P L D 1961 Dacca 753 (PLP)

Criminal Appeal Nos. 409 of 1960 and 410 of 1960 are directed against the judgment and order of Mr. A. S. M. Rashed, Special Judge, Dacca dated 17th June 1960, convicting the appellants, namely, Abdul Monsur Ahmed and Azizur Rahman, the main accused and abettor respectively under section 5 (2) of Act II of 1947 and under section 5 (2) of Act II of 1947/109 of the Pakistan Penal Code and sentencing them each to rigorous imprisonment for one year and to pay fine of Rs. 15,000 in default to rigorous imprisonment for further period of one year. Prosecution case is that accused Abut Monsur Ahmed was Minister‑in‑charge of Commerce, Labour and Industries, Govern?ment of Pakistan from 15th September, 1.956 till 18th October, 1957 on which date the Cabinet headed by Mr. H. S. Suhrawardy went out of office. During the tenure of office of Mr. Abut Monsur Ahmed, there was a public notification 123 (55) Import dated 16th November, 1955 inviting applications for licence to import films from India. This notification had been in existence from before the Minister came into office. In pursuance of the notification Kalpana Films of Narayanganj, Dacca submitted an application dated 16th December, 1955 with the Chief Con?troller of Imports and Exports, Government of Pakistan, and this application along with other applications came up to the Chief Controller of Imports and Exports and the Secretary of the Commerce Department for consideration. On scrutiny the Kalpana Films was found eligible for getting the import licence for Importing Indian films. The relevant file Py (30)/55 of the Office of the Chief Con?troller of Imports and Exports with the notes of the Departmental officers was placed before the Minister‑in‑charge who by his note dated 25th November, 1956, observed that Kalpana Films had a `plausible case', but according to his own information the said Films was reported .to be owned by Foreign Nationals who were trying to transfer their assets to India and that he would like to have some investigation into the matter. The case of Kalpana Films was thus passed over with this note. The Minister then came to Dacca on official tour and stayed in the Central Circuit House, Dacca, from 26th November, 1956 up to 2nd December, 1956. During this period accused Azizur Rahman, brother‑in‑law of accused Minister contacted P. W. 8 Gopiraman Poddar, the Manager of the Kalpana Films at Narayanganj in the office of the said Kalpana Films at the instance of the Minister and told the Manager that he had been sent by the Minister with a proposal that the Minister would help the Firm in securing the licence provided the Firm agreed to share the profits of the Films to the extent of eight annas in favour of the nominees of the Minister and that of Azizur Rahman without investment of any capital and that there should be a deed of partnership by the proprietors of the Firm and the nominees incorporating those terms. It was further suggested that this deed should be ante‑dated to keep it free from suspicion. The Manager of the Firm ultimately agreed to the proposal on behalf of the proprietors and accordingly a partnership deed was created on the 3rd December, 1956 on the draft supplied by accused Azizur Rahman and it was created on an unused stamp already purchased on 16th January, 1956, but giving the same date as the date of transaction by ante‑dating the document. This deed was created in duplicate. Two of the proprietors of the Firm. Arabinda Pal and his mother Tarubala Pal executed the partnership deed and the duplicate copy. Shyam Sundar, younger brother of Arabinda also was one of the partners and he was then in Calcutta. The deed and the duplicate were sent to him by Air Mail. Shyam Sunder executed the same and sent it back to Gopiraman. On receipt thereof Gopiraman made over them to accused Azizur Rahman for execution of the same by the nominees of his and that of Mr. Abul Monsur. Azizur Rahman got the partnership deed and the duplicate copy executed by Mozammel Haq, a nephew of the accused Minister, Abdus Sabur, a nephew of accused Azizur Rahman and one M. S. Rahman, another nominee of the Minister and returned the same to Gopiraman P. W. 8 who in his turn kept the original deed in his custody and returned the duplicate copy to accused Azizur Rahman. In terms of the agreement of partnership deed 10 per cent. of the gross collection should be debitable to expenditure and the net profit and loss of the business should be shared as in the following way, namely, Mozammel Haq and Abdus Sabur would get three annas six pies share each, M. S. Rahman would get one anna share and the remaining eight annas share would go to the original proprietors in equal share. In the meantime the Minister left Dacca for Karachi and on reaching Karachi he passed an order dated 12th December, 1956 on the file to the effect that he made enquiries about the Kalpana Films. Accordingly he ordered for grant of an extra Import Licence for one Bengali Films to the Kalpana Films. Then he left Karachi for Dacca on 13th December, 1956 on official tour leaving oral instruction to his private secretary P. W. 5 Rashid Ahmed to hold up the file till his further instruction in the matter, allegedly with a view to ascertain before the grant of licence if the deal in question had been completed or not. During his stay in the Central Circuit House, Dacca the Minister contacted his private secretary over trunk telephone on 18th December, 1956 and instructed him to pass on the file to the Secretary of the Commerce Department with a view to pass the necessary orders in pursuance of the order already passed by him. Accordingly Mr. Eusuf, the then Joint Secretary of they Commerce Department passed an order for grant of Import Licence to the Kalpana Films. On the basis of this order Import Licence No. S‑003836 was granted to Kalpana Films on 15th January, 1957 by the Chief Controller of Imports and Exports. The licence was granted for importing one Bengali Film, namely, `Daner Maryada, or `Shesh Parichay' valued Rs. 20,

000. The Film known as `Shesh Parichay" was imported and taken delivery of on 13th February, 1957. In terms of the partnership deed, accused Azizur Rahman received a sum of Rs. 15,000 out of the profit of the film from the said Manager of the Firm on different dates, such as, Rs. 5,000 on 19th February 1957, Rs. 3,000 on 11th June 1957, Rs. 3,000 on 27th November 1957, Rs. SOJ on 2nd December 1957, and Rs. 3,500 on 31st December 1957. The subject matter of the present accusation is the first three items. The first item of payment had been made on the demand of accused Azizur Rahman well ahead of the Film in question being exhibited. Thus according to prosecution the accused Mr. Abul Monsur Ahmed as Minister of Commerce, Labour and Industries obtained pecuniary advantage for his brother‑in‑law Azizur Rahman by abusing his official position as such public servant, and accused Azizur Rahman abetted accused Mr. Abul Monsur in the aforesaid act. It was after Mr. Abul Monsur Ahmed was arrested on 12th October, under section 5/A of the Anti‑Corruption Act that a preliminary enquiry was held by P. W. 16 Muhammad Kadam Rasul, under the direction of the Director‑General, Bureau of Anti‑Corruption, Government of East Pakistan. After preliminary enquiry Md. Kadam Rasul lodged ejahar in the Ramna police station on 7th April, 1959. Mr. Kadam Rasul investigated the case after obtaining the necessary permission. During investigation Mr. Kadam Rasul visited Mymensingh and took specimen writings of accused Azizur Rahman and that of Mozammel Huq in presence of P. W. 2 M. J: L. Das, Magistrate First class and on his requisition certain papers said to contain the standard writing of accused Azizur Rahman were seized by P. W.

