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Criminal Appeal No. 39 of 1967, decided on 2-1st November1968.

---S. 537-Jurisdiction--Objection as to jurisdiction not taken at trial-Can still be taken up in appeal-Question of prejudice contemplated by, section 537, Cr. P. C.-Quite apart from question of jurisdiction Complete lack of jurisdiction vitiates whole proceedings.

Maulvi Asir-ud-Din Chowdhury v. The Crown P L D 1953 E' C 125 rel.

-----S. 5 and Sched and Criminal Procedure Code (V of 1898), S. 197 Government servant-Sanction for prosecution. West Pakistan Social Welfare Council--Branch of Social Welfare wing of Secretariat-Employee of such council-Public servant--Such servant proceeded against without sanction for prosecution-Magistrate also not invested with powers to try cases under Pakistan Criminal Law (Amendment) Act, 1958-Absence of sanction and Tribunal's lack of jurisdiction, held, vitiates whole trial-Conviction set aside Penal Code (XLV of 1860), Ss. 468 & 471.

Crown v. Abdur Rehman P T. D 1950 Lah. 361 ref.

---Accused facing vicissitudes of a long trial extend ing over 6 years and in jail for last 2 years-Re-trial declined in circumstances.

Maulvi Asir-ud-Din Chowdhury v. The Crown P L D 1953 F C 125; Basanta Kumar Chowdhury v. The State P L D 1962 Dacca 61 and Inayat Ullah Hairat v. The State P L D 1961 Lah. 669 rel.

Ijaz Hussain Batalvi for Appellant.

Kh. Muhammad Asghar for A.-G. for the State.

Dates of hearing: 6th, 20th and 21st November 1968.

This order will dispose of four criminal appeals namely, Cr. A. Nos. 39, 40, 41 and 42 of 1967.

2. Three separate trials were held. In Case No. 15/1-11/2, Zabtey Khan and Muhammad Yasin were tried together, in Case No. 16/ 1-12/2, Zabtey Khan and Zulfiqar Ali were tried together and in Case No. 17/1-13/2, Zabtey Khan and Zulfiqar Ali were tried together. In the earlier two cases, the co-accused of Zabtey Khan, namely, Muhammad Yasin and Zulfiqar Ali were acquitted, but in Case No. 17/1-13/2, both Zabtey Khan and Zulfiqar Ali were convicted and sentenced. Zabtey Khan filed Appeals Nos. 39, 40 and 41 against the conviction in all the three cases. Zulfiqar Ali filed a separate appeal, namely, No. 42 of 1967, against his conviction and sentence.

3. According to the prosecution, Zabtey Khan was a despatcher in West Pakistan Social Welfare Council. On 14th of February 1961, Cheque No. D-064224 for Rs. 15,800 purporting to have been issued by West Pakistan Social Welfare Council in favour of one Muhammad Hussain was presented by Zulfiqar, the appellant in Appeal No. 42, who had come to the Punjab Provincial Co-operative Bank, accompanied by Zabtey Khan, Mr. Abdul Qayyum, the ledger keeper of the Bank received the cheque and issued token No. 16 to the presenter and passed on the cheque to the Accountant for verification. Since the amount of the cheque was heavy, it was brought to the notice of General Manager. The General Manager suspected something foul and asked that the presenters of the cheque, for Zabtey Khan and Zulfiqar should be brought before him. Mr. Abdul Qayyum, the ledger keeper could not find Zulfiqar accused, who was said to have slipped away in the meantime. He, however, presented Zabtey Khan to the General Manager. Zabtey Khan confessed before the General Manager that the cheque had been stolen from the office of the Social Welfare Council where he was a clerk and the signatures of the drawer had been forged. He also confessed that he had received payment of Rs. 10,060 on 8th of February 1961, against cheque No. D-053559 dated 18th of August 1960, drawn in favour of Mian Ghulam Muhammad, and also another cheque No. D-056789 dated 24th of June 1961, for a sum of Rs. 8,059 drawn in favour of Sh. Muhammad Akhtar. The latter cheque was stated to have been drawn Zabtey Khan and his friend Muhammad Yasin. It was also disclosed by Zabtey Khan that the cheques were given to him by Mr. Ghauri of his office and were filled in afresh after erasures. The subject-matter of Case No. 17/1-12/2 was the cheque presented on 14th of February 1961, on which date the case came to light. The two other trials were held in respect of the two items stated to have been drawn earlier through two other cheques.

