Lawkidunya Banner

Section 409 PPC Judgment Anti-Corruption Multan Pervaiz Haider Khan Vs The State etc

Section 409 PPC Judgment Anti-Corruption Multan Pervaiz Haider Khan Vs The State etc

Section 409 PPC or Section 409 Criminal Breach of Trust under Pakistan Penal Code is very famous section, Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished in Law,

Criminal Appeal No. 576 of 2015
(Pervaiz Haider Khan Vs. The State etc.)
Appellant by:
Mr. Shakeel Javed Chaudhry, Advocate.
Complainant by:
Mr. Muhammad Suleman Bhatti, Advocate.
State by:
Mr. Muhammad Sarfraz Khan Khichi, D.D.P.P.
Tariq Saleem Sheikh, J:- This appeal is directed against judgment dated 6-10-2015 passed by the learned Special Judge, Anti-Corruption, Multan, in case FIR No.36/2012 dated 29-9-2012 that was registered at Police Station ACE, Khanewal, for an offence under Section 409 PPC read with Section 5(2) of the Prevention of Corruption Act, 1947. Through the said judgment Appellant Pervaiz Haider has been convicted and sentenced as under:
i) Under Section 409 PPC 10 years rigorous imprisonment with a fine of Rs.100,000/-. In the event of default in the payment of fine, he shall undergo simple imprisonment for a further period of six months.
ii) Under Section 5(2) of the Prevention of Corruption Act, 1947
Three years rigorous imprisonment with a fine of Rs.50,000/-. In the event of default in the payment of fine, he shall undergo simple imprisonment for a further period of four months.
Crl. Appeal No.576/2015
Pervaiz Haider Khan v. The State etc.
– 2 –
Both the sentences were ordered to run concurrently. Benefit of Section 382-B Cr.P.C. was extended to the Appellant.
iii) Appellant was also directed to deposit the embezzled amount of Rs.36,00,000/- in the account of TMA, Khanewal.
2. The prosecution case is that previously Immovable Property Tax was collected in Khanewal by the Department itself. The Appellant was a recovery clerk of TMA Khanewal. When FIR Ex.PD was lodged he was accused of having embezzled Rs. 21,42,192/- during the period July-2010 to November-2011 by using private AV books. However, during the subsequent reconciliation of accounts it was discovered that the embezzled amount was Rs.52,05,241/-. Out of this sum the Appellant returned Rs.14,00,000/- by depositing the same in the Government Treasury. As such, the total misappropriated amount stood at Rs.38,05,241/-.

3. The Appellant was investigated and was found guilty. He was challaned and was summoned to face the trial by the learned Special Judge, Anti-Corruption, Multan. On 5-11-2013, the Appellant was indicted. He pleaded not guilty and claimed trial. The prosecution produced five witnesses to prove its case. On the completion of the prosecution evidence the learned Court recorded statement of the Appellant under Section 342 Cr.P.C. He refuted the allegations against him but did not record statement on oath under Section 340(2) Cr.P.C. He did not produce any evidence in his defence either. On the conclusion of trial, the learned Special Court convicted and sentenced the Appellant as mentioned in the opening paragraph of this judgment.

4. Learned counsel for the Appellant contended that the learned Special Judge, Anti-Corruption, Multan, had recorded conviction against the Appellant without evaluating evidence. He argued that the impugned judgment did not meet the mandatory requirements of Section 367 Cr.P.C. In this view of the matter, it could not be sustained and the case needs to be remanded for re-writing of judgment. On the other hand, learned Deputy District
Crl. Appeal No.576/2015
Pervaiz Haider Khan v. The State etc.
– 3 –
Public Prosecutor as well as the learned counsel for the Complainant controverted this contention and argued that the impugned judgment was valid.
5. I have heard the learned counsel for the parties and have gone through the record with their able assistance.
6. The impugned judgment passed by the learned Special Judge is very short consisting of only 18 paragraphs. Paragraphs-01 to 07 describe the facts of the case while Paragraphs-08 to 11 give a brief synopsis of the testimonies of the witnesses. In Paragraph-12 the learned Special Judge observed that PW-5 Asif Ali Farrukh was a formal witness, so it was not necessary to discuss his evidence. In Paragraphs-13 & 14 he stated that the prosecution had proved its case “through cogent and clear evidence”. He did not give any reason for this finding except that the prosecution had produced two applications P-5/1 and P-5/2 in which the Appellant had admitted his guilt. Further, the Appellant had deposited Rs. 14,00,000/- in the Government Treasury which tantamount to a confession on his part.

