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Criminal Appeal No. 253 of 1967 and Criminal Revision No. 336 of 1969, decided on 5th June 1969.

S. 409 read with Pakistan Criminal Law (Amendment) Act (XL of 1958), S. 6(5)‑Sanction for prosecution‑Sanction neither containing particulars of accusa tion nor sanctioning authority shown to have applied his mind judicially to facts of case--Order of sanction merely stating "sanction is hereby accorded for institution of criminal suit against above‑mentioned accused"‑Sanction, held, defective‑Cannot be cured under S. 537, Cr. P. C. Trial vitiated‑Criminal Proce dure Code (V of 1898), S. 537.

The sanction to prosecute is an important matter ; it consti tutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. The question as to whether a case is a fit one for according sanction for prosecution is to be decided by its facts. It is, therefore, essential that all relevant facts relating to the case shall be brought to the notice of the sanctioning authority and the sanctioning authority shall apply its mind judicially to all aspects of the case and then consider the ques tion whether sanction should be accorded in the matter or not. Where facts are not referred to on the face of the sanction nor is it proved by extraneous evidence that they were placed before the sanctioning authority, the sanction is invalid and the trial Court would not be a Court of competent jurisdiction. This being so, the defect cannot be cured under section 537, Cr. P. C. as a defect in the jurisdiction of the Court can never be cured under that section. In the case it was not clear from the sanction order whether the sanctioning authority was conscious of the full facts of the case and whether the sanction was accorded after judicially applying the mind of the sanction ing authority in the matter. There was nothing on record to show that the full facts were placed before the appropriate authority. The sanction order merely read "sanction is hereby accorded for institution of criminal suit against above‑mentioned accused". It was, therefore, held that such a sanction, could not be called a valid sanction and in consequence thereof the Court which held the trial could not be deemed to be a Court of competent jurisdiction. In the result, the entire trial was held to have been vitiated.

Gokulchand Dwarkadas Morarka v. The King P L D 1948 P C 11.

S. 409‑Criminal breach of trust‑Government servant, entrusted with carriage of 144 mds. and 25 seers of wheat, alleged to have short delivered 30 seers-- No evidence on record to show that wheat on delivery had been re‑weighed and found short‑Charge, held, not established‑Convic tion set aside.

Abdus Salam with Abul Quashem Bhulya for Appellant.

Jahurul Hoq Khan for the State.

Dates of hearing : 3rd and 5th June 1969.

This judgment will dispose of Criminal Appeal No. 253 of 1967 and Criminal Revision Case No. 336 of 1969.

The two accused Abdus Sahim alias Abdul Sahim and Shaheb Ali were convicted under section 409, P. P. C. and sentenced to suffer rigorous imprisonment for one month each and to pay a fine of Rs. 15 each, in default to rigorous im prisonment for one week more, by Mr. A. Q. Chowdhury, Additional Sessions Judge and Ex‑Officio Special Judge, 2nd Court, Dacca.

The prosecution case, in short, is that accused Abdus Sahim, a motor driver of Government Truck No. E. B. A. 6959 and accused Shaheb Ali, an attender thereof, were entrusted with the carriage of 144 maunds 25 seers of Government wheat in 60 bags from the Government Civil Supply Depot to the Govern ment Flour Mill at Postagola, Police Station Sutrapur, District Dacca but they criminally misappropriated 30 seers of wheat from the same consignment and packed the same in a striped bag on 26‑2‑66 on the way from C. S. D. godown to Dacca Flour Mill and they were caught red‑handed by P. W. 1 the Jamader of the Flour Mill. It is alleged that both the accused in the capacity of a public servant had committed criminal breach of trust in respect of 30 seers of wheat having been entrusted with the same and having dominion over that by dishonestly misappropriating the same and by converting the same to their own use.

The plea of the accused was one of innocence. They asserted that P. Ws. 1 and 2 demanded some chips from them but on their refusal, they had falsely implicated them in the case.

Ten witnesses for the prosecution and none for the defence were examined in the case. Some documents were also produced before the Court. The learned Special Judge on appraisal of the evidence and materials on record, convicted and sentenced the accused in the case as stated above. Being aggrieved there by the appellant Abdul Sahim alone preferred this appeal before this Court. The Rule in Criminal Revision Case No. 336 of 1969, was issued suo motu by this Court to consider the case of accused Shaheb Ali.

Mr. Abdus Salam, the learned Advocate who appeared for accused appellant Abdul Sahim also represented the case of accused Shaheb Ali before me. He has firstly contended that the sanction order Exh. 2 produced in Court and proved by the prosecution is not a proper sanction as required under the law, in as much as it does not contain the particulars of accusation or the proper application of mind of the sanctioning authority.

In this connection, he has also pointed nut that the sanction confers jurisdiction on the Court to try a case and the sanction in the instant case being defective, the trial Court is not a Court of competent jurisdiction and as such, the entire trial has been vitiated.

