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Petitioner: STATE VS Respondent: ALI JAN SHAH
1981 P Cr
1981 P Cr. L J 19
[Supreme Court AJ&K]
Before Raja Muhammad Khurshid Khan, J
THE STATE-Complainant
Versus
Pir ALI JAN SHAH-Accused/Respondent
Criminal File No. 2 of 1979, decided on 25thMay, 1980.
(a) Holders of Representative Office (Trial of Offences) Ordinance (LXXXIII of 1978)---------
-----S. 5(2) [as amended by Ordinance (CLXIX of 1979), S. 2(a)] red with Evidence Act (I of 1872), S. 114-Sanction for prosecution, validity of Contention that full facts of case not having been placed before sanctioning authority prior to sanction, sanction was mechani cal and subsequent prosecution a nullity and such sanction could not be validated by means of Validating Ordinance of 1979-Contention, held, fallacious-Law as such providing no specific form for sanction for prosecution, regularity, held further, attached to a sanction order unless on face of it some visible defects shown-Sanction, even other wise deemed to be invalid, held still further, validated retrospec tively under provisions of S. 2(a) of Validating Ordinance of 1979. [Sanction for prosecution].
Gokulchand Dwarkadas Morarka v. The King P L D 1948 P C 11; Tufail Muhammad v. The Crown P L D 1954 Lah. 37; In re: T. S. Swaminathan and another A I R 1945 Mad. 284 ; Lal Behari v. State A I R 1962 All. 251; Lal Behari v. State A I R 1968 All. 251; Muhammad Bashir v. The Crown P L D 1955 Lah. 661 ; Thakur Baghubar Singh and others v. Emperor A I R 1944 F C 25 and Emperor v. J. C. D' Souza A I R 1947 Born. 151 ref.
Abdul Rashid v. The State P L D 1960 Kar. 251 and Mahmood Khan v. The State P L D 1977 Lah. 1195 distinguished.
(b) Evidence Act (I of 1872)-----
------Ss. 57 & 81 read with S. 114 --- Sanction for prosecu tion-Proof, mode of-Gazette, showing sanction having been accorded for prosecution of accused, placed on record--Sufficient proof of sanction and deemed to be duly proved though not formally tendered at trial-Court, held, would take judicial notice of fact. [Sanction for prosecution].
(c) Holders of Representative Office (Trial of Offences) Ordinance (LXXXIII of 1978)----
S. 6(2) [as substituted by Ordinance CLXIX of 1979]-Sanction for prosecution-Required only for prosecution under Ordinance of 1978 and not for offences falling under other laws.--[Sanction for pro secution].
(d) Evidence Act (I of 1872)-------
----S. 105-Burden of proof-Prosecution duty bound to prove each and every ingredient of offence before asking for conviction for a crimi nal offence.-[Burden of proof].
Sakir Hussain v. The State P L D 1956 S C (Pak) 41.7 ref.
(e) Penal Code (XLV of 1860)----------
----S. 403 read with Public Office (Misconduct) Ordinance, 1965 ---Section 5(6) and Misdemeanour Act, 1948, S. 3(4) Misconduct-Getting money from Party's funds -- Held: Neither criminal misappropriation as stipulated under S. 403 nor involves any criminal liability.
(f) Evidence Act (I of 1872)---------
-----S. 105-Burden of proof-Prosecution must prove its case against---accused beyond any reasonable doubt-Doubt whatsoever in prosecu tion case, held, to be resolved in favour of accused.-[Burden of proof-Benefit of doubt].
(g) Criminal trial-------
----Interpretation of statutes, principle of-Intention of Legislature or author of a document-To be gathered from its provision as a whole-Court not entitled to ascertain intention of author or Legislature, in absence of any ambiguity-Contention beneficial to subject to be given.-[Interpretation of statutes].
In re: The Reference by the President of Pakistan P L D 1957 S C (Pak.) 219; The Working Muslim Mission and Literary Trust, Lahore and another v. The Crown P L D 1956 F C 209 and Muhammad Naeem v. The Crown P L D 1951 F C 118 ref.
M. S. Farooqi, Special Public Prosecutor for the State.
Agha Ashiq Hussain for Accused/Respondent.
