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Criminal Appeal No. 131 of 1964, decided on 24th February 1967.
‑Sanction for prosecution‑Not necessary where accused ceases to be public servant by retirement, resignation, removal or otherwise.
Nazir Hussain Shah v. The State P L D 1965 S C 139 and Ali Ahmed alias Ali Ahmed Mia v. The State P L D 1962 S C 102 ref.
‑Essential requirements‑ Cheating by personation"‑Different from "cheat ing" pure and simple.
‑Prosecution of public servant for offences under Ss. 419 & 420, P. P. C. without obtaining sanction from appropriate Government‑Incompetent‑Conviction and sentence set aside --Retrial not ordered‑Accused should not be subjected to hazard of fresh trial "for no fault of his".
‑Government servant‑Sanction to prosecute -Provincial Government servant's services transferred to Central Government‑Offence committed by such servant while in service of Province‑Sanction of Provincial Government necessary for prosecution‑Expression "appropriate Government"‑Means Govern ment under which accused was serving at time of Commission of office.
Abdus Salam Khan for A. K. M. Siddiq for Appellant.
Nurul Huq Bhuiyan for the State.
Dates of hearing: 23rd and 24th February 1967.
The appellant Md. Shafiullah stands convicted under sections 419 and 420 of the Pakistan Penal Code by the Senior Special Judge, Dacca. He has been sentenced to R. I. for 18 months under section 419, no separate sentence having been passed under section 420 of the Code.
The accusations against the appellant were that he dishonestly and fruadulently pretended to be Md. Obaidullah and was serving as an Assistant Teacher in the Motijheel Free Primary School under the Government of East Pakistan and that knowing full well that he was not Md. Obaidullah, by personating himself falsely and fraudulently as Md. Obaidullah he induced the District Education Officer, the Ex‑Officio Chief Executive of the District Primary Education Office, Dacca to employ him as a teacher of the said School from 16‑9‑57 to 15‑10‑60 and thus committed the offence of cheating by personation under section 419, P. P. C. He also received salary during the aforesaid period by means of such cheating and for that he also committed an offence under section 420, P. P. C.
The prosecution case further is that the minimum requisite qualification of a teacher in the Government Primary School is either Matriculation or passing of High Madrasha Examina tion or possessing a Primary Teacher's Training certificate, but the appellant had none of these requisite qualifications.
The defence contended, inter alia, that the present case was engineered by enemies of the appellant who are his own relations but sworn enemies. The Inspector of the Anti Corruption Department having been in friendly terms with the enemies of the appellant fabricated this case in collusion with them.
The learned Senior Special Judge held that the Prosecution was not bad for absence of sanction and that the appellant committed offences under sections 419 and 420 of the Pakistan Penal Code. Hence the convictions, and sentence as aforesaid. ;
Prosecution examined as many as 20 witnesses to substantiate its case. Most of the evidence against the appellant centres round the fact that he is Md. Shafiullah and not Md. Obaidullah and that he served in the Motijheei Free Primary School as Md. Obaidullah and under this name he received his salary for the period of his service, more particularly the period covered by the charge. These facts are no longer challenged on behalf of the appellant. In fact, Mr. Salam Khan has accepted these facts as correct. In these circumstances, it is not necessary for us to discuss the evidence on the above points. In other words, it may be accepted as established facts that the appellant whose name is Md. Shafiullah posed as Md. Obedullah and served under that fictitious name in the Motijheel Free Primary School for the period of the charge and received payment of his salary.
