P L D 1959 (W (PLP)

"Whereas it appears that accused Muhammad Jaffer being a Public servant in Health Department, of Karachi Municipal Corporation, Karachi has acted in a manner that attract provision of S. 409, P. P. C., I, A. R. Khan, Chief Commissioner, Karachi, in consideration of the facts of the case and the expediency of the matter, accord sanction as required by S. 5 (5) of the Pakistan Criminal Law Amendment Act, 1948, as amended by the Criminal Law Amendment Act (XXXVII of 1953) to the prosecution of the said Muhammad Jaffer for an offence punishable under section 409, P. P. C., in the Court of Mr. S. A. M. Ghaznavi, Special Judge, Karachi and appoint Mr. Syed Hassan, Police Inspector, (Prosecution Br.) under S. 5 (6) of the Pakistan Criminal Law Amendment Act for conducting the case in the said Court of Special Judge, Karachi". The contention of Mr. Muhammad Ali Said is that no facts are stated in the sanction and no particulars of the mis‑demeanour are stated and that the mere mention that the appellant has acted in a manner which attracts the provision of S. 409, P. P. C. without any reference to the facts does not make the sanction a valid one. He has relied upon two cases namely Gokulchand Dwarkadas Morarka v. The King (AIR1948PC82=PLD19480C11) and Muhammad Younis v. The Crown (P L D 1953 Lah. 321). The Additional A. A.‑G. who appeared for the State also brought the following cases to my notice. These are P L D 1954 Lah. 37 ; P L D 1955 Lah. 661 ; A I R 1949 Mad. 710 and 1953 Sorashtra

139. Before I go on to examine these cases I would like to reproduce the provision of law relating to sanction in this case. It is section 5 (5) of the Criminal Law Amendment Act XIX of 1948 as amended by Act XXXVII of 1953 the material portion of which is as follows; "Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), or in any other law, the previous sanction of the appropriate Government shall be required for any prosecution under this Act and such sanction shall be sufficient for the prosecution of a public servant for an offence triable under this Act :" The basic authority which has been followed in all the other cases noted above is the one contained in 1948 Privy Council page

82. That was a case relating to an offence under clause 18 (2) of the Cotton Cloth and Yarn (Control) Order of 1943. Section 23 of that order which related to sanction was in pari materia with the relevant provision of Criminal Law Amendment Act as quoted above. The sanction in that case was in the following terms: "Government is pleased to accord sanction under Cl. 23, Cotton Cloth and Yarn (Control) Order, 1943, to the pro secution of Mr. Gokulchand Dwarkadas Morarka for breach of the provisions of Cl. 18 (2) of the said Order." This was a case from the province of Bombay. The trial Magistrate had held that the sanction was sufficient, but he acquitted the accused on the merits of the case. On appeal by the Government the High Court of Bombay convicted the accused. Upon the question as to the sufficiency of the sanction the High Court accepted the view of law contained in two previous decisions of that Court in 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 bad given the sanction in reference to the facts on which the proposed pro secution was to be based, facts which might appear on the face of the sanction, or might be proved by extraneous evidence". They however held that in the case before them 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. On appeal by the convicted person the Privy Council came to the conclusion that the view of the facts taken by the High Court as stated above was not supported by the evidence on record, and they went on to observe as follows: "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 justifi cation 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 presumption is that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it." And they went on to hold as follows: "In their Lordships' view, in order to comply with the provisions of Cl. 23, it must by proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since Cl. 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 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. Nor, in their Lordships' view, is a sanction given without reference to the facts constituting the offence a compliance with the actual terms of Cl.