JUDGMENT
The accused Pir Ali Jan Shah, herein was sent in this Court to face trial under the provisions of Holders of Representative Office (Trial of Offences) Ordinance, 1978 (Ordinance No. XLVIII of 1978), (hereinafter to be referred as 1978 Ordinance). The complaint, unfortunately, does not provide a happy reading. It contains some charges of collective nature claimed to have been committed by the Pakistan People's Party while the others are alleged to have been committed by the accused himself. However, I am in agreement with the learned counsel for the defence that charges may be summed up as follows:-
1. (a) That Pir All Jan Shah, the former Adviser for Kashmir Council had put himself as a candidate for a seat of Azad Jammu & Kashmir Assembly in 1975 General Elections ; he committed all sorts of irregularities and illegalities in the election. He threatened the Voters of rival candidates and with the collusion of the officials deputed on election duty forged Votes behind closed doors;
(b) That prior to the election in Azad Kashmir which took place in May, 1975 the accused attended a meeting of candidates presided over by Mr. Muhammad Hayat Khan Tuman, in which a decision had been taken that elections irregularities and illegalities be committed at a large scale in which Government vehicles be used freely. So rupees ten lac were actually spent out of Government funds, in election campaign;
(c) That the accused like other candidates received an amount of Rs. 10,000 from Peoples Party of Azad Kashmir. Rs. 5,000 were received on 14-4-1975, and an amount of Rs. 5,000 was received by the accused through a Bank draft No. 712912 dated 24-7-1975. This amount drawn from Government Treasury, was spent freely by the accused in his election campaign. A letter of 19thOctober, 1976 written by the accused is worth consideration ;
(d) That in May, 1975 elections in Azad Kashmir, 30 vehicles of the Punjab Government were sent to secure success for Azad Kashmir People's Party candidates by illegal means. Out of these vehicles a vehicle No. X/67/ 2209 driven by Muhammad Nawaz son of Ali Muhammad a Government employee was used by the accused in his election campaign. The driver also obtained T. A/D. A. from the Government;
(e) That 1975, election in Azad Kashmir was a selection in which the selected candidates were declared successful by using all types of unlawful means.
Thus the accused is alleged to have committed offences under sections 5, 45, 46, 74, 75, 76, 78 of the Azad Kashmir Election Ordinance of 1970 as well as under sections 403/406 and 419/420 of Azad Kashmir Penal Code, section 5(6) of the Public Office (Misconduct) Ordinance, 1965 and section 3(4) of the Misdemeanour Act, 1948.
II. (a) That the accused illegally used Government Transport and Government Money in his tours of Pakistan during March; 1977 General Elections of Pakistan. These Government vehicles and' Government money were used by him for campaigning in favour of Pakistan People's Party candidates. The vehicles were driven by Government employees who obtained T. A. and D. A. from Azad Kashmir Government;
(b) That the accused obtained, an amount of Rs. 17,000 as advance T. A/D. A. through a bank draft No. 31-481935 dated 23-1-1977, which he used in an illegal manner for unofficial purposes;
(c) That the accused used illegally two Government jeeps No. A. J. K. 3067 and No. A. J. K. 3131 between M'abad and Rawalpindi the P. O. L. expenditure of which was drawn from Government treasury;
(d) That besides the above-mentioned vehicles the accused illegally used a vehicle No. A. J. K. 3166 belonging to the Azad Kashmir Assembly without any entitlement. The receipts of Pol and repairs expenditures were not furnished by the accused. This vehicle too was used for unofficial purposes.
2. The accused under this charge is alleged to have committed offences under sections 403/406, and 419/420 A. K. Penal Code, section 3/4 official misdemeanour Act, 1948 and section 5/6 of the Public (Office) Misconduct Ordinance (No. LXXXIII) 1978.