The first point canvassed by Mr. Abdus Salam Khan, the learned Advocate for the appellant, is that the trial was incom petent in the absence of sanction as required by subsection (5) of section 6 of the Pakistan Criminal Law (Amendment) Act, 1958. According to Mr. Nurul Huq Bhuiyan, the learned Advocate representing the State, no sanction was necessary for the prosecution of the appellant under sections 419 and 420 of the Pakistan Penal Code having regard to the fact that the appellant was no longer in the service of the Provincial Government. In answer to this Mr. Abdus Salam Khan, has, by reference to evidence, tried to show that though the appellant was not in the service of the Provincial Government at the time cogni zance of the case was taken, he was a Government servant under the Central Government. The records show that cognizance of this case was taken by the learned Senior Special Judge on 7‑10‑63. In order to ascertain whether on that particular date the appellant was an employee under the Staff Welfare Fund on 7‑10‑63 and whether he was working in the Stall' Welfare Primary School, Motijheel on that date as an Assistant Teacher, reference was made by the learned Legal. Remembrancer to the Government of East Pakistan to the Welfare Officer of the Staff Welfare Organization, Dacca. The reply of the Welfare Officer, a letter of date, has been placed before us. In this letter the Welfare Officer states that Mr. Shafiullah son of Abdul Aziz Molla of P. S. Faridganj, District Comilla, was an employee under the Staff Welfare Fund on 7‑10‑63 and was working in the Staff Welfare Primary School as an Assistant Teacher having been appointed to that post on 22‑10‑60. This letter contains a sentence which reads:
"The staff working under the Staff Welfare Fund is not a Government servant."
Reliance has been placed on behalf of the State on this particular sentence in order to show that the appellant is not Government servant and that he was not a Government servant under the Central Government on 7‑10‑63, the crucial date. Our attention has been drawn by Mr. Abdus Salam Khan to the evidence of the Investigating Officer‑P. W. 18 S. I. Abul Kasam wherein he stated: "I knew that accused at present is an Assistant Teacher at Motijheel Welfare Primary School. It is a Government school." There is thus positive evidence of the Investigating Officer himself to the effect that the Motijheel Primary School is an institution under the Central Government and that the appellant is a teacher in that institution. The expression of uncalled for information of the Welfare Officer that the, staff working under the Staff Welfare Fund is not a Government servant' cannot prevail over the clear and unambigous admission of the Investigating Officer that the school in which the appellant has been serving from before 7‑10‑63 is a Government institution. Regard being had to the aforesaid admission of the Investigating Officer, we hold that the appellant was a Government servant serving under the Central Government on 7‑10‑63, the date on which cognizance of the case was taken.
The question now arises as to whether sanction for the prosecution of the appellant as required by subsection (5) of section 6 of the Pakistan Criminal Law (Amendment) Act, 1958 was necessary in the present case. There was some divergence of opinion in the past with regard to the question whether sanction for the prosecution of a public servant who had ceased to be public servant by retirement, resignation or otherwise was at all necessary. The point has been set at rest by the decision of the Pakistan Supreme Court in the case of Nazir Hussain Shah v. The State ( P L D 1965 S C 139). Their lordships of the Supreme Court referred to the various earlier decisions on this point, particularly the case of AU Ahmed alias All Ahmed Mia v. The State (P L D 1962 S C 102) and held:‑
"Though it is not legitimate to refer to the statement of objects and reasons as an aid to construction or for ascertaining the construction of the words used in the Act, nevertheless it can be referred to for the limited purpose of ascertaining the conditions prevailing at the time which actuated the sponsor of the Bill to introduce the same and the extent of urgency or evil which he sought to remedy. If this background of the enactment is borne in mind there is no room for doubt that the intention of the Legislature was that no sanction would be necessary for prosecution of a public servant who had ceased to be a public servant when the Court taking their cognizance of the offence which had been committed by him when he was a public servant and this was also made clear by adding an Explanation to section 6 (5)."
It is thus settled law now that sanction is not necessary where the public servant who had committed the offence has ceased to be a public servant by retirement, resignation, removal or otherwise.
The question that called for our consideration in this case is of a different nature. In the present case, we have already held that the appellant was a public servant under the Central Government on the date of taking of cognizance by the learned Senior Special Judge. Subsection (5) of section ‑6 of the Act clearly lays down:‑
"Previous sanction of the appropriate Government shall be required for the prosecution of a public servant for an offence under this Act."
This leave no scope for doubt that sanction is necessary for the prosecution of a public servant irrespective of whether he is a servant under the Government under which he was working at the time of commission of the offence or under some other Government when cognizance of the case is taken. This intention of the Legislature has been further expressed in the explanation appended to section 6(5) which reads as follows:‑
"For the purpose of this sub‑section appropriate Govern ments' shall mean the Government which at the time of the Commission of the offence was the appropriate Government."
