P L D 1961 Dacca 573 (PLP)

HAMOODUR RAHMAN, J.‑

The appellant before us has been convicted under sections 467 and 403 of the Pakistan Penal Code and subsection (2) of section 5 of the Prevention of Corruption Act, 1947, (Act II of 1947) by the learned Special Judge, Chittagong Division, and sentenced to suffer rigorous imprison ment for two years, as also to pay a fine of Rs. 100 or in default, to suffer further rigorous imprisonment for three months in respect of the conviction under section 467, rigorous imprisonment for six months under section 403 and rigorous imprisonment for one year under section 5 (2) of the Prevention of Corruption Act, 1947. The substantive sentences of imprisonment have however, been made to run concurrently.

2. The appellant was tried with two other persons on the substantive charges under sections 403 and 467 of Pakistan Penal Code ; but the acquitted accused Mehrajuddin Sarkar was only charged with abetment of the said offence and the other acquitted accused Shamsul Hoque was charged only under section 467 of the, Pakistan Penal Code for having forged a money order form.

3. The case of the prosecution against these accused persons appears to have been that in April, 1956 at the Tamabil Branch Pos Office the two acquitted accused were the Extra Departmental Agent and retired post master respectively whilst the appellant before us was the Extra Departmental Delivery Agent. On or about the 4th April, 1956, it is said, one Akhil Chandra Dhar remitted a sum of Rs. 60 to his wife Saraswati Dasi at Dacca from the said Branch Post Office but the money was neither delivered to his wife nor returned to him. Hence, he made a complaint (Exh. 7) to the Post Master‑General upon the basis of which an enquiry was held and, according to the prosecution, the enquiry was supposed to have revealed that the money order form was received by the appellant Mamtaj Ali who changed it and had another form written out by the acquitted. accused Shamsul Haque addressed to Taher Ali & Sons, C/o Haji Manfar Ali of Laldigirpar, Sylhet. The said Haji Manfar Ali was the father of the appellant Mamtaj Ali. This was further said to have been done in conspiracy with the acquitted accused Mehrajuddin Sarkar who was in charge of the Branch Post Office at that time, as the Branch Post Master was away on leave. In the money order receipt granted to the said Akhil Chandra Dhar (Exh. 10), it was further alleged, the appellant erased the name of Taher Ali & Sons and substituted therefore in his own hand‑writing the name of Sarawasti Dasi before making it over to Akhil Chandra Dhar.

4. Subsequently Haji Manfar Ali' the father of the said appellant, approached Taher Ali (P. W. 6) 4 shop‑keeper at Sylhet, in the presence of his karmachari, Tara Mia, P. W. 7 and requested him to accept any money order which might come for him. A few days thereafter the said money order was received in the shop of Taher Ali during his absence on another business. Haji Manfar Ali called for it and was paid the amount by the karmachari Tara Mia who actually received the money‑order and took the money from the Postal peon by giving his signature on the money‑order form Exh. 14.

5. During the course of the enquiry however, the Inspector of Post Offices of Sylhet Division, P. W., 3 recovered the said sum of R . 60 from the said Taher Ali, P. W. 6 and credited the amount to the Sylhet Post Office. He also seized the relevant money order form and the receipts. On completion of his enquiry, he filed complaint Exh. 11 which was treated as the First Information. report ; and a case was registered after obtaining the necessary sanction Exh. 19 from the Government of Pakistan. During the course. of investigation specimen signatures were obtained of the appellant Mamtaj Ali and accused Shamsul Hoque and they were examined by a handwriting Expert, P. W. 13.

6. The sanction Ext. 19 is for the prosecution of the acquitted accused Mehrajuddin Sarkar and the appellant Mamtaj Ali for offences under section 409 and 457 read with section 109 of the Pakistan Penal Code and subsection (2) of section 5 of the Prevention of Corruption Act. The acquitted accused Smshaul Hoque was also charged under the same sections. In the sanction, in addition to these persons, the father of the appellant Haji Manfar Ali, P. W. 7, Tara Mia and P. W. 6 Taher Ali were also to be prosecuted under section 409 read with section 109 of the Pakistan Penal Code.

