P L D 1955 Lahore 661 (PLP)

KAIKAUS, J.‑This is an appeal by one Muhammad Bashir who was convicted by Mr. Qadir Bakhsh, Special judge, of an offence under section 5 (2) of the Prevention of Corrup tion Act and sentenced to undergo two years rigorous imprisonment along with a fine of Rs. 2,000, and a further rigorous imprisonment for six months in default of payment of fine. A number of preliminary objections to the legality of the trial have been raised by learned counsel for the appellant. The first is that the appointment of Mr. Qadir Bakhsh as Special Judge under section 3 of the Pakistan Criminal Law (Amendment) Act, 1948, as amended by section 2 of the Pakistan Criminal Law (Amendment) Act, 1954 (IV of 1954), is void as he was not eligible for such an appointment. Section 3 of the above‑mentioned Act runs as follows :- " 3. (1) Offences specified in the first Schedule and offences notified by the appropriate Government in the Official Gazette may anti offences specified in the second Schedule shall by tried by Special judges under this Act. (2) The appropriate Government shall, by notification in the Official Gazette, appoint as many Special judges as may be necessary to try and punish offences specified in the first and second Schedules and such other offences as maybe notified by it from time to time in the Official Gazette. (3) Any person, not being a person who has at any timebeen removed or dismissed from Government service or who has retired from such service, shall be qualified for appointment as a Special judge if he is or has been a Sessions judge or an Additional Sessions judge or an Assistant Sessions judge or a District Magistrate or an Additional District Magistrate ". Learned counsel urges that Mr. Qadir Bakhsh had never been a Sessions Judge, Additional Sessions Judge, Assistant Sessions Judge, District Magistrate or an Additional District Magistrate nor was he at the time of his appointment holding any of these offices, for it was by virtue of the same notification, i.e. notification No. 5411‑54/Gaz. dated the 22nd of June, 1954, that he was appointed as Additional District Magistrate as well as Special judge so that it could not be said that Mr. Qadir Bakhsh was an Additional District Magistrate at the time of his appointment as a Special Judge. Whatever might have been the effect of this argument if the appoint ments as an Additional District Magistrate and a Special judge were in fact simultaneous, it will be clear from what I am going to state that in this case that question will not arise, and the appointment would be valid. The order appointing Mr. Qadir Bakhsh an Additional District Magistrate was passed on the 22nd of June 1954. The order is in three parts. one relating to appointment as Additional District Magistrate, the second relating to appointment as Special Judge and the third relating to the cases in which the Special judge was to exercise jurisdiction. That part of the order which relates to appointment as Additional District Magistrate was published in the Official Gazette on the 25th of June, 1954. and the two parts which relate to appointment as Special judge were published in the Gazette on the 2nd of July, 1954. Appointment as Additional District Magistrate does not stand in need of being notified in the Official Gazette and, therefore, this appointment took effect on the 22nd of June' 1954. So far, however, as the appointment as Special judge is concerned, it will be apparent from section 3 (2) of the Act, that it haft to be by a notification in the Official Gazette. In spite of an order there will be no valid appointment till there is .a notification with regard to it in the Official Gazette. As a result the appointment as a Special judge took place only on the 2nd of July 1954. On the date, therefore, when the appointment as Special judge took place, Mr. Qadir Bakhsh was already an Additional District Magistrate. In this connection another point has been urged by learned counsel for the appellant, for which I have to repro duce verbatim the notification in the Official Gazette published on the 2nd of July 1954 relating to the appointment as a Special Judge. It runs as under :‑ "No. 5411‑54/Gaz.‑In exercise of the powers conferred by subsection (2) read with subsection (3) of section 3 of the Pakistan Criminal Law Amendment Act, 1948, the Governor of the Punjab is pleased to appoint Ch. Qadir Bakhsh, P. C. S., Additional District Magistrate, Gujran wala, to try and punish offences triable under the said Act. No. 5411‑54/Gaz.