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Petitioner: RAHIM BUX VS Respondent: THE STATE
P L D 1960 (W
P L D 1960 (W.P.) Karachi 899
Before A. S. Faruqui, J
RAHIM BUX‑Appellant
versus
THE STATE‑Respondent
Criminal Appeal No. 194 of 1957, decided on 24th July 1960.
(a) Prevention of Corruption Act (II of 1947), S. 6‑Sanction-- offence by public servant under S. 409, P. P. C.‑S. 6 inapplicable.
(b) Jurisdiction‑Ouster‑Not readily accepted by Courts.
(c) Pakistan Criminal Law Amendment Act (XIX of 1948), S. 4 (4) read with S. 5 (5)‑Sanction not required in case transferred by operation of S. 4 (4)‑[Muhammad Sharif v. The Crown P L D 1956 F C 34 ref.].
(d) Prevention of Corruption Act (II of 1947), S. 5 (1) (c) (4) & S. 6‑S. 5 (1) (c) does not repeal (by Implication) S. 409, Pakistan Penal Code (XLV of 1860)‑Prosecution lodged under S. 409 does not require sanction under S. 6‑[ 1953 Cr. L J 309 ; 1953 Cr. L J 932 ;
The State v. Pandurang Baburao A I R 1955 Bom. 451 ; A I R 1957 S C 458 ; Crown v. Babu Khan P L D 1952 Lah. 472 ; The Crown v. Muhammad Hayat P L D 1954 Lah. 424 and Khwa j., Zakaullah v. The State P L D 1959 B. J. 6 ref.
The State v. Gurcharan Singh A I R 1952 East Pb. 89 dissented from.
(e) Criminal Procedure Code (V of 1898), Ss 222 (2) and 234‑Misappropriation of 18 items of money‑Specification of gross sum in charge, enough‑Charge deemed to be of one offence.
(f) Penal Code (XLV of 1860), S. 409‑Case instituted under S. 409‑Conviction, as a result of error, under S. 5 (2), Prevention of Corruption Act (11 of 1947)‑High Court in appeal altered conviction to S. 409, P. P. C.‑ Criminal Procedure Code (V of 1898), S. 423.
(g) Sentence‑Trial of accused protracted over 6 years‑Loss of job, expense, mental suffering of accused‑Sentence not enhanced from imprisonment till rising of' Court and fine of Rs. 2,500 in a case of misappropriation of Rs. 4,367.
Dharamdas for Appellant.
Muhammad Hayat Junejo, A. P. P. for Respondent.
Dates of hearing : 3rd, 7th and 8th July 1959.
JUDGMENT
This is an appeal by Rahimbux against the judgment of Mr. Kadir Nawaz Khan Awan, Special Judge, Hyderabad, convict ing him and one Kadir Bux of an offence under section 5 (2) of the Prevention of Corruption Act, Act II of 1947, and sentencing each of them to imprisonment till the rising of the Court and fine of Rs. 2,500. Kadirbux has not appealed.
Appellant Rahimbux and the other accused Kadirbux were employees of the Industries Department of the former Government of Sind and worked as junior and senior accounts clerks respectively in that office from May 1951 to August 1951, which is the relevant period. During this period they are alleged to have dishonestly misappropriated a total sum of Rs. 4,367‑12‑0 with which they were entrusted in their capacity as public servants. They used to draw the pay and travelling allowances for the members of the staff and also monies for the purchase of raw materials required for the handicraft school in Sind. The above‑mentioned sum of Rs. 4,367‑12‑0 related to such items as mentioned above and which the two accused persons viz. the present appellant and Kadirbux neither credited in the Government account nor paid to the persons concerned.
On the 15th of August 1951, accused Kadirbux made report to Mr. M. A. Moghul, Director of Industries, Former Sind, to the effect that appellant Rahim Bux and his brother Abdul Rehman had embezzled Government money to the tune of Rs. 9,000. Having received this report Mr. Moghul addressed a letter to the Police Inspector, Cantonment Area, Karachi stating the above fact and saying that full details of the amounts were being worked out. Having received this report Mr. Muhammad Yousuf Khan, S. I. P. proceeded to the Sind Secretariat and after having interrogated the accused persons and making preliminary inquiries arrested them and then sent the papers to the C. I. D. Police, as a result of which Nazir Ahmed Khan, S. I. P. was entrusted with the investigation of this case. Nazir Ahmed Khan completed his investigation by 31‑1‑1953, and on which date he lodged the F. I. R. of the offence in the Court of the Ninth A. C. M., Karachi. The accused, who were on bail, were again arrested on 7‑2‑1953, and were challaned in the Court of the Second A. C. M., Karachi.