7. It has been observed that while recording his statement under Section 342 Cr.P.C. the Appellant denied the prosecution’s claim that he had deposited Rs. 14,00,000/- in the treasury. He also disowned applications P-5/1 and P-5/2. In the circumstances, it was incumbent on the learned Special Judge to appraise the entire evidence and determine whether the claim of the prosecution was correct and was proved. However, he did not do so. He simply gave a brief summary of the depositions of the prosecution witnesses without evaluating them in the light of the cross-examination conducted by the Appellant. In “Abdul Sattar v. Sher Amjad and another” (2004 YLR 580), it was held that an abstract of the deposition of the prosecution witnesses or mere discussion of evidence does not logically prove or disprove the charge. The Court must identify points for determination, deliberate upon and then give its finding on each of them before proceeding to hold that the charge is proved or disproved. In “The
Crl. Appeal No.576/2015
Pervaiz Haider Khan v. The State etc.
– 4 –
State v. Abba Ali Shah alias Abba Umer and another” (PLD 1988 Kar 409), it was stated that judgment should discuss merits and demerits of statements of witnesses with reference to charges. It is not sufficient to summarize statements of witnesses and point out contradictions therein. Further, contradictions should be material and it should be shown how they affect authenticity and veracity of the prosecution’s case. The treatment meted out by the learned Special Judge to the Appellant does not conform to the requirements of Section 367 Cr.P.C. and has prejudiced him.
8. In law, “judgment” connotes a judicial verdict in a case coming up before a Court. P Ramanatha Aiyar’s Advanced Law Lexicon (4th Edition) elucidates:
“An action is instituted for the enforcement of a right or the redress of an injury. Hence a judgment, as the culmination of the action declares the existence of the right, recognizes the commission of the injury, or negatives the allegation of one or the other. But as no right can exist without a correlative duty, nor any invasion of it without a corresponding obligation to make amends, the judgment necessarily affirms, or else denies, that such a duty or such a liability rests upon the person against whom the aid of the law is invoked.” 1 HENRY CAMPBELL BLACK, A Treatise on the Law of Judgments S. 1 at 2 (2d ed. 1902)”
At another place, the same book defines the term “judgment” as:
“A judgment is the determination or sentence of law, pronounced by a competent judge or Court; as the result of an action or proceeding instituted in or before such Court or judge, affirming that upon the matters submitted for its decision, a legal duty or liability does or does not exist.”
9. Whether the matter is civil or criminal, law always insists that the Court should pinpoint the controversy involved and while deciding the same it should give reasons for its decision after discussing the evidence brought before it.
10. Section 2(9) of the Code of Civil Procedure, 1908, defines “judgment” as a “statement given by the Judge of the grounds of a decree or order.” The term “order” is defined in Section 2(14) of the Code as “formal expression of any decision of a civil court which
Crl. Appeal No.576/2015
Pervaiz Haider Khan v. The State etc.
– 5 –
is not a decree.” Order XX Rule 4(2) then prescribes that judgments of trial Courts other than the Court of Small Causes “shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.” Order XLI Rule 31 makes similar stipulation for the judgments of the Appellate Court adding that where the decree appealed from is reversed or varied, it should also specify the relief to which the Appellant is entitled.
11. The Criminal Procedure Code, 1898, lays down similar requirements for judgments in criminal cases. Section 367 (1) of this Code reads as follows:
“367. Language of judgment-contents of judgment.—(1) Every such judgment shall, except as otherwise expressly provided by this Code, be written by the presiding officer of the Court or from the dictation of such presiding officer in the language of the Court, or in English; and shall contain the point or points for determination, the decision thereon and the reasons for the decision; and shall be dated and signed by the presiding officer in open Court at the time of pronouncing it and where it is not written by the presiding officer with his own hand, every page of such judgment shall be signed by him.”