11. During investigation several papers, of Kalpana Films were seized under several seizure lists and some papers were also seized from the office of the C. C. I. & E. Karachi. The investi?gating officer sent the specimen writings of accused Azizur Rahman the vouchers and the partnership deed to the Special Superintendent of Police, C. I. D. Dacca for examination by handwriting expert and for report. The report of the expert was duly received by the investigating officer. After obtaining sanction dated 29th September 1959, marked Exhibit 33, the investigating officer submitted charge‑sheet against the accused on 17th October 1959. On those allegations as stated the accused Minister was charged under section 5 (2) of Act II of 1947 and the other accused for abetting the said Minister in the said offence under section 109 of the Pakistan Penal Code. Both the accused pleaded not guilty. The plea of Mr. Abul Monsur Ahmed appears to be as follows. He denies to have got any relationship with Azizur Rahman and any concern with the alleged transaction regarding the partnership business with the proprietors of the Kalpana Films. So far as the grant of licence to Kalpana Films he has pleaded that he accepted the recommendation of Mr. Eusuf, the then Joint Secretary and he did not refuse the case of Kalpana Films but merely postponed the consideration in view of the, allegations made by various film organisations; that later on after holding enquiry he was satisfied about the claims of Kalpana and ultimately passed a final order for grant of lience to them without any ulterior motive. It was also alleged in his defence that after assumption of office he took drastic measures in the field of trade, commerce, industries and services in the interest of East Pakistan as also in the greater interest of Pakistan and to that end he ordered that the country's industrialisation should be switched to East Pakistan. Various other drastic measures were claimed to have been taken by him which need not be enumerated and his measures, it was pleaded, vitally affected the interests at Karachi and those created powerful enemies. The present case according to the accused was the result of a deep‑laid conspiracy hatched up at Karachi by interested persons. The plea of accused Azizur Rahman is a total denial of the entire prosecution case connecting him with the charge of abetment in relation to the transaction in question in the grant of import licence to Kalpana Films. He has denied the alleged receipt of Rs. 15,000 on account of the profit derived out of the Films in question. He also denied to have any relationship with accused Abul Monsur. Sixteen P. Ws. were examined for the prosecution and none for the defence. On those facts the appellant were convicted and sentenced as above. Mr. Suhrawardy, the learned counsel appearing on behalf of appellant Abul Monsur Ahmed started his arguments by reference to the recent decision of our Supreme Court in Hamed Ghulam Sadiq v. Pakistan and others (P L D 1960 S C (Pak.) 351) and contended that the sanction accorded in the present case was an invalid one inasmuch as the appellant had ceased to be a public servant at the date of sanction and that as such there was no `appropriate Government' that could grant or withhold the sanction. The Court's attitude being that the present case was not covered and hit by the principles in Sadiq's case Mr. Suhrawardy touched upon the other grounds in the case, namely, that the appellant was never a public servant, that there was no corroboration of accomplice evidence, that previous statements of witnesses were not supplied in time. Mr. Suhrawardy not being able to complete his arguments, liberty was given to Mr. Ataur Rahman Khan to develop further the points touched upon by the learned counsel. Thereafter Mr. Hamidul Huq the learned Advocate appearing for Azizur Rahman, the abettor in the other appeal, argued the case. His approach was that the whole trial had been vitiated by reason of there being no valid sanction and the main accused not being a public servant and that it was a case of `no evidence'. He also argued that in any event charge of abetment as against his client had not been made out. There was prolonged argument for eleven days though many of them were half days or even less. Apart from the very long judgment of sixty‑two thickly typed pages nearly the whole evidence was gone over. The decision in Sadiq's case as it appears from the head‑notes is as under :‑ "Held, that the prosecution of a pensioner before a Special Judge under a sanction granted under section 5 (5), Pakistan Criminal Law Amendment Act, 1948, is not a competent proceeding. The definition of `appropriate Government' in the Pakistan Criminal Law Amendment Act, 1948 is worded so as to give the clear impression that the determination of the `appropriate Government' for the purpose of grant of sanction to a prosecution, can only be made in relation to a person who is actually serving. Where, when the sanction was given, the public servant concerned was not serving any Government but was a pen?sioner Held, that there was no `appropriate Government' which could grant a sanction for his prosecution and that the proceeding before the Special Judge under such a sanction was not competent. In the case of a retired officer who is in receipt of a. pension, the incident of his being amenable to departmental discipline for actions performed in the course of his service is altogether missing. Consequently, the requisite of sanction for prosecution becomes inapt. Since redress or requital by administrative process is not available, and this furnishes a basis in reason to support the construction that for an officer who has retired, there is, within the contemplation of the Criminal Law Amendment Act, no `appropriate Government' which can validly sanction his prosecution for an offence allegedly committed during the period of his service. The restriction would be out of place, for there could be no valid reason for imposing the requirement of sanction." In answer to Mr. Suhrawardy's first point, namely, that the sanction was invalid by reason of the appellant having ceased to be public servant at the date of the according of sanction, namely, the 29th September, 1959 Mr. Azizuddin Ahmed appearing for the State has argued that the principles of the decision cited had no application in the present case for two reasons, namely, (1) that Sadiq's case was decided under the Criminal Law Amendment Act of 1948 being Act XIX of 1948 hereinafter styled the Old Act and not under the Criminal Law Amendment Act of 1958 being Act XL of 1953 hereinafter styled the New Act, and (2) that the Explanation in section 6 (5) in the New Act has made all the difference. It appears that Sadiq's case was decided in terms of the Old Act and the observations of the Supreme Court are confined to the principles as under that Act only. Further in that case relief under the writ of certiorari was granted by quashing the pending proceeding by reason of there being no sanction for prosecution at all, the existing sanction for prosecution as a public servant being found invalid. The question is only as to whether the sanction as given in the present case for prosecution of a public servant who had ceased to be a public servant at the time of sanction and whose trial was already over, was a valid sanction and incidentally how far the prosecution was valid if the sanction as accorded turned to be an invalid one. The Explanation to section 6 (5) of the New Act seems to be a clear improvement upon section 5 (5) of the Old Act. Section 6 (5) of the New Act is as follows :‑ "Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, previous sanction of the appropriate Government shall be required for the prosecution of a public servant for an offence under this Act and such sanction shall be sufficient for the prosecution of a public servant for an offence triable under this Act. Provided that in cases where the complaint or report referred to in subsection (1) of section 4 is not accompained by such sanction, the Special Judge shall, immediately on receipt of the complaint or report, address by letter, the appropriate Government in the matter, and if the required sanction is neither received nor refused within sixty days of the receipt of the letter by the appropriate Government, such sanction shall be deemed to have been duly accorded : Provided further that no such sanction shall be required in respect of a case transferred under the proviso to subsection (2) of section 4 or by virtue of subsection (3) or subsection (4) of section 5, if such sanction in respect thereof has been duly accorded or deemed to have been so accorded before the case is so transferred. Explanation :‑For the purpose of this subsection, `appropriate Government' shall mean the Government which at the time of the commission of the offence was the appropriate Government." The Explanation makes it clear that the appropriate Govern?ment is the Government under which the accused was serving at the time of the commission of the offence. In that view it is immaterial whether the accused was actually serving at the time the sanction was accorded. The sanction in the present case having been accorded by the Central Government which was the appropriate Government for an offence committed by Union Minister is a valid sanction. There is another way of looking at it. Under the old Act sanction was necessary for "any prosecution" under that Act, whereas under the new Act sanction is not necessary for "any prosecution" except that in the case of a public servant actually serving, the appropriate Government has to be addressed to for necessary sanction or otherwise. In the case of a person who has ceased to be a public servant as here, there is no appropriate Government having control over him at the time of sanction and as such the privilege of sanction is not open and available to him. In that view no sanction is called for such a person's prosecution and the sanction as given was a superfluity. There is nothing under the New Act to half the prosecution of such a person even without sanction. Section 4 (1) of the New