P L D 1964 Dacca 330 (PLP)

27. It has next been contended that a Minister of the Province cannot be said to be an officer subordinate to the Governor ; reliance has been placed upon a decision of the Calcutta High Court in the case of Emperor v. Hemendra Prasad Ghosh (I L R (1939) 2 Cal. 411). Mr. Azizuddin, however, contends that the view taken by the Calcutta High Court in Hemendra Prasad's case referred to above seems not to have been accepted by their lordships of the Privy Council in the case of Emperor v. Sibnath Banerji arid others (AIR 1945 P C 156). Although the precise question was not necessary to be decided yet their Lordships of the Privy Council thought it relevant incidentally to refer to the question as to whether a Home Minister could be said to be an officer subordinate to the Governor within the meaning of section 49(1) of the Government of India Act, 1935. Section 49(1) of the Government of India Act, 1935, provided: "The executive authority of a Province shall be exercised by the Governor, either directly or through officers subordinate to him." On a reference to section 51 of the said Government of India Act, 1935, it also appears that a Minister could hold his office during the pleasure of the Governor, and that the Governor was quite competent to dismiss a Minister in appropriate cases.

28. If we turn to Article 71, clause (4) of our late Consti tution we get almost a corresponding provision in regard to the question of appointment or dismissal of a Minister. Clause (4) of Article 71 is in the following terms: "Other Ministers, Deputy Ministers and Parliamentary Secretaries shall be appointed and removed from office by the Governor, but no person shall be appointed a Deputy Minister or Parliamentary Secretary unless he is a member of the Provincial Assembly." It thus appears that the relevant provision of our late Constitution was to the effect that a Minister could be appointed and removed or dismissed from office by the Governor.

29. The language in the latter part of the ninth clause of section 21 of the Pakistan Penal Code indicates that every officer in the service or pay of the Crown or remunerated by fees or commission for the performance of any public duty could be regarded as a public servant. It surely lays down the test that the officer concerned must be in the service or pay of the Government, and it is a well‑known principle that if one is in the service or pay of the Government, the Government is also com petent to remove him from such service. Relying on this principle it can safely be laid down that a person who may be appointed and paid as an officer and also dismissed from his service as such officer in connection with public duties, could be said to be in the service of the Government. Their Lordships of the Privy Council while differing from the view taken by the Calcutta High Court in the case of Emperor v. Hemendra Prasad Ghosh, gave their reasoning which seems to have been accepted or followed by other Courts as well. The relevant part of the judg ment of the Privy Council in Sibnath's case is quoted below: "So far as it is relevant in the present case, their Lordships are unable to accept a suggestion by counsel for the respon dents that the Home Minister is not an officer subordinate to the Governor within the meaning of section 49 (1), and so far as the decision in 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 Minister may have duties to the Legis lature, 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." The same reasoning seems to have been accepted by the Indian Supreme Court in the case of Singh and another v. The State of Vindhya Pradesh (AIR 1953SC394).

30. In our view, therefore a person who is appointed by the Governor to discharge the functions of a Minister and who was paid out of the public exchequer and who was also liable to be dismissed by the Governor, comes within the description as indicated in the latter part of the ninth clause of section 21 of the Pakistan Penal Code, and as such, a Minister cannot but be regarded as a public servant within the meaning of Act II of 1947 read with Act XL of 1958.

31. The next question therefore is, as to whether the requirement of subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958, as quoted above, was complied with according to law, that is to say, whether sanction which is the pre‑requisite condition of the exercise of jurisdiction by the learned Special Judge in the matter of taking cognizance of an offence of criminal misconduct and starting the prosecution, was duly obtained from the appropriate Government.

32. It has been argued on behalf of the appellants that whatever might be the position at the time when the offence of criminal misconduct is said to have been committed, Mr. Mujibur Rahman having ceased to hold office as a Minister at the time when the prosecution was going to be started, he should have been found to have ceased to be a public servant, and as such, he could not be made an object of sanction obtained under section 6 (5) of the Pakistan Criminal Law Amendment Act, 1958. Reliance has been placed in support of this contention upon a decision of our Supreme Court in the case of Hamed Ghulam Sadiq v. Pakistan and others (PLD1960SC351). Their Lordships in the peculiar facts and circumstances of the case took the view that sanction for prosecution could be given in relation to a person who was "actually serving" at the time when the sanction was given and as in that case the person sought to be prosecuted relinquished the service and became a pensioner, in their Lord ships opinion the proceeding started against him, was not compe tent in view of the fact that the sanction was not and could not be received from an appropriate Government. He ceased to be any longer in the service or in a position to claim any privilege that might be available to him in case the appropriate authorities wanted to give him protection by refusing sanction. It, however, appears that although this case was decided on 30th of May 1960, the Explanation as added by an amendment to the relevant Pakistan Criminal Law Amendment Act, 1958 was not for consideration before their Lordships. In fact the nature of the offence said to have been committed by the appellant Hamed Ghulam Sadiq in that case was committed some time before the amended Act came into force. We do not think that the legal position remains the same after the new amended Act, namely, the Pakistan Criminal Law Amendment Act, 1958, came into force. It will appear from the text of subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958, as quoted above, that for the purpose of sanction "appropriate Govern ment" should mean the Government which at the time of the commission of the offence was the appropriate Government. This clearly indicates that the framers of this Act had in view the possibility of the commission of an offence at a time when the delinquent concerned might have been in office and the question of prosecuting him might arise at a time when he might no longer be in such office. It has been suggested that even after the addition of the Explanation the position cannot be said to have undergone a substantial change inasmuch as it is inten ded to cover contingencies like the one where a particular officer might have committed an offence of criminal misconduct while holding an office under a particular Government‑say, Provincial Government, and sought to be prosecuted at a time when he might be in the office of another Government‑say, the Central Government, and it has also been contended that the Explanation does not fit in with a case where the delinquent concerned has altogether relinquished his office or service under the Government. We do not think that the language as used in the Explanation admits of such a narrow interpretation. The language, in our. view, seems to be wide enough to cover both possible cases, and there is nothing in the Explanation which will indicate that the Legislature or the framers of the Act had in view only that category of cases as suggested on behalf of the appellants In our view although the offence is said to have been committed.' at a time when Sheikh Mujibur Rahman was in office as a Minister although the prosecution was sought to be started at a time when he had ceased to be a minister yet it was necessary for the institution of the prosecution against him that sanction from the appropriate Government should be obtained. If the sanctioning authority thought it proper upon adequate materials that it was a fit case for starting the prosecution or for dropping the same, it would be competent to act in such a manner as it thought best in the circumstances of the case. In the case of Abul Mansur Ahmed and Azizur Rahman v. The State (P L D 1961 Dacca 753) it has been pointed out by our learned brother Baquer, J. that this Explanation was not for consideration before their Lordships of the Supreme Court in Ghulam Sadiq's cease. In Abdul Mansur's case it was found that sanction was duly obtained for the prosecu tion of the amused concerned. It appears that Sheikh Mujibur Rahman was a Minister under the Governor and also appears that the sanction has been given by the Provincial Government. There is nothing to show in such a case that the sanction was not given by the appropriate Government. In our view, the sanction has in fact been given by the appropriate Government as required under the provisions of section 6 (5) of the Pakistan Criminal Law Amendment Act, 1958.

33. The next question, however, arises as to whether this sanction can be said to have been duly obtained or as to whether such a sanction could be said to be a proper sanction.

