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Criminal Appeal No. 476 of 1961, decided on 24th April 1962.
‑Person neither privy to offence nor shown to have conspired with others to commit offence‑Not accomplice-- Evidence Act (I of 1872), S. 133.
Accused neither entrusted with nor having dominion over property, facilitating removal of property and helping to get it loaded in truck‑Guilty of theft and not misappropriation.
Inayat Ullah v. The State P L D 1961 Lah. 669 distinguished.
‑ Accused while being tried for a scheduled offence can be tried for offence which is not scheduled‑Criminal Procedure Code (V of 1898), Ss. 236 & 237‑Penal Code (XLV of 1860), S. 379 read with S. 409.
Monoranjan Dey v. The State P L D 1959 Dacca 616 and Muhammad Ayub Khuhro v. Pakistan P L D 1960 S C (Pak.) 237 distinguished.
and Pakistan Criminal Law (Amendment) Act (XL of 1958), S. 6 (5)‑Sanction accorded under old Act valid for pro secution of offence under new Act‑General Clauses Act (X of 1897), S. 6.
Sh. Muhammad Shafi for Appellant.
M. A. Bajwa for A.‑G. for Respondent.
Dates of hearing : 12th and 13th April 1962.
Muzaffar Hussain Shah, who was tried together with four others by the learned Special Judge Anti‑Corruption, Lahore, came to be convicted under section 379, P. P. C. and was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. :0,000. In default of payment of fine he was ordered to undergo rigorous imprisonment for a further period of eight months. His co‑accused were given the benefit of doubt and got acquitted. Muzaffar Hussain Shah appeals.
2. The material facts of the case are these : Muzaffar Husain Shah, who worked as Store Munshi in the Electricity Department, Central Zone, Shalimar, at the relevant time, committed in his capacity as a public servant, criminal breach of trust in respect of 23 bundles of No. 8‑SWG copper coils worth Rs, 50,000 of Electricity Department, Shalimar Store, by making over the same to Muhammad Ishaque, contractor, who removed it in truck No. PBU‑762. Information regarding the theft and possession of this copper wire by Muzaffar Ahmed co‑accused was received by Sub‑Inspector Muhammad Iqbal (P. W. 5) on the 13th of June 1958, who forwarded the ruqqa Exh. P. A. to Old Anarkali Police Station, on the basis of which Assistant Sub‑Inspector Nizam Din (P. W. 1) registered the case. Muhammad Ismail Assistant Sub‑Inspector (P. W. 11) searched the house of Muzaffar Ahmed in Sant Nagar, Lahore, and recovered copper wire bundles (Exhs. P. 1 to P. 15) vide memo. Exh. P. C. The case was investigated by Sub‑Inspector Muhammad Rafique (P. W. 12) who interrogated Muzaffar Ahmed and on his information Muhammad Hussain and Muhammad Ishaque were arrested. Muhammad Ishaque took the police to the Central Stores Shalimar and Sub‑Inspector Muhammad Rafique took into possession the register (Exh. P. 18) from the possession of the appellant. He also took into possession stock card (Exh. P. K.) and the gate pass (Exh. P. F.) vide memo. Exh. P. M. Truck No. PBU‑762 was recovered from Muhammad Hussainvide memo. Exh. P. Q. The appellant was arrested and was sent up for trial after obtaining the necessary sanction by the police for his prosecution,
3. At the trial, as many as 13 witnesses were examined by the prosecution in support of their case. The material evidence against the appellant is that of Muhammad Aslam Chaukidar (P. W. 4), Khurshid Ahmed Assistant Store‑keeper (P. W. 6), Mr. Gul Muhammad Gulzar, Assistant Executive Engineer (P. W. 8) and Sub‑Inspector Muhammad Rafique (P. W. 12).
