2015 Y L R 1377
[Balochistan]
Before Muhammad Noor Meskanzai, C.J. and Muhammad Kamran Khan Mulakhail, J
BANNERS STORE PAKISTAN (PVT.) LTD. through General Manager ---Appellant
versus
Malik ZAFAR IQBAL and 2 others ---Respondents
Criminal Acquittal Appeal No.239 of 2011, decided on 10th February, 2015.
Penal Code (XLV of 1860) ---
----Ss. 409, 406 & 34--- Criminal Procedure Code (V of 1898), S.417(2- A)---Criminal breach of
trust by public servant, common intention---Appeal against acquitt al---Reappraisal of evidence ---
Appeal against acquittal, was not maintainable on two scores; firstly for the reason that it had
been filed by a person, who did not qualify the definition of "aggrieved person"; and secondly
the appeal had been signed by app ellant's counsel, whereas no affidavit was attached with the
same---Regarding merits of the case, under S.409, P.P.C. there must not only be entrustment, but
dishonest, misappropriation or conversion to one's own use or dishonest disposal of property by
the offender, but such ingredients were lacking in the case ---No evidence was available to
conclude that the alleged embezzled amount was encashed by accused persons, or by someone
else acting on their behalf, and the cash was misappropriated ---No material w as on record to
establish that appellant sustained any loss attributed to accused persons ---Appellant also failed to
establish as to what amount, alleged to have been entrusted to accused persons, was
misappropriated---No details of Head of Account or part iculars of the alleged misappropriated
articles was on record which were necessary to strengthen the basis of the allegations ---
Documents produced before the Trial Court being inadmissible in evidence, were not worthy of
credence ---Findings of the Trial Court did not suffer from any misconstruction of evidence and
misconception of law ---Material available on record had been correctly appreciated in its true
perspective ---No reason was shown to interfere in the impugned judgment ---Prosecution had
failed to p rove its case against accused person ---Judgment of acquittal passed in favour of
accused persons was based on the appreciation of material available on record and application of
prudent mind---Appeal against acquittal was dismissed.
Nazeer Ahmed v. Abi d Ahmed and another 2014 PCr.LJ 914; Amirzada Khan and others
v. Ahmed Noor and others PLD 2003 SC 410; Syed Mansoor Ahmed v. Mst. Maqbool Begum
and others 1990 SCMR 1259 and 1990 PCr.LJ 466 rel.
Najamuddin Mengal for Appellant.
Date of hearing: 2nd December, 2014.
ORDER
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---This appeal is directed against
the judgment dated 3- 8-2011 ("the impugned judgment"), passed by the Judicial Magistrate -III,
Quetta ("the trial Court"), whereby the private respondents were acquitted of the charge in case
FIR No.85 of 2009 lodged with Pol ice Station Bijli Road, Quetta under sections 409, 406 read
with section 34 of the Pakistan Penal Code, 1860 ("P.P.C.").
2. Brief facts of the case as stated in the FIR are that on 6th June 2009 complainant Qazi
Ahmed Saeed lodged an FIR bearing No.85 o f 2009, alleging therein that Banners Store
International Pakistan Company Private Limited (appellant) is running departmental stores at
Rawalpindi, Islamabad, Lahore and Quetta with the name of Banners Store. The accused Malik
Zafar Iqbal and Shafeh Muham mad Morijo (private respondents herein) were performing their
duties at Banners Store Pishin Stop as operation/ administrative Manager and Accountant. An
inquiry was conducted, as a result thereof, it was confirmed that both the accused have
embezzled/ mis appropriated huge amounts in violation of the policy of the company. It was
alleged that the they had committed embezzlement of Rs.176,586, which came out as a shortage
in physical cash of Rs.95,500, amount of sale shown lesser i.e. Rs.58,759, for the mont hs of
November and December 2008, amount of Rs.20,327 was shown as additional amount and 5%
of the stocks payment of commission was mis -appropriated. It was further alleged that the
respondents embezzled the stock of (Non Tiens Products) i.e. saleable products and
misappropriated Rs.3,608,278 (Rupees three millions six lacs eight thousand two hundred
seventy eight). The accused/private respondents had further caused shortage in saleable products
of Rs.2,11,078. Besides the accused stated to have misappropri ated Rs.5,529,742 (Rupees five
million five lacs twenty nine thousand seven hundred forty two) in terms of expenses, but with
no expense voucher in record. That since December 2008 till 8th May 2009, payment of
Rs.40,98630 through 45 expense vouchers, in D ecember 2008 payment of Rs.47,808 through
(10) ten expense vouchers and in March, 2009 payment of Rs.29,037 through (11) eleven
expense vouchers had been shown without the approval of the competent authority, which was
misappropriated by the accused/privat e respondents through fraud, and when the accused/private
respondents were called upon to explain their position, the accused did not come to office and
declined to cooperate with the administration of the company. Resultantly, the aforesaid case
was regis tered.
3. On completion of investigation challan was submitted before the learned trial court
against the respondents. The charge was framed against them, to which they did not plead guilty
and claimed trial. The prosecution in order to substantiate the charge produced four witnesses.
