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Criminal Appeals Nos. 37 and 38 of 1955, decided on 28th November 1955.

(On appeal from the orders dated 1st April and 6th April 1955, of the Sind Chief Court at Karachi, in Criminal Appeals Nos. 144 and 145 of 1955).

S. 421-Case involving intricate questions of fact-Summary dismissal of appeal without calling for record inadvisable-Summary dismissal good ground for special leave to appeal to Federal Court.

Where a case under section 409, P. P. C. involved intricate questions of fact, on which two Courts of first instance, first, a Magistrate, and, in a retrial, the Special Judge, had taken different views, summary dismissal of appeal by the Chief Court in the absence of record, under section 421, Cr. P. C. was held to be inadvisable.

Summary dismissal in these circumstances was a good ground for granting special leave to appeal to .the Federal Court.

Khalil v. Crown P L D 1953 F C 133 and Abdul Hamid's case PLD 1955 FC 86 ref

Case, however, not remitted to the Chief Court for re-hearing of appeal on merits in view of the extent of argument addressed in the Federal Court which 'was fully sufficient to enable the Court to confirm the correctness of the dismissal in relation to the questions of fact arising in the case.

Technical, intricate and varying provisions in Central and Provincial Acts-Operate as a scheme for protection of corrupt public servant.;-Need for revision by legislature in interest of Justice.

Technical requirements (in regard to sanction for prosecution) have in actual practice developed the aspect of a first and very formidable line of defence for the public servant involved, through presenting to the prosecution an obstacle of a most intricate character resulting from the existence of varying provisions in different statutes both Central as well as Provincial, which purport to govern the matter. Whatever may be the reasons by which the Legislatures have been prompted in imposing with such particularity the various requirements regarding sanction to prosecutions as well as restrictions regarding the minimum status of police officers who shall inquire into allegations of corruption by public servants-and we feel no doubt that these safeguards were thought to be both necessary as well as salutary-it is in our opinion desirable that the Legis latures should be made aware that these safeguards operate no less vigorously as a scheme of protection for corrupt public servants against the risk of successful prosecution. It would be in the best interest of justice, and, we do not imagine that it would conflict with any interest of society at large, that these safeguards should be revised in the light of actual experience so that they may operate not as they do at present, but indeed to suppress the mischief of corruption, and to advance the remedy by making the processes of prosecution not materially more arduous than they are in the normal course.

Ss. 4 (4) and 5 (5) proviso-Case pending in appeal before Chief Court on. material date of coming into force of Act X XXVII of 1953, i.e., 17th November 1953 Remitted for re-trial-Case should go to Special Judge's Court- Fresh sanction not required.

A case under section 409, P. P. C. was initially tried by a Magistrate and the accused convicted. On appeal, the Chief Court remitted the case for re-trial, and, meanwhile, on 17th November 1953, the Criminal Law (Amendment) Act (XXXVII of 1953) came into force.

Held, that the case should go to the Court of a Special Judge instead of a Magistrate under section 4 (4) of Pakistan Criminal Law (Amendment) Act (XIX of 1948) as amended by Act XXXVII of- 1953. As soon as conviction of the accused was set aside by the Chief Court, the case became pending in the Court of the relevant Magistrate and there fore must stand transferred to the Court of the Special Judge under section 4 (4).

On such transfer, fresh sanction for prosecution is not required by virtue of proviso to section 5 (5) of Act XIX of 1948 as amended.

Ilahi Bakhsh F. Khamisani, Advocate, Federal Court, instructed by M. Siddiq, Attorney for Appellant.

Nasir-ud-Din, Advocate, Federal Court, instructed by M. A. Zaidi, Attorney for Respondent.

Date of hearing: November 28, 1955.

This judgment will dispose of two Criminal Appeals, via., Nos. 37 and 38 of 1955, brought before this Court by the same person viz., Gut Muhammad. The principal ground upon which special leave to appeal to Gut Muhammad against the appellate judgment of the Sind Chief Court in each of these cases was granted, was that the cases involved intricate questions of fact which could only be decided upon proper appraisement of the evidence, and the Chief Court had not exercised a proper discretion in dismissing each appeal summarily under section 421 of the Criminal P. C.