4. The appellant admitted in his statement at the close of the prosecution case that he was employed as a Store Munshi in the Electricity Department, Central Zone, Shalimar, in June 1958. He denied that he handed over 23 bundles of No. 8‑SWG copper coils worth Rs. 50,000 from the store at Shalimar, Lahore, to Muzaffar Ahmed, Mahmood Ahmed, Muhammad Ishaque and Muhammad Hussain. The appellant denied that he made over the gate pass (Exh. P. F.) to Muhammad Aslam Chaukidar. He, however, admitted that he checked the gate pass (Exh. P.F.) and had signed it, but denied that it was prepared by him. He denied further that he told Chaukidar Muhammad Aslam that the gate pass was for the drum and the coils of copper wire. The appellant asserted that he was innocent. He examined Sated Ahmed, Line Superintendent (D. W. 1), Fateh Khan Chaukidar (D. W. 2) and Ramzan Chaukidar (D. W. 3) in his defence. The Line Superintendent stated that he obtained one cable drum on the 11th of June 1958, from the Shalimar Stores and handed over the gate pass (Exh. P. F.) to the Chaukidar. The witness admitted that it was the duty of Muzaffar Hussain Shah appellant to hand over the goods from the store. Sated Ahmed is definite in his statement that there was no mention of the copper coil in the gate pass (Exh. P. F.) when it was issued to him. The evidence of Fateh Khan and Ramzan Chaukidars is not of much assistance to the appellant. They stated that the gate pass is usually handed over by the person receiving the goods from the store and that Muzaffar Hussain Shah appellant never remained at the store after it was closed. Fateh Khan said further in his statement that sometime before the present occurrence Muhammad Aslam Chaukidar had a quarrel with Muzaffar Hussain Shah appellant Muhammad Aslam mentioned to the witness that he will take revenge and harm the appellant. The type of the evidence pro duced in defence does not in any manner exonerate the appellant.
5. That fifteen bundles of No. 8‑S W G copper wire were recovered by the police belonging to the Electricity Department on the 13th of June 1958, cannot be denied successfully. The learned Special Judge, who tried this case, considered that in view, of the unsatisfactory nature of the evidence in support of the recovery it was not possible to hold that the same was recovered from the possession of Muzaffar Ahmed. According to the Assistant Executive Engineer, who was called as the eighth witness for the prosecution, the type of copper wire, recovered belonged to the Electricity Department. There is evidence that these bundles were received from the Director General Supply and Develop ment, Karachi, and could not be had in the market.
8. Next, we have on record the evidence of the Assistant Store‑keeper from which it is clear beyond all manner of doubt that when the store at Shalimar was checked after the occurrence it was found that 68 cwt. and 2 qrs. of this type of copper wire was short from the stock in the store. In view of the evidence of these two witnesses there is no escaping the conclusion that the bundles of copper wire which were recovered by the police belonged to the Electricity Department and were taken out of the store at Shalimar, Lahore, as I shall presently endeavour to show from the evidence on record.
