P L D 1961 Dacca 440 (PLP)

P. W.6. . . . . . I investigated this case and examined witnesses. I submitted a report to the S. D. O. Comilla showing this accused Abdul Jabbar arrested in this case. After comple tion of investigation I submitted charge‑sheet. The case thereafter was withdrawn and made over to the D. A. B. for further investigation. D. A. B. S. I. Md. Ismile (P. W. 5) investigated the case and after obtaining sanction submitted charge‑sheet." Mr. Ali wanted to say that in the absence of fresh investigation and report the Superintendent of Police wrongly relied on old records for the satisfaction required for granting sanction.

11. When the case is sought to be tried by the Special Judge it is true that sanction is the sine qua non for it but there is nothing to debar sanction on the basis of the old materials as they are Fresh investigation and fresh report are not necessary for sanction. All that is necessary is that the sanctioning authority `should apply its mind to the materials before it.

12. Further as rightly pointed out by Mr. Afzalul Huq, the, learned Advocate ‑for the State, the point of sanction cannot be, agitated before this Court at this stage when the opportunity was not taken at the trial Court itself.

13. Mr. Ali has next pressed ground No. 8 of the memo, of appeal which is in the following terms : "For that the accused appellant having once being discharged and there being no fresh materials and no fresh complaint, the prosecution of the accused cannot be proceeded with:" Mr. Ali has cited the decision in Emperor v. Menghraj Devidas (23 C L J 305) of which the facts and decisions are as follows :‑ "A District Magistrate issued an order to the public under section 144 of the Criminal Procedure Code for prevention of a public nuisance in a certain locality within his jurisdiction. The order had not the desired effect, as the nuisance was repeated, with the result that the Police challaned the accused and others before the City Magistrate, for an offence under section 291 of the Penal Code. The case was not proceeded with but after three or four adjournments, the Public Prosecutor, under instruc tions from the District Magistrate, withdrew it under section 494 of the Criminal Procedure Code, and, armed with a fresh sanction from him, filed a fresh complaint on the same facts before another Magistrate under sections 188 and 290 of the Penal Code. Held, that as the withdrawal of the charge under section 291 of the Penal Code amounted to an acquittal under section 494(b) of the Criminal Procedure Code, that acquittal operated as bar under section 403 (1) of the Criminal Procedure Code to subse quent proceedings under sections 188 and 290 of the Penal Code, as fn the trial under section 291 of the latter Code, the accused could have been convicted under section 188 thereof, though not under section 291, and that, therefore, he could not be tried again on the same facts for any other offence of which he might have been convicted under section 237 of the Criminal Procedure Code though not charged with it."

14. That case related to withdrawal of a charge under a particular section of the Penal Code and it was held that the withdrawal of the charge having amounted to acquittal, in the absence of fresh materials there could be no fresh trial on a similar charge. The present is not a case of withdrawal of a charge under any particular section of the P. P. C. but withdrawal of the whole case for the purpose of sanction.

16. Mr. Afzalul Huq cited the decision in Hata v. Emperor (30 C L J 233) in which it was held : "Section 436, Criminal Procedure Code confers an independent power on the District Magistrate to direct any subordinate Magistrate to make further enquiry into any complaint which has been dismissed, or into the case of any person accused of an offence who has been discharged. An order of discharge passed on withdrawal of a case before charge is framed does not amount to an acquittal. A person discharged by a Magistrate on a consideration of the evidence tendered against him and a person discharged at the instance of the Public Prosecutor under section 494, Criminal Procedure Code, are on the same footing." He has also referred to the decision in Hukum Singh v. Emperor through Mst. Champavati (30CLJ1149).

16. Mr. Afzalul Huq has also referred to the decision in Ramananda Lal v. Ali Hossain and others (26CLJ129) of which facts and decisions are as follows :‑ "An order made under section 494 (a) of the Criminal Proce dure Code is an order of discharge of the accused person and, therefore, section 403 does not debar the entertainment of a fresh complaint on the same facts. There is nothing in law to prevent a Magistrate from enter taining a complaint after the discharge of the accused person in a previous police case on the same facts."

17. In the light of the above decisions it is not quite correct to bold that once the accused was discharged he cannot be tried again on the same facts, particularly, in the present case the discharge being not for want of evidence but at the instance of the Court Inspector who made a prayer for the trial by Special Judge after obtaining necessary sanction. Hence, there is no substance in this contention of the learned Advocate.

18. Mr. Ali has next urged ground No. 13 of the Memo. of appeal which is as follows :‑ " For that the learned Judge himself having found "it cannot be said that there is any legal evidence showing any extortion of money by the accused Jabbar", should have held that in the circumstances, there cannot be any conviction of the accused under section 170, P. P. C. On the basis of the shaky evidence of P. Ws. 1‑4 whose evidence so far the charge under sec tion 419, P. P. C. are not worthy of credit." Mr. Ali wants to say that in the face of the acquittal under -section 419, the charge under section 170, P. P. C. is not sustainable, but the two charges are entirely different and section 419 failed only because there was want of clear evidence on that point but if the facts of cheating by false personation fails, it does not follow that the offence for false personation itself and its facilitation must also fail.

19. The second part of section 170 of the Pakistan Penal Code relates to false personation and not fraudulent personation. Any act done or attempted to be done under the false personation is enough. The appellant Jabbar Khan pretended to be C. I. D. Ansar or even Ansar which he was not. On the point of his acti vities there is evidence of P. W. 1 which is as follows :‑ "I saw this Abdul, Jabbar at Palerbazar within P. S. Daud kandi. He used to check and supervise the goods of the dealers at the respective houses of the dealers by describing and posing himself as an Ansar C. I. D. deputed by District Ansar Adjutant." P. W. 2's evidence is as follows :‑ "Arshad used to supervise our stocks. I saw accused Jabbar sitting at the house of our President Serajul Islam. Accused Jabbar one day went to my house to inspect my stock but in absence of any Union Board Member I did not show him the stock. I saw accused Jabbar and Arshad sitting together at the house of our President. Accused Arshad told me that accused Jabbar was a man of his place and also an Ansar . . . . At the house of our President accused Jabbar told me that he was an Ansar C. I. D." Evidence of P. W. 4 is as follows :‑ "Accused Jabbar said that he was an Ansar and used to super vise the stocks at the houses of the dealers named Chakku Adorn Ali and Makbul Hossain."

20. The evidence as disclosed shows that there were some acts by appellant Jabbar Khan. Language of section 170, P. P. C. is as follows :‑ "Whoever pretends to hold any particular office as a public servant, knowing that he does not hold such office or falsely personates any other person holding such office, and in such assumed character does not contemplate to do any act under colour of such offence shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." Language of the section is "does or contemplates to do any act". Supervising stocks surely comes within act. So far as Arshad goes there is evidence of P. Ws. 2 and

3. P. W. 2 " . . . . Accused Arshad told me that accused Jabbar t was a man of his place and also an Ansar." P. W. 3 "Accused Arshad told me that Jabbar was a man of his locality and an Ansar". The evidence as disclosed shows that Arshad had a particular part to play in introducing the main accused to the world.

21. The position being as above, there is no substance in this contention also.

22. Mr. Ali has next pressed grounds Nos. 2 and 3 of the memo of appeal which are as follows:‑ "For that the isolated statements of P. Ws. 1, 2, 3 and 4 hav ing not been corroborated on material points by any other evidence, the learned Judge should have held that the prosecution has failed to prove its case beyond reasonable doubts. For that the P. Ws. 1‑4 having all admitted in their deposi tion "none was with me when Abdul Jabbar told me that he was a C. I. D. of Ansar" or "none was with Abdul Jabbar on that day when he wanted to see my stock", or "none else knows that Jabbar demanded money from me" or " I did not see actual supervision of the stock", the learned Judge should have held. that the prosecution did not come with a clean hand and that the entire prosecution case is a got up one."

23. P. Ws. 1, 2, 3 and 4 have corroborated each other by their evidence. The isolated statements are also part and parcel of the evidence and they cannot be thrown out of consideration because they seem to be isolated.

24. So far as ground No 3 goes, it is question of "should have only". For witnesses have independently stated about the pretension and the acts and the conclusion of the learned Judge is the cumulative effect of their evidence.

25. The position being as above, I see no force in this ground also.

26. In the result, the appeals are dismissed. The appel lants should forthwith surrender to their bail bonds and serve out the sentence. K. B. A. Appeal dismissed.