P L D 1956 Lahore 151 (PLP)

YAQUB ALI, J.‑Zahur‑ud‑Din, an ex-patwari, has been convicted by the Special Judge, Montgomery, of an offence under section 5 (2) of the Prevention of Corruption Act (II of 1947) and sentenced to one and a half years' rigorous imprisonment and a fine of Rs.500 or in default to undergo further rigorous imprisonment for six months. He has appealed and I had the advantage of hearing three senior members of the Bar who appeared for him at different stages in the hearing of the appeal. Mian Hamid‑ud‑Din argued the appeal on facts while Syed Mohsin Shah and Raja Said Akbar addressed me on questions of law. Before I deal with the facts of the case, it would be proper to dispose of the questions of law which were raised after the appeal had been argued on facts. At first Syed Mohsin Shah raised the objection that in consequence of the decision of the Federal Court in Federation of Pakistan v. Moulvi Tamizuddin Khan (P L D 1955 F C 240) the trial of the accused was rendered illegal in so far as the Criminal Law Amendment Act (XXXVII of 1953), in accordance with which the accused was tried and convicted, was passed by an illegally constituted Federal Legislature. The objection rested on the want of assent by the Governor‑General to the Constituent Assembly (Increase and Redistribution of Seats) Act, 1949, whereby the Constituent Assembly had added six members to its personnel. Act XXXVII of 1953 was passed by the Constituent Assembly in exercise of its powers as the Federal Legislature under section 8 (P L D 1955 F C 387) of the Independence Act, 1947, after the addition to its personnel was made rendering illegal all the laws passed by it. I had already dictated judgment in this case and was about to announce it when Syed Mohsin Shah raised this objection and I had to fix this case along with some other similar cases for rehearing on l3th of June. In the meantime the following developments had taken place. The decision in Moulvi Tamizuddin Khan's case was followed by the promulgation of `the Emergency Powers Ordinance (IX of 1955) by which the Governor‑General sought to validate and to give retrospective effect to thirty five constitutional Acts which had been passed by the Constituent Assembly in exercise of its powers as the Legisla ture of the Dominion under subsection (P L D 1955 F C 240) of section 8 of the Indian Independence Act, 1947, which under the judgment in Moulvi Tamizuddin Khan's case had become invalid. The Constituent Assembly (Increase and Redistribution of Seats) Act, 1949, was however excepted from the list of these Acts. By that Ordinance the Governor‑General claimed the power of making by order such provisions as appeared to him necessary or expedient for the constitution of Pakistan and he also repealed or amended certain provisions of the existing constitution relating to the Federal Legislature. The question of validity of section 2 of that Ordinance came before the Federal Court a few days later in Usif Patel's appeal (P L D 1955 F C 387) in which it was held that the validation of the constitutional legislation being itself legislation could only be ‑ effected by the Constituent Assembly and not by means of the Ordinance by the Governor‑General under section 42 of the Government of India Act, 1935. On 15th April 1955 the Governor‑General summoned a Constituent Convention for the 10th of May 1955 for the purpose of making provision as to the constitution of Pakistan and on the following day issued a proclamation assuming to himself until other provision was made by the Constituent Convention such powers as were necessary to validate and enforce the laws that were needed to avoid a breakdown in the constitutional and administrative machinery of the country and to preserve the State and maintain the Government of the country in its existing condition, and in exercise of those powers retrospec tively validated and declared enforceable the laws mentioned in the Schedule to the Emergency Powers Ordinance 1955. These powers were exercised by the Governor‑General subject to the opinion of the Federal Court on certain questions which had in the meantime been referred to it under section 213 of the Government of India Act. This reference was answered on 16th of May 1955, and in the case The Federation of Pakistan v. Ali Ahmad Hussain Shah (PLD1955FC522) decided on 21st of May 1955 it was held that the Governor General had the authority temporarily and retrospectively to validate the laws whose invalidity followed from the judgment of the Federal Court in Moulvi Tamizuddin Khan's case. This completely disposed of the objection raised by Syed Mohsin Shah, because the Governor‑General had by the time this appeal came up for re‑hearing before me accorded A assent to the Constituent Assembly (Increase and Redistribu tion of Seats) Act, 1949, thus validating temporarily and retrospectively all the laws including the Pakistan Criminal Law Amendment Act (XXXVII of 1953) passed by the late Constituent Assembly in exercise of its powers as Federal Legislature under section 8 (2) of the Indian Independence Act, 1947. At the resumed hearing of the appeal, Raja Said Akbar Khan who took the place of Syed Mohsin Shah, however, raised a new question of law attacking the validity of the sanction granted .by the Deputy Commissioner, Montgomery, on 11th of April 1953 under section 6 (c) of Act 11 of 1947, for the prosecution of the appellant. He maintained that on that date Act XIX of 1948 (Pakistan Criminal Law Amendment Act) had already come into force, section 5 subsection (5) of which provided that notwithstanding anything contained in the Code of Criminal Procedure, the sanction of the Central Government shall be .required for the prosecution under that Act of public servants for offences specified in the Schedule or notified from time to time in the official gazette for trial by the Special Judges. All offences punish able under the Prevention of Corruption Act (II of 1947) were included in the Schedule to that Act. It may be noticed that although specific reference was made to the Code of Criminal Procedure in section 5 subsection (5), no mention was made in it of the provisions of section 6 of Act II of 1947. It was not denied that but for the coming into force of Act XIX of 1948 the Deputy Commissioner, Montgomery, was authorised to grant sanction for the prosecution of the accused in this case, but it was maintained that Act XIX of 1948 was intended to repeal, modify and add to the provisions of Act II of 1947 and as such section 6 of Act II of 1947 was pro tanto repealed and the sanction given by the Deputy Commissioner in this case was invalid. This is not the correct position because the amending Act