P L D 1959 Supreme Court (Pak (PLP)

Abdus Salam, Advocate, Supreme Court, instructed by Abdul Rasheed, Attorney for Respondent. Date of hearing: 4th May 1959. MUHAMMAD MUNIR, C. J.‑These four Criminal Appeals Nos. 5, 6, 7 and 8‑D of 1958, by our special leave, are by the same person, Asgar Ali, who was convicted and sentenced under section 165‑A of the Pakistan Penal Code by the Sessions Judge of Rangpur, acting ex officio as a Special Judge under the Criminal Law Amendment Act, 1948, and whose appeals were dismissed by the High Court of East Pakistan at Dacca and the sentence enhanced in revision. The appellant was jointly tried with two other persons, namely, Nirode Chandara Biswas, an officiating Sub‑Inspector of Police and S. K. Osman, a constable of Police, who were charged and convicted, the former under section 161 of the Pakistan Penal Code read with section 5 (2) of Act II of 1947 as well as section 342 of the Pakistan Penal Code and the latter under section 342/109 and section 165‑A of the Penal Code. The sanction for the prosecution of all three was given by the District Superin tendent of Police. At Rangpur there are three Judges in the Court of Session, namely, the Sessions Judge, the Additional Sessions Judge and the Assistant Sessions Judge each of whom exercises the powers of a Special Judge under the Criminal Law Amendment Act. The case out of which these appeals arise was tried by the Sessions Judge himself. Leave to appeal was given by this Court to consider ‑the following two questions: (1) Whether the rule which authorises an authority to sanction the prosecution of a private person who is accused of having jointly committed an offence with a public servant, is ultra vires of section 11 of the Criminal Law Amendment Act? and (2) whether the Sessions Judge had the jurisdiction to try this case in the absence of an order by the Provincial Govern ment empowering him to do so. The appellant was a clerk in the office of a Union Board but there is no evidence showing what his functions were. In the absence of such evidence it is impossible to find that he was a public servant within the definition of section 21 of the Pakistan Penal Code. And there is no provision in the Union Boards Act that an employee of a Board is to be deemed to be a public servant within the meaning of section 21 of the Pakistan Penal Code. The appellant is, therefore, to be treated for the purposes of sanction as a private person. The rule under which sanction to prosecute him was given by the Superintendent of Police is as follows:‑

3. Sanction for prosecution of a public servant including the sanction for prosecution of any private person acting jointly with the public servant shall be given by the authority who has appointed that public servant . . . . . ." This rule was framed in exercise of the powers given to the Provincial Government by section 11 of the Criminal Law Amend ment Act, subsection (2) of which runs as under:‑ "In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for any of the following matters, namely:‑ (a) Authorisation of persons to exercise the power to sanction prosecutions on behalf of the Central Government it respect of various grades of public servants". Mr. Sayem's argument is that since the subsection refers only to various grades of public servants, the notification issued under the authority of this subsection empowering an authority to accord sanction to the prosecution of a private person who has acted jointly with a public servant in committing an offence is ultra vire; The contention is wholly untenable because clause (a) to subsection (2) is not exhaustive and merely states particular instances c matters as to which rules may be framed. The subsection is qualified by the words "without prejudice to the generality c the foregoing powers", which powers are to be found in the fir subsection which says that the appropriate government may frame rules to carry out the purposes of the Act. It is not contended that the rule relating to the granting of sanction to prosecute private persons who are charged with having committed offences with public servants is not a rule relating to the purposes of the Act. We have, therefore, no doubt that the rule in so far as it is applicable to the prosecution of private persons could validly be made in exercise of the powers given to the appropriate government by the first subsection to section

11. There is no merit either in the second contention of Mr. Sayem. As pointed out by the High Court, the effect of notifications Nos. 3530‑J and 3531‑J is that every Sessions Judge, every Additional Sessions Judge and every Assistant Sessions Judge has been invested with the jurisdiction to try offences under the Criminal Law Amendment Act and in its terms this notification essentially differs from the provision in section 193 of the Criminal Procedure Code which enacts that Additional Sessions Judges and Assistant Sessions Judges in a district shall try only such cases as they are directed by the Sessions Judge to try. Subsection (2) of S. 4 of the Criminal Law Amendment Act provides that "An offence shall be tried by the Special Judge for the area within which it was committed, or where there are more Special Judges than one for such area by such one of them as may be specified in this behalf by the appropriate government". The subsection does not say that where there are more Special Judges than one the government shall specify the particular cases which are to be tried by each such Judge; nor does the provision have the effect of declaring that a Special Judge shall try only such cases as the government may specify. The two clauses of the sentence are separated by the word "or" and giving to this word D its grammatical force the only meaning that the subsection is susceptible of is that if there be only one Special Judge in any area the offence has to be tried by him, but that if there be more Special Judges than one for that area competent to try the case, the Government may, if it so likes, specify the particular Special Judge who is to hear a particular case. Here the cases were tried by the Sessions Judge himself who was one of the Special Judges and at no stage did the government indicate that the case was to be tried by somebody else. In the absence of any such order by the Provincial Government, the trial by the Sessions Judge was perfectly valid, and even if any specification was necessary, the conduct of the Provincial Government in the prosecution of this case before the Sessions Judge clearly indicates that the Government intended this case to be tried by the Sessions Judge. The result might perhaps have been different if the Special Judge who tried these cases had suffered from an inherent lack of jurisdiction, but that is not the case here, and unless the Govern ment directed to the contrary his jurisdiction to try the present cases was not taken away. On these findings, the appeals must be and are hereby dismissed. A. H. Appeals dismissed.