P L D 1953 Lahore 321 (PLP)

RAHMAN, J.‑-This order will dispose of five Criminal Appeals Nos. 63, 64, 93 94, and 95 of 1953. They have arisen out of three cases Nos. 3/2, 4/2 and 5/2 tried by a Special Judge under the provisions of the Pakistan Criminal Law Amendment Act, 1948 (Act XIX of 1948) (hereinafter referred to as the Act). In the first case, the accused persons were Major F. G. Pinto, Amanat Ali, Muhammad Yunus and Nasreen Gul. In the second case, the accused were the same except that Nasreen Gul was replaced by Maqbool Hussain. In these two cases, Major F. G. Pinto was charged under section 420 and 467 of the Pakistan Penal Code while his co‑accused were tried for the same offences read with section 109 of the Pakistan Penal Code. In the third case, Major F. G. Pinto was the sole accused who stood his trial under sections 409 and 467 of the Pakistan Penal Code. Nasreen Gul was acquitted in the first case. Major Pinto was sentenced under section 420, P.P.C. only to four years' rigorous imprison ment together with a fine of Rs. 8,000 or one year's rigorous im prisonment in default further. Amanat Ali and Muhammad Yunus were awarded sentences of two years' rigorous imprisonment each under section 420 read with section 109, P. P. C. All three were acquitted of the charge under section 467, P. P. C. In the second case, Maqbool Hussain accused was acquitted of all charges, and the remaining three of the charge under section 467, P. P. C. F. G. Pinto was convicted under section 420, P.P.C. and sentenced to four years' rigorous imprisonment together with .a fine of Rs. 8,000 or in default one year's rigorous imprisonment further. Amanat Ali and Muhammad Yunus were sentenced to two years' rigorous imprisonment each under section 420 read with sec tion 109, P. P. C. In the third case, Major Pinto received a sen tence of four years' rigorous imprisonment and a fine of Rs. 8,000 or in default one year's rigorous imprisonment further, both under section 409, and under section 467, P.P. C., the sentences to run concurrently. Appeals Nos. 63 and 64 of 1953 were presented on behalf of Muhammad Yunus, Appeals Nos. 94 and 95 of 1953 on behalf of Major Pinto and Amanat Ali, and Appeal No. 93 by Major Pinto alone. The cases were originally tried by Mr. Muhammad Rafiq, Special Judge under the Act, at Rawalpindi, and he recorded most of the prosecution evidence in the cases. They were later transferred under orders of this Court to Malik Muhammad Aslam Khan, Special Judge. The latter then recorded the state ments of two more prosecution witnesses, examined the accused persons and their defence witnesses and proceeded to judgment. He disposed of the three cases by one consolidated judgment. F. G. Pinto held the rank of Lt.‑Col. in 1949‑50 and was Commanding the Line of Communications Signals Regiment, with headquarters at Rawalpindi. This regiment was assigned the task of construction and maintaining lines of communication in the Azad Kashmir, area. Amanat Ali convict had been working as Canteen Contractor with this regiment and was carrying on business under the name and style of "Messrs G. M. Feroze". The prosecution case in brief was that certain telephone lines were to be constructed both in the Azad Kashmir area and in the border areas of Pakistan by this regiment with poles or ballies supplied from the Azad Kashmir forests on a `No Cost' `or nominal cost' basis and that F. G. Pinto, by an arrangement with Amanat Ali, made a show of purchasing 3000 ballies per three contracts, Exh. P. L., dated the 1st October 1949, Exh. P. D. dated the 20th December 1949, and Exh. P. E. E., dated the 15th May 1950, for 1000 ballies each, and drew payments for the sup plies thus alleged to have been made, whereas he had only utilized the ballies received from the Azad Kashmir area. He is thus said to have defrauded Government and misappropriated the money received, and further to have forged certain documents to facilitate his design. The first two agreements were entered into by Capt. Pinto and G. M. Feroze (Amanat Ali) while the third purports to have been drawn up between Capt. Pinto and one, Wali Khan who, it was suggested by the prosecution, was a fictitious person the actual beneficiaries being Pinto and Amanat Ali. ' The payment made in each case amounted to Rs. 8,