34. It has been argued on behalf of the appellants that on a reference to Exh. 3, namely, the order of sanction it will appear that the order was based more or less upon the report of the investigating Officer, and it is also contended that it is difficult to hold that the sanctioning authority had the proper materials before it or that the sanctioning authority ever applied its mind to the facts of the case. Reference has been made to certain parts in the order of sanction as indicated below: "(1) Whereas the said Mr. Sk. Mujibur Rahman, while Minister‑in‑charge of the Commerce, Labour and Industries Department, abruptly and arbitrarily and without recording any reasons passed orders on 7th April 1957, cancelling the agency of the aforesaid firm despite serious objections raised by the Secretary of the Department concerned . . . . . . (2) As a matter of fact, the proposed plant was never set up by the firm." It has been contended on a reference to these and other portions of the said order of sanction. Exh. 3, that the sanctioning authority took the view that while cancelling the agency of Messrs Hasan Ahmed Limited and appointing the Coal Mining and Trading Company Limited in their place no reasons were given by Sheikh Mujibur Rahman although from the records it would appear that Sheikh Mujibur Rahman actually gave certain reasons. With regard to the other point, it has been contended that the sanctioning authority took the view that no factory for manufacturing soft coke was ever set up by Qazi Abu Naser although the records would also show that there were clear indications that the building or preparation of such factory was in progress at the material time or that subsequently it has actually been set up. The learned counsel for the appellants has also contended in this connection that if the reasons as indicated by Sheikh Mujibur Rahman while cancelling the agency of Messrs Hasan Ahmed Limited and appointing the Coal Mining and Trading Company Limited were placed or considered by the sanctioning authority, and if the fact that the manufacturing plant was actually in progress at the material time or that the party concerned was really serious about its construction, and that in fact by the time the sanction was given it had actually been set up were known to the sanctioning authority, then probably such a sanction would never have been given. Upon these premises it has also been argued that the sanctioning authority proceeded merely upon the basis of the report of the Investigating Officer according to whom no factory bad been set up at the relevant time, and according to whom no clear reason was given by Sk. Mujibur Rahman while cancelling the previous agency and appointing Messrs Coal Mining and Trading Company m their place.

35. Mr. Azizuddin, however, contends that the law does not require that any particular form should be followed while giving or making an order of sanction, and he also contends that the only test as to the validity of a sanction is as to whether proper materials other than those which might have been submitted by the Investigating Officer were placed before the sanctioning authority had applied its mind thereto. If after getting such materials and considering them the sanctioning authority came to an erroneous view that by itself could not vitiate the validity of the sanction order.

36. Mr. Salam Khan has relied upon a decision in the case of Tufail Muhammad v. The Grown (P L D 1954 Lah. 37). It was observed there that the sanctioning authority should apply its mind to the facts and circumstances of the case before it, and although prima facie some offence may be revealed by the evidence collected, the authority in question would not be bound to accord sanction for prosecution unless it came to the conclusion that it would be expedient in the interest of justice to do so. Such a conclusion could only be arrived at after all the material facts have been considered. In a case where this procedure had not been followed the purported sanction to prosecute the accused is illegal.

37. The learned Judge while deciding this case relied upon a decision of the Privy Council in the case of Gokulchand Dwarkadas Morarka v. The King (P L D 1948 P C 11). Their Lordships observed, while considering the validity of an order of sanction which was a pre‑requisite condition to the starting of a prosecution case, in the following manner: "But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or with‑hold their sanction. They are not, as the High Court seem to have thought, concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds they regard a prosecution as inexpedient. Looked at as a matter of substance it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without a knowledge of the facts of the case." It thus appears that the sanctioning authority must be placed in a position of having knowledge of the relevant facts before it, and this should appear either from the order of sanction or from other material parts of the record.

38. Mr. Azizuddin has relied upon certain observations of A. S. Faruqi, J., in the case of Muhammad Jaffar v. The State (P L D 1959 Kar. 585). It appears that both the decisions referred to above were considered in this case. After considering those cases the learned Judge seems to lay down a proposition in the following manner: "It is, however, essential that the facts constituting the offence for which the accused is to be prosecuted must ` either appear on the face of the sanction or there must be extra neous evidence to the effect that such facts were placed before the authority who granted the sanction on consideration of the same. I would further say that if the facts appear on the face of the sanction it is not necessary for the prosecution to go further and prove that the sanctioning authority had applied its mind to such facts."

39. Turning to the order of sanction, Exh. 3, it appears that reports and records were placed before the Governor, as in the preamble it is stated: "Whereas from a perusal of the reports and the records placed before the Governor in connection with Ramna (Dacca) P. S. Case No. 3, dated 2nd February 1959, under section 5 (2) of Act II of 1947 against Mr. Sk. Mujibur Rahman Ex‑Minister in‑charge of the Commerce, Labour and Industries Department, Government of East Pakistan, the Governor is satisfied that there are sufficient materials for establishing a prima facie case of criminal misconduct under section 5 (1) of Act II of 1947 against the said Mr. Sk. Mujibur Rahman for obtaining for himself or for Messrs Coal Mining & Trading Co., Ltd. Narayanganj, by corrupt or illegal means or by otherwise abusing his position as a public servant in the capacity of a Minister, a valuable thing or pecuniary advantage, to wit, appointment of the aforesaid Company as agent of the Provincial Govern ment for procuring, and handling a huge quantity of soft coke from India on a commission basis as well as the granting of permission to the said Company to set up a plant at Darsana, District Kushtia, for converting hard coal into soft coke and also to import 500 tons of hard coal from India."

40. This would indicate that there were certain records and reports before the sanctioning authority. It, however, appears on a perusal of the latter part of the same order that the sanctioning authority took the view upon the consideration of all those materials that Sheikh Mujibur Rahman while making the impugned orders acted arbitrarily and without recording any reason. It also appears as indicated above that the proposed plant was never set up by the firm. These two opinions might be right or wrong on a further analysis or investigation of the facts of the case as might appear or come out during the trial of the persons concerned ; but these opinions by themselves could hardly suggest that the sanctioning authority had not the requisite materials before it. It might be, as contended by the learned Advocate appearing for the appellants, that the view taken by the sanctioning authority was erroneous, but that by itself does not indicate that the sanctioning authority did not apply its mind. On the other hand, it is apparent on the face of the order that the sanctioning authority took into consideration all the relevant facts concerning the offence of criminal misconduct with which Mr. Sheikh Mujibur Rahman has been charged. It appears from the official records that the Secretary of the Department concerned raised certain objections. The order of sanction also indicates that the impugned orders were passed by the Minister in spite of such objections. This would surely indicate that the sanctioning authority did apply its mind to the facts and were in a position to know all the material facts concerning the case. It was up to the sanctioning authority after consideration of such material facts to take one view or the other. It appears that the sanctioning authority thought it proper and expedient in the interest of justice to accord sanction for the purpose of starting the prosecution case. If on the materials the sanctioning authority thought it proper not to pursue the matter further it was quite open to it to do so. It can hardly be suggested that for want of proper materials the sanctioning authority was unable to consider the case in that light as well. In our view, therefore, the order oaf sanction as per Exh. 3 has been properly given by the sanctioning authority, and its validity cannot be questioned as contended on behalf of the appellants. As indicated above, it is abundantly clear that consideration of the facts of the case cannot be said to have been confined merely to the report that might have been placed by the Investigating Officer, but it extended also to other materials and records placed before the sanctioning authority.

41. This takes us to the consideration of the merits of the two appeals.

42. The substances of the charges as indicated above is that Sheikh Mujibur Rahman while acting as a Minister favoured his friend Qazi Abu Naser with some concessions which gave pecuniary advantage to the latter.

43. Although from the indictments that can be gathered from the examination of the appellants under section 242 of the Code of Criminal Procedure it appears that only two concessions were alleged to have been made by him yet it appears that one more alleged act of concession was added during the prosecution of the case. For a proper appreciation of the nature of such concession they may be indicated here as follows: "(1) The first concession said to have been made in favour of the Coal Mining and Trading Company Limited is that Sk. Mujibur Rahman by his orders, 21st March 1957, and 7th April 1957, abruptly and arbitrarily cancelled the agency of Messrs Hasan Ahmed Limited, and by the same orders appointed Messrs Coal Mining and Trading Company in which his friend Qazi Abu Naser was interested. (2) By the said orders Sheikh Mujibur Rahman gave a permission to his friend Qazi Abu Naser rather to the Coal Mining and Trading Company Limited to manufacture a coking plant for the purpose of having soft coke out of steam coal on the plea that it might save foreign exchange. (3) Sheikh Mujibur Rahman also gave orders granting a lease for peat mining operation in the area of Gopalganj Sub‑division within the District of Faridpur in favour of the said Coal Mining and Trading Company Limited." It may be pointed out at the very outset that the third kind of accusation was not even put in the examination of the appellants under section 342 of the Code of Criminal Procedure, but it has been argued from the Bar that this act on the part of Sheikh Mujibur Rahman could be taken into consideration as a piece of evidence just to show how he was interested in helping his friend Qazi Abu Naser.

44. It will be proper in the circumstances of the case to consider the merits of the impugned orders in relation to each item of favour or concession as indicated above.