The facts were as follows :-Two contractors by name Umer Moosa and Umar Jan Muhammad paid rupees five hundred each as security deposit along with two tenders submitted by them in the office of the Chief Engineer of the Karachi Port Trust, on the 23rd July, 1949. 'The Head Clerk this office was one M. P. Controllo and Gut Muhammad was an Assistant Head Clerk serving under him. The last gay for submission of tenders for the particular contract was the 22nd July 1949, but as that was a public holiday, it was in order to submit the tender for acceptance on the following day, and it may be stated at once that nothing appears in the evidence of either Umer Moosa or Umar Jan Muhammad to indicate that any difficulty was made by the office in regard to acceptance of their tenders on this ground. Eventually the contract was awarded to some other person, and Umer Moosa and Umer Jan Muhammad became entitled refund of their security deposits. When they applied for this purpose the discovery was made that the money had never been deposited with the Cashier of the Karachi Port rust. Enquiries were set on foot, and sanction to prosecution older the Prevention of Corruption Act, 1957 having been stained, a challan against both Controllo as well as Gul Muhammad was put ii to Court early in February, 1951. after transfer from two other Magistrates, the case came to Mr. Ali Jawad who convicted both Controllo and Gul Muhammad on 1st July 1953. They appealed in the Sind chief Court and on the 26th June 1954, the appeals were accepted on the ground that there had been an illegality which vitiated the trial by reason of misjoinder of charges well as of parties. (It should be mentioned here that There had been added in that case, a charge against Controllo apparently for embezzlement of Rs. 133-14-0 and against Gul Muhammad individually for embezzlement of Rs. 50). The learned Single Judge of the Sind Chief Court in accepting to appeals directed that the accused persons should be tried separately "by any Magistrate whom the District Magistrate considers fit." The case accordingly came to the District Magistrate, but was not marked to any Magistrate at instead was sent to the Special Judge under the Criminal Law (Amendment) Act, 1948, for trial. There, Controllo and Gul Muhammad were tried on a charge of embezzlement respect of the two sums of rupees five hundred mentioned hove and Gul Muhammad was tried separately on a charge embezzlement of rupees fifty, received by him on the same date viz., 23rd July 1949 from Umer Moosa in respect another tender. In the first case, the Special Judge held the evidence that the sums in question were received only Gut Muhammad and that Controllo was not responsible handling them at any stage, and accordingly he convicted Gul Muhammad under section 409 of the P. P. C. and awarded him sentences of imprisonment and fine. The accused Controllo was held to be not guilty and was acquitted.

In the second case although Controllo was not an accused person the defence was taken by Gul Muhammad, as in the first case, that although the receipt for the sum in question bore his signature, the amount was in fact received by Controllo and he had signed the receipt under Controllo s directions, according to the practice then being followed. In this case, Controllo gave evidence as a prosecution witness. The Special Judge posed the question in his judgment whether the money had been received by Gul Muhammad of by Controllo and ho came to the clear, conclusion that it was received by Gul Muhammad alone. He accordingly convicted Gul Muhammad and sentenced him to a term of imprisonment as well as a fine. Gul Muhammad appealed to the Sind Chief Court against each conviction, and as has already been stated, his appeals were summarily dis missed.

Learned counsel appearing on behalf of the appellant has invited our attention to certain items of evidence appearing on the record which go to support the " plea of Gul Muhammad that, although he signed receipts in accordance with the usual practice, the money was in fact received by Controllo. This evidence is of a nature going to prove the existence of a system of a working, but it is supported by officials of the Port Trust whose information, assuming that they indeed possessed any, could not be acquired at first band, since their work lay in other offices than that of the Chief Engineer. On the other hand, the direct evidence in both cases was clearly to the effect that money had been received by Gul Muhammad himself, without any intervention by Controllo. In that state of the evidence it is obviously impossible to interfere with the findings recorded by the Trial Judge, but it is necessary to observe that that conclusion can only be reached by a Court of fact after consideration of all the evidence on the record in each case. It is clear that the learned Judges of the Sind Chief Court who heard the appeals did not have the record before them. The case was one in which on the facts, two Courts of first instance had come to opposite conclusions. The First Court had held both Controllo as well as Gull Muhammad to be guilty of embezzlement. The Special Judge had exonerated Controllo on the same evidence. The plea of Gul Muhammad that it was Controllo and not himself who received and mis appropriated the money was before the Sinai Chief Court as the final Court of fact and it seems perfectly plain that for a satisfactory resolution of the question thus raised, it was necessary for this Court to appraise the evidence. We take this opportunity of expressing our regret that this was not done. Although justice may have been done in regard to the final conclusion, in view of the method adopted by the Court of Appeal, the claim that it was also seen to be done cannot be advanced in the present case. It will serve a salutary purpose if, in this connection, we refer to a recent decision of this Court in the case Khalil v. Crown (PLD 1953 FC 133 at p.137) where the following observations were made by Sir Abdul Rashid the then Chief Justice of Pakistan :-

"It is a fundamental principle that ever, accused person shall be given the substance of a fair hearing in accordance with law in an appellate Court. This enjoins on the appellate Court the duty of exercising its discretion in a sound end judicial manner. Where discretion vested in a High Court has been exercised arbitrarily and has resulted in the substance of a fair hearing being denied to the accused, this Court must interfere in order to ensure that the appellant gets a fair hearing in the appellate Court. In a case of this magnitude involving complex questions the record should have been sent for, so that the learned Judges could deal adequately with the grounds of appeal preferred before them and come to an independent finding and form their own conclusions. This was not a fit case where they should have contended themselves with a mere perusal of the judgment of the trial Court.

No hard and fast rule can be laid down which would govern the applicability of section 421 in all cases. This Court can only indicate that, in cases which are not tried by jury, the appellate Court should be most reluctant to exercise the discretion vested in it under section .421 unless the case is of such a simple nature that a mere perusal of the judgment shows unmistakably that no substantial argument can be addressed to the Court on behalf of the convicts."