12. A comparison of the above-mentioned provisions in the two Codes clearly shows that it is essential that the judgment should consist of three elements, namely, the points for determination, the decision thereon and the reasons for such decision. The term ‘points of determination’ refers to all the important questions involved in the case [Gul Muhammad v. Kaimuddin” (2012 YLR 218)] and ‘decision’ means that the adjudication of those questions should be based on a thorough examination of all documentary and oral evidence. Then, this adjudication must be supported by strong reasoning. In other words, the judgment should be self-explanatory, illuminative and in the nature of a speaking order.
13. The raison d’etre for the above-mentioned stipulation is that it is a guard against arbitrary exercise of judicial power and ensures safe administration of justice. It also builds up confidence of the general public in the judicial system. The following excerpt from
Crl. Appeal No.576/2015
Pervaiz Haider Khan v. The State etc.
– 6 –
“Mollah Ejahar Ali v. Government of East Pakistan and others” (PLD 1970 SC 173) is quite instructive in which the august Supreme Court of Pakistan said:
“To deal with the second contention first, there is no doubt that the High Court’s order which is unfortunately perfunctory gives the impression of a hasty off-hand decision which, although found to be correct in its result, is most deficient in its content. If a summary order of rejection can be made in such terms, there is no reason why a similar order of acceptance saying “there is considerable in the substance in the petition which is accepted”, should not be equally blessed. This will reduce the whole judicial process to authoritarian decrees without the need for logic and reasoning which have always been the traditional pillars of judicial pronouncements investing them with their primary excellence of propriety and judicial balance. Litigants who bring their disputes to the law Courts with the incidental hardships and expense involved do expect a patient and a judicious treatment of their cases and their determination by proper orders. A judicial order must be a speaking order manifesting by itself that the Court has applied its mind to the resolution of the issues involved for their proper adjudication. The ultimate result may be reached by a laborious effort, but if the final order does not bear an imprint of that effort and on the contrary discloses arbitrariness of thought and action, the feeling with the painful results, that justice has neither been done nor seem to have been done is inescapable. When the order of a lower Court contains no reasons, the appellate Court is deprived of the benefit of the views of the lower Court and is unable to appreciate the processes by which the decision has been reached.
14. In “Pakistan Tobacco Company Ltd. v. Pakistan Chest Foundation” (PLD 1998 Lah 100), this Court further explained that when a judgment is assailed in appeal by an aggrieved party, the higher forum determines its validity from the reasoning given therein. The aggrieved party attacks the reasoning of the judgment in appeal and not the narration of the facts. In “Muhammad Ismail and another v. The State” (2004 P.Cr.L.J 1915), it was held that human relations are complex and so are the disputes that arise between them. New situations emerge every day and no straitjacket formula can be devised to resolve them. Therefore, while writing a judgment Court has to explore all possible situations and probabilities for drawing just
Crl. Appeal No.576/2015
Pervaiz Haider Khan v. The State etc.
– 7 –
conclusions. The question as to whether the conclusions drawn are correct can only be determined from the reasoning given therefor.
15. Turning specifically to Section 376 Cr.P.C., it may be noted that the word “shall” has been used therein which means that these provisions are mandatory and not directory. For this reliance is placed on “Abdul Rashid Munshi and 3 others v. The State” (PLD 1967 SC 498), “Sahab Khan and 4 others v. The State and others” (1997 SCMR 871), “Ashiq Hussain and others v. the State and 2 others” (2003 SCMR 698) and “Khalid Mehmood v. The State” (2004 P. Cr. LJ 984)
16. It is also important to note that non-compliance of Section 367 Cr.P.C. is a defect which is not curable under Section 537 Cr.P.C. It renders the judgment nugatory. This is because it is an illegality which prejudices the case of the accused. Reference in this regard is respectfully invited to “Farrukh Sayyar and 2 others v. Chairman, NAB, Islamabad” (2004 SCMR 1).

17. The impugned judgment dated 06-10-2015 passed by the learned Special Court does not meet the legal requirements. It cannot be sustained and is accordingly set aside. The case is remanded for rewriting of the judgment in accordance with law. The learned Special Court shall do the needful within a period of one month from the date of receipt of certified copy of this order after hearing the parties.
(Tariq Saleem Sheikh)
Approved for Reporting

Leave a Reply

Your email address will not be published. Required fields are marked *