Find a Lawyer

Criminal Appeal No. K‑1 of 1967, decided on 8th February 1968.

(On appeal from tire judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 12th October 1965, in Criminal Appeal No. 240 of 1963):

(a) Prevention of Corruption Act (II of 1947), S. 5‑A Investigation of case conducted by Sub‑Inspector of Police instead of by a Deputy Superintendent of Police‑(Quaere): Whether trial vitiated, or whether case should be dealt with under S. 537, Criminal Procedure Code (V of 1898)‑[Crown v. Nur Alam P L D 1955 Lab. 667; Jainullah v. State P L D 1961 Dacca 565; Abdul Noor v. The State P L D 1958 Dacca 145; Walizar v. The State P L D 1960 Kar. 204; Rishbud v. The State of Delhi A I R 1955 S C 196; Feroze‑ud‑Din v. The Crown P L D 1954 Bal. 1 and Abdul Manan v. The State P L D 1958 Kar. 643 mentioned].

(b) Pakistan Criminal Law (Amendment) Act (XL of 1958), Ss. 3, 10(2), (4) read with S. 6(5) and with Criminal Pro cedure Code (V of 1898), S. 417‑Petition for leave to appeal from acquittal by High Court of person (Deposit clerk in Central Radio Officer Karachi), serving in connection with affairs of Centre, filed by Assistant Advocate‑General of West Pakistan Govern ment, without any direction of the Central Government, as required by S, 10(2), Pakistan Criminal Law (Amendment) Act, 1958 ‑ Not competently presented ‑Leave granted in first instance rescinded and petition dismissed‑Constitution of Pakistan (1962), Art. 58(3)‑Leave to appeal from order of acquittal by High Court‑Grant of, by Supreme Court to person aggrieved ‑Central, and not Provincial Government, person aggrieved" in such case.

The provisions contained in the Pakistan Criminal Law Amendment Act relating to sanctions for the prosecution of persons serving in connection with the, affairs of the Centre [section 6(5)], the appointment of Special Judges by the Centre for the trial of such persons, [section 3], the power reserved to the Centre to withdraw prosecutions launched against such a person [section, 10(4)] and finally the power reserved to the Centre to move an appeal against the acquittal of such a person by a Special Judge (Central) [section 10(2)] combine to create a clear impression that control of prosecutions and of proceedings in Court on behalf of the State against such persons, are matters wholly and exclusively within the power of the Central Govern ment. The general powers of the Provincial Government under the Criminal Procedure Code in these respects are by expression excluded.

The grant of leave by Supreme Court to appeal against an acquittal by the High Court is not governed by any provision of stated law, but the Court has held that it is not reserved to the Provincial Government, and may also be exercised by any person aggrieved, with respect to cases falling under the Pakistan Penal Code. Leave has been granted in a number of cases to aggrieved persons, e.g., the complainant in a criminal case, or a relation of the injured or murdered person, to appeal against acquittals. The Pakistan Criminal Law Amendment Act, 1958, contains no provision regulating the presentation of petitions for leave to appeal against an acquittal by the High Court of a person who had been convicted by a Special Judge (Central). But it seems to be perfectly clear that both on the principle that the control of the case from the outset is vested exclusively in the Central Government as well as on the consideration that in the usual case, the Central Government is an aggrieved party, whereas the Provincial Government is not, the right of seeking leave to appeal against acquittal by the High Court of a person serving in connection with the affairs of the Centre, who has been convicted by a Special Judge (Central) on a prosecution launched after proper sanction by the Central Government, must be reserved to the Central Government and cannot be exercised by the Provincial Government acting on its own authority.

Where petition for leave to appeal against an order of acquittal by High Court of an offence under section 5(2), Prevention of Corruption Act (II of 1947), in favour of a person serving in connection with affairs of the Central Government, was filed in the Supreme Court by an Assistant Advocate‑General of the Provincial Government, without any reference or direction in this behalf by the Central Government:

Held, that the petition for special leave to appeal was not competently presented by an Advocate‑General of the West Pakistan Government, the leave granted was rescinded and petition dismissed.

Muhammad Haleem, Asstt. A.‑G. West Pakistan (S. Mazhar Ali, Advocate Supreme Court with him) instructed by Shafiq Ahmad, Senior Attorney for Appellant.

