P L D 1958 Dacca 167 (PLP)

Criminal Appeal No. 374 of 1956, arises out of Special Case No. 34‑A of 1955. In this case the appellant was charged with having collected two several sums of Rs.31‑4‑0 and Rs 61‑12‑0 from the firm of Abdul Latif & Co., on the 27th of June 1953, and the 25th of May 1954, respectively. Out of this total sum of Rs. 93 the appellant deposited only Rs. 43 in the account of the Union Board and misappropriated the balance of Rs.50 by falsifying the relevant entries in the counter‑foils of the receipts granted to the said firm, as also in the daily drum tax collection book. Criminal Appeal No. 375 of 1956, arises out of Special Case No. 34 of 1955. In this case the appellant is charged with having realized from the said firm of Abdul Latif & Co.. three several sums of Rs. 34‑8‑0, Rs. 17‑12‑0 and Rs. 16‑8‑0 on the 21st of September 1952, 13th of January 1953, and 16th of March 1953, respectively. Again, out of the total sum of Rs. 68‑12‑0 collected by him, he misappropriated Rs. 50 and deposited only the balance and made false entries both in the relevant counter‑foils and in the daily drum tax collection book. Criminal Appeal No. 376 of 1956 arises out of Special Case No. 33‑A of 1955. In this case the appellant is said to have collected two several sums of Rs. 18‑4‑0 and Rs. 20‑12‑0 from the firm of Dawood Haji Ibrahim & Co., on the 11th of August 1953, and the 2nd of January 1954, respectively and misappropriated thereout a sum of Rs. 19‑12‑0 and deposited the balance in the account of the Union Board and in this case also he is charged with having falsified the relevant counter‑foils of the receipts granted to the firm and the relevant entries in the daily collection book. Criminal Appeal 377 of 1956 arises out of Special Case No. 33 of 1955, where also the appellant is charged with having collected from the said firm of Dawood Haji Ibrahim & Co., three several sums of Rs. 26‑4‑0, Rs. 11‑4‑0 and Rs. 24‑12‑0 on the 18th of November 1952, 14th of March 1953, and 8th of June 1953, respectively. Out of this total amount he is said to have misappropriated Rs. 25 and deposited the balance with the Union Board, as also made false entries in the relevant counter‑foils and in the daily collection book. Criminal Appeal No. 378 of 1956, arises out of Special Case No. 32 of 1955. In this case the appellant is charged with having collected a sum of Rs.125 from the firm of A. R. A. G., Ltd., on the 6th of June 1954, and misappro?priated therefrom a sum of Rs. 50, as also falsified the relevant entries in the counter‑foils of the receipts and in the drum tax collection book. The prosecution case against the appellant in all these cases was that since 1951 the Bhairab Union Board had been levying a drum tax within its Union at the rate of four annas per drum for all drums imported by the tperchants at Bhairab, as the said drums used to cause damage to the Union Board roads by being rolled along the said roads due to want of any other conveyance for the transport of the said jrums and that for the purpose of realization of the said tax the appellant as the Head Clerk of the Union Board had been duly appointed and authorised by a resolution of the said Board to collect and realize the said tax. For this purpose the appellant used to be given pr,;nted receipt books containing receipt forms in duplicate. On realization of the tax he had to give a receipt for the same to the party paying the tax by entering the number of drums and the amount of the drum tax realized thereon. This receipt had to be made out in duplicate by the carbon process. The original was made over to the payer and the carbon copy remained on the‑receipt book for the record of the Union Board. ''hereafter the appellant had to enter the amounts so collected by him in a register maintained by the Union Board for the purpose and ;ailed the "drum, tax collection book". The entries, as such, in the original receipt, in the duplicate carbon copy and the daily register had to ce the same in respect of each parti?cular collection The appellant, however, did not comply with this process. His modus operandi for the purpose of misappropriation used to b2 that he did not maintain an exact carbon copy of the original receipt but the carbon copy of the original receipt which be made over to the Union Board contained false entries wherein the amount of 'the tax actually realized was a lesser amount and the number of drums over which the amount was said to have been realized was also correspond?ingly reduced. ' The entries in the daily collection book were also false and showed only the lesser figure shown in the carbon duplicate of the original receipt. In all these cases, the defence of the appellant was that he was in no way responsible for the collections alleged to have been made by him, nor did he issue tie receipts produced by the prosecution nor made the entries in the counter‑foils and the collection register exhibited by the prosecution. He denied that he in any way misappropriated or embezzled any money belonging to the Union Board and asserted that he had been falsely implicated in these cases due to enmity between him and the Ex‑President of the Union Board, one Haji Abdur Rahman. Apart from