P L D 1993 Karachi 375 (PLP)

Now therefore, I Saleem Ahmad Memon, Deputy Commissioner, Badin, in exercise of the powers vested in me under clause (5) of section 6 of the Pakistan Criminal Act XL of 1985 do hereby accord sanction for the prosecution of the said Ali Ahmad for the aforesaid offence before the Special Judge, Anti-Corruption, Hyderabad. (Sd.) (SALEEM AHMAD MEMON), DEPUTY COMMISSIONER & CHAIRMAN ANTI-CORRUPTION COMMITTEE NO. III, BADTN.-

6. Now the question arises whether the said sanction was accorded by the Anti-Corruption Committee No. III for District Badin, whether any meeting was held by the said Committee on 30-11-1981, whether the said Committee hid considered the evidence and applied its mind to the material for according the sanction to prosecute, instead of dealing with the case departmentally. It may be observed that the entire text of the sanction is typed except figure '30' which is written with the same marker which was used by the Deputy commissioner-cum-Chairman, Anti-Corruption Committee No. III, Badin for signing the sanction. No date is mentioned in the sanction accorded by the Deputy Commissioner-cum -Chairman of the said Committee. It is undated document. It is, however, stated in the sanction that the facts and circumstances of the allegations were fully considered on 30-11-1981 by the said Anti-Corruption Committee. If the meeting was in fact held on 30-11-1981 as is professed in the document and the text of the sanction was prepared o ' n the same day for delivery thereof to the prosecution agency on the same date, the said date so would have been typed with the remaining text of the sanction and the figure "30" would not have been written with the marker at the time of signing the sanction. P.W.16, Ghulam Nabi, as disclosed by him, was Circle Officer Anti -Corruption Establishment, Badin, at the relevant time and by virtue of such posting he was member/Secretary of the Anti-Corruption Committee. The said Officer in his evidence has deposed that on 3041-1981 he sent up the appellant to stand his trial after obtaining sanction. He did not depose that any meeting of the Committee had taken place on that day. On the contrary his saying that he obtained the sanction confirms the fact that no meeting was held on that day. Had it been otherwise, he would have deposed differently, even if he was not the member of the said Committee. No extraneous evidence was produced in this regard. Under such Circumstances it 'is not possible to believe that any meeting was held and the material, that was being relied upon by the prosecution, was considered by the said Committee. It is evident that some pro forma was used to prepare the sanction, after lifting the receipt numbers and figures from the complaint of P.W.1 or F.I.R. and kept ready with blank space for the date, to be inserted at the time of delivery thereof to P.W.16. Additionally in the said sanction total amount mentioned as having been recovered- by the appellant is Rs.9,182.21, -which was realised by the appellant under receipts Nos. 195739 to 195800 and Rs.41.00 under Receipt No. 212809. P.W.1 disclosed that he had also secured receipt No.212873 (Exh.10/A) from Khatedar Haji Ghulam Ali Nizamani in the sum of Rs.827.93 and the said amount was also misappropriated by the appellant. If this sum is also counted, the total of the allegedly embezzled amount will be much higher. The said receipt is not mentioned in the sanction. This fact by itself is sufficient to hold that no evidence or material was before the sanctioning authority when the sanction wag granted and, therefore, the conclusion that the sanction was granted mechanically without application of mind and not in the manner enjoined by law, is irresistible.

7. It has been repeatedly stressed that the sanction to prosecute is an important factor, it constitutes a condition precedent to the institution of the prosecution. It is not a matter of routine -or a mere formality, the sanctioning authority has to consider and it is always held to be expedient that it should look into all the material facts including evidence for adequately discharging the obligation of deciding whether to give or withhold a sanction. Such decision cannot be taken without knowledge of the facts of the case and without reference to the facts constituting the offence. Therefore, it is to be proved that the sanction was given after consideration of the facts and material constituting the offence and such inference can be drawn only when the facts constituting the offence are referred to on the face of the sanction. If the sanction does not so speak, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority and it had gone through the same. Where sanction has been granted in a mechanical manner, it has been disapproved and such sanction has been held to be illegal and the proceedings initiated on the basis of such sanction have been quashed. The reference may be made to the following authorities:-- (i) In the case of Tufail Muhammad v. The Crown PLD 1954 Lahore 37, while considering the provisions of section 6 and section 5(2) of the Prevention c)f Corruption Act, 1947, it was observed: "The question that falls for the determination is the meaning to be attached to be expression "Previous Sanction". Does it imply just an order of sanction to be passed by the prescribed authority taking on trust a report made to it by the Investigating Officer. I do not think that could have been the intention of the Legislature. If that were the position then it would be a mere act' of superogation to have the imprimatur of the sanctioning authority added to the opinion of the investigating officer. What was obviously intended was that the sanctioning authority should apply its mind to the facts and circumstances of the case and although, prima facie, some offence may be revealed by the evidence collected, the authority in question would not be bound to accord sanction for the prosecution unless it came to the conclusion that it would be expedient in the interest of justice to do so. Such a conclusion could only be arrived at, after all the material facts had been considered. It is clear that this has not been done in the present case and in my view, therefore, the purported sanction to prosecute was not in accordance with law." (ii) In the case of Gokalchand Dwarkadas Morarka v. The King PLD 1948 PC 11, the language used in section 23 of the Cotton Cloth and Yarn (Control) Order, 1943, which is in pari materia with section 6 of the Prevention of Corruption Act, it was observed: "In their Lordships, view in order to comply with the provisions of clause 23, it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since clause 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. The sanction to prosecute is an important matter, it constitutes- a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. They are not, as the High Court seems to have thought, concerned merely to see that the evidence disclosed a prima facie case against the person sought to be prosecuted. They can refuse- sanction on any ground which commends itself to them, for example, that on political or economic grounds they regard a prosecution as inexpedient. Looked at as a matter of substa~ce it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without a knowledge of the facts of the case. Nor in their Lordships' view is a sanction given without reference to the facts constituting the offence a compliance with the actual terms of clause 23." The above authority has been referred to in the case of Tufail Muhammad v. Crown (supra). (iii) In the case of Saswant Singh v. The State of Punjab PLD 1958 SC (India) 328, following cases were considered:-- (1) Basdeo Agrawala v. Emperor (AIR 1945 FC 16 p.18). (2) Gokalchand Dwarkadas v. The State reported in PLD 1948 PC 11, (3) Yousaf Ali Mulla v. The King reported in PLD 1949 PC