7. At the trial, however, the order‑sheet discloses, the subs tance of the offences that was explained to the appellant Mamtaj Ali under section 242 of the Code of Criminal Procedure, was that whilst posted as an Extra Departmental‑Delivery Agent of the Tamabil Post Office the appellant had dishonestly misappropriated a sum of Rs. 60 being the value of money order No. 23 dated 4‑4‑56 addressed to Saraswati Dasi by Akhil Chandra Dhar and thereby committed an offence punishable under section 403 of the Pakistan Penal Code and section 5 (2) of the prevention of Corruption Act. Furthermore that in the month of April, 1956 he had committed forgery by inserting the name of Saraswati Dasi in place of Taher Ali& Sons in the Sylhet Post. Office receipt No. 4856 dated the 6th of April, 1956 issued for Tamabil money order No. 23 dated 4‑4‑56 for Rs. 60.

8. At the trial some sixteen witnesses were called on behalf of the prosecution. Of these P. Ws. 5 and 9 were merely tendered but not cross‑examined. Of the other 14 witnesses actually examined, P. Ws. 1 and 10 merely proved the signatures of another Magistrate named Mr. M. Huq before whom it is said the appellant Maintaj Ali had given his specimen signatures and writings for the purposes of examination by the Handwriting Expert. P. W. 2 proves certain specimen writings of the acquitted accused. P. W. 3 was the Inspector of Post Offices, Sylhet Sub- Division, who held the enquiry in this case, recovered the amount of the money order from Taher Ali, P. W. 6, and lodged the complaint for the prosecution of the accused persons. Neither the original complainant Akhil Chandra Dhar nor Saraswati Dasi were examined as witnesses in this case, as they were said to be away in India : but the signatures Exh. 3 (E) on Akhil's letter of com plaint was proved by one. Nitya Gopal Poddar (P. W. 4) who claimed to be Akhil's brother‑in‑law.

9. During the pendeney of the trial the father of the Appel lant, Haji Manfar Ali died and the other two accused persons, namely, Taker Ali, P.W. 6 and Tara.Mia, P.W. 7 turned approvers and were granted conditional pardon. They gave evidence as such approvers in this case. Their evidence was to the effect that one day Haji Manfar Ali who was a co‑villager of the father‑in‑law of P. W. 6, came to his shop in the last part of March 1956 and told him that if any money order came for him to the address of the shop, he should receive the same and make it over to him. At that time his karmachari Tara Mia, P. W. 7 was also present as well as other persons including one Abdul Mannan, P. W.

11. Two or three days later when he was away at Dacca a money order for Rs. 60 came in the name of Taher Ali & Sons c/o Haji Manfar Ali. This was received by Tara Mia who had authority to do so during his absence and was paid over to the deceased Haji Manfar Ali. Subsequently, postal officer came to his shop and told him that two in money orders had been mis delivered in the name of his firm. On hearing this, he refunded an amount of Rs. 85 (Rs. 60+Rs. 25/‑) to the Postal authority and obtained a receipt Exh. 12 for the return of the said sum of Rs.

60. Subsequently he demanded this money from the appellant Mamtaj Ali and the latter refunded the money to him and also gave him a chit Exh. 13 in the name of his father late Haji Manfar Ali., It appears, however, that before the Investi gating Officer, P. W: 16 this witness had in his examination under section 161 of the Code of Criminal Procedure stated that he returned the money to the Postal Inspector after realising the same from Haji Manfar Ali. The evidence of P. W. 7, the other approver, is also more or less to the same effect.

10. P. W. 8 was the Extra Departmental Agent of the Tamabil Branch Post Office in whose leave vacancy the acquitted accused Mehrajuddin Sarkar acted. According to this witness, the Postal papers remained in the custody of the Post Master and the appellant Mamtaj Ali was merely an Extra Departmental Delivery Agent. In cross‑examination, however, on behalf of the acquitted accused Mehrajuddin Sarkar, he admitted that the Extra Departmental Delivery Agent also had access to the post office.

11. The approvers were corroborated with regard to the request of Haji Manfar Ali as to the making over of the money of the money order received in his name by P. W. 11, a tailor having his shop in front of the shop of P. W. 6 Taher Ali. The approvers were also corroborated as to Exh. 13 by P. W. 12 who claimed to be a close neighbour of the appellant Mamtaj Ali. In fact, the appellant was, he said, his nephew. He confirmed that he knew the handwriting of Mumtaj Ali and that Exh. 13 was in the handwriting of the appellant Mumtaj Ali. This witness is also related to Taher Ali, P. W. 6 and it appears that he was not a witness who had been examined by the police at any stage daring the investigation.

