P L D 1968 Lahore 181 (PLP)

3. Consequent upon the winding up of the Village‑Aid Department, the Assistant Director, Basic Democracies, wrote the letter Exh. P. L. to the Development Officer, Rajanpur, to take charge of the stocks of the Village‑Aid Department. The Sub Divisional Magistrate, Rajanpur, appointed three persons for this purpose. They were the appellant, Sultan Ahmad (P. W. 12) and Muhammad Ramzan (P. W. 17).

4. On the 9th of January 1962, Karim Bakhsh (P. W. 1) submitted an application to Muhammad Sarwar (P. W. 21), Circle Officer of the Anti‑Corruption Department, alleging that the appellant had appropriated to himself a large number of articles belonging to the Village‑Aid Department. The application was put up before the District Magistrate for ordering the formation of a raid party. On the 10th of January 1962, a raid party headed. by Mr. Gul Muhammad Khan, Magistrate, 1st Class, Dera Ghazi Khan, was formed and the raid was effected on the same date. Rasul Bakhsh (P. W. 2), Ahmad Bakhsh (P. W. 3) and Riaz Hussain (P. W. 4) also joined the raid party. A wooden Almirah (P. 1), sewing machine (P. 2), wooden khokhas (P. 3 and P. 4), a confidential box (P. 5), and a bag of cement (P. 6) were recovered from the house of the appellant. Five bags of cement (P. 7 to P. 11) were recovered from the house of the father of the appellant. The raiding Magistrate prepared his report. Exh. P. K. and endorsement (Exh. P. K./1) thereon has been signed by the Sub‑Inspector of Police.

5. Formal F. I. R. Exh. P. K./2 was drawn up on the 13th of January 1962, by Muhammad Sher, Head Constable (P. W. 19) of Police Station, Rajanpur. The challan was submitted to the Senior Special Judge, Dera Ghazi Khan, on the 18th of November 1962, who marked it on for disposal to Sh. Farooq Ahmad, the learned trial Judge, on the 16th of March, 1963. Sanction (Exh. P. M. M.) for prosecution of the appellant was received on the 21st of May, 1963. It was given by Major Waliullah, Assistant Director, Basic Democracies. The appellant was ultimately found to have misappropriated sewing machine (P. 2) and khokha (P. 4).

6. Ch. Khalil‑ur‑Rehman, the learned counsel appearing for the appellant has raised two main contentions. He has asserted that the sanction for the prosecution of the appellant has not been given by the proper authority and, therefore, the Court, which tried the case, had no jurisdiction to try it. He has further said that the prosecution had not discharged the onus of proving the case against the appellant.

7. In regard to the first contention, the learned counsel for the appellant has stated that it was the Deputy Director of Basic Democracies, who had appointed the appellant vide order dated the 27th of June 1961 (Exh. IJ. K.). Under rule 3 of the Pakistan Criminal Law Amendment (West Pakistan) Rules of 1956, the sanction could be given only by an officer competent to remove from office the public servant concerned. The learned counsel also referred to the rules of 1962, on the same subject, copy of which is Exh. D. G. on this record. By Gazette Notifica tion No. P. R. C‑3‑7/62, dated the 10th of December 1962, published in the Extraordinary issue of the Gazette of West Pakistan, dated the 10th of December 1962, 1956 Rules were superseded and the new rules named "Pakistan Criminal Law Amendment (West Pakistan) Rules, 1962," were enforced. Under rule 2 of these Rules, the power to sanction prosecution of a public servant under subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958, is to be exercised on behalf of the Provincial Government by an officer competent to remove such public servant from office. The learned counsel, in order to supplement his argument, has also referred to the West Pakistan Basic Democracies Department (Delegation of Powers) Rules, 1962, published in the Extraordinary issue of the Gazette of West Pakistan, dated the 5th of April 1962. These Rules specify various authorities authorised to deal with appointments, appeals and transfers, etc. of the staff of the Basic Democracies. The proviso to rule 2, however, lays down that nothing contained in these rules shall authorise any such person to be dismissed, remov ed from service, reduced in rank, retired compulsorily or suspended by an authority subordinate to that by which he was appointed. The learned counsel, therefore, argues that notwithstanding the promulgation of the 1962 Rules, published in the Gazette on the 5th of April 1962, the proviso gives a protection to the present appellant in so far as the authority competent to remove him from service is concerned. It is urged that it was the Deputy Director of the Basic Democracies, who was the appointing authority and competent to remove the appellant from service. The sanction for prosecution should have, therefore, been given by him and not by the Assistant Director.