That was a case from the High Court at Dacca but more recently, in the case of Abdul Hamid (PLD 1955 FC 86), which came before this Court on appeal from the Sind Chief Court, our learned brother Shahabuddin dealing with the question of the appro priateness of the summary dismissal of the appeal by' the Sind Chief Court observed as under :-

"I would like to add that the Chief Court should have indicated in brief the reasons for dismissing the appeal."

In the normal course, we should have felt it our duty to remit these cases to the Court of Appeal for a rehearing, but in view of the extent of the arguments presented before us which were fully sufficient to enable us to confirm the correctness of the dismissal in relation to the questions of fact arising in both cases, we do not propose to follow that course.

It remains to consider an argument of a technical nature raised on behalf of the appellant by learned counsel. The point is the usual one in cases of corruption by public servants vie., the existence of proper sanction. The nature and the complexity of the arguments which have recently been addressed to this Court on this point on behalf of public servants, whose acts of corruption or dishonesty were established by the plainest and most impeccable evidence, compel us to the conclusion that these technical requirements have in actual practice developed the, aspect of a first and very formidable line of defence for the public servant involved, through presenting to the prosecution an obstacle of a most intricate character resulting from the existence of varying provisions in different statutes both Central as well as Provincial, which purport to govern the matter. Whatever may be the reasons by which the Legislatures have been prompted in imposing with such particularity the various requirements regarding sanction to prosecutions as well as restrictions regarding the minimum status of police officers who shall inquire into allegations of corruption by public l we feel no doubt that these safeguards were thought to be both necessary as well as salutary-it is in our opinion desirable that the Legislatures should be made aware that these safeguards operate no less vigorously as a scheme of protection for corrupt public servants against the risk of successful prosecution. It would be in the best interests of justice, and we do not imagine that it would conflict with any interest of society at large, that these safeguards should be revised in the light of actual experience so that. they may operate not as they do at present, but indeed to suppress the mischief of corruption, and to advance the remedy by making the processes of prosecution not materially more arduous than they are in the normal course. The argument of learned counsel on behalf of the appellant Gul Muhammad on the point of validity of sanction for prosecu tion was lengthy one, but it is not necessary for the purposes of this judgment that it should be reproduced in detail. The simple position is that Gul Muhammad as an employee of the Karachi Port Trust must be regarded by virtue of section 84-A of the Karachi Port Trust Act, 1886, as . a "public servant" within the meaning of section 21 of the P. P. C. He, therefore, fell also within the definition of "public servant" in section 2, clause (b) of the Pakistan Criminal Law (Amendment) Act, 1948. His trials before the Special Judge under the latter Act commenced on the 15th July, 1954 and the 6th January 1955, respectively ; on the 17th November 953, the Pakistan Criminal Law (Amendment) Act, 1948, had been amended, inter alia in respect of the jurisdiction of Special Judges. Section 3, subsection (1) of the Act, as amended, provides that "offences" specified in the Second Schedule shall be tried by Special Judges under this Act" and a reference to clause (b) in the Second Schedule will show that it includes offences punishable under section 409 when committed by any public servant. The provisions of the Act with regard to cases which were to be sent to Special Judges include in subsection (4) of section 4, a requirement that all cases of the kinds referred to in the Second Schedule which on the 17th November 1953, were pending in any Court other than the Court of the Special Judge were to be deemed on that date to have been transferred to the Special Judge having jurisdiction. The argument which was raised before us for the appellant was that on the 17th November 1953, his case was not pending before any Court of first instance from which . it could have been transferred to the Court of the Special Judge, but was pending in appeal before the Chief Court of Sind. In our opinion, the argument lacks substance. When on the 26th June 1954, the convictions v were set aside and the cases against Controllo and Gul Muhammad were ordered to be separated and separately tried the effect was that the cases were re-opened and came pending once again, on all material dates between the 1st July 1953, when the conviction were recorded and the 25^th June 1954, when they were set aside. The material date intervening is the 17th November 1953, on which date the cases must be deemed to have been pending and conse quently, by application of subsection (4) of section 4 of the Pakistan Criminal Law (Amendment) Act, 1948, they must be deemed in law to have been transferred to the Special Judge. That being ease, there was no necessity for any sanction to the prosecution, in view of the provision contained in proviso to subsection (5) of section 5 of the same Act which reads as follows :-

"Provided that no such sanction shall be required in respect of a case transferred under the proviso to sub section (2) of section 4 or by virtue of subsection (4) of that section."

As has been stated already, sanction to the prosecution of the two Clerks had been given at the earliest stage, in relation to a prosecution under the Prevention of Corruption Act of 1947. In the result, the trial and conviction were for offences under the P. P. C. It was contended before us that the Chairman of the Karachi Port Trust was not competent to grant sanction under the Prevention of Corrup tion Act, 1947, as he was not competent to direct the removal of the two erring officials. The point is, in our opinion, immaterial in view firstly of the facts that the Prevention of Corruption Act was not applied in the case, and secondly in view of the new provisions contained in section 4, subsection (4) and section 5, subsection (5) of the Pakistan Criminal Law (Amendment) Act, 1948. Both appeals fail and we hereby dismiss them.

A.H. Appeals dismissed.

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