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Criminal Appeal No. 34‑D of 1961, decided on 23rd February 1962.

(On appeal against the order of the High Court of Fast Pakistan, Dacca, dated the 25th November 1960, in Criminal Revision No. 827 of 1960).

S. 407‑ Accepted not explaining short delivery of goods entrusted to him bra; circum stances of case suggesting an explanation‑Benefit of debt goes to accused.

A. Aziz Advocate Supreme Court instructed by Md. Behtar Ali Attorney for Petitioner.

T. Talukdar Senior Advocate Supreme Court (K. A. Bakr Advocate Supreme Court with him) instructed by Shahabuddin Ahmed Attorney for Respondent.

Date of hearing : 23rd February 1962.

Gaizuddin appellant was tried along with Danes and Salimuddin of an offence under section 407 of the Pakistan Penal Code. All the three accused were convicted and sentenced, to undergo three months' rigorous imprisonment each and the appellant was also awarded a sentence of fine of its. 300. On appeal the Sessions Court maintained the conviction of the appellant but acquitted the other two accused. A revision petition filed in the High Court by the appellant was dismissed.

The appellant was the manjhi of a boat while the two acquitted accused were the Mallas of that boat. According to the prosecution story, as it appears from the statement of Abdul Wahed complainant, the appellant was entrusted with 8 tins of cocoanut oil, 10 tins of tit oil, 30 bags of salt, 25 tins of white kerosene oil and some other articles worth about Rs. 4,000 as Dacca for being carried to Barundi Bazar by his boat. The boat reached Barundi Bazar two days later after dusk and, due to the non‑availability of coolies, the goods could not be unloaded at that time. The appellant then left for Manikganj stating the; he had a case in Manikganj on the following day. In the afternoon of the following day the appellant returned and asked the com plainant to arrange for the unloading of the goods. It was then found that 6 tins of cocoanut oil and 5 tins of tit oil were missing. The appellant asked for 24 hours' time to arrange for delivery of the missing goods. He went away but did not return.

These facts were proved by the statement of the complainant and some witnesses to whom it is not necessary to refer because such facts are no longer contested. The appellant when questioned as to whether he had received the goods replied that be was innocent and when further questioned as to whether the goods he delivered were short by six tins of cocoanut oil end live tins of tit oil he still replied that he was innocent. He produced two defence witnesses who stated that there had been some dispute between the complainant and the appellant. The intention of the appellant by the production of this evidence was to show that he had been falsely implicated.

Leave to appeal had been given in this case for a considera tion of the question whether dishonest misappropriation of the goods by the appellant had bee;; proved on the facts appearing from the record.

If the only reasonable conclusion possible from the facts was that the appellant had retained the goods said to have been misappropriated prima facie ferry would be a good case for misappropriation, but it appears to us that this is not the only reasonable inference from the circumstances of the case. On the day wren the boat reached Barundi Bazar the appellant was pre pared to give delivery anti delivery was not taken only because of the absence of coolies. He had to go away at that time because he had to attend to a case in Manikganj on the following day. It is not suggested that this was only an excuse and that in fact he had no case in Manikganj to attend to, He returned and still was prepared to give away delivery, but it was discovered that a part of the goods entrusted to him were missing. On this discovery he still undertook to produce the missing goods. This does not appear to us to be the conduct of a dishonest person and it may be that the goods were removed from the boat in his absence. It is in evidence that one of the Mallas had disappeared after the appellant left for Manikganj.

It Is true that the appellant did not take up the defence to which we are giving effect. But the prosecution case, as disclosed in the statement of the complainant itself, brings out circumstances which create doubt as to whether the disputed goods were retained by the appellant. The attention of the lower Courts does not appear to have been drawn towards this aspect of the case. They have convicted the appellant just because he failed to deliver the goods. Ordinarily when a person is entrusted with the goods and fails to deliver them there will be an onus on him to show that he was not himself retaining the goods. If he gives an explanation and that explanation may be true he cannot be convicted of misappropriation. Even if he himself does not give the explanation, but the circumstances suggest that he may not be in possession of the goods and that the goods may have been lost otherwise, he still cannot be convicted. The onus of proving misappropriation is on the prosecution and, though in the absence of explanation, there may be a presumption from non‑delivery that the goods have been misappropriated, the exis tence of facts which suggest an explanation would be sufficient for giving the accused the benefit of doubt.

This appeal is accepted, the judgments of the lower Courts are set aside and the appellant is acquitted.

K.B.A./A.H. Appeal accepted.

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