P L D 1962 (W (PLP)

2. The material facts of the case are these: The appellant, who was Sarpanch, Panchayat Dudbial, at the relevant time, encashed draft No. A‑313756/G. I. on the 13th of April 1959, at Sub‑Treasury, Chakwal, and received Rs. 3,478‑3‑0 which he embezzled. The embazzlement came to light when, on the 18th of April 1959, Ch. Mehr Khan, Secretary, Panchayat Dhudial, obtained the cash book and the pass book from the appellant through Muhammad Sadiq peon and discovered that the amount of the draft had not been entered and deposited in the name of the Panchayat by the appellant in the Bank at Chakwal. On the fol lowing day there was the election of the Sarpanch of the Panchayat Dudhial, but the appellant did not attend the meeting. The Secre tary brought the matter to the notice of the Assistant Panchayat Officer. Later on the Panchayat authorised the new Sarpanch and the Secretary to go to the Sub‑Treasury at Chakwal and find out if Nazar Hussain Shah had encashed the draft and credited the amount in the Central Co‑operative Bank in the name of the Panchayat. The same evening the Secretary came to know from a police constable that Nazar Hussain Shah had made a report to the Railway Police that he had been robbed of the amount in the running train near Behkri Railway Station. In pursuance of a telegram sent by Nazar Hussain Shah to the Railway Police, Rawalpindi, regarding the theft, a case under section 379, P. P. C. was registered and was investigated by Head Constable Fazal Karim (P. W. 3), who found that the allegation was baseless. The further investigation was made by Ch. Mukhtar‑ud‑Din, S. H. O. Railway Police, Rawalpindi (P. W. 6), who examined a number of persons, including the constable on duty with the train on the night of the alleged occurrence, the special ticket examiner with the same train, 'Muhammad Yosuf guard and the Lambardar of village Behkri, and had the case cancelled. The appellant was arrested by Sub‑Inspector Sanaullah (P. W. 4) on the 12th of June 1959.

3. The case against the appellant hinges on the evidence of the Secretary, Panchayat Dudhial, coupled with the admission made by Nazar Hussain Shah appellant that he did encash the draft and received the sum of Rs. 3,478‑3‑0 from the Sub‑Treasury at Chakwal in his capacity as Sarpancb of the Panchayat Dudhial. The appellant came forward with the defence that he was travelling from Dudhial to Chakwal in order to deposit the amount in the Co‑operative Bank, Chakwal, when he was robbed near Behkri Railway Station by an unknown person who cane on the foot board of the running train and decamped with the bag containing the cash. The appellant made a grievance that the police did not take any action on his telegram regarding the robbery and interested brought against him the present case under section 409, P. P. C. and another case under section 29 of the Telegraphs Act at the instance of Ch. Muhammad Bashir who had not been on go‑d terms with him. The story of theft of cash from the running train is supported by a solitary witness, namely, Muhammad Akram (D. W. 1), who states that he was travelling in Inter Class with the appellant and when the train reached near Railway Station Behkri an unknown person came on the foot‑board, snatched the bag from the appellant and disappeared in the darkness of the night. The witness continued that he, along with Nazar Hussain Shah got down from the train and persued the culprit, but he managed to escape in the crops. The story is not supported by any other person. Ghulam Hasan (D. W. 2), Nur Khan (1). W. 3) and Jamadar Mirza Nur (D. W. 4) were also produced in defence. Nur Khan, who acted as clerk of the Panchayat, stated that the Secretary of the Panchayat had proceeded home without leave and Nur Khan was sent by the appellant to the House of the Secretary at Karyala to bring the pass‑book. Jamadar Mirza Nur corrobo rated him. He said further that Nazar Hussain Shah appellant took the pass‑book and the amount collected by him and left for Chakwal by train for depositing the amount, but was robbed on the way. Ghulam Hussain (D. W. 2) only said this much in his statement that Nazar Hussain Shah came to him with Muhammad Akram D. W. at 11 p. m. on the 17th of April 1959, when he was sitting at Winhar Hotel at Chakwal. The witness accompanied them to the railway police post Chakwal. The Head Constable was not present there. Nazar Hussain Shah and his companion returned with him to Winhar Hotel and took his leave at about midnight. Neither the police guard, who accompanied the train, nor the guard of the train in which the appellant travelled were informed of the occurrence. The matter was investigated by the Railway Police who had the case cancelled, as the allegation appeared to be baseless. I have carefully considered the evidence, and I agree with the learned trial Court that the defence version is jejune.