The grievance made by the learned Advocate in this respect seems to have considerable force. The sanction order, Exh. 2 runs as follows:‑

"Government of East Pakistan, Food Department Directorate of Movement and Storage Kakrail, Dacca.

No. 8143/MS/MT/IP‑39/56 dated 9‑7‑66.

To

The Officer‑in‑Charge,

Sutrapur Police Station, Dacca.

Sub:‑Sanction order for the submission of C. S. against accused Abdus Sahim, driver and Shaheb Ali cleaner of Food Motor Garage Dacca. p. s. Case No. 91 dated 26‑2‑66 under section 409, P. P. C. Sanction is hereby accorded for institution of Criminal suit against the above mentioned accused in the Court of law.

(Sd.) Illegible

8‑7‑66

A. W. Khan.

Director of Movement and Storage East Pakistan, Dacca."

The sanction order quoted above does not reveal the facts in respect of which the sanction has been given. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. The question as to whether a case is fit one for according sanction for prosecution is to be decided by its facts. It is, therefore, essential that all relevant facts relating to the case shall be brought to the notice of the sanctioning authority and the sanctioning authority shall apply its mind judicially to all aspects of the case and then consider the question whether sanction should be accorded in the matter or not. The sanction order, Exh. 2 does not show that the relevant facts were put to the sanctioning authority and the sanctioning authority had occasion to apply its mind judicially to those facts.

Where facts are not referred to on the face of the sanction nor is it proved by extraneous evidence that they were placed before the sanctioning authority, the sanction is invalid and the trial Court would not be a Court of competent jurisdiction. This being so, the defect cannot be cured under section 537, Cr. P. C. as a defect in the jurisdiction of the Court can never be cured under that section. This view receives support from the cases reported in P L D 1948 P C 11 and P L D 1953 Lah. 321.

It is not clear from the sanction order whether the sanction ing authority was conscious of the full facts of the case and whether the sanction was accorded after judicially applying the mind of the sanctioning authority in the matter. There is nothing on record to show that the full facts were placed before the appropriate authority.

Thus the sanction, Exh. 2 proved in the case cannot be called a valid sanction and in consequence thereof the Court which held the trial cannot be deemed to be a Court of competent jurisdiction. In result, in my opinion the entire trial has been vitiated.

The learned Advocate has next submitted that no criminal breach of trust within the meaning of section 405, P. P. C. having been established in the case, the conviction of the two accused under section 409, P. P. C. is bad in law. He wants to say that 144 maunds 25 seers of wheat in 60 bags having been entrusted with the accused and 60 bags of wheat having been delivered to the Mill but the wheat in question having not been re weighed after its delivery, the shortage if any, could not be estab lished and no shortage having been proved by positive evidence, the question of misappropriation of any wheat by the accused persons does not arise.

Prosecution case is that 144 maunds 25 seers of wheat in 60 bags were entrusted with the two accused on the relevant date. The entrustment of that wheat has been proved by P. Ws. 8 and 9. The invoice, Exh. 5 has corroborated the above witnesses. The accused also do not challenge the entrustment of the goods.

P. W. 5, an employee of the Government Flour Mill at Postagola has admitted in his deposition that he received 60 bags of wheat in the Mill on the relevant date from the accused. He did not say that the wheat in question was reweighed after its delivery. The 60 bags of wheat having already reached the Mill in normal condition where is the shortage and how can the shortage if any, he detected without reweighment of the wheat in question There is no evidence in the case to show that the wheat of said 60 bags was re‑weighed after its delivery. It is true that P. W. 5 has stated that 60 bags of wheat received by the Mill contained 142 maunds 31 seers of wheat. But it is not clear on what basis he came to this conclusion. There being no reweighment of the wheat physically, it is risky to hold that the 60 bags of wheat received in the Mill contained 142 maunds 31 seers only.

In this respect, the evidence of P. Ws. 8 and 9 are very relevant. P. W. 8 has stated in his deposition that there can be shortage of wheat in the transit. There may be shortage due to handling which is allowed by the Government at the rate of 10 maunds in each 100 maunds. This statement of P. W. 8 receives support from P. W. 9 to some extent. Even if it be found that there was some shortage in the bags, the shortage might be due to handling in the transit. But still the shortage cannot be detected without actual weighment of the goods. This is a great lacuna in the prosecution case. In the circumstances no shortage having physically been established in the case, the question of misappropriation of any portion of the wheat by the two accused does not arise. In my opinion, the prosecution case cannot be said to have been proved beyond all reasonable doubt.

In view of the above discussion, it is not necessary to enter into other aspects of the case. I may simply say here that the evidence of P. Ws. 1 and 2 are not at all convincing. Non production of the striped bag speaks volume against the pro secution case.

For the reasons stated above, this appeal is allowed and the suo motu Rule is made absolute. The order of conviction and sentence is set aside and the accused are acquitted.

Appeal accepted.

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