After closure of the prosecution side the respondents were examined under section 342, Cr.P.C.,
wherein they once again professed their innocence, they neither opted to record their statements
on oath in terms of section 340(2), Cr.P.C. nor produced any defence witness. On conclusion of
the trial both the respondents were acquitted of the charge vide impugned judgment, hence, this
appeal.
4. Heard the learned counsel for the appellant and perused the record.
5. Before adv erting to the merits of the case it would be advantageous to reproduce order
dated 31- 10-2013, whereby a query regarding the maintainability of the appeal was posed to the
learned counsel for the appellant. The said order read as follows: --
"This appeal has been filed through counsel by Manager Banners Store Pakistan (Pvt.)
Limited. The learned counsel for the appellant was asked to explain as to how the Manager of the
Company is aggrieved person and how the appeal could be filed and signed by the counse l.
The learned counsel requests for time to assist the court on both the legal points.
The request so made is allowed. Adjourned"
Thereafter, till the last date of hearing the answer to the query posed ibid could not be
procured by the appellant' s counsel, as he either kept seeking adjournment or did not turn up.
However, we ourselves have decided to take benefit of a reported judgment of this court on the
said legal point. The question regarding "person aggrieved" was resolved in the case of Naze er
Ahmed v. Abid Ahmed and another (2014 PCr.LJ 914) in the following manner: --
"6. Before considering the second contention of the learned counsel for the appellant,
reference is made to the Black's Law Dictionary 4th - Edition at page 87 which defines the term
aggrieved as under: -
"AGGRIEVED:
having suffered loss or injury: damnified: injured.
While aggrieved party is defined as: -
AGGRIEVED PARTY.
One, whose legal right is invaded by an act, complained of or whose pecuniary interest is
directly affected by a decree or judgment. The word aggrieved refers to a substantial grievance, a
denial of some personal or property right; or the imposition upon a party of a burden or
obligation."
The definition of "a person aggrieved" for the purpose of appeal against acquittal in hurt
cases had come before this Court in Mir Gul's case reported in 1999 PCr.LJ 1507, wherein a
larger Bench was constituted to examine the identical proposition and following question was
framed: --
"Whether in presence of injured/ victim the complainant/informer could be termed as the
person aggrieved within the provision of section 417(2- A), Cr.P.C.?"
While dealing with the proposition the law was laid down "a person aggrieved" is defined
with following observations :--
"In order to further elaborate this proposition reference to the definitions of "Wali" under
section 299, Clause (m), P.P.C. would not be out of context according to which "Wali" means a
person entitled to claim Qisas. Similarly section 337 -O, P.P.C . defines Wali in case of hurt
according to which Wali shall be victim provided that if the victim is a minor or insane, his right
of Qisas shall be exercised by his father or paternal grandfather howsoever high and the heirs of
the victim if the later die s before the execution of Qisas and the Government in absence of the
victim or the heirs of the victim. Thus, according to plain language of this section as well in the
case of hurt to a victim, status of Wali under the Islamic Law has been given as such applying
the principle of internal aid to interpret a statute, by making reference to different provisions
under the same law, i.e. section 345(2), Cr.P.C. and seeking help from sec -tion 337(O), P.P.C.
we are inclined to hold that under section 417(2- A), Cr.P.C. the victim being "a person
aggrieved" would have a right to file appeal as far as the informer and anyone else even being
the heir of victim would not be competent to file appeal in the cases of hurt."
Thus, for the foregoing reasons above question is answered as follows: --
"Appeal under section 417(2- A), Cr.P.C. in a hurt case defined by the P.P.C. and tried by
the Courts constituted under Criminal Procedure Code shall be competent by a person who has
been hurt, and if he is a minor or insane t hen appeal will be competent on his behalf by his father
and grandfather or a paternal grandfather howsoever high he may be, if he (convict) dies for any
other reason before final decision of the hurt case then appeal would be competent by his legal
heirs. "
On the touchstone of the judgment supra, it can safely be concluded that the instant
appeal is not maintainable on two scores, first for the reason that it has been filed by a person
who does not qualify the definition of aggrieved person and secondly the appeal has been signed
by the appellant's counsel, whereas no affidavit is attached with the same.
6. However, in the larger interest of justice we have considered it apt to comment on the
merits of the case as well. It is an admitted feature of the case that at the time of appointment of
the respondents the appellant had handed over or entrusted to them certain articles, any specified
amount, which would have fallen under the exclusive control or domain of the respondents. It
may be observed that to constitute an offence under section 409, P.P.C. there must not only be
entrustment but dishonest, misappropriation or conversion to one's own use or dishonest disposal
of property by the offender. As clearly obvious from the scrutiny of evidence, such ingredients
are absolutely lacking in the present case. There is no evidence to conclude that the alleged
embezzled amount was enchased by the respondents, or by some one else acting on there behalf
and the cash was misappropriated. Even there is no material to establish that the appellant
sustained any loss attributable to the respondents. The appellant also failed to establish as to what
amount, alleged to have been entrusted to the respondents was misappropriated, as it is evident
from the FIR that there is no detail of Head of Accounts or particulars of the alleged
misappropriated articles, which were otherwise necessary to strengthen the basis of the
allegations. The learned trial court has rightly analyzed the material available on record, while
determining point No.2 in the impugned judgment by holding as under:
" for the sake of arguments if even the entrustment is admitted, even then prosecution
case is doubtful for the reasons that the complainant, Qazi Ahmed Saeed Admitted [sic] in his
examination in chief that he reported the matter on 3 -6-2009, but the FIR has been lodged on 6-
6-2009, with the unexplained delay of about three days, the complainant during cross
examination while replying to the question No.119, admitted that he did not mention the date of
incident in the FIR, which has made the version of complainant extremely cloundy [sic].
