Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: ABDUL HAMID VS Respondent: CROWN
P L D 1955 Federal Court 86
P L D 1955 Federal Court 86
(Appellate Jurisdiction)
Present : Muhammad Munir, C. J., A. S. M. Akram and M. Shahabuddin, JJ
ABDUL HAMID‑Appellant
versus
THE CROWN‑Respondent
Criminal Appeal No. 18 of 1954, decided on 25th Novem ber, 1954.
(On appeal from the judgment and order, dated the 13th April, 1953, of the Chief Court of Sind at Karachi, in Criminal Appeal No. 97 of 1953).
Sanction for prosecution‑Authority competent to remove public servant‑Effect of S. 240 (2) of Government of India Act, 1935.
(b) Appeal (criminal)‑Dismissed summarily‑Appellate Court should indicate briefly reasons for dismissal.
Mahmud Ali, Advocate, Federal Court, instructed by M. Siddiq, Attorney, for Appellant.
M. Latif Gandhi, Advocate, Federal Court, instructed by Zahir Abbas, Attorney, for Respondent.
Date of hearing : 25th November, 1954.
JUDGMENT
MUHAMMAD MUNIR, C. J.‑This is an appeal in a criminal matter by special leave.
The appellant Abdul Hamid, was convicted of an offence under section 5 (2) of the Prevention of Corruption Act 11 of 1947 and sentenced to twelve months' rigorous imprisonment, by Mr. F. A. Ansari, Special Judge, Sukkur. Tae learned Judge found it proved that on a named day in April, 1951, the appellant who was a Sub‑Registrar at Shikarpur, received from Nek Muhammad an illegal gratification of Rs. 30. This finding was based on the evidence of Nek Muhammad himself and Mr. D'Souza, an Inspector in the Anti‑Corruption Police. Nek Muhammad had presented to the appellant a document for registration, but the appellant had refused to register it unless he was paid illegal gratification at the rate of one per cent. of the consideration for the conveyance. Nek Muhammad complained to D'Souza who handed over a stun of Rs. 30 in marked currency notes' to him, and according to a pre‑arranged plan, recovered the money from the pocket of the appellant after it had been paid to him in his office by Nek Muhammad.
There were two other witnesses of the raid, Abdul Karim and Iqbal, but though they signed the memorandum prepared at the time of the recovery of the money, they went back upon the contents of that document and refused to support the prosecution. The learned Special Judge, however, convicted the appellant on the evidence of Nek Muhammad and D'Souza.
The main point on which leave to appeal was given in this case was whether the prosecution was preceded by a valid sanction. It is admitted that the trial was under the Sind Bribery and Corruption Act, 1950, subsection (1) of section 8 of which provides that notwithstanding anything contained in the Code of Criminal Procedure, 1898, the sanction of the Provincial Government shall be required for the prosecution under that Act of public servants for any of that offences , mentioned in the schedule to that Act. In the present case, the sanction was given by the Inspector‑General of Registration, Sind. By subsection (2) of section 8 the Provincial Government can by general or special order authorise any subordinate officer to grant sanction. for prosecution on its behalf in respect of various grades of Government) servants, and section 15 of the same Act empowers the) Provincial Government to make rules authorizing persons to exercise the power to sanction prosecutions on behalf of that Government of various grades of Government servants. Acting under the latter provision, the Sind Government has framed a rule (vide Rule 9 of the Sind Prevention of Bribery and Corruption Rules, 1950) authorising subordinate officers to grant sanction for the prosecution of public servants whom such officers are competent to remove. In the present case, the Inspector‑General, Registration, was, under rule 48 of Code of Standing Orders under the Registration Act, competent to remove the appellant from service. Prima facie, therefore, the Inspector‑General of Registration could give the requisite sanction in exercise of the powers delegated to him by the Provincial Government. Mr. Muhammad Ali, however, contends that because by reason of subsection, (2) of section 240 of the Constitution Act no Government servant can be dismissed from service by any authority subordinate to that by which he was appointed, and the appellant could, under section 6 of the Registration Act, be appointed a Sub‑Registrar only by the Provincial Government, the rule authorising the Inspector‑General to remove a Sub‑Registrar from service is ultra vires. We see no force in this contention because there) is no allegation either in the petition for special leave to appeal, or in the concise statement of the case, or even now from the Bar, that the appellant was in fact appointed by the Provincial Government. According to rule 39 of the Code of Standing Orders under the Registration Act, the Inspector General of Registration is the appointing authority for Sub‑Registrars, and we must presume that the appellant's appointment was in conformity with those rules. The objection subsection (2) to section 240 must therefore disfounded on appear because all that that subsection save is that a Govern ment servant shall not be dismissed from service by any authority subordinate to that by which he was appointed.
The appellant having been appointed by the Inspector‑General the rule authorising the Inspector‑General to remove him from service was therefore intra vices, and from this 'it must follow as a necessary result that the Inspector‑General could validly be constituted the sanctioning authority for Sub‑Registrars. The objection to sanction is therefore repelled.
On the facts, we do not see how on special leave we can take a view different from that of the learned Special Judge who heard the witnesses and whose appraisement of the evidence was accepted by the Chief Court. It is true that the appeal was summarily dismissed by the Chief Court, but there is no allegation that counsel was not fully heard. The result of the case depended on the determination of a simple question of fact, and there were at least two witnesses against whose evidence nothing could be said, the other two witnesses who attempted to oblige the appellant having been proved to be guilty of a serious self‑contradiction in view of their endorsement of the facts mentioned in the memorandum which was prepared at the time of the recovery of the money. We, therefore, see no reason to interfere and dismiss this appeal.
SHAHABUDDIN J.‑I agree, but I would like to add that the Chief Court should have indicated in brief the reason for dismissing the appeal.
A. H. Appeal dismissed.