45. It is in evidence and it has been found by the learned Special Judge that the Coal Mining and Trading Company Limited were doing business in this part of Pakistan ever since Independence. There is no evidence that this Company was ever regarded before 1955 as an undesirable concern. In fact the finding of the learned Special Judge in this behalf has not been questioned by any party before us. It is not disputed also that Qazi Abu Naser, has been concerned with this firm more or less in his capacity as the Managing Agent thereof. It appears on a reference to the evidence on record that the affair of procuring and handling agency in the matter of importing soft coke from India and distribution of the same in the Province of East Pakistan was being managed towards the end of 1954 by one known as Mr. Azad Khan. His work was found to be extremely unsatisfactory and was accordingly terminated by a letter, Exh. 20, issued on 26th November 1954, from the Directorate of Consumer Goods, Fuels and Textiles. Thereafter, the question arose as to who might be appointed an agent for the same purpose. It appears that notice was given as per Exh. 5, dated 8th January 1955, calling for tenders from parties in that connection. From the tender notice it appears that one of the conditions was that the tenders should state experience and connection in coal trade. Other conditions as required to be observed for the purpose of the contract were indicated in Exh. 5 (a). It was required that the tenders should quote the minimum rate per ton for each separately of the various works that might be necessary for the purpose of booking to Ishurdi by Rail and/or by river route to Dacca‑Narayanganj. The nature of distribution and other terms of work were indicated in Exh. 5 (a).

46. The Tender Committee which bad the authority to make the suitable selection consisted of three gentlemen, namely, (1) Mr. F. H. Chowdhury, Deputy Director of Consumer Goods, Fuels and Textiles, (2) Mr. S. Hashem Ali, P. W. 3, who was then the Deputy Secretary, Civil Supply Department Government of East Pakistan, and (3) Mr. M. Muid Khan P. W. 4, who was then Financial Adviser, Civil Supply Department to the Government of East Pakistan. It appears that after consideration of the merits and demerits of all the applicants, the Tender Committee thought it proper to appoint Messrs Hasan Ahmed Limited as the agent for the purpose. In the report, Exh. 6, dated 23rd February 1955, it has been indicated as to how gradually other parties were eliminated and for what reasons. The report indicates that minimum rate for each item was fixed by the Tender Committee, and after rejection in the preliminary examination there were seven parties for consideration before them including Messrs Coal Mining and Trading Company, Limited, Messrs Hasan Ahmed Limited, and one S. M. Hanif (Dacca), Limited. For the purpose of evaluating the merits and desirability of the respective tenders figures were worked out on an assumed quantity of 1,000 tons in the following manner: "The Tender Committee proceeded on the footing that 60 per cent. of the coal would come via Ishurdi and 40 per cent. would come to Dacca via Narayanganj. Of the 60 per cent. that might come via Ishurdi, 80 per cent. would be rebooked and 20 per cent. would be dumped at IshurdL that is to say, 480 tons might be rebooked straightaway from Ishurdi and 120 tons might be dumped and again. rebooked from there whenever necessary and 400 tons of soft coke would be expected to come to Dacca directly."

47. On this calculation it was found that the terms as offered by Messrs Hasan Ahmad Limited were most suitable for acceptance. The other parties' tenders were accordingly rejected and Messrs Hasan Ahmed Limited were given the agency. There is no indication, however, as to whether at the time of considera tion of the merits of these tenders the previous or past experience of any party was considered, but it appears from Exh. 8 that antecedents of Hasan Ahmed Limited were asked to be enquired into departmentally. This Exh. 8 has been the subject of comments on both sides. According to the appellants this exhibit indicated, as it bore a date 22nd February 1955, that Mr. F. H. Chowdhury, the Deputy Director of Consumer Goods, Fuels and Textiles had practically made up his mind to give the agency to Hasan Ahmed Limited. On the other hand, on behalf of the State it has been argued that the date, 22nd February 1955, was more or less a mistake. There is nothing, however, on record to show that any clarification was sought to be made in regard to the question as to whether the date 22nd February 1955, was a mistaken or wrong date or that the requisition was actually signed by Mr. F. H. Chowdhury on that date. We have looked into the original records, and we find it very plain that the date 22nd February 1955, has been inscribed by Mr. F. H. Chowdhury, and it admits of no doubt as to its genuineness. Mr. F. H. Chowdhury has not been examined in this case to throw any light on this point nor the officer to whom this requisition as per Exh. 8 was addressed has been examined as to when actually he got it for the purpose of making necessary comments. The learned counsel for the appellant Sheikh Mujibur Rahman has argued that this Exh. 8 by itself would indicate that the Department concerned had practically made up its mind to give the agency to Messrs Hasan Ahmed Limited. It has also been suggested that from the manner of preparing the workable rate and other data it would appear that although the rate (?) of Messrs Hasan Ahmad Limited appeared to be too high in respect of the main item yet it was shown to be reasonable by showing that a substantial amount of the possible import might be in relation to Dacca, and, therefore, the cost as a whole would be quite reasonable and might be regarded as the lowest rate in the circumstances of the case. Whatever might be the merits of this contention it is not contended by the learned counsel for the appellant that Sheikh Mujibur Rahman had any idea that the appointment as given to Messrs Hasan Ahmed Limited was actually causing financial loss to the Government. It has been worked out arithmetically upon the total value of the work done by this party Messrs Hasan Ahmed Limited, that if the same work had been given either to S. M. Hanif (Dacca) Limited or to Messrs Coal Mining and Trading Company Limited a. sum of more than 40,000 rupees could possibly be saved by the Government on this account. Be brat as it may, it appears that the agency was given to Messrs Hasan Ahmed Limited who undertook the work in their own way. They were in due course appointed by the Deputy Director, Consumer Goods, Fuels and Textiles as will appear from Exh. 4 which contains various terms and conditions that were to be followed by the Company concerned. It, however, appears towards the end 1956 that various complaints about shortage and bad quality of the soft coke imported and supplied came to the notice of the authorities concerned. Explanation was also given by Messrs Hasan Ahmed Limited and it was pointed out by that party that various other people were creating difficulties in the matter of smooth and proper supply. In fact the Chief Inspector, Consumer Goods and Fuels stationed at Ishurdi complained very bitterly against this agent in regard to bad quality and shortage of supply. Exh. 17 (2) (a), dated 31st December 1956, was the report given by the said Chief Inspector in this connection. The learned Special Judge has in this connection pointed out that at a later stage when the Coal Mining and Trading Company was also appointed as agent, they too faced similar difficulties as will appear from their explanation, Exh. 17 (A), dated 24th September 1957. The learned Special Judge in this connection has commented that there is an inherent defect in the procedure. Whatever might be the reasons for bad quality and shortage in supply, the fact remains that this party, namely, Hasan Ahmed Limited, could not satisfactorily do the work.

48. P. W. 2 Nawabzada Hasan Ali has admitted in his own evidence that they had no business for procuring and handling coal previous to this and that they had no experience in that line. This was one of the conditions set out in the tender notice. P. W. 3 Hashem Ali who was a member of the Tender Com mittee says in his evidence that they ignored the requirement of experience, whereas P. W. 4 Mr. Muid Khan is quite sure that past experience must have been considered. He, however, further adds that no past experience could be a bar to a new comer. On a proper comparison of the evidence of P. Ws. 3 and 4, in the face of the admission of P. W. 2 Nawabzada Hasan Ali himself admitted that they had no previous experience, it seems that the Tender Committee members, including P. Ws. 3 and 4, did not apply their minds to the question of past experience. Whatever might be the reason for bad quality and shortage in supply‑whether due to want of experience or otherwise‑there is evidence to show as admitted by P. W. 2 himself that as many as eight complaints including some from the District Magistrate were made against them, and from the evidence of P. Ws. 3 and 4 it also appears that they were more or less guided by Mr. F. H. Chowdhury in the matter of appointment of this agent. P. W. 11 Mr. W. B. Kadri who was then the Secretary of the Department concerned has said that no complaint against Messrs Hasan Ahmed Limited was brought to his notice. In view of the admission of P. W. 2 himself it seems Mr. Kadri's evidence on this point cannot stand in the way of our finding that in fact there were complaints against this firm. P. W. 15 Fazlur Rahman was the Investigating Officer. According to him the fact that there were complaints was not mentioned in his report while asking for sanction. This would suggest that this witness possibly did not apply his mind or had not the proper materials before him to ascertain the position as to whether Messrs Hasan Ahmed Limited were doing the job as successfully as expected. In our, view, whatever might be the intrinsic merit of the appointment of Messrs Hasan Ahmed Limited, the way of their doing the job was not satisfactory.

