P L D 1967 Karachi 768 (PLP)

3. After protracted trial, the four public servants named above were acquitted, but Sayeed Hai was convicted under section 420, P. P. C. and Jawed lqbal under section 420 read with section 109, P. P. C. far abetting Sayeed Hai.

4. Sayeed Hai and Jawed Iqbal were convicted on the evidence of P. Ws. Nazir Muhammad Sheikh, Abdul Aziz, Saleh Ibrahim Lotia, Moinuddin Ahmed, Shafiq Ahmed, Arshad Hussain, Hamid Mahmood, Fayaz Ali, Sibtur Raza, Ghulam Hyder. and M. H. Mohani. The evidence briefly is that the K. D. A. accepted Sayeed Hai's tender (Ex. 75‑1) for supply of mild steel welding electrodes 8 and 10 S. W. G. at market rates plus six per cent. above the purchase price as evidence by cash memos. On 13‑3‑1959, Sayeed Hai purchased 50,000 running feets of 10 gauge welding electrodes from P. W. Nazir Muhammad Sheikh, the Managing Director of Premier Engineering Co. at the rate of Rs. 52 plus ten, per cent sales tax per 1,000 rft. Another quantity of 3,700 rft. of electrodes of size 3/16 was purchased on 12‑3‑1959 from M/s. Ameeji Valiji, as deposed by their sales incharge P. W. Saleh Ibrahim Lotia, at the rate of Rs. 1,210/‑ per 1,000 running feet. On 18‑7‑1959; Sayeed Hai purchased 85,200 running feet of 8 gauge ferospeed electrodes from M/s. Pakistan Oxygen Co. Ltd., West Wharf at Rs. 75 per 1,000 running feet plus ten per cent sales tax, according to the Seller's Store‑keeper P. W. Moinuddin. Shafiq Ahmed (P. W. 5), Hamid Mahmood (P. W: 8) and Arshad Hussain (P. W. 18), employees of the K. D. A. stated in their evidence that these goods were supplied by Sayeed Hai to the K. D. A. under the aforesaid tender.

5. Sayeed Hai had maintained that he had purchased the quantities of electrodes which he had supplied to the K. D. A. from Gulshan Hard‑Ware Store, belonging to Japed Iqbal at the prices stated in the cash memos., obtained from this concern. But prosecution brought evidence to prove that Gulshan Hard- Ware Store did not in fact exist. Fayaz Ali (P. W. 7) and Sibtur Raza (P. W. 11), both postmen, were examined on this point. Fayaz Ali stated that at the relevant time he was postman in the City Post Office, Karachi City and that his beat included the area from City Co‑operative Bank to Frere Road. He had received Exh. 69 which was a registered letter addressed to Gulshan Hard‑Ware Store near Denso Hall, Bunder Road, Karachi. But on enquiries from various people in his beat, he was informed that there was no concern of this name in existence. Sibtur Raza had also received this Exh. 69 for delivery to the addressee, but he could not trace Gulshan Hard‑Ware Store in his beat. P. W. M. H. Mohani stated that Jawed Iqbal is the son of Haiz Fazal Karim, who carried on business to the name of Hafiz Fazal Karim & Sons with their godowns near Denso Hall. The father of this witness was an Accountant in this firm and, therefore, this witness knew Jawed lqbal as well as the firm of Hafiz Fazal Karim & Sons. On this evidence the trial Court held that Gulshan Hard‑Ware Store was a fictitious concern.

6. The explanation of Sayeed Hai before the trial Court was that he did make purchases of various quantities of electrodes from Premier Engineering Company, Ameeji Valiji and Pakistan Oxygen Co. Ltd. but that these goods were not supplied to the K. D. A: According to him, the goods supplied to the K. D. A. were purchased by him from Jawed lqbal, the proprietor of Gulshan Hard‑Ware Store. Jawed lqbal stated in his examination under section 342, Cr. P. C. that he was the proprietor of Gulshan Hard‑Ware Store and had supplied to Sayeed Hai the electrodes mentioned in the cash memos of Gulshan Hard‑Ware Store.

7. The learned Special Judge found that the case against the four employees of the K. D. A. had not been proved. As regards Sayeed Hai and Jawed Iqbal, though they were charged with offences punishable under section 120‑B, and section 5 (2) of Act II of 1947, the learned Judge convicted them under section 420 and section 420 read with section 109, P. P. C. respectively.

