P L D 1958 (W (PLP)

The applicant preferred an appeal from the order of con viction. The appellate Court has discussed the evidence of the prosecution‑ as well as of the defence, and has referred at several places to the statements according to which the box was opened by the applicant and the dagger and the sword were found from it, but apparently without coming to a definite conclusion whether the box was opened by the applicant and whether the key of the box was produced by him, he diverted his attention' to the trend of the cross‑examination of the prosecution witnesses in order to find out the nature of the defence and the variations traceable in it. These variations in the defence have been brought out by the learned appellate Court in order to suggest that it was not true. After doing this the appellate Court has discussed the evidence of the defence witnesses and finally come to this conclusion :‑ "Neither of the defence witnesses mentions the name of the Pathan who resided with the appellant. Nor does this evidence prove the residence of the Pathan. Nor does it prove that the box which contained the articles belonged to that Pathan. Nor does it prove that the articles were in the box without the knowledge of the appellant." On the basis of these conclusions he dismissed the appeal. The applicant has attacked the validity of the orders of the trial Court as well as of the appellate Court on the grounds that the sanction granted under section 29 of the Arms Act for prosecution of the applicant is invalid, and that the possession of the articles A and B, has not been proved to be exclusively of the applicant because the allegation that the key of the box was produced by the applicant has not been satisfactorily proved. It appears from the judgments of the trial and the appellate Courts that no objection was taken to the validity of the sanction in the lower Courts. An objection to an inference in favour of the validity of a sanction should be taken at the earliest moment, as pointed out in H. H. B. Gill and another v. The King (A I R 1948 P C 128), because the prosecution should have an opportunity of producing evidence to remove such objections of the defence. The learned counsel of the applicant has, however, contended that his objection is supported by the order of sanction as it is on the face of it that he can establish his contentions with the help of the initial burden of proof of the prosecution and' direct evidence of the prosecution on record and that in these circumstances the prosecution cannot have a grievance against the defence if advantage is taken at a late stage of the failure of the prosecution to prove its case fully. He relies on two facts which are on record to support contention that sanction is invalid. Firstly, he relies on the fact that sanction has been granted merely by a signature under a cyclostyled order which contains some blanks which were filled up by the office of the District Magistrate. Secondly, he relies on the statement of Munshi Junaid Alam, P. W. 3, who has proved the order of sanction. His statement is as follows : " I obtained the sanction for the prosecution of the accused from Z. A. Hashimi, District Magistrate, Karachi, vide Exh. 3‑A which bears the signature of Mr. Z. A. Hashimi." No questions were put to him in cross‑examination regarding the facts and circumstances of the sanction. The learned counsel of the applicant contends that the prosecution has failed to discharge the burden which lay on it and has relied in this respect on Gokulchand Dwarkadas Morarka v. The King (A I R 1948 P C 82 : P L D 1948 P C 11). He referred to the following observations of their Lordships in particular :‑ Upon the question as to the sufficiency of the sanction the High Court noticed two previous decisions of such Court, Cr. Appeal Nos. 535 of 1945 and 548 of 1946, by which it had been held that the burden of proving that the requisite sanction had been obtained rested on the prosecution, and that such burden involved proof that the sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based facts which might appear on the face of the sanction, or might be proved by extraneous evidence. The Court accepted this view of the law, but held that in the case of the appellant it had been proved that the facts on which the prosecution was proposed to be based had been before the sanctioning authority when the sanction was given. The view of the Court upon this question appears from the following passage in the judgment of the Court : Sub‑Inspector who attached the cloth has sworn that on 8‑9‑1944 he submitted a report to the District Superintendent of Police asking for sanction to prosecute the accused under cl. 18 (2) of the Cotton Cloth and Yarn (Control) Order, 1943. Subsequently the matter was forwarded to the District Magistrate and the Resolution granting sanction itself refers to the endorsement of the District Magistrate Sholapur No. XIX/4500 dated 8‑11‑1944 : It is true that in his cross‑examina tion the Sub‑Inspector admitted that he had not got a copy of the aforesaid endorsement made by the District Magistrate but his evidence would show that the said endorsement was made in reference to the report which the Sub‑Inspector had forwarded to the District Superintendent of Police as already stated.' This view of the facts is not supported by the evidence on record. There is no evidence to show that the report of the Sub‑Inspector to the District Superintendent of Police, which was not put in evidence, was forwarded to the District Magistrate, nor is there any evidence as to the contents of the endorsement of the District Magistrate referred to in the sanction, which endorsement also was not put in evidence. The prosecution was in a position either to produce or to account for the absence of the report made to the District Superintendent of Police and the endorsement of the District Magistrate referred to in the sanction, and to call any necessary oral evidence to supplement the documents and show what were the facts on which the sanction was given. Their Lordships see no justifica tion for drawing inferences in favour of the .prosecution upon matters on which they withheld