1977 P Cr (PLP)

S. 409‑Criminal breach of trust by public servant‑Sanction to prosecute‑Not brought on record‑Special Judge, held, could not take cognizance of offence without prior sanction having been given for prosecution of accused.‑[Sanction for prosecution]. Zafar Bashir for Appellant. Akhtar Shabbir for A: G. for the State. This appeal is directed against the judgment of Special Judge, Jhang, dated 29‑8‑1970, where by Bashir Ahmad appellant was convicted under section 409, P. P. C. and sentenced to undergo R: I. for 6 months and a fine of Rs. 500 or in default in payment of fine to undergo further R. I. for 3 months. 2. Nur Muhammad P. W. secured a loan of Rs. 900 with promise to re‑pay it by instalments. He paid Rs. 200 to Bashir Ahmad Patwari appel lant on 17‑1‑1963, and obtained receipt Exh. P. C. Bashir Ahmad did not deposit the said amount in Government Treasury and committed criminal beeach of trust. Nur Muhammad found subsequently that Bashir Ahmad Patwari had not deposited the said amount. He submitted application Exh. P. B. dated 18‑3‑1965, to Tehsildar, Shorkot, for taking appropriate action. The Tehsildar held an inquiry. It was found that Bashir Ahmad Patwari was guilty of committing criminal breach of trust. A case under section 409, P. P. C. was registered at Police Station Shorkot on 1‑12‑1955. The appellant was challaned after investigation. 3. The prosecution examined 9 witnesses in support of the case. Nur Muhammad complainant was examined as P. W. 1. He deposed that he took the taqavi loan of Rs. 900 and had to re‑pay it by instalments. He further stated that he paid 2 instalments of Rs. 100 and Rs. 200 to the appellant who issued receipts but the appellant did not deposit the amount of Rs. 200 in the Government Treasury. He made application Exh. P. B. to the Tehsildar. Muhammad Roshan P. W. 2 stated that on the application of Nur Muhammad, an inquiry was initiated against the appellant. Taqavi Clerk produced application Exh. P. B., copy of receipts Exh. P. C. File of preliminary inquiry Exh. P. D., receipt Exh. P. A. m Behi Exh. P. A. 1, before the Police and the documents were taken into possession vide memo. Exh. P. E. Acquaintance Roll Register Exh. P. F. was taken into possession vide memo. Exh. P. F. 1. Wali Muhammad P. W. 3 attested memo. Exh. P. E. relating to the recovery of documents Exh. P. A. to P. D. Khadim Hussain P. W. 4 produced documents Exh. P. B., P. G., P. D., and P. A. and attested memo. Exh. P. E. Sh. Muhammad Din, Hand Writing Expert opined that signa tures on Exh. P. A. and P. B. and the routine signatures Exh. One and the same person had written P. F. 2. He further disclosed that signa tures on Exh. P. A. 2 to Exh. P. A. 4 were also by one and the same person. Rai Sultan Ahmad, the then Tehsildar was examined as P. W. 7. Ch. Abdul Haq A. S. I. P. W. 9 investigated the case. 4. Bashir Ahmad appellant denied the prosecution allegations. He denied to have received Rs. 200 from Nur Muhammad Patwari. He further denied the execution receipt Exh. P. A. He did not lead any evidence in defence. 5. The, learned counsel for the appellant contended that no witness came forward to state that Behi Exh. P. 1 and the Acquittance Roll Register Exh. P. F. remained with the appellant and he had been making entries in the Behi and the Register, and thus the evidence of Handwriting Expert was not available to the prosecution. He further urged that specimen signatures of the appellant were taken down at Exhs. P. C., P. C/1 and P. C./2 and nobody came forward to state that the specimen signatures of Bashir Ahmad appellant were taken down in his presence and in this view of the matter the evidence of Hand Writing Expert could not be considered. The learned counsel further argued that the trial had vitiated since the sanc tion for prosecution as required under the law was not brought on the file of the case. 6. I have carefully considered the evidence on record and the arguments advanced by the learned counsel for the appellant. Specimen signatures Exhs. P. C., P. C. 1 and P. C. 2 were obtained in the presence of a Magistrate but the Magistrate was not produced in Court to state that the specimen signatures had been obtained in his presence. It could not be stated with certainty that the specimen signatures were thus of the appellant. Nobody stated before the learned Special Judge that Behi Exh. P. A I was in the possession of the appellant and the appellant had made routine entries at Exh. P. A. Similarly none from the prosecution was examined to state that the Acquittance Roll Register Exh. P. F. remained in the possession of the appellant and the appellant had been making entries in the said register. The learned counsel was justified in contending that the evidence of the Hand Writing Expert was of no consequence. Sanction for the prosecution was required to be produced. I have checked the file and found that the sanction was not b: ought on the record of this case. Without prior sanction, the learned Special Judge could not take cognizance. Since the sanction was not produced, the trial had vitiated. 7. For the reasons stated above, I accept this appeal, set aside the judgment of the learned Special Judge and acquit the appellant. The appel lant is on bail. He is discharged of his bail bond. Appeal accepted