8. Mr. Muhammad Hayat Junejo, the learned counsel for Sayeed Hai, raised two‑fold contention against the validity of Sayeed Hai's conviction under section 420, P. P. C. The first ground of attack was that the Special Judge was authorizad to try only those offences which are specified in the Schedule to the Pakistan Criminal Law (Amendment Act) of 1956, and that the offence under section 420, P: P. C. :s not one of these offences. To appreciate this contention, it is necessary to refer to the provisions of the Act and the Schedule thereto. Section 4 of the Act provides that the Special Judge appointed under the Act may take cognizance of any offence committed or deemed to have bean committed within the limits of his jurisdiction which are triable under the Act. Section 5 (1) of the Act is as follows :‑ "

5. Offences to be tried by Special Judges: ‑(1) Not with standing anything contained in the Code of Criminal Procedure, 1898, or in any other law, the offences specified in the Schedule shall be triable exclusively by a Special Judge." The Schedule to the Act is divided into three parts. Part (a) specifies the offences under sections 161 to 166, 168, 217 and 218 of the P. P. C. as triable by the Special Judge. Part (c), specifies the offences punishable under the Prevention of Corruption Act (II of 1947) and attempts, abetments and conspiracies in relation thereto or connected therewith as offences of which the Special Judge could take cognizance. Part (b), which is the part material for the purpose of this case is as under :‑ "(b) Offences punishable under sections 403 to 409, 417 to 420, 465 to 468, 471 and 477‑A of the Pakistan Penal Code and as attempts, abetments and conspiracies in relation thereto or connected therewith when committed by any public servant as such or by any person acting jointly with or abetting or attempting to abet or acting in conspiracy with any public servant as such." This part makes the offence under section 420, P. P. C, triable by the Special Judge. But the learned counsel emphasise6 the words "when committed by any public servant as such or by any person acting jointly with or abetting or attempting to abet or acting in conspiracy with any public servant as such". It was contended that an offence under section 420, P. P. C, is a scheduled offence only when it fulfils the condition prescribed by Part (b) of the Schedule, the conditions being :‑ (i) the offence should have been committed by a public Servant or, (ii) if the offence is committed by any other person, then this person must have acted jointly with or must have abetted or attempted to abet, or acted in conspiracy with, the public servant. It was argued that unless either of these conditions are complied with, an offence under section 420, P. P. C. cannot be tried by the Special Judge. Referring to section‑6 (4) of the Act, which empowers the Special Judge to convict an accused of any offence which, from the facts admitted or proved, he appears to have committed, the learned counsel contended that this provision did not confer jurisdiction on the Special Judge to convict an accused of an offence not specified in the Schedule. According to the learned counsel, the words "any offence" in section 6 (4) refer only to scheduled offences.

9. This objection of Mr. Junejo to the jurisdiction of the Special Judge is not without force and is supported by two decisions of the Dacca High Court, acid a decision of the Lahore Seat of this Court. In Abdul Barkat Sharanarnot v. The State (P L D 1959 Dacca 617) it was observed as follows :‑ "The provisions of section 6 (4) of the, Criminal Law (Amendment) Act, 1958, do not say that the special Judge has jurisdiction to convict the accused of any offence of the Pakistan Penal Code other than they offences specified in the Schedule to the Act which from the facts admitted or proved, he appears to have committed. The provisions of the said subsection do mean that the Special Judge may convict the accused of any offence specified in the Schedule to the Act which from the facts admitted or proved, he appears to have committed, although he was charged under some other offences specified in the said Schedule." This view was affirmed in a latter judgment of the Dacca High Court in Jabed Ali v. The State (P L D 1964 Dacca 208) and was followed in Mukhtar Ahmad v. The State (P L D 1965 Lah. 266). The accused in this latter case was charged with the offence under section 161, P. P. C. read with section 5 (2) of the Prevention of Corruption Act (II of 1947), but was actually convicted under section 474, P. P. C. Sajjad Ahmed, J , agreeing with the view taken by the Dacca High Court, held that the word "offence" as used in section 6 (4) of the Act means an offence specified in the Schedule.