49. Turning to the question of cancellation of such agency it appears from the evidence of P. W. 2 Nawabzada Hasan Ali that their agency was terminated on or about 10th April 1957. According to P. W. 5 Mr. A. Khair who was then the Deputy Secretary of the Department concerned there was no suggestion for cancelling any agency nor was there any suggestion to grant any agency to Messrs Coal Mining and Trading Company. According to the evidence of P. W. 7 Mr. Monayem who was an Assistant Director of Trade and Commerce at the relevant time Hasan Ahmed's agency was cancelled and the Coal Mining and Trading Company was appointed by the same order, dated 7th April 1957, and no advertisement, was given calling for tenders. P. W. 11 Mr. Kadri who was then the Secretary of the Department concerned suggested as a via media that both parties, namely, Hasan Ahmed Limited and Coal Mining and Trading Company might be given the work in the proportion of half and half. In this connection it may be mentioned that in early 1957 the question of manufacturing soft coke out of steam coal appears to have been raised departmentally at the level of the Provincial Government by Mr. Ruhul Quddus, P. W. 6, who was then the Director of Industries, in his note, dated 12th February 1957. It may be mentioned also incidentally in this connection that the idea of having soft coke out of steam coal was given by the Coal Mining and Trading Company Limited towards the end of 1955 in their proposal as per Exh. A (16) addressed to the Coal Commissioner, Government of Pakistan, but the file as started at the provincial level seems to have been an independent one. In his note, dated 12th February 1957, as per Exh. 9 Mr. Ruhul Quddus recommended that the idea of manufacturing soft coke out of steam coal should be encouraged. He also gave some indication about certain details. This idea seems to have engaged the attention of the various officers and ultimately it was taken up by Mr. Sheikh Mujibur Rahman while acting as a Minister of the Department concerned. By his note, dated 12th March 1957, Mr. Kadri suggested that there should be advertisement for this also and selection could be made and the project finalised thereafter. Upon this note the Minister‑in‑charge, namely, Sheikh Mujibur Rahman gave the following note: "I do not think that this proposal comes under the same category as other industries for which advertisement has been issued. There will be no need for capital machinery and foreign exchange. My idea is to eliminate import of soft coke not abruptly but gradually so that the proposed industrialist can build up his factory to convert hard coal into soft coke to meet the entire requirement of the Province. To achieve this object the present agency for import of soft coke should be cancelled and the applicant Messrs Coal Mining and Trading Company (Pakistan), Limited, should be appointed as the agent on definite condition that he must complete his arrangements to meet the local demand of soft coke by converting imported hard coal within one year failing which Government will review the whole matter. To start the industrial unit, they should get permission to import five hundred tons of hard coal. Action should be taken within tan days. Sheikh Mujibur Rahman, 21‑3‑57. " After this Mr. Kadri by his note, dated 2nd April 1957, referred to certain other details and suggested that 2,500 tons might be imported by Hasan Ahmed Limited and 2,500 tons by Messrs Coal Mining and Trading Company Limited. The Minister's minute, dated 3rd April 1957, indicates that the file concerning the appointment of Hasan Ahmed Brothers Limited was called for. In the subsequent minute, dated 7th April 1957, it is noted by Sheikh Mujibur Rahman that he personally received complaints against Hasan Ahmed Brothers Limited and was not satisfied with the way in which they were working. It is also noted that the papers relating to the Tender Committee were not in the file. The relevant minute is quoted below ire extenso: "Seen the connected papers. (1) I have personally received complaints against the present agents on a number of occasions. I am not satisfied with the way in which Messrs Hasan Brothers Ltd. were appointed agent in 1955 by cancelling the original agency. There is reference about tender and Tender Committee, but these papers are not in the file. Government made inquiries in the file for a copy of the decision of the alleged Tender Committee, but it seems those papers were not sent up to Government and they are not in these files even today. Besides in the letter of appointment Government reserved the right to terminate the appointment at its pleasure and as such I want that the appointment be cancelled accordingly. (2) Messrs Coal Mining and Trading Co. is proposed to be appointed as agent in their place on the same terms and con ditions as were in respect of Messrs Hasan Brothers Ltd. with a view to encourage industrialisation as that party has ventured to invest money to set up a factory by which we can save foreign exchange and the agency is to be given to them for encouraging industrialisation as the quantity to be imported will gradually go down in inverse proportion to increase of production in the factory, and it is expected that in course of one year there will be no import of soft coke. Besides adjustment of quantities between hard coal and soft coke will be constantly changing, and it will be possible if the matter is dealt by the same party. (3) In case we are given extra quantity of 2,000 tons, we shall then consider the question of appointing another agent for that quantity. (4) Action may be taken immediately and Coal Commis sioner informed."

50. It may be incidentally mentioned here that neither from this record nor from any other record or evidence it appears that any suggestion was given by any officer for appointing Coal Mining and Trading Company Limited on their own terms as offered in their tender when the appointment of the original agency was under consideration in January 1955.

51. The learned Special Judge has taken the view that by these orders, dated 21st March 1957, and 7th April 1957, as quoted above, Sheikh Mujibur Rahman showed an act of favour to his friend Abu Naser, inasmuch as he was determined to give the agency to him, and the ideas of manufacturing soft coke out of steam coal was nothing but a cloak or camouflage to facilitate his object of giving pecuniary advantage to his friend Abu Naser. The point which directly arises in this connection is as to whether, in fact Sheikh Mujibur Rahman was motivated with the idea of giving something by way of pecuniary advantage to his alleged friend Abu Naser.

52. It will be relevant also in this connection to refer to the grant of lease in respect of the peat mining operation in the Gopalganj Sub‑Division. It also appears that while the matter of manufacturing soft coke out of steam coal was engaging the attention of the Department concerned, matter of peat mining operation in Gopalganj Sub‑Division was also engaging the attention of the Government at the relevant time. It appears from the minute of the Minister concerned, namely, Sheikh Mujibur Rahman, dated 4th February 1957, that Messrs Coal Mining and Trading Company Limited approached him for lease of, ten square miles of land for mining peat in Gopalganj Sub -Division. The relevant minute is quoted below: "Messrs Coal Mining and Trading Company (Pak.) Ltd., Narayangarj, has approached me for mining lease of ten square miles of land for mining peat in Gopalganj Sub‑Division. I would like to grant them this lease provisionally so that they take preliminary actions for starting mining operations in the area. The party may be inf6rmed accordingly. As soon as the proposed Mining Bill is enacted and rules framed thereunder; formal ordei should be issued and deeds executed accordingly. The peat area of Gopalganj should now be notified as mining area and other necessary actions taken to facilitate mining operations in this area."

53. It appears on a reference to the said file in question being File No. 4L‑68/58 containing Exhs. 10 and 11 series that two applications were made to the Director of Mineral Con cessions, Government of Pakistan, Karachi by Messrs Coal Mining and Trading Company Limited, Narayanganj, in December, 1955. The area involved in this case was within five square miles. It was pointed out by Mr. Kadri in his note dated 13th March 1957, that the Central Mining Act had not yet been repealed or amended by the Central Government nor an Act of the Provincial Legislature enacted to enable the Provincial Government to exercise powers in regard to the granting of leases, mining concessions, etc., and that there was no technical staff yet to handle these cases. It was further pointed out, that a Bill was on the anvil and that legal powers to grant mining leases or concessions would accrue to the Provincial Government as soon as it was passed. The Secretary also suggested that formal grant of lease and signing of contract would, therefore, have to pend until the Act was promulgated. The Minister, namely, Sheikh Mujibur Rahman in his minute, dated 21st March 1957, recorded in the following manner: "The lease may be granted to Messrs Coal Mining and Trading Co. (Pak.) Ltd. Government of Pakistan be requested to depute an officer here to work out the details and finalise the lease immediately under submission of this Government." The provisional permission of the Provincial Government for the grant of the said mining lease seems to have been conveyed by an order of the Department concerned, dated 25th March 1957, as per Exh. 11 (a). It also appears from Memo. No. 677‑Ind. dated 26th March 1957, (Exh. 11) issued by Mr. A. Khair, Deputy Secretary to the Government of East Pakistan to the Secretary to the Government of Pakistan, Ministry of Industries, Karachi, that request was made for sending a suitable officer acquainted with the rules, technicalities and procedures for the grant of such lease to help the Provincial Government in the matter of finalising the said lease for a few days.