7. The contention that the goods could not be taken out by the appellant from the store without the connivance of the S. D. O., the dead Store‑keeper and the Store‑keeper who had the keys of the locks of the store, is not well founded, because we know that some of the wire of the type that was recovered was lying in the store‑yard and was not under lock and key. It is abundantly clear to me on going through the record of the evidence and particularly from the statement of Muhammad Aslam Chaukidar (P. W. 4) that the appellant, together with four others, came in a truck to the store after it had been closed and got 22 bundles of copper wire loaded in that truck. Prior to it a drum was loaded in a truck and at that time the appellant had told Muhammad Aslam Chaukidar that he would hand over to him the gate pass relating to the drums later in the day. The Chaukidar believed the appellant. He states that the appellant gave him the gate pass (Exh. P. F.) after the copper wire had been taken away in the truck and told him that it was for the drum and the copper wire both. There is no reason why Muhammad Aslam Chaukidar should not be believed in this case. He is a completely disin terested and independent witness. It cannot be said against him that he had enmity with the appellant. The learned counsel for Muzaffar Hussain Shah argued with some vehemence that Muhammad Aslam Chaukidar was an accomplice and to rely on his evidence is not safe without corroboration from an independent source. I am unable to agree with the learned counsel for the appellant on this point. There is nothing on record to show that the Chaukidar was privy to the theft. There is no evidence whatsoever on record that Muhammad Aslam Chaukidar conspired with others and assisted in the unauthoriosed removal of bundles of copper wire from the store. I get the impression on going through the evidence that Muhammad Aslam Chaukidar is more of a fool than a knave and in all probability he was duped by Muzaffar Hussain Shah. Muzaffar Hussain Shah, it appears was in league with his co‑accused who unfor tunately for the prosecution were acquitted by the learned Special Judge for reasons with which I do not agree. It is regrettable that the State did not file an appeal against their acquittal. I, therefore, need not enter into merits of the case is so far as those accused are concerned. The evidence on record, in my opinion, is sufficient to bring home the guilt to the appellant.
8. The next question, which needs consideration, is what offence was committed by the appellant in this case. It was contended on the authority of Inayat Ullah v. State (P L D 1961 Lah. 669) that Muzaffar Hussain Shah appellant cannot be said to have committed the offence of theft in respect of the property lying in the store, as he was entrusted with such property. The contention, in my opinion, is wholly devoid of force inasmuch as the appellant had not dominion over property lying in the store, nor there is evidence to show that the property lying in the store was ever entrusted to him. He was a Store Munshi. The S. D. O. in charge issued the material. He signed the gate pass whereby the material was issued. The gate pass (Exh. P. F.) shows that no copper wire of the type, which was the subject of theft in this case, was issued on the 11th of June 1958. Similarly, no copper wire was issued on the 10th of June 1958 from the store. It is no doubt true that it was the duty of Muhammad Aslam Chaukidar to check the material going out of the store with the gate pass, but it seems he could not make a distinction between a cable and a copper wire, because he is Illiterate, and secondly, he seems to have believed the word of the Store Munshi when he told him that the gate pass covered the drum as well as the bundles of the copper wire. I am not prepared to believe that the Chaukidar fabricated the story. The fact that he gave the names of four others in his statement as the culprits and the manner in which the bundles of copper wire were removed from the store, confirms the version that the appellant was concerned in the commission of the crime.
9. Theft is defined in section 378, P. P. C. which runs thus:
" Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft."
The appellant not only facilitated the removal of bundles of copper wire belonging to the Electricity Department, but also helped in getting it loaded in a truck. His act, therefore, clearly C fell within the mischief of section 379, P. P. C. of which he had been convicted by the Special Judge, Anti‑Corruption, Lahore.
10. The argument that the appellant could not be tried in the alternative for theft by the Special Judge as it is not a scheduled offence, is not well‑founded. Undoubtedly, the offence under section 379, P. P. C. Is not a scheduled offence under the Criminal Law (Amendment) Act, but In view of the clear provisions of sub section (7) of section 5 (Act XL of 1958) the appellant could be tried for theft with the offence under section 409, P. P. C. which is a scheduled offence. Subsection (7) of section 5 (Act XL of 1958) reads as under: ‑
" While trying an offence under this Act a Special Judge may also charge with and try other offences not so triable with which the accused may under the provisions of the Code of Criminal Procedure, 1898, relating to the joinder of charges be charged at the same trial."
11. The relevant sections of the Code of Criminal Procedure are sections 236 and 237 which I reproduce below for facility of reference: ‑
" 236. If a single act or series of acts 9s of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once ; or he may be charged in the alternative with having committed some one of the said offences."
" 237. If, in the case mentioned in section 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be con victed of the offence which he is shown to have committed, although he was not charged with it."