Tulmiz Burney, Advocate Supreme Court : Amicus Curiae.

Date of hearing: 8th February 1968.

CORNELIUS, C. J

.‑‑Leave to appeal was granted to the State in this case by the following order, from which the facts appear

with sufficient clarity:‑

"The respondent, Muhammad Hussain, has been acquitted by the High Court, of an offence under section 5 (2) of the Prevention of Corruption Act, 1947, on the single ground that, in respect of the investigation of the case, there had been violation of the provision in section 5‑A of the Act, that no Police Officer of rank below that of a D. S. P., should investigate such a case without a specific order in that behalf of a 1st Class Magistrate. The investigation had been conducted throughout by a Police Officer of rank below that of D. S. P. Two decisions of Single Judges have been relied upon in the judgment of the High Court. It is stated by Mr. K. Akhtar Ahmad, Additional Advocate‑General, that there are also judgments of the Lahore High Court (case of Nur Alam P L D 1955 Lah. 667) and the Dacca High Court (P L D 1961 Dacca 565, case of Jainullah) which require consideration. He contends that, by its nature, the provision regarding the rank of a Police Officer who may conduct such investigations in respect of public servants is intended to avoid harassment of such persons by Police Officer whose status may be inferior to their own. It cannot be the intention of the law that evidence obtained through such investigations, which may be its intrinsic quality be sufficient to sustain a conviction, should be reduced to nullity through non‑compliance with the requirement of rank. In much more serious cases, evidence gathered through investigation by these Police Officers, i.e., as in this case, a Sub‑Inspector of Police, is by law required to be accepted.

The point is a substantial one, and we grant leave to appeal as prayed."

The question raised was whether the dispensation of justice by the Special Judge in the case was vitiated by the circumstance that a Sub‑Inspector of Police had investigated the case without obtaining a specific order from a First Class Magistrate enabling him to do so. Arguments on this point were advanced by Mr. M. Haleem on behalf of the State, and Mr. Talmiz Burney for the respondent made a reply. Mr. Talmiz Burney, however, at the close of his argument raised a plea to the competency of the appeal as presented by an Advocate‑General of the West Pakistan Government, which we find on examination must be sustained.

Before we deal with the latter question, however, we think it is of importance that we should say that in addition to the two precedent cases mentioned in the order granting leave to appeal, the following further cases were cited before us in support of the same proposition, namely, that in the relevant circumstances, the trial is not vitiated, but the violation of the legal provision specifying by what police officer a case of corruption by a public servant may be investigated is an irregularity‑falling to be dealt with under section 537 of the Criminal Procedure Code. These,' cases are Abdul Noor v. The State (P L D 1958 Dacca 145), Walizar v. The ,State (P L D 1960 Kar. 204) (by a Single Judge) and a weighty opinion delivered in India by the Supreme Court, published as Rishbud v. The State Delhi (A I R 1955 S C,7196).

We mention these cases, although we leave the point un‑decided, for the reason that we are approving this judgement for publication, and it is of importance that the Courts general should be better informed of the state of the law on this point than was the learned Single Judge in the High Court who relied only on two Single Judge decisions, namely, Feroz‑ud‑Din v. The Crown (P L D 1954 Bal. 1) and Abdul Manan v. The State (P‑L D1958 Kar. 643) in setting aside the conviction.

The argument by Mr. Talmiz Burney challenging the competency of the appeal filed by an Advocate‑General of the West Pakistan Government against the acquittal of the respondent by the High Court may be stated as follows. Under section 3 of the Pakistan Criminal Law Amendment Act, 1958, appoint ment of Special Judges is to be made by the appropriate Govern ment, i.e., either by the Central Government or by a Provincial Government. In the present case, the Special Judge who tried and convicted the respondent was a Special Judge appointed by the Central Government, to try offences involving persons serving in connection with the affairs of the Centre. Muhammad Hussain respondent at the relevant time was a Deposit Clerk in the Central Radio Office at Karachi, that being an office in a Central Department. Reference was then made by Mr. Talmiz Burney to section 10 of the aforesaid Act which reads as under‑

"10.‑(1) An appeal from the judgment of a Special Judge shall lie to the highest Court having appellate jurisdiction in the territorial limits in which the offence is tried by the Special Judge, and the same Court shall also have powers of revision.

