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Petitioner: TAMIZUDDIN AHMED Alias TAMIZUDDIN VS Respondent: THE STATE
Court Name: Dhaka High Court Judge(s): A. K. Muhammad Nurul Islam Title: TAMIZUDDIN AHMED Alias TAMIZUDDIN vs THE STATE Case No.: Criminal Appeal No. 382 of 1957 Date of Judgment:1970-09-15 Reported As: 1971 P Cr. L J 707 Result: Appeal allowed
JUDGMENT
JUDGMENT The accused-appellant Tamizuddin Ahmed alias Tamizuddin was convicted by the Sessions Judge and Ex. Officio Special Judge, Sylhet, under section 409 of the Pakistan Penal Code and sentenced to six months' rigorous imprisonment and a fine of Rs. 4,300 only, in default to a further period of six months rigorous imprisonment, by his judgment and order dated 19-11-67 in Provincial Special Case No. 5 (A) of 1965. The present appeal is directed against the said conviction and sentence. The prosecution case may, briefly be stated as follows; One Abdus Sabur was the Chairman of Khadempura Union Council No. 4 in the year 1962, and the accused appellant and Syedur Rahman were Members of the said Union Council. One Hossain Ahmed was the Secretary of the said Council in that year. 700 maunds of American gift wheat were received by the Union Council within the period commencing from 25-10-62, to 8-11-62, from the Special Relief Officer, for distribution of the same among the poor people of the Union. 100 maunds of wheat were distributed and after the allegation of misappropriation was made, 170 maunds 30-- seers were seized and distributed and thus the balance quantity of wheat was found to have been misappropriated by the accused-appellant. On 9-11-62, one Aftabuddin Ahmed, P. W. 2, filed a petition to the District Anti-Corruption Officer and the following day he filed another petition of complaint to the Sub-Divisional Officer, Sadar Sylhet. The Inspector of Anti-Corruption Department initiate an enquiry on 13-11-62 and the formal case was started at the Kotwali P. S. Thereafter charge-sheet was submitted 'under sections 467/409/109 of the Pakistan Penal Code against all the above-named four accused persons including the accused appellant. It has been stated in the petition of appeal in this Court that all the said accused were, thereafter tried by Mr. A. B. Khan, Assistant Sessions Judge and Ex Officio Judge, 2nd Court, Sylhet, but before the delivery of the
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judgment it was pointed out that joint trial of the accused persons was bad and illegal. The said Special Judge, thereafter, split up the case and started to cases-one Provincial Special Case No. 5 of 1965 and the other Provincial Special Case No. 5-A of 1965. In the meantime the said Special Judge was transferred. After the necessary sanction Exh. 13 was obtained the accused appellant along with three ether accused persons were put on trial before the learned Additional Sessions Judge and Ex. Officio Special Judge, Sylhet Mr. Amanullah Khan. The accused appellant, Abdus Sabur and Syedur Rahman were charged under section 409 of the Pakistan Penal Code or in the alternative under section 109/409 of the Pakistan Penal Code. The accused Hussain Ahmed was charged under section 109/409 of the Pakistan Penal Code. It appears from the records that although Mr. A. B. Khan, the Special Judge split up the case into mo before his trans--fer, all the accused persons were tried jointly by Mr. Amanullah Khan, Ex Officio Special Judge in Provincial Case No. 5-A of 1965 after charging the accused persons as stated above and without taking into consideration that on objection the case was already split up into to on separate charges against the accused persons as mentioned above: The accusations were read over to the accused persons who pleaded not guilty to the charges. The defence of the accused appellant is that he made over 600 maunds of wheat to the accused Abdus Sabur, then Chairman of the Union Council and obtained receipt and that the receipt and distribution of 100 maunds of wheat are not disputed. The accused Abdus Sabur, on the other hand, denied to have received 600 maunds of wheat and the grant of receipt thereof; but he admitted seizure of 170 maunds and 30-- seers out of 600 maunds of wheat from the Union Council godown by the police and the distribution of the seized quantity of wheat. The defence of the other to accused persons, namely, Syedur Rahman and Husain Ahmed, was that they had no connection with the said quantity of wheat received by the Union Council for distribution. In this case as many as 30 witnesses have been examined by the prosecution and the-defence examined none. The learned Special Judge found the accused-appellant guilty and accordingly convicted and sentenced him as stated above by his judgment and order dated 19th August 1967. He, however, found the other three accused persons not guilty and acquitted them. I have heard the learned Advocates appearing on behalf of the accused appellant and for the State. I have perused the judgment of the Court below and carefully scrutinised the material evidence the facts and circumstances of the case and other connected papers on record. Mr. A. Aziz, the learned Advocate for the accused appellant, urges to points in support of the appeal. His first contention is that the prosecution failed to prove that the accused appellant was entrusted with the goods in question and had sole dominion over the same and as such the conviction against him under sec--tion 409 of the Pakistan Penal Code is not legal and tenable. His next