On 19‑5‑1953, the case was transferred from the Court of the 2nd A. C. M., Karachi to that of the 5th A. C. M., Karachi, from where it was ultimately transferred to the Court of Mr. Ghaznavi, Special Judge, Karachi on or about the 26th of January 1954. But it did not rest there and was again transferred to the Court of the Special Judge, Hyderabad on or about 31‑1‑1955. It remained with the Special Judge, Hyder abad till about the 21st of June 1955, when it was transferred to the Court of the Extra Special Judge for Sind at Hyderabad, before whom a certain amount of prosecution evidence was led, but by 15‑9‑1956, the post of the Extra Special Judge for Sind was abolished and the case came to be tried by the Special Judge, Hyderabad.
The prosecution examined Muhammad Hayat (P. W. 1), Mst. Jamila (P. W. 2), Mst. Khadija (P. W. 3), Ghulam Dastagir (P. W. 4), Mr. M. A. Moghul (P. W. 5), Mst. Anwar Sultana (P. W. 6), Ali Muhammad (P. W. 7) and Kamaluddin (P. W. 8). P. W. 1 Muhammad Hayat proved that he had not received the amount of his T. A. Bill for the month of May 1951. P. W. 2 Mst. Jamila, who was the Lady Superintendent of the Government Handicraft School, Sind, proved that appellant Rahim Bux had neither paid the sum of Rs. 200 nor the sum of Rs. 950 nor the raw materials of that value at any time, and that she had in September 1951, on inquiry by the Head Office, informed them accordingly. P. W. 3. Mst. Khadija, who was the Head Mistress of the Handicraft School at Tando Muhammad Khan, proved that appellant Rahim Bux neither paid her the sum of Rs. 180 nor supplied her raw material of that sum. P. W. 4 Ghulam Dastagir, who was the Director of Industries, Sind at Karachi in 1951, for some time, proved that he bad passed variouzi bills for payment on account of claims and other dues relating to Schools. P. W. 5 Mr. M. A. Moghul proved the various bills which he hid passed pertaining to his office as the Director of industries, Sind. He also proved his report which he had made to the police regarding the defalcation in question. P. W. 6 Mst. Anwar Sultana, who was the Head Mistress of the Handicraft School at Sukkur in 1951, merely proved the procedure which was adopted by them with regard to the receipt of raw materials which they used to get on requisition from the Head Office. P. W. 7 Ali Muhammad, who was a peon in the office of the Director of Industries, Sind at Karachi proved that the various sums of money as shown by Exhs. 3, 13; 17 (A1), 17(A7), 17(A8) and 17(A9) were drawn by him from the bank and paid to appellant Rahimbux under the orders of the other accused Kadirbux. P. W. 8 Kamaluddin, who was the Office Superintendent in the Department of Industries had, under the orders of the Director examined and checked the accounts and pointed out the various items of money which had been defal cated. Then there was the evidence of Syed Noor Muhammad Shah (P. W. 9) to prove that the rent of his house, which he had given to the Inspector of Weights and Measures (under the Department of Industries), had not been paid for more than twenty months amounting to Rs. 766. Abdul Majid, who was Production inspector in the Department of Industries proved that several of his bills which he had drawn had not been paid to him.
All this evidence proves that the sum involved viz. Rs. 4,367‑12‑0 had been entrusted to the accused and they had been defalcated. 'The case of the appellant, when he was examined by the Special Judge was that all the bills except bill No. 31 bore his initials and they were cashed by him and hence he must have received the sums relating to these bills. He, however, said that he had not misappropriated these sums and he had given them all to accused Kadirbux, who must have disbursed these. The other accused Kadirbux stated that though he was senior accounts clerk he was not performing that duty and that he was working as a personal clerk to the Director of Industries, that he was not entrusted with the amount of Rs.4,367‑12‑0 and that it was Rahimbux who was working as the accounts clerk. It was accused Rahimbux who had actually received these amounts and he (Kadir Bux) had merely checked the bills. Therefore in effect the two accused persons viz., the appellant and the other accused Kadirbux were merely pushing the blame from one to the other.
