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Criminal Appeals Nos. 473 and 474 of 1955, decided on 9th April 1956.

, S. 260 (1) (e) Magistrate's power to try summarily offence under section 403 P. P. C.‑Value of misappropriated property above limit pre scribed tinder section‑Summary trial held, illegal.

Section 2 60 (1) (e) of the Criminal P. C. lays down that offence of dishonest misappropriation of property under section 403 of the Penal Code can be tried summarily only when the value of the property does not exceed Rs. 50. In a case where the value exceeds the statutory limit prescribed under section 260 (1) (e) Criminal P. C., summary trial is a altogether illegal.

‑Warrant case tried summarily‑‑Proce dure for warrant case to be followed‑Magistrate imposing a sentence of imprisonment on lady‑Duty of Magistrate explained.

In a warrant case tried summarily, the procedure followed should be the same as prescribed for warrant cases. In a case where a sentence of imprisonment is likely to be imposed on a lady, the Magistrate should be judicious in exercising his discretionary power before starting to try a warrant case summarily.

Shaikh Abdul Ghani, for Appellant No. 1.

Pirzada Abdus Sattar, for Appellant No. 2.

H. T. Raymond, for Respondent.

--The two appellants have been convicted by the learned City and Additional District Magistrate, Karachi for an offence under section 403 P. P. C. and sentenced to R. I. for a period of two months each and also to pay a fine of Rs. 40 each, in default to suffer further R. I. for a period of fifteen days. They have come in appeal.

The facts of this case are as follows ;

The two appellants were the employees of complainant Agha Mohsin Jafri at the Pakistan American Commercial Incorporation, which is a book shop in Elphinston Street, Karachi.

Appellant Mrs. Manorama was a clerk employed to work at the counter of this shop and it washer duty to issue cash memos. to customers who purchased books. Appellant Asgharali was a salesman whose duty it was to assist the customers to select books. It was alleged by the prosecution that the Proprietor Mr. Jafri came to know that appellant Manorama was not issuing cash memos. to some customers who purchased books and she and appellant Asgharali were sharing the monies thus secured. Nazir a peon at the shop was then taken into confidence by the proprietor who asked the former to look on and report to him what happens. Nazir confirmed the information of the proprietor. He remonstrated with the two appellants about this practice but the appellants are said to have consoled him that he would be given his share and that he should not speak.

On 15th September 1955 the complainant Mr. Jafri was sitting in the balcony of his shop at about 7‑45 p.m. At that time the shop was about to close down when Mrs. Manorama is alleged to have given Rs. 20 to appellant Asgharali and Rs. 20 to peon Nazir and she kept the same with herself. This was the distribution of their illicit income on that day. One Babu Abdul Hamid, who it is alleged by the defence was also a servant of the shop, was sitting with the complainant. They watched all this and on receiv ing a signal from Nazir peon, the complainant came down to the shop. He and Babu Abdul Hamid are alleged to have caught hold of the two appellants who admitted their guilt. They also produced the amount of Rs. 40 before the complainant. Then it is alleged that they gave state ments in writing in which they pleaded guilty to the charge and apologised for what had been done by them. Appellant Manorama by her statement promised to pay Rs. 2,000 to the complainant in lieu of her illicit gains from the very start.

Appellant Asgharali also promised to pay Rs. 15,000. The complainant, however, in spite of these generous offers by the two appellants, escorted them to the police station where he lodged his F. I. R. and the considerate Police Officer after investigating the whole case, sent up the appellants to stand their trial. The appellants were thereafter tried in a summary manner by the learned City Magistrate and convicted as stated at the start.

This appeal must immediately succeed on the legal ground and the conviction must be quashed and set aside. Section 260 (1) (e) bf the Criminal P. C. lays down that offence of dishonest misappropriation of property under section 403 of the Code could be tried summarily only when the value of the property misappropriated does not exceed Rs.50. Here, if we take the total misappropriations into consideration, they come to Rs. 17,000 in all, according to the so-called extra judicial confessions of the appellants, but if we ignore them and take into consideration only the earnings of that day viz., 15th September it comes to Rs. 60 which is well above the statutory limit prescribed under section 260 (1) (e) Criminal P. C.. The learned Public Prosecutor admits this legal position. The summary trial was therefore altogether illegal.

