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Criminal Appeal No. 69 of 1959, decided on 29th February 1960.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 3rd March 1959, in Criminal Appeal No. 212 of 1958).

(a) Interpretation of statutes-Term occurring more than once in statute-To be given same meaning throughout unless special definition or requirement of context leads to contrary conclusion.

(b) Penal Code (XLV of 1860), S. 415 read with S. 27 "Cheating"-"Govermnent" included in word "person" occurring in S. 415-Government property in possession of Government servant deemed to be in possession of Government.

Prima facie, the word "person" in section 415, P. P. C. should be held to cover "Government", unless some considerations inherent in the context of the section militate against that view. There was, however, no indication in the section itself, which could cut down the connotation of "person" to a "natural person" alone.

Section 27, P. P. C. lays down that when property is in the possession of a person's wife, clerk or servant, on account of that person, it is in that person's possession within the meaning of the Code. Therefore, any Government property, in the posses sion of a Government servant, should be deemed to be in the possession of the Government, and if a criminal, by cheating a Government servant, induces either him or another Government Officer, in consequence, to deliver to him certain property belonging to Government, the act of the criminal is covered by section 415, P. P. C. In such a case, the "person" deceived would be the Government which could only act through one or other officer in its employment. Both, the officer to whom the mis representation is made and the officer who as a result parts with property on behalf of Government, would be acting as agents of the Government, in these circumstances. A cast of this type therefore, would seem fairly to fall within the four corners of section 415, Pakistan Penal Code, even though the officer actually deceived may not be the person who, in consequence of the fraud, is persuaded to deliver any property to the delinquent.

Reg v. Harmanta I L R 1 hom. 610 and Amanat Ali v. The State P L D 19.57 Lah. 207 ref.

Muhammad Bakhsh and another v. Emperor A I R 1941 j.ah, 460 and Empress v. Dwarka Prasad I L R 6 All. 97 distinguished.

(c) Penal Code (XLV of 1860), Ss. 417 & 420/511 Government servant cheating superior officer and securing order of re-instatement and of entitlement to arrears of pay for period between termination of service and re-instatement-Conviction under S. 417, upheld by High Court-Offence, held by Supreme Court to fall under S. 410/511.

S. M. Zafar, Advocate Supreme Court, instructed by Saeed Akhtar, Attorney for Appellant.

Jamil Hussain Rizvi, Advocate-General West Pakistan, (Nasim Hassan Shah, Advocate Supreme Court with him), instructed by Ijaz Ali, Attorney for Respondent.

Date of hearing : 11th February 1960.

.-This appeal by special leave raises the question whether the word "person", occurring in section 415 of the Pakistan Penal Code, includes "Government". The question has arisen in the following circumstances.

The appellant, Muhammad Rashid, was a Telephone Operator in the office of the Divisional Engineer Telegraphs, Lahore. He deserted his post and joined the service of the Anglo-Iranian Oil Company in Saudi Arabia, in the year 1948. Having remained absent from duty from the 10th of November 1948 onwards, he returned on the 6th of February 1950. In the meantime, the Department had terminated his service, for absence without leave. On the 24th of February 1950, he sent an application to the Post-Master General, Lahore, -alleging that he had been away to India, searching for his niece who had been abducted during the disturbances following Independence and had been detained there. He prayed that he may be re-appointed to his old post. His prayer was accepted and he was given the post, as a fresh appointment, with effect from the 14th April 1950. On the 24th of February 1953, he applied to the Director General, Posts and Telegraphs, Pakistan, requesting that the period of his absence from duty from the 10th of November 1948 to the 14th of April 1950, may be treated as leave due and he may be regarded as having been reinstated instead of being re-appointed to his old post. In consequence of this application, orders were passed directing that the appellant be given half of his salary for 12 months and that for the rest of the period of his absence, he may be treated as on extraordinary leave without pay. Before, however, actual payment could be made to him of the arrears of salary, the real position came to light and he was consequently prosecuted for cheating. The trial Judge sentenced him under section 417 of the Pakistan Penal Code to three months' rigorous imprisonment together with a fine of Rs. 300 or in default of payment three months' rigorous imprisonment further. On appeal, a learned Single Judge of the High Court of West Pakistan upheld the conviction, but reduced the sentence of imprisonment to the term already undergone, by order, dated the 3rd of March 1959. The sentence of fine was maintained intact.

The facts recited above are not disputed and the only contention raised on behalf of the appellant by Mr, S. M. Zafar is that, on these facts, no conviction could have been recorded under section 417, Pakistan Penal Code, as the act of the accused did not fall within the purview of cheating, as defined in section 415 of the Code. It was suggested that the word "person", occurring therein denoted only a "natural person" and not a "juristic person" or an "association of individuals".

Section 415 of the Pakistan Penal Code is in the following terms :----

"Whoever, by deceiving any person, fraudulently or dis honestly induces the person so deceived to deliver any property to any person, 'or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to cheat'.

Explanation.----A dishonest concealment of facts is a deception within the meaning of this section".

Now the word "person" has been defined in section 11 of the Code as including any Company or Association or body of persons, whether incorporated or not. Section 7 of the Code declares that "every expression which is explained in any part of this Code, is used in every part of this Code in conformity with the explanation". This is in accord with the general principle of construction of statutes that a term which occurs more than once in the same Act, must be given the same meaning throughout the Act, unless a special definition of the term or the requirement of a context leads to the contrary conclusion. Prima facie, therefore, the word "person" in section 415, Pakistan Penal Code, should be held to cover "Government", unless some considerations inherent in the context of the section militate against that view. We find no such indication in the section itself, which could persuade us to cut down the connotation of "person" in this section to a "natural person" alone. It is significant that the terms "man" and "woman" have also been defined in section 10 of the Code and if the legislature intended section 415 to be confined to a "natural person" alone, it could have placed the matter beyond all doubt by use of these terms rather than by the term "person".