12. The specimen writings of the accused persons were sent to the Handwriting Expert to the Government of East Pakistan, P. W. 13, who examined the writings on the money order voucher No. 4856, Exh. 14, the counter‑foil of money order receipt No. 23, dated 4‑4‑56, Exh. 9, and the counter‑foil of money receipt No. 4856 Exh. 10 amongst other documents with which we are not concerned here, as they relate to the other accused persons. The money order voucher Exh. 14 was, according to the Hand writing Expert, written oat by the acquitted accused Shamsul Haque and the money order receipts, Exhs. 9 & 10 were in the handwriting of the appellant Mamtaj Ali. So far as the writings on Exh. 9 are concerned, he was very specific as to the similarities, noticed with regard to the movement, speed slant, pen scope, pen pressure design as well as individual characteristics. Indeed, he went to the extent of saying that the writer of this as well as the specimens Exhs. 2 to 2 (4) of the writing of the appellant Mamtaj Ali show that the writer suffered from cramp in his hand. But with regard to Exh. 10, namely, the counter‑foil on which after erasing the words "Taker Ali & Sons", the words "Saraswati Dasi" had been obviously overwritten, he did not give these details. In cross‑examination when asked as to why he did not give demonstrative reasons for his opinion with regard to the similarity of the writings on the receipts, he clarified that his opinion was based upon the same demonstrative reasons, as he had given in case of Exh. 9.

13. Apart from this, the only other important witness in this case was P. W. 15, another Inspector of Post Offices of the Sylhet Sub‑Division. He produced the money order receipt book of the Sylhet Head Post Office marked Exh. 16 and the counter foil of receipt No. 4856 dated the 6th of April 1956 for Rs. 60/- issued in lieu of the Tamabil Branch Post Office money order No. 23 dated 4‑4‑56 Exh. 9 for the same amount payable to Taker Ali & Sons. This counter‑foil was marked as Exh.

17. In cross‑examination, however, he stated that Exh. 17 was in the handwriting of one Hamiduzzaman who was then employed at Habiganj but unfortunately he was not called as a witness in this case. Exh. 10, namely, the money order receipt on which the words "Taker Ali & Sons" have been stated to have been obliterated and the words "Saraswati Dasi" overwritten he said was sent to Tamabil Branch Post Office from Sylhet Head Post Office in substitution of the said Branch Post Office money order receipt No. 23.

14. The last witness is, of course, the Investigating Officer himself P. W.

16. His investigation, however, is more or less of a formal nature but he admitted in his cross‑examination that P. W.

6. Taher Ali had stated before him that he paid over the money to the postal authorities after realising the money from Haji Manfar Ali. He also admitted that Abdul Mannan P. W. 11, had not been examined by him during the course of the investigation.

15. On this evidence the learned Special Judge was of the view that the appellant Mamtaj Ali was the villain of the piece and it was he who managed to divert the money order to Sylhet instead of sending it to Saraswati Dasi at Dacca by fabricating E,xh. 14, the money order voucher and that 1t was he who sub sequently wrote out the name Saraswati Dasi by erasing the words "Taker Ali & Sons" and therefore, he was guilty of the offences charged. Although the other co‑accused Shamsul Haque admitted in his examination under section 342 of the Criminal Procedure Code that lie wrote out the, money order form Exh. 14 in good faith at the request of the appellant Mamtaj Ali, he was not guilty, as anybody might, at the request of another person, write out a money order form and, because, there was no signature of the remitter put on this form Exit. 14 and this accused stated that he did not do so even though the appellant Mamtaj Ali had requested him to put his signature there. This, the learned Special Judge held, rather showed his bona fides and, therefore, did not connect the said accused with this offence.

16. So faras the accused Mehrajuddin Sarkar was concerned, the learned Special Judge, however, purely on certain hypothesis, which are not based on any evidence at all, took the view that this accused was absolutely a raw hand and did not know anything about the procedure of the Post Office and, therefore, he must have depended upon his Extra Departmental Delivery Agent, namely, the appellant Mamtaj Ali even though on the prosecu tion's own showing there was another person of the same rank as the accused Mehrajuddin himself available for help at the said Post Office, namely, accused Shamsul Haque, who had retired on 24‑6‑55 as Post Master of Tamabil and was living there. These two accused were, therefore, acquitted by the learned Special Judge.