evidence under their control. Under S. 114, Evidence Act, illust. (g) the normal presump tion is that evidence which could be and is not produced would, if produced, be unfavorable to the person who with holds it." From the above the counsel of the applicant has sought to infer that, even if there was evidence in the possession of the pro secution with the help of which it could be proved that sanction was given with reference to the facts on which prosecution was proposed to be made, such an inference could not be drawn in favour of the prosecution because there is a presumption of law under S. 114 of the Evidence Act against the prosecution on account of the non‑production of that evidence which could be produced by it. He has supplemented this argument by referring to the following passage which appears in the same judgment a little after the above passage :‑ " In their Lordships' view, in order to comply with the provisions of clause 23, it must be proved that the sanction was given in respect of the facts constituting the offence charged. If is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since clause 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on, the face of the sanction, the prosecu tion must prove by extraneous evidence that those facts were placed before the sanctioning authority." On the basis of these observations he has argued that the burden of proof that sanction was given in respect of the facts constituting the offence charged is primarily on the prosecution, and rests on it independently of any objection of the defence and no objection can be taken on account of delay if fault is found on this score with the evidence of the prosecution. Before finding an answer to these questions, it is proper to examine the precise objection of the counsel of the applicant, The objection, in nutshell, is that the District Magistrate has affixed his signature on a document which was not only a cyclostyled copy but which was filled up by his office and on the face of it shows that the District Magistrate had to do nothing for according the sanction, except writing his name in it. The officer who obtained the sanction has said nothing with regard to what papers were placed before the sanctioning authority and has been content with stating that the signature of the officer could be found on the document. These facts, according to the learned counsel, do not show that the facts constituting the offence with which the applicant has been charged, were before the District Magistrate. The cyclostyled copy contains a statement that a letter was received from the Superintendent of Police and was "accompanied by all relevant papers". What relevant papers were sent with the letter is not mentioned, and as this is a cyclostyled copy, it should not be inferred that in every individual case, all relevant papers would necessarily be sent up. Similarly, there is another statement in the order of sanction which is to the effect that sanction to prosecute the applicant was accorded " for being in possession of" the articles named in the order. No facts of possession are stated. It is no doubt advisable that a description of those articles for the possession of which prosecution is sanctioned, be given in the order of sanction, but if the offence is the possession of such articles, then the facts which constitute the offence are those which constitute such possession. The word "possession" is a general word, which occurs in section 19‑F of the Arms Act, and it is applicable to all kinds of possession. An omission to note the actual facts of the case is to depend on a general expression without referring to the facts of a particular case. Moreover the statement contained in the order of sanction that a letter was received from the Superintendent of Police is in a slight degree inconsistent with the statement of P. W. 3, who has stated that he obtained the sanction he was a P. I., and not Superintendent of Police. It is possible that he went with a letter from the Superintendent of Police and obtained the order of sanction from the District Magistrate, but he has not said so and the alleged letter from the S, P. has not been produced. In these circumstances unless the printed statement contained in the order of sanction is taken to be always true there is room for discrediting such a statement. In Tufail Muhammad v. The Crown (P L D 1954 Lah. 37), sanction was held to be invalid because " the very material circumstance that the money had been found not from the personal possession of the Cotton Inspector but from a book on the mantle piece in a room of his house and that the Cotton Inspector had denied the allegation of having received a bribe as soon as the Magistrate confronted him, was not adverted to", and Rahman, J., held that :‑ " It cannot be said, therefore, by any stretch of interpreta tion that the material facts of the case were before the Director of Agriculture prior to his passing the order of prosecution." This ruling has been distinguished in 4uhammad Bashir v. The Crown (P L D 1955 Lah. 661), and A. R. Masud AM v. The Crown. (P L D 1956 Lah. 81). Both of these judgments are by Kaikaus J., who has pointed out that in Tufail Muhammd's case there was evidence of a witness that "material facts were not before the sanctioning authority." He has observed that that case is not an authority for the pro position that there should be some sort of personal inquiry by the officer granting the sanction and that there is a presumption of law B that official acts are regularly done so long as it is not proved that there was any irregularity in them. The learned counsel of the applicant has argued that this presumption is counter‑balanced by the presumption of law raised by the Privy Council, which is to the effect that withholding of evidence leads to the inference that if it was produced it would have been against the prosecu tion. He has also referred to the following observations of the Federal Court made in Emperor v. Sibnath Banerjee and others :‑( A I R 1943 F C 75 at p. 88), " We have already made reference to the contention that the presumption set out in Illustration (e), to section 114, Evidence