Act gives exclusive jurisdiction to the Special Judge for trial of an offence under Act II of 1947. of which the accused has been arraigned and the Special Judge can take cognizance of such offence upon complaint or upon report in writing. Section 6 of Act II of 1947, the Prevention of Corruption Act, 1947 requiring sanction in the case of a public servant having been repealed, there is no need for sanction under that Act itself except the provision for sanction as in section 6 (5) of the New Act. The position, therefore, is that in any view of the case the appellant's prosecution was competently held and it cannot be impugned on the score of invalidity of the sanction as accorded. The decision in S. A. Venkataraman v. The State (P L D 1958 S C (Ind.) 308) has been cited by both sides. This decision which turned upon section 6 of Act II of 1947, the Prevention of Corruption Act, 1947, with which our Supreme Court has agreed in principle established the proposition that no sanction of Government is necessary under section 6 of that Act for the prosecution of a person who was not in Government service at the time the sanction was given. Section 6 of that Act is as follows :‑ "No Court shall take cognizance of an offence punishable under section 161 or section 165 of the Pakistan Penal Code or under subsection (2) of section 5 of this Act, alleged to have been committed by a public servant except with the previous sanction, (a) in the case of a person who is employed in connection with the affairs of the Federation and is not removable from his office save by or with the sanction of the Central Government or some higher authority of the Central Government; (b) in the case of a person who is employed in connection with the affairs of a Province and is not removable from his office save by or with the sanction of the Provincial Government or some higher authority of the Provincial Government ; (c) in the case of any other person, of the authority competent to remove him from his office." The terms of the above section are more or less the same as that of our present section 6 (5) of the New Act taken together with section 2 (a) thereof. The only difference is that of "employed" and "serving" and "sanction before cognizance" and "sanction before prosecution". To me it seems that "serving" has a more in presenti sense then "employed" and in that view the appellant is reduced to the same position as that of Yenkataraman. Sadiq's prosecution failed because the position was reduced to that of there being no sanction at all for the prosecution which was essential under section 5 (5) of the Old Act. The sanction accorded being invalid the position was that of there being no sanction at all for the prosecution which was mandatory under that Act for any prosecution. In the present case under the New Act sanction is not mandatory for "any prosecution." I, therefore, hold that the objection on the ground of sanction has no substance. Mr. Suhrawardy having failed in his initial attack on the point of sanction has challenged the very inclusion of the appellant in the category of a public servant. He has argued that the appellant as Minister was never a public servant and as such could not be tried under the Criminal Law Amendment Act of an offence under Act II of 1947, for criminal misconduct as a public servant. He has contended that the description of a public servant as given in section 21 of the Penal Code which came into force as long ago as 1860 could not envisage and include a Union Minister, that the Rules of Interpretation and Construction does not warrant the inclusion of a Minister even in the 9th Clause thereof, that the residuary last words, namely, "and every office in receipt of remuneration or fee" do not cover the position of a Minister because even assuming that he is an officer, which according to him he is really not, the Clause cannot include a higher category, the descending order being the rule. Mr. Suhrawardy has further argued that in India section 21 of the Code was amended so as to include Minister of State expressly by reason of the section as it is being insufficient to cover a Minister. Decisions on the subject cited by the learned Advocate for the State though not directly and squarely on the point throw some light. Not one decision from the Indo‑Pakistan sub?continent could be cited at the Bar directly bearing on the point. Nor could I lay my hands on any case in which a Provincial or Central Minister was successfully or even unsuccessfully arraigned under the provisions of the Prevention of Corruption Act, 1947 as a public servant except the case of a Minister of Rewa State who was regarded as a Minister of Vindhya Pradesh at the time of the offence, to be treated hereafter. It has been argued that the Minister has no executive duty, that he cannot pass any order ; that an officer is debarred from seeking election whereas a Minister has to come through election, that a Minister is to aid and advise only and that he is responsible to the National Assembly, that he is appointed on the advice of the Chief Minister by whom he can be dismissed. Referring to the decision in Emperor v. Sibnath Banerji and others (A I R 1945 P C 156) in anticipation Mr. Suhrawardy has argued that even if the Minister is "an officer subordinate to the Governor", that does not make him a public servant, that in that case the Governor had delegated certain functions to the Home Minister, that in our Constitution the Ministers had no delegated powers and their powers were derived from the Constitution. By further reference to the decision in Ramditta Mal L. Duni Chand v. Emperor (A I R 1939 Pesh.38), Mr. Suhrawardy has stated that that decision turned on section 539‑A of the Code of Criminal Procedure relating to affidavit in proof of conduct of public servant, that complaint against Khan Sahib, Chief Minister not having been accompanied by affidavit, it was held that as the Chief Minister was a public servant, such affidavit was necessary. Mr. Suhrawardy means to say that in this case whether Chief Minister was a public servant or not in the sense of section 21 of the Penal Code was not really in issue and that learned Judge deciding the case, namely Almond, J. C. only made casual observation on the point. It has also been argued that a public servant is one who is a permanent official running the administration and that the Minister is only a weather bird. In answer to the contentions of the learned counsel that a Minister is not a public servant Mr. Azizuddin Ahmed for the State has relied on the following decisions, namely, Emperor v. Sibnath Banerji ; Ramditta Mal L. Duni Chand v. Emperor ; State of Vindhya Pradesh v. Shiva Bahadur Singh (AIR 1951 V P 17) and Rao Shiv Bahadur Singh v. The State of Vindhaya Pradesh (AIR1953SC394). The relevant lines of Lord Thankerton in Sibnath Banerji's case are as under at page 163 :‑ "So far as it is relevant in the present case, their Lordships are unable to accept a suggestion by counsel for the respondents that the Home Minister is not an officer subordinate to the Governor within the meaning of section 49 (l) and so far as the decision in Emperor v. Hemendra Prosad Ghose I L R (1939) 2 Cal. 411 decides that a Minister is not such an officer their Lordships are unable to agree with it. While a Minister may have duties to the Legislature, the provisions of section 51 as to the appointment, payment, and dismissal of Ministers, and section 59 (3) and (4) of the Act of 1935, and the Business Rules made by virtue of section 59, place beyond doubt that the Home Minister is an officer subordinate to the Governor." This decision is not directly in point. It is on the point as to whether the Home Minister is an officer subordinate to the Governor in terms of section 49 (1) and not on that of his being a public servant in terms of section 21 of the Pakistan Penal Code. In the decision as reported in A I R 1939 Pesh. 38, section 539‑A of the Criminal Procedure Code came in for examination. In that case the petition under section 539 of the Code of Criminal Procedure stated that the Honourable the Premier on the face of it has made himself personally interested in the case and the petitioner has learnt that this case is a result of a deeply laid conspiracy to weed out the Hindu employees of Government. Since the allegation was against a Minister supposed to be a public servant, it was held that the allegation must be supported by proper affidavit which was lacking. The relevant lines at page 39 are as follows : "Learned counsel for the petitioner has contended that section 539‑A has no application to the facts of this case as the Honourable the Chief Minister is not a public servant within the meaning of this section. The expression `public servant' is defined in section 21, I. P. C. and under section 4 (2), Criminal P. C. has the same meaning in that Code. One of the definitions of `public servant' is an officer in the service or pay of Government. It is clear that the Honourable the Chief Minister is covered by the definition of `public servant'. In the decision in A I R 1951 Vindhya Pradesh 17, it was held inter alia that the Minister in the pay of the Crown or the State to advise and to aid the Chef Executive (in this case the Raj Pramukh), is undoubtedly an officer performing the public duty as defined by section