54. It thus appears that while Sheikh Mujibur Rahman passed an order on 21st March 1957, proposing the cancellation of the agency of Hasan Ahmed Limited and appointing Messrs Coal Mining and Trading Company Limited in their place, he also passed an order in favour of the said Coal Mining and Trading Company indicating that lease for peat mining operation should be granted in favour of the same party.

55. The question that now arises is as to whether in view of this kind of orders which resulted in the appointment of Messrs Coal Mining and Trading Company Limited in regard to the procuring and handling the agency after termination of the existing agent Hasan Ahmed Limited and also in according permission to the said party to manufacture soft coke out of steam coal with an additional order given in favour of having 500 tons of coal and also in giving the same party a further concession in the shape of lease with regard to peat mining operations, could be said to have been prompted or given by Sheikh Mujibur Rahman by abusing his powers for obtaining pecuniary advantage for his alleged friend Abu Naser. A further question arises as to whether the said Abu Naser can be said to have instigated or abetted Sheikh Mujibur Rahman in such kind of action on the part of the latter.

56. According to Mr. Azizuddin the various circumstances culminating in the relevant orders, dated 21st March 1957, and 7th April 1957, would clearly point out that Sheikh Mujibur Rahman was interested in obtaining for his friend Abu Naser some pecuniary advantage in these ways.

57. According to the learned counsel for the appellants, however, all these things as appear from the records can by no stretch of imagination be suggested to have been prompted by any bad faith on the part of the appellant Mujibur Rahman.

58. Mr. Azizuddin on behalf of the State has at this stage raised a contention that the element of mens rea is not relevant for the purpose of holding as to whether an offence of criminal misconduct can be said to have been committed by the delinquent concerned. In other words, his contention is that whatever might be the motive of Sheikh Mujibur Rahman the fact that the impugned orders resulted in securing for Abu Naser a pecuniary advantage or a valuable thing would be enough for purpose of holding that he committed the offence within the meaning of section 5 (1) (d) of the Prevention of Corruption Act II of 1947.

59. Mr. Suhrawardy on the other hand contends that mens rea or criminal intention is the sine qua non of an offence of this nature. He contends that the language as employed in clause (d) of section 5, subsection (1) of the Prevention of Corruption Act, 1947, clearly indicates that the delinquent concerned must behave in a manner which would appear to be preverse, and as such, must also appear to be a misuse of his position as such.

60. It is not disputed by the learned Advocate for the State that clauses (a), (b) and (c) of section 5 of subsection (1) of the Prevention of Corruption Act, 1947 (Act II of 1947) do not seem to have dispensed with the necessary constituent element or ingredient of mens rea. He, however, contends that clause (d) of the said Act as quoted above should be and can be interpreted independent of the other clauses, and the language, according to him, would show that the very fact that a particular pecuniary advantage has been secured would indicate that the officer concerned has abused his position. On the other hand, Mr. Suhrawardy has contended that the word "abuse" must not only mean wrong use but also preverse use of his position. Mr. Azizuddin has referred to the principle enunciated in the case of Daluram Bahani v. The State (P L D 1958 Dacca 188) to the decision of which one of us was a party and has contended that in order to prevent corruptions and to make more effective provisions for the prevention of bribery and corruption the Legislature should be deemed to have dispensed with the element of mens rea for an offence of this nature just as in statutes relating to food offences the Legislature seems to have dispensed with the same. The case of Daluram Bahani arose out of violation of certain prohibition in relation to offences under the East Bengal Essential Foodstuffs Anti‑Hoarding Order, 1956 read with that of Central Ordinance X of 1956. It is well‑settled, as indicated fn certain passages of Halsbury's Laws of England quoted in that case, that where a statute absolutely prohibits the doing of an act and apparently dispenses with mens rea, it has been stated that the doing of the act itself supplied the mens rea. Usually in case under statutes affecting food offences some limit is set down which can be followed more or less in a mechanical process. The subject has got clear indication that such and such standard is required to be followed for the purpose of his guidance. If for example the law requires that a person must not keep in his store any quantity of rice in excess of 20 maunds then it does not require a great measure of application of one's mind as to what should be the limit beyond which one cannot store. If, therefore, the person concerned keeps in his store anything over and above 20 maunds he surely contravenes the limit set down by law, and as such, he cannot complain that he had no knowledge of the law or that he had no intention to cross the limit. In matters like this the Legislature can be said to have dispensed with the ingredient of mens rea indirectly. In the present case, however, it appears that the language indicates that one has to obtain some pecuniary advantage by abusing his position as public servant either for himself or for any other person. The word "obtain" implies and presupposes some amount of effort on the part of the person who means to obtain a thing ; and an effort is never possible without a conscious state of mind. If any person wants to obtain or obtains anything for himself or for others he must be presumed to have made some efforts so that in normal routine course without such effort the thing sought to be obtained might not be available. The word "abuse" in this connection also pre‑supposes that the position held by the public servant is used in a perverse manner and not in a normal way. It also indicates in essence that the public servant concerned moves in the matter unfairly in order to obtain either for himself or for others a pecuniary advantage or a valuable thing. In our opinion, abuse of position may no be necessary if the thing sought to be obtained can be had in normal course, but it comes in when the public servant concerned intends to obtain any valuable thing or pecuniary advantage for himself or for others and for that goes out of his way to help himself or his friend. A sense of unfairness on the part of the public servant seems to be essential and want of good faith must be one of the conditions in support of the inference that there has been an abuse of the position as a public servant. Otherwise if it were the intention of the Legislature that in a mechanical process a particular officer might be held guilty of an offence of criminal misconduct while discharging his duties normally in good faith, then no officer would be safe from the risk or possibility of being found guilty of criminal misconduct. Not only a Minister but also the Secretary or other officers in any Department of the Government would run the risk of being hauled up for an offence of criminal misconduct although he might have done things in normal course of his duties with the best of motives and to the best of his conscience and without any unfairness whatsoever. On the other hand, on a reference to the other parts of the same section, as conceded by the learned Advocate for the State, it appears that criminal intention or mens rea is an essential ingredient for the purpose of holding a man guilty or otherwise. (There is no reason as to why the Legislature should think otherwise while laying down the fourth clause, namely clause (d) of section 5 (1) of the Prevention of Corruption Act). If the Legislature really intended that for the purpose of clause (d) mens rea should not be a necessary con stituent element, then the Legislature would have made it more clear by using other suitable expressions on a construction of which it might be inferred that the Legislature directly or indirectly or by necessary implication meant to dispense with the mens rea. In view of the scheme and structure of the entire section 5 of the Prevention of Corruption Act, particularly in view of clauses (a), (b) and (c) of subsection (1) of the said section, it seems that in each case according to its own facts it has to be judged whether the public servant concerned intended by using his office in a perverse manner to do some favour to a party either for himself or for others, who in a normal course of things might not be able to secure a pecuniary advantage without such attitude or conduct on the part of the Minister or officer con cerned. The language of clause (d) in subsection (1) of section 5 of the Prevention of Corruption Act suggests that the Legislature never intended directly or indirectly or by any implication to dispense with the element of mens rea or criminal intention in regard to an offence of criminal misconduct. In our opinion ordinarily a criminal intention is the sine qua non of a criminal liability, and this is also an essential element to constitute an offence within the meaning of section 5 (1) of the Prevention of Corruption Act, 1947. So it has to be found in the instant case whether there was a criminal intention on the part of Sheikh Mujibur Rahman when he passed orders on 21st March 1957 and April, 1957, which possibly resulted in the pecuniary advantage of Qazi Abu Naser.

61. Mr. Azizuddin has next contended that even if it is found that mens rea is a necessary constituent element for the purpose of criminal misconduct yet from the evidence on record it will appear that there was a deep and close friendship between Sheikh Mujibur Rahman and Abu Naser and that Mujibur Rahmao was interested in securing pecuniary advantage for his friend Abu Naser. This takes us to the consideration of the question of friendship. It has to be considered whether the prosecution has been able to prove beyond reasonable doubt that there was such a friendship between these two appellants as might have induced Sheikh Mujibur Rahman to do these favours to Abu Naser.