contention is that the joint trial of the accused appellant with Abdus Sabur is not legally maintainable. To appreciate, the first contention of Mr. Aziz, let me now consider the evidence adduced by the prosecution. In scrutinising the evidence of the case it has to be remembered that where the charge against the accused is that of criminal breach of trust, the prosecution shall have to prove beyond reasonable doubt not only entrustment of or dominion over the property in question but also that the accused either dishonestly misappropriated, converted, used or disposed of the said property himself, or that he wilfully suffered some other person to do so. That is to say, the evidence in such a case shall have to be examined with reference to the ingredients of an offence punishable under section 409 of the Pakistan Penal Code. In the present case before me, P. W. 1 Aftabuddin Ahmed who is a teacher of Krishnagobinda Primary School and a resident of the village Debpur, within the Union Council No. 4 Khadimpura, in his examination-in-chief says that in 1962, American gift wheat to the tune of 700 maunds were given to the Union Council of Khadimpura for
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distribution among the poor public during the period between 25-10-62 to 8-11-62 in three instalments through the Sub-Divisional Officer and Special Relief Officer, Sylhet, Sadar. He further says that about 270 maunds of wheat had been distributed and accounted for and the rest was misappropriated by the accused-appellant. He also deposes to the effect that on 9-11-62, he filed a petition, Exh. 1 to the Anticorruption Department. The said witness also filed Exh. 1 (a) in the Court of the S. D. O. The said witness admits in cross-examination that he did not see the accused- appellant to receive the wheat or to distribute the same. He also says that he heard that 100 maunds of wheat were received in the first instalment andmas distributed. But he does not say who received and distributed the said quantity of wheat. He admits in cross-examination that Abdus Sabur, the Chairman, is his Chacha Sasur. He also admits that Shaukat Ali, the present Chairman and Tamijuddin contested for Chairmanship. He denies the suggestion that he himself, Abdus Sabur and 'Shaukat Ali conspired to put the accused-appellant to trouble and brought the case against him. But the evidence of the said witness in cross-examination as quoted below is very significant:- "I have no personal knowledge how much wheat bad been distributed and how much lifted. I learnt from the Relief Officer and I' also saw the lifted stock in the godown and also heard from the Chairman and other members of the Council." The evidence of this witness does not help the prosecution in proving the entrustment of the goods in question with the accused-appellant. Moreover, in cross, examination the said witness has also said that in the first information report he stated that 70 bags of wheat were lying in the stock as' per account up to the previous day of filing the first information report and he heard of the same from the Members and Chairman. He further says that in all about 250 maunds of American gift wheat had been distributed. In the petition which was submitted to the S. D- O., Sadar, Sylhet on 10- 11-62, and was treated as first information report, Exh. 1, the said witness stated " N. B. It will not be out of place to mention here that only 175 maunds containing in 70 bags is lying in the stock for further distribution up to yesterday's account". So the evidence of P. W. I further shows that 70 bags of wheat were lying in the stock for further distribution as accounted for up to the previous date of his filing the said petition. The said evidence practically cuts at the root of the prosecution. If 170 maunds 30-- seers of wheat were seized by the police how it can be said that there was any misappropriation. The witness has said that 70 bags of wheat were lying in the stock being accounted for on 9-11-62. So this portion of the' evidence as elicited from the cross-examination of the witness instead of proving the case of misappropriation of the goods in question, disproves the same. P. W. 2 Sekandar Ali Chowdhury was a Member in the said Union Council at the relevant the. He says in examina--tion-in-chief that he was present at the Union Council meeting on 11-11-62 and Abdus Sabur, the Chairman presided over the meeting. He further says that on 9-11-62 at night Abdus Sabur told him that Sayedur Rahman and Tamijuddin misappropriated the wheat and he had reported the matter to the O. C. Kotwali. In cross-examination on behalf of Tamijuddin he says that he did not state to the Investigating Officer that, Abdus Sabur stated to him that Tamijuddin and Sayedur Rahman mis--appropriated the wheat and he reported the matter to the O. C., Kotwali. He, of course, denied the suggestion that Tamijuddin opposed the construction of the seed godown at Pargana Bazar although it was agreed to by all the Members. It is very peculiar that after filing the complaint on 9-11-62, a resolution was adopted in the matter at the instance of the Chairman Abdus Sabur in the alleged meeting of the members held on 11-11-62. This witness also does not prove that the accused --appellant was entrusted with the goods in question and he misappropriated the same. P. W. 3 Golam Murtuza Chowdhury attested the seizure list Exh. 2. In cross-examination he says that he is a nominated Member of the Union Council with the accused-appellant and other members.