3. The accused under section 242, Cr. P. C. was called upon to answer the charges in writing. He in his detailed writt8n objections admits to have received an amount of Rs. 5,000 (charge 1 (c)) from Khan Abdul Hamid Khan, the then Chairman of Azad Kashmir People's Party on 14-7-1975, out of Party fund for publicity and also another sum of Rs. 5,000 on 24-7-1975, through a Bank draft No. 712912 for party purposes The accused also admits the receipt of Rs. 17,000 (charge II (B)) through bank draft No. 31 481935 dated 23-1-1977, through Azad Kashmir Assembly Secretary. This amount as claimed by the accused was sanctioned as advance T. A/D. A. by the Government itself for 4fraying the Travelling acid other expenditure on P. O. L. in connection with the tour of Azad Kashmir and Pakistan under Government Order No.109-114 Assembly 77 dated 22-1-1977. The Government itself, it is claimed by the accused, had formed, a deputation consisting of the accused and the then Speaker of the Assembly to undertake tour of Pakistan and Azad Kashmir for the purpose of looking into the problems of Jammu & Kashmir Refugees settled in Pakistan and for removing doubts about `Shimla Accord'. The Government detailed two vehicles No. A. J. K. 3131 and A. J. K. 3076 (charge No. II(c)) for use of the members of the deputation and persons associated with the accused, who happened to be the leader of the deputation, It is claimed by the accused that after the tour, he rendered complete account of the amount advanced to him through the Assembly Secretary to the Accountant-General as directed by the Government in its order referred to above. Barring this admission remaining charges were controverted in the written reply.
4. The learned counsel for the accused has raised a preliminary objection that the prosecution of the accused is invalid for want of a proper unction. The validity of the sanction is assailed on the following grounds:-
(1) That the sanction is mechanical in so far as evidence lacks proof that facts were placed before the sanctioning authority prior to the sanction.
(2) that the sanction has not been proved in accordance with law;
(3) That Ordinance (LXXIIII of September, 1979, by which sanction is deemed to have been validated by addition of section 13-A and by another amendment under Ordinance No. XLXIX of 1979 by which sanction was only required for the prosecution under that Ordinance and not for others do not make the sanction valid as it is mala fide piece of legislation enacted to deprive the accused of his right which had accrued to him by law.
(4) The sanction has not been given for an offence.
5. Previous sanction under section 5 clause 2 of Ordinance (No. LXXXIII 1978) (hereinafter to be called the Ordinance) is, a condition precedent take cognizance of offences under the Ordinance and if such sanction is wanting, the prosecution is a nullity, for the Court's being not clothed with the competence to proceed with the case. To understand the issue it is necessary to know as to what sanction is. The sanction order reads :-
"In pursuance of subsection (2) of section 5 of the Holders of Represen tative Offices (Trial of Offences) Ordinance, 1978 the Azad Government of the State of Jammu & Kashmir is pleased to accord sanction for the trial of the following holders of representative offices under the provision of the aforesaid Ordinance:-
(1) Khan Abdul Hamid Khan, former Prime Minister.
(2) Raja Mumtaz Hussain Rathore, former Senior Minister.
(3) Mian Ghulam Rasul former Minister.
(4) Ch. Sohbat Ali former Minister.
(5) Ch. Noor Hussain former M. L. A. and Adviser, Azad Jammu & Kashmir Government.
(6) Ch. Khadim Hussain former M. L. A.
(7) Ch. Abdullah former Member, Azad Jammu & Kashmir Council.
(8) Ch. Barkat Ali former Adviser.
(9) Pit Ali Jan Shah former M. L. A. and Adviser Azad Jammu & Kashmir Council.
(10) Sheikh Manzar Masood former M. L. A. and Speaker.
(11) Haji Muhammad Osman former M. L. A.
(12) Muhammad Ishaq Zafar former M.L.A.
(Sd.) Secretary Home,
Azad Government of the State of Jammu & Kashmir, Muzaffarabad."
7. These very points alongwith some other connected issues, received due consideration in a case entitled `State v. Sh. Manzar Masood and after discussing various aspects of the issue it was held that points raised are without substance and sanction is valid. It maybe stated that in both the cases sanction was given by a single order. The relevant portion of the judgment in that case which provides complete answer to the objections may with advantage be reproduced. It was stated therein:-
"For the sanction being, mechanical, reliance is placed by the defence on the following cases :---
(1) P L D 1948 P C 11 (2) P L D 1954 Lah. 37
(3) P L D 1960 Kar. 251 (4) P L D 1977 Lah. 1195
8. As against this the Special Public Prosecutor has referred to P L D 1955 Lah. 661, A I R 1945 Mad. 284 and A I R 1962 All. 251 to support him that sanction carries with it the presumption of its regularity.
