 sheets of mild steel, and 34 sheets of galvanised iron were found in it. It has been found by each of the Judges in the High Court that after the truck moved off from the dump, ten sheets of galvanised iron were removed from it, under the directions of Alvi, after Muhammad Shafi, the Rehabilitation Official, had interfered. Therefore, it becomes necessary to believe that when the truck moved off from the dump, it was carrying no less than 49 sheets of both kinds. The defence have led evidence viz. the statement of the witness Jalal‑ud‑Din, who prepared the final invoice on the basis of which the permit was drawn up, that he had provided for only 32 galvanised iron sheets to be given in addition to the 5 mild steel sheets. This gives a total of 37 sheets i.e., 12 sheets less than were loaded on to the truck at the dump.
There can be no question but that Alvi, who watched the loading of the truck to the end, was aware that it was carrying all these goods in a excess of those mentioned in the permit. There need be no difficulty in believing that the additional goods, which included certain canvas belts, presumably of the kind which are used for putting machines in motion from a main rotating cylinder were likely objects to be found in a repository of miscellaneous articles collected from abandoned shops or factories dealing with, or using articles falling within the term 'hardware', such as the dump in question was supposed to be.
These conclusions are sufficient to sustain a conviction for criminal breach of trust, in respect of the goods in excess of the materials enumerated in the permit, by disposal in a manner contravening Alvi's duty in respect thereof. i.e., by allowing them to be removed without permit or payment from the dump of which he was in charge. There is, however, additional evidence to show that when Muhammad Shafi, a Rehabilitation official, intercepted the truck at the Nishat Cinema where it had stopped to pick up Ata Muhammad, who was at Alvi's house a short distance from the main road, and questioned the correctness of the contents in relation to the permit, Alvi agreed that there was a possibility of some excess, which he put down to "substitution of categorries" and in his presence the ten sheets of corrugated iron, which had been placed on the top, were removed and returned to the dump. The possibility of variation by substitution is minimised by the evidence of the defence witness Jalal‑ud‑Din, who stated that he drew up the invoice on which the permit was based, and which he submitted on the 17th April 1948, the very day on which the permit was issued, after making measurements with a foot‑rule, and consulting "rata's reference book" for determining the weights. As the delivery was made the following day, a close correspondence between the materials specified in the invoice Exh. 19 and the goods actually ear‑marked for delivery, and therefore presumably delivered, was to be expected. Consciousness of an excess is clearly exhibited by the removal of the ten sheets, and act which however still left two galvanised iron sheets on the truck in excess of the number which Alvi resumably knew to have been permitted. All the Judges who heard the case in the High Court were agreed that this unloading took place, and there seems no doubt whatsoever that even at this stage, Alvi was fully capable of preventing the unauthorised transfer of property which had been entrusted to him, if he had been so minded, i e., that he retained sufficient dominion over the property to save it from wrongful disposal. A passage in the judgment of S. A. Rahman, J. who thought Alvi had unduly favoured his brother in the excess of his official functions, but that the other circumstances raised no more than a suspicion of guilt against him, which could not take the place of proof, indicates that, on this point, the learned .fudge thought materially to the same effect as above. The passage reads as follows :‑
"The conduct of Alvi subsequent to the removal of the truck from the dump can be explained on a hypothesis, which would be quite consistent with his innocence. * * * Alvi may have realised that his brother might get into trouble and therefore in all probability tried to help him out of the possible impasse. It is quite likely that Ata Muhammad, who knew that there was an excess in the truck, conveyed the news of the interception to Alvi, and told him the truth. After that the anxiety of AM becomes wholly understandable. This would explain why he considered it 'a matter of prestige to have the truck brought to his own officer as he thought it might create a scandal if it was broadcast that his own brother had been caught removing excess material from the dump under his personal charge. It does not necessarily follow that this conduct betrayed a guilty mind on the part of Alvi. It may be that if the ten sheets were removed from the truck, as the prosecution alleged, after the interruption, this was done under Alvi's express direction, when his brother had brought to his notice that some excess material was being carried. His brother may not have even revealed the whole truth to him. He may have given out only that the ten sheets were extra."
