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Criminal Appeal No. 3 of 1954 decided on 30th November, 1954 against the order of the Magistrate First Class, Quaetta dated the 19th October, 1953.

S. 417-Appeal against acquittal by Crown-Court will interfere only when order of acquittal is manifestly perverse.

Unless the Court is fully satisfied that the order of the lower Court directing the acquittal of the accused is mani festly perverse, the appellate Court would not set it aside.

S. 123-Privilege claimed by Government in respect of documents relevant to case-Head of Department must give reasons for claiming privilege-Court must decide whether privilege can be allowed or not.

S. 123-Documents relating to Departmental proceedings against clerk-No privilege can be claimed by Government.

-Documents relating to departmental proceedings against clerk withheld by Government without assigning reasons-Adverse inference may be drawn against prosecution.

Muhammad Ashraf, for the Crown.

Muhammad Muqim, for Respondent.

-An appeal has been lodged by the Crown under the provisions of section 417 of the Criminal P. C. against an order dated 23rd October, 1953, passed by the Treasury Officer and Magistrate First Class, Quaetta, acquitting the respondent Sultan Ahmed who was charged for having committed an offence falling under the provisions of section 409, P. P. C.

In accordance with the invariable principle followed by this Court in dealing with appeals against acquittal, I once more reiterate that unless I am fully satisfied that the order of the lower Court directing the acquittal of the respondent is manifestly perverse, it would not be the practice of this Court to set aside an acquittal order and substitute an order of conviction. In the light of this principle, I shall dispose of the appeal now before me.

The facts of the case, as alleged by the prosecution, appear to indicate that the respondent, who was a clerk in the office of the D. I. G., Frontier Corps, Quaetta, proceeded on leave on 12th August, 1951 without permission in writing, Before he left on leave, he handed over a sum of Rs. 64 with various registers to another clerk Allah Dad in the same office. Next day the clerk Allah Dad handed over the sum of Rs. 64 along with a cash book and papers of account and certain other papers to the Superintendent of the office.

In due course the respondent returned from leave and arrived in Quaetta on the 22nd August, 1951 and attended office on the same day. The clerk Allah Dad then checked the accounts and registers of the respondent and submitted a note through the Superintendent to Major Hamadani, as a result of which a charge-sheet was given to the respondent. In this charge-sheet ' the respondent was charged with two offences, namely that he proceeded on leave without permis sion and that he had misappropriated the sum of Rs 1.754-10-6 out of different funds which had been in his custody. As a result of the inquiry held, the D. I. G. by an order dated 30th August, 1951 directed that the period of absence would be considered as leave without pay and that the respondent should make good the amount of Rs. 1,454-10-6 which he had promised before the D. I. G. to pay. After passing this last order, the D. I. G. lodged a report with the Police dated 1st November, 1951 that is after the lapse of over two months from the date of his order passed as a result of the Depart mental inquiry. This report has been exhibited as P./C.

The basis of this report is to the effect that when the Superintendent of the D. I, G's. Office informed Major Hamadani that the respondent had proceeded on leave without permission and had to account for a large sum of money, Major Hamadani directed the Superintendent to report the matter to the Police, though the latter, who has also been examined as a witness, came to the conclusion that as the respondent was a respectable person he could see no point in making a report to the Police until after his return. Subsequently Departmental proceedings were taken and as apparently no decisive conclusions could he reached, the matter was then reported to the Police, as a result of which the respondent was in due course challaned to stand his trial for having committed an offence falling under the provisions of section 409, P. P. C.

In considering the case generally for the prosecution, I am concerned mainly with the fact that the prosecution evidence indicates the chaotic state in which the accounts of this office had been kept. It is in evidence by Major Hamadani that the respondent himself was not officially appointed and designated as Accountant and there is no evidence to show that he was responsible officially for receiving any monies in this office. On the contrary, the evidence of Major Hamadani indicates that it was the Super intendent who was entirely responsible for the accounts of the office. However, that may be, there is direct evidence to indicate that the respondent did in fact receive certain sums of money, for which he did not account. On the other hand, there is the evidence of various officials of the D. I. G's. office to the effect that the respondent had made payment of various sums on the oral instructions of the Superintendent. This evidence therefore shows that although he may have received Government monies-though not officially responsible for so doing he equally was obliged to pay out certain sums on the oral instructions of his immediate superior, namely the office Superintendent.

As a result of the Departmental proceedings, it appears that the D. I. G., in order to settle the matter finally, agreed to the suggestion made by the respondent that the Superintendent should take a solemn oath on the Holy Quran to the effect that he had not received this money from the respondent, The record of this case discloses that throughout the proceedings, the respondent alleged that he had paid over all monies, which he had received, to the Superintendent. The respondent further promised that in the event of the Superintendent stating on oath that he had not received the money, he would make good the deficiency. In the presence of the D. I. G. the Superintendent took a solemn oath to the effect that he had not received this money, with the result that the respondent kept to his promise and refunded a sum of Rs. 300 out of the total alleged to be owing by him. Subsequently he paid further sums amounting to Rs. 557-1-6. He ceased to make good his promise only when the case was placed in the hands of the police; and there must be the irresistible presumption that he did so as he felt that this action was contrary to the terms under which he had given the promise to make good the deficiency.

