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Criminal Miscellaneous Applications Nos. 8 and 679 to 693 of 1974, decided on 22nd December 1975.
-- S. 6(5)-Sanction for prosecution-Accused ceasing to be public servant at time of taking cognizance of offence-Sanction of appro priate Government to prosecute such accused not necessary-Sanction for prosecution].
Ahmad v. The State P L D 1962 S C 277 and Abdul Fateh Ursani v. State 1972 S C M R 239 held no longer prevailing.
Ali Ahmad v. The State P L D 1962 S C .102; Nazir Hussain Shah v. The State P L D 1965 S C 1 39; Ataur Rehman v. State P L D 1967 S C 23 and Mohammad Abbas v. The State 1974 S C M R 445 ref .
Saeed Ahmad v. The State P L D 1962 S C 277 and Abdul Fateh Ursani v. State 1972 S C M R 2J9 held no longer prevailing.
Mohammad Arif for Appellant.
Mohammad Suleman Memon, Addl. A.-G. for the State.
Dates of hearing: 30th October, 1st and 8th December 1975.
This is a petition under section 561-A, Cr. P. C. praying that the proceedings against the petitioner pending in the Court of Special Judge-cum -Enquiry Officer, Karachi, in Case No. 31 of 1972 be quashed.
2. The facts giving rise to this petition, to state them briefly, are.
That the petitioner was appointed as E' grade clerk in the Office of the Deputy Commissioner, Thatta, and was subsequently transferred to the Office of Special Railway Magistrate. Karachi. At the relevant time he was doing clerical wont and was issuing receipts and making entries in the, cash books under the orders and directions of Mr. Abdul Jabar Uqu4di, Special Magistrate, Karachi, and after his suspension under the orders and directions of Mr. Noor Muhammad Dar who had succeeded Mr. Uquaili.
3. That sometime in the year 1962, Mr. Uquaili was allegedly caught for travelling without ticket in a train somewhere from Bahawalpur and a case was registered against him under F. I. R. 16 of 1962. During the course of investigation of this case by Mr. Nasrullah Khan Bhatti, Inspector of Special Police Establishment, Bahawalpur, detected fraudulent defalcations in the account of the Court of the Special Magistrate, Karachi, and a case was regis tered against the petitioner on 2&-5-1962 at the instance of Mr. Uquaili and was investigated by the Police, who sent the papers to Deputy Commissioner, Thatta, for departmental action against the petitioner. But no action was taken by the Deputy Commissioner and on the contrary, the petitioner was re-instated. That however, on the report of the Deputy Collector, Thatta, who held Mr. Uquaili responsible for the embezzlement of the amount of fines recovered from the train passengers, the Deputy Commissioner. Thatta, reported the matter to the Provincial Government and thereafter a case was registered against Mr. Uquaili as well as against the petitioner under sections 409/109, P. P. C. read with section 5(2) of the Prevention of Corrup tion Act, 1947 (Act II of 1947).
4. After the conclusion of investigation of the case a charge-sheet had been submitted against the petitioner as well as Mr. Uquaili on 20-11-72 in the Court of Special Judge-cum-Enquiry Officer, Anti-Corruption, Karachi, in Special Case No. 31 of 1972.
5. That the petitioner claims to have been employed by the Agricultural Development Bank of Pakistan in the year 1970, though there is no such averment in the petition.
6. It may also be mentioned that after the first enquiry, the petitioner was re-instated. However, subsequently he tendered his resignation, which was accepted by the Deputy Commissioner, Thatta, by his order dated 4-6-1962.
7. The petitioner has sought quashment of the proceedings pending before the Special Judge-cum-Enquiry Officer, Karachi. The grounds for quashment of the proceeding , as urged before me by Mr. Muhammad Arif, the learned counsel for the petitioner, are ;
(i) The petitioner cannot be prosecuted without sanction as required under section 6(5) of Pakistan Criminal Amendment Act, 1958 even if he ceased to be a public servant.
(ii) The petitioner did not cease to be a public servant as his resignation was accepted by the Deputy Commissioner, Thatta with certain reservation which implies the continuation of the service.
(iii) If the petitioner had ceased to be a public servant, he again has become a public servant on his employment with the Agricultural Bank of Pakistan in the year 1970 much before the Special Judge took cognizance of the offences with which he has been charged with.