‑In exercise of the powers conferred by subsection (1) of section 4 of the Pakistan Criminal Law Amendment Act, 1948, the Governor of the Punjab is pleased to direct that Ch. Qadir Bakhsh appointed as Special .Judge with head‑quarters at Lahore under sub section (3) of the said Act, shall have jurisdiction to try cases under that Act within the limits of the Punjab ". The first part of the notification relates to the appointment and the second to the cases in which jurisdiction is to be exercised.‑ Learned counsel urges that in the first part of the notification the words " as Special judge " appear nowhere so that it cannot be said that Mr. Qadir Bakhsh was appointed as a Special Judge at all. There is no doubt that the firsu part of the notification only says that the Governor in the exer cise of his powers under section 3 (3) of the Criminal Law Amendment Act, 1948, appoint Mr. Qadir Bakhsh to try cases mentioned in the second Schedule and the words "Special judge " have not been used, but in the first place this part of the notification specifically refers to section 3 (3) of the Act under which only Special judges can be appointed and secondly, the second part of the notification assumes that in the first part Mr. Qadir Bakhsh has already been appointed as a Special Judge. It appears to me, therefore, that no fault can be found with the appointment of Mr. Qadir Bakhsh. The next point urged is that in this case there is no proper sanction for prosecution, as is required under section 5 (5) of the Pakistan Criminal Law Amendment Act. There is on the record a sanction for prosecution by the Governor relating to the very incident which is the subject- matter of the trial: Learned counsel urges that there is nothing to show that this sanction was granted after His Excellency the Governor of the Punjab applied his mind to the facts of the case and in this respect he relies on Tufail Muhammad v. Crown (P L D 1954 Lah 37) wherein it was held that a sanction granted by an officer without applying his mind to all the relevant facts of the case is not valid. But in that case it had been proved by evid ence that there were material facts which had not been brought to the notice of the officer who granted sanction. In the present case, there is nothing to show that there is any such defect in the sanction. Learned counsel urges that it was the duty of the prosecution to lead evidence showing that the officer granting the sanction had in fact applied his mind. I do not agree. If the sanction is there we should presume it to be valid in the absence of some evidence to the contrary. I would apply the presumption of the regularity of all official acts unless there were circumstances sufficient to justify a different course. There are no such circumstances. Another objection to the sanction is that in this case sanction should have been not by the Provincial Government but by the Central Government. Under section 5 (5) of the Pakistan Criminal Law Amendment Act, 1948, sanction is to be of the appropriate Government ", which is defined in section 2 (a) of the Act as under :‑ " (a) `Appropriate Government ' means in relation to a person serving in connection with the affairs of the Federation, a railway employee and any other person employed by. the Central Government or by such organi zation or body as may be notified by the Central Govern ment in pursuance of the next succeeding clause, the Central Government, and in other cases, the Provincial Government concerned " Learned counsel urges that the appellant was, at the relevant time, serving in connection with the affairs of the Federation. It may be stated that the appellant is a Patwari. The case of the prosecution is that the land allotted to the father of Muhammad Bashir. complainant in this case, who is a refugee, had been confiscated and allotted to some Kashmiri refugees. The appellant informed Muhammad Bashir of the confiscation but promised that he would help him so that the new allottees would not be able to take the crop that stood on the land. He promised further to give Muhammad Bashir the name of the allottee and the fard of the land. He demand ed from Muhammad Bashir a sum of Rs. 200 for his services and ultimately Muhammad Bashir agreed to pay him a sum of Rs.

