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Petition for Special Leave to Appeal No. K‑26 of 1973, decided on 7th September 1973.
(On appeal from the judgment and order of the High Court of Sind & Baluchistan made on the 2nd of March 1973 in Cr. A. No. 232 of 1971).
--‑‑Art. 185 (3)‑Point raised before Supreme Court not taken in any Court below ‑Not allowed to be raised‑Petitioner not prejudiced by conduct objected to‑Leave to appeal to Supreme Court refused.
A. Aziz Dastgir, Advocate‑on‑Record for Petitioner.
Nemo for the State.
Date of hearing: 7th September 1973.
The petitioner, who was at the relevant time a Junior Store Keeper in the office of the Agricultural Engineer, Khairpur, was tried along with his Senior Store Keeper for offences under section 40‑>, P. P. C. and section 5 (2) of the Prevention of Corruption Act, 1947, by the Special Judge, Sukkur, who found the petitioner guilty and sentenced him to suffer rigorous imprisonment for nine months and also to pay a fine of Rs. 3,900 for alleged misappropriation of petrol. The co‑accused, namely, the Senior Store Keeper was acquitted. A third person, namely, Miskeen, a truck driver, who is absconding, was not tried along with these two.
The charge against the petitioner was that he had between the 7th of December 1962 and the 15th of January 1963 misappropriated 1309 gallons of petrol worth its. 3,900 from the Store of the Workshop. The com parison of the entries in the register maintained by the petitioner and the actual physical verification of the petrol in the oil tank clearly disclosed the shortage alleged by the prosecution.
The petitioner admitted that he was employed as the Junior Store Keeper and that he had made the entries in the register which were correct, but he pleaded that when he took over charge from his predecessor he received 476 gallons less. 1n addition to this, he claimed that 20 gallons had evaporated from the tank and about 150 gallons had been taken away by the Officers without any indent. According to him, the meter also was recording in excess and thus there was an excess reading of something like 70 gallons. The trial Court found that even if full allowance was given to him for all this, namely, the short delivery of 476 gallons and evaporation at the rate of even then there was a shortage of 700 to 800 gallons. In addition to this, if 210 gallons supposed to have been taken away by Officers and wrongly recorded by the meter are allowed, even then there is a shortage of about 500 gallons. The petitioner had no explanation for this. His conviction, therefore, appears to us to be based on overwhelming evidence. The High Court also took the same view.
The learned counsel appearing in support of this petition, however, now wants to take a new point, namely, that the investigation in this case was not held, by a D. S. P., but only by an Inspector, and, therefore, the entire proceeding was bad and the whole trial was vitiated. In support of this contention he has relied upon a ruling from a foreign jurisdiction, namely. H. N. Rshband and another v. State (AIR 1955 S C 196).
Unfortunately, this point was not taken in any of the Courts below but is now sought to be taken for the first time in this Court. We are afraid this cannot be allowed now. The objection to the validity of the investigation should have been taken at the earliest possible opportunity and since this was not done and the petitioner is not in a position to show :4 that he has in any way been prejudiced by the investigation conducted by an Inspector we do not consider this to be a sufficient ground for the grant of leave. No other point has been urged. This petition is, accordingly, dismissed.
Petition dismissed.
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