With due respect to the learned Judge, the assumptions which he has made, and which are not inconsistent with the evidence, serve only to exclude every hypothesis of innocence. Once he had become aware that goods were being removed in the truck illegally, Alvi's anxiety to save his brother, which the learned Judge regards as "understandable", can only have been entertained to the entire exclusion of all anxiety not to betray the trust reposed in him as a public servant. If he could direct the removal often iron sheets (weighing about four maunds), he could, and should if he had been honest, have taken steps to ascertain the nature and quantity of the excess materials, and had the whole lot‑whose weight is variously ascertained as between 25 and 39 maunds taken off. Having but recently had access to the official papers, and the original permit being in his brother's possession on the spot the presence of unauthorised articles should at once have become apparent to him. Therefore, irrespective of the opportunity for knowledge which he had enjoyed at the dump, the interception of the truck furnished a further such opportunity, and consequently there is a basis for finding a wrongful disposal, in violation of trust, at the Nishat Cinema as well. All these damaging circumstances arise directly from the fact of Alvi's presence on these two occasions, and seems to explain why, in the face of the evidence, Alvi felt it necessary to deny his presence at these places altogether.
Before leaving this part of the case, we may mention that one of the contentions raised on behalf of the appellant was that the existence of any excess of materials in the truck had not been proved by any reliable evidence. We have not thought it necessary to re‑examine the evidence on this point, as each of the four learned Judges who have previously dealt with the case had found an appreciable quantity of excess, the lowest figure being 22 maunds which was admitted by the defence in the trial Court to be the excess when the truck left the dump. In the result, we uphold the conviction of Alvi under section 409, P. P. C. The sentence awarded does not call for any comment on our part.
The conviction recorded for forgery on two counts cannot, in our opinion, be sustained. An unusual feature of this accusation is that, as will appear from the charge reproduced earlier in the judgment, no documents were specified at the outset of the case as having been forged, and at no tine during the trial was any attempt made at specification of documents for this purpose. The trial Judge in his judgment mentioned six documents "in respect of which the forgeries are said to have been committed", there included Exh. E., a document produced in the course of the trial by the defence. No clearer indication could be provided that the outlook of all concerned, in relation to the allegations of forgery which could be properly proceeded with in the case, suffered from a marked degree of confusion. The result was to be expected as a necessary consequence of the initial failure to formulate the accusation with the degree of accuracy which the law requires. Without such definition, there is no trial in a legal sense, but a mere enquiry in which each party has liberty to prove or disprove facts, which in its own judgment, may help to establish a case, or, as the case may be, to rebut a case, falling within a particular category, e.g., in this case forgery.
As it happened, the trial Judge found the case unproved in respect of each of the six documents, for lack of independent corroboration of the direct evidence to prove each forgery, which the Judge, tip>1pht was purely accomplice evidence. In the High Court, flit learned Chief Justice and A. Muhammad Jan. J. considered that such corroboration was available in respect of two documents viz., Exh. 17, a receipt purporting to acknowledge a payment of Rs 1,470 by Syed Jamaat Ali Shah, 'of Standard Engineering Company of Jaranwala' and dated 17th April 1948. and Exh. 18 a register in which this receipt was entered, ostensibly on the same date and which contains only two other entries besides, dated the 7th and 13th April 1948 respectively. These learned Judges found that each of these documents was fabricated on the 19th April 1948, and had been falsely ante‑dated for the purposes of defence'. S. A. Rahman, J. thought that in each case the evidence was exclusively that of accomplices and was not such as could necessarily lead to an inference of guilt'.
The direct evidence of the making of the document Exh. 17 was that of two clerks Miraj‑ud‑Din and Nawab Din Nizami and the latter was the sole witness to the preparation of the register Exh. 18. We entirely agree with the following observation of the learned Chief Justice :‑
"Keeping in view the fact that both these witnesses are accomplices and were not willing in the earlier stages of the investigation to admit the forgery, it has to be seen whether their evidence on this part of the case receives confirmation from other evidence."
The rule of prudence requiring that tainted evidence such as that of an accomplice should be supported by independent evidence to implicate each accused person who n it affects, before it is acted upon, was last recommended for observance by the Courts in the case of Bhuboni Sahu (A I R 1949 P C 251) by the Judicial Committee, a case which i bears resemblance to the present case in other respects also. It is necessary to see whether the corroboration found by the High Court in respect of each of these documents satisfies the legal requirements.
The corroboration of the direct evidence regarding the receipt Exh. 17 is found by the learned Chief Justice in a circumstance which may be stated in his own words :‑
"The position can only be explained on the hypothesis that Jamaat Ali Shah had taken no interest whatsoever in the transac tion, beyond perhaps lending his signature on some application to Ata Muhammad and therefore had no reason to be present in Lahore on 17th or 18th April. Consequently, the fact that he was admittedly not present on 18th April when the goods were delivered to Ata Muhammad is good corroboration of the evidence of Miraj‑ud‑Din and Nizami that Jamaat Ali Shah was not seen by them in the office of the Steel Licensing Officer on 17th April and that Alvi himself obtained from Nizami on 18th April a receipt in the name of Jamaat Ali Shah directing him to ante‑date it to 17th April."
