P L D 1957 (W (PLP)

S. A. RAHMAN, C. J.‑--This order will dispose of a reference made by the learned Additional District Magistrate Rahimyar khan. A complaint was lodged under section 467, P. P. C., before Mr. Muhammad Hussain Sindher, Magistrate 1st class with section 30 powers, Sadiqabad; by Malik Abdur Rahman against Munshi Nur. Ahmad and Hafiz‑ur‑Rahman, Treasurer end Siah Nawis, respectively, of Tehsil Sadiqabad. The, complainant alleged that he had brought Rs. 6,500 for deposit as land revenue in the Tehsil pertaining to Rabi 1955. He duly deposited this amount but he alleged that the two accused had altered the entries in the official records so as to make out that the sum deposited was Rs. 5,500 and had thus committed forgery with a view to embezzle the sum of Rs. 1,000. The Magistrate after recording preliminary evidence in the case summoned both the petitioners under section 467, P. P. C. A revisions petition was, therefore, triable by the accused persons in the Court of the learned Additional District Magistrate who has recommended that the proceedings be quashed. The grounds he has mentioned in the referring order are that the offence under section 467, P. P. C. falls within the schedule annexed to the Criminal Law Amendment Act, 1948, and is, therefore, triable by a Special Judge alone. It way also added that according to section 5 clause (r) of that Act the Central (sic.) Government had to give sanction for the prosecution and this was not obtained. I have heard learned counsel for the accused as well as Mr. M. Anwar on behalf of the State. The complainant was present in person but was not represented by counsel. In my opinion the Criminal Law Amendment Act of 1948 did not govern the case. It was held by my learned brother Shabir Ahmad, J. in State v. Said Ahmad (P L D 1957 B J 1) that the laws in force in the old Bahawalpur territory before the 14th of October 1955, continue to be in force by virtue of section 10 of the Establishment of West Pakistan Act, 1955, and Article 224 of the new Constitution till such time as they are changed by appropriate legislation. The Criminal Law Amend ment Act, 1948, varies the procedure in regard to certain types of cases and it was amended in 1953. It being in conflict with the law as it prevailed in tic Bahawalpur territory before the integration of West Pakistan, it could not be deemed to be in force after that event because of the saving provisions contained in section 10 of the Establishment of West Pakistan Act. The position did not alter when the new Constitution was enforced because similar saving pro visions were enacted in Article 224 of the Constitution. It is now conceded by learned counsel for both sides that in these circumstances the Criminal Law Amendment Act, 1948, as amended in 1953, could not have been invoked in this case. The offence under section 467, P. P. C., therefore, was trialable under the ordinary procedure prevailing in the old Bahawalpur territory. The argument raised on behalf of the accused‑petitioners, however, is that under the Bahawalpur Prevention of Corruption Act, an offence falling within the definition of criminal misappropriation as defined in section 409, P. P. C. was also covered by clause (c) of section S of the Bahawalpur. Prevention of Corruption Act and, therefore, in the face of section 6 of that Act, could only be tried after obtaining requisite sanction from the authority, mentioned in the latter section. In support of this proposition it is argued that to allow the complainant to pursue his complaint under section 467, P. P. C. alone which is not one of the offences covered by the Bahawalpur Prevention of Corruption Act, would mean a deliberate evasion of the provisions of that Act which protect public servants from frivolous litigation. It is recognised that the offence visualised by section 467, P. P. C. may be an independent offence but the test is whether primarily and essentially the allegations made would pertain to an offence which cannot be tried without sanction of the prescribed authority. If that is so and the offence under section 467, P. P. C. is subsidiary in the sense that in substance the allegations make out an offence under section 409. P. P. C. covered by the provisions of the Bahawalpur Prevention of Corruption Act, then no prosecution should be allowed to continue without sanction from the appropriate authority. Reference in this connection was made to Sweeing v. Koonhan and others (36 Cr. L J 970), In re Chilukuri Antarvedi