" A is charged with theft. It appears that he committed the offence of criminal breach of trust, or that of receiving stolen goods. He may be convicted of criminal breach of trust or of receiving stolen goods (as the case may be) though he was not charged with such offence."
It is thus clear that appellant Muzaffar Hussain Shah could be legally tried and convicted under section 379, P. P. C. by the Special Judge. In the Dacca ruling [Monoranjan Dey v. The State (P L D 1959 Dacca 616)] cited by the learned counsel for the appellant, there is no reference to subsection (7) of section 5 of the Amending Act XL of 1958. The ruling in my opinion is clearly distinguishable. The Supreme Court ruling in Muhammad Ayub Khuhro's case (P L D 1960 S C (Pak) 237) is equally inapplicable.
12. Taking up the objection against the sanction that was accorded for the prosecution of the appellant I consider it necessary to reproduce the sanction. The sanction order runs as under: ‑
"Whereas, I, Mr. M. S. Hamid, the Executive Engineer, Stores Division, West Pakistan, Electricity Department, Central Zone, Bharat Building, Lahore, am satisfied that Muzaffar Hussain Shah son of Tasaddaq Hussain, Stores Munshi, Electricity Department, Central Zone, Shalimar, r/o Chak No. 275/R. B., P. S. Dutchkot, District Lyallpur, arrested under section 409/379, P. P. C. while employed as Stores Munshi, Electricity Depart ment in the month of June 1958, committed breach of trust in respect of 23 bundles of No. 8‑SWG copper coils to the value of Rs. 50,000 from Electricity Department, West Pakistan, Stores Shalimar, and made over the same to Muhammad Ishaque (co‑accused) by loading it in Truck No. PJL‑962. The stores were later on recovered from one Muzaffar Ahmed with whom Muhammad Ishaque has deposited them.
" Whereas I, Mr. M. S. Hamid, the Executive Engineer, Stores Division, West Pakistan, Electricity Department, Central Zone, Lahore, am competent to dismiss the said Muzaffar Hussain Shah, Stores Munshi and whereas after considering the facts constituting the offence and the other circumstances of the case, I am satisfied that the grant of sanction for prosecution is necessary.
" Now, therefore, In exercise of the powers conferred by the Government of West Pakistan under clause (a) of subsection (2) of section 11 of the Pakistan Criminal Law (Amendment) Act 1948.
" I, Mr. M. S. Hamid, the Executive Engineer, Stores Division, Electricity Department, West Pakistan, Central Zone, Lahore, after giving due consideration to the facts and circum stances of the case do hereby sanction under section 5 (5) read with section of the Pakistan Criminal Law (Amendment) Act, 1948, the prosecution of said Muzaffar Hussain Shah, Store Munshi, West Pakistan, Electricity Department, Central Zone, Shalimar, in respect of the offence specified above.
M. S. HAMID,
Executive Engineer,
Store Divn. Elecy. Deptt.
Central Zone, Lahore,
2-9-1958."
13. The objection that sanction was accorded under the old Act and as such, is not proper, is equally untenable. The offence was committed in the month of June 1958, Pakistan Criminal Law (Amendment) Act XL of 1958 came into force on the 23rd of September 1958. The necessary sanction was accorded on the 2nd of September 1958. In the circumstances, the sanction accorded under the old Act would be perfectly valid. Section 6 of the General Clauses Act X of 1897 provides a complete answer to the argument advanced by the learned counsel for the appellant. Section 6 runs thus:
" Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-
(a) . . . . . . . . .
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder ; or
(c) . . . . . . . . .
(d) . . . . . . . . .
(e) . . . . . . . . .
and any such Investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be Imposed as if the repealing Act or Regulation had not been passed."
14. For reasons given by me above, the conviction and the sentence imposed upon the appellant by the Special Judge is upheld. The appeal is dismissed. The appellant is on bail and the District Magistrate will take necessary steps to have Muzaffar Hussain Shah arrested and re-committed to jail to serve out the
K.B.A.
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