Mr, Dharamdas, the learned counsel for the appellant, has contended that the whole of this trial is vitiated for want of sanction as required by law. It is an admitted position in this case that no sanction had been issued. The provisions which are relevant for the consideration of this contention are as given below.
The Prevention of Corruption Act, (II of 1947), provided by section 6 that no Court shall take cognizance of an offence punishable under section 161 or section 165 of the Pakistan Penal Code or under subsection (2) of section 5 of that Act alleged to have been committed by a public servant, except, with the previous sanction . . . . . It has been noted that the challan in this case, which was filed in the Court of the A. C., M., Karachi, was under section 409 of the Pakistan Penal Code, and therefore it would appear that section 6 of Act II of 1947, did not apply to this case.
The other provision relating to sanction was one contained in section 5 (5) of the Criminal Law (Amendment) Act, (XIX of 1948), which provided that "Notwithstanding anything con tained in the Code of Criminal Procedure, 1898, the sanction of the Central Government shall be required for the prosecution under that Act of public servants for offences specified in the schedule or notified from time to time in the official Gazette for trial by the Special Judge." Section 409 was one of the offences included in the Schedule to that Act. It would, however, appear from a perusal of section 5 (5) that sanction was required for the trial of an offence under section 409 if the same was by a Special Judge.
The contention of Mr. Dharamdas with regard to these provisions was firstly, that on 7‑2‑1953, there was a Special Judge at Karachi and the prosecution could not escape the responsibility for obtaining a sanction by filing the case in the Court of the A. C. M. and that this would amount to evasion which the law does not countenance.
The contention, though plausible, is not one which can be sustained. The contention could only be effective if it could be held that the Criminal Law (Amendment) Act XIX of 1948, had ousted the jurisdiction of the ordinary criminal Courts with regard to trial of offences set out in the Schedule of the Act. It is an accepted principle of law that the Courts do not readily assume such an ouster. It has to be either by an express act of legislature or by necessary implication. There is no express ouster in this case. It is then to be seen whether it could be deduced by implication. A perusal, however, of Act XIX of 1948, shows that the jurisdiction of the Special Judges is itself limited. Section 4 of the Act provides that a Special Judge shall have jurisdiction within such territorial limits as may be fixed by the Central Government by notification in the official Gazette in respect of cases sent up to him for trial by the Special Police Establishment constituted under the Pakistan Special Police Establishment Ordinance No. VII of 1948. A plain reading of this section makes it clear that the jurisdiction of a Special Judge is limited territorially and has to be fixed by the Central Government bar notification. It is also limited with regard to the cognizance of such cases as may be sent up to him for trial by the Special Police Establishment. Both these conditions must exist before the Special Judge could under the Act of 1948, assume jurisdiction in respect of a case. If therefore the Special Police Establishment did not send up a case for trial by the Special Judge, he would have no jurisdiction in respect of it even if the offence was committed within the territorial limits of his jurisdiction. Their Lordships of the Federal Court in a case reported in Muhammad Sharif v. The Crown (PLD 1956 FC 34) had clearly repelled a similar contention as has been raised in this case. They held that the sanction under section 5 (5) of the Criminal Law (Amendment) Act of 1948, was required only for prosecution under that Act before the Special Judge. They further held that there was nothing In the Act of 1948, which expressly or by necessary implication laid down that the juris diction of the ordinary Courts in respect of offences which they were competent to try under the general law was ousted by the appointment of a Special Judge . In the presence of this clear authority, which is on all fours with the present case, there was hardly any justification for the contention which was raised by the learned counsel. It may be noted that it was by the Criminal Law (Amendment) Act XXXVII of 1953, which came into force on 17‑11‑1953, that it was for the first time provided by section 6 (3) that "Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, the offences specified in the Second Schedule shall be triable exclusively by Special Judges." Section 4 of Act XIX of 1948, was thus amended and it was then that the jurisdiction of the ordinary criminal Courts with regard to the offences speci fied in the Second Schedule was ousted. Section 409, P. P. C. was amongst the offences included in the Schedule. There could therefore be no uncertainty as to the intent of the Legislature.
sanction under that Act would be required in respect of cases so transferred.
