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Criminal Appeal No. 70 of 1956, decided on 16th October 1956.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 29th July 1955, in Criminal Appeal No. 918 of 1954).

To prove each ingredient of offence --Evidence Act (I of 1872), Ss. 101 and 105.

Subject to certain exceptions, the most important of which is to be found in section 105, Evidence Act, the admitted and otherwise firmly established principle is that, before the prosecution can ask for a conviction of a criminal offence, it is its duty to prove each ingredient of the offence beyond a reasonable doubt.

S. 405‑Criminal breach of trust‑Ingredients, necessary to be proved by prosecution.

To establish a charge of criminal breach of trust the prosecution must prove not only entrustment of or dominion over property but also that the accused either dishonestly misappropriated, converted, used or disposed of that property himself or that he wilfully suffered some other person to do so.

Where the charge was that the accused, a Naib‑Patwari, had misappropriated a sum of money collected by him by way of rent, from tenants of evacuee land, and the defence was that the sum collected had been made over to the Patwari in accordance with whose directions the money had been collected, the Patwari agreeing that the sum had been duly received by him from the accused which fact in the circumstances of the case could not be branded as false:

Held, that in the absence of any suggestion that the accused knew that the money would be misappropriated by the Patwari, the charge of misappropriation against ' the amused must fail.

M. A. Zaidi Advocate, Supreme Court, instructed by Zahir Abbas, Attorney for Appellant.

S. A. Mahmud, Advocate, Supreme Court, instructed by Ijaz Ali, Attorney for Respondent.

Date of hearing: 16th October 1956.

This is an appeal, by special leave, from a judgment of the High Court of West Pakistan, in a criminal. case The appellant, Shakir Hussain, was charged before a Special Judge with criminal breach of trust as a public servant, convicted under section 409 of the P. P. C. and sentenced to 4 years' rigorous imprisonment and a fine of Rs. 1,000. On appeal, a learned Judge of the High Court affirmed the conviction but reduced the period of imprisonment to 2 years, maintaining the sentence of fine.

Between June and October 1948, the appellant who was a. Naib‑Patwari working under Ali Akbar Shah Patwari of Matela realised from the tenants of Amar Nath, Lachhman Das and Lakimi Das a sum of Rs. 852‑13. 0 as rent of evacuee land. The conviction rests on the ground that the appellant did not deposit this amount in the Sub‑Treasury and appropriated it to himself. The defence was that the appellant recovered this amount from the tenants under the directions of Syed Ali Akbar Shah, to whom he handed over the collection and that the latter deposited the money in the Sub‑Treasury on the 10th March and 1st April 1949. This plea was supported by' Ali Akbar Shah who appeared as the first defence witness and admitted that the appellant had collected a sum of Rs. 932 from the tenants of certain evacuees as rent of the land in their possession and that the witness deposited it in the Sub‑Treasury on the 10th March and 1st April 1949: The official records show that an amount of Rs. 932 was deposited on the aforesaid dates as agricultural income‑tax due from the evacuee owners. The learned judge mho heard the appeal in the High Court held that there was nothing to show that the two items of agricultural income‑tax were deposited out of the realizations made by the appellant, that while the realisations were made in June and October 1948, the agricultural income‑tax was credited in the Sub‑Treasury in March and April 1949, that there was a discrepancy between the amount realised and the amount deposited, that Ali Akbar Shah's statement was not convincing and that the appellant had failed to explain why contrary to the Departmental instructions he made the recoveries in question. The short point to be determined in this appeal is whether these findings could be made the basis of a conviction of criminal breach of trust.

Subject to certain exceptions, the most important of which is to be found in section 105, Evidence Act, the admitted and otherwise firmly established principle being that, before the prosecution can ask for a conviction of a criminal offence, it is its duty to prove each ingredient of the offence beyond a reasonable doubt, it is obvious that where the charge against an accused person is that of criminal breach of trust the prosecution must prove no only entrustment of or dominion over property but also that the accused either dishonestly misappropriated, converted,; used or disposed of that property himself or that he wilfully suffered some other person to do so. In the present case the allegation against the appellant being that he mis appropriated the amount, the prosecution should have affirmatively proved that fact, unless the receipt of the money in trust having been admitted, the appellant offered no satisfactory explanation of what he did with it, or admitted such use of it as was in violation of any direction of law prescribing the mode in which such trust was to be discharged or of any legal contract which he had made touching the discharge of such trust. The appellant's plea having been that he paid the amount to Ali Akbar Shah by whom he had been directed to recover the amount, and Ali Akbar Shah having admitted to have received from him the amount, the appellant could not be convicted of criminal breach of trust unless it was found that his plea that he paid the amount to Ali Akbar Shah was false. The High Court has laid stress on the fact that Ali Akbar Shah's statement that he deposited in the Sub‑Treasury the amount received by him from the appellant is not convincing, but there is no distinct finding that the . appellant did not pay the amount to him. The true issue to be determined in the case was whether the appellant did deliver the amount to Ali Akbar Shah, and if the reply to that question was in the affirmative the appellant was not guilty of any misappro priation unless he paid that amount to Ali Akbar Shah to enable him to misappropriate it. What has been found on the evidence is that the allegation of Ali Akbar Shah that he deposited in the Sub‑Treasury the sum of Rs. 932 which he admits to have received from the appellant is not true. But that does not imply that the prosecution had succeeded in proving their the amount collected by the appellant had been misappropriated by him or that he had not handed over that amount to Ali Akbar Shah. 1f the appellant delivered the realisations to Ali Akbar Shah and the latter failed to deposit them in the Sub‑Treasury or mis appropriated them, he himself may be guilty of criminal breach of trust but so far as the appellant is concerned he could not be held guilty if the money collected by him had, in point of fact, been given by him to Ali Akbar Shah. In the absence of any such finding the appellant could not be held criminally liable because it is not the appellant's duty to rebut the charge but of the prosecution to prove its case and if in the circumstances of the case it can be a reasonably possible finding that the appellant's allegation that the amount was paid by him to Ali Akbar Shah may well be true, the charge of misappropriation against him must fail. We have given our most anxious consideration to Ali Akbar Shah's evidence and we do not think that his admission that he received the amount from the appellant can be held to be false. If the appellant's allegation that he had handed over the amount to Ali Akbar Shah had not been true, then the latter must have taken that allegation as an attempt on the part of the appellant to implicate him falsely in a criminal offence. Ali Akbar Shah in that case would not only refuse to oblige the appellant, but on the contrary he would most emphatically repudiate the allegation and take no responsibility on himself. . We have found oat the evidence that the appellant has given an explanation of what he did with the money which may well be true and that it is not proved that he misappropriated it. It is true that under the departmental rules the money could not haven been collected by the appellant or by the Patwari but we must not lose sight of the fact that the appellant was working under the Patwari as his Assistant and if the Patwari required him to collect the money on the representation that the Tehsildar had directed such collections to be made, the irregularity committed by the appellant, even if he had knowledge of such irregularity, would not make him criminally liable unless it be proved that he knew that the amount thus collected was to be misappropriated by Ali Akbar Shah or somebody else. Of such knowledge there is not the slightest indication on the record. We, therefore, allow this appeal, set aside the conviction and sentence of the appellant and order him to be set at liberty forthwith. The fine, if realised, shall be refunded.

A. H. Appeal accepted.

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