17. We are not concerned with their cases here but so far as the present appellant is concerned, the first point urged on his behalf is that the trial was without jurisdiction as the sanctioning authority had not authorised the prosecution of the appellant either under section 403 or tinder section 467 of the Pakistan Penal Code but merely authorised his prosecution for abetment of the said offences. He has contended that the prosecution for a different offence for which no sanction has been given by the sanctioning authority, is a prosecution without jurisdiction, as under section 5 (6) of the Criminal Law Amendment Act, the sanction is the condition precedent to the vesting of the jurisdic tion in the Special Judge. He has further drawn our attention to the fact that P. W. 3, the inquiring Inspector of Post Offices, Sylhet, had also admitted in his evidence that the appellant was not even named as an accused in the petition of complaint that he filed and which was treated as the First Information Report in this case. Again, he points out that in the sanction order itself the only fact alleged against the appellant Mamtaj Ali is that Mamtaj Ali has abetted the acquitted accused Mehrajuddin by forging the name of the payee but the case sought to be, made out by the prosecution now, it is said, is entirely different. The prosecution now says that the person receiving the money was the appellant himself by writing the name of Saraswati Dasi npin the money order voucher Exh. 10.

18. In support of this contention he has also placed strong reliance on the decision of the Judicial Committee of the Privy Council in case of Gokulchand Dwarkadas v. The King (PLD 1948 PC 11), where Sir John Beaumont in delivering the opinion of the Board stated that it is plainly desirable that the facts should be referred to on the face of the sanction * * * * but if the facts constitution 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 " Although the sanction required in that case was under the Cotton Yarn Control Order, 1943 it is submitted that the principles governing such cases where a sanction has to be obtained before instituting a prosecution, are the same. There can be no doubt that the sanction confers jurisdiction to the Court under the Criminal Law Amendment Act also to try the cases thereunder and normally, the Court would have no jurisdiction to try a person for an offence in respect of which the requisite sanction had not been granted. It is also now equally well settled that a sanction merely naming the persons sought to be prosecuted and specifying the provisions of the law violated or the offences committed would not be proper sanction, for the sanctioning authority must, before granting sanction, apply its mind to the facts and circumstances of the case, for determining whether the sanction has to be given or not. But this does not, in our view, go to the extent of saying that the charge to be ultimately framed at the prosecution must follow the exact terms of the sanction. The sanction has to be given in respect of the facts constituting the offences charged and not merely the provisions of the law contravened and specified it the sanction. Thus, if it can be shown that the facts necessary to constitute a particular offence were before the sanctioning authority, then even though the sanctioning authority may have mentioned a particular provision of law as having been violated, the prosecution would still be valid if the accused is charged with an offence not so mentioned in the sanction provided that the facts upon which the sanctioning authority applied its mind were also the facts on which the new or altered charge founded. This view is also supported by the same decision quoted above and relied upon on behalf of the appellant.

19. Applying these principles to the facts of the present case, we are constrained to observe that the question of the appellant Mamtaj Ali having misappropriated or committed breach of trust of any money, does not appear to have been ever placed before B the sanctioning authority. Hence, in our view the prosecution of the appellant on the substantive charge under section 403 of the Pakistan Penal Code was clearly without sanction and, therefore, without jurisdiction. But so far as the charge under section 467 of the Pakistan Penal Code is concerned, it appears that in so fair as the sanctioning authority had before it the case that Mamtaj Ali had forged the name of the payee on the money order receipt, the facts necessary for constituting the said charge were there and, therefore, the prosecution on the straight charge under section 467, P. P. C. was not illega1 even though the sanction was for the prosecution on the same facts on a charge tinder section 467 read with section 109, P. P. C. At any rate, therefore, the conviction of the appellant on the charge under Section 467, P. P. C. cannot be assailed on the ground of want of jurisdiction.

20. So far as the offence under section 403, P. P. C., 'is concerned, even on merits we are of the view that the prosecution has hopelessly failed to make out any case at all against the appellant. There is no direct evidence whatsoever of the mis appropriation. The prosecution more or less relies upon certain isolated circumstances to establish the charge of misappropriation. The circumstances established by the prosecution on the evidence are that the appellant was an Extra Departmental Delivery Agent of the Tamabil Branch Post Office ; that the money order receipt Exh. 10 issued by the Sylhet Head Post Office and sent to Tamabil Branch Post Office had on it an erasure and overwriting which, the Handwriting Expert had opined, was in the hand of the appellant Mamtaj Ali. Furthermore, the other circumstance is the fact deposed to by the two approvers that N4amtaj Ali on demand by the approvers paid them Rs. 60 which his father the late Haji Manfar Ali had received from P. W. 7 in respect of the said money order Exh. 14 and granted a chit Exh. 13 for the same in his own handwriting. There is no other circums tance established to connect the misappropriation of the said sum of Rs. 60 by the appellant Mamtaj Ali, unless, of course, the statement that the co‑accused Shamsul Haque made during the course of examination under section 342 of the Code of Criminal Procedure, is used against the present appellant, as has been done by the learned Judge. We find no justification in law for treating the statement of a co‑accused as evidence against another accused, particularly when that was a statement by which tire said accused Shamsul Haque sought completely to exculpate himself from the crime and was upon the basis of that statement held to have been not guilty.

