1976 P Cr (PLP)

This is to point out that in the first trial the appellant was discharged because the sanction for his prosecution had been given by a Lt. Col. on behalf of the Director, Ordinance Services, GHQ. Rawalpindi, who suss considered to be the appointing authority of the appellant and the sanction having not been properly given by the appointing and dismissing authority or the authority superior by him the same was considered to be invalid and the appellant was discharged for lack of valid sanction in the first prosecution. In the second prosecution out of which the present appeal has arisen no sanction for prosecution of the appellant was filed by the police with the challan. It was Capt. Muhammad Daud Khan, Special Judge (Central), 14‑Ferozepur Road, Lahore who addressed a letter No. 160/69‑Crl, dated 13‑4‑1970, to the Secretary. Ministry of Home Affairs (Home Affairs Division), Islamabad with which Copies of challan and F. I. R.; were enclosed and necessary sanction as required under section 6(5) of the Pakistan Criminal Law (Amendment) Act, 1958 was asked for and according to the requirement of law it was added in that letter that sanction if neither granted nor refused within 60 days of the receipt of that letter the same shall be presumed to have been duly granted. In reply to that letter one Muzaffar Hussain, Section Officer. Ministry of Home and Kashmir Affairs (Home Affairs Division) Islamabad, vide his latter dated 18‑4‑1970, addressed to the Chief Secretary to the Government of West Pakistan, S&GA Depart ment (Anti‑Corruption Section). Lahore requested for necessary papers alongwith summary of legal opinion etc. to enable the grant of sanction and inter alia endorsed copy thereof, vide No. 3‑56‑70‑S P (P.) dated 18‑4‑1970, to the learned Special Judge in which it was stated that question of issue or refusal of sanction for prosecution of the accuses would be considered on receipt of the necessary reports from the Provincial Govern ment I. G. S. P. E , Rawalpindi and that the decision would be com municated to the Court in due course. A copy of that letter was also sent to the Inspector‑General Special Police Establishment, Rawalpindi and also to the Ministry of Defence, Karachi. On 15.6‑1970 the learned Special Judge trying the appellant passed an order that the grant of sanction for prosecution of the appellant was presumed in accordance with law because of the expiry of 60 days. As a matter of fact according to the exact calculation from 13‑4‑1970 which was the date of Issue of letter by the learned Special Judge up to the date the order was passed by the learned trial Judge presuming sanction on 15‑6‑1970 a period of 62 days in all had elapsed. The provision contained in section 6(5) of the Criminal Law (Amendment) Act, 1958, 60 days were required to be counted from the date of receipt of that letter by the addressee and some margin was to be allowed in the interest of justice for receipt of the sanction after its despatch by the authority competent to sanction for prosecution.

4. At the trial prosecution examined 9 witnesses in all. Out of them Muhammad Sadiq (P. W. 9), was the Supervisor who took over charge of duties from the appellant and reported shortage, Capt. Muhammad Azeem (P. W. 1) was the Security Officer, Incharge of the Depot who sent the written report on which formal F.I. R. was registered at the police station, Zulfiqar Ali Naqvi (P. W. 2) was the Sub Depot Commandar, Muhammad Shafi (P. W. 3) was incharge Stock Verification Section, Syed Sultan Badshah (P. W. 4) was incharge Stock Depot, A. G. H. Cooper (P. W. 7) was the Stock Verification Officer and Abdul Majid Butt (P. W. 8) was the Reconciliation Officer of the Spates Sub Division concerned. Other formal witnesses including the Investigating Officer were also examined. All the prosecution witnesses support its case. The appellant pleaded not guilty to the charge. When examined under section 242, Cr. P. C. the appellant admitted it as correct that he was posted as Superintendent E. S. D. Spare Sub Depot Lahore Cantt. during the period in question and was transferred on 8‑2‑1960 and while handing over the charge of his duties he found that some of the stores were missing and the appellant submitted the report to that effect. He stated that the charge of misappropriation vans incorrect and that the appellant was not guilty and will show‑cause against his conviction. On the conclusion of his trial when his statement under section 342, Cr. P. C. was recorded the appellant made the same statement but denied that he was entrusted with the articles which were found missing and that the appellant had misappropriated those articles. The appellant also stated that he will make a detailed statement when he would appear as a defence witness for himself. He examined Ikhlaq Hussain (D. W. 1), who was a Civilian Labour Officer, E. S. D. Lahore, who filed copies of certain papers including a certified copy of letter, dated 4‑3‑1961 (Exh. D E) from the appellant, also filed certified copy of letter dated 31‑8‑1960 (Exh. D F) from the appellant and copy of minutes No. 5 dated 9‑3‑1961 Exh. D G). all of which were in support of the contentions of the appellant that he had reported that some articles were missing in the store. Ikhlaq Hussain D. W. was not cross‑examined