If the intention of the Legislature was that no sanction would be necessary for the prosecution of a Government servant who left the service of the Government under which he was working at the time of commission of the offence, then this explanation G would not be necessary. "We accordingly hold that in this case sanction of the appropriate Government namely, the Government of East Pakistan for the prosecution of the appellant was necessary even though he was not serving under the said Government but was serving under the Central Government on the date of taking of cognizance by the learned Senior Special Judge." It follows from the above that in the absence of sanction the prosecution was incompetent.
Mr. Abdus Salam Khan, assails the conviction under section 419, P. P. C. on another ground. His contention is that the essential requisites of cheating, inter alia, are that a person should be deceived and intentionally induced to do or omit to do anything, which he would not do or omit to do if he were not so deceived. It has been urged that in the present case there is no evidence that the appellant deceived the appointing authority and intentionally induced such authority to appoint him or continue to employ him as an Assistant Teacher in the Motijheel Free Primary School. It has been submitted that the appellant did nothing but gave out his name as Md. Obaidullah instead of his real name Md. Shafiullah. This, according to Mr. Abdus Salam Khan, does not constitute an offence under section 419 of the Penal Code.
This point does not call for determination in this case regard being had to the fact that we have already held that the Trial was incompetent in the absence of necessary sanction from the appropriate Government; but as the point has been raised we deem it proper to dispose of the same.
Mr. Abdus Salam Khan's argument appears to be based on a misconception of the offence of cheating by personation. Section 419 provides for punishment of a person who cheats by personation.' Cheating as defined in section 415 is not a pre requisite to a conviction under section 419 inasmuch as cheating by personation has been separately and independently defined in section 416, P. P. C., which reads as follows:‑
"A person is said to cheat by personation if be cheats by pretending to be some other person, or by knowingly substitut ing one person for another, or representing that he or any other person is a person other than he or such other person really is.
Explanation.‑The Offence is committed whether the individual personated is a real or imaginary person."
Section 415 which defines cheating runs as follows:‑
"Whoever, by deceiving any person, fraudulently or dis honestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission is likely to cause damage or harm to that person in body, mind, reputation or property, is said to cheat'.
Explanation.‑A dishonest concealment of facts is a deception within the meaning of this section."
Section 415 requires:
(1) Deception of any person.
(2) (a) Fraudulently or dishonestly inducing that person
(i) to deliver any property to any person; or
(ii) to consent that any person shall retain any property, or
(b) intentionally inducing that person to do or omit to do B anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, repu tation or property.
The essential requirements of section 416 on the other band, are:
(1) Pretension by a person to be some other person.
(2) Knowingly substituting one person for another.
(3) Representation that the person representing or any other person is a person other than be or such other person really is.
"To 'personate' means to pretend to be a particular persons."
It is clear from a close reading of both the sections, namely sections 415 and 416 of the Penal Code that "cheating by personation" is different from "cheating" pure and simple. The contention of Mr. Abdus Salam Khan that the appellant did not commit an offence under section 419 of the Penal Code because it is not the prosecution case, nor is there evidence on record that he intentionally induced the appointing authority to appoint him as an Assistant Teacher of the Motijheel Free Pri mary School is without substance.
In view of the fact that the trial of the case was incompetent for want of requisite sanction, the conviction and the sentence passed on the appellant cannot be maintained.
We have given our thoughts to the question as to whether the appellant should be retried after obtaining sanction from the appropriate Government. Our considered view is that the appellant should not be subjected to the hazard of a fresh trial for no fault of his inasmuch as it was for the prosecution to obtain the necessary sanction before putting him into trial, and for default on the part of the prosecution the appellant should not suffer. For this reason, we refrain from ordering fresh trial in this case.
The appeal is accordingly allowed. The conviction of the appellant under sections 419 and 420, Pakistan Penal Code, and sentence passed on him under section 419, P. P. C. are hereby set aside. He is directed to be released forthwith from his bail bond.
.‑I agree.
S. Q.
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