21. The two solitary circumstances are not by any means incompatible with the innocence of appellant Mamtaj Ali. The learned Deputy Legal Remembrancer has also conceded that he cannot, upon the basis of the said two circumstances only, press to maintain the conviction of the appellant under section 403 of the Pakistan Penal Code. The appellant must, therefore, be acquitted of the said charge under section 403 of the Pakistan Penal Code.

22. So far as the charge under section 467 of the Pakistan Penal Code is concerned, the learned counsel appearing on behalf of the appellant has argued that this depends on the solitary evidence of the Handwriting Expert P. W. 13 who has proved that the overwriting "Saraswati Dasi" Exh. 10 is in the handwriting of this appellant and that Exh. 9, the money order receipt No. 23 of the Tamabil Branch Post Office is also in the handwriting of the appellant. He has, however, contended that even if it be accepted that these writings arc in the hand of the appellant, these do not constitute an offence under section 167 of the Pakistan Penal Code for neither of these would have authorised the recipient to receive or collect any money on the basis of the said receipt. It is argued that on the evidence of P. W. 15 it is clear that the original writing on Exh. 10 was in the hand of one Hamiduzzaman who was not examined in this case, was made at the Sylhet Head Post Office and from the Sylhet Head Post Office this receipt was sent to the Tamabil Branch Post Office. Normally it would be received by the Branch Postmaster or the next senior most member of his staff and certainly not by merely an Extra Departmental Delivery Agent. In the absence of any evidence as to what, if any, were the duties of the delivery agent or as to whether this receipt was actually received by the delivery agent or as to whether he had access to such receipts, it is difficult to connect the overwriting on this receipt with the appellant merely on the basis of the solitary evidence of the Handwriting Expert. It is regrettable that the prosecution has not attempted to lead any evidence on these important aspects of the prosecution case. It may be that on the prosecution case as originally started, it was Mehrajuddin, the acting Branch Postmaster, who was supposed to be the real culprit and the others were supposed to have merely acted in collusion with him in perpetrating the offence of criminal breach of trust, but at the time of the prosecution the case was completely changed and the present appellant was made the principal accused and the others merely his abetters. Never theless, no attempt was made by the prosecution to show as to how he came to be taking such an important part in the affairs of the Post Office. But the concluding remarks of the learned Judge that the acting postmaster being a raw hand did not know the procedure of the post office and he must, therefore, have had to depend upon the appellant, are not supported by any evidence whatsoever and, we have already indicated that the prosecution evidence itself would show that Shamsul Haque the retired Extra Departmental Agent of the same rank as Mehrajuddin himself certainly had more experience than Mamtaj Ali and way available to assist Mehrajuddin. According to prosecution he did in fact assist in writing out the form Exh. 14.

23. The learned Deputy Legal Remembrancer, has of course, argued that there is no rule which prevents the Court from convicting upon the basis of the solitary evidence of the Hand writing Expert if that evidence is accepted. In the present case he urges that there is no reason why the opinion of the Hand writing Expert should not be accepted and the conviction based upon that evidence. We have given the matter our anxious consideration and we are of the view that having regard to the lacuna in the evidence in this case, particularly with regard to the manner in which the appellant came t9 be connected as a principal offender ; we feel that he must be given the benefit of doubt. If the opinion of the Handwriting Expert was by itself sufficient to found a conviction then the acquitted accused Shamsal Haque should also have been convicted upon the un challenged testimony of P. W. 13 and his own admission that the money order receipt Exh. 14 was written by himself, even though, in his examination under section 342 of the Code of Criminal Procedure, he claimed that he had done so bona fide at the request of the appellant Mamtaj Ali himself having bona fide written "Saraswati Dasi", on Exh. 10 has also not in our opinion, being excluded by the prosecution evidence. In these circumstances, this appeal is allowed, the conviction and sentence of the appellant set aside and he is acquitted of the charges levelled against him. A. H. Appeal allowed.