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The evidence in his cross-examination as quoted below is very significant. "Tobarak Ali Choudhury, was also a member with us. He distributed wheat in our ward No. 1." So, if Tobarak Ali Chowdhury, a member of the Union Council also distributed wheat in ward No. 1, how it can be said that the accused-appellant was entrusted with the entire wheat in question and he misappropriated the same. The evidence of P. W. 4 Gopendra Kumar Ghose who was also a Member of the said Union Council in 1962 is very significant. He says in examination-in-chief that Tamijuddin lifted 700 maunds of American gift wheat but he could not account for the same. But in examination-in-chief he also says that he received on 8-11-52, 16 bags of wheat from a truck brought by Tamijuddin who delivered the said 16 bags to him on receipt, Exh. 5. That shows that the accused-appellant was not the only person who was entrusted with the entire quantity of wheat for distribution and he alone did not undertake the work of distribution of the said goods to the public. In cross-examination on behalf of Abdus Sabur this witness has stated as follows:- "I met Abdus Sabur Chairman at the Union Council godown on 9-11-62. We opened the godown and found 54 bags of wheat in the stock. Members Abdul Mannan and Mahon Lal were present: Showkat Ali and others were there. Abdus Sabur sent a report the shortage to the O/C Kotwali and kept a copy of the report. This evidence of P. W. 4 clearly shows that the key of the godown where the wheat in question was stocked was with the Chairman. On the other hand, there is no evidence to show that the accused- appellant had with him the key of the godown. That evidence practically demolishes the entire case of the prosecu--tion. In cross-examination this witness further says that, in all, he received 36 bags for his ward and that he did not know of distribution of wheat of the wards other than his own ward. He admits in cross-examination that the Members did not note their presence in the proceeding book of the meeting held on 11-11-62. That supports the defence case that, in fact, no meeting of the members of the Union Council was held on 11-11-62 and the proceeding was subsequently created by the Chairman in collusion with Shaukat Ali and other Members. This witness says that Abdul Mannan became the Chairman defeating the accused-appellant. This witness also says in cross--examination that at his request Tamijuddin delivered 16 bags of wheat at Ramkrishna Mission Dispensary. This witness has also stated that Chowkidars kept watch on the godown. But none of the Chowkidars has been examined by the prosecution in this case. If Chowkidars were kept for watching the godown then the best witness--the Chowkidars have been withheld by the prosecution and the presumption in this respect must be drawn in favour of the accused-appellant. This witness signi--ficantly has also stated that he did not know if the Union Council Office maintained Stock Register, but now it is maintained and the signatures Exhs. D and D (1) look like that of Abdus Sabur, the Chairman. The said evidence also shows that the stock register was maintained by the Chairman himself. P. W. 5 Shaukat Ali was the Chairman of the said Union Council in the year 1967 when he was giving evidence in, the case. This witness in examination-in-chief does not say any--thing which may be in favour of the prosecution. On the other hand, it appears from his cross-examination that the accused appellant contested against him for chairmanship. This witness admits that he was an accused in a paddy cutting case. In cross-examination he also says that he does not know if Tamijuddin's father made a complaint that his brother defalcated Rahpara Dargah Fund. Although in examination-in-chief he says that the Muster Roll Exh. 1 3 and Exh. B (1) are in the hands of the accused-appellant, but in cross-examination he says 4I did not see Tamijuddin write the Muster Roll. I know his hand-writing as I am the Chairman he is a member." In cross-examination he further says that he states before the Court in the previous case that Tamijuddin is a reliable man. However this witness is interested and has got enmity with the accused appellant. It is very difficult to put any reliance at on the evidence of this witness.