(2) Notwithstanding the provisions of section 417 of the Code of Criminal Procedure, 1898, in any case tried by a Special Judge appointed by the Central Government under section 3, in which such Special Judge has passed an order of acquittal, the Central Government may direct the Public Prosecutor to present an appeal to such Court as aforesaid.

(3) The aforesaid Court shall have authority to transfer any case from the Court of a Special Judge to the Court of another Special Judge to Provided that notwithstanding, anything contained in section 526 of the Code of Criminal Procedure, 1898, the Special Judge from whose Court a transfer is desired, shall not be bound to adjourn the case, but if he rejects a request for adjournment, he shall record his reasons for doing so.

(4) No prosecution under this Act against any person either generally or in respect or any one or more of the offences for which he is being shall be withdrawn except under the orders in writing of the appropriate Government."

Particular reliance was placed on subsection (2) which operates in derogation of the general provision in section 417 of the Criminal Procedure Code that "the Provincial Government may direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court." The last subsection also has a bearing on the matter, as it has the effect that a case pending before a Special Judge appointed by the Central Government, Involving a person serving in connection with the affairs of the Centre, may only be withdrawn by order of the Central Govern ment. It is provided by section 6 (5) of the Act that in a case involving a person serving in connection with the affairs of Centre, previous sanction of the Central Government shall be required for his prosecution. From these provisions the conclu sion was drawn that the intention of the Act is that where a person serving in connection with the affairs of the Centre is accused of any of the relevant offences, his prosecution and the conduct of the proceedings in Court on behalf of the State shall be entirely under the control of the Central Government.

Mr. Talmiz Burney argued that in the face of these pro visions, the presentation by the West Pakistan Government of a petition for leave to appeal against the acquittal of the respondent by the High Court and the consequent presentation. of the appeal by an Advocate‑General of the West Pakistan Government were both actions in violation of the provisions of the Pakistan Criminal Law Amendment Act, 1958.

Mr. M. Haleem, Assistant Advocate‑General, conceded that in filing the appeal he was acting exclusively in his capacity as an Advocate‑General of the West Pakistan Government, and that no reference had been made in the matter, to the Central Government.

The provisions contained in the Pakistan Criminal Law Amendment Act relating to sanctions for the prosecution of persons serving in connection with the affairs of the Centre, the appoint ment of Special Judges by the Centre for the trial of such persons, the power reserved to the Centre to withdraw prosecutions launch ed against such persons and finally the power reserved to the Centre to move an appeal against the acquittal of such a person by a Special Judge (Central) combine to create a clear impression that control of prosecutions and of proceedings in Court on behalf of the State against such persons, are matters wholly and exclusively within the power of the Central Government. The general powers of the Provincial Government under the Criminal Procedure Code in these respects are by expression excluded.

The grant of leave by this Court to appeal against an acquittal by the Nigh Court is not governed by any provision, of stated law, but the Court has held that it is not reserved to the Provincial Government, and may also be exercised by any person aggrieved, with respect to cases falling under the Pakistan Penal Code. Leave has been granted in a number of cases to aggrieved persons, e.g., the complainant in a criminal case, or a relation of the injured or murdered person, to appeal against acquittals. The Pakistan Criminal Law Amendment Act, 1958, contains no provision regulating the presentation of petitions for leave to appeal against an acquittal by the High Court of a person who had been convicted by a Special Judge (Central). But it seems to us to be perfectly clear that both on the principle that the control of the case from the outset is vested exclusively in the Central Government as well as on the consideration that in the usual case, the Central Government is an aggrieved party,; whereas the Provincial Government is not, the right of seeking leave to appeal against acquittal by the High Court of a person serving in connection with the affairs of the Centre, who has been convicted by a Special Judge (Central) on a prosecution launched after proper sanction by the Central Government, must be reserved to the Central Government and cannot be exercised by the Provincial Government acting on its own authority.

We must accordingly conclude that the petition for special leave to appeal in this case was not competently presented by an Advocate‑General of the West Pakistan Government, and in the result we rescind the leave granted in this case and hereby direct that the petition be dismissed.

A. H. Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.