000. These amounts, so far as they pertain to the first two cases, were withdrawn by cheques from the regimental fund, and concerning the third case from the imprest money in the charge of Major Pinto. The defence of the convicts was that the contracts in question were genuine transactions, that the supplies were actually made in pursuance of them and that the payments were made bona fide. The three transactions formed the subject -matter of the three cases mentioned above. Certain objections of a technical nature were taken to tile validity of the trials before us on behalf of the appellants. Tile first contention is that the sanction of the Central Government required for the prosecution of Capt. Pinto, who was a public servant, under subsection (S) of section 5 of the Act, was not forthcoming and, therefore, the Special Judge had no jurisdiction to try the cases. There is a document on the file of case No. 3/2 (Exh. P. U.), which sets out that the Central Government was pleased to accord sanction under section 5 of the Act, to the prosecution of Capt. F. G. Pinto formerly Lt. Col. etc., in the Court of the Special Judge. Along with it, is the document (Exh. P. V.) which also purports to be a sanction order issued by the Government of Pakistan, Ministry of the interior. It recites that after perusing the reports of the investigating officers, examining the facts and circumstances of the case and considering the expediency of the matter, the Governor‑General lead accorded sanction under section 197 of the Code of Criminal Procedure to the prosecution of Capt. F. G. Pinto, formerly Lt. Col. for cheating Government and obtaining ballies of wood by means of forged contracts, for dishonestly disposing of wood belonging to the Government and of furniture made out of Government property by la Dour employed by the Government and for misappropriating Government money in his hand. This document has obviously no bearing on the sanction prescribed by subsection (5) of section 5 of the Act. Exh. P. U. also does not satisfy the requirements of subsection (5) of section 5 of the Act. In an analogous case under the Cotton Cloth and Yarn (Control) Order, 1943, the Privy Council held in Gokulchand Divarkadas Morarka v. The King (A I R 1943 P C 82) that a sanction which simply names the person to be prosecuted and specifies the provision of the Order which he is alleged to have contravened, is not a sufficient compliance with the provisions of clause 23 of that Order. Section 23 of that Order is in pari materia with subsection (5) of section 5 of the Act. Their Lordships observed that in order to comply with the provisions of clause 23 of the order, it must be proved that the sanction was given in respect of the facts constituting the offence charged. It was added that it was plainly desirable that the facts should be referred to on the face of the sanction, but that it was not essential that the sanction should be in any particular form or even in writing. It was further laid down that if the facts constituting the offence charged were not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. Where facts are, not referred to on the face of the sanction nor is it proved by, extraneous evidence that they were placed before the sanctioning, authority, the sanction is invalid, and the trial Court would not be a Court of competent jurisdiction. Such a defect cannot be cured by section 537 of the Code of Criminal Procedure. The position in the present cases is identically the same and the authority, therefore has full force. It was followed by a Division Bench of this Court in somewhat similar circumstances as obtained in the present cases in Criminal Revision No. 48 of 1951, decided on the 8th November, 1951. An affidavit has been filed in this Court by Malik Muhammad Nawaz Khan, D. S. P., Special Police Establishment, Branch Office, Rawalpindi, to tile effect that there was another order of sanction passed by the Government of Pakistan, dated the 2nd February 1952. This was attached to the affidavit, along with a letter purporting to have been written by Mr. Ijaz Ahmad, P.C.S., Administrative Officer of the Special Police Establishment to the Under Secretary to the Government of Pakistan, Ministry of Interior, Home Division, Karachi, pointing out that the sanction order dated the 2nd February 1952 was defective and praying that a fresh sanctioning order may be issued. The affidavit sets out that the two sanctioning orders were treated as one sanction under section 5 of the Act and were filed along with challan No. 1, as was evidenced by the acknowledgment of the ahlmad of the Special Judge's Court in the receipt dated the 24th April 1952 (attached). Malik Muhammad Nawaz Khan further declared that he was examined as a witness on the 22nd December 1952 in Challan No.