21. The Secretary, who is to carry out the orders in this behalf of the Raj Pramukh or the Minister in this connection is also a public servant. The expression "public servant" in relation to a Minister came in for serious examination in this case. The Minister was included in the category of public servant' as being an officer in the service or pay of the Government. This case seems to be the nearest to Mr. Ahmed's point. The relevant lines are as under at page 35 of the decision :‑ "I have already discussed the position in regard to section 4 as explicitly adapted in this Ordinance. Sections 120 (B), 465 and 466, I. P. C. have not been adapted here. In sections 161, 163, I. P. C. the alteration is that the words `Central or Provincial' occurring before Government or Legislature which literally makes no difference. Another section we are concerned with is section 21 defining "a public servant." If the respon?dent I who was the Minister‑in‑charge of Industries in the Vindhya Pradesh at the time of the offence, and respondent 2, who was' the Secretary in that Department are not public servants there is an end of the whole matter. But I do not see, how anybody could dream of arguing in that line. The adaptation to section 21 `first' `removes covenanted servants' and substitutes `Ministers of the State'. It is nobody's case that respondent 1 is being prosecuted as a public servant by this definition. Why this adaptation was made, it is unnecessary for us to investigate, but it was to meet the situation that was common in these native States before 1948. . Then the highest civil servants of the State were called Ministers, though technically speaking they were not advising and aiding the Maharaja or the other executive head, but they were actually executive officers. We are concerned with the definitions in section 21 (ninth), which lays down `any officer in the service or pay of the Crown (or State) for the purposes of ‑any public duty'. Again in `ninth' itself, `every officer whose duty it is as such officer to spend any property on behalf of the Crown or State and to investigate any matter affecting the pecuniary interest of the Crown or State:' The Minister in the pay of the Crown or the State to advise and to aid the Cheif Executive in this case the Raj Pramukh, is undoubtely an officer performing the public duty as defined here. The Secretary, who is to carry out the orders in this behalf of the Raj Pramukh or the Minister in this connection is also a public servant. Again in this case both of them were charged with the duty of creating either a new lease, or ordering the resumption of mining operations under an old lease and to investigate the pecuniary interest of the State in its dealing with the Diamond Mining Syndicate. While the frame‑work of the section 21 would indicate that the various items are illustrative and not exhaustive, the wording of the different heads especially (ninth) and (tenth) is so elaborate and comprehensive that it virtually amounts to an exhaustive definition. Be that as it may, the two respondents come under the class of the officers in (ninth) and in one sense (tenth) also." This decision clearly brings a Minister within the category of a public servant and the decision seems to be independent of the modification as effected in India of section 21 of the Penal Code by removal of the First Clause `covenanted servant' and its substitution by `Ministers of the State'. The decision is based solely on interpretation of clause 9 of section 21 of the Penal Code. On appeal being taken to the Supreme Court against the above decision, in A I R 1953 S C 394 it was held inter alia, as follows :? "The amendment of section 21, I. P. C., by Ordinance XLVIII of 1949 by the inclusion of a Minister of State within the definition of a Public servant has not brought about any substantial change in law in the Rewa State after its integration. Even prior to the passing of Ordinance XLVIII of 1949 a Minister of Vindhya Pradesh was an officer of the State and as such a public servant within the meaning of section 21, I. P. C., as adapted." The relevant observations are at page 401 of the Reports as under "It is urged however that in two important respects relevant for our present purpose there is a difference. It is pointed out that there is an amendment as regards the definition of `public servant' by Ordinance No. XLVIII of 1949. It is also urged that sections 3 and 4, Indian Penal Code and section 188, Criminal Procedure Code, which are extra‑territorial in operation could not have been brought into force into Rewa or Vindhya Pradesh by adaptation or legislation for lack of legislative competence in this behalf at the relevant times. The points thus raised assume importance since the charges against the first appellant, who is a Minister, is, in the capacity as a public servant and since also one of the charges against him is in respect of acts done in New Delhi‑completely outside Vindhya Pradesh. It is true that Ordinance No. XLVIII of 1949 amended the Indian Penal Code by substituting "for the previous first clause of section 21 thereof relating to the definition of a `public servant' the phrase "Every Minister of State". But it does not follow that a `Minister of State' was not a public servant as defined in section 21, Indian Penal Code even before this amendment. Clause 9 of section 21, I. P. C, shows that every officer in the service or pay of the Crown for the performance of any public duty is a `public servant'. The decision of the Privy Council in Emperor v. Sibnath Banerjee A I R 1945 P C 156 at pp. 162 and 163 (1) is decisive to show that a Minister under the Government of India Act is an `officer' subordinate to the Governor. On the same reasoning there can be no doubt that the Minister of Vindhya Pradesh would be an `officer' of the Sate of Vindhya Pradesh. Therefore prior to the passing of Ordinance No. XLVIII of 1949 and on the view that the Indian Penal Code with necessary adaptations `mutatis mutandis' was in force at least in the Rewa portion of Vindhya Pradesh (if not in the entirety of Vindhya Pradesh) the first appellant was a public servant as defined in section 21, I. P. C. as adapted. The amendment of the said section brought about, therefore, no substantial change in the position of the first appellant. It has been faintly suggested that even so under the pre‑existing law the definition of public servant could have reference only to an officer of the Rewa State, and that the change brought about by Ordinance No. XLVIII of 1949 made only the Minister of Vindhya Pradesh State a public servant. This argument is fallacious. It is implicit in the continuance of Rewa Law after integration that from the moment of such continuance it became the Vindhya Pradesh law for the Rewa portion of Vindhya Pradesh territory with the requisite implied adaptation consonant to the new set up. There is therefore no substance in the argument that the amendment of section 21, I. P. C. by Ordinance No. XLVIII of 1949 brought about any change in the situation of the first appellant as a public servant." In this case the charge against the Minister was that of conspiracy to obtain illegal gratification for the purposes of revoking a previous adverse order. It will be noted that one of the functions of the Minister was to aid and advise and in the light of this decision this function is not incompatible with that of a public servant. In the absence of any decision to the contrary I am inclined to accept this Indian Supreme Court decision. The facts of this case are also not very different. It was a case of revocation of a lease already granted to a party and the party affected by the revocation was making attempts to have the revocation order set aside. The two accused in the case one of whom was a Minister, who were concerned in their official capacity in setting aside the revocation order, entered into a conspiracy to obtain illegal gratification for setting aside the previous order. There were various other charges against them including sections 120‑B, 161, etc. and trial was held by Special Judge under the Vindhya Pradesh Criminal Law Amendment Act. The terms of the 9th Clause of section 21 of the Pakistan Penal Code are as under : "Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Crown or to make any survey, assessment or contract on behalf of the Crown, or to execute any revenue‑process or to investigate, or to report on any matter affecting the pecuniary interests of the Crown, or to make, authenticate or keep any document relating to the pecuniary interest of the Crown, or to prevent the infraction of any law for the protection of the pecuniary interests of the Crown, and every officer in the service or pay of the Crown or remunerated by fees or commission for the performance of any public duty." The last lines "and every officer in the service or pay of the Crown or remunerated by fees or commission for the performance of any, public duty" are very comprehensive. The Clause begins with "Every officer" and then again adds "and every officer" before closing. There is no disjunctive `or'. Under those circumstances the inclusion of Minister in the category does not seem to be hit by the ejusdem generis rule. The popular notion that a Minister is a public servant of the first order, does not seem to be absolutely erroneous. At any rate no person could be a more public person than a Minister in the sense that his duties are with the public and he is the people's man in the Government of the country. Mr. Ataur Rahman Khan argued that the words of a statute will generally be understood in the sense which they bore at the time when it was passed. He has cited as an instance that a private Act which provided that "no action in any of His Majesty's Courts of law" should be brought against certain ship-owners without a month's notice, has been held not to apply in the Admiralty Division of the High Court of Justice, for when the Act was passed, the Admiralty Court was not called and was not of His Majesty's Courts. In other words Mr. Rahman is of the opinion that the 9th Clause of section 21 of the Penal Code cannot be extended to a Minister who was not even dreamt of in 1860. The rule referred to by Mr. Rahman is not a rigid rule. The language of a statute is not unoften extended to new things which were not known and could not have been contemplated by the Legislature when it was passed. Of course subject to this that the thing coming afterwards is a species of the genus that the Legislature dealt with. "Telephone" has been held to be "telegraph" within the meaning of Telegraph Act of 1863 and 1869 though not invented or contemplated in 1869. It cannot be denied that the Minister is a species of the genus although the Minister may combine in himself other features that do not wholly apply in the case of ordinary officers and public servants. The categories of public servants are never closed particularly in the background of the total change in the conception