by the prosecution although opportunity was given to the P. D. Muhammad Ibrahim appellant produced certified copy of judgment. Mated 16‑6‑1965, passed by Sh. Iqbal Ahmad, Special Judge (Central). Lahore (Exh. D H) which was a judgment whereby the appellant was discharged in the first trial about the same occurrence. When examined as (D W 2), he deposed that after being appointed by the Engineer‑in‑Chief Pakistan Army as Superintendent, Electrical and Mechanical in 1955 the appellant took charge of Shed No. 42‑A in 1959. The sum and substance of the deposition of the appellant was that he submitted a report about the missing articles in his stores in August, 1960 to his officer incharge and prayed for investigation into the matter but Mr. S. Z. A. Naqvi, who appeared as prosecution witness in this case, did not respond to that letter and prayer of the appellant until 8‑2‑1961 when he reported the matter to be of theft. The appellant further deposed as D. W. that the said officer was of the opinion that departmental action should be taken and accordingly departmental inquiry was conducted against the appellant and the said officer when the appellant was imposed fine of Rs. 3500 while the said officer was ordered to be paid a fine of Rs, 1,500 as a result of that inquiry and that the appellant made a request to the trial Court to requisition the file of said inquiry which was done but the Department did not send that file and after registration of the present case the Police did not investigate about the apprehended theft or about the recovery of any of the items mentioned in the F. I. R. The appellant continued to depose as D. W. that the thefts had been committed in the shad in question previously about which reports had been made to the police, it was always the practice that whenever any theft was committed the case was lodged with the Police but in the case of the appellant no such case was lodged upto the time the appellant reported the shortage to his Officer Incharge about the theft of articles in question and requested him for cent‑per‑cent checking of the stores but no such checking was carried cut. The appellant also deposed that keys of the stores were not kept by the appellant after office hours which keys used to be received by the staff at the gate when they entered the office and were handed over at the gate when the staff went out of the gate of the Workshop. The appellant denied that he had mis appropriated any item in question, the shortage detected was the result of theft, previously no case of misappropriation was lodged against any body on account of shortage which was the result of thefts and that the appellant had made representation to the Department but the Department took it ill and consequently lodged the present case against the appellant.

6. The learned trial Judge believed the prosecution evidence and found the appellant guilty of the charge as afore‑mentioned as a result of which the appellant was convicted and sentenced on two counts. The learned counsel for the appellant argued that there was no valid sanction for prosecution of the appellant in this case and trial of the appellant was vitiated in law. He cited Rashid Ahmad v. State (P L D 1972 S C 271), in which case similar objection taken at the Supreme Court stage was upheld. The learned counsel for the appellant further argued that convic tions and sentence of the appellant on two counts viz., under section 409, P. P. C. and under section 5 (2) of the Prevention of Corruption Act was illegal and in support of that contention he cited Zia‑ul‑Haq v. State (1973 P Cr. L J 457). He also argued that there was no evidence on record about the entrust ment and similarly there was no evidence of mis‑appropriation of the articles in question by the appellant and that the sentence awarded to the appellant was severe particularly when the appellant faced two trials before two Courts and after completion of his first trial it was found that there was no valid sanction due to which the appellant was discharged and second challan was filed out of which the present appeal has arisen without obtaining prior sanction for prosecution of the appellant for which sanction a letter from the learned trial Judge was addressed to a wrong authority and the presumption drawn with regard to the grant of sanction was trot maintainable according to section 6 (5) of the Criminal Law (Amendment) Act, 1958. The learned counsel for the State submitted that the presumption by the learned trial Judge in this case was valid because it was drawn on 15‑6‑1970 after 62 days and, therefore, after the expiry of 60 days of the receipt of that letter and that wrong address of Ministry of Home by the learned trial Judge was not fatal because Ministry of Home had a vast area of activity and was competent to grant sanction which had not resulted in any failure of justice. He further submitted that this was a case of presumption and not of competent sanction because after writing letter the trial Court was justified in presuming that sanction and that no objection was taken by the appellant during the course of trial whet) the appellant mysteriously kept silent and in support of this last contention the learned counsel for the State relied on Nirode Chandra Biswas v. The State (P L D 1958 Dacca 90).