this, several other legal objections to the validity of the trial, the sanction ::nd even the Criminal Law Amendment Act, 1948, were also taken on his behalf at the trial. In each of these cases, the prosecution endeavoured to establish its case by calling the said Haji Abdur Rahman, who was for over a decade uptil 1955 and at the relevant time, the President of the said Union Board, to prove the employ?ment of the appellant as the Head Clerk of the said Board, the authority given to him to coilect the drum tax and the mode of collection prescribed by the Union Board in respect thereof. This witness also purported to prove the handwriting of the appellant on the various documents exhibited by the prosecution claiming to be well familiar with his writings, having had innumerable opportunities to see the same during the period the appellant was employed under him as the Head Clerk of the said Union Board. In addition to this evidence, the prosecution also in each case called the representatives of the respective firms from whom collections had been made, as also proved the relevant entries in the books of account of the said firms showing payments of the drum tax. In each of the cases, the respresentative of the firm concerned proved that the appellant alone was the person who used to collect the tax and that he was the person who on receiving the tax gave them the original receipt which they also produced. The prosecution also called a handwriting expert to prove that the writings on the receipts were in the hand of the appellant as it appeared from a comparison of the specimen writings of the appellant taken before a Magistrate and the writings on the documents concerned. Apart from these, the other witness proved the sanction grante.‑i by the Provincial Government for the prosecution of the appellant. In some cases, the Magistrate who took the specimen writings was also examined and the investigating officer in the case. Upon such evidence, the learned Special judge was convinced that the prosecution had succeeded in establishing that the appellant was at the relevant times the Head Clerk of the said Union Board and, as such, a public servant that he alone was authorised to collect the drum tax on behalf of the Union Board and that the original receipts and some of the counter‑foils produced by the prosecution as also the entries in the drum tax register were in the handwriting of the appeilant. The appellant was, therefore, found guilty both of having misappropriated the amount and made the false entries in the relevant counter‑foils and in the drum tax collecting register. The learned Special judge also rejected the legal objections that were taken to the validity of the sanction and the trial and the constitutionality of the Criminal Law (Amendment) Act, 1948. Before us also the learned Counsel for the appellant has mainly urged a number of legal objection which are common to all the cases and, hence, we propose to deal with them together. The first objection taken was to the constitu?tionality of the Pakistan Criminal Law Amendment Act. It was contended that it violated the provisions of Article 5 of our Constitution in so far as it attempted to discriminate between a citizen and a citizen. We are, however, relieved from considering this question, as the learned Counsel has ultimately not pressed this ground. The next ground urged by the learned Counsel was that the Union Board had no authority to impose a tax for the import of drums into a particular area and, therefore, even if the appellant was entrusted with the collection of the said tax he could not be said to be doing any act in the discharge of his public duties and, therefore, he could not be tried under the provisions of the Criminal Law Amendment Act. It was pointed out to us that the offence to come within the mischief of the said Criminal Law Amendment Act must be committed by a public servant "as such", that is to say, by a public servant in his capacity as a public servant and not otherwise. In support of this contention the learned Counsel sought to rely upon a decision of this Court in the case of Salimullah Khan v. The Crown (6 D L R 527), where Ellis, C. J., and Zaman, J., held that a cashier of a Central Co‑operative Bank was not a public servant within the meaning of that expression in section 21 of the P. P. C. This decision, in our opinion, has no relevance ‑whatsoever on the point now sought to be made before us. The learned counsel does not dispute that if the tax had been legal and lawfully imposed by the Union Board, the appellant would have come within the definition of a public servant in the 10th clause of section 21 of the P. P. C. In our opinion, the words "as such" in clause (b) of the second Schedule to the said Criminal Law Amendment Act merely indicate that the offence must be one which is committed by the public servant concerned in the purported discharge of his public duties. Thus, in the present case, there can be no doubt that the appellant could not possibly have collected the said drum tax except under the authority given to him by the Union Board and as an officer of the said Union Board. In this view of the matter, therefore, clearly the appellant acted not only in the purported exercise of his public functions as an officer of the Union Board, but in the de facto exercise of those functions in pursuance of the authority given to him by the Union Board. There can be no manner of doubt, therefore, that in the present case whatever was done by the appellant was done by aim as a public servant as such. It would be a dangerous principle to lay down that a public servant is not criminally liable if he misappropriates amounts collected by him for and on behalf of the Government or a public authority if the realisation or imposition ultimately turns out to be illegal or not justified in law. The legality or illegality of the tax or charge levied by the authority concerned could not, in our opinion, determine the scope of employment of the appellant who was clearly an officer whose duty it was as such officer, namely, as the collector of the drum tax, to receive monies on behalf of the Union Board for the secular common purpose of the Union concerned and, therefore, he clearly fell within the ambit of the 10th clause of section 21 of the P. P.C. The argument of the learned counsel, therefore, has, in our opinion, no substance at all. The next contention of the learned counsel was that since there is evidence by P. W. Hazi Abdur Rahman, the President of the Union Board, that for the purpose of the collection of the drum tax the appellant used to be paid a commission on a percentage basis, in addition to his salary, he could not, so far as the collection of the drum tax was concerned, be said to be a public servant. In our opinion, the argument is also~ equally untenable, because the 10th clause of section 21 Of the P. P. C., does not lay down as a condition that the person must be paid on a salary basis. Even if a person gratuitously performed a duty of the nature mentioned in the 10th clause of section 21, he would in our opinion be a public servant pro Canto. If authority is needed for the proposition, we may refer to a decision of the Bombay High Court in the case of Emperor v. Suleman Abba (A I R 1935 Bom. 24), where their Lordships Murphy and Sen, JJ., held that even a servant of a toll contractor appointed under the Bombay Toll on Roads and Bridges Act would be a public servant within the meaning of this clause of section 21, as he would be a person authorised to levy and collect a tax for a secular purpose of any village, town or district. The learned Counsel then attacked the sanction granted in the present case as being not a valid sanction in law. He drew our attention to the relevant portion of evidence of the investigating officer in Criminal Appeal No. 304 of 1956, wherein the investigating officer stated as follows " With my application for sanction, I sent the copy of the F. I. R., the memo., of evidence, the P. P's opinion and a draft sanction order to the sanctioning authority. ?The draft of sanction was made by me and this sanction order (Exh. 6) is a copy of the draft sent by me." From this, the learned counsel argued that since the sanction is the same as the draft put up by the investigating officer, it clearly disclosed that the sanctioning authority did not apply its independent mind to the facts of the case when giving its sanction. It is no doubt true that it has been held that the sanctioning authority must apply its own independent mind to the facts and circumstances of the case to decide as to whether the prosecution should be initiated or not and, if this is not done, the sanction is not a valid sanction. .In the present case however, the sanction itself, as granted, is ex facie regular and sets out the relevant facts constituting the main elements of the offence charged. The evidence which we have already quoted earlier also discloses that some other material necessary for the purpose of enabling the sanctioning authority to matte up its mind was also sub?mitted with the application for sanction. The clerk of the Health and Local Self Government Department, Badiur Rahman, called to prove the sanctions stated that he himself put up all the relevant documents before the sanctioning authority. Upon these facts, we have no reason to doubt that the sanction?ing authority duly applied its mind to the materials so placed before it and upon such materials it granted the sanctions in the present case. The sanctions themselves on their very face show that they are proper and valid sanctions duly made by order of the Government. There is a presumption which attaches to the regularity of an official act. We must presume, therefore, in the absence of any evidence to the contrary, that the authority empowered to grant the sanctions carried out and performed all the ~ duties that were imposed upon it by law in granting the sanctions. Nothing A I R 1935 Bom. 24 has been shown to us from which we can niter that this presumption has been rebutted. In our opinion, therefore, the sanction is in no way defective or invalid. 1'`We have also satisfied ourselves by going through the records that the charge‑sheets in the present cases were exhibited after the necessary sanctions had been obtained., So, no grievance can be made even on that account. (Rest of the judgment not being necessary, tot purpose of this report is omitted).