of `public servant' in modern times. In a society imbued with a sense of wider and wider public service and duties, there can be no justification for confining the connotation of public servant literally to the concept of public servants as prevailing in 1850. Nor has it been so confined. The Minister in aiding and advising the Governor represents the public and in doing so, he performs a duty owed to the public in the most literal sense of the term. Criminal misconduct on the part of a Minister is the more reprehensible and there can be no valid reason for keeping his position sacrosanct and above the law on purely technical grounds. Law being not very far from the ethical sense of the community it is not to be given a meaning that is revolting to society. Under those circumstances I hold that a Minister is a public servant. Next we come to the point of accomplice evidence and its corroboration. It has been argued that P. W. 8 Gopiraman Poddar and P. W. 10 Dhirendra Chandra Saha the two witnesses of the proposal made by Azizur Rahman alleged to be the abettor and of the partnership deed created as a result thereof were in the position of accomplices and as such their evidence called for strict corroboration. Further that Sushil, one of the employees who was also present at the time of the proposal has not been examined. It is difficult to understand as to why the point of accomplice evidence and its corroboration was not seriously canvassed in the trial Court. It was not taken as a point for determination by the trial Judge, nor is there any reference to any suggestion of their evidence being of accomplice nature in the very long judgment of the learned Special Judge except the suggestion that P. W. 10 being an employee under Gopiraman P. W. 8 was interested in supporting his evidence and that Shyamsundar, Gopiraman and Dhirendra have been made to depose falsely at the pressure of the police. Under those circumstances I take it that the ground was not pressed before the trial Court in the fashion it has been done in this Court. Since it is a point of law I have heard the defence quite fully on this point also. It has been argued that P. W. 8 and P. W. 10 stood in the position of bribe giver ; that by agreeing to and executing the partnership deed in terms of the proposal of Azizur Rahman they were helping forward the commission of the crime itself, namely, the receipt of illegal gratification by the appellant Abul Monsur by way of benefit to his nephew and to Azizur Rahman. Mr. Azizuddin Ahmed for the State argued that accomplice means `associate in crime' and these men P. Ws. 8 and 10 could not be included in the category of associates ; that Gopiraman entered into the transaction on pure and simple business basis. 1n other words, if Azizur Rahman could procure the business, no matter how, they were prepared to share the proceeds. So far as Dhirendra goes, he is a mere employee having no say in the finalisation of the deal. Shyam Sundar was away from the scene at Calcutta and he only got the intimation at Calcutta on a certain date which he remembered by reason of its proximity to his examination. Appellant Mr. Abul Monsur was not himself present in the negotiations, nor he was seen in the office of the Firm at any stage Gopiraman was dealing with Azizur Rahman, the abettor and beneficiary of the deal and not with Abul Monsur. As a business?man he was taking chance with a person, namely, Azizur Rahman who stated that he could procure and he did not stand to lose anything if the deal did not mature, the partnership being condi?tional upon the securing of the licence. He dealt only with Azizur Rahman. How Azizur Rahman was going to achieve it was not his concern. The mentioning of the name of the Minister by Azizur Rahman at the stage of negotiation only bought some optimism to his mind as a result of which the deal was rendered easier to accept. There is no charge of conspiracy by which all these men could be linked together in the crime itself. Under those circum?stances it could not be said that Gopiraman was helping the commission of the crime itself, by the Minister. At best Gopiraman helped a person, namely, Azizur Rahman, the abettor who said that he would procure business for them and he was riot concerned with the methods. He was giving benefit to Azizur Rahman and the mere knowledge that Azizur Rahman's method was a criminal one could not make the appellant an accomplice of the crime itself. Gopiraman is several degrees too remote and cannot be characterised as `participes in criminis'. The evidence of Dhirendra corroborates that of Gopiraman on the point of proposal of Azizur Rahman in the name of the Minister. The fact of the partnership having, been created in pursuance of the proposal is supported by the evidence of Dhirendra, Gopiraman and Shyam Sundar. Comments have been made on the non‑examination of Nripendra, the typist of the partnership deed and Sushil. So far as Sushil goes, he is also an employee of the Firm like Dhirendra. It is true that he was present on both the occasions, the first day and the second day. But he being only another employee like Dhirendra, his non‑examination is not so vital. So far as Nripendra goes, the evidence is that he left for Calcutta about 3/4 months ago for treatment. Next we turn to the circumstances of the case. The principal accused Mr. Abul Monsur Ahmed having not been seen directly in the field of operation, he is sought to be linked primarily by circumstantial evidence. We will now seek to scrutinise the circumstances presented to see as to whether those are sufficiently strong and of such a nature as to leave no reasonable doubt as to the guilt of the appellant Abul Monsur. So far as Azizur Rahman goes, there is the direct evidence of his presence at the Firm at Narayanganj. Only his relationship and privity with Abul Monsur has to be found. In the case of Mr. Abul Monsur, however, it is a tougher job inasmuch as he is to be connected. The course of conduct imputed to the Minister at the relevant time, however indicative of suspicion cannot fix the guilt upon him. To fix the guilt on him, such course of conduct should be explainable on no other hypothesis than that of his guilt and nothing can be found against him so long as, the particular course of conduct imputed to him remains unilateral and so long as it remains on the level of coincidence merely. The circumstances are :‑Refusal by the appellant Abul Monsur to grant import licence to Kalpana Films in spite of the recommendations of the Joint Secretary, vide note marked Exhibit A ; the refusal order being Exhibit 3 ; Kalpana being sought to be kept out on personal information of their foreign interests, change of views of the appellant soon after his final visit to Dacca during the period 26th November, 1956 to 2nd December 1956, this being the period during which it is alleged the negotiation went on in the Firm at Narayanganj through Azizur Rahman ; Order passed in favour of the Firm on 12th December, 1956 Exhibit 4 and according to the prosecution on being satisfied about the chances of success of the negotiation, , the sources through which the Minister came to be satisfied as to the falsity of the allegations of the foreign interests of Kalpana as entertained by him previously not disclosed rendering the enquiry into one of personal nature done by himself, the order of 12th December, 1956 having been held up from being carried out at any rate till after the 18th his presence in Dacca Circuit House from 13th to 18th December as per Exhibit 15 which according to prosecution was taken up with making assurances doubly sure, the evidence of Gopiraman and Dhirendra to the effect that the deal leading to the drawing up of the ante‑dated partnership deed was completed by the middle of December, 1956, that it was after the trunk call from the Dacca Circuit House on the 18th of December, that the file was passed on to the Commerce Secretary for grant of import licence, the licence granted was an extra Import licence beyond the quota of 17 as formerly fixed, the relationship of appellant with Azizur Rahman and the nominees in whose favour the partnership deed was created, the evidence of benefits received by Azizur Rahman and nominees. It has been argued that the appellant did not originally refuse to grant licence but that the file was kept in abeyance for a while. It has also been agued that the change of views at about the relevant time may have been the result of the Minister's personal enquiries and there could be no objection to a Minister making the enquiry on his own, that he left no instruction with Rashid Ahmad, Private Secretary on the eve of his leaving for Dacca to hold up the file containing his orders dated 12th December 1956, that though the order was passed on 12th December 1956, it came to the Secretariate level in the usual course on the 18th, that he did not put in any trunk call on the 18th to the Private Secretary for forwarding the file to the Secretariate for execution of the orders, that the licence granted to the Kalpana could not be styled as Extra Import Licence, that the relationship with the appellant as alleged by the prosecution was not really true, that he had no knowledge as to what was going on behind the scene and his name was being used by Azizur Rahman without his consent or even knowledge, and last of all it has been argued that the coincidence in the backward and forward movement of the appellant in the matter of grant of licence at the relevant time till the finalisation of the negotiations at the Firm were mere accid?ental coincidences. There can be no doubt that the Minister showed reticence at the stage when the case of Kalpana was recommended originally on the ground of the foreign interests of this Firm, nor can the change of view which is a fact be doubted. How the Minister came to be shorn of the previously held view that the Firm had foreign interests is not known. For whatever reason the file granting licence to the Firm dated 12th December 1956, did not move forward till the 18th the defence of alibi on the 18th as set up for the purpose of denial of trunk call on that date could not be