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P. W. 6 Tarikuddin deposes to the effect that he has got a tea and a grocery shop near the godown where the wheats were stocked after being carried in truck by the accused appellant and Syedur Rahman. In his examination-in-chief he further says that after being unloaded then and there the wheats were taken into the godown with the help of Chowkidars and others. In examination-in- chief he also says that on 8-11-62 at about 4 p. m. Some American gift wheats were taken to the godown in a truck by the accused Sayedur Rahman. In cross--examination this witness says that on 9-11-62, at about 9 or 10 a.m. Abdus Sabur and others came to the godown adjacent to his shop and inspected the wheat bags and that Sabur and other Members said that they got only 70 bags of wheat in the godown. So according to this witness also the Chairman and others had access in the said godown. In cross-examination on behalf of the accused appellant this witness has admitted that Md. Ali, a cousin of the accused-appellant brought a criminal case against him. He further says that Entry No. 104, Exh. C is in the hand of Tamijuddin but he cannot say who wrote the Muster Roll, and that the said Entry No. 104 was not written in his presence. This witness also has not deposed so as to support the prosecution case. Rather, his evidence shows that the accused- appellant is not the only person who was entrusted with the wheats in question. Moreover, he is not an independent witness as he has got enmity with the accused appellant whose cousin Md. Ali instituted a criminal case against him as admitted by himself. P. W. 7 was tendered and was not cross-examined. P. W. 3 was also tendered by the prosecution and in cross-examination he denied the suggestion that he was an uncle of Shaukat Ali, the Chairman. P. W. 9 was also tendered by the prosecution and his cross-examination was declined. P. W. 10 was also tendered by the prosecution and in cross-examination nothing in particular has been elicited which may be worth consideration P. Ws. 11 and 12 were also tendered by the prosecution and their cross-examination was declined. P. W. 13 Nasir Ali was tendered by the prosecution and in cross-examination on behalf of the accused appellant he says that he was a Chowkidar of the Union Council No. 4 and it is not a fact that the accused appellant got him dismissed. It does not-appear that he was a Chowkidar of the Union Council at the relevant the P. Ws. 14 and 15 were tendered by the prosecution and their cross-examination was declined P. W. 16 A. K. Roy Dastidar deposed to the effect that he was officer in-charge of Sylhet Sadar Supply Godown in 1962 and on 23-10-63 he received the delivery order from the Special Officer directing him to deliver the American gift wheat to Tamijuddin. He says in examination-in-chief that the wheat was delivered in the presence of himself, the clerks and other employees of the godown, and that the accused Sayedur Rahman was present with Tamijuddin. In cross-examination he says that he did not know Tamijuddin before he carne to take delivery of the wheat and that Tamijuddin came with the authority letters Exh. 7, 7 (a) and 7 (b) to take delivery of the goods. P. W 17 Syed Ali was tendered by the prosecution. In cross---examination on behalf of Tamijuddin this witness admits that Tamijuddin is the Secretary of the Primary School in which Aftabuddin P. W. 1 serves. He further says that Haris, Asaddot were the Chowkidars of the godown. But the said Chowkidars were not examined by the prosecution, nor any explanation has been given for non-examination of the said Chowkidars. This witness after being recalled stated that he stated in the Court before that he did not know what kind of Secretary Tamijuddin is of the School. At least from the cross- examination of this witness It appears that P. W. 1 was not telling the truth when he denied the suggestion made to him on behalf of the accused-appellant that Tamijuddin is the Secretary of the School and he reported against him and got his transfer for a short period. P. W. 18 was tendered by the prosecution and in cross--examination ate admits that Tamijuddin wanted the Union Council Office at Bahar and the Chairman Sabur wanted the same at Daftargaon, in front of his house. This evidence also shows that Tamijuddin had enmity with the Chairman Sabur P. Ws. 19 and 20 were tendered by the prosecution and cross-examination was declined. P. W. 21 was also tendered and in cross-examination he says that he does not know if