62. It does not appear from the records that there is any documentary evidence to suggest that there was a kind of friendship between these two appellants. Mr. Azizuddin, however, refers to Exh. 12, dated 31st December 1956, in which there is a reference that there was some verbal discussion with the Minister‑in‑charge, Abu Naser describing himself as the Managing Agent of Messrs Coal Mining and Trading Company Limited seems to have drawn by his letter, dated 31st December 1956 (Exh. 12) addressed to the Director of Industries, Govern ment of East Pakistan, the attention of the Department concerned, and in this letter he gives a reference to the verbal discussion which he had with the Minister‑in‑charge of the Department of Commerce, Labour and Industries. He does not even give the name of the Minister concerned. This letter, in our view, seems to be more or less in the nature and form of an official correspondence, and that by itself does not indicate that there was any personal friendship between the Minister concerned and Abu Naser. The verbal discussion referred to therein seems to have been in relation to the idea of manufacturing soft coke. It is not unusual that there should be discussion with a popular Minister by various people for various reasons. It is not also disputed that a Minister was open to all sorts of people, and it was more or less a part of his duty to have contacts with various parties in the interest of the State itself. As such it is difficult for us to hold that this document by itself, and in the absence of any other similar circumstance, suggests or establishes that there was a kind of friendship between Sheikh Mujibur Rahman and Abu Naser of such a high degree that the former was prompted with an idea of helping the latter.

63. Mr. Azizuddin has then referred to the oral evidence of P. Ws. 13 and 14 in this connection. P. W. 13 Mr. Khorshed Alam aged about 33 years is a Clerk in the office of Narayanganj Pakistan Jute Association. His evidence is that he knew the appellant Sheikh Mujibur Rahman from before Independence while residing in Calcutta. He saw Mujibur Rahman visiting appellant Naser's residence at 112, De‑Lisle Road, Narayanganj, in 1954 before the General Election ; also thereafter on about four or five occasions before and after he became a Minister. He has also said that he saw Ruhul Quddus, C.S.P., while acting as a Director of Jute Prices at Narayanganj taking lunch at Abu Naser's residence on many occasions. In cross‑examination it was suggested that he was forbidden by the appellant Abu Naser to do an act of abducting a girl for which he and his cousin were arrested and ultimately discharged. He has denied this suggestion. The relevant part of his evidence is that he saw the appellant Sheikh Mujibur Rahman visiting appellant Naser's residence in 1954 before the General Election, and also thereafter on four or five occasions. Admittedly, during the period commencing from 31st of May 1954, till 11th of December 1954, Sheikh Mujibur Rahman was in the custody of the Government for various reasons. Nevertheless the witness in his cross‑examination tried to confirm his evidence by saying that he saw Sheikh Mujibur Rahman after General Election in 1954 up to February 1955. To our mind it seems he wanted to convey an idea that occasionally he saw the appellant Sheikh Mujibur Rahman not only before the General Election in 1954 which took place some time in March but also after that period up to February 1955. There is no suggestion anywhere that after the General Election he saw Sheikh Mujibur Rahman only during the months of January and February 1955. On the other hand, whatever suggestion seems to be reasonable from his evidence is that he must have seen Sheikh Mujibur Rahman also during the period when he was in the custody of the Government. This seems to be a pointer to the fact that this witness was probably not sure of what he was going to depose. It seems he was trying to support the prosecution case somehow or other, and was not very much interested in giving out a clear and correct picture of whatever he might have known in this connection. His other evidence that Mr. Ruhul Quddus was seen taking lunch on several occasions in the residence of Abu Naser is not corroborated from any other quarter. It thus appears that the testimony of this witness cannot be accepted as a very reliable or dependable piece of evidence. The evidence of P. W. 14 Mr. Rahim Newaz Chowdhury, a business man residing at 73, DeLisle Road, suggests that he saw Sheikh Mujibur Rahman visiting Naser's office before he became a Minister. He also says that he saw Sheikh Mujibur Rahman once visiting the residence of Naser after his success at the election when Naser threw a dinner party to Mr. Suhrawardy, Mr. Nuruddin and others. In the cross‑examination he says that he saw Sh. Mujibur Rahman only once in the house of Naser. He further says that he stated before the Investigating Officer that he saw Sheikh Mujibur Rahman at the office of Naser. This is, however, contradicted by the Investigating Officer P. W. 15 according to whom P. W. 14 did not state that he had seen Sheikh Mujibur Rahman in the office of Abu Naser. This part of the evidence which suggests that he saw Sheikh Mujibur Rahman in the office of Naser cannot, therefore, be accepted. Although the Investigating Officer P. W. 15 Fazlur Rahman in his evidence says that P. W. 14 stated that Sheikh Mujibur Rahman frequently visited the residence of Naser yet P. W. 14 himself says that he did not tell the Investigating Officer that he saw him visiting Naser's residence frequently. So the evidence suggesting that Sheikh Mujibur Rahman was seen visiting Naser's residence frequently cannot also be accepted. The net evidence of this witness P. W. 14 which can be accepted in regard to the fact of his seeing Sheikh Mujibur Rahman only once in the house of Naser in connection with a dinner party given to Mr. Suhrawardy, Mr. Nuruddin and others. This by itself can hardly suggest that there was a deep friendship between Naser and Sheikh Mujibur Rahman. He was one of those invitees for whom the dinner party was given. Unless there is anything more significant by way of evidence, it is difficult for us to hold that the dinner party was given in honour of Sheikh Mujibur Rahman as the chief guest. On the other hand, the probability is that the dinner party might have been given in honour of other big personalities such as Mr. Suhrawardy.

64. Be that as it may, P. Ws. 13 and 14 do not corroborate each other ; nor is their evidence corroborated from any other quarter. Whatever these witnesses say are in the nature of circumstantial evidence, and it is difficult on such evidence alone to hold that there was a deep‑friendship between Sheikh Muiibur Rahman and Naser. It may not be out of place to mention here that Naser is an Indian National and there is no evidence of direct relationship or connection as between them.

65. The question that next arises is as to whether in fact Mujibur Rahman acted while giving the impugned orders contrary to the rules and office procedure, and as such, whether he acted illegally in this connection.