(iv) The substance of charge against the petitioner is vague and general in as much as it does not specify the manner in which defalcation has been committed and the petitioner will be prejudiced in his defence due to lack of specific allegation against him,
(v) The trial is vitiated by mis joinder of charges and mis joinder of the petitioner with Mr. Uquaili who is being jointly tried with the petitioner.
8. While considering the first ground, I am of the opinion that this has no substance, whatsoever. Their Lordships of the Supreme Court of Pakistan in several pronouncements have held that if a public servant ceased to be a public servant, no sanction is necessary under section 6(5) of the Criminal Law Amendment Act, 1958 in respect of offences falling within the purview of the Act. The first decision on the point, which still holds the field is that of Ali Ahmad v. The State (P L D 1962 S C 102). Though subsequently in the case of Saeed Ahmad v. The State (P L D 1962 S C 277) some doubt was cast upon the correctness of this decision but Ali Ahmad's case was reconsidered by the Full Court of the Supreme Court in the case of Nazir Hussain Shah v. The State (PLD1965SC139) and the decision in the case of Ali Ahmad was re-affirmed and it was observed by his Lordship Fazle-Akbar, J. at page 144 as follows :-----
"This amended section was construed by this Court in the case of Ali Ahmed alias Ali Ahmad Mia v. The State P L D 1962 S C 102. The question for consideration in the above case was: Whether sanction was necessary for prosecution of a public servant in relation to an offence committed by him as a public servant although he bad ceased to be a public servant at the time when cognizance was taken of the offence. This Court while holding that no sanction was necessary observed;
"This decision is, however, distinguishable for, in the case of Hamid Ghulam Sadiq the impugned sanction was granted under the Criminal Law Amendment Act of 1948 and under subsection (5) of section 5 of that Act no prosecution for any offence exclusively triable by a Special Judge could be commenced without a sanction from the appropriate Government. The appropriate Government was also differently defined therein. The Criminal Law Amendment Act of 1948 has, however, now been repealed and replaced by the Pakistan Criminal Law Amendment Act of 1958. Under clause (b) of the Schedule appended to this Act an offence under section 409 when committed by any public servant in his capacity as such public servant is still by virtue of subsection (1) of section 5 triable exclusively by a Special Judge but under subsection (5) of section 6 thereof sanction of -the appropriate Government is required only for the prosecution of a public servant for an offence under the said Act. The prosecution in this case was on the basis of a formal complaint lodged by the Assistant Inspector of the District Anti-Corruption Branch, Comilla, on the 5th of March 1958, but the sanction was actually granted on the 16th of April 199. At the time, therefore, that the sanction was granted he had ceased to be a public servant. Thus under the provisions of the Act of 1958, no sanction for his prosecution was at all necessary'."
The view taken in the case of Nazir Hussain was fully reiterated by their Lordships of the Supreme Court in the case of Ataur Rehman v. State (PLD1967SC23). However, Mr. Muhammad Arif relied upon the case of Abdul Fateh Ursani v. State (1972 S C M R 239) in support of his contention that the sanction to prosecute under the Criminal Law Amendment Act, 1958, was still necessary even if a public servant is ceased to be public servant. He particularly, relied upon the following observations at pages 241 and 242 of the judgment ;
"While an accused person in the first category must be a public servant at the time of the commission of the offence it does not stand to reason that with the termination of his service, he loses the protection provided in section 6(5) that previous sanction of the appropriate Government will be required to prosecute him."
But, the earlier decisions of the Supreme Court particularly the decision of the Full Court in the case of Nazir Hussain Shah was not brought to the notice of their Lordships, and the learned Advocate who had appeared for the State had conceded that the sanction was necessary in the case of a public servant who had ceased to be public servant. This decision was in fact cited before the Supreme Court in the case of Muhammad Abbas v. The State (1974SCMR445) in which the similar question of illegality of prosecution of a public servant without sanction was raised, but his Lordship Anwarul Haq, J. who wrote the opinion of the Court, observed at page 448 as follows;
"We consider that in view of the dictum of the Full Court in the case of Nazir Hussain Shah which was reiterated in the subsequent case of Ataur Rehman, the view taken by the Division Bench in the case of Abdul Fateh cannot prevail. It appears that the two previous decisions were not brought to their Lordships' notice."
I am, therefore, clearly of the view that if the petitioner had ceased to be a public servant, the sanction of the appropriate Government was not at all required to prosecute the petitioner under the provisions of Criminal Law Amendment Act, 1958.
