P L D 1954 Dacca 48 (PLP)

ELLIS, J.

‑The petitioner, Abu Muhammad Choudhury, a man of 36 years of age, was convicted under section 409 of the Penal Code by Mr. A. Sobhan, a Magistrate of the 1st Class at Chandpur, on the 24th of May, 1950, and was sentenced to rigorous imprisonment for one year, and to a fine of Rs. 500, or in default to rigorous imprisonment for a further term of three months. His appeal to the Sessions Judge of Tippera was dismissed by Mr. W. U. Ahmad, Additional Sessions Judge, on the 8th of November, 1951. He, thereupon, moved this Court in the exercise of its Criminal Revisional Juris diction, and obtained the present Rule on two grounds Ground No. 1.‑For that the entire trial has been rendered illegal for want of proper sanction. Ground No. 4.‑For that the entire trial has been rendered ultra vices in view of Ordinance VIII of 1948 read with Notification issued by the Central Government, and the Courts below had no jurisdiction to try the case. The taking of cognizance, investigation and trial has all along been illegal and the trial stands vitiated. The judgment of the Court below can't be as such maintained in law. Mr. Ali Amjad Khan has appeared for the petitioner, while Mr. Salahuddin Ahmad, Deputy Legal Remembrancer, has appeared for the Crown. The charge against the petitioner was that, on or about the 17th of July, 1948, at Chandpur, being a public servant in the postal department and 1n such capacity being entrusted with a mail bag containing certain insured letters, he committed criminal breach of trust in respect of the properties so entrusted to him. The petitioner, at the material time, was the "head mail agent of Chandpur R. M. S." Speaking to the first ground of the Rule, Mr. All Amjad Khan claims that, as such, he was an officer of the Central Government in the Postal Department, who could only be dismissed by the Post‑Master General. Consequently he could not be placed on trial without a valid sanction, and in the present case, although the ground claims that there was no proper sanction, the record shows that, in fact, there was no sanction at all. In refutation of this argument, Mr. Salahuddin Ahmad points out that the only section which is material is section 197 of the Code of Criminal Procedure. That section requires a previous sanction before a public servant who is not removable from his office save by or with the sanction of a Provincial Govern ment or some higher authority can be paced on trial. In the present case, according to Mr. Salahuddin Ahmad, the petitioner as a head‑mail agent was appointed by the Superintendent of Post Offices, and is liable to dismissal by him. Accordingly no sanction was required under section 197 of the Code for his prosecution. Furthermore, even accepting Mr. Ali Amjad Khan's contention that the petitioner was appointed by the Post‑Master General, and is liable to dismissal by him, though the Post‑Master General may be an officer of the Central Govern ment, he is not the Central Government. This ground was raised for the first time in this Rule. It was never raised in either of the Courts below. We find it devoid of substance for the reasons given above. The second point taken by Mr. Ali Amjad Khan, set out in ground No. 4, touches Ordinance No. VIII of 1948 and a Notification issued in exercise of the powers conferred in section 3 thereof. The Ordinance, which was published in the Gazette of Pakistan, Extraordinary, dated Karachi, the 13th of February, 1948, provided for the constitution of a special police force to investigate certain offences committed in connection with matters concerning the Central and Provincial Governments. Section 3 provided that the Central Government might, by Notification in the Official Gazette, specify the offences or classes of offences committed in connection with matters concerning the Central and Provincial Governments which were to be investigated by the Pakistan Special Police Establishment. Mr. Ali Amjad Khan has produced a copy of Notification under section 3 of the Ordi nance. It runs of follows No. 13/12/48‑Police, Govt. of Pakistan, Ministry of Interior, Home Division. Dated, Karachi, the 25th Sept. 1948. Notification : In exercise of the power conferred by section 3 of the Pakistan Special Police Establishment Ordinance, 1948 (VIII of 1948), the Central Government in supersession of this Ministry's Notification No. 13/12/48‑Police, dated 19th April, 1948, is pleased to specify the following offences or classes of offences for the purposes of the said section namely :‑ (a) Offences punishable under sections 161, 169, 217, 218. 379 to 382, 403 to 409, 411, 414, 417 to 420, 465, 468, 471 and 47 477 of Pakistan Penal Code. (b) Offences punishable under the Prevention of Corruption Act, 1947 (11 of 1949). (c) Attempts, abetments and conspiracies in relation to or connected with offences mentioned in clauses (a), (b). Sd. Ahmed Ali, Deputy Secy., The Govt. of Pak. Rahmat. 21‑3‑49." We are at a loss to see how the Special Ordinance and the Notification is of any assistance to the petitioner. It is true that, between them, they provide for the investigation of certain offences and in that category falls the offence charged against the petitioner by the Special Police Establishment, But as Mr. Salabuddiu Ahmed has well pointed out. the pro vision of special machinery to investigate cases does, not take away the power of the Magistrate to take cognisance of offences on the report of any Police Officer. This ground also must fail. It was never taken in either of the Courts below. As the two grounds on which the rule was issued have failed, the rule must be and is hereby discharged. The petitioner will surrender to his bail and serve out the remainder of his sentence. He will also pay the fine required of him or undergo the additional term of imprisonment imposed in lieu thereof. ISPAHANI, J.‑

I agree. A. H Rule discharged.