66. The learned Special Judge has found that the impugned orders were passed by Sheikh Mujibur Rahman in flagrant violation of financial rules and normal official procedures despite serious objections of the Secretary of the Department concerned. It is in evidence as stated by P. W. 4 that in all contracts of over Rs. 2,500 it is compulsory to call for tenders. Apart from the question as to whether such a rule has the authority and force of law as having been framed under the authority of the Constitution or of the Government of India Act, 1935, it seems to us that such a provision in the rule is not attracted in cases of handling agencies which are granted to parties and for which remuneration is paid on commission basis. There is also no evidence to suggest that any such rule was placed before Sheikh Mujibur Rahman, while he was about to pass an order in favour of the Coal Mining and Trading Company Limited. On the other hand, P. W. 11 who was then acting as the Secretary suggested by way of compromise that the subject of agency might be divided in the proportion of half and half between Messrs Hasan Ahmed Limited and Messrs Coal Mining and Trading Company Limited. If there were any such rule which would surely stand in the way of giving an appointment straightaway without calling for tenders, it was the duty of the Secretary concerned to place that thing before the Minister concerned. It is difficult to think that while the Secretary omits to refer to the relevant rule, the Minister who is more occupied than the Secretary on various accounts dealing with numerous parties in connection with diverse matters, should be able to find out the relevant rules in this connection. We do not think that even if there was any rule which might cover a case like this it was violated or contravened knowingly by the Minister concerned; nor do we think that if any such rule, which according to the opinion of the Department concerned would be relevant for consideration while appointing Messrs Coal Mining and Trading Company Limited as the agent in lieu of Messrs Masan Ahmed Limited, were placed before the Minister he would in utter disregard of the same pass the impugned orders. It is difficult for us to think that if a rule which is attracted according to the nature of the case even though placed should be ignored altogether without any reason whatsoever. In the absence of any such rule being placed before the Minister the question that now arises is as to whose individual opinion should prevail ; whether the opinion of the Secretary should be accepted as the most reasonable course or the opinion of the Minister should be taken as suitable in the circumstances of the case ? For the purpose of considering as to whether an offence of criminal misconduct was committed it will be relevant to determine whether the Minister concerned, namely, Sheikh Mujibur Rahman was prompted by an act of bad faith which might amount to abuse of his powers. There is evidence of P. W. 11 Mr. Kadri himself that a Minister can override the Secretary subject to the rules. There is further evidence that rules of business had not been framed under the late Constitution. In the absence of such rules, it was up to the Minister to accept or not to accept according to his best judgment, the suggestion or any personal or individual opinion of the Secretary. It is not disputed that a Minister is charged with the framing of policies for the purpose of administration of the State. As such he has got a wider role while carrying out his duties. According to the late Constitution he was responsible not only to the Governor but in a way also to the people. It was, therefore, quite possible that a Minister could take an independent view of the entire matter. If there has been any objection from the side of the Secretary and if that objection has been accepted, that by itself, in our opinion, cannot indicate that a Minister was actuated with a questionable motive. In this connection the note of P. W. 4 Mr. Muid Khan as Financial Adviser given on 18th September 1957, as per Exh. 7 indicating that the appointment of Coal Mining and Trading Company with regular procedure inasmuch as tenders were not called in that connection, may be suggested to be relevant, but from the subsequent note of Mr. D. K. power, dated 19th September 1957, who was then in charge of the Finance it appears that although he agreed with P. W. 4 Mr. Mud Khan yet he pointed out that there was no set procedure for such a matter. It will not be out of place to mention here that Messrs Hasan Ahmed Limited were appointed on the basis of the contract, which provided that the agency might be terminated at the pleasure of the Government. Mr. Muid Khan also found nothing wrong so far as the cancellation of that contract was concerned. In regard to the other question as to whether the appointment of Coal Mining and Trading Company could be said to have been mala fide, if not wholly illegal, it may be mentioned that in the absence of any set procedure or rules as indicated above, the Minister concerned might have been thinking, as he was interested in the promotion of Industry that Coal Mining and Trading Company appeared to be a suitable party for the purpose of manufacturing soft coke from the steam coal, and as they might be interested in promoting such manufacture gradually from year to year, the procuring and handling agency if given to them might also help to tiding over the initial financial difficulties of this new venture. It might also be in his mind that Coal Mining and Trading Company would be interested in reducing the import of soft coke as they would be interested in increasing the manufacture of the same from out of steam coal. It is not for us in this case to consider whether such reasonings on the part of the Minister concerned were wholly legal or otherwise appropriate. What we are to consider is as to whether there might be bona fide plausible reasons which probably weighed with him in the matter of selecting a party like Messrs Coal Mining and Trading Company Limited for the purpose of giving the agency. It may only be mentioned that the Minister might have thought that this kind of arrangement would possibly promote the cause of industry, and such a hypothesis cannot be said to be unsound in the circumstances as indicated above.

67. The question which next arises is as to whether the idea of manufacturing soft coke as given by Abu Naser repre senting his firm Messrs Coal Mining and Trading Company Limited was a mere hoax, and whether Sheikh Mujibur Rahman knowing that it was nothing but a mere hoax gave this agency to Abu Naser or his firm.

68. It appears that the idea originated as early as 6th December 1955, when the proposal was made by the Coal Mining and Trading Company as already stated. The proposal is contained in Exh. A (16). It also appears that ever since the Coal Mining and Trading Company Limited failed to secure the agency in the hands of the Tender Committee there was no other movement in that connection on the part of Abu Naser excepting that in the month of March 1955, he approached P. W. 2 Nawabzada Hasan Ali for doing the business as a sharer thereof. There is no evidence that ever since the expiry of March 1955, Abu Naser was still moving and trying for securing the same agency directly or otherwise. On the other hand, as late as 12th of November 1956, Abu Naser seems to have given a reminder to the Minister concerned about his proposal, and this reminder is contained in Exh. A (18). It is also in evidence that on 31st December 1956, as already stated Abu Naser gave a reminder of the same matter to the Director of Industries and referred therein to the verbal discussion which he had with Minister‑in‑charge. It was held out that the Government might save Rs. 6 per ton. It may be mentioned in this connection that by this time the matter of manufacturing soft coke became a Provincial subject, and as such, there was nothing wrong on the part of Abu Naser in approaching the Minister concerned. It thus appears that the party concerned was moving in the matter long before the relevant dates when the impugned orders were passed. This firm when apprised of the fact of appointment as agent in the place of Messrs Hasan Ahmed Limited ;

69. As things appear to have taken place, this firm had difficulties in the matter of doing the job of employing agency and their contract was terminated with three months' notice by a notice, dated 4th December 1958, Exh.

19. It, however, appears that before the expiry of the term of the notice the Coal Commissioner, Government of Pakistan, addressed a letter to the Secretary, Commerce, Labour and Industries, Government of East Pakistan, pointing out that the matter was discussed with Mr. A. H. S. Alam, Deputy Development Commissioner, Government of East Pakistan, during his recent visit to Karachi, and he was requested not to proceed in the matter of appointment of agents for lifting soft coke from India until the issue of manufacturing soft coke from steam coal was further discussed with the Provincial Government. It appears from Exh. A (8) and Exh. (9) that a conference was held on 4th March 1959, and Abu Naser attended the conference on invitation. The other invitee Chowdhury and Company did not attend. From Exh. A (9) it ap pears that it was decided in that conference that as an experimental measure a quantity of 100 tons might be given to the Coal Mining and Trading Company Limited for the purpose of converting steam coal into soft coke. In fact by a letter, dated 31st of March 1959, [Exh, A (10)] the Regional Coal Controller requested the Coal Commissioner, Government of Pakistan, for the favour of allotting 100 tons of Grade II steam coal in favour of the Coal Mining and Trading Company Limited for the manufacturing of soft coke. By Exh. A (11) the office of the Regional Coal Controller, Pakistan Secretariat, Dacca, required the Coal Mining and Trading Company Limited to deposit a sum of Rs. 3,200 on account of the cost of 100 tons of steam coal Grade II at the rate of Rs. 32 per ton. This was, dated 29th April 1959. In the letter, dated 24th July 1959, [Exh. A (12)] the office of the Regional Coal Controller, Pakistan Secretariat, Dacca, intimated the Coal Commissioner, Government of Pakistan, Karachi, that one hundred tons of coal as arranged was received in that month, and that the firm, namely, Messrs Coal Mining and Trading Company Limited had finalised all preliminary arrangements such as acquisition of land on lease from E. B. Railway, construction of labour shed, fire bricks and clay and bricks for necessary ovens (Desi Bhatta), water pump, oil engine, etc. By the letter, dated 18th September 1959, [Exh. A (29)] Messrs Coal Mining and Trading Company Limited intimated the Director‑General, Industries, Trade and Commerce, Govern ment of East Pakistan, that they had successfully produced soft coke from the initial quota of one hundred tons of Indian coking coal which was allotted for experimental purpose and was ready for distribution, and the sample of the manufactured soft coke had already been drawn by the Coal Inspector of Khulna under the instructions of the Regional Coal Controller in response to their relevant memo, by their subsequent letter dated 26th of October 1959, [Exh. A‑(30)] it seems they (Messrs Coal Mining and Trading Company Limited) tried to impress upon the Director‑General, Trade and Commerce, Government of East Pakistan, that soft coke had been manufactured from the imported coking coal after considerable expenditure, and that they had no informa tion about fresh allotment for manufacture or further soft coke. It also appears from a letter dated 5th November 1959, Exh. A (13), addressed to Messrs Coal Mining and Trading Company Limited by the Deputy Director, Trade and Commerce, that 80 tons of manufactured soft coke from Singhia in the District of Jessore was directed to be despatched to Messrs Abdur Razzak & Sons at 16, B. K. Das Road, Dacca. These correspondences suggest, rather prove beyond reasonable doubt, that Abu Naser or, for the matter of that, Messrs Coal Mining and Trading Company Limited, were really earnest and serious in the matter of manufacturing soft coke out of steam coal if proper facilities were available. In fact from Exh. 30 which is correspondence that passed between the Director‑General, Department of Supply and Development of Pakistan, and the Director‑General of Industries, Trade and Commerce, Government of East Pakistan, it appears that they took the view that the Coal Mining and Trading Company Limited successfully manufactured soft coke, and the chemical analysis of the sample received indicated satis factory result. What more they wanted was the `economic' of the scheme.