7. I have been taken through the evidence with the assistance of the learned counsel for the parties and have considered it in the light of submissions made by them. I am of the view that the appeal in hand can be decided without going into the merits of the case on the question of sanction alone. It appears from the record of this case that the Police submitted first challan in Court in 1964 when Sh. Muhammad lqbal, Special Judge (Central), Lahore, discharged the present appellant, on 16.6‑1965 far lack of valid sanction. The occurrence is alleged to have taken place between 1959‑1960 and the F.I. R. in respect of the missing articles in question was lodged with the Police on 10‑3‑1961 at 2‑30 p. m. After the discharge a second challan was filed by the Police and again without obtaining the prior sanction from the competent authority for Prosecution of the appellant. It was Mr. Muhammad Daud Khan, the then Special Judge (Central), Lahore, who addressed letter for obtaining sanction and although the appellant was employee of the Ministry of Defence and his appointing authority was the Director, Ordnance Services, G. H. Q., Rawalpindi the learned Special Judge who was trying the appellant addressed the letter for requisite sanction for prosecution of the appellant to the Secretary. Ministry of Home and Azad Kashmir (Home Affairs Division). Islamabad, on 13-4‑1970. The learned trial Judge did not, therefore, seek valid sanction from the authority competent to appoint and dismiss the appellant or any authority superior in rank of that authority but instead addressed the letter to the Ministry of Home due to which the learned trial Judge could not draw any presumption in law. Again in reply to that letter a Section Officer of the Ministry of Home wrote to the Chief Secretary, Government of West Pakistan, S. & G. A. D. Lahore, asking for necessary papers and data to deal with the case and endorsed copies of that letter also to the learned trial Judge intimating that the matter was under consideration. In such circumstances the learned trial Judge was not justified in presuming grant of sanction in view of the fact that even a wrong authority whom he had addressed letter for obtaining sanction had Intimated the learned trial judge that question of grant of sanction was under the active consideration of that authority. Lastly according to the provisions contained in section 6 (5) of the Criminal Law (Amendment) Act, 1958, the expiry of 60 days is to be counted from the date of receipt of letter in the office of the addressee and not from the date of the issue of letter by the learned trial Judge. In the case in hand there is no evidence on record that the letter, dated 13‑4‑1970, addressed by the learned trial Judge to the Ministry of Home and Azad Kashmir for obtaining sanction for prosecution of the appellant was delivered in his office on 14-4‑1970 or 15‑4‑1970 which cannot be presumed. The undisputed position is that immediately on the expiry of 60 days counted froth the date of issue of letter of the learned trial Judge, on 15-6-1970, per his order‑sheet, the learned trial Judge presumed the necessary sixty‑two days thereof due to which the legal presumption of the sanction for prosecution of the appellant was not justified in law. In the circumstances of the case and on the evidence on record I am of the considered view that there was no valid sanction for prosecution of the appellant in this case and the proceeding of his trial in which he was convict ed and out of which the present appeal has arisen are vitiated in law. In view of this there is no necessity for me for going into the merits of this case. For the foregoing reasons, the appeal is accepted, the convictions and sentences passed against the appellant by the learned trial Judge are set aside. His sentence was suspended by this Court on 29-4‑1975. His bail bonds are discharged. Appeal allowed.