Section 27 of the Code lays down that when property is in the possession of a person's wife, clerk or servant, on account of that person, it is in that person's possession within the meaning of this Code. It would, therefore, follow that any Government, property, in the possession of the Government savant should be deemed to be in the possession of the Government, and if a criminal, by cheating a Government servant, induces either him or another Government officer, in consequence, to deliver to him certain property belonging to Government, there is no reason why the act of the criminal should not be held to be covered by, section 415, Pakistan Penal Code. In such a case, the "person" deceived would be the Government which could only act through one or other officer in its employment. Both, the officer to whom the misrepresentation is made and the officer who as a result parts with property on behalf of Government, would be acting as agents of the Government, in these circumstances. A case of this type therefore, would seem fairly to fall within the four corners of section 415, Pakistan Penal Code, even though the officer actually deceived may not be the person who, in con sequence of the fraud, is persuaded to deliver any property to the delinquent. Such a case has to be distinguished from the one reported as Muhammad Bakhsh and another v. Emperor (A I R 1941 Lah. 460) in which a Division Bench of the Lahore High Court, as it then was, held that where a mutation was entered on a false representation that one B had sold his land to A and one M personated for B before the Mutation Officer and the. Patwari, no offence within the meaning of section 415, Pakistan Penal, Code, could be said to have been committed, as the person to whom harm was likely to be caused was B and not the person deceived. In that case, the Patwari, the Mutation Officer and B could not be said to be agents of a common employer and the fraud was not in relation to any such employer or his property.

A Division Bench of the Bombay High Court, as long ago as 1877 in Reg v. Hermanta (I L R 1 Bom. 610) expressed the view that the definition of "person" in section 11 of the Code was wide enough to cover "Goverl6ment" as representing the whole community and the word "person" occurring in section 379 of the Penal Code was construed likewise. That was a case of theft of Government property and its dishonest removal, without paying the necessary fees, from the possession of a Forest Inspector, albeit with his actual consent which was unauthorised or fraudulent, was held to constitute theft. By parity of reasoning, the word "person" in section 415, Pakistan Penal Code, should be inter preted in the same sense as is visualised by the definition in section 11 of the Code.

Another case from which some assistance may be derived is reported as Amanat Ali v. The State (P L D 1957 Lah. 207). In that case, the accused had cheated the Punjab University by personating for another, and had induced the University to deliver to him the "Hall ticket" and "examination paper" for a certain examination. The man was convicted under section 419, Pakistan Penal Code, and his conviction was upheld by a learned Single Judge of the Lahore High Court. Apparently, therefore, though the question was not raised in that case in the form agitated before us, the word "person" in section 415, Pakistan Penal Code, was held to' include a corporate person, like the University.

The learned counsel for the appellant drew our attention to two cases, reported as Empress v. Dwarka Prasad (I L R 6 All. 97) and in re Manikkam Pillai (8 Cr. L J 421) in support of his position. In the first case, a person gave false information to the Superin tendent .of Police in order to obtain recruitment to the police force of the district. It was held by the Allahabad High Court that no offence could be said to have been committed, falling within section 177 or 182 or even section 415 of the Penal Code. The ratio of the decision apparently was that the element of fraud or dishonesty was absent from the case and no damage had been caused to the person deceived. That case is, therefore, distinguishable on the facts from the present one. In the second case, a learned single Judge of the Madras High Court ruled that a person, attempting to get himself reinstated in the post of a Karnam, by production of a false certificate, showing that he had passed a certain examination, could not be held to have committed an offence under section 419 of the Penal Code read with section 511 of the Code. In the brief judgment of the published report no reasons for this conclusion are recorded. The ruling, therefore, affords no assistance in the decision of the instant case.

After a review of the relevant provision of the law and the authorities quoted at the Bar, we have reached the conclusion that section 415, Pakistan Penal Code, is applicable to the case of a person deceiving one Government Officer so as to obtain some property from the hands of another Government officer, in consequence of the false representation made to the first officer. On the finding recorded by the High Court that the appellant had actually received his arrears of pay, the offence of cheating would have been complete. It has, however, been brought to our notice that this finding was based on a misapprehension of facts. Fazl-i-Hussain, (P. W. 5), who was then Senior Divisional Accountant in the office of the Divisional Engineer, Telephones, Lahore, appears to have stated in the trial Court that no arrears bill was drawn by the accused, because no such bill was prepared, the true facts having come to light by then. In the circumstances, it must be held that no delivery of property belonging to Government actually took place and the offence of cheating was not complete. The appellant, however, had done all that he could to complete the offence on his part. He applied for re-instatement, knowing full well that he had de-sorted his post and accepted employment elsewhere, on a false representation that he had been detained in India, while seeking out an abducted relative. Orders were actually passed re-instating him in service and entailing the consequence that he should be paid his arrears of salary for a certain period. The case had reached an advanced stage beyond mere preparation for the offence and clearly falls within the purview of an attempt to cheat. Although, therefore, the offence of cheating has not beer, brought home to the appellant, we see no ground to interfere in his case as the appellant was clearly guilty of an attempt to commit that offence. As it is, he appears to have escaped with a light punishment.

We, therefore, dismiss the appeal.

A. H. Appeal dismissed.

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