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Petitioner: S. M. K. ALVI VS Respondent: THE CROWN
P L D 1953 Federal Court 189
P L D 1953 Federal Court 189
(Appellate Jurisdiction)
Before Abdul Rashid, C. J., M. Shahab‑ud‑din and A. R. Cornelius, JJ
S. M. K. ALVI‑Appellant
versus
THE CROWN‑Respondent
Criminal Appeal No. 7 of 1951, decided on 13th March, 1953.
(On appeal from the judgment and order of the High Court of Judicature at Lahore, dated the 10th May, 1950, in Criminal Appeal No. 629 of 1949).
(a) Sanction‑
Objections as to validity or sufficiency of‑Not open to defence to take one ground in trial Court and to raise com pletely different objection before Federal Court‑Cancellation of earlier sanction and substitution by another‑Operative effect of earlier not to affect jurisdiction assumed under it‑Case not to be considered withdrawn by mere withdrawing of sanction.
It is not open