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Criminal Appeal No. 396 of 1954, decided one 16th February 1956,

, S. 342‑Offence under S. 409, P. P. C.‑‑Amounts alleged to be misappropriated forming basis of conviction must be specifically put to accused for being explained‑Omnibus question on total amount misappropri ated not enough.

In a case under section 409, P. P. C. all the amounts alleged to be misappropriated, which formed the basis for convic tion of the accused were not specifically put to the accused in their examination under section 342 Cr. P. C. Instead, an omnibus question was put in regard to the total amount misappropriated.

Held, this was not sufficient compliance with provisions of section 342, Cr. P. C. Any point on which conviction is sought to be based must be specifically put to an accused person in order to enable him to explain the allegation made against him. < [if supportLineBreakNewLine]>

Case was remanded for re‑trial from the stage of exami nation of accused under section 342 Cr. P. C.

Muhammad Halim for Appellants.

Hassanally A. Rehman for the Crown.

‑The two appellants have been convicted by the learned Special Judge, Karachi under sec tion 409 read with section 34, P. P. C. Appellant Zaheer Hussain has been sentenced to R. I. for two years and a fine of Rs.4,000, in default R. I. for six months more, Appellant Abdul Sattar has been sentenced to R. I. for one year and a fine of Rs, 4,000 in default R. I. for six months more. They have come in appeal.

The charge against the two appellants was that they being public servants in the employment of the Technical Training Centre, Karachi between 1st January and 26th July 1949 com mitted criminal breach of trust in respect of the amount of Rs. 3,581‑3‑9 belonging to the Centre.

The appellants have denied their guilt.

The judgment of the learned Judge shows various amounts recovered on various items as having been misappropriated by the appellants. At page 99 of the paper book the learned judge has observed as follows :‑

"During the period from 1st January to 26th July 1949, the tuition fees in the T. T. C received amounted to Rs. 7,378. Exh. 2/14 is the statement of entries. The accused made payments of Rs. 4,574‑5‑9 and the balance was Rs. 2,803‑10‑3. On account of the work done in the workshop the accused recovered Rs. 313‑5‑9 as per receipt Nos. B. 161001 to B. 161027, Exh. 2/15. Out of these 27 receipts the receipt No. B. 161002 is signed by the accused Zaheer. The other receipts are written and signed by the accused Sattar".

At page 101 of the paper book the learned Judge observed as follows :‑

"Iftikhar Ex. 8, (sic) said, that‑on 12th March 1949, he got some trousers made by the tailors in the workshop of the T. T. C. He paid Rs. 7‑10‑0 to the accused, Sattar, who gave him a receipt for the amount. In May 1949 he again got 2 trousers made and produced a receipt for Rs. 5‑4‑0, issued by the accused Sattar. The receipt is Exh. P‑1. He was not cross‑examined,"

These are only a few of the observations to illustrate the various facts taken into consideration by the learned Judge who based his conviction thereon. It has been argued by the learned advocate that all these points on which the learned Judge based his conviction were not specifically put to the appellants in order to assist them to explain the allegations of the prosecution to connect them with the crime in question. In the examination of both the appellants an omnibus question was put whether the appellants had committed criminal breach of trust.

Appellant Zaheer Hussain was asked the following ques tion under section 342 Criminal P. C.:‑

"Q.‑Did you and Sattar accused in furtherance of your common intention commit criminal breach of trust of Rs. 3,581‑3‑9 of the T. Training Centre

A .‑No."

From appellant Abdul Sattar again the question was asked in the following manner :‑

"Q.‑Did you and Zaheer Hussain accused in furtherance of your common intention commit criminal breach of trust during the period 1st January 1949 and 26th July 1949 in respect of a total amount of Rs. 3,581‑3‑9 only of the T. T. Centre

A.‑No,"

This, according to me, is not a sufficient compliance with the provisions of section 342 Criminal P. C. It has been recently held by a Full Bench of this Court that there should be a proper compliance of section 342 Criminal P. C., and that any point on which the conviction is sought to be based must be specifically put to an accused person in order to enable him to explain the allegation made against him. I find that by not putting these various questions to the appellants a great prejudice has been caused to them, and for that purpose alone the appeal must be allowed and the case must be remanded for re‑trial from the stage of the statements of the appellants under section 342, Criminal P. C.

Incidentally I also consider it worth while to draw the notice of the learned Judge to some of the important points involved in the case. A look at Exh. 2/3 at page 21 of the Paper Book shows unauthorized advances to staff members etc. outstanding on 1st January 1949 as amounting to Rs.1,587‑11‑9. It is argued by the learned advocate that appellant Sattar actually recovered Rs. 300 out of this amount and yet that has not been shown.

In Exh. 2/4 there is an entry of Rs. 745‑15‑0 standing against the Stipends Bill. It has been argued that this amount refers to the payments made to some bogus trainees which formed the subject‑matter of the other case against appellant Zaheer Hussain for misappropriations committed by him during the prior period wherein he has been convicted by the learned judge, and that appeal has been dismissed by me only yesterday. It is for the learned Judge to consider all these things and discuss them very clearly and carefully in his judgment.

I also consider it necessary to ask the learned judge to consider properly the question of the joint trial of the two appellants in this case against which a vehement objection bass been raised before me. During the period in question appellant Zaheer was Head Clerk while appellant Abdul Sattar was the Accountant and the Cashier. It was the duty of appellant Abdul Sattar to receive monies and to account for proper payments. Except one receipt No. B. 161002 which is signed by appellant Zaheer all the other receipts are signed by appellant Abdul Sattar. It is for the learned judge to consider whether by signing this one receipt the provisions of section 34 P. P. C. would be attracted in this case. I express no opinion whatsoever on the various points to which I have considered it necessary to draw the attention of the learned judge. It is the duty of the learned judge now to consider all these points very carefully and to discuss them thoroughly in his judgment in order to facilitate this Court in properly understanding what the case against each of the appellants is.

I allow the appeal, set aside the convictions and sentences passed on the two appellants and remand the case for re‑trial from the stage of the statements of the appellants under section 342 Criminal P. C. Order accordingly.

A. H. Case remanded.

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