1968 P Cr (PLP)

H. T. RAYMOND, J.-This a Criminal Acquittal Appeal filed by the Additional Advocate-General, West Pakistan, and ex officio Public Prosecutor, Karachi, under orders of the Government of West Pakistan against the acquittal of the two respondents by the Special Judge-cum-Inquiry officer, Hyderabad of Offences under sections 420/120VH. P. P. C. r/ wr. 5(2) of Act 11 of 1947 in case No. 62 of 1963 of that Court. We observe from a perusal of the order of the Governor of West Pakistan sanctioning the filing of this Acquittal Appeal that the said order limits the acquittal appeal to the respondent No. 1 Azizuddin s/o Safeeruddin and does not include the respondent No. 2 Abdul Sattar s/o Abdul Shakoor. Moreover the learned Advocate appearing on behalf of the State in this acquittal appeal admitted at the very outset that be was not pressing this appeal as against the respondent No.

2. Hence, we are now only concerned with the case as against the respondent No. 1.

2. We also notice from a perusal of the impugned order of the Special Judge-cum-Inquiry Officer, Hyderabad, that he has rested the acquittal of the two respondents solely upon what he considered to be a defective order sanctioning their prosecution and not upon t1he merits of the case. In fact the learned Special Judge has not at all entered upon a consideration of the facts or merits of this case; and while acquitting the two respondents/ accused because of the defective order sanctioning their prosecution he has stated in his judgment that "it is for the authorities to consider the question of re-prosecution of the accused after obtaining a valid and proper sanction." However, the authorities instead of adopting the course suggested by the learned Special Judge chose to go in appeal against his acquittal order. We mention this fact here because it seems to us that if we should arrive at the conclusion that the order sanctioning the prosecution of the respondents/accused was a correct, proper and valid order, we could not ourselves dispose of this acquittal appeal but would have to remand the case for a full, trial on merits in the court below.

3. Now before considering the validity of the order sanction ing this prosecution, a few facts of this case may with advantage be set out here. The respondent No. 1 Azizuddin s/o Safeeruddin was a lower division clerk in the Central Stamp Office, Karachi, and the respondent No. 2 Abdul Sattar a businessman in Karachi. According to the prosecution they entered into a criminal conspiracy to do an illegal act, namely, to facilitate the sale of obsolete and withdrawn postal stamps by their release to post' offices for- sale. Two indent orders from Karachi Saddar and City Post Offices had been received by respondent Azizuddin in the Central Stamp Office Karachi for the supply of stamps of the denominations of rupee one and fifty paisas respectively. It is alleged that respondent Azizuddin made corrections in the two indent orders inserting the stamps of 75 and 25 paisas instead of rupee one and 50 paisas, and supplied commemorative stamps (x th Anniversary of Pakistan) of 75 and 25 paisas of the total value of Rs. 8,800, to the two Post Offices concerned. Thus, obsolete and withdrawn commemorative stamps of the value of Rs.3,800 was supplied by him to the Saddar Post Office and of the total value of Rs. 5,000 to the City Post Office. This mischief on his part was detected in the Saddar Post Office on 12-4-62 and in the City Post Office on 27-4-62. Respondent Azizuddin on coming to know that the mischief played by him had come to light rushed up to the post offices concerned, took away the commemorative stamps supplied by him and substituted for them the stamps actually indented for by these two post offices. on these brief facts the two respondents were challaned in the court of Special Judge for offences under sections 420/120-B, P. P. C. and section 5(2) of Act II of 1947.

4. The order sanctioning their prosecution is in these words:- "Whereas Azizuddin Ahmed employed as Lower Division Clerk in the Central Stamp Office Karachi, and as such, a public servant and in such capacity on or before 10-4-62, entered into a Criminal Conspiracy with Abdul Sattar Memon to do an illegal act, namely, to facilitate him in the sale of obsolete and withdrawn postal stamps by their release through Post Offices and in pursuance of the said conspiracy supplied on 10-4-62 to Saddar Post Office and on 11-4-62 to City Post Office obsolete and withdrawn Postal Stamps "of the value of Rs. 3,800 and Rs. 5,000 respectively and thereby caused pecuniary advantage to the said Abdul Sattar in a sum of Rs. 8,800 and suppressed postal stamps of the like amount to dispose them off and thereby cheated the Government and thus committed an offence punishable under sections 420 and 120-B, P. P. C. and section 5(2) of Act of 1947. Now therefore, 1, Syed Munir Hussain, C. S. P. Deputy Commissioner, Karachi on perusal of papers, consideration of facts and expediency of the matters hereby grant sanction for the prosecution of the said Azizundin Ahmed for the said offences before the Special Judge (District and Sessions Judge) Karachi." The learned Special Judge held this order to be defective and not a valid sanctioning 9rder. His sole ground for doing so was that the sanctioning authority had been misled into thinking that these commemorative stamps were obsolete and invalid: Whereas the evidence on record particularly Exh. 3-G the booklet of Pakistan Postage Stamps at page 24 shows that these very commemorative stamps though withdrawn from sale were at no time demonetized and hence were valid. It is urged in this appeal that the learned Special Judge had erred in holding the said sanctioning order to be invalid. It is contended that the very language of the sanctioning order indicates that the sanctioning authority was fully aware of the facts of the case against respondent No. 1 and that it had applied its mind to the case before granting this sanction.

