P L D 1962 Dacca 623 (PLP)

25. But circumstances such as stated before seem to out weigh the circumstance of mere non‑entry in the cash book which, according to the learned counsel, was due to the fact that the appellant had no direction as to under what head the sale proceeds of confiscated goods which were in the nature of occasional revenue as distinguished from the ordinary custom, were to be put.

26. The learned counsel has next placed grounds Nos. 6 and 7 of the memo. of appeal which are as follows: Ground No. 6. "For that in view of the fact that the sanction for prosecution was obtained after the charge‑sheet was submitted and the learned Judge took cognizance long before the sanction was placed before him, the trial was vitiated and as such conviction is liable to be set aside." Ground No. 7. "For that in view of the fact that the sanction to prosecute was obtained with regard to the charge of criminal breach of trust in respect of Rs. 7,402‑6‑0 whereas the amount involved in the present case is Rs. 6,750 and as such the sanction was invalid one vitiating the trial."

27. Mr. Meser Ali raised ground No. 6 in the lower Court and has not pressed the same over again but Mr. Ali has pressed ground No. 7 keenly which is an attack of the sanction order from another aspect. The impugned sanction order Exh. 9 is as follows: ‑ No. 7/40/59‑Police (11). Karachi, the 26th May 1959. Sanction order. Whereas it appears that A. Awal, while employed as cashier in the office of the Assistant Collector Land Customs and Central Excise, Kushtia, between 6th and 11th December 1956, having been entrusted in his capacity of a public servant, with Rs. 7,402‑6‑0 being the sale proceeds of the goods auctioned by the Land Customs Department, committed criminal breach of trust in respect thereof, the Central Government, on perusal of the relevant papers and consideration of the facts of the case and the expediency of the matter, is pleased, under subsection (5) of section 6 of the Pakistan Criminal Law (Amendment) Act, 1958 (XL of 1958), the sanc tion of prosecution of the said A. Awal for the above‑mentioned offence, punishable under section 409 of the Pakistan Penal Code and subsection (2) of section 5 of the Prevention of Corruption Act, 1947 (11 of 1947), in the Court of the Special Judge. (Sessions Judge) Kushtia. (Sd.) S. B. Hussain, Deputy Secretary to the Govern ment of Pakistan."

28. The learned counsel has pointed out that the sanction order shows that the appellant while entrusted with Rs. 7,402‑6‑0 committed breach of trust in respect thereof, while the allegation against the appellant was that employed as cashier he committed criminal breach of trust of Rs. 6,

750. He has also pointed out that while the definite prosecution case was that misappropria tion was committed on 2‑10‑56, the sanction order does not mention specifically the date of misappropriation but only states " . . . . Between the 6th May and 11th December 1956, having been entrusted in his capacity of a public servant, with Rs. 7,402‑6‑0 being the sale proceeds of the goods auctioned by the Land Customs Department, committed criminal breach of trust in respect thereof." Further that the appellant was cashier right up to 26th December 1956, and also from 28‑4‑57 to 12‑5‑57, as per evidence of P. W . 3 and not up to the 11 th December 1956, as stated in the sanction order. The evidence of P. W. 3 is as follows: "I am cashier in Divisional Office, C. E. & L. C. since 26th December 1956. I took over charge as cashier. On that day from the accused identified. I was on leave from 28‑4‑57 to 12‑5‑57 and during this period the accused acted as cashier in my place. I joined on 13‑5‑57, after expiry of the leave. I know the handwriting of the accused. The charge report is missing from the office."

29. Mr. Miser Ali has further contended that certain explanation as given by the appellant on the, basis of Exhs. A, B and C and as referred to by the learned Judge in his judgment were not placed before the sanctioning authority. ' Further that the sanction order is not a valid order inasmuch as it is inherently defective and vague, thus indicating that all the features of the case were not before the sanctioning authority. In other words, the learned counsel means to suggest that the sanction order does not show that the mind of the sanctioning authority was properly applied to the whole subject‑matter.

30. The learned counsel has cited the decision in Abdul Rashid v. The State (P L D 1960 Kar. 251) in which it was held inter alia as follows: ‑ "Where the order of the appropriate authority giving sanction for the prosecution of the accused did not show any where what papers were put up before him and what issues were involved, nor any extraneous evidence had been given in, the case to prove that the sanctioning authority was made aware of the detail and of the explanation given by the accused, it was held that such a sanction was a mechanical sanction and was not valid." The sanction order in that case was as follows: "Whereas it appears that Abdul Rashid son of Abdul Aziz, while employed as Nakedar Hyderabad Municipality, a public servant of West Pakistan Government, between January 1956 to May 1956, misappropriated Rs. 906‑12‑0 by making bogus entry in the Permanent Advance Register etc., of Kali Naka ' ' Hyderabad. On perusal of the relevant papers and considera tion of the facts and the expediency of the matter, the Chief Officer, Hyderabad Municipality is pleased under subsection (5) of section 5 of the Pakistan Criminal Law (Amendment) Act, 1948 (XIX of 1948), to sanction prosecution of the said Munshi Abdul Rashid son of Abdul Aziz for the above men tioned offence punishable under sections 409/420/468/477‑A of the Pakistan Penal Code read with section 5 (2) of the Prevention of Corruption Act, 1947, in the Court of Special Judge, Hyderabad. (Sd.) M. Nizamuddin Ahmed, Chief Officer. Dated 23‑1‑1958. Hyderabad Municipality."