100. Muhammad Bashir contacted the Anti‑Corruption Department. As a result a raid was organised, the sum of Rs. 100 was paid to the appellant by Muhammad Bashir and recovered from the person of the appellant by the raiding party. Learned counsel urges that as the appellant was working in connection with the rehabilitation and resettlement of the refugees which is a Central subject, he was " serving in connection with the affairs of the Federation ". Under section 7 of the Pakistan Rehabilitation Ordinance of 1948, the Central Government can vest a Rehabilitation Commissioner with the power to pool and allot evacuee property. The Central Government have acting under this section, authorised to pool and allot evacuee land by means of a scheme and have authorised him to issue certain instructions in this behalf. He has issued certain instructions to the Deputy Rehabilita tion Commissioners in exercise of his powers under clause 23 of the Scheme. The instructions though addressed to the Deputy Rehabilitation Commissioners do contain references to the Patwaris keeping the records of the claims put in, the lands allotted, and the proposed allotments. On a perusal of these instructions it becomes clear that the Patwaris have been directed to perform certain duties in connection with the allotment of lands in addition to their duties under the Punjab Land Revenue Act. It appears, however, that these duties are imposed not by these instructions but by certain letters of the Punjab Government to which reference is made in these instructions. It may be observed that the Patwari is an employee of the Provincial Government and he performs his duties under the Punjab Land Revenue Act. It appears that he has been directed to perform certain additional functions in connection with the rehabilitation too. So far as keeping of the records of allotment of the land is concerned, this would be within his duties under the Punjab Land Revenue Act. So far, however, as the keeping of the registers of claims or the proposed allotments is concerned, that does not as the matter stands at present, form any part of such duties. Can it be said that because the Patwaris in the Punjab are assisting in the allotment of lands to refugees, they are " serving in connection with the affairs of the Federation "? The Patwari as already stated is an employee of the Provincial Government. He is a creature‑of the Punjab Land Revenue Act and performs certain duties under it. Under directions from the Provincial Government he is performing certain duties in connection with allotments which are in addition to his duties under the Punjab Land Revenue Act. But the only authority which the Punjab Government has to issue directions to the Patwaris is (in the absence of some statutory provision) under the Punjab Land Revenue Act. If the instructions be legal and valid under that Act, the work which the Patwari performs in connection with the allotment of land will not be in connection with the affairs of the Federation. Under the Punjab Land Revenue Act it is open to the Pro vincial Government to give instructions for keeping the records of claims with respect to allotment and proposed allotments, for these are all matters connected with rights in land and it is open to the Financial Commissioner with the sanction of the Punjab Government to make any document relating to land a part of the record of rights, although that would have to be done by rules and it is not clear that there are any rules. That is why I said " if the instructions are valid ". But if the instructions be not valid the duties of a Patwari in this respect being rather informal, it would not be correct to bring him with the persons who are serving in connection with the affairs of the Federation on account of such duties. In any case all that can be said is that the Patwari is rendering some assistance in connection with a Central subject. Every assistance rendered with respect to a Central subject does not bring the person rendering it within the above‑mentioned category. If the Advocate‑General of the Punjab appears in a case for the Central Government he cannot be said to be serving in connection with the affairs of Federation. If the Press of the Punjab Government, for some reason, is asked to print a particular issue of the Central Government, its officers do not begin to serve in connection with the affairs of the Federation. We should for deciding this question look to the main duties at the officer and the authority that employ him, and we cannot merely on the basis of some assistance rendered in a Central subject, bring) officers within the category of persons serving in connection with the affairs of the Federation. The next point urged by learned counsel for the appellant is that in this case provisions of section 342 of the Criminal Procedure Code have not been complied with. This case was tried as a summons case. I find that only formal questions were put to the appellant when he appeared before the Court for the first time. The first question stated the main details of the prosecution case against the appellant and called upon the appellant to state whether he had committed the act attributed to him. The appellant replied in the negative. In the second question the appellant was merely asked to state as to why he should not be penalised for having committed the offence. The appellant replied that he was innocent and had been the victim of enmity. After the close of the pro secution evidence again only a formal question was put to him as to whether the appellant had to add anything to what he had already stated. It is clear that there has been no proper examination of the appellant. The appellant no doubt stated when examined after the close of prosecution case that he would file a written statement and he did file a written statement, but I find that the said written statement was filed after and not before he entered upon his defence as required, by section 342 Cr. P. C. As regards prejudice, I am not satisfied, after going through the record of the case, that the appellant may not have been prejudiced in this case. Even the first question, which was put to the appellant when he was examined at the beginning of the prosecution evidence, did not quite correctly state the prosecution case against him. I am further influenced by the fact that the whole of the prosecution evidence and the defence evidence were recorded on the 25th of October, 1954. Learned counsel, who appeared for the appellant in the lower Court, has stated before me that they understood the case of the prosecution originally to be that Exhs. P. B. and P. C. were in the handwriting of the appellant. Under the circumstances, I have no option but to set aside the conviction and order a retrial of the appellant. This retrial would now begin from the point when the appel lant was examined after the close of the prosecution evidence. He has to be examined in full, of course without any attempt at cross‑examination, so as to give him an opportunity to explain the circumstances which are to be taken into con sideration against him. "The appellant shall be released on bail on executing a bond in the sum of Rs. 5,000 with one surety to the satis faction of the trial Court. It shall be open to the learned Special Judge, if the appellant in any way abuses this liberty, to cancel his bail. A. H. Case remanded.