Act. viz., that official acts have been regularly performed, attaches to these orders, but before such presumption can arise, it must be shown that the orders are on the face of them regular and conform to the provisions of the rules under which they purport to have been made." If, therefore, the contention of the learned counsel is correct that, on the face of it, the order of sanction is not regular and does not conform to the requirements of law, then the presumption of regularity attachable to the official acts cannot be invoked in this case. The point of the argument is, therefore, reduced to the short question as to whether due to the omission of mentioning those facts which constituted the possession of the applicant, the order of sanction is on the face of it irregular. This question it is to be noted is different from the objection that the sanctioning authority did not apply its mind to the acts of the case. The fact that he signed the cyclostyled order, which was filled up by his office, is no proof of what the sanctioning authority did before affixing his signature on it. It is possible that he looked into the papers and informed himself of their contents and then signed the order, not necessarily because he was lazy, but may be with the purpose of saving the chances of drawing up a faulty order at the spur of the moment. Even those who can accurately and flawlessly draw up an order can make mistakes if they have to write it over and over again without sufficient time at their disposal and without a ready pattern before them. I do not, therefore, think that from the fact alone that it was a cyclostyled order and that it was filled up by the office it necessarily follows that it was signed without the application of mind. To this extent the presumption of regularity which attaches to official acts can be raised to support of the order. The ultimate question, however as pointed out above, does not take the form of absence of the application of mind but of the omission to prove that sanction was given in respect of those particular facts of this case which constituted the offence and with which the applicant was to be charged. These particular facts were that a box was found from the but of the applicant and that, according to the mashirnama, the applicant opened it with his own key and from the box the incriminating articles emerged. They are not mentioned in the order of sanction although according to Gukulchand Dwarkadas's case, the burden was on the prosecution to prove that the sanction was given in respect of these facts. The omission to mention them in the order of sanction could be cured if the prosecution had taken care to discharge its burden and proved by extraneous evidence that they were placed before the sanction ing authority. No question from the defence was necessary. If such are the requirements of law and they were to be complied with by the prosecution then according to the learned counsel, the sanction is on the face of it irregular and the presumption that official acts are regularly done, cannot help the prosecution. There is no doubt a shade of difference between the application of mind by the sanctioning authority to the facts brought to its notice and the proof of the fact that sanction was given in respect of the facts constituting the offence with which the accused is charged. But once it is presumed according to law that the sanc tioning authority applied its mind to the facts of the case, the difference is dissolved and disappears. All that remains of the arguments of the learned counsel of the applicant is that the order was passed on a cyclostyled copy which was prepared before hand and which was filled up by the office. Fortunately for the prosecution, in this case there is nothing of a positive nature to show that the sanctioning authority did not apply its mind to the facts of the case, or that in the present circumstances sanction was not given with respect to the facts constituting the offence, and, therefore, the sanction can be held to be valid with the help of the presumption of regularity of official acts. I may, however, point out that such presumption could be upset by any very slight positive evidence to the contrary. The prosecu tion, therefore, took a risk in preparing cyclostyled copies of the order of sanction without leaving blanks in them for inserting the actual facts which would constitute the offence in a parti cular case. With these remarks I hold that the sanction is valid in law. The other objection of the learned counsel to the prosecu tion case is that the applicant became prejudiced because no question was put to the accused under section 342,. Cr. P. C. regard ing the incriminating circumstance that the applicant had the key of the box, and that it was opened with that key. Two witnesses have deposed in favour of these facts but one mashir has contra dicted them. The trial and the appellate Courts have believes) the two witnesses who have deposed in favour of the prosecution, and I see no reason to disagree with them. Yet it remains a fact that no opportunity was given to the accused to submit his explanation under section 243, Cr, P, C. regarding these, allegations, I cannot hold that the applicant has not been prejudiced on account of this omission, because the judgments of the subordinate Courts definitely indicate that their minds were influenced by this circumstance. The question, therefore, before me is as to what is the fairest procedure to be adopted in these circumstances. The question of acquittal does not arise, and re‑trial might mean further harassment to the applicant. The offence took place on the 10th May 1956. Two years have already passed since then, and retrial may mean another year or more. The applicant has been in jail for twenty‑four days in all. It appears to me that the best course in these circumstances is to reduce the sentence to the period of imprisonment already undergone. I, therefore, adopt this course and reduce the sentence accordingly. Revision is dismissed subject to the above modification of the appellate Court's order. The bail bonds are cancelled. The applicant is already on bail. K. B. A. Revision dismissed.