P L D 1952 Lahore 472 (PLP)

SHABIR AHMAD, J.‑Babu, Khan who, in his capacity as the shunter in charge at Qasur Railway Station, was entrusted with custody of stocks of cinder mixed with small pieces of steam coal for supplying to the railway employees at Qasur and Basilpur Railway Stations on payment after their applications had been sanctioned by the railway authorities, was sentenced by the Special Magistrate Punjab under section 408, Pakistan P. C. to six months' rigorous imprison ment and a fine of Rs. 200, in default of payment of which he was to suffer two months' further rigorous imprisonment on the finding that he had on the 26th May 1950, sold three bags of cinder for Rs. 22 to one Muhammad Din, who, not being railway employee, was not entitled to buy it. Babu Khan appealed against the above conviction and sentence and Mr. S. M. Hassan who was then Sessions Judge, Lahore, by his order dated the 17th September 1951, accepted the appeal and acquitted him. Against the order of acquittal the Provincial Government has presented an appeal under section 417 of the Code of Criminal Procedure. The learned Sessions judge found that the allegations of the prosecution against the accused were correct and that the act proved to have been done by the accused amounted to an offence under section 408 of the Pakistan P. C. However; he acquitted the accused as the allegations of the prosecution amounted to an offence of "criminal misconduct" defined by clause (c) of subsection (1) of section 5 of the Prevention of Corruption Act 1947 (II of 1947) but sanction required by section 6 of that Act for the offence being taken cogni zance of by a Court had not been obtained. The learned counsel for the appellant urged that as the offence clearly fell under section 408 of the Pakistan P. C. and it was for the offence that the accused was tried, the mere fact that the acts proved against the accused constituted also an offence under section 5 of Act II of 1947, did not make section 6 of that Act applicable and the order of acquittal was incorrect. The learned counsel for the respondent on the other hand, urged that as the offence fell under clause (c) of subsection (1) of section 5 of Act II of 1947, the sanction contemplated by section 6 of that Act could not be dispensed with by the fact that the prosecution wanted to have the case tried under section 408 of the Pakistan P. C. and the trial Court had framed the charge under that section and not under section 5 (1) (c) of Act II of 1947. The learned counsel for the respondent, could not, however, give any cogent reason or cite any authority in support of his argument. Cases where an act constitutes two or more offences are dealt with by section 26 of the General Clauses Act, which reads as follows : " Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence". This section allowed the prosecution of the accused under either section 408 of the Pakistan P. C., or section 5 of Act II of 1947 as the act committed by him fell under both these sections. The prosecution was for the former offence which could be taken cognizance of without any previous sanction, and the trial of the accused for that offence would be without jurisdiction only if there was anything in section 26 of the General Clauses Act to prevent his trial. I is inconceivable that the Legislature though allowing the trial of one of the several offences constituted by the act committed by an accused person intended that if one of the offences constituted by the act could not be proceeded with without sanction, the trial must be for the offence for which sanction was required. If this were the intention of the Legislature, it would have been expressed in clear terms, but as the section stands such intention is impossible to infer. I would, ther efore, hold that the trial of the accused under section 408 of the Pakistan P. C. was wrongly held by the learned Sessions judge to be without jurisdiction. The above conclusion is arrived at even if section 26 of the General Clauses Act did not exist and section 6 of Act II of 1947 were the only provisions of law applicable. The relevant part of section 6 reads as follows :‑ "No Court shall take cognizance of an offence punish able under section 161 or section 165 of the Pakistan P. C. or under subsection (2) of section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction

Clause (a) of subsection (1) of section 5 of Act II of 1947 covers some cases which would fall under section 161 of the Pakistan P. C. and clause (b) some which would fall under section 165 of that Code. That the intention of the Legislature in men tioning sections 161 and 165 of the Pakistan P. C. in section 6 of Act II of 1947 was to bar the prosecution without obtaining, the requisite sanction only if those two offences were alleged to have been committed, is clear from the fact that offences falling under sections 408 and 409 of the Pakistan P. C. were not mentioned therein though clause (c) of subsection (1) of section 5 would cover such offences. Had the Legislature intended that offences of criminal breach of trust committed by public servants were to be governed by section 6 of Act II of 1947, they would have mentioned these offences in section6 and it appears to me that to attribute that intention to the Legis lature on the language of section 6 would offend against all recognized canons of interpretation of statutes. The learned counsel for the respondent urged that the findings of the two Courts below on the merits of the case were unjustified. The prosecution produced a number of witnesses in support of their case that the respondent sold to Muhammad Din three bags of cinder for Rs. 22 and out of those witnesses Muhammad Din (P. W.10), Sh. Ikram‑ul‑Haq, Magistrate, 1st Class (P. W. 8), and Sardar All Shah, Inspector Special Police Establishment (P. W. 12) need only be referred to. Muhammad Din (P. W. 10), the bogus purchaser, after recounting how he was produced by a Sub- Inspector of Police before Sh. Ikram‑ul‑Haq, who searched his person and handed over Rs. 30 in Government currency notes to him, stated that he went to the respondent and obtained three bags of cinder and coal for Rs. 22, which were paid to the respondent. The witness added that two bags of cinder and coal were given from, the shed and the third on his giving the appointed signal, the raiding party arrived, and recovered Rs. 22 in marked currency notes from the shirt of the respondent. Sh. Ikram‑ul‑Haq (P. W. 8) corro borated P. W. 10 in all material particulars though he did not say in so many words that he had seen Muhammad Din (P. W. 10) handing over the money to the respondent. Sardar Ali Shah (P. W. 12) corroborated P. W. 10 and deposed that he had seen Muhammad Din handing over the currency notes to the respondent. When examined under section 342 of the Code of Criminal Procedure, the respondent while admitting the recovery of Rs. 22 on his search, denied his guilt, adding that the money recovered from him was given to him in payment of a debt by Muhammad Aslam who had appeared as P. W. 4 at the trial. Some defence witnesses were produced in support of this plea but, in my opinion, their depositions were rightly held by the trial Magistrate to be unreliable. The evidence given by P. W. 8, P. W. 10 and P. W. 12 is thoroughly reliable, and clearly establishes a case under section 408 of the Pakistan P. C. against the respondent. The order of acquittal passed by the learned Sessions judge is set aside and the respondent being convicted under section 408 of the Pakistan P. C. is ordered to undergo three months' rigorous imprisonment for the offence committed by him. CORNELIUS, J.