With regard to his contention that sanction was required under section 6 of Act It of 1947, Mr. Dharamdas argued that section 5 (2) of the Act included an offence under section 409, P. P. C. and therefore in terms of section 6 a sanction was neces sary.
Section 5 of Act II of 1947 defines misconduct. Section 5 (1) (a) and (b) deal with cases of gratification. Section 5 (I) (c) provides that a public servant is said to commit the offence of criminal misconduct if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do. Mr Dharamdas argues that the effect of the enactment of section 5 (1) (c) is that section 409 of the Pakistan Penal Code is pro tanto repealed so far as it concerned offences by public servants. He therefore urges that even though the prosecution chose to mention section 409, P. P. C. in the challan, it was really a prosecution for misconduct as defined by section 5 (1) (c) of Act it of 1947 and as such the Court could take no cognizance of the case unless there was a sanction under section S of the said Act. In support of his proposition he cited a case reported in The State v. Gurcharan Singh (A I R 1952 E Pb. 89) which was a judgment of a Bench consisting of Khosla and Falshaw, JJ. This is what was held in that case
"In view of the changes introduced by Act II of 1 947, particularly regarding the necessity for previous sanction of the appropriate authority for prosecution, the right of the accused to give evidence as a witness and the change of sentence, it is not open to the authorities concerned, when a public servant is accused of committing an offence which would be punishable either under section 409, Penal Code, or section 5 (1) (c) of the Act, to choose which of these two sections the offender should be prosecuted under, and by choosing to proceed under section 409, Penal Code, to dispense with the necessity for any previous sanction in the case of a public servant removable from office by an authority subordinate to the Provincial or Central Government, and also to deny him the privilege of giving evidence on oath as a competent witness on his own behalf."
This case is so well known because it has been dissented from so many times by so many Courts and in this view of law it stands severely alone. It was dissented from in the Madras case reported in (1953 C L J 309) and Madhya Bharat case reported in (1953 C L J 932). The question was considered in a Full Bench case at Bombay reported in The State v. Pandurang Baburao (A I R 1955 Bom. 451) where the entire case‑law was reviewed. It was held, upon a consideration of section 26 of the General Clauses Act and upon the accepted principles of interpretation, that there was no implied repeal of section 409 of the Penal Code by section 5 of the Prevention of Corruption Act. The Punjab case was considered and was dissented from.
Lastly, is the case of the Supreme Court of India reported in A I R 1957 S C 458 wherein it was held that the two sections namely, section 405 of the Penal Code and section 5 (1) (c) of the Prevention of Corruption Act were not identical in essence, import and content. On a comparison of the two provisions it was shown that an offence under section 405 of the Indian Penal Code was separate and distinct from the one under section 5 (1) (c) of the Prevention of Corruption Act. Upon these and other considerations it was held that section 405 of the Penal Code was not repealed by section 5 (1) (c) of the Prevention of Corruption Act. The East Punjab case referred to above was considered and it was held that the view taken therein was not sound.
So much for the Indian authorities. Our Courts have never felt any doubt on the question and it has been consistently held that section 5 (1) (c) has never had the effect of repealing section 405 of the Penal Code. It was held in a Bench decision reported in Crown v. Babu Khan (P L D 1959 B J 6) that an offence by a public servant falling under section 408, P. P. C., which might also have been prosecuted under section 5 (1) (c) of the Prevention of Corruption Act (II of 1947), as an offence of criminal misconduct, does not require, for its prosecution, the sanction of any authority under section 6 of the Act.. It was held that section 26 of the General Clauses Act allowed toe prosecution of the accused under either section 409 of the Pakistan Penal Code or section 5 of Act 11 of 1947.
In another case reported in The Crown v. Muhammad Hayat (P L D 1954 Lah. 424) it was held that section 5 of the Prevention of Corruption Act (II of 1947) did not have the effect of impliedly repealing section 161 of the P. P. C. and that section 26 of the General Clauses Act militates against such a rule. The East Punjab case referred to above was considered and was not approved.
The latest case on the point is a judgment of Shabir Amad, J: reported in Khawaja Zakaullah v. The State (P L D 1959 B J 6) wherein the learned Judge held that the circumstance that the facts which constitute an offence which can be tried without a sanction also constitute an offence which cannot be tried without, sanction does not prohibit the Court from dealing with the former offence in spite of the fact that no sanction with regard to the latter offence is accorded.
