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Criminal Appeal No. 11 of 1980, decided on 30th November, 1983.

- Ss. 406, 419 & 420 - Embezzlement of amount of Co-operative Society-Accused, an illiterate person, cashier of a Co-operative Society-Cash of society deposited in Co-operative Bank and all transactions carried out under hand of officials of co-operative department-Thumb-impression of accused and some other person taken for opinion of finger-print expert-Opinion of such expert showing that some forged receipts of loan were thumb-impressed by accused-Neither Magistrate in whose presence specimen thumb -impressions were taken nor finger-print expert produced in evidence-No evidence produced to show that accused was entrus ted with any money which was alleged to be embezzled by him by personation---No evidence on record showing as to what amount was actually embezzled-Held, to sustain charge under S. 406, P. P. C. it has first to be proved that accused committed criminal breach of trust-Criminal breach of trust would only arise when any property is entrusted to accused and he commits breach of trust Prosecution having failed to prove that accused had committed cheating by personation, charge under S. 419, P. P. C. was not sustainable-Conviction under S. 420, also could not sustain as prosecution failed to prove that accused impersonated any prosecution witness and then committed cheating in regard to amount embezzled-Acquittal of accused not interfered in circumstances.

Yaqoob Shah v. The State P L D 1975 Pesh. 205 and Bashir Ahmad v: The State 1977 P Cr. L J 893 ref.

-----S. 417-Penal Code (XLV of 1860), Ss. 406, 419 & 420---Appeal against acquittal-Prosecution failing to prove that accused was entrusted with money about which he committed criminal breach of trust-No evidence available to the effect that accused cheated by impersonation-Trial Court acquitting accused in circumstances---- Held, superior Court would give weight to findings of trial Court in matters of acquittal and would be slow in disturbing that finding unless there appears to be miscarriage of justice or any material irregularity committed by trial Court - No such circum stances existing in case, acquittal of accused not interfered with---[Appeal against acquittal].

Muhammad Khan for the State.

Muhammad Karim Anjum for Respondent.

Date of hearing : 23rd November, 1983.

The Garhi Sher Ahmad Khan Co-operative Society, Tehsil and District Bannu, was formed in the year 1961 with a capital of Rs. 20,000. Sub sequently the credit of the Society was raised to more than one lac rupees. Sahibzada, the respondent herein, was cashier of the said Society. In the year 1970, many members of the society, who are all prosecution witnesses in the case, received notices from the Co-operative Bank, Bannu for the return of the loan, which they had taken from the Society. The said persons made an application to the Deputy Commissioner, Bannu on 2nd November, 1970 through Sahib Jan, Ghulam Sarwar, Naik Nawaz and Rehmat Khan to the effect that they had not received any loan from the Co-operative Society or the said bank. This application was ultimately sent to C. I. A. Staff, Bannu for enquiry under section 156 (3),. Cr. P. C. After the enquiry an F. I. R. No. 301 was registered in Police Station Naurang on 16th October, 1973 against the respondent herein and he was sent up for trial under section 406/419/420, P. P. C. on the allegation that he had embezzeled an amount of Rs. 1,04,971 as principal and an amount of Rs. 21,450 as interest of the said Co-operative Society. The accused pleaded not guilty and claimed trial. 39 witnesses were produced in support of the prosecution case while the learned Magistrate examined two Court witnesses. The accused, when examined under section 342, Cr. P. C., denied the commission of the offence but did not produce any defence. The learned trial Magistrate acquitted the accused vide his judgment dated 19th July, 1979. Dissatisfied with the acquittal of the accused the State has come up to this Court with present appeal under section 417, Cr. P. C.

2. I have heard learned counsel for both the parties at length and have very minutely gone through the record of the case. All the prosecu tion witnesses produced in the case have stated that they had not obtained any amount as loan from the said Co-operative Society. They have also not charged any person who may have received the said loans on their behalf. This amount was demanded back from the said members and witnesses when the Society was under liquidation in 1970. It is admitted that the accused was cashier of the Society but it is also admitted that he is an illiterate person and the cash of the Society was deposited in the Co-operative Bank and all transactions were carried out under the hand of an official of the Co-operative Department. The thumb-impressions of the accused and some other persons were taken and sent to the finger-print expert. His opinion on the record would show that some receipts of loan were thumb-impressed by the accused. However, neither the Magistrate in whose presence the specimen thumb-impressions were taken nor the finger-print expert were produced in evidence. In the case of Yaqoob Shah v. The State (P L D 1975 Pesh. 205), it was held that opinion of expert in order to prevail the Court must tie backed up by reasons and opinion not backed by reasons was valueless. In the case of Bashir Ahmad v. The State (1977 P Cr. L J 893), it was held that specimen signature of accused allegedly obtained in presence of Magistrate but such Magistrate not examined as witness there was no certainty of specimen signature being that of the accused and evidence of handwriting expert was of no consequence in circumstance.

3, The State also did not produce any evidence to show that the accused was entrusted with any money which was embezzeled by him. There is also no evidence on the record as how much amount was actually allegedly embezzled by him. To sustain a charge under section 406, P. P. C., it has first to be proved that the accused committed criminal breach of trust whereas in the present case the State did not produce any evidence to show if any trust was reposed in the accused and he was found guilty of criminal breach of that. Criminal breach of trust would only arise when any property is entrusted to any person and he commits breach oft that trust. The charge under section 419, P. P. C. is also not sustain able against the accused because the State failed to prove that he had committed cheating by personation. No prosecution witness has come forward to depose that the accused impersonated that witness and then committed cheating in regard to amount in dispute. Similarly charge under section 420, P. P. C, was also not proved by the State for the afore said reasons.

4. The State had failed to prove that the accused was entrusted with any money about which he committed criminal breach of trust. There was also no evidence to the effect that he cheated by impersonation. It is a settled principle of criminal law that superior Courts would give due weight to the findings of the trial Court in matters of acquittal and would be slow in disturbing that finding of the trial Court in matters of acquittal and would be slow in disturbing that finding unless there appears to be a miscarrage of justice or any material irregularity is committed by the trial Court. No such circumstance was pointed out by the learned counsel for the State. The learned trial Magistrate had therefore, correctly acquitted the accused respondent. Finding no force in this appeal, I would dismiss it.

M. Z. M. Appeal dismissed,

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