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Appeal No. 247 of 1965, decided on 20th January 1967.

S. 409 read with Pakistan Criminal Law (Amendment) Act (XL of 1958), Ss. 2 & 6 (5) and East Pakistan Criminal Law (Amendment) Rules, r. 3‑Criminal breach of trust by "public servant"‑Prosecution of "elected" Chairman of Union Council‑Previous sanction of "appropriate Department of Provincial Government" necessary‑‑Sanction given by "Control ling authority"‑Not valid‑Trial in pursuance of such sanction Held, without jurisdiction‑Basic Democracies Order (18 of 1959), Art. 79‑Penal Code (XLV of 1860), S. 21.

Khan Bahadur Muhammad Ismail with A. F. T. M. Afzal for Appellant.

A. T. M. Masud, D. L. R. with A. T. M. Kamrul Islam for the State.

Dates of hearing : 10th and 20th January 1967.

The appellant Mohiuddin Ahmad has been convicted under section 409 of the Pakistan Penal Code and sentence to undergo rigorous imprisonment for one year and also to pay a fine of Rs.4,000 and in default to suffer rigorous imprisonment for further six months. There is direction to the effect that out of the fine, if realised, of half the amount is to be paid at the Maidanhata Union Council.

The prosecution case is that the appellant Mohiuddin Ahmad is the elected Chairman of Maidanhata Union Council and he was entrusted with the custody and proper utilisation of bricks manu factured at an expenditure of Rs. 4,959.25 paisa for the develop ment works of the Union Council and the said Chairman in collusion with others has misappropriated the said bricks and committed an offence under section 409 of the Code.

The defence case is that the accused appellant is innocent and he did not commit any misappropriation of the bricks as alleged by the prosecution. The Sub‑Divisional Officer, Bogra who is controlling authority of the Union Council under Article 3 (10)IV of the Basic Democracies Order, 1959 granted sanction for the prosecution.

Mr. Ismail, the learned Advocate for the appellant, submits that there is no valid sanction for prosecution in the case inasmuch as the appellant is the elected Chairman of the Union Council and the controlling Authority is not entitled under the law to grant sanction for his prosecution. The learned Advocate placed his reliance on the Notification No. 2269J dated 20th May 1959 published in the Dacca Gazette of May 28, 1959 in support of his point.

Subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958 requires that "Previous sanction of the appropriate Government shall be required for the prosecution of a public servant for an offence under this Act and that such sanction shall be sufficient for the prosecution of a public servant for an offence triable under this Act."

On a reference to Schedule of the Act it will be found that section 409 of the Pakistan Penal Code is an offence triable under the Act. It is, therefore, found that previous sanction is neces sary for the trial of an offence under section 409 of the Code. The Chairman of the Union Council is a public servant. Article 97 of the said order provides that every member and every servant of a Union Council and every other person duly empower ed to act on behalf of the council shall be deemed to be a public servant within the meaning of section 21 of the Pakistan Penal Code.

Position, therefore, is clear that previous sanction is necessary for the prosecution of a Chairman of Union Council for an offence under section 409 of the Code or for any other offences enumerated in the Schedule of the said Act. It is now to be considered as to who will grant the sanction. The notification referred to by Mr. Ismail shows that the Governor has made Rule for carrying out the purposes of the Pakistan Criminal Law Amendment Act, 195 , Rule 3 of the said Rules is in the following terms :‑

"Sanction for prosecution of a pubic servant serving in con nection with the affairs of the Province of East Pakistan shall be given by the authority who has appointed such public servant and sanction for prosecution of any other public servant except those serving in connection with the affairs of the Federation, a railway employee and any other person employed by the Central Government or any such organisation or body as may be notified by the Central Government in pursuance of section 2 of the Pakistan Criminal Law Amendment Act, 1958, shall be given by the Provincial Government in the appropriate Department."

When this case came up for hearing on the 11th January 196 7, Mr. A. T. M. Masud, the learned Deputy Legal Remembrancer obtained an adjournment of the case for investigating if the Rule as quoted above has been amended and it so if the said amend ment is relevant to the point raised before me. The case was accordingly taken up for hearing today. Mr. Masud informs the Court that there has been a notification bearing No. 1436 Judl. 11/5P‑1/61, dated Dacca, the 21st November 1961 that amend ment is as follows :‑

"In Rule 3 of the said Rules, after the words "such public servant" the words "or by the authority who has been delegated powers by Government to appoint such public servant" shall be inserted."

This amendment has, however, no effect on the point raised before me.

Mr. Masud further informs the Court that this has been amended now and reads as follows :‑

"Sanction for prosecution of a public servant serving in connection with the affairs of the province of East Pakistan shall be given by the authority who has appointed such public servant or by the authority who has been delegated powers by Government to appoint such pubic servant and sanction for prosecution of any other public servant, except those serving in connection with the affairs of the Federation, a railway employee and any other person employed by Central Government or by such organization or body as may be notified by the .Central Government in pursuance of section 2 of the Pakistan Criminal Law Amendment Act, 1958 shall be given by the Provincial Government in the appropriate Department."

In the case before me, the Chairman of the Union Council has not been appointed by any one. He has no appointing authority. He has been elected by the Union Council. Therefore either any appointing authority nor by any stretch of imagination any controlling authority can give sanction to his prose cution. He is governed by the concluding part of the Rule quoted above and his sanction is to be given by the appropriate Depart ment of the Provincial Government. It will be seen that Rule 3 speaks of sanction being given by the appointing authority of public servant or by an authority to whom powers have been delegated for giving such sanction. The concluding part of the rule referred to by me speaks of persons who serve in connection with the affairs of the Central Government or the Provincial Government as the case may be without having been appointed by any one. The Chairman of the Union Council is a person who serves in connection with the affairs of the Provincial Government. That being so, as already indicated sanction in his case has to be given by the appropriate Department of the Provincial Government.) I have already referred to subsection (5) of section 6 which requires previous sanction for the trial of a public servant for an offence triable under the Act. Mr. Masud concedes that in this case sanction of the appropriate Department of the Provincial Government was necessary and was not given. It is, therefore, clear that in the absence of the previous sanction as required by law, the trial has been held without jurisdiction.

It is hardly necessary to observe that the trial in question having been held without jurisdiction, there is in law no trial. It is, therefore, always open to institute a fresh prosecution if the appropriate authority as indicated above is disposed to grant such sanction.

In the result, the appeal is allowed, the conviction and sentence of the accused appellant are set aside and he is discharg ed from his bail bond.

Appeal allowed.

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