5. Before dealing with the main point of contention raised in this acquittal appeal it is necessary to dispose of two preliminary objections to the maintainability of this appeal raised by the learned Advocate appearing on behalf of the respondent No.

1. The first contention was that this Criminal Acquittal Appeal as filed is not maintainable in law as it offends the terms of the order of the Governor of West Pakistan sanctioning the filing of this acquittal appeal. That order limits the proposed acquittal appeal only as against the respondent No. 1 Azizuddin whereas, in actual fact, this appeal has been filed against both the respondents/accused. We are not impressed by this first preliminary objection. It seems to us that even though the order of the Governor limits the filing of this Criminal Acquittal Appeal to the respondent No. 1 only, the appeal as it stands against the two respondents is not vitiated because we would consider it only as against the respondent No. 1 and not against the respondent No.

2. The second preliminary objection raised by the learned defence advocate was that the order of the Governor directed the Additional Advocate-General West Pakistan to file an acquittal appeal in this High Court: Whereas the present appeal has been filed by Mr. Muhammad Haleem Assistant Advocate-General West Pakistan who is not a Public Prosecutor appointed for this purpose. But when Notification No. 861 dated 14-10.55 of the Government of West Pakistan published in the Gazette of West Pakistan dated 15-10-55 was shown to the defence advocate, he withdrew this second preliminary objection raised by him.

6. Coming now to the main point for consideration in this appeal namely the validity of the order sanctioning the prosecution in this case, it will be observed from a perusal of this order, as set out above, that the order contemplates a criminal conspiracy between, the respondent No. 1 and Abdul Sattar Memon. It is in pursuance of this conspiracy that pecuniary advantage was caused to the said Abdul Sattar Memon to the tune of Rs. 8,800 and ordinary postage stamps of the like amount suppressed. By such conduct on the part of the two respondents/accused Government was allegedly cheated and offences committed under sections 420/120-B, P. P. C. and S. 5(2) of Act 11 of 1947. The sanction, as it stands, contemplates the prosecution of both the respondents/accused and on this basis it would be difficult, if not impossible, for the Prosecutor to proceed with the retrial of the respondent No. 1 alone. The learned advocate appearing on behalf of the State in this criminal acquittal appeal having frankly admitted at the very opening of his arguments that there is no case against respondent Sattar, the prosecution would find itself in difficulties in proceeding with the case as against respondent Azizuddin only upon the basis of this sanctioning order. It therefore seems to us that this sanctioning order, as it stands, cannot form the basis for a retrial of respondent No. 1 Azizuddin only and it is therefore incumbent upon the sanctioning aut4ority to accept the suggestion made by the learned Special Judge in the concluding sentence of his impugned acquittal order, namely, to grant a separate sanction other than the one upon which this prosecution has been filed.

7. Mr. Sami Ahmed Advocate appearing on behalf of the respondent No. 1 detailed four defects in the order sanctioning the prosecution in this case. As a result of the opinion expressed by us in the above paragraph, it becomes unnecessary to consider these alleged defects nor is it necessary to consider the case law referred to by Mr. Sami Ahmed. We are content to rest our judgment in this acquittal appeal upon the admission mad by the learned State Counsel that there is no case as against the respondent No. 2 and that therefore in our view if this prosecution is to proceed only as against the respondent No. 1 it Cannot do so on the language of the sanctioning order as it now stands. It will be for the sanctioning authorily to decide whether a fresh order of sanction of prosecution should be drawn up by them for proceeding as against the respondent No. 1 only. With these remarks we would dispose of this Criminal Acquittal Appeal. Order accordingly.