Then in this case, one of the two appellants was a lady upon whom the learned Magistrate was going to impose a sentence of imprisonment. I think in all fairness to the appellant, the learned Magistrate should have exercised his judicial discretion in a better manner and not started with summary trial in this case.

Then I find in this case that the clear provisions of law have been completely disregarded. I am referring to sections 263 and 264 of the Criminal P. C. The only record of the case before me is the order of the learned Magistrate and nothing beyond it. No summary register has been maintained and no statement of the accused persons under Criminal P. C. has been taken down under section 403, P. P.‑C. was a warrant fore the procedure, even though the case had to be the same as prescribed for warrant cases. I find nothing of that kind here and therefore it is only too clear that the conviction of the appellants must be set aside and the appeals must be allowed.

The only question that remains for consideration is whether the case should be remanded to the Lower Court for retrial according to law or whether that course should not be adopted in this case. Normally in all cases of this kind, where convictions are set aside on technical grounds cases are remanded for retrial, but I am afraid the facts of this case are such that it will be putting a premium upon the fraud that has been resorted to by the prosecution in conspiracy with the police, to order retrial. The only evidence in the case is of the complainant, of his servant Nazir and also one Abdus Salim Khan Ghori. Now Nazir is a servant of the complainant and therefore a deeply interested witness. Apart from that he is an accomplice inasmuch as he had received Rs. 20 of the booty on that day. The evidence of such a man cannot be believed unless there is corroboration. It appears the prosecution want to put up the complainant to corroborate Nazir and Nazir to corroborate the complainant. Witness Abdus Saline Khan appears to me to be of a very doubtful character. His name does not find any mention in the F. I. R. It seems he has been subsequently imported by the complainant who seems to be a man of considerable influence. The name of Babu Abdul Hamid has been mentioned in the F. I. R. as has been stated by the learned Magistrate but that Abdul Hamid has not been examined. If I send back the case to the lower Court I have no doubt that a conviction on this evidence can hardly by secured. It will therefore be unnecessarily prolonging the trial and putting the parties to worry and expense. The only piece of evidence on which the learned Public Prosecutor relied upon is the extra‑judicial confessions of the two appellants in writing. The appellants have even shown the time 8‑15 and 8‑40 p.m. respectively in their confessions. The F. I. R. was filed at 10‑45 p. m. In the first place these so‑called extra‑judicial confessions are directly hit by the provisions of section 24 of the Evidence Act. The complainant was undoubtedly a person in authority so far as the two appellants were concerned. It was in his hands to either prosecute them or, not to take any action. In the second place it appears to me a cock and bull story ; whereas Manorama, who was issuing the cash memos. and receiving the monies, agreed to pay only Rs. 2,000 to the complainant and the salesman Asgharali agreed to pay Rs. 15,000. I don't know by what process of mathematics the figure of Rs. 15,000 was in that moment of excitement arrived at by the com plainant. I find considerable force in the contention of the defence that these statements were recorded after the T. I. R. was filed with the help of the police. That the police actively co‑operated with the complainant which cannot be doubted. The police obtained ache matter of the two appellants and that remand was ache remand eight days. Thereafter the police themselves released appellant Manorama, who went and filed a report with the Anti‑Corruption Police against the relevant police officer. Unfortunately, as I have said above, there is no record of the case before me except the order of the learned Magistrate, but there is an affidavit of the appellant to the effect that as a result of her complaint to the Anti‑Corruption Police, the Police Officer concerned was arrested and trial and that trial is pending even to‑day. So much up for these extra‑judicial confessions.

Coming to the merits of this case, I consider the story of the complainant having caught the two appellants in this manner to be thoroughly absurd on the very fact of it. If the complainant really wanted to catch these should have kept himself in wait and got the evidence, he those customers who purchased books and who came without of cash memos. outside the shop. Taking their names without addresses he could have immediately gone to the police and filed his report. The story as stated in the First report appears to me to be altogether false and a concocted one. It therefore think no useful purpose can be served by remanding therefore for retrial. The only just and proper course is to set aside the convictions and sentences and allow the appeals. Order accordingly.

K. B. A. Appeals allowed

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