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Criminal Appeals Nos. 331 and 326 of 1978, decided on 28th September, 1983.

----S. 6 (5)-Penal Code (XLV of 1860), S. 409/109-Prevention of Corruption Act (1h of 1947), S. 5(2)-Sanction for prosecution- Validity of-Letter addressed to Ministry of Interior for getting sanction for prosecution in respect of accused Government servant instead of Finance Ministry which was relevant and competent to accord sanction- Sanction for prosecution after waiting for statutory period of sixty days, held, cannot be deemed by trial Court to have been granted-Conviction set aside.-[Sanction for prosecution].

P L D 1972 S C 271; Muhammad Tufail v. The State 1980 P Cr. L J 1206 and Syed Afaq v. The State 1983 P Cr. L J 897 rel.

Ahmed Khan Oarakaai for Appellant (in Cr. A. No. 331 of 1978).

Faiz Muhammad G. Soomro for Appellant (in Cr. A. No, 326 of 1978),

Ali Bukhsh Laghari for the State.

Dates of hearing : 30th August and 5th September, 1983.

Appellant Aftab Ahmed and Leslie Frederick alongwith Abdus Salam Baloch were sent up by F. I. A. Hyderabad in the Court of Special Judge (Central) Karachi to stand trial under section 409/109, P. P. C. read with section 5(2) of Act II of 1947. The learned special Judge convicted Aftab Ahmed and Frederick under section 409, P. P. C. read with section 5(2) of Prevention of Corruption Act, 1947 and sentenced them to suffer R. I. for one year. Applicant Aftab has been ordered to pay fine of Rs. 45,000 or in default to suffer R. 1. for two years whereas Leslie Frederick to pay Rs. 25,000 or in default to suffer one year. Accused Abdus Salam was not found guilty and was acquitted. Being aggrieved with the Judgment, dated 27th December, 1978 both the appellants have filed separate appeals which are marked as Criminal Appeals Nos. 326/78 and 331178. I will dispose of above appeals by common judgment on the ground that appel lants were tried jointly by the learned Judge in a case No. 62/1978 and disposed of the case by one judgment.

Briefly stated the facts of the case are that Abdul Qadir Inspector F. I. A. Hyderabad while investigating case of F. 1. R./79, found that Appellant Aftab Ahmed Bhutto National Saving Officer. Market Road, Hyderabad opened a short term deposit Account No. N-1/2, in the National Bank, Circular Branch Hyderabad in the name of "National Saving Officer Market Road Centre, and he used to operate the account till 12th August, 1978 and then appellant Leslie Frederick, being successor of Aftab Ahmed was authorised to operate the above account but once again Aftab took over from Leslie who proceeded on leave and authorised him to operate account. On 11th January, 1977, Aftab withdrew Rs.44,268 through loose Cheque No. 548938. On 15th January, 1977, Mr. Leslie again took over and as authorised person drew Rs. 23,269 on 2nd April, 1977 through loose Cheque No. 548943. The-amount drawn by both the appellants was interest amount of Government Deposits.

At the trial prosecution examined five witnesses. P. W. 1 Abdul Rasheed who was National Saving Officer, has produced only Exh. 5 by which Aftab was given charge from 10th January, 1977 to 14th January, 1977 of National Centre Market Road, during absence of accused Laslie Frederick. P. W. 2 Ayaz Ahmed, Exh. 6, was Manager of National Bank of Pakistan Circular Building Branch, Hyderabad from July, 1975 till 1978. He has stated that appellant Aftab opened a short term account No. N-1/2 on 8th March, 1976 in his capacity as National Saving Officer, Market Road, Hyderabad. He produced account opening form and specimen signatures of Aftab on card as. Exhs. 7 and 8. He deposed that Aftab Ahmed used to operate the accounts and in his absence on leave co-accused Leslie Frederick also operated the account. He produced other documents signed by both the appellants. His evidence is that on 11th January, 1977, Aftab made an application, Exh. 16 and obtained loose Cheque No. 548938, Exh. 17 and withdrew Rs. 44,265.35 while in April, 1977 Leslie Frederick made an, application, Exh. 18 for loose cheque which was supplied and he withdrew Rs. 23,269.33 by cheque which is Exh. 19. P. W. 3 Saeedul War, produced entries made in cash book of National Saving Centre Market Branch and stated that cheque Exh. 17 and Exh. 19 bear signatures of appellants. He was well-conversant with their signatures, p. W. 4 Abdul Qadir, Inspector F. 1. R. stated that he recorded the F. 1. R. and investigated the case, secured relevant documents. P. W. 5, Masood Ali stated that he recorded statement of Saeedul Zaffar and submitted final report on 4th April, 1978. Both the appellants examined no witnesses in their defence, they denied the entire prosecution case. They have denied their signatures on documents, cheques etc. and even not admitted to have been posted at National Saving Centre, Market Road, Hyderabad.

I have heard Mr. Ahmed Khan Barakzai, Advocate for appellant Aftab and Mr. Faiz Muhammad Soomro for appellant Leslie Frederick. I have also heard Mr. Ali Bux Laghari, Advocate for the State.

Learned counsel for appellants contended that appellants were in Directorate of National Saving, which is under the Ministry of Finance, Government of Pakistan but letter for sanction was sent to Ministry of Interior which was not appropriate authority. It has also been argued that trial is illegal and evidence is not reliable.

I do not like to go into the merits of the case but consider the legal point of sanction. The learned Special Judge, addressed to the Govern ment of Pakistan, Ministry of Interior Division and on the expiry of 60 days, the sanction was presumed and trial started. It is admitted posi tion that appellants were working as National Saving Officers, therefore, the relevant Ministry for obtaining sanction for prosecution would be Ministry Finance, Government of Pakistan, Islamabad. The learned Special Judge should have addressed to that Ministry, and not to the Ministry of Interior, which could not in any case give proper sanction. Case law in these points is clear in P L D 1972 S C 271 where it was held that the proper sanction for prosecution had not been obtained, all pro ceedings were rendered illegal and without jurisdiction.

In a case Muhammad Tufail v. The State (1980 P Cr. L J 1206), this Court held that since the competent authority was not addressed the failure on the part of the Government to reply such letter could not be deemed as sanction.

Similarly in Syed Afaq Ali v. The State (1983 P Cr. L J 897) same view was taken by this Court and decided that since the sanction for prosecution had not been sought from the competent authority there was no justification in law drawing presumption under section 6(5) of Pakistan Criminal Law Amendment Act, 1958.

1n view of the legal position discussed above. I hold that letter was not addressed to the Ministry of Finance for getting sanction against the appellants but addressed to Ministry of Interior, the sanction of prosecu tion of appellant after waiting of statutory period of 60 days cannot be deemed to have been granted. Consequently the two appeals are allowed and convictions are set aside. The bail bonds of the appellants stands discharged.

However, it would be open to prosecution to proceed against accused/ appellants in case they desire to do so after obtaining proper sanction from the appropriate authority.

M. Y. H. Appeal allowed.

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