In case of Gokulchand Dwarkadas Morarka v. The King (P L D 1948 P C 11) referred for the defence, it is held :-
"In their Lordships' view, in order to comply with the provisions of clause 23, it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desire-able that the facts should be referred to on the face of the sanction, but this is not essential, since clause 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charge are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority.' The sanction to prosecute is an important matter; it constitutes a condition 'precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. They are not, as the High Court seem to have thought, concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds they regard a prosecution as inexpedient. Looked at as a matter of substance it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without a knowledge of the facts of the case. Nor, in their Lordships' view, is a sanction given without reference to the facts constituting the offence a compliance with the actual terms of clause 23."
9. With due respect to the learned Judge, this judgment contains contradictions, hardly to be reconciled. At first it is observed `It is plainly desireable that the facts should be referred to on the face of the sanction, but this is not essential, since clause 23 does not require the sanction to be in any particular form, nor even to be in writing.' But again in the same breath immediately after this observation it is said `but if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority.' I do not feel safe to take into consideration one part of the judgment and ignore the other. Of course, if form of sanction required the facts to be stated therein the sanction for want of such facts may be said ;o be invalid.
In the next case of Tufail Muhammad v. The Crown (P L D 1954 Lah. 37) it is observed:-
"What was obviously intended was that the sanctioning authority should apply its mind to the facts and circumstances of the case and although, prima facie, some offence may be revealed by the evidence collected, the authority in question would not be bound to accord sanction for the prosecution unless it came to the conclusion that it would be expedient in the interest of justice to do so. Such a conclusion could only be arrived at, after all the material facts had been considered. It is clear that this has not been done in the present case and in my view, therefore, the purported sanction to prosecute was not in accordance with law."
10. I am in total agreement with the law enunciated in this case that sanctioning authority must apply its mind to the facts and circumstances of the case, and the prosecution of the accused shall be struck down to be invalid if it can be held that mind was not applied by the sanctioning authority. However it will be adjudged at the proper stage whether facts were placed before the authority and the sanctioning authority had applied its mind to the facts and circumstances of the case before according sanction.
In the third case of Abdul Rashid v. The State (P L D 1960 Kar. 251), the relevant observation is:-
"The order does not show anywhere what papers were put up to Mr. Nizamuddin and what issues were involved. It seems to me that he has mentioned a sum of Rs. 905-12-0 while the Robkari issued to the accused mentions a sum of Rs. 725-12-0 only. Mr. Nizamuddin was not examined in evidence and he is not the person who started the investigation. Mr. Ishaque was the person to start the investigation and he has given evidence. He has merely said that there was a complaint against the accused and he wrote a report to the Anti -Corruption Department (Exh. 3). From his statement also we cannot say that the Chief Officer Nizamuddin had used his judgment in arriving at a decision. No extraneous evidence has been given in this case to prove that Mr. Nizamuddin was made aware of the details and of the explanation given by the accused."
11. In this case the very sanction order, it appears, revealed that facts were not placed before the sanctioning authority and for that reason it was held that the sanction is mechanical. Obviously this citation bears no relevancy with the facts of the present case. In the case before me, sanc tion order does not show that the sanctioning authority was not acquainted with the facts of the case. No doubt the order does not show that the ,auctioning authority was made known of the facts before sanction was given; but will this fact make the sanction defective, is a point which I gall be taken up at the appropriate stage. But one thing is clear that the facts of this case have also no relevancy with the facts of the case before me.
In the fourth case Mahmood Khan v. The State (P L D 1977 Lah. 1195), it is observed:-
It is essential that all the relevant facts relating to the case be placed before the sanctioning authority. Where facts are not referred to on the face of the sanction nor it is otherwise proved that they were placed before the sanctioning authority, the sanction is invalid and the trial Court is debarred to try that case. Omission on the part of the sanctioning authority to mention the correct amount misappropriated and the name of Irshad Hussain co-accused in the sanction order is clearly indicative of the fact, that all the relevant papers were not before the sanctioning authority and sanction was granted in a mechanical fashion."
In this case the sanction was said to be mechancial for two fold reasons; one being that the correct amount misappropriated was not mentioned in the sanction and secondly the name of Irshad Hussain, the co-accused, was also omitted in the sanction which fact led the Court, and in my view very rightly, to say that the sanction is mechanical. Obviously case has no application to the facts of the present case.