Bearing in mind that the variation from truth on which the crime is founded is held to be confined to the date, it is difficult to see how the question is affected by the presence or absence of Jamaat Ali Shah on any particular day. It was said by Tufail Muhammad accused that Jamaat Ali Shah was in Lahore on the 17th April and left the same day for Jaranwala, a place appearing from the document Exh. 14 to be but 64 miles from Lahore on a motorable road. The conclusion of the learned Chief Justice is that Jamaat Ali Shah's absence from Lahore on 18th April is almost conclusive proof of his being absent from Lahore on 17th April. Clearly, the inference cannot rest on physical impos sibility. It appears to be based on considerations of purpose or interest, inducing certain conduct. The only such purpose or interest likely to influence Jamaat Ali Shah's movements, which appears on the record, is that arising out of the tran saction at the dump, but as the above quoted passage itself shows, the learned Chief Justice thought that Jamaat Ali Shah's interest in this transaction was merely nominal, a view which was stated a little earlier in the same judgment in very clear terms as follows :‑
"Jamaat Ali Shah is merely an employee of Ata Muhammad, who had used his name, and perhaps his signature, to obtain the material for bim5elf. Jamaat Ali Shah himself had no interest in the transaction, and he was (so) unconcerned about is that he did not care to be present on 18th when Ata Muhammad took delivery."
As to this, it seems plain enough that while a compelling interest may operate to keep a person in a particular place at a particular time, lack of such interest will not necessarily keep or tend to keep him away from such place at the material time. But, on the above findings, it also appears unreasonable to expect that the money would be paid by Jamaat Ali Shah himself, and that is indeed the prosecution allegation, for Miraj‑ud Din says the money was paid by Alvi himself, and as he was in Lahore throughout, the question of the date of payment still remains open and unaffected by the movements of Jamaat Ali Shah. It must, therefore, be held that corroboration of Miraj‑ud‑Din's evidence is wholly lacking, and the conclusion in respect of the receipt Exh. 17 cannot stand for lack of evidence.
As regards the register Exh. 18, the direct evidence was that of Nawab Din Nizami, and the learned Chief Justice thought that conclusive corroboration of his evidence is to be found in the document itself'. The features of corroboration are described in the following words:
"The document contains only three entries on one page, and they all seem to have been made by each signatory by the same pen and in the same ink. The descriptive entries alleged to have been made by Akhtar Ali (an accused person) also are in one ink and by one pen. The forgery is so clumsy that it can be discovered at a glance."
The learned Chief Justice was unable to accept it as an innocuous coincidence that Alvi should have thought of bringing this register in existence a few weeks before the date of the tran saction charged:
The circumstances relied upon by the learned Chief Justice do not have the effect of implicating the particular accused person, viz. Alvi, nor can this necessity be regarded as being supplied by the consideration which appealed to A. Muhammad Jan, J. viz. that 'no one else had the motive for fabrication of these documents'. On the defence allegations there was no necessity for any fabrication. It is to be noted that A. Muhammad Jan, J., did not rely on the appearance of the register as in itself supplying evidence of corroboration, and the third learned Judge. S. A. Rahman, J., had no comment to offer on the point, but was of the opinion that 'it would be risky to base an argument on the fact that only, three entries exist in the Cash Register Exh. 18'. The trial .Judge too was apparently not impressed by the appearance of the register sufficiently to found any conclusion or comment thereon. We do not doubt that in certain cases, the very document which is alleged to be forged may provide intrinsic evidence to support the allegation, sufficient to corroborate, if necessary, the direct evidence on the point that a forgery has been committed but where the features relied upon are physical characteristics which are susceptible of examination by scientific methods, with a view to identification, or as the case may be, differen tiation, it is advisable that such aids should be called in for the resolution or doubts, which in the absence of reliable direct evidence must necessarily to such features, regarded as evidence. It can only be in very rare case that more visual inspection with the naked eye, unaided by scientific training or methods, can afford the necessary degree of satisfaction, and is this case, it falls to be observed that three of the four learned Judges who saw the register have not thought fit to attach any value to its appearance in forming their opinions. Therefore, with due respect to the view of the learned Chief Justice, we find it impossible to regard the opinion formed by him, by simple inspection of the register as constituting necessary degree of corroboration in the circumstances of this case.
We accordingly dismiss the appeal against the conviction under section 409, P. P. C., and the sentence awarded there under, but for the reasons given above, we allow the appeal against the convictions under section 465/109, P. P. C., and set aside these convictions and the sentences awarded thereunder.
A. H. Appeal allowed to part.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer