1988 P Cr (PLP)

It was contended by the learned counsel for the appellant that after the amendment of charge in which section 471, P.P.C. was added, it was necessary for the learned trial Judge to have written. to the Sanctioning Authority for granting sanction to prosecute the appellant under section 471, P.P.C. as well as envisaged by section 230, Cr.P. Code. He has further contended that the sanction order does not show that the Sanctioning Authority had applied mind to the facts of the present case and therefore the sanction was vitiated and the trial of the applicant was illegal. In this connection he has pointed out that the charge-sheet shows that the offence was committed on 29-6-1977 whereas the sanction order in respect of appellant Latafat Hussain shows the date as 26-6-1976 on which co-accused Muhammad Zahid was not even posted at NSC-I Lateefabad Hyderabad. He has further contended that there was no direct or circumstantial evidence to connect the appellant with the alleged crime. Mr. Ali Bux Leghari learned counsel for the State has contended that the sanction order. passed in respect of the present appellant was `defective, but otherwise there was sufficient evidence to prove the guilt of the appellant. I have considered -the contention of the learned counsel and have gone through the R & P of the case. In view of the order which I propose to pass in this appeal it is not necessary to go into detailed discussion of the evidence produced by the prosecution. It is an admitted position that the first charge was framed against the appellant and the co-accused on 16-12-1978 in which there was no charge under section 471, P.P.C. That the amended charge was framed on 6-8-1980 in which section 471 was added while sections 467 and 468 were deleted. In order to appreciate the first contention of Mr. Ghulam Hyder Memon it is necessary to have a look at section 230, Cr.P.C. which reads as under:- "If the offence stated in the new or altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the new or altered charge is founded." The sanction order granting sanction to prosecute the present appellant has been produced as Exh.35. It reads as under Whereas it appears that Latafat Hussain Ghori son of Shafaquat Hussain Ghori in the capacity of National Saving Officer Incharge N.S.O.-II Latifabad and as such public servant on or about 26-6-1976, obtained Paid Discharged National Deposit Certificates bearing Nos. F-142358 to F-142364 of the value of Rs.35,000 from the co-accused Mohammad Zahir and obliterated the discharged seals thereon and re-discharged the said certificates showing payment of Rs.40,950 (inclusive of interest) and thus by falsifying the record and committing forgery misappropriated a sum of Rs.40,950 and thereby committed the offences punishable under sections 477-A, 468, 409, 34 of Pakistan Penal Code and subsection (2) of Section 5 of the Prevention of Corruption Act, 1947 (II of 1947).

2. And whereas the Federal Government on perusal of papers, consideration of the facts and expendiency of the matter, is satisfied that there exists a prima facie case against the accused and he may be put on trial and is pleased under subsection (5) of section 6 of the Pakistan Criminal Law. Amendment Act 1958 (XL of 1958) to sanction the prosecution of the said Latafat Hussain Ghori for the aforesaid offences, or any other offence under any provision of law that the Court may consider fit, in the court of the Special Judge (Central) having jurisdiction in the matter." The bare reading of the sanction order Exh.35 shows that no sanction was granted by the appropriate Government for prosecuting the appellant under section 471, P.P.C. nor the government was approached for necessary sanction in respect of offence under section 471, P.P.C. as envisaged by the provisions of section 230, Cr.P.C. Moreover the date of incident mentioned in the charge-sheet is 29-6-1977 while the date mentioned in the sanction order Exh.35 shows to be 26-6-1976. Even the evidence of P.W. Abdul Qayoom Audit Inspector shows the date of incident to be 29-6-1977 and thus it is clear that the sanctioning authority did not apply his mind to the facts of the case, and that the sanction was granted mechanically and no sanction was obtained in respect of offence. under section; 471 P.P.C. In the case of Abdur Rasheed v. The State P L D 19601 Kar. 251 it was observed by this Court that:- "No extraneous evidence has been given in this case to prove that Mr. Nizamuddin was made aware of the details and of the explanations given by the accused. This order of sanction suggests that some pro forma was sent to him with a draft and he merely signed it. Such sanction is held to be a mechanical sanction and has been disapproved by this Court in Tufail Mohammad's case. In the case of Rasheed Ahmed v. The State P L D 1972 SC 271, it was held by their Lordships of the Supreme Court that; "If a mandatory condition for the exercise of a jurisdiction before a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffers from illegality and is without jurisdiction. After careful consideration of the legal position I am of the view that the sanctioning authority had not applied his mind while granting sanction to prosecute the appellant and no sanction was obtained regarding offence under section 471, P.P.C. which was included in the amended charge, and on this ground alone the judgment of the learned trial Judge is liable to be set aside, without considering the other contentions of the learned counsel. In view of the above discussion I allow this appeal, set aside the conviction and sentence of the appellant, and he is acquitted. He is on bail, his bail bonds stand discharged. However, the prosecution will be at liberty to initiate fresh proceedings against the appellant if they want to, after obtaining the necessary sanction from the appropriate government as envisaged by law. I had allowed this appeal by a short order dated 14-10-1987 and these are the reasons for the same. S.A./L-13/K Appeal accepted.