9. This brings me to the next contention of the petitioner that he had not ceased to be a public servant as his resignation by the Deputy Commis sioner, Thatta was accepted with certain reservation which implies the continuation of the service. Before I examine this contention it will be of advantage to reproduce the order of the Deputy Commissioner, Thatta, whereby he accepted the resignation of the petitioner;
"Resignation tendered by Mr. Mahmood Ahmed Shaikh, clerk in the Deputy Commissioner's Office Thatta is ereby accepted with effect from 11-1-68 the date from which he proceeded on four months leave as be did not resume his duties afterwards.
This acceptance of resignation is subject to the same being subsequently changed according to the result of departmental enquiries and criminal cases pending against him."
The first paragraph of the order clearly shows that the resignation was accepted by the Deputy Commissioner, Thatta, with effect from 11-1-1968, as the petitioner proceeded on four months leave on that date. It is not the case of the petitioner that he performed any duties in the Office of the Deputy Commissioner, Thatta, after the date of acceptance of the resignation. In my view the second paragraph only provides for contingency that in a case of an unfavourable result of the departmental enquiry or criminal cases, the petitioner was to be dealt with in accordance with those rules of service which are attracted to such cases. But if the result of enquiry is favourable to him nothing more was to be done because he had resigned. He was not removed from service so that be could be re-instated. He could not even claim re-employment as of right as he had not tendered his resignation conditionally. Therefore, I am of the opinion that the petitioner had ceased to be a public servant after acceptance of his resignation by the Deputy Commissioner, Thatta.
In support of the above ground, the learned Advocate for the petitioner relied upon the case of Rashid Ahmad v. The State (PLD1972SC271). But the facts of this case are quite distinct and have no relevancy to the question of acceptance of resignation with the reservation contained in the order of the Deputy Commissioner, Thatta. In the above cited case the appellant who was a public servant was dismissed from service, on 28th January 1961, and he filed a departmental appeal on the 25th February 1961, and the Court took cognizance of the case on 29th September 1961. The appeal filed by the appellant was not decided by the D. M. L. & C. Rawalpindi, before whom it was filed. On these facts, it was contended by the State that since the appellant had ceased to be a public servant on 28th January 1961, no sanction was required, but repelling the contention his Lordship Waheedud din, J., observed;
"In view of this, it is quite clear that the appeal of the appellant is still pending and he is still in service of the respondent. In this view of the matter, the principles enunciated in two decisions of this Court, namely, Nazir Hussain Shah v. The State P L D 1965 S C 139 and Ataur Rehman v. The State P L D 1967 S C 23 have no application to the facts of the present case. In the result, I would hold that the appellant is still in the service of the respondent."
Therefore, this case is of no help to the petitioner.
10. Mr. Muhammad Arif's next contention was that sanction to prosecute the petitioner was still required as the petitioner has been employed by the Agricultural Bank of Pakistan (hereinafter called the Bank) in the year 1970, much before the Special Judge took cognizance of the offences with which the petitioner has been charged, and in accordance with the provisions of section 2(b) of the Criminal Law Amendment Act, 1958, he has again become a public servant. In support of his contention Mr. Arif, the learned counsel for the petitioner relied upon an unreported judgment of a Division Bench of this Court in the case of Nasim Akhtar v. The State (Cr. Appeal No. 170/70), which no doubt lays down the rule that if a public servant who had ceased to be a public servant has been re-employed, before the Court took the cognizance of the offence with which he was charged, sanction to prosecute him under the provisions of Act was necessary. But in that case the fact of re-employment by the Government was admitted. However, in the present case there is nothing on the record before me to prove the assertion of the petitioner. In fact this ground has even not been taken in the memorandum of petition. The petitioner has not even alleged in the petition that he has been so employed. The learned Additional Advocate-General does not admit the assertion of the petitioner that he has been employed with the Bank. Of course, Mr. M. Arif, the learned counsel for the petitioner has produced before me a cyclostyle copy of alleged seniority list of the Assistants of the South Zone of the Bank as on 30th June 1974, but no reliance can be placed upon it by me. The assertion has got to be proved. I am of the opinion that this objection should have been raised before the learned Special Judge-cum-Enquiry Officer and it is still open to the petitioner to raise it before him.
However, I may mention that on the ground urged before me, a further question does arise, which is, whether the petitioner has become a public servant because of his alleged employment with the Bank. In this connection Mr. Arif referred to the definition of public servant given in section 2(b) of the Act, which reads as follows :---
"Public servant means a public servant defined in section 21 of the Pakistan Criminal Code and includes the employees of a Corporation or other Body Corporate or Organization set-up by the Central Government."