1. He had tendered the sanction orders in evidence along with the sanction received under section 197 of the Code of Criminal Procedure. Later on, the sanction dated the 2nd February 1952 seems to have been returned to the prosecution. Even this sanction order dated 2nd February 1952 does not solve the difficulty. The order is to the effect that after perusing the reports of the investigating officers, examining the facts and circumstances of the case and considering the expediency of the matter, the Central Government was pleased to accord its sanction to the prosecution of "Capt. F. G. Pinto, formerly Lt.‑Col. etc., foe cheating Government and obtaining ballies of wood lay means of forged contracts, for dishonestly disposing of wood belonging to the Government and of furniture trade out of Government property by labour employed by the Government and for misappropriating Government money in his hand, and thereby committing offences punishable under sections 467, 468, 408, 404 420 and 120‑B., P. P. C., and under section 5 of the prevention of Corruption Act (II of 1947). It is not clear from this order whet her the Government was conscious of the fact that there were three cases to be put in Court and whether sanction was being accorded in respect of all the three cases or not. The letter purports to be signed by the Under Secretary to the Government of Pakistan in the Ministry of Interior and is addressed to the Inspector‑General of Special Police Establishment, Lahore, with reference to his letter No. 3050/Sk/51, dated the 1st August 1951 This letter to the Inspector‑General has not been produced. We asked the Special Public Prosecutor appearing for the Crown in these cases, to procure it for us but he, on enquiry, learnt that this was in the Office of the Inspector‑General, Special Police Establishment at Karachi. In these circumstances, on the present state of the evidence, it is not possible for us to say whether or not the sanction order covered all the three cases out of which these appeals have arisen. The point was not raised before the trial Court, and we would have been inclined under normal circum stances to allow the prosecution an opportunity to lead evidence to show that the sanction in effect pertained to all the three cases. In view, however, of our findings on the two other points taken before us, the matter need not be pursued further. It will be a question for the trial Court to determine, if the Government, in accordance with the order that we propose to pass, decide to have the cases retried. The second objection advanced is that the procedure adopted by the learned Special Judge for the examination of witnesses was illegal, and vitiated, the trials. What seems to have happened is that as certain witnesses were common to all the three cases, when one of these witnesses appeared in the box, his statement was recorded in one case and then a verbatim copy of his state ment was placed on the records of the other two cases, with the addition of such matter brought out in cross‑examination for the special purpose of that particular case. The witness was thus not examined in full in each case. A comparison of the records in the three cases leads to the irresistible conclusion that the complaint in this behalf is well‑founded There is a mechanical repetition of the statements of witnesses in each case down to the cross -examination and re‑examination stage and even the corrections made in the statements of some of the witnesses are identical. Reference in this connection may be made to the statements of Major Basharat Ullah, Jamedar Sakhi Muhammad Jemendar Nur Din, Jamedar Taj Din and Abdul Ghani P. Ws., in the three cases. The question arises whether this procedure which was not sanctioned by the Code of Criminal Procedure, imported a mere irregularity or an illegality into the trials. We are disposed to hold that the procedure adopted was illegal and not merely irregular. The decision of a Division Bench of this court in Allu and others v. The Crown (I L R (1923) 4 Lah. 376) is an authority in support of this view. That case pertained to a fight between two parties who were tried in cross‑cases. One of the accused, in reply to a question by the trial Judge, said that lie wanted the prosecution witnesses in the cross‑case to be treated as defence witnesses in his case. The other accused followed suit. The counsel acquiesced in this procedure praying that the assessors should not be questioned as to their opinion till both the cases had been heard. Similar statements were made by the accused in the cross‑case. Arguments were then heard in the two cases and, after taking the opinion of the assessors, were decided by one composite judgment. It was held that the procedure adopted was a serious departure from the usual and proper course and the fact that the prisoners and their counsel had consented to it could not give it a legal sanction. It was further laid down that section 537 of the Code of Criminal Procedure could not cure such a defect which consisted of an infringement of a statutory requirement. The trials were prohibited to the mode in which they were conducted and were, therefore, illegal. In another case, Forde, J., sitting in Single Bench in John Thomas Lyme v. The Crown (A I R 1924 Lah. 17) took a similar view. In that case after seven witnesses for the prosecution had been examined, the case for the Crown was closed, the cross -examination of the witnesses having been reserved. The case was adjourned to the next date when the prisoner claimed to be tried by jury, as a European British subject, under the provisions of section 451 of the Code of Criminal Procedure. The proceedings were accordingly stayed to enable proper steps to be taken in compliance with the section. On a subsequent date the remaining witnesses were duly examined by the prosecution and cross‑examined by counsel for the defence. As regards the seven witnesses who had already been examined by the Crown, the course adopted was as follows. When each witness came into the box