substantiated. The licence accorded to Kalpana was an extra Import Licence beyond the quota of 17 inasmuch as the order of appellant dated 12th December, 1956 indicates that actually twelve Bengali and five Urdu Hindi Films had been imported already which involved expenditure of Rs. 3,90,000 the Minister at the same time having observed that even within the expenditure allowable, at least one more Ben‑li film could be imported. Para 2 of the order itself clearly mentioned that two more import licences for Begali films were granted immediately one of those being Kalpana Films. So though it was within the ceiling of foreign exchange allowable, it was `extra' in principle. This circumstance indicates that the appellant went to some length in accommodating the Kalpana Films' case of which he at any rate delayed at one stage. It is true that' there is some discrepancy between the evidence of I. A. Khan and the note of Mr. Matin on the point as to whether the grant to Kalpana Films covers the 17 films referred to in the Trade Agreement but the doubt on the point is clarified to some extent by the noting of the appellant himself as stated above. It is true that the parent file relating to grant of Import licence for films as sought for by the defence could not be produced by the prosecution but that file being more or less of historical interest, I do not think that the defence was prejudiced in any way by reason of its non‑production. So far as the relationship goes, the evidence is that accused Azizur Rahman is brother‑in‑law of the appellant and of the three nominees in the partnership deed, Mozammel is nephew of the Minister, Sabur is nephew of accused Azizur Rahman and Shamsur Rahman is supposed to be a man of accused Monsur. The appellant Abul Monsur has accepted Mozammel as his nephew though he has disowned his relationship with Azizur Rahman and has also denied having ever seen the face of Shamsur Rahman. Accused Azizur Rahman in his turn has denied his relationship with accused Monsur. He has also denied that Sabur was his nephew. The evidence of P. Ws. 11, 12, 13 and 16 on the subject of the relationships have come in for comment. There is no reason to discard the evidence of P. W. 11 on the relationship between Azizur Rahman and Sabur although this witness could not speak of any relationship between accused Azizur Rahman and accused Abut Monsur. Also according to this witness Mozammel Huq was nephew of accused Abut Monsur and accused Monsur has himself admitted his relationship with Mozammel Huq. P. W. 12 has supported the evidence of P. W. 11 on the point of relationship between accused Azizur Rahman and Sabur, P. W. 13 has testified to the intimacy between the accused Azizur Rahman and Abul Monsur. His impression first was that Azizur Rahman was the brother of the wife of Abul Monsur. But later on enquiry he came to learn that he was a distant Khalata Bhai. His evidence seems to be conclusive of intimacy, which is material, though not of proximity of relationship. The, suggestion of enmity borne by this witness towards Monsur has been denied by this witness. There is further the evidence of P. W. 16 indicating that accused Azizur Rahman claimed Abul Monsur as his Bhagnipati. There is in addition the evidence of Gopiraman and Dhirendra that Azizur Rahman gave out that he was the brother‑in‑law of Abut Monsur. It is true that the prosecution could not prove any connection between accused Abul Monsur and Shamsur Rahman. But this failure is not so vital. Now coming to the proposal made by Azizur Rahman and the partnership deed as drawn up in pursuance thereof it appears that the proposal was made by Azizur Ranman to Gopiraman P. W. 8 in the presence of Dhirendra and Sushil towards the end of November, 1956. Gopiraman could not make up his mind immediately and therefore, he asked Azizur Rahbnan to come three days after. Azizur Rahman, however, came the very next day and wanted Gopiraman to dispose of the matter quickly as the Minister was then present in Dacca. Gopiraman agreed to the proposal in the presence of Dhirendra and Sushil and the partner?ship deed marked Exhibit 20 was created and a duplicate carbon copy of the same was also prepared on the same day, that is, on 3rd December. It appears also that the partnership deed and the duplicate copy were executed by Arabin do on the same day and by Tarubala on the next day after which those were sent to Syamsundar at Calcutta for signature. The document was received back by the 13th December, 1956. On the 14th Azizur Rahman came to the office of Gopiraman and the partnership deed and the carbon copy were made over to him for execution of the same by the nominees of the Minister and that of Azizur Rahman. The partnership deed and the duplicate copy were attested by Dhirendra P. W. 10 before delivery to Azizur Rahman. This partnership deed which was created in December, 1956 had been made to appear that it was created in January 1956, that is, 16th January, 1956. Gopiraman's evidence is that the deed was actually created in December, 1956 in pursuance of the agreement and it was ante‑dated at the suggestion of Azizur Rahman in order to avoid all suspicion against the Minister. His evidence is that unused stamp paper already purchased before 16ih January, 1956 for the purpose of using the same as sale deed for another transaction was used in creating the partnership in question.. P. W. 10 Dhirendra has supported Gopiraman on the point regarding purchase of the stamp and also on the point that Azizur Rahman suggested that it should be ante‑dated. The evidence of Shyamsundar P. W. 9, one of the proprietors of Kalpana is also to the effect that the deed was created to December 1956. There are certain discrepancies with regard to the manner and actual date of the execution of the partnership. But those are only of minor nature. Evidence regarding payment of the amount of Rs. 15,000 out of the profit in five instalments to Azizur Rahman and the nominees has been furnished by the vouchers marked Exhibits 24 and 25 and the oral testimony of Gopiraman himself and Dhirendra. The entries in the cash book and the ledgers have come in for serious comment. It cannot be denied that there are over‑writings here and there and also there are minor discrepancies, but as the oral evidence of Gopiraman and Dhirendra cannot be regarded in the nature of accomplice evidence for reason as stated before, the shortcomings of the cash book and the ledger arc not too vital. Gopiraman has stated that the first instalment of Rs. 5,000 was paid to Azizur Rahman as per voucher Exhibit 22 on 19th February, 1957 and that this payment has been made in advance out of the anticipated profits on the pressure of Azizur Rahman. Also the other payments to Azizur Rahman for himself and on behalf of the other partners fix Azizur Rahman as the real architect of the whole transaction. There is no evidence or even suggestion that Gopiraman and Dhirendra were inimical to the appellants. The evidence dealt with so far or more or less of circum?stantial nature so far as appellant Abul Monsur goes. There' are certain coincident acts on both sides. The circumstances of holding over of the licence and its final grant by the appellant Abul Monsur are in keeping with the progress of the transaction. Appellant Abut Monsur as it will appear has not brought any illegal gain to his own pocket but under the provisions of the section with which he had been charged, it is not necessary that he should himself be benefited. It is sufficient if someone else is benefited at his instance. Among the beneficiaries of the transaction there is no doubt that Mozammel Huq is a nephew as admitted by the appellant himself. There is also little doubt that Azizur Rahman was on intimate relations with the Minister though may not be a relative literally. The question, however, remains as to how far appellant Abut Monsur can be connected with the crime, apart from the mere intimacy with Azizur Rabman and relationship with some of the beneficiaries of the partnership. On this point Mr. Hamidul Huq has relied on the decision in The King v. Baskervile ((1916) L R 2 K B D 658) which it was held as follows : "Where on the trial of an accused person evidence is given against him by an accomplice, the corroboration which the common law requires is corroboration in some material particular tending to show that the accused committed the crime charged. It is not enough that the 'corroboration shows the witness to have told the truth in matters unconnected with the guilt of the accused." Mr. Azizuddin Ahmed for the State has also relied on this decision by referring to certain observations therein. The case is primarily on corroboration of accomplice evi?dence. In view of the fact that I have already stated that Gopiraman and Dhirendra could not be regarded as accomplices the principles of this case do not seem to be directly attracted in that case the only direct evidence of the commission of the act was that of the accomplices themselves. A letter was produced establishing some connection between the accused and one of the accomplices. The Judge warned the Jury that they ought net to commit the prisoner upon the evidence of the accomplices unless it was in their opinion corroborated in material particulars affecting the accused, but told them that the above‑mentioned, letter afforded evidence which they would be entitled to find was sufficient corroboration. That letter was held to be a complete corroboration affecting the accused by a body of five eminent Judges including Lord Reading C. J. and Atkin J. So far as our present case goes, the learned Special Judge has at pages 50 and 51 of his judgment stated as under :‑ "The prosecution, however, laid direct evidence to connect Mr. Abut Monsur with the deal. It is the evidence of P. W. 12 Md. Chand Mia. It is said by this witness that one Rafizuddin came to Dacca on 16th or 17th December 1956, in company with this witness to meet Mr. Abut Monsur in the Central Circuit House, and he escorted Rafizuddin on this occasion and met Mr. Abut Monsur in the Circuit House. Azizur Rahman also came on this occasion and met Mr. Abut Monsur. He also says that