4. The cases were tried by Mr. Saeed Iqbal Shami, Magis trate First Class, Lahore, with powers under section 30 of the Criminal Procedure Code. He found Zabtey Khan guilty in all the three cases. In Case No. 17/1, he convicted both Zabtey Khan and Zulfiqar Ali under sections 468 and 471, P. P. C. He sentenced them each to seven years' rigorous imprisonment and a fine of Rs. 2,030 each under section 468, P. P. C. -In default of payment of fine, they were directed to undergo further rigorous imprisonment for one year. He sentenced them to another period of seven years' R. I. under section 471, P. P. C. and a fine of Rs. 2,000 each. In default of payment of fine they were directed to undergo rigorous imprisonment for further one year. In Case No. 16/1, Zulfiqar Ali was acquitted, but Zabtey Khan was convicted under sections 468 and 471, P. P. C. He was sentenced to undergo seven years' R.I. under section 468 and a fine of Rs. 5,000. In default of payment of fine, he was directed to undergo a further period of one year. A similar sentence was awarded to him under section 471, P. P. C. The same term of imprisonment had to be undergone in case of non-payment of fine of Rs. 5,000 imposed on the latter count. In Case No. 15/1, Yasin the co-accused of Zabtey Khan was acquitted, but Zabtey Khan was convicted under sections 381, 468 and 420/110, P. P. C. He was sentenced to undergo two years' R.I. and a fine of Rs. 2,0'0 under section 381, P. P. C. In default of payment of fine he was ordered to undergo further rigorous imprisonment for six months. A sentence of seven years' R.I. was awarded to him under section 468, P. P. C. and a fine-of Rs. 4,000 was also imposed on him on this count. In default of payment of' fine, he was to undergo R.I. for a period of one year. Under sec tion 420/110, P. P. C., he was awarded a similar sentence. In default of payment of fine of Rs. 4,000 on this latter count, he was ordered to undergo a term of one year's further rigorous imprisonment.

5. Mr. Ijaz Husain Batalvi, the learned counsel who appears in Appeals Nos. 39, 40 and 41, and Mr. Barkat Ali Saleem, who appears for the appellant in Appeal No. 42, have raised a preliminary question about jurisdiction. It is submitted by the learned counsel that the West Pakistan Social Council is actually one of the benefieient official agencies set up by the Government. It is true that some non-officials are also its members, but its con stitution and the complexion shows that it is an official sponsored body. Mr. Batalvi refers in this connection to the resolution of the Provincial Government whereby the West Pakistan Council of Social Welfare was set up. This is printed at page I of the book published by Mr. Saeed K. Haq on West Pakistan Social Welfare Council, 1958 Edition. It is also pointed out with reference to another book published by the Secretary, West Pakistan Social Welfare Council, Lahore, on the constitution of West Pakistan Social Welfare Council; that this body is in effect a sinew of the vast machinery set up by the Government for development of Social Welfare. It is stated in clause (c) at page 2 of this book that one of the functions of the Council is to co-ordinate the assistance extended to Social Welfare activities by various Departments of the Provincial Government. The Minister for Social Welfare is the ex officio President of the Council, and the Deputy Secretary of the Social Welfare, Govern ment of West Pakistan is the ex-officio Secretary of the Council. It is mentioned in clause (f) at page 7 that the budget of the Council is to be submitted to the Government by 15th of September. Again at page 9, in clause (iii) we find that the Government have the power to amend the provisions of the constitution of the Council, at any time. Again at page LO 'under the heading "Ex-officio Members'", we find that Secretaries of the various Government Departments the Chief Administrator of Auqaf, the Director, Social Welfare and some other functionaries of the Government are the exfficio members of this Organization. In the book compiled by Mr. Muhammad Amjad Shah on the "Secretariat of the Government of West Pakistan", we find from the Organization Chart at page 61 of this book that West Pakistan Social Welfare Council is a branch of the Social Welfare Wing of the Secretariat, At page 46 of the same book, it is stated that Social Welfare Council is one of the semi-autonomous bodies which are under the administrative control of the Department of Social Welfare.