8. The learned trial Judge has, in para. 7 of his judgment, dealt with this aspect of the case. His line of reasoning appears to be that the appellant continued to be in the service of the Govern ment and the word `appointment' actually relates to his appoint ment in the Village‑Aid Department. This reasoning is neither supported by facts nor by law. The facts is that the Village‑Aid Department had been wound up and the appellant and some other persons were given jobs in the Basic Democracies Department, for the purpose of absorption of the stall' of that department. It would, therefore, not be quite correct to say that the original appointment of the appellant still subsisted. Legally also, as would appear from Explanation to section 6 (5) of the Pakistan Criminal Law Amendment Act, 1958, the Government or the authority for the purposes of the sanction is the Government or authority under which the person concerned was working at the time of the commissions of the offence. The competent authority was, therefore, the Deputy Director, Basic Democracies who had to accord sanction to the prosecution of the appellant.

9. The learned counsel for the State has shown his inability to rebut this argument. The contention, therefore, prevails and I find that the sanction for prosecution of the appellant was not in accord with the provisions of law.

10. I have also gone through the evidence with the assistance of both the counsel. The most material piece of evidence relied upon by the prosecution was the list (Exh. P. R.) in which the number of sewing machine was given as 0000709 Jageer. The same number, however, appears to have been scored off and No. 722 has been written instead. The prosecution has not even insinuated that it was done at the instance of the appellant. The appellant had, of course, initialled this list, but he can be held responsible only for the stocks which were handed over to him. The number of machine which was later on recovered from the appellant, bore No. 0000709, and it cannot be said that this machine was entrusted to him vide Exh. P. R. The defence put forward by the appellant was that a week before the raid this machine had been left at his house by Mistry Jind Wada (D. W. 1) to whom it had been given by Tassadaque Muhammad, P. W. 10 a Village‑Aid worker for repairs. Since Tassadaque Muhammad did not turn up to take the delivery of the machine, Mistry Jind Wada came to the village of the appellant and handed it over to Ghulam Nabi (D. W. 4), brother of the appellant, at his place. The appellant, explained that he had no time to contact the appropriate authorities and within a week after the delivery of the sewing machine at his place, there was a raid. Mistry Jind Wada (D. W. 1) has fully supported the story of the appellant. This version was also supported by Shaukat Ali (D. W. 2) and Gul Muhammad (D. W. 3).

11. The learned trial Judge was not impressed by the story and rejected the same. He also held that it was doubtful if the machine could be carried to the village of the appellant by Mistry Jind Wada D. W. in the manner he described. He, however, ignored a very material concession made by Rasul Bakhsh (P. W. 2), who was a member of the raiding party. This witness stated that a fat man with this machine had come to their village and made inquiries about the location of the house of the appel lant. Thus, it would appear, that in the first instance there is no proof of the entrustment of this machine to the appellant, and secondly, the defence version gets support from the prosecution evidence itself, which was never challenged by the prosecution as hostile or untrue. As for the khokha it is in the evidence of Mistry Jind Wada (D. W. 1) that it was delivered to him along with the machine. The witness was asked to say whether the machine could fit in the khokha and, according to the learned trial Judge, he failed to do so. Be that as it may, but since I find that the story of the appel lant gets support from the prosecution witness, who has not been declared hostile, the assumption will not be unfounded that this khokha was delivered by Tassadaque Muhammad P. W. 10 to Mistry Jind Wada along with the machine.

12. The appeal succeeds on the law point as well as on merits. I, therefore, accept the appeal and set aside the conviction and sentences of the appellant. The appellant, who is on bail, shall be discharged from his bail bond. A.H. Appeal accepted.