after Rafizuddin had some talk with Mr. Abut Monsur and when they were coming out of the room Mr. Abut Monsur enquired Azizur Rahman as to what he had done about the film affairs to which Azizur Rahman replied that it was all right. There were several persons in the Circuit House at the time and it is really an absurd story to believe that Mr. Abut Monsur would enquire about the transaction to Azizur Rahman at that time in presence of so many persons. So I reject the evidence of this witness on the point. There is therefore, no direct evidence to connect Mr. Abut Monsur with the deal. But I have already pointed out that there are circumstantial evidence to connect Mr. Abut Monsur with the deal." It seems to me that the learned Special Judge was not quite justified in rejecting this evidence of Chand Mia affording a direct link. The learned Judge has stated that there is no direct evidence. But the learned Judge gives no reason for discarding the direct evidence of this witness showing the link between Abut Monsur and Azizur Rahman and through Azizur Rahman with the whole deal. The Judge brushes aside the evidence of this witness not because he thinks that this witness is undependable, he having accepted once the evidence of this witness on the point of relation?ship, but because it is simply absurd. He does not come to the conclusion of absurdity as a result of watching the demeanour of this witness but because he thinks that it is unlikely for a person in the position of a Minister to speak in such open fashion about a clandestine deal. In other words because it was absurd for the Minister to have said so. The relevant evidence is at pages 88 and 89 of the brief as under :‑ "I came to Dacca on or about 16th or 17th December 1956, in company with Rafizuddin Saheb at his request as he was too old to move alone. Rafiz Saheb came to meet accused Azizur Rahman at a place in Islampur Road, and met Azizur Rahman in the afternoon. On the next day Rafizuddin Saheb met Mr. Abul Monsur Ahmed in the Circuit House. in the morning. I was also there with Rafiz Saheb, Azizur Rahman Saheb was also there in the Circuit House. It was Monsur Saheb who called Rafiz Saheb inside his room. I also entered the room of Abul Monsur Saheb in company with Rafiz Sahib. Azizur Rahman Saheb was already there in the room of Abut Monsur Ahmed. Rafiz Saheb had some talk with Mr. Abut Monsur. Before we left the room of Mr. Abut Monsur, he (Abut Monsur Saheb) inquired Azizur Rahman as to what he had done about the Film affairs. At this Azizur Rahman Saheb replied that it was all right by saying "Otadhik ase". We then left the Circuit House. On the way on my inquiry Azizur Rahman gave out that it was the affairs of a Film of Narayanganj." Public men when they have to meet large number of men in lump often speak cryptically in language understood by only those for whom it is meant. It is not so very much surprising for a Minister to have talked in that fashion. The words are:‑What about the `Film affairs' ? The evidence as above shows not only intimacy with Azizur Rahman but the use of the words " Films " supplies the missing link with the crime directly and what is more, the words 'Films' connects the two parties with the crime. Apart from the various circum?stances dealt with before, there is, therefore, the evidence of Md. Chand Mia P. W. 12 which brings together and connects Azizur Rahman and Monsur with the commission of the crime and also connects Abut Monsur with the activities carried out in the Firm at Narayanganj by Azizur Rahman. Under those circumstances the connection has been established. The next contention is that the mandatory provisions of section 6 of the New Act had been flagrantly violated. Section 6(7) of the New Act reads as follows :‑ "The previous statements of 'witnesses to be examined for the prosecution at the trial shall be supplied to the accused at least one week before the commencement of the trial." Mr. Hamidul Huq has stated a number of authorities on the meaning and force of the word "shall" and has argued that non?-supply of the previous statements in due time amounts to an illegality which cannot be cured by section 537 of the Code of Criminal Procedure, that the expression " previous statements " are comprehensive enough to cover all kinds of statements. The decision in Mahbubar Rahman v. The State (P L D 1960 Dacca 344) has been placed. In that decision it was held as follows :‑‑ "The object of subsection (7) of section 6 of the Pakistan Criminal Law (Amendment) Act, 1958 is as follows: (i) to inform the accused as to the nature of the evidence to be given by the witnesses for the prosecution with a view to give him oppor?tunity to prepare himself to meet the case, (ii) to allow the accused to use the statement to contradict the witnesses in cross‑examination. It is needless to say that the right given to the accused by this subsection is a very valuable right for cross‑examination of the prosecution witnesses. Any attempt to deprive the accused of this privilege which this subsection confers on him may result in serious prejudice to the accused. Failure to supply the accused with the statements of the witnesses one week before the commencement of the trial, as? required by section 6 (7) of the Pakistan Criminal Law (Amendment) Act, even though it constitutes a breach of the mandatory provision, cannot be said to be an illegality vitiating a trial or proceeding and, unless the accused is prejudiced, it will not warrant quashing a conviction." It appears that towards the conclusion of the judgment in that case the learned Judges took upon themselves to give certain directions for ensuring regular supply of copies of previous state?ments and they also held that denial to the accused of the full benefit of the section may no doubt seriously prejudice the accused and in some eases it may be said that he had not a fair trial. This decision which is based upon examination of a numbers of earlier decisions makes it clear that failure to supply the accused with the statement of witnesses one week before the commencement of the trial even though it amounts to violation of the mandatory provisions cannot be regarded as an illegality vitiating the trial and that in the absence of prejudice, there cannot be any question of quashing of the conviction itself. The facts in that case were :‑ "On 29‑1‑59, the Special Judge fixed 9‑2‑1959 for trial and summoned P. Ws 1 to

10. On 9‑2‑1959 as soon as the accusation was read over and explained, the accused pleaded not guilty and then filed a petition stating that he had, not been supplied with the copies of statements of the witnesses and prayed for an adjournment with a direction on the Public Prosecutor to supply the defence with the copies of statements. As the Public Prosecutor undertook to supply the statements of 4 P. Ws. by that evening and the rest by 10 a.m. on the next day, the defence did not press for an adjourment. The Public Prose?cutor, however, did 'not supply any statement at all in the evening. He gave the statements of 8 witnesses on the next day, i.e. on 10‑2‑59 at about 10‑54 a.m. and of some witnesses on 11‑2‑1959 and of one witness on 12‑2‑1959. He did not give at all the statement of P. W. Mansur‑ar‑Rahman." It was under those circumstances that the accused were held to have been prejudiced. Let us now see how far the facts of our present case resemble those of the case cited. Mr. Ataur Rahman Khan has by reference to the order sheet of the learned Special Judge dated 10th May 1960, para. 22 has made the grievance that the defence has been highly prejudiced by the breach of the pro?visions of the section in this case. The notings are as follows :‑ " The accused side has brought to my notice by a petition that the copies of the statements of witnesses Mr. I. A. Khan Mr. Rashid Ahmed, Mr. A. M. A. Matin, Mr. A. Q. Khan Chowdhury and Mr. S. M. Yousuf have not been supplied to the accused as yet. On my query, the learned Special Public Prosecutor states that there is no such statement of the afore?said witnesses recorded under section 161, Cr. P. C. what is stated by him is that Mr. A. Q. Khan one of the Police Officers seized some files from the above witnesses and recorded in boiled form the result of his investigation and under miscon?ception of the law the I. O. did not give copies of the said statements recorded under section 172, Cr. P. C. Accordingly the prosecution prays for adjournment for a day so that the accused side may get opportunity to go through the said statements copy of which has already been supplied today to the accused under my direction. Considered the prayer of the prosecution side. Since the copies have already been supplied to‑day under my direction, the accused side will get enough opportunity to go through the same in course of this day to make out their defence. So, the question of prejudice might not arise if the case is adjourned till to‑morrow as to afford opportunity to the accused to go through the statement and prepare for the defence. It will be however still open to the accused to raise their objection on the point, if, of course non‑supply of the copies, in time as prescribed in subsection (7) of section 6 of the Criminal Law Amendment Act, has actually prejudiced the accused." It appears froze the above that no statement of the witnesses mentioned was recorded under section 161 of the Code of Criminal Procedure and there was only recording of the result of investigation in boiled form on seizure of some files. One day's adjournment was taken by the prosecution to enable the defence to go through those recordings in boiled form as to what the witnesses stated at the time of seizure. It appears that under misconception of law the I. O. did nut supply those statements under section 172 of the Code of Criminal Procedure earlier. The Judge adjourned the case for a day to avoid prejudice to the accused. Rashid Ahmed P. W. 5 having stated that he made a statement and signed it and A. Q. Khan Chowdhury P. W. 14 having stated that no such statement was recorded, Mr. Khan has posed the question as to who is to be believed, the Police Officer investigat?ing the case or an