In studying the judgment of the lower Court, I have no reason to disagree with the views expressed therein. There is more than a considerable element of doubt about the guilt of the respondent in this case. It appears that the entire accounts of this particular office were in a chaotic state and that monies were being received and paid out without any proper accounting procedure and apparently upon oral instructions of the Superintendent in charge of the office. Public accounts were also apparently confused with other private advances made, either legally or illegally, and when it came to light that there was a shortage in accounts the unfortunate respondent was made the scape-goat. In so far as the possibility of his guilt is concerned, I must also take into account his own actions in this case. The evidence discloses that, whether with or without permission, he pro ceeded on ten days leave; but before doing so he handed over a certain sum of money and all the registers and documents which, from the prosecution point of view, would have inculpated him. If his intentions were criminal, I cannot for a moment believe that he would have placed in the hands of those responsible evidence which might have been sufficient to bring about his conviction. Moreover, on his return from leave, although after the oath had been taken by the Superin tendent and the respondent made good his promise, he still demanded that a Departmental inquiry should be held. If he had guilty knowledge he would, without a shadow of doubt, have let the matter drop and would willingly have paid up the monies which he had misappropriated in order to avoid the more serious consequences which might follow as a result of a Departmental inquiry or any other action being taken against him.

There is another important aspect of this case which, in my view, goes most strongly in favour of the respondent. The evidence has disclosed that a Departmental inquiry was held. The records of this inquiry together with other papers which might have been able to assist the Court in its functions were not permitted to be produced in evidence, the D. I. G. himself by a note claiming privilege under section 123 of the Evidence Act. I am constrained to observe that the Court in receiving this so-called written "order" passed no orders upon it. At the same time, where documents which may' be relevant to the case before it are sought to be produced in evidence and where privilege is claimed, it must be the duty of the Court to decide whether such privilege should be allowed. The essence of section 123 of the Evidence Act is that the officer as Head of the Department, concerned may claim privilege with regard to the giving of evidence derived from unpublished official records relating to the affairs of State, the intention being that public disclosure in a Court of law of such papers may be prejudicial to the State if .the papers concerned were of a secret or confidential nature.

It has been held on frequent occasions that it is not sufficient for the Head of the Department concerned merely to claim privilege but that it is incumbent upon him to give reasons when claiming such privilege, while it will be for the Court to decide whether such privilege should be allowed.

It is of course a matter of extreme difficulty for a Court to know exactly how to act when such a privilege is claimed, as it would be the Head of Department alone who could state whether the documents in question relate to the affairs of State. A Court has no authority to examine such documents but might, by other means be assisted in arriving at its decision to allow or not to allow privilege by asking for the production of further evidence or by the examination of the Head of Department concerned as a witness as to the reasons why such privilege is claimed. One of the leading cases on this point is known as Robinson case where it was held that some indication should be given to tile Court as to why privilege is claimed ; what injury to the public is apprehended, or what affairs of State are involved in the matter. Without such indication, the Court may draw an adverse inference from the non-production of the document concerned.

In my view, it must be a matter of doubt whether the privilege contemplated by section 123, Evidence Act can bed claimed with regard to documents relating to Departmental proceedings against a clerk. The words "affairs of State" presuppose that these relate to highly secret or confidential matters, the disclosure of which might embarass or harm the interests of the State: These words cannot contemplate g allowing privilege to be claimed where departmental pro ceedings have been taken against a clerical subordinate and in which the production in evidence of the documents concerned might have been of very material assistance to the Court in arriving at a correct decision over the matter in issue before it.

In this particular case, I observe that there is directly conflicting evidence upon the findings of the Departmental inquiry as given by the two most senior officers in this office: On the one hand the D. I. G. categorically states that the result of the inquiry did not go in favour of the respon dent ; while on the other hand Major Hamadani states exactly the opposite, namely that the result of the inquiry was in favour of the respondent. Had these important documents been produced it would have been simple for the Court to gauge its own opinion upon such vitally important question.

In all the circumstances of the case, there is more than a serious element of doubt with regard to the authenticity of the prosecution evidence connecting the respondent with the offence of criminal misappropriation. Secondly, the entire actions of the respondent, both prior to and after the alleged defalcation, indicate that he had no guilty intention. Although the respondent might have handled certain sums of Govern ment money, the evidence clearly indicates that he was not officially appointed as the Accountant or that the handling of money formed part of his official duties. Moreover, there is considerable doubt whether or not he handed over these monies to the Superintendent or paid them out under the Superintendent's oral instructions. In either event, he is entitled to the benefit of the doubt.

Finally, by withholding important documents the lower Court has been considerably handicapped in its conduct of the case and failure to give reasons for claiming privilege must result in an adverse inference being drawn against the case for the prosecution.

I can find no reasons to believe that the order of acquittal by the lower Court is contrary to the weight of evidence. The benefit of the doubt has been given to the respondent and I have no reason to believe that the judgment of the lower Court is perverse, far less that there is irrefutable evidence which would allow me to convert the order of acquittal into one of conviction. The appeal against acquittal is therefore dismissed.

K. M. A. Appeal dismissed.

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