However, at this stage I shall not make any observation on this assertion as it might prejudice the petitioner or the State and leave it open. Nevertheless, if the Special Judge finds that the petitioner has become a public servant within the meaning of section 2(b) of the Act before he took cognizance of the offence with which the petitioner is charged, he shall have to address, by a letter, the appropriate Government in the matter and if the required sanction is neither received nor refused within 60 days of the receipt of the letter by the appropriate Government such sanction shall be deemed to have been duly accorded. Therefore, this ground also is not of much avail to the petitioner at this stage and the proceedings cannot be quashed on this ground as well.
11. The next ground which the learned Advocate for the petitioner urged before me is that the substance of charge against the petitioner is vague and general inasmuch as it does not specify the manner in which defalcation has been committed and the petitioner will be prejudiced in his defence due to lack of specific allegation against him. Before I examine this ground I may reproduce the substance of charge below :-----
"It is alleged that you accused Abdul Jabbar son of Abdul Wahid Uquaili and Muhammad Mahmood Ahmad son of Muhammad Khurahid Shaikh were posted as Special Railway Magistrate and clerk respectively in the Court of Special Railway Magistrate at Karachi from 1-1-1962 to 20-4-1962 and were public servants. As such public servants, during the said period, you realised Rs. 3,900 from various ticketless passengers on account of fine and you abusing your official position and in collusion with each other, did not deposit the said amount in Government treasury but dishonestly mis appropriated the said amount and you also committed forgery in the Government record and made false entries in the cash books showing that the said amount had been deposited in the Government treasury and this you did with intention to defraud the Government and thereby you committed an offence punishable under sections 409/468/477-A and 109, P. P. C. read with section 5(2) of the Prevention of Corrup tion Act and within the cognizance of this Court."
In my opinion the substance of charge appears to be in accord with the provisions of section 222 of the Code of Criminal Procedure, particularly subsection (2) thereof which provides as follows :----
"(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234;
Provided that the time included between the first and last of such dates shall not exceed one year."
The substance of the charge gives the time included between the first and the last dates as well as the gross sum. Clause (2) quoted above itself provides that particular items or exact dates need not be specified.
The petitioner's grievance is that the manner of committing the offence has not been stated in the substance of the charge but the provisions of section 223 of the Cr. P. C. require that the charge should also contain the particulars of the manner in which the alleged offence was committed only if the nature of the case is such that the particulars mentioned in sections 221 and 222, Cr. P. C. do not give the accused sufficient notice of the matter with which he is charged. However, it will be open to the petitioner to take this objection also before the learned Special Judge and the learned Special Judge influenced by any observations made herein on this point can order necessary additions or alterations in accordance with the provisions of section 227 of the Code of Criminal Procedure and other relevant sections thereof.
12. The petitioner's next ground of attack against the order is that the petitioner is being charged jointly with Mr. Uquaili and thus there is a mis joinder of the charges and the person, but under sections 235 and 239 the petitioner and Mr. Uquaili can be charged and tried together if the conditions mentioned therein are fulfilled. However, if this objection is taken before the learned Special Judge that the petitioner is likely to be prejudiced in his defence he can order separate trials of the petitioner and Mr. Uquaili. I may state that Mr. Arif relied upon the case of Noor Ahmad v. The State (PLD1964SC120) among other cases, in support of this ground. But in the above cited case on the finding that the joint trial was illegal and had resulted in serious prejudice to the two accused drivers their Lordships of the Supreme Court had set aside the convictions of the drivers and had ordered their retrial separately. I am of the opinion that this ground is also of no avail to the petitioner in the present proceedings before me.
13. The petitioner is alleged to have committed sixteen similar offences during the course of his employment in the Office of the Deputy Commis sioner, and sixteen separate cases have been instituted against him in the Court of the Special Judge-cum-Enquiry Officer, Karachi, and in each of the sixteen cases he has been charged separately though jointly with Mr. Uquaili. He has filed these fifteen other petitions in this Court for quashment of the sixteen cases pending against him before the learned Special Judge. Since all these cases raise common questions of facts and law, this judgment will govern this case as well as cases bearing Cr. Misc. Nos. 679 to 693 of 1974, all of which have been heard together.
14. For the reasons given above, I dismiss this petition as well as Petitions 679 to 693 of 1974.
S. Q. Petitions dismissed.
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