12. Let the now take up the cases cited by the learned Special Public Prosecutor. In Muhammad Bashir v. The Crown (P L D 1955 Lah. 661), it was contended that there was no proper sanction for prosecution, as was required under section 5(5) of the Pakistan Criminal Law Amendment Act. There was on the record a sanction for prosecution by the Governor relating to the very incident which was the subject-matter of the trial. It was maintained that there was nothing to show that the sanction was granted after His Excellency the Governor of the Punjab had applied his mind to the facts of the case and in this view of the matter reliance was placed on 'Ti fall Muhammad v. Crown (P L D 1954 Lah. 37), wherein it was held that a sanction granted without applying mind to all the relevant facts of the case is not valid. The contention was however repelled with the observation:-
"Learned counsel urges that it was the duty of the prosecution to lead evidence showing that the officer granting the sanction had in fact applied his mind. I do not agree. If the sanction is there we should presume it to be valid in the absence of some evidence to the contrary. I would apply the presumption of the regularity of all official acts unless there were circumstances sufficient to justify a different course. Them are no such circumstances."
It may be stated here that in Tufail Muhammad v. Crown, it had been proved by evidence that there were material facts which had not been brought to the notice of the officer who granted sanction. But in the present case, there is nothing to show such a defect in the sanction and the enunciation of law in Muhammad Bashir v. The Crown, that all official acts are presumed to be regularly performed unless circumstances justify a different course, holds good for the case in band.
In the next case In re T. S. Swaminathan and another (A I R 1945 Mad. 284), the sanction for the prosecution had been seriously challenged. It was argued that the sanction, Exh. HHH which stated; `Now therefore, His Excellency the Governor of Madras hereby accords his sanction under subsection (1) of section 197, Cr. P. C., 1898, for the prosecution of the said T. S. Swamina than, for the said offences or abetment thereof' was invalid as the sanction was signed by Mr. C. G. V. Williams, Secretary to Government, by order of the Governor and the proof of this sanction order by the proof of the signature of Mr. Williams is not sufficient evidence that sanction had been accorded by the Governor exercising individual judgment', as laid down in section 197, Cr. P. C. as amended in the light of the provisions of sections 52 and 271 (2), Government of India Act. The argument precisely was that although the genuiness of the sanction order may have been proves' by the prosecution, something more was necessary to establish that the Governor exercised his individual judgment in according sanction. Repelling the contention, it was observed:--
"It seems to us that this contention is ill-founded. When once the Secretary to the Government under the orders of His Excellency certifies that His Excellency has accorded sanction under section 197; Cr. P. C., that is in our opinion a sufficient proof that His Excellency has sanctioned the prosecution in the exercise of his individual judgment as prescribed in that section in the absence of any evidence to the contrary."
The laid down law in this case is that when sanction is proved it may be presumed that sanctioning authority has exercised its individual judgment as prescribed and mere omission to show, in the sanction order that the authority had applied its mind would not make the sanction defective.
In another case reported as Lal Behari v. State (A I R 1962 All. 251), dealing with the omission in the order regarding the expediency of proceedings in the interest of justice, it has been observed by the learned Judges in para 20 of the judgment:-
"After considering the contentions of the learned counsel I am of opinion that the formation of an opinion that the prosecution is expedient in the interest of justice is a condition precedent to the preference of the complaint. The law also requires that such a finding should be recorded but the jurisdiction of the Court to prefer a complaint does not in my opinion depend upon the recording of the opinion though it is consequent on the formation of such an opinion. In the circumstances I am of the view that omission to record such an opinion is only an irregularity and does not affect the legality of the complaint. In that case the Courts record will not be available to prove that such an opinion was in fact framed but that would mean that it would be incumbent on the prosecution, to prove by other evidence such as examining the Presiding Officer of the Court concerned, that such an opinion was in fact formed. Normally the fact that a complaint is preferred is itself evidence of the fact that such an opinion had been formed and in proper cases a presumption may even be raised under section 114 of the Indian Evidence Act. In the particular case I find that the complaining Court has itself made a reference to the formation of such an opinion in paragraph 5 of the complaint preferred by it. In the circumstances, I am unable to attach any weight to this contention of the learned counsel."
Besides the above citations, I have also been able to lay hands on some other citations. In Thakur Raghubar Singh and others v. Emperor (A I R 1944 F C 25), it is held at pages 29 and 30:----…
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