the recorded statement of the evidence given by him at the first hearing was read out to him. A few further questions were their put to the witness and he was tendered for cross‑examination; some witnesses were not even sworn. It was held that this method of presenting the evidence was entirely irregular and the defect was not curable by section 337 of the Code of Criminal Procedure. The case is somewhat distinguishable from the present one, inasmuch as the jury in that case had obviously no chance of noting the demean our of the seven witnesses who had already been examined before the jurors were called. Allu's case, however, is an authority which must be regarded as apt in the present circumstances. No authority to the contrary has been cited on behalf of the Crown. It is conceded that the three transactions which formed the subject‑matter of the three cases could not have formed the basis of a joint single trial of all the accused persons involved. The procedure adopted, in effect amounted to a single joint trial, in contravention of the provisions of the Cr. P. C. (Ss. 353 et seq) and the Evidence Act sections 137 and 138). We are, therefore constrained to hold that the procedure adopted by the learned Special Judge vitiated the trials. It was not proper on the part of the learned trial Judge to write only one composite judgment in the three cases. For the purposes of each case he had to confine his attention to the evidence appearing on the record of that case. Although the learned Judge has observed in the course of his judgment that some of the witnesses were common to the three cases he has failed to note that the period of time pertaining to each case was different, and, therefore, the evidence of the witnesses had to be assessed separately in relation to the relevant time for each case. What he has in fact done is that he has taken into account the number of ballies supplied from the Azad Kashmir forests during the period covered by all the three cases, taken together and comparing this quantity with the number of ballies shown to have been expended in constructing the various telephone lines by Pinto's regiment during the joint period, he has derived the con clusion that there was no necessity for Pinto to have resorted to any local purchase as he is said to have done for procuring the requisite number of ballies. Prima facie, there was room for argument on behalf of the accused persons that the number of ballies expended in the communication lines constructed during the period covered by one particular case, exceeded those supplied in that period from the Kashmir forest area. `For instances, in case No. 3/2 the relevant period is 1st September 1949 to 26th January 1950. The document Exh. P. M. would seem to show that for the supplies made before February 1950, a bail on account of 589 ballies only, was submitted by the Azad Kashmir authorities on No cost' basis. There are corresponding entries in the cash book Exh. P.N. The bill for these ballies is Exh. P. H. dated the 30th November 1949. The monthly statement Exh. P./M. for February 1950, shows that 449 ballies were supplied further. The relevant bill is Exh. P. J. dated the 6th March 1950. That would apparently go beyond the period covered by the case. The ,Mirpur‑Kotli line was completed, according to the evidence of Jamedar Sakhi 'Muhammad (P.W. 13) and the recitals in Exh. P. T., by the 21st December 1949, and on this line alone, 723 ballies were utilized. As against this, there is also the evidence of Sultan Muhammad (P. W: 17) to the effect that some 500 ballies were received from the Pulandri forest area under authority of the Divisional Forest Officer, dated the 11th January 1950. Those supplies had apparently been completed before the end of January 1950. It was suggested on behalf of the prosecution that the supply of these 500 ballies had also to be accounted for in connection with the first case. But there were two other lines, Jhelum‑Bhimber and Bhimber‑Gujrat, constructed during this period showing an expenditure of 411 and 70 ballies respectively. This quantity taken with 723 ballies required for the Mirpur‑Kotli line, would total up to 1204 and would prima facie exceed 589+500=1089. We have not heard full arguments on this point and we merely mention it for the reason that this aspect of the matter required consideration but it has not been touched open in the judgment of the trial Court. It is clear, therefore, that prejudice may have been caused to the accused by the action of the learned Judge in writing one composite judgment without taking the precaution of discussing the evidence pertaining to each case separately. The judgment as such, consequently, cannot stand. The result is that the cases ought to be retried as there has been no legal trial so far. It was represented to us on behalf of the appellants that they had been subjected to the harassment of a protracted trial and, therefore, no retrial should be ordered. Our attention was drawn to Aminul Haq v. Crown (P L D 1952 (F C) 63) and maulvi Asiruddin Chaudhry v. The Crown (P L D 1953 (F C) 125) in which their Lordships of the Federal Court while setting aside the conviction on account of certain illegalities in the trial did not think it fit to order retrial. We have not heard arguments on the merits in f the present appeals and are therefore, not inclined to force the hands of Government in this respect, even if we have the power to shut out a retrial. We allow these appeals, set aside the convictions and sentences of tile appellants and direct that they be retried. It would ire for the Government to consider whether, they would, in the circumstances of these cases, go on with their trial of these cases or withdraw them. There is no reason why the appellants should continue to a remain in jail for the mistake committed by the trial Judge. We, therefore, order that the appellants be released on bail to the satisfaction of the District Magistrate, Rawalpindi, pending the disposal of the cases against them. A. H. Re‑trial ordered.