4. Two contentions were raised before me in appeal : (1) that the trial was bad In the absence of the necessary sanction, and (2) that Mr. C. A Saeed, who tried Nazar Hussain Shah appel lant, was never appointed a Special Judge. Taking up the last point first I find the following notification to be relevant, which I reproduce below: ‑ "No. 13/73‑H‑Judl./58, l8th December 1958, (Gazette, 26th December 1958).‑In exercise of the powers conferred by sub section (1) of section 3 and subsection (1) of section 4 of the Pakistan Criminal Law Amendment Act (XL of 1958), and in supersession of all the notifications issued by the integrating Units of the Province of West Pakistan under subsection (2) of section 3 and subsection (1) of section 4 of the Pakistan Criminal Law Amendment Act, 1948, the Governor of West Pakistan is pleased to appoint all Sessions Judges, Additional Sessions Judges, District Magistrates and Additional District Magistrates in the Province of West Pakistan, who have for a period of not less than three years exercised, whether continuously or not, the powers under the Code of Criminal Procedure, 1898, of a Sessions Judge or an Additional Sessions Judge, District Magis trate or an Additional District Magistrate, to be ex‑officio Special Judges within their respective Sessions Divisions/Districts, for the trial of offences under the said Act." Mr. C. A. Saeed, who tried the appellant, was appointed Addi tional District Magistrate, Gujrat on the 15th of April 1958, for the first time. Thereafter he served as an Additional District Magistrate, Mianwali, till the 17th of April 1961, when he was appointed as Sub‑Divisional Magistrate, Chakwal. It is thus evident that Mr. C. A. Saeed, had exercised the powers of the Additional District 'Magistrate for three years and had qualified himself as Special Judge before he was transferred to Chakwal.

5. Taking up the first point I find that the appellant was no longer a public servant when the case against him was instituted in the Court of the Special Judge, Chakwal. Under the Pakistan Criminal Law (Amendment) Act, 1948, sanction was necessary for "any prosecution" under that Act whereas under the new Act, that is, Pakistan Criminal Law Amendment Act, 1958, sanction is not necessary for "any prosecution", except that in the case of a public servant actually serving. See Abdul Monsur Ahmad anal another v. The State (P L D 1961 Dacca 753). Sayyed Nazar Hussain Shah ceased to be the Sarpanch of the Panchayat on the 19th of April 1959, when Ch. Muhammad Bashir was elected as Sarpanch in his place. He was no longer a public servant and as such sanction for his prose cution for the offence under section 409, P. P. C. was not necessary. The learned counsel for the appellant further argued that the appellant was entitled to acquittal In view of the Supreme Court ruling in Hamed Ghulam Sadiq's case (P L D 1960 S C (Pak.) 351). The ruling was consi dered in Abdul Mansur Ahmad's case by the Dacca High Court and it was held that Sadiq's prosecution failed because the posi tion was reduced to that of there being no sanction at all for the prosecution which was essential under section 5 (5) of the old Act. The sanction accorded being invalid, the position was that of there being no sanction at all for the prosecution which was mandatory under that Act for "any prosecution". The decision given by the Supreme Court of India in S. A. Venkataraman v. The State (P L D 1958 S C (Ind.) 308) with which our Supreme Court had agreed in principle in Hamed Ghulam Sadiq's case also laid down that no sanction of Government is necessary under section 6 of Act 11 of 1947, for the prosecution of a person who was not in Government service at the time the sanction was given. The appellant Nazar Hussain Shah was tried under the new Act XL of 1958. Subsection (5) of section 6 of Act XL of 1958 provides as under: ‑ "Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, previous sanction of the appropriate Government shall be required for the prosecution of a public servant for an offence under this Act and such sanc tion shall be sufficient for the prosecution of a public servant for an offence triable under this Act: Provided that in cases where the complaint or report referred to in subsection (1) of section 4 is not accompanied by such sanction, the Special Judge shall, immediately on receipt of the complaint or report, address, by letter, the appropriate Govern ment in the matter, and if the required sanction is neither received nor refused within sixty days of the receipt of the letter by the appropriate Government, such sanction shall be deemed to have been duly accorded: Provided further that no such sanction shall be required in respect of a case transferred under the proviso to subsection (2) of section 4 or by virtue of subsection (3) or subsection (4) of sec tion 5, if such sanction in respect thereof has been duly or deemed to have been so accorded before the case is so transferred. Explanation.‑For the purpose of this subsection, `appropriate Government' shall mean the Government which at the time of the commission of the offence was the appropriate Government.' I am clear in my mind that no sanction was required in the case of Nazar Hussain Shah for his prosecution, because he was no longer a public servant when the case was put in Court against him, though the offence under section 409 is exclusively triable by a Special Judge. In this view of the matter the conviction of the appellant is correct. This leaves us with the question of sentence, which is undoubtedly harsh. While maintaining the conviction of the appellant under section 409, P. P. C., I reduce the sentence F passed upon him to rigorous imprisonment for a period of two years and a fine of Rs. 4,000 in def cult of payment thereof the appellant shall suffer rigorous imprisonment for a further period of one year, with this modification alone the appeal is dismissed. The appellant is on ball, and the District Magistrate, Jhelum, will take necessary steps to have him arrested and recommitted to serve out the sentence as modified in appeal. Sentence modified Appeal dismissed.