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Criminal Revision Application No. 233 of 1971, decided on 10th October, 1974.

--- S. 439---Revision, against, acquittal-Petitioner giving power of attorney to respondent for transfer of a plot and also entrusting him Compensation Book in that context --- Respondent not utilizing Compensation Book for transfer of plot and instead selling deferred amount-Such sale, however, having been contemplated and authorised in power of attorney, action of respondent in selling deferred amount, held, justified in circumstances-Acquittal of respondent, held, rightly recorded.-[Acquittal-Revision (criminal)].

---- S. 406-Respondent selling deferred amount of Compensation Book as contemplated and authorised by petitioner in power of attorney but sale proceeds allegedly misappropriated-Nothing on record beyond mere words of petitioner against respondent-Case against respondent, held, not established, in circumstances.

Abdul Fateh Memon for Applicant.

I. A. Qasim for A.-G. for the State

Shaikh Mir Muhammad for Respondent No. 2.

Dates of hearing : 9th and 10th October, 1974,

The circumstances in which this revision application has arisen are as follows :--

1. The applicant had a verified claim under the Settlement Scheme in the sum of Rs. 1,70,200 which he wanted to utilize. The respondent No. 2 is the son-in-law of his elder brother and was working as a broker is these. Settlement affairs at the material time. It is alleged that in the year 1963, the applicant was interested about the transfer of a plot situated in Arambagh, Quartets, Karachi, and entrusted his compensation book in that context to the respondent No. 2. The power of attorney was also given. However, it is alleged that in the face of express intention, the respondent did not utilize the compensation book for the transfer of that plot, but instead sold the deferred amount of Rs. 16,000 and odd to two persons and mi, appropriated the proceeds thereof. Even the compensation book was not returned. It was in the month of March, 1974 'that a notice was sent to the respondent No. 2 calling upon him to return the compensation book along with the documents given to him. A reply was sent and after some time the applicant filed a complaint in the Court of a Magistrate at Karachi. There is nothing on the record to show, but it was stated by the learned counsel for the applicant, that the respondent No. 2 was discharged by the learned Magistrate, and further inquiries were ordered by the Sessions Judge The case initially was registered under section 403, P. P.1 C., but the charge was framed under section 409, P. P. C. and the conviction took place for an offence under section 406, P. P. C. The punishment awarded to the respondent No. 2 was R.I. for three months and a fine of Rs. 1,000 in default whereof he was to suffer R L for one month more. Aggrieved by this conviction and sentence, the respondent No. 2 preferred an appeal which came to be allowed by the learned Additional Sessions Judge, Karachi. It was thereafter, that this revision application has been, filed.

2. The tenor of the evidence in the case clearly shows that the applicant wanted to utilize his compensation book for the purchase of Plot No. RB-11/54, situated in Arambagh Area, Karachi, and not otherwise. However, the special power of attorney is on the record, and this is completely at tangent with the suggestion advanced. Paragraph 3 thereof was to the effect that the compensation book could be utilized for adjustment in the price of any evacuee property "in the name of the said attorney, or any body whom he likes". The succeeding paragraph is to the effect that the deferred amount of Rs. 55,000 could be sold by him to any person whom he liked and thereafter came the paragraph to the effect that he could enter into agreement of association with any body, as he might deem necessary. Lastly it was said that he could receive the cash payment against receipts and so on. In the face of these general provisions, to insist that the respondent No. 2 was called upon to arrange the transfer of only the plot, referral to earlier, is very much wide of the mark. It is an outright false statement.

3. It is further to be seen that there was an attempt made by the respondent No. 2 to arrange for the transfer of this plot also. There is ark agreement of association with one Syed Muzaffar Jaferi to whom half the tuna, of the plot stood transferred. There is a surety bond by Syed Muzaffar Jaferi, bat somehow the deal did not materialise, and we do not know anything beyond, but tie surety bond referred to was executed in the month of November. 1963. Then there were two other attempts made by the respondent No. 2 by bids in the auctions as the attorney of the applicant. These were done for two plots situated in Garden West in an auction held op the 14th of November 1964. There are also two notices addressed to the applicant by the Additional Settlement Commissioner calling upon him to make the deposits of the amount involved in the auction, fair" which penalty was to be levied. The record clearly shows that the bids Ware mettle by the respondent No. 2 as the applicant's attorney and his participation is the auction proceedings is that capacity was not subject to my opposition or objection by the Department concerned. Earlier he had sold certain amount from the deferred payment to two persons by the name of Abdul Aziz Khan and Ishtiaq Hussain. The amount involved in the compensation book was Rs. 16,000 and odd, and B is alleged that the sale was for Rs. 6,000.

4. It was contended that very much before this period, the power of attorney, had been back the applicant and the respondent No. 2 had no authority or power to deal with the compensation book. Admittedly, there is no revocation of the power of attorney. The case of the applicant was that the same had been returned by the respondent No. 2 some time in the month of July or August, 1963. The case of the respondent No. 2 was that these documents had been taken away from his possession, but it was through the instrumentality of his wife who was the niece of the applicant. The time as to whets he parted with these documents is not established on the record. It .is also to be seen that 'if the power of attorney had been returned in July/August, 1963, there is no conceivable reason as to why the respondent No. 2 would have retained the compensation book with him. Otherwise too, the contention of the applicant could not pass, muster, because if the documents had been returned there seemed to be no justification for the respondent No. 2 having been instrumental in the execution of the agreement of association with Muzaffar Jaferi, or the latter executing surety bonds as late as November, 1963. Presumably, the documents would have been with him not only in November, 1963 also, but even in Feburary, 1964. Otherwise it would have been difficult for him to bid on behalf, of the applicant in the auction proceedings. There are no insinuations in the case against the Settlement authorities. In this view of the matter to say that the sale of the deferred amount in favour of two persons in June and September 1963 was fraudulent is hardly convincing. The sale was contemplated and authorised in the power of attorney itself: All than remains to see is whether this amount was misappropriated by the respondent No. 2.

5. Abdul Aziz had died during the trial and his son Saeed Ahmad has been examined as a Court witness. So was the other purchaser Ishtiaq Hussain. They did not concede as Court witnesses that the applicant was present at the time of the sale or negotiation. However, when they were examined as defence witnesses, they had altogether a different version to offer and that was that it was in the presence of the applicant. Obviously, they are speak-easy witnesses and the procedure adopted at the trial by the respondent No. 2 has hardly anything to commend. However, the fact remains that the respondent No. 2 was very closely related to the applicant it is also an admitted position that, relations between the parties received a set back in view of the second marriage by the respondent No. 2. We find that one of the witnesses appearing against him was his own father-in-law. This was an aspect duly considered by the appellate Court in giving the benefit to the applicant, and 1 cannot say that he was in the wrong. After all, there was nothing beyond the mere words of the applicant against him I will therefore be reluctant to interfere with the order passed.

6. As a result, the revision application is dismissed.

Application dismissed.

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