I have, therefore, no hesitation in rejecting the contention raised by the learned counsel for the appellant that the trial in this case was bad for want of sanction under section 6 of Prevention of Corruption Act (II of 1947). In addition to what has been stated above it might also be pointed out that the intention of the Legislature has been made abundantly clear by the insertion of subsection (4) to section 5 of Act II or 1947. This was done by the Criminal Law (Amendment) Act XXXVII of 1953 which came into force on 17‑11‑1953. This new sub section (4) reads as follows :‑
"The provisions of this section shall be in addition to, and not in derogation of, any other law for the time being in force, and nothing contained herein shall exempt any public servant from any proceedings which might, apart from this section, be instituted against him."
In view of this new provision there could hardly be any doubt with regard to the intention of the Legislature which was urged by Mr. Dharamdas had intended to repeal the provisions of section 409, P. P. C. by implication.
The second contention of Mr. Dharamdas was that the, trial was vitiated due to misjoinder. He said that in this case there were as many as 18 items of misappropriation and each constituted a distinct offence. The trial therefore of 18 such offences was bad as it offended against the provisions of section 234 of the Criminal Procedure Code. This argument completely loses sight of the provisions of section 222 (2),1 Cr. P. C. which says that when an 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 charge so framed shall be deemed to be a charge of one offence within the meaning of section 234.
The third contention of Mr. Dharamdas was that it was not the appellant who had misappropriated the money. His contention is that his client was only the junior accountant and the responsibility for the accounting of the money was on Kadirbux and that merely because he received the various sums of money it could not necessarily be held that it was he who had misappropriated the same. I have carefully considered this argument to see whether there was room for a reasonable doubt with regard to the appellant's liability for this offence. I have, however, come to the conclusion that there is no such doubt. He had admittedly received these sums and he cannot absolve himself merely by stating that he had made all these monies over to Kadir Bux. There is no evidence to that effect and then the circumstances and the conduct of the appellant are completely inconsistent with this version of the appellant. The defalcation relates to a large number of items spread over a period of about four months. These sums of money which were received by the appellant were not intended to be put in cold storage either with himself or for that matter with Kadirbux. All these various sums of money were drawn or received for a particular and specific purpose which consisted in purchasing raw materials or satisfaction of sundry bills. There is evidence to show that there were demands for meeting these payments which indeed there were bound to be, and yet no action was taken. It is idle for the appellant to assert that having made over the monies to Kadirbux he remained completely impervious to the fact that there were persistent demands for the various sums of money and that he did not even inquire from Kadirbux as to what he had done with the money which the appellant had made over to him. The appellant did not belong to the menial staff; he was a junior accountant and it was his business to see that the monies which were drawn for a specific purpose were applied towards that purpose. If they were not, it was his duty to point this out to the authorities concerned. He did nothing of the kind. In fact, he does not say that he even inquired for Kadirbux about it. This circumstance is incom patible with the innocence of the appellant and leads to the inescapable inference that he had misappropriated the monies either himself alone or shared it with Kadirbux.
The fourth contention of Mr. Dharamdas is that though in the substance of the offence read out to him by the Special Judge he was said to have committed an offence under section 409, P. P. C., he has actually been convicted under section 5 (2) of Act II of 1947. This obviously was an error on the part of the Special Judge. It is an irony that such an error should have occurred because it had been argued before him that this case suffered from want of sanction to prosecute and it is plain that a prosecution under section 5 (2) of Act lI of 1947 would have been bad without a sanction. However, as I have said, this was an error on the part of the Special Judge and I would therefore, in the exercise of my powers as a Court of appeal, alter the con viction from section 5 (2) of Act 11 of 1947, to one under section 409, P. P. C. I have no hesitation in holding that the appellant (a fact which was admitted) was entrusted with Government monies in his capacity of a public servant, committed criminal breach of trust in respect thereof and an offence under section 409, P. P. C. has been, proved against him beyond any reasonable doubt.
There remains the question of sentence. At the instance of the A. A. G. a notice had been issued to the appellant on 24‑12‑1958 to show cause why the sentence should not be enhanced. I have heard the appellant's counsel and Mr. Junejo appearing for the State and I have come to the conclusion that this is not a fit case in which the sentence should be enhanced. G It must be noted that the…
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