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Tamijuddin made a gift of the site of the school in which Aftabuddin serves P. W. 22 is the Bench Assistant in the Court of Mr. Azizur Rahman, Magistrate Ist class and in his presence the specimen signatures of Tamijuddin were taken P. W. 23 is Mr. S. K. Ahmed, Magistrate, 1st Class, Sylhet in whose presence the specimen signatures of Abdus Sabur were taken. P. W. 24 was tendered and his cross-examination was declined. P. W. 25 was the Special Relief Officer in 1962 to Sylhet Sadar. In examina--tion-in-chief he says that he informed the Chairman concerned of the allotment and he received the letter of authority Exhs. 3, 3 (a) and 3 (b) and issued authority letters Exh. 7, 7 (a) and 7 (b) to the officer-in-charge, Local Supply Depot. In cross--examination on behalf of Tamijuddin he says that the signatures Exhs. D and D (1) are of Abdus Sabur. In cross-examination on behalf of Abdus Sabur this witness says that he knew only the signature of the Chairman who came to his office and signed identification in `his presence. He denied the suggestion that he had intimacy with Tamijuddin. His evidence has dealt a fatal blow to the prosecution case with reference to Exhs. D and D (1) and there is nothing to disbelieve the evidence of the said witness who is quite independent and reliable. P. W. 26 Abdul Mannan married the daughter of accused Sabur in 1964. In examination-in-chief he says that he was present at the delivery of 700 maunds of American gift wheat to Tamijuddin with whom Sayedur Rahman was also present. In examination-in-chief he also says that he was a store-keeper in a local supply godown in November 1962. But in cross--examination he says that he has no paper to show that he was present at the delivery. No reliance can be put on the evidence of this witness who is a relation of the accused Abdus Sabur, the Chairman, and was not present at the the of delivery of wheat to Tamijuddin. P. W. 27 is a formal witness who proved the sanction, Exh. 13. P. W. 28 proved the first information report. P. W. 29 Mr. A. Kalam was the Assistant Inspector of D. A. B at the relevant the at Sylhet. He says that he seized in all 70 bags of wheat in connection with the case from the godown of the Union Council in question. In cross-examination on behalf of the accused-appellant this witness says that Forkan, Yunus, Aktar and Tota are charge-sheet witnesses; but the said charge-sheet witnesses have not been examined by the prosecution and no explanation has been given for their non-examination. It has been argued by the learned Advocate for the accused-appellant that the prosecution has 'withheld the said material witnesses and adverse inference should be drawn against the prosecution for non-examination of the said witnesses. However in cross-examina-- tion P. W. 9 says that he does not remember if Tamijuddin filed a complaint against him to the .S. D. O. Alleging that he was tempering with the evidence, but he also says, when the connected paper was shown to him, that he was asked to report on certain complaint and he reported. He denies the suggestion that he himself, Sabur and others made the receipt marked Y and Z black when they found that the opinion of the expert went against Abdus Sabur and in favour of Tamijuddin. P. W. 30 is the Handwriting Expert. His evidence, instead of supporting the prosecution, has gone in favour of the accused --appellant to a great extent. From my discussion of the evidence of the prosecution witnesses above, it is clear that there is substance in the first contention of the learned Advocate for the accused-appellant and I hold that the prosecution has miserably failed to prove that the accused-appellant was entrusted with the wheats in question or that he had exclusive dominion over the same and that he dishonestly misappropriated, converted, used or dis--posed of that property himself or that he wilfully suffered some other person to be the same. The view which I have taken with regard to the principle of law finds support from many decisions of different High Courts and Supreme Court. Reference may be made to some of these decisions. In the case of Jogendra Kishore Sircar v. Crown (PLD 1951 Dacca 44) the complainant kept with the permission of the accused but in his absence, several maunds of gur in the accused's house who did not know how much gur was stocked nor was he present when the complainant later removed
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a certain quantity of gur out of the stored stock, and it was held that in the circumstances there was no entrustment of gur with the accused as contemplated under section 406 of the Pakistan Penal Code. In the case of Abdul Salam Chowdhury v. The Crown (PLD 1952 Dacca 352), Ispahani and Ibrahim, JJ. Held that entrustment is an essential ingredient of the offence of criminal breach of trust and a man cannot be guilty of the said offence unless he is entrusted with the property. In the case of Crown v. Matilal Sen and others (PLD 1953 Dacca 141), Ispahani and Ibrahim, JJ. Held that in order to constitute an abetment of an offence under section 406/109, P. P. C. The intention is essential and person having no knowledge of the fraud, cannot have…
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