Sharma and others (47 Cr. L J 1034) Bajaji Appaji Kole v. Emperor (47 Cr. L J 321), in re. Ravanappa Reddi (33 Cr. L J 361) Sadhuram Chimandas v. Chimandas Budhuram (38 Cr. L J 742) Perianna Muthiran v. M. Vengu Ayyer (30 Cr. L J 322), Ram Nath v. Emperor (26 Cr. L J 362), In re, Appaduray Nainar and others (37 Cr. L J 159) and Bhimomal and others v. Jalo (37 Cr. L J 1007) These cases mainly deal with the question whether the provisions of section 195, Criminal P. C. can be allowed to be defeated by a private complaint based on an allegation of an offence not mentioned in section 195, Criminal P. C. but committed in relation to judicial proceedings when the facts would point to the conclusion that no complaint would be competent in respect of the main offence covered by that section without the initiative of the Court that presided over those proceedings and answer it in the negative. Mr. M. Anwar on behalf of the State referred me to Nallapa Goundan v. Chinnamal (A I R 1942 Mad. 19) in which it was held that a complaint for defamation by a witness appearing in Court proceedings, was outside the purview of section 195, Criminal P. C. and could proceed without a complaint from the relevant Court. This was, however, treated as an exception to the principle enunciated above (which was not expressly dissented from on the ground that defamation was entirely a personal matter. To the same effect are rulings reported as Muhammad Isa v. Nizim Hussin (A I R 1940 All. 246) and U. Aung Pe v. The King (A I R 1938 Rang. 232) Learned counsel also invited my attention to Hari Ram Singh's case (A I R 1939 F C 43) in which the Federal Court held that no sanction for the prosecution of a public servant under section 409, P. P. C. was necessary under the law as it then obtained, but that such sanction would be required for the trial of an offence under section 477, P. P. C. That was a case for falsification of accounts maintained in a Government office with a view to criminal misappropriation of Government funds by a public ser vant the case seems to be distinguishable on the ground that there the main offence was under section 409, P. P. C. and the subsidiary offence was that contemplated by section 477, P. P. C. The position in the present case is the reverse. Learned counsel further relied on Ghulam Muhammad v. Emperor (A I R 1937 Lah. 802) in which Sir Abdul Rashid, J. of the Lahore High Court quashed charges against a Government servant under sections 193 and 211, P. P. C. in the absence in writing of a complaint by the relevant Magistrate but allowed charges under sections 218 and 220, P. P. C. to proceed on the ground that they did not fall within the four corners of section 195, Criminal P. C. The principle whether the sanction provisions could be successfully evaded in this manner, was not discussed in that ruling and the point was not evidently raised. The authority, therefore, does not afford much assistance in dealing with the precise question raised in the instant case. As was laid down in Tikaram v. Emperor (A I R 1945 Nag. 210 (S. B.)) cited by Mr. M. Anwar himself the test in all these cases is whether the facts disclose primarily and essentially an offence for which a Court complaint is necessary or not. By parity of reasoning sanction of the appropriate authority to the prosecution would stand on the same footing as a complaint by the relevant Court. I hold that in the present case the allegations really amount to charging the accused with misappropriation of money and to facilitate that crime they were being also accused of falsifying the records. The principle, therefore applies and the case cannot be proceeded with in the absence of sanction from the appropriate authority. To hold other wise would be tantamount to permitting abuse of the process of Court. I, therefore, accept the recommendation of the learned Additional District Magistrate to this extent that I hold that without the sanction of the authority mentioned in the Bahawalpur Prevention of Corruption Act section 6, the case, cannot be proceeded with. I, therefore, quash the proceedings. In the end, I would advise the complainant in the case to lodge a report with the police and I hope that if he does so, the police will hold a thorough investigation and if necessary prosecute the accused persons after obtaining the requisite sanction from the appropriate authority. That seems to be the only method by which dispensation of justice can be secured for both parties. A. H. Order accordingly.