70. All these things would clearly indicate that Messrs Coal Mining and Trading Co. Ltd., or Qazi Abu Naser was serious in manufacturing soft coke, and that he actually set up a plant. P. W. 12 Abdul Jalil Khan says that he did not visit Darsana nor did he go to Singhia to ascertain if any plant had been set up. He also says that he could not ascertain from the files that Naser was asserting that he set up a plant in July 1958, and was asking for bard coal. We feel unable to see any reason as to how, if the relevant files and other office records were properly scrutinised, this fact could not be discovered. The Investigating Officer P. W. 15 Fazlur Rahman says that he applied his mind to ascertain whether Naser had set up a coking plant. He, however, took the view that no such plant had been set up. In further cross‑examination he, however, admits that he ascertained after wards that Naser converted 100 tons of hard coal into soft coke and that the Government had allotted the same to a party. He also says that after submitting the charge‑sheet he came to know that he had set up such a factory. In his evidence he, of course, says that on 27th April 1959, when Qazi Abu Naser was examined by him, he did not state that he had set up a coal coking factory at Singhia in Jessore. He, however, says that he did not ask him at all whether he had set up any such factory. It is curious as to how, if no relevant question is put to a particular man, he should volunteer to make a statement before an Investigating Officer. On the other hand, we are inclined to think that if P. Ws. 12 and 15 took a little more active interest by reference to the files in possession of the Departments con cerned they would have discovered that such a manufacturing concern was not only in progress but had actually been set up, and that the party concerned was waiting for further directions from the Department concerned. If there was still any doubt left in the minds of the officers concerned they could have verified on the spot at least any time before the prosecution started and the alleged offence was taken cognizance of or at least in course of the trial.

71. It also appears that the question as to whether the soft coke manufacturing plant had at all been set up, though a very material circumstance, was not put to the appellants in a direct specific manner, while they were examined under section 342 of the Code of Criminal Procedure.

72. In view of the overwhelming evidence on record, it is difficult for us to agree with the findings of the learned Special Judge, according to whom the idea of manufacturing of soft coke was a mere hoax and the plant of such a concern had never been set up. It is all the more difficult to think, in the face of the records that the proposal being made as early as 6th December 1951, when Mr. Sheikh Mujibur Rahman was not in office and it having received attention at the official level in all possible stages, that Mr. Sheikh Mujibur Rahman, while making orders on 21st March 1957, and 7th April 1957, linking the two things together (i.e. (1) procuring and handling agency, and (2) permission to manu facture soft coke) was in any way actuated by a bad faith or intended to do some favour to Naser, knowing that the proposal of manufacturing soft coke was nothing but a hoax or a mere cloak or subtle device only for the purpose of obtaining or securing pecuniary advantage in the matter of the agency con cerned. We do not also think that the circumstances leading to the impugned orders dated 21st March 1957 and 7th April 1957, cancelling the agency of Messrs Hasan Ahmed Ltd. and appointing Messrs Coal Mining and Trading Co., Ltd. in their place on the same terms, and eventually granting permission to the latter to manufacture soft coke, and granting them provisional lease in the respect of peat mining operation in Gopalganj Sub division cannot be explained except on the hypothesis of guilt.

73. As to the question of appointing Messrs Coal Mining and Trading Co. Ltd., on the same terms as of Messrs Hasan Ahmed Ltd., it may be pointed out that the relevant papers being not before the Minister, it is difficult to suggest that he was actuated by any bad faith in this connection. On the other hand, he simply gave Qazi Abu Naser the same terms at one stage considered to be proper and reasonable in the estimation of the Tender Committee.

74. It may be suggested that the circumstances as set out above, fit in with the theory of deep friendship or intimacy between the appellants culminating in the obtaining of pecuniary advantage over Messrs Hasan Ahmed Ltd., on the pretext of advancing industrialisation. But the other theory that whatever might be in the mind of a business man like Qazi Abu Naser, certainly Mr. Sk. Mujibur Rahman had enough materials before him to think that there was no fair play in the matter of giving the appointment to Messrs Hasan Ahmed Ltd. as early as 16th March 1955, and that there was good reason to terminate the same at the pleasure of the Government in terms of the contract, and to help promotion of industry or saving of foreign exchange by giving the same agency to Messrs Coal Mining and Trading Co. Ltd. in the absence of the tender files is not incompatible with the facts and circumstances of the case, such an alternative theory, in the light of the evidence on record, as discussed above, seems to be more reasonable than the prosecution theory or hypothesis of guilt. It is well‑settled that a conviction mainly on a cir cumstantial evidence cannot be sustained if it is capable of an alternative reasonable hypothesis. See the case of Siraj v. Crown (P L D 1956 F C 123), the case of Fazal Elahi alias Sajawal v. The Crown (P L D 1953 F C 214), and the case of Emperor on the prosecution of Hurjee Mull v. Immam Ali Sircar (8 C W N 278).

75. As regards the offence of abetment said to have been committed by Naser, the only evidence led by the prosecution is that Qazi Abu Naser approached P. W. l Nawabzada Hasan Ali after his failure to get the agency from the Tender Committee. In our opinion, such an approach cannot be characterised as very unusual on the part of a business man. There is no other evidence to show that he was pursuing the idea of getting or grabbing the same agency by some means or the other. In fact, it is not disputed, and the office records bear out, that without any asking Qazi Abu Naser got the agency. In other words, he made no further application for the purpose of getting the agency, and the Minister Mr. Sheikh Mujibur Rahman seems to have suo muto and on considerations already discussed above, gave agency to Messrs Coal Mining and Trading Co., Ltd., or for the matter of that, to Abu Naser.

76. The trial Judge has found, as already observed, that Qazi Abu Naser or Messrs Coal Mining and Trading Co., Ltd., were doing exclusive business ever since Independence. As such, there was nothing wrong in supposing that this party might be a dependable party for the purpose of the agency.

77. Whatever evidence is there, it seems to suggest that Qazi Abu Naser's next move after his failure in getting the agency was in respect of the peat mining operation, and for getting the permission for manufacturing soft coke out of steam coal, Exh. 21 (a), dated 25th November 1955, indicates that he was trying for getting permission or licence for the purpose of peat mining operation.

78. As already discussed, Exh. 12 does not suggest that there was any close intimacy between Mr. Sheikh Mujibur Rahman and Qazi Abu Naser. The orders were passed on 21st March 1957 and 7th April 1957. There is nothing much on record either in the shape of documentary or oral evidence that warrants an irresistible conclusion that Mr. Sheik Mujibur Rahman was being prompted or instigated by Qazi Abu Naser for the purpose of securing the procuring and handling agency after cancelling that of Messrs Hasan Ahmed & Brothers. It is difficult, therefore, to agree with the learned Special Judge that the idea of manufacturing soft coke was a hoax or a mere cloak or subtle device on the part of Qazi Abu Naser just to grab the agency of Hasan Ahmed & Bros. Ltd. It is also equally difficult to agree with the learned Judge that Qazi Abu Naser was the main actor pulling wire from behind, instigating and abetting Sheikh Mujibur Rahman. The agency came to Messrs Coal Mining and Trading Co. Ltd., unasked for. It is difficult to hold that Naser was making sustained efforts to get the agency in the manner as alleged by the prosecution. On the other hand, it appears that he had abandoned the idea as it is usual in a case where out of a number of parties offering tenders after one becomes successful the others soon disappear from the scene and try other normal avenues of fortune.

79. For all these reasons, we are inclined to think that the prosecution has failed to prove beyond reasonable doubt that Sheikh Mujibur Rahman was guilty of an offence of criminal misconduct within the meaning of section 5 (2) of the Prevention of Corruption Act, 1947 or that Qazi Abu Naser was guilty of an offence of abetment within the mischief of that section of the said Prevention of Corruption Act, 1947, read with section 109 of the Pakistan Penal Code. The result, therefore, is that these two appeals are allowed ; the convictions and sentences as passed upon the appellants are set aside, and they are acquitted of the charges levelled against them. We direct that the appellants be discharged from their respective bail bonds. SIKANDAR ALI, J.‑I agree. Appeals allowed.