Secondly the complainant has made improvements in his statement before the court which he has
himself admitted during cross examination while replying to the qu estion No.120, in following
words:
"may be I have told the story, which I did not mention in the FIR."
7. The statement of Investigation Officer itself negates the existence of the original
documents, as he stated that during the investigation the com plainant did not deliver the original
papers, and had rather stated that he himself would produce the original documents in court. The
documents that were exhibited in evidence were without permission of the court to lead
secondary evidence, therefore same cannot be taken into consideration. Reliance is placed on the
case of Amirzada Khan and others v. Ahmed Noor and others, PLD 2003 SC 410, wherein, the
Hon'ble apex Court has held as under: --
" ... we were amazed to find that instead of original document a photostat copy was
exhibited in evidence without the leave of the trial Court to lead secondary evidence, after the
proof of loss or destruction of the original one. Since the respondents did not plead loss or
destruction of the original agreement, we would be legally justified in presuming that they are
guilty of withholding best available primary evidence. We feel, had it been produced in Court, it
would perhaps have been unfavourable to them. Since the original document has not been placed
on record, we are not inclined to pass any order for impounding the same. Assumption of the
trial Court as well as the High Court that the deed of sale being more than 30 years old was a
valid piece of evidence within the contemplation of Article 100 of Qanun- e-Shah adat Order,
appears to be misconceived. Suffice it to observe that the document itself being inadmissible in
evidence, hardly any presumption of correctness or its validity can be attached to it in the
circumstances. In the absence of original document, in our considered opinion, no presumption
of correctness or its due execution can be drawn in this case."
In this regard, while dealing with the above proposition in the case of Syed Mansoor
Ahmed v. Mst. Magbool Begum and others (1990 SCMR 1259), held as under: --
"It was urged on behalf of the appellant that, the production of a certified copy of the
registered deed was admissible in evidence without the original being tendered, under section
57(5) of the Registration Act, 1908, and the appellant was not required to adduce any other
secondary evidence to prove the original sale deed. This argument is devoid of substance. The
only effect of section 57(2) of Registration Act, as plainly warranted by its terms is that the
certified copy of a registered document "shall be admissible for the purpose of proving contents
of the original document". Admissibility of evidence is to be distinguished from proof. The
certified copy of a registered document may prove the contents of the original document, but
merely s howing as to what were the contents of the original document, is not sufficient in
absence of the proof of execution of the original document. Therefore, at best it is secondary
evidence of the contents of the original. Still the question whether such secondary evidence
could be produced depends upon the satisfaction of the conditions laid down in Article 76 of the
Qanun- e-Shahadat, 1984, and in the present case clause (c) thereof is attracted, namely, that it
must be proved that the original was destroyed in the manner alleged. Therefore, the appellant
had no right to lead the secondary evidence of the contents of the original. In Kartar Singh v.
Didar Singh and others AIR 1934 Lah. 282, it was held that production of a registered document
in evidence did not dispense with the necessity of proving its execution if it is denied. Similarly
in Muhammad Cherag v. Dullay Khan PLD 1954 Dacca 134, it was laid down that a person
relying on a document is bound to prove its execution and the fact that it was registere d makes
no difference, because the inquiry made under the Registration Act with regard to the execution
of the document by the alleged executant is not a judicial inquiry by a court, but is confined to
the purpose of registration as departmental duty."
8. There can be no cavil with the proposition that photocopies are not only inadmissible in
evidence, but also do not confer any right, title or interest in favour of appellant. The trial Court
has rightly adverted to this vital aspect of the case and discu ssed the veracity of the same by
placing reliance on 1990 PCr.LJ 466 Lahore.
9. After reappraisal of evidence on record; it is safely concluded that the documents
produced before the learned trial court being inadmissible in evidence, are not worthy of
credence, as well. The findings of the learned trial court do not suffer from any misconstruction
of evidence and misconception of law and the material available on record has been correctly
appreciated in its true perspective, therefore, we find no reason to interfere in the impugned
judgment.
10. The prosecution has failed to prove its case against the respondents at all. The photo
copies of the documents produced, could have been considered by the trial Court, only after
seeing the originals and compari ng the same photo copies.
The facts and the circumstances discussed hereinabove have led us to an irresistible
conclusion that the judgment of acquittal passed in favour of the respondents is based on true
appreciation of the material available on recor d and application of prudent mind. We are,
therefore, persuaded to dismiss this appeal in limine.
HBT/38/Bal Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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