6. The above discussion would clearly show that the Social Welfare Council has an official complexion and in fact is a part of a Department of the Government. Mr. Ijaz Hussain has also pointed out to certain resolutions of the Council itself, whereby the rules applying to the ordinary Government servants were applied to the staff of the Social Welfare Council, except those relating to pension. It is urged on the basis of the above data that Zabtey Khan was a public servant and an employee of the Provincial Government and Mr. Saeed Iqbal Shami who was not a Special Judge under the Criminal Law Amendment Act, 1958 had no jurisdiction whatsoever to proceed with the case, as the offences charged against Zabtey Khan and his co-accused were offences mentioned in Schedule to the above Act. Of course, Zulfiqar Ali was not an employee of the West Pakistan Social Welfare Council or any other Government Department, but as would appear from clause (b) of Schedule to section 5, attached to the Criminal Law Amendment Act, 1958, he could be tried along with Zabtey Khan. Mr. Ijaz Hussain has also referred rite to the definition of the Public Servant as contained in section 2 (b) of the Criminal Law Amendment Act, 1958, and section 21 of the Pakistan Penal Code. He has, particularly, referred to the last portion of clause ninth of the latter section and urged on this basis that Zabtey Khan was a public servant. He has also referred to Crown v. Abdur Rahman (1 P L D 1950 Lah, 361) where a treasurer appointed by a contractor for receiving Government money, was held to be a public servant.

7. The learned counsel for the State referred to section 537 of the Criminal Procedure Code and said that this objection had not been taken at the trial and, therefore, could not be taken in appeal. I do not agree with this. The question of prejudice as con templated by section 537, Cr. P. C. is quite apart from the question B of jurisdiction. Where there is a complete lack of jurisdiction, the whole proceedings are vitiated and there is no cure for them. Even the consent of a particular person will not confer jurisdiction on the Court which has none. This was so held in Maulvi Asir-ud -Din Chowdhury v. The Crown. (1 P L D 1953 F C 125)

8. In my view, Zabtey Khan was a public servant and should have been tried under the provisions of the Criminal Law Amendment Act, 1958, under which the sanction of the appropri ate Government is a condition precedent. The absence of the sanction and (the fact that a Tribunal, which was not invested with the powers to try this case, passed orders of conviction and sentence on the appellants, vitiate the whole trial. I, therefore, set aside the convictions and sentences of the appellants in all the four appeals.

9. The next question that confronts me is whether I should order a re-trial of the appellants in the circumstances of the case. Mr. Ijaz Hussain Batalvi has urged with some force that the cheque presented on 14th of February 1961, had not been cashed, He also urged that the appellant, had been facing; the vicissitudes of along trial and were ultimately convicted on 31st of December 1966. Since then; they are in jail. He therefore, submits that in the circumstances of the case this Court should not order the re-trial of the appellants. He relies in this connection on Maulvi Asir-ud-Din Chowdhury v. The Crown, Basanta Kumar Chowdhury v. The State (2 P L D 1962 Dacca 61) and Inayat Ullah l-lairat v. The State (3 P L D 1961 Lah. 669).

8. It is true that the cases were registered in 1961 and were finalised in December 1966. It is also true that the appellants have been in jail for about two years. The occurrence having taken place more then seven and a half years ago, I will not be inclined to order a re-trial in this case. The appeals are disposed of accordingly. The appellants are in jail. They shall be released forthwith unless they are required to be legally detained in some other case.

Appeal allowed.

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