‑I agree that this appeal should be allowed and that the respondent's conviction under section 408, Pakistan P. C. by the trial Court being restored, he should be awarded a sentence of three month's rigorous imprisonment. The act of criminal breach of trust with which the res pondent was charged was held to have been fully established both by the trial Court as well as by the learned Sessions judge, and having been taken through the evidence and heard argu ments on behalf of the respondent, I agree with my learned brother that the finding of the Courts below on this point is correct. The learned Sessions judge, however, in the concluding paragraph of his judgment held that the trial was without jurisdiction. The question was one off fundamental importance, and with respect to the learned Judge, deserved to be treated with much greater care and completeness than it has received. In effect, the learned judge has held that, because the accused in the case was a public servant, and the offence was alleged to have been committed by him in the course of his duties as such public servant, it fell exclusively within the definition of "criminal misconduct" as set out in section 5 of the Prevention of Corruption Act, 1947, aid could only be tried under the special procedural provisions of that Act. One of the procedural requirements of the Act 1947 is the sanction of competent authority under section 6 as a condition prece dent to the taking of cognizance. In the present case, the Crown prosecuted the accused under the general penal law, viz. the Pakistan P. C. of which section 408 in all its elements has been found, on the facts proved, to be fully satisfied, by the Courts below. Since the accused, being a subordinate official of the Railway, could be removed from his office by an authority subordinate to the Central Government (Railways being a centrally administered subject) no sanction was required under section 198 of the Criminal Procedure Code for his prosecution and consequently no such sanction was sought. There, on the facts, the action taken by the Crown was in full accordance with the legal requirements at the time when the prosecution was launched, as well as at the time when the conviction was recorded, it would require very good grounds indeed for a Court to reach the conclusion that the entire proceedings were void for lack of jurisdiction. Although the learned Sessions judge has not said so in so many words, it would seem that his view was that, in the relevant respect section 408, Pakistan P. C. had been repealed by implication, as a result of the enactment of section 5 of Prevention of Corruption Act. Reference to section 26 of the General Clauses Act 1897, which has been reproduced in the judgment of my learned brother, would have inclined the learned judge towards the exercise of caution in coming to so strong a conclusion as he has done. That section clearly contemplates the possibility, which has arisen in this case, namely, that an act is found to constitute an offence punishable under two different enactments. The law is perfectly clear that there may be a prosecution and conviction under either of the two enactments, and the only right or safeguard allowed in favour of the accused person is the general right of not being punished twice for the same offence. Nevertheless, repeal by implication even of penal laws is not unknown, although in view of section 26 of the General Clauses Act, it is clear that the implication must be of the clearest and most unmistakable character. The learned Sessions judge has not been at pains to examine in detail the provisions of the special and subsequent law, viz. the Prevention of Corruption Act, and to compare them with the pre‑existing provisions of the general law, contained in the Pakistan P. C., the Criminal P. C., and other relevant statutes. His conclusion that the present prosecution could not be launched except with the sanction of competent authority appears consequently to suffer from the defect of being founded on no substratum of argument. It is true that as a law of latter enactment,' as well as a special law, the Prevention of Corruption Act is susceptible of the interpretation that it supersedes the earlier general law, but, as has been pointed out by my learned brother, there are expressions found in section 6 of the Prevention of Corruption Act, which go unmistakably to show that, in the particular sense which has been accepted by the learned Sessions judge, there was no intention on the part of the Legislature to repeal the earlier general law. Au important maxim of statutory interpretation is expressio unius est exclusio alterius, and in the present case it seems to me clear that the maxim is applicable on the consideration that, since section 5 of the new Act created a number of offences which could also fall under different provisions of the existing law i. e. the Penal Code, if, in laying down a procedural requirement, applicable both to the new offences as well as some of the old offences, the Legislature exercised a selection and did not apply the new requirements to each of the old offences but, only to certain of them which were expressly mentioned, the necessary conclusion mint be that those of the old offences which were excluded must be deemed to have been excluded intentionally, so that the new requirements in respect of procedure would not he applicable to prosecu tion under the excluded sections of the existing law, which might also have been brought under one or other of the, categories of criminal misconduct specified in section 5 of the new Act. Section 6, which lays down the requirement of, sanction, expressly mentions only offences under sections 161 and 165 of the Penal Code from among what I have described as the "old offences", as offences which will require for their prosecution, the sanction of competent authority under the new Act. The conclusion seems plain that an offence by a public servant, like the present, falling under section 408, Pakistan P. C. which might also have been prosecuted under section 5 (1) (c) of the new Act, as an offence of criminal misconduct, does not require, for its prosecution, the sanction of any authority under section 6 of the new Act. A. H. Appeal accepted.