XIX of 1948 did not purport to amend or repeal the provisions of Act II of 1947 but as mentioned in its preamble merely provided for more speedy trial and more effective punishment of certain offences punishable under the Penal Code and certain other laws including Act II of 1947. I feel fortified. in coming to this conclusion because when the Legislature passed the subsequent amending Act XXXVII of 1953 (Pakistan Criminal Law Amendment Act) it was specifically mentioned in it that section 6 of Act II of 1947 shall be omitted. There would have been no necessity to repeal section 6 of Act II of 1947 if the Legislature had already done away with it in 1948. Section 4 of the amending Act of 1948 defines the jurisdiction of Special judges and the cases of which they could take cognizance. Under that section the jurisdiction of a Special Judge appointed under the Act was confined to cases sent to him for trial by the Special Police Establishment or transferred by the Central Government which related to any of the offences mentioned in the Schedule and were pending in any Court or before the West Punjab Special Tribunal. Act XIX of 1948 introduced material changes in the procedure for the trial of offences including those punishable under Act II of 1947. Some of the changes are to be found in the provisions of section 5: notwithstanding the provisions of the Code of Criminal Procedure all cases were to be tried as summons cases ; the accused was not entitled to ask for de novo trial and the Judge was empowered to convict the accused of any offence which from the facts admitted or proved the accused appeared to have committed. Subsection (3) of section 5 of Act II of 1947 provided that in any trial of an offence punishable under subsection (2) the fact that the accused person or any other person on his behalf was in possession, for which the accused person could not satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income might be proved, and on such proof the Court shall presume unless contrary was proved, that the accused person was guilty of criminal misconduct, as defined in that section. Sub section (1) of section 6 of the Amending Act XIX of 1948 laid down that if an accused person had, on or about the time of offence with which he was charged, obtained an accretion to his pecuniary resources or property for which he could not satisfactorily account, might be proved and taken into consideration by the Special judge as a relevant fact in deciding whether he was guilty of a particular offence with which he was charged. Subsection (2) of section 6 added that where in any trial before a Special judge of an offence punishable under sections 161 to 165 P. P. C., it was proved that an accused person had accepted or obtained, or had agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing, or any pecuniary advantage from a person or the agent of a person. . . it shall be presumed unless the contrary was proved, that he had accepted or obtained or agreed to accept or attempted to obtain, that gratification, or that valuable thing or pecuniary f advantage to himself or some other person, as the case might be, as a motive or reward such as is mentioned in sections 161, 162 and 163 of the P. P. C., or as the case might be, without consideration or for a consideration which he knew to be inadequate. It thus becomes apparent that if a person accused of any one of the offences mentioned in the Schedule to Act XIX of 1948 was sent up for trial before a Special judge appointed under that Act he was deprived of certain advantages provided in the Code of Criminal Procedure and the burden on the prosecution to prove its case was consider ably less than in a trial for the same offence before an ordinary Court. It was for this reason that the jurisdiction of the Special judges appointed under the amending Act of 1948 was limited and the sanction of the Central Government was made a pre‑condition for his prosecution before a Special Judge. The passing of Act XIX of 1948, however, did not result in abrogating the jurisdiction of ordinary Magistrates to try public servants for an offence under section 161 of the P. P. C., or section 5 (2) of Act II of 1947. It, therefore, followed that when a public servant was prosecuted for an offence under Act II of 1947 before an ordinary Magistrate he did not suffer from any one of the disadvantages pointed out above and as suc4 he could not claim the benefit of the sanction of the Central Government provided in subsection (5) of section 5 of Act XIX of 1948. The procedure for obtain ing necessary sanction to prosecute public servants before ordinary Magistrates remained the same as laid down in section 6 of Act II of 1947. While this case was pending in the Court of a Magistrate 1st Class, the Criminal Law Amendment Act XXXVII of 1953 came into force. Under this Act, all cases mentioned in Schedule II, which included cases falling under subsection (2) of section 5 of Act II of 1947, stood transferred to the Courts of the Special judges appointed under the amending Act XIX of 1948. Sub‑clause (iii) of clause (e) of section 6 of this Act provided that notwithstanding anything contained in the Code of Criminal Procedure or in any other law, the previous sanction of the appropriate Government (which replaced the term Central Government in the previous amending Act) 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. Proviso to this sub‑clause, however, excepted from its operation cases which stood transferred to the Courts of Special judges by virtue of proviso to subsection 2 of section 4 or under subsection (4) of that section. In view of these provisions in the two amending Acts, the question of the validity of the sanction for the prosecution of the appellant resolved to this: On 11th of April 1953, when the Deputy Commissioner, Montgomery, accorded sanction for the prosecution of the appellant, the provisions of section 6 of Act II of 1947 alone applied to the facts of this case and the provisions of the amending Act XIX of 1948, whereby the sanction of the Central Government was made necessary, had no application Later on when this case stood transferred to the Court of the Special judge under the aforementioned provisions of the amending Act XXXVII of 1953, the necessity of obtaining sanction of the Provincial Government which was the appropriate Government for the purposes of this case was dispensed with. Therefore, the sanction given by the Deputy Commissioner for the prosecution of the appellant; on 11th of April 1953 was quite valid, and the objection raised by Raja Said Akbar Khan also fails. (The judgment concluded with a discussion of facts and dismissal of appeal on merits). A. H. Appeal dismissed.