11. It has already been noted that under Part (b) of the Schedule a person, other than a public servant, can be tried before the Special Judge for the offence under section 420 only it such person has abetted or acted jointly, or in conspiracy, with a public servant. The four employees of the K. D. A. have been acquitted by the trial Court of the charge's of criminal conspiracy, and criminal misconduct under section 120‑B, P. P. C. and section 5 (2) of Act II of 1947. Thus, Sayeed Hai and Jawed Iqbal have not abetted, or acted jointly or in conspiracy with these persons. Nor is there any finding that these two accused abetted or acted jointy or in conspiracy with, any other public servant in the commission of the offence under section 420, P.P.C. In the absence of this finding, the learned Special Judge could not convict them under this section.

12. The next contention of Mr. Junejo is that the procedure adopted at the trial has caused substantial prejudice to the appellant Sayeed Hai. It is argued that the offence charged against Sayeed Hai was criminal conspiracy with public servants for the commission of the offence of criminal misconduct, which are punishable under section 120‑B, P. P. C. and section 5 (2) of Act II of 1947 respectively. The alleged co‑conspirators have been acquitted and the actual con viction of the appellant, counsel pointed out is under section 420, P. P. C. The question arises as to who are the persons who have been deceived by Sayeed Hai into paying to him the alleged excess amount. From the substance of the accusation read out to the appellant and the public servants at the com mencement of the trial, it would appear that Sayeed Hai could be said to have deceived those same public servants who were co -accused with him under section 120‑B, P. P. C. and section 5 (2) of Act II of 1947. It is contended, and in my opinion rightly, that joint trial of Sayeed Hai and the public servants, and subsequent acquittal of the public servants, and Sayeed Hai conviction under section 420, P. P. C. had deprived Sayeed Hai of the right of cross‑examining these public servants, who would have been the natural witnesses for the prosecution if Sayeed Hai alone was tried in ordinary courts on the charge of cheating.

13. Mr. Abdus Samad, the learned Public Prosecutor for the Special Police Establishment attempted to meet this argument by contending that the offence under sections 420 and 120‑B, P.P.C. read with section 5(2) of Act II of 1947, have common ingredients and that when Sayeed Hai was charged at the trial with the offences under the last two provisions, he had also notice of the accusation under section 420, P. P. C. It shay he that the offence charged against Sayeed Hai has common elements with the offence for which he has been convicted. But the question is not whether Sayeed Hai had notice of the accusation under section 420, P.P.C. The question is whether Sayeed Hai has been deprived of the right of cross‑examining the persons who would have been the prosecution witnesses against him under section 420, P. P. C. It cannot be denied that Sayeed Hai has been deprived of this right and has thereby been gravely prejudiced in his trial. Moreover, in the circumstances of this case, the appellant cannot be said to have had notice of the accusation under section 420, P. P. C. His joint trial with the public servants on charges of criminal conspiracy for commission of criminal misconduct was enough to lead him to assume that the only charge he had to meet was contained in the accusation read out to him at the commencement of the trial. No person in his place could foresee that he will be ultimately convicted for the offence of deceiving those very persons who were co‑accused with him. If cannot, therefore, be said that he had knowledge of the charge which he was finally required to meet.

14. For these reasons, the conviction of Sayeed Hai by the Special Judge under section 420, P. P. C: cannot be sustained. I would, therefore, accept this appeal and quash the conviction and sentence imposed on the Appellant. In consequence, the conviction and sentence of Jawed Iqbal, though he has not come to appeal, are also quashed.

15. The question arises whether re‑trial of the appellant should be ordered. The offence is alleged to have been committed in early 1959. The First Information Report was registered on 12th September, 1959. The trial commenced on 6‑12‑1960 when the substance, of accusation was read out to the accused, and conviction was recorded on 16‑5‑1964. This appeal has been heard in August, 1966. Thus Sayeed Hai underwent protected trial for five years, and for seven years the fear of conviction has been hanging on his head. In these circumstances, I am of the opinion that this is not a fit case for re‑trial. I would, therefore, order that Sayeed Hai shall not be re‑tried. For the same reasons, Jawed Iqbal also will not be re‑tried. In view of the above decision, the revision application under section 439, Cr. P. Code is dismissed. K. B. A. Appeal accepted.