officer like Rashid Ahmed ? Particular grievance has been made with regard to the state?ments of this witness. It appears that P. W. 5 stated as :- " One Police Officer contacted me again in September 1959. He was Mr. Ali Kasem. He took down my statement on this occasion. On no other occasion he contacted me. He examined me in my office. I was examined alone in my office on this occasion. I put my signature on the said state?ment. I did not refer the; police to C. C. I. & E. Office for the papers." Mr. A. Q. Khan Chowdhury P. W. 14 has stated as follows :‑ " On the requisition from the Inspector Mr. Kadam Rasul in the middle of August 1959, while 1 was going to Karachi in connection with another case. I seized some papers from the office of the C. C. I. & E. Karachi and examined witnesses such as Mr. I. A. Khan, Mr. S. M. Yousuf, Mr. Rashid Ahmed Khan and` Mr. M. A. Matin. I seized the papers under an inventory. This is inventory dated 12‑9‑59, signed by Mr. K. M. Iftikhar Ullah, Deputy Controller C. C. I. & E. Inventory is marked Exh.35. I made over the papers to Mr. Kadam Rasul Bhuiya. I submitted a supplementary case diary in connection with the seizure of the papers and examination of the witnesses. I merely showed the papers to Rashid Ahmed Khan and other witnesses mentioned. I did not record their statements as I did not think it necessary to record their statements since whatever had to be elicited from the said witnesses were already in the file seized by me objected by the defence. If Mr. Rashid Ahmed says that he made a statement and that I recorded the same and he signed it, this was all incorrect." The notings in the order sheet dated 16th May 1960, states the fact of Rashid Ahmed's statement not being recorded. If it was a case of oath against oath only, I would perhaps have believed Rashid Ahmed in preference to Ali Kasem, but it appears that on a requisition from Inspector Kadam Rasul who really investigated the case, this witness Ali Kasem P. W. 14 seized some papers from the office of the C. C. I. & E. and he was not really investigating the case himself. He has stated that he seized some papers and showed them to Rashid Ahmed and other witnesses. He has also stated in examination‑in‑chief that he examined witnesses. I. A. Khan, S. M, Yousuf, Rashid Ahmed Khan and M. A. Matin. But he has in his examination‑in‑chief itself categorically stated : " that he did not record their statements as he did not think it necessary to record their statements since Whatever had to be elicited from the said witnesses were already in the file seized by him " objected by the defence. In cross he has stated : " If Mr. Rashid Ahmed says that he made a statement and that I recorded the same and he signed it, this was all incorrect," Thus making it possible that Rashid Ahmed was really in some confusion. It also appears that the evidence of Rashid Ahmed Khan, S. M. Yousuf and I. A. Khan were more or less confined to official papers and the accused were given enough opportunity to examine those papers before the commencement of the trial. Grievance has also been made as to non‑supply of previous statement of Gopiraman. All that Gopiraman P. W. 8 said on the point is at page 69 of the brief as under :‑ " The Investigating Officer examined me. I do not remember if I stated before the Investigating Officer that inspite of our attempts to get the licence, we did not get the licence. I do not remember if Mr. Abul Monsur Ahmed was in Dacca or not at the tine of Azizur Rahman first met me at my office." It is all the time " I might have " and " I do not remember " and a sort of guess and conjecture all the time. He does not seem to be sure. Whereas P. W. 16, I. O. is very positive in his statement as follows (p. 103) : " I did not know Gopi Raman before. I contacted him for the first time on 13‑11‑

58. He is manager of Hangsa Theatre. It is not a fact that he made any statement to me on 13‑11‑1958 and that I recorded his statement. He might have deposed falsely if he had stated that he made such statement and that I marked the same." So non‑supply of statement that could not clearly be proved to have been recorded cannot be treated as a breach of the mandatory provisions. The following entries in the order sheet of the learned Special Judge dated 26th April 1960, and 30th April 1960, also indicate that the usual procedure was being followed : 10. 26‑4‑1960. " Accused side puts in a petition stating that the prosecution has not as yet supplied the copies of the state?ments under sections 161 and 164, Cr. P. C. with a request to direct the prosecution to produce the same immediately. Heard the learned lawyer for the accused. The I. O. present in Court with the connected papers wanted by the defence for inspection states that there is no statement under section 164, Cr. P. C. So, the defence to take note of it. As regards the supply of copies of the statements under section 161, Cr. P. C. the attention of the learned lawyer for the accused to my previous order Nos. 7 dated 18‑2‑60, and 8 dated 9‑4‑60, is drawn, and it will appear from the said orders that the prosecution has been directed to supply the same at least 7 days before the date of trial. There is enough time now to comply with the said orders. So, the defence to take note of it. A separate petition is put in stating that the prosecution has not produced to‑day the petition of Kalpana Films and a tele?phone. No telegram message is referred to in the charge‑sheet. So, the accused cannot ask the prosecution to produce the same for inspection. Hence the said prayer is rejected. As to the telephone message the learned lawyer fob the, accused refers to the trunk telephone message dated 18‑12‑56, by the accused Mr. Abul Monsur Ahmed to his private Secretary. Heard the learned lawyer for the accused. The prosecution is directed to produce the said Trunk Telephone message and the petition of the Kalpana Cinema on 30‑4‑60, for the inspection of the defence side." 12. 30‑4‑60, " The I. O. puts in a petition stating that he has tendered the necessary papers for examination of the same by the accused side. The defence side to take note of it. Later the learned defence lawyer Mr. T. Hossain states that the accused side examined the papers in question produced by the I.O. Copies of statements of witness supplied and receipt‑filed." It appears that the Court's order was to supply statement under section 161, statement under section 164 of the Code of Criminal Procedure, there was none. So far as the statement under section 172 of the Code of Criminal Procedure goes, there was no order as to supply of gist of the statement. At any rate the non‑supply in the present case as indicated above is not of such serious kind as in the facts of the case cited. I, therefore, hold that no prejudice of the kind in the decision cited has occurred in the present case as to justify quashing of the conviction. So far as the other appellant goes, namely, Azizur Rahman, his rise and fall is closely interwoven with that of the main accused. As a matter of fact, there has been duplicate argument the strategy followed by Mr. Hamidul Huq appearing for Mr. Azizur Rahman being that of demolishing tine case against the main accused. I have already referred to some of his arguments. So far as Azizur Rahman's case goes, Mr. Hamidul Haq has argued that he has been connected with the crime by the statements of P. Ws. 8 and 10 and that the evidence of P. W. 8 and P. W. 10 being at best accomplice evidence those needed material corroboration. We have already adverted to all the grounds taken in the case and we are only presently concerned with the abetment. The charge against Azizur Rahman is that of abetment of the main accused. Though charged as an abettor, he has played the leading role in the drama. As a matter of fact from the communication and acceptance of the proposal down to the drawing up of the partnership deed and distribution of benefits thereunder, the whole affair in each detail was organised by him. Signature of Azizur Rahman was properly taken for com?parison and examination of the handwriting expert and signatures of Mozammel Huq were also taken for comparison with the so‑called signature of Mozammel Haq as appearing in the slip vouchers, authority letter and letter of dissolution of the partner?ship. The expert opinion is that the signature was not akin to the real signature of Mozammel Haq but agreed with the specimen writings and standard writings of this accused Azizur Rahman. Though the expert evidence as to the affinity of the signature cannot conclusively connect Azizur Rahman, there is the evidence of P. W. 8 showing that the vouchers, the authority, slip, the letter of dissolution of the partnership and the partnership deed itself were all produced by Azizur Rahman. There is also the evidence of Gopiraman that Azizur Rahman received all the payment showing that real profit was made by him keeping some nominees only in the back‑ground. Azizur Rahman who was in need of easy money approached to that end the Minister who was at any rate intimately known to him. The Minister was quite willing to help him without being any the poorer himself provided Azizur Rahman worked out the whole scheme. By all that he did. Azizur Rahman at any rate facilitated the very commission of the crime by the Minister. The charge of abetment has, therefore, been driven home to this accused. Both the appeals are thus disposed of and dismissed on merits. I now come to the question of sentence. In the case of the first appellant, having regard to his old age, ill‑health and the prolonged agony that he has already undergone, his sentence is reduced to simple imprisonment for six months and to a fine of Rs, 15.000 in default to simple imprisonment for further period of six months. The sentence of Azizur Rahman, the abettor is correspond?ingly reduced to simple imprisonment for six months and to a fine of Rs. 15,000 in default to undergo simple imprisonment for further period of six months. Let the appellants continue on the same bail and realization of fine be stayed till the appellants prefer appeal to the Supreme Court, as prayed for. K.B.A. Appeals dismissed.