P L D 1962 (W (PLP)

KHAMISANI, J.‑The appellant Sher Muhammad has beers con victed under section 5 (2) of Act II of 1947 by the Junior Special Judge, ,Hyderabad, by his judgment dated 11th March 1960 and sentence to surer rigorous imprisonment for 18 months and to pay fine of Rs. 1,000 or in default to undergo rigorous imprisonment for 12 months more. The appellant has filed this appeal.

2. The facts of the prosecution case briefly are that the appellant was Head Munshi to the Deputy Commissioner, at Thatta. Ali Muhammad P. W. 3 required an allotment order in respect of certain shops. The appellant had put an adverse note against Ali Muhammad on 5th May 1956. An approach, therefore, was made by Ali Muhammad to the appellant for a favour being shown to him. The appellant demanded a sum of Rs. 200 as illegal gratification for showing favour to him. Rupees 40 were paid. It was agreed that Rs. 60 more would be paid before the work was done and that after a final order in favour of Ali Muhammad was obtained Rs. 100 more would be paid. Consequently on 29th May 1956, the appellant is alleged to have made a demand for the agreed balance of Rs.

60. The appellant on this very day put a favourable note for Ali Muhammad. On 2‑6‑1956, Ali Muhammad went up to the D. S. P., Special Police Establishment at Karachi and lodged his first information report Exh.

19. The first informa tion report was lodged at Karachi because by that time the appellant had been posted as Head Accountant at Karachi for the purpose of separating the Treasuries of District of Thatta and Karachi. The amount of Rs. 60 was also agreed to be paid at Karachi. Consequent upon the first information report lodged by Ali Muhammad, a trap was arranged. It was laid at 5‑30 p.m. on 2nd June 1956 at the shop of Muhammad Ismail in Baghdadi Quarters in Karachi. Muhammad Ismail has been examined as defence witness No.

3. The amount of Rs. 60 entrusted to Ali Muhammad in presence of mashirs Ali P. W. 4 and Riaz Hussain P. W. 5 under mashirnama Exh. 11 was recovered from the appellant in presence of the same mashirs and mashirnama Exh. 12 was made. Muhammad Akram P. W. 6, the Anti‑corruption Inspector prepared these mashirnamas. After the usual investigation was completed, the papers were submitted to the Deputy Commissioner for sanction. On the sanction being obtained, the appellant sent up to Court for trial.

3. The appellant, when questioned, denied the allegations made against him stated that the money had been foisted on him. He has examined Qamar Din, Beg Muhammad, Muhammad Ismail and Muhammad Yakub as defence witnesses Nos. 1 to 4.

4. A preliminary question raised in this appeal was that the sanction which gave jurisdiction to the Court for the prosecution of the appellant was invalid. Mr. Muhammad Halim, the learned counsel appearing for the Additional Advocate --General was not able to say from the record as to whether the sanctioning authority was the Commissioner, Hyderabad Division or the Deputy Commissioner, Thatta. In order, therefore, to clarify the position, Mr. Muhammad Halim made an applica tion on 16th March 1962 for Mr. Abdul Latif Shaikh, the then Deputy Commissioner of Thatta to be examined as a witness under section 428, Cr. P. C. The learned counsel for the appellant had no objection to the witness being examined. Consequently an order was passed permitting Mr. Abdul Latif Shaikh to be examined as a witness under section 428, Cr. P. C. Mr. Abdul Latif was examined on 3rd April 1962.

5. The statement of Mr. Abdul Latif Shaikh makes it abundantly clear that at the time when the demand for Rs. 200 was made by the appellant and at the time when Rs. 40 were paid to him the appellant was the Head Munshi working under Mr. Abdul Latif the Deputy Commissioner of Thatta District. According to him the Deputy Commissioner was the appointing authority of the appellant. On the day, however, on which the trap was laid and the amount of Rs. 60 was alleged to have been recovered from the appellant he was working as Accountant at Karachi. He was appointed by the Deputy Commissioner on the directions from the Commissioner, Hyderabad Division. It is quite clear that the appointing authority for the Accountant, the post which the appellant was holding on the day on which the trap was laid, was the Commissioner, Hyderabad Division. The appointment of the appellant as Accountant was made by the Deputy Commissioner on the authority from the Commis sioner, Hyderabad Division. It is, therefore, not clear as to whether the sanctioning authority in the case of the appellant would be the Commissioner or the Deputy Commissioner. It has been argued that the Deputy Commissioner, Thatta, would be the sanctioning authority because the demand was made by the appellant in his capacity as Head Munshi. The amount of Rs. 60 was paid to him for favour being shown to Ali Muhammad also in the capacity of the appellant as Head Munshi. Whatever be the position, if the Commissioner was the sanctioning authority then it is admitted that the Commis sioner had not granted the required sanction. If, however, the Deputy Commissioner was the sanctioning authority then his evidence discloses that papers were placed before him for granting sanction against the appellant and he had written letter Exh.