23. Under that clause sanction has to be given to a prosecution for the contravention of any of the provisions of the Order. A person could not be charged merely with the breach of a particular provision of the Order; he must be charged with the commission of certain acts which constituted a breach, and it is to that prosecution‑that is, for having done acts which constitute a breach of the Order‑that the sanction is required. In the present case there is nothing on the face of the sanction, and no extraneous evidence, to show that the sanctioning authority knew the facts alleged to constitute a breach of the Order, and the sanction is invalid." It is important to note that their Lordships of the Privy Council though they held that it was plainly desirable that the facts should be referred to on the face of the sanction, yet they said that it was not essential since clause (23) did 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 prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. The learned A. A. G. has contended before me that in this case with which I am dealing there was such an extraneous proof. To that I shall come back presently. The case reported as Muhammad Younis v. Crown (P L D 1953 Lah. 321) was a decision of a Bench consisting of S. A. Rahman and Shabir Ahmad, JJ. In that case, the sanction, which was ultimately relied upon on behalf of the Crown was in the following terms :‑ " After perusing the reports of the investigating officers, examining the facts and circumstances of the case and consider ing 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. 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 labour employed by the Government and for misappropriating Govern ment money in his hands and thereby committing offences punishable under sections 467, 468, 403, 409, 420 and 120‑B, P. P. C. and under section 5 of the Prevention of Corruption Act (II of 1947)." The learned Judges did not hold that this sanction was bad as such, but upon the facts of the case they found that it was not clear from the order quoted above whether the Government was conscious of the facts 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 containing the sanction was with reference to the letter of the Inspector General of Special Police Establishment, Lahore, dated the Ist August, 1951, which letter had not been produced in the case. They called upon the Special Public Prosecutor appealing in the case to procure it, but it was found that that letter would be in the office of the Inspector General of Police at Karachi. They, therefore, held in the circumstances and on the state of. evidence that it was not possible for them to say whether or not the sanction order covered all the three cases out of which the appeals had arisen. They further indicated that they would have been inclined to allow the prosecution an opportunity to lead evidence upon the point but in view of their findings on the other two points on which they allowed the appeal, they said that the matter with regard to further inquiry about the sanction need not be pursued further. The decision reported in Tufail Muhammad v. Crown (P L D 1954 Lah. 37) was also of S. A. Rahman, J. (as he then was). In that case the sanction had been granted under section 6 of the Prevention of Corruption Act (II of 1947) by the Director of Agriculture. This gentleman had frankly admitted that he had passed the order of sanction on the basis of a letter received from the Superintendent of Police, Multan, along with which there was a draft sanction order. The order of sanction passed by the Director of Agriculture was a verbatim reproduction of the draft sent to him by the Superinten dent of Police. It was also conceded that no other papers accompanied these two documents, nor had the Director of Agriculture made any other enquiry in the matter. He, therefore, frankly admitted that the sanction for the transaction was wholly and solely founded on the letter of the Superintendent of Police. It was on these facts that the learned Judge held that the Director of Agriculture had accorded sanction in a mechanical fashion and that in the circumstances of the case the purported sanction to prosecute was not in accordance with law. In both the above cases reliance was placed on the Privy Council case, referred to above. With regard to the second case reported in Tufail Muhammad v. Crown it seems to me that it is not directly in point for the purposes of the case in hand, because it is not the contention of the appellant before me that the sanction in this case is bad because the order of sanction had been passed in a mechanical fashion ; the contention is that the sanction in question makes no reference to the facts of the case and that there was no extraneous evidence to prove that the sanctioning authority bad considered the facts upon which the sanction was granted and that, therefore, it was argued that this was a case which was squarely covered by the Privy Council decision, the relevant portions of which have been quoted above. The learned A. A. G. appearing for the State, however, had relied upon the case Muhammad Bashir v. Crown (P L D 1955 Lah. 66) in which Kaikaus, J. had held that if the sanction was there it should be presumed to be valid in the absence of some evidence to the contrary. The case of Tufail Muhammad v. Crown had been cited before the learned Judge, but he distinguished it on the ground that in that case it had been proved by evidence that there were material defects which could not have been brought to the notice of the officer who granted the sanction. Kaikaus, J. further on to say that in the case before him there was nothing to show that there was any such defect in the sanction. He overruled the counsel's argument that it was the duty of the prosecution to lead evidence to show that the officer granting the sanction had in fact applied his mind. The actual sanction was not reproduced in that judgment but I can‑ safely infer that if it had contained no reference to the facts, there would have been a challenge to it on that ground upon the basis of Gokulchand Dwarkadas v. The King and other decisions to that effect. Therefore, in my opinion, this decision is also not in point with regard to the facts of the present case. The two Indian decisions reported as State v. Vipra Chhaganlal Kalidas (A I R 1953 Sau 139) and Ramuni Variyar v. Narayanna Varassiyar (A I R 1949 Mad. 711) were both cases under section 6 of the Prevention of Corruption Act, 1947, and in both those cases the sanction did not contain any reference to the facts constituting the offence. Relying upon A I R 1948 P C 82 it was held in both those cases that the sanction for prosecution was bad. I shall now consider the learned A. A. G's argument that in this case there was extraneous evidence such as was contemplated in the Privy Council case. The learned A. A. G. referred me to the evidence of the investigating officer, Mr. Zafar Iqbal in this case, who stated as follows:‑ " The summary of evidence and other relevant papers were sent to the Government for sanction." The learned A. A. G. contends that though the sanction in this case by itself does not fulfil the requirements of law, yet the evi dence of the investigating officer proves by extraneous evidence that the facts were placed before the sanctioning authority who granted the sanction upon the consideration of those facts. I do not agree. All that we have in this case is a bald statement of the investigating officer to the effect that the summary of evi dence and other relevant papers were sent to the Government for sanction. The order of sanction itself makes no reference whatso ever to any such paper or summary of evidence. There is nothing to show if any papers were in fact placed before the Chief Commissioner for his perusal before passing the order of sanction. The learned Additional Advocate‑General invites me to draw a presumption of the regularity of the official acts in this case. I am afraid, I cannot do so. Since the sanction did not contain any reference to the facts of the case, it was open to the prosecution to lead evidence that these facts were placed before the sanctioning authority either in the shape of a police report or the summary of evidence or some such similar document. They could have produced such a document in Court and proved that it had been placed before the sanctioning authority. I cannot, therefore, draw a presumption in favour of the prosecution when they could have easily led evidence on the point and which they have either withheld or not chosen to produce. In the light of the above discussion the conclusions that I have reached are that a sanction need not be in any particular form. 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 extraneous 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. In view of these conclusions I hold that the sanction in this case is bad in so far as it makes no reference to any facts whatever which constituted the offence of section

409. I further hold that there is no extraneous evidence to prove that the sanction was given in relation to facts upon which the prosecution of the appellant was proposed. The result of these findings is that the whole trial of this case is vitiated for want of a proper sanction. After the arguments had been concluded, the learned A. A. G. suggested that I should give him an opportunity to lead additional evidence in this appeal to enable him to prove, if he could, that the relevant papers were placed before the sanctioning authority and that in fact he had considered them before passing the order of sanction. I am afraid, I cannot agree to this request. The provision for taking additional evidence so far as the Criminal Procedure Code is concerned, is contained in section

428. It reads as follows :‑ " (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons, and may either take such evidence itself, or direct it to be taken by a Magistrate, or, when the Appellate Court is a High Court, by a Court of Session or a Magistrate." In order, therefore, that additional evidence may be taken, the Court itself must think that such additional evidence is necessary. The necessity for taking such evidence must be apparent from the record. The purpose of this provision is not to enable a party who had all the opportunity of giving evidence and which it had not done, to invite the Court to fill up the lacunae. I, therefore, do not think, having regard the circumstances of the case, that. it is a fit case in which the prosecution should be allowed to lead additional evidence, particularly when the request has been made at such a late stage, and even at the time when the request was made the learned A. A.''G. was not certain as to what was the state of affairs preceding the passing of the order of sanction in question. Having thus been constrained to hold that there was no valid sanction for the prosecution of the appellant in this case, I must hold that the trial is vitiated and in fact there was no trial in the eyes of law. I, therefore, set aside the conviction and sentence of the appellant and quash the proceedings of the Courts below. It is a pity that a case involving the alleged defalcation of the funds of a statutory body and entailing a long trial should end like this for want of a proper sanction. I cannot order retrial of the case, but it is open for the authorities, if they so desire, to obtain a proper sanction and proceed according to law. A. H. Order accordingly.