1983 P Cr (PLP)

The three applicants, namely, Ghulam Muhammad, Khan Muhammad end Abdul Aziz, were initially sent up for trial before the Special Judge (Cen tral) for offences punishable under sections 409, 380, 457 and 411, P. P. C. read with section 34, P. P. C. and section 5 (2) of the Prevention of Corruption Act, 1947. On receipt of the charge-sheet, the learned Special Judge made a reference to the Federal Government for grant of sanction to proceed with the trial. It seems that the sanction was not received within 60 days, so that a presumption could be drawn that the Government had not refused the sanction for prosecution of the case. However, the learned Special Judge proceeded to consider the case against the accused and despite the fact that section 409, P. P. C., had been mentioned as one of the offences committed by the accused, the learned Special Judge came to the conclusion that the offence committed was one of theft and not breach of trust, so that he had no jurisdiction to try the said offence for the reasons that the offence committed was not tribal offence under the Criminal Law Amendment Act. On such process of reason, the accused were acquitted on 9th September, 1978. The Federal Government, in the Ministry of Interior, passed the sanction order dated 2nd October, 1980 with reads as follows :-- Whereas it appears that accused Khan Muhammad son of Muhammad Siddique, Boiler Mistry, Concrete Sleeper Factory Pakistan Railways,. Sukkur, as such public servant, on or about 26th May, 1977, at Sukkur, in criminal conspiracy with co-accused Ghulam Muhammad, Angan Mehar and Abdul Aziz committed theft and criminal breach of trust in respect of nine tons of steel bars worth Rs. 90,000 kept in the aforesaid factory which were subsequently recovered by the Police from the house of co-accused Angan Mehar, and thereby committed the offences punishable under section 1208/380? 381/409 of the 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, and consideration of the facts and expediency 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 Khan Muhammad for the aforesaid offences or any other offence under any provisions of law that the Court may consider fit, in the Court of the Special Judge (Central), having juris diction in the matter." On receipt of such sanction, the applicants were once again sent up for trial under sections 489, 380, 457 and 411/34, P. P. C. read with section 5 (2) of the Prevention of Corruption Act. The applicants/accused made an application under section 249-A of the Criminal Procedure Code, seeking an order of acquittal or discharge under the circumstances. The learned Special Judge, by an order dated 10th March, 1982, rejected the applica tion, hence the present Application under section 561-A of the Criminal Procedure Code. Mr. Mirza Muhammad Kazim has initially attacked the sanction on the ground that it was the product of mechanical process and had been granted without proper application of mind. Patently from the sanction, which has been reproduced in the earlier part of this order, it would be very clear that the document is a product of application of mind, as the sanction has been granted after perusal of the papers and consideration of the facts as well as measuring the expediency. The sanction also states that breach of trust has been committed in respect of property worth Rs. 90,000 and even the names of the accused are mentioned. Such a document cannot be considered to be the product of a mechanical process nor can it be said that the sanctioning authority had not applied his mind to the facts of the case. The learned Advocate has further referred to a judgment of a Single Judge in the case of Mahmood Khan v The State (P L D 1977 Lah. 1195). Reliance has been placed on paragraph 6 of the judgment. The said Judgment is clearly distinguishable, because it proceeded on the facts that the sanctioning authority did not even mention the correct amount that had been misappropriated nor had it mentioned the names of the co-accused. This judgment is hardly of any avail to the applicants. The next point that has been urged by Mr. Mirza Muhammad Kazim is that sections 380 and 409, P. P. C. are distinct offences and the grant of sanction for trial of both these offences would indicate that the mind of the sanctioning authority was not clear on the facts of the case. By itself, this argument cannot prevail, particularly in the face of the provision contained in section 236 of the Criminal Procedure Code. It may be mentioned that section 236 Cr. P. C. would come into play at the time of the framing charge after the evidence is recorded or at least the police state ments are perused. The code itself contemplates that in spite of material of being available on the record, even the Court may, in some cases, not certain as to which of the offences has been committed, so that alternate charge is permitted. In such state of law, how could the sanction be rendered invalid merely for the reason that it provides for trial on two charge seemingly distinct. What is more, that section 237, Cr. P. C. provides that a person in spite of being charged for one offence, can be convicted of another offence with which he was not charged on the basis of evidence disclosing the commission of such other offence. On the other hand, the Court of the Special Judge, in spit,- of limited jurisdiction, would be free to convict the accused of any offence which may be found proved against R him, despite the fact that the accused has not been charged under such section. In my view no illegality attaches to the sanction by mere fact of the sanction being for commission of alternate offences or alternate charges. The next argument of the Advocate is that having acquitted the accused on the first charge, he could not have been tried again. This argument also has no substance. In the first case, the lack of sanction did c not confer any jurisdiction on the Court and, therefore, he had been acquitted. In any case no evidence has been recorded in. that case so that the acquittal was not on merits. No other point was raised before me. I see no substance in this petition. Dismissed. Petition dismissed.