27. Under this letter the Deputy Commissioner had refused to grant sanction. The relevant portion of letter, Exh. 27, reads as under:‑ "The papers are therefore herewith returned with a recom mendation that since the prosecution is not likely to succeed in view of the legal view taken in the above quoted case and the facts mentioned above the matter of sanction for prosecution may be dropped." The Deputy Commissioner, after he sent his letter Exh. 27 refusing to grant sanction, received a letter dated 11th January 1958 from the Commissioner, Hyderabad Division. In this letter the legal position on the basis of which the Deputy Com missioner thought the case would not succeed in a Court of law was explained and the Deputy Commissioner was called upon to re‑consider the matter on merits and decide as to whether sanction for prosecution should be given against the appellant. The relevant portion of this letter is reproduced hereunder: "In view of the facts and the case law discussed above, you are requested to consider the case on merits and exercise your independent discretion uninfluenced by any extraneous considerations and decide whether you should or should not accord sanction for the prosecution of the accused. This case is lingering since 1956 and should, therefore, be decided immediately." It was after this letter was received by the Deputy Commis sioner that he granted sanction for the prosecution of the appellant. It will be advantageous to reproduce the evidence of Mr. Abdul Latif Shaikh, Deputy Commissioner, recorded in this Court. It reads as under: "I was Deputy Commissioner in Thatta from the end of 1955 to May 1958. I know Sher Muhammad. He was Head Munshi in my office at Thatta. He was temporarily transferred as Head Accountant from 1st June 1956 to take over papers from the Treasury Office at Karachi. As Head Munshi I was the appointing authority of the appellant but as Head Accountant the Commissioner was his appointing authority. I appointed him on the orders from the Commissioner as Head Accountant. Re‑called and re‑affirmed. (sic). "The Commissioner wrote to me to appoint Sher Muhammad as Head Accountant on his behalf. I think the Commis sioner has the power to delegate his power of appointing Head Accountant to the Deputy Commissioner. The offence was committed by Sher Muhammad at a time when he was Head Accountant and that the sanction was granted at the time when he was working as `Mohalkar' K. T. Bunder. The Deputy Commissioner is the appointing authority of a `Mohalkar'. The papers came to me for sanction through the Commissioner. I considered the facts of the case against the petitioner and refused to grant the sanction for prosecution. I see a copy of the letter brought on record of the case as Exh. 27 under which I had refused to grant sanction for prosecution against Sher Muhammad. I see Exh. 28 and say that this was the letter which was written by the Commissioner, Hyderabad. I then granted sanction in view of the direction received from the Commissioner, Hyderabad. When I had refused to grant sanction I had considered the facts of the case and decided not to give sanction. I did not consider the facts of the case at the time when I granted sanction after I received the letter from the Commissioner. I did not consider the facts of the case because I did not think it necessary as I had received directions from the Commissioner to grant. Cross‑examination to Mr. Muhammad Hayat Junejo. Sher Muhammad appellant was suspended on 1‑2‑1958." The evidence of Mr. Abdul Latif Shaikh discloses that he had not applied his mind to the facts of case at the time when he granted the sanction. In fact he had not considered the facts at all. According to his evidence, he considered the letter of the Commissioner, Exh. 28, as a direction for him to grant sanction. On his part, he is of the view that he was not inclined to grant sanction. Under these circumstances, the sanction granted is not a valid sanction. Even if it be assumed that the Deputy Commissioner was the sanctioning authority he had granted sanction as according to him on the directions of the Commissioner and as such this sanction will not be the valid sanction in the eye of Law. The sanction being invalid the entire trial founded upon such a sanction would be vitiated. I have, therefore, no option but to accept the appeal of the appellant, and acquit him on the preliminary question of there being no valid sanction for his prosecution.

6. The case started in 1956 and has concluded in 1962. It has taken six years. In spite of this if the authorities concerned are of the view that the appellant should be prosecuted it is up to them to consider whether they should grant a valid sanction for his prosecution. This judgment, however, will not be a bar on a subsequent prosecution of the appellant on the valid sanction being given by the sanctioning authority.

7. The appellant is on bail. His bail bonds stand cancelled and the surety discharged. K. B. A. Appeal accepted.