31. The learned counsel has also relied upon the decision in Ali Ahmed Molla v. The State (P L D 1960 Dacca 696) a decision of this Court, of which the facts and decision are as under: "The sanction to prosecute the accused was given by the Superintendent of Police who, while appearing in Court as a prosecution witness, deposed saying that the permission for laying the trap for the accused was given by him. He did not say anything about the sanction order and there was nothing in his evidence to show that the facts constituting the offence were placed before him and that he considered all those facts in according the sanction. Held: There has been no valid sanction in this case. Where facts are not referred to on the face of the sanction nor it is proved by extraneous evidence that they were placed before the sanctioning authority, the sanction to prosecute the accused did not amount to sanction in accordance with law, and the Court will have no jurisdiction to try the case. This defect cannot be cured under section 537, Criminal Procedure Code, as a defect in the jurisdiction of the Court cannot be cured under the provisions of section

537. The sanction order to prosecute relates to some alleged acts committed by the accused which are quite different from which the prosecution was launched against him the trial on the basis of such sanction stands vitiated." The extreme facts of the case reported in P L D 1960 Dacca 696 are not here in the present case.

32. In that case the sanction order related to the accused accepting Rs. 15 as illegal gratification for showing favour in respect of expediting payment of a ration bill of Tangail P. S., for the month of March 1958, whereas the accused was actually prosecuted and convicted for accepting Rs. 15 as illegal gratifica tion for showing favour in respect of expediting payment of his ration bill of Sherpur P. S., for the months of April and June 1958.

33. The months are different and the Police Stations are also different. In the present case there is no such patent error as disclosed in P L D 1960 Dacca 696 case. Coming to the Karachi decision, the following words of the learned Judge‑Ahmed, J., at page 253 have been particularly referred to by the learned counsel. "I, however, find that there are other circumstances which make the prosecution story equally doubtful. There is for instance the case of sanction. It is said that it was issued by Mr. Nizamuddin, Chief Officer of the Hyderabad Municipality (page 18 of the record). I have already quoted this sanction order of Mr. Nizamuddin. The order does not show anywhere what papers were put up to Mr. Nizamuddin and what issues were involved. It seems to me that he has mentioned a sum of Rs. 905‑12‑0 while the Robkari issued to the accused mentions a sum of Rs. 725‑12‑0 only. Mr. Nizamuddin was not examined in evidence and he is not the person who started the investigation. Mr. Ishaque was the person to start the investigation and he has given evidence. He has merely said that there was a complaint against the accused and he wrote a report to the Anti‑Corruption Department (Exh. 3). From his statement also we cannot say that the Chief Officer Nizamud din had used his judgment in arriving at a decision. No extraneous evidence has been given in this case to prove that Mr. Nizamuddin was made aware of the details and of the explanation given by the accused. This order of sanction suggests that some proforma was sent to him with draft and he merely signed it. Such sanction is held to be a mechanical 'sanction and has been disapproved by this Court in Tufail Muhammad's case reported in P L D 1954 Lah. 37 p.

44. This judgment is based upon an earlier ruling of the Privy Council in Gokulchand Dwarkadas Morarka v. The King P L D 1948 P C 11."

34. The facts as stated above of that case are not very different from our present case.

35. In the present case also the sanction order does not show what papers were put up and what issues were involved. There is also, at any rate, a vagueness, if not difference with regard to the exact amount misappropriated, and also the time of misappropriation itself only the period of employment as cashier and entrustment having been mentioned."

36. There is no extraneous evidence also to show what papers were placed before the sanctioning authority.

37. So far as the explanation of the appellant goes, it does not appear that this was made known to the sanctioning authority as in the other case. What is more, in our present case the investigating officer Mr. Durrani who was in Pakistan though in Lahore did not himself come to depose. It is unfortunate.

38. From what P. W. 4 stated in the dock as quoted before it appears that the sanction order Exh. 9 was not even properly proved. Under those circumstances, the sanction order on the very face of it seems to be too mechanical.

39. There is no dispute that the point of sanction goes to the very root affecting the jurisdiction of the Court.

40. Having regard to all the circum3tances of the case, it is difficult to uphold the conviction and sentence of the appellant. In the result, the appeal is allowed and the conviction and sentence are set aside and the appellant is acquitted. He is discharged from the bail bond. Fine, if realised should be refunded forthwith. S. B./A. H. Appeal accepted.