105. It is observed, after considering the above cases, that the sanction under the Act is not intended to be, nor is an automatic formality and it is essential that the observations in regard to sanction should be observed with complete strictness. The object of the provision for sanction is that the authority giving the' sanction should be able to consider for itself, the evidence before it to come to a conclusion whether prosecution in the circumstances be sanctioned or forbidden. It is plainly desirable that the facts should be referred to on the face of the sanction. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have absolute discretion to grant or withhold their sanction. It should be clear from the form of the sanction that the sanctioning authority considered the evidence before it and after consideration of all the circumstances of the case sanctioned the prosecution and, therefore, unless the matter can be proved by other evidence, in the sanction itself the facts should be referred to indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case. In Yousaf Ali Mulla v. The King PLD 1949 PC 264 it was held that a valid sanction on separate charges of hoarding and profiteering was essential to give the Court jurisdiction to try the charge. Without such sanction the prosecution would be a nullity and the trial without jurisdiction. (iv) In Abdul Rashid v. The State PLD 1960 Kar. 251, the sanction was accorded almost in the same language in which the sanction against the applicant is couched. When the matter came up before the learned Judge in the High Court, relying upon the aforesaid case of Tufail Muhammad and Gokalchand Dwarkadas Morarka v. The State PLD 1948 PC 11, the sanction was disapproved with the observations that the sanction order did not show in any way what papers were put up before the sanctioning, authority and what issues were involved. Sanctioning authority mentioned the sum of Rs.905-12-00 while Rubkari issued to the accused mentioned the sum of Rs. 725-12-00 only. The sanctioning authority was not examined. From the record it did not appear that the sanctioning authority had used his judgment in arriving at a decision. No extraneous evidence was given to prove that the sanctioning authority was made aware of the details and of the explanation given by the accused. It is then observed, "This order of sanction suggests that some pro forma was sent to him (sanctioning authority) with a draft and he merely signed it. Such sanction is held to be a mechanical sanction and has been disapproved by this Court in Tufail Muhammad's case. (Muhammad Hussain Adil Khatri, J) (v) In the case of Munshi Abdullah Khan v. Azad Jammu & Kashmir Government PLD 1960 Azad J&K 14, it was noted that the sanction did not bear ally date although the date of dispatch was mentioned therein. From the sanction, it further appeared that while sanctioning prosecution of the appellant, the sanctioning authority did not apply his mind to the facts of the case, rather it could be said that the facts of the case were not before him. It is then observed, "The sanctioning authority has not only to apply its mind to the facts and circumstances of the case but has also to come to the conclusion that it is expedient in the interest of justice to accord sanction for the prosecution. Such a conclusion could only be arrived at after all the material facts have been considered. (vi) In Masudul Hassan Qureshi v. The State and another 1982 P.Cr.LJ 530, the sanction order was discarded for reasons that it neither contained the direction for prosecution of the petitioner, nor bore any date. (vii) In Hotchand v. The State (1985 PCr.U 2318) Saeeduzzaman Siddiqui, J. (as he then was) relying on the case of Tufail Muhammad (supra) declared the sanction order as having been passed without application of mind as the amount mentioned in the sanction order did not tally with the figure disclosed in the evidence as having been misappropriated by the civil servant. It was also observed that the omission on the part of sanctioning authority to mention the misappropriated amount correctly, established that the sanction was granted in a mechanical fashion. Reliance for the above view was placed on Muhammad Khan v. The State PLD 1977 Lah. 1195. (Viii) In Shafqatullah v. The State 1989 MLD 664, where the sanction order did not disclose the date of offence and did not bear the date, nor it was mentioned in the sanction as to what documents were taken into consideration, the sanction was held to have been granted mechanically without applying mind to the facts of case and for such reasons prosecution of the appellant on the basis of such sanction was held to be illegal and the proceedings pending against the applicant were quashed. 8- Since the prosecution of the appellant was commenced on the b illegal sanction which was granted without application of mind to the facts' the case and the material, in transgression of the established law, it stands vitiated and conviction cannot be sustained.

9. The learned counsel for the appellant also contended that more than three charges of misappropriation pertaining to the same year have been subject-matter of the charge against the appellant in this case and thus the prosecution of the appellant is vitiated by misjoinder of charges also. The learned counsel has also referred to the case-law in this regard. The learned from Court has relied on the case of Nadir Shah v. -The State 1980 SCMR 402 but, however has not applied its mind to see whether the combination of the said charges had caused any prejudice to the case of the appellant. Since I have reached the conclusion that the prosecution of appellant was vitiated on account of illegal sanction, it is not necessary to enter into this aspect of the case. 10.. The learned A.A.-G. did not support the conviction because of the illegality of the sanction to prosecute the appellant.

11. J, therefore, allow this appeal and set -aside the judgment dated 30-3-1984, passed by the learned Special Judge, Anti-Corruption, Hyderabad. It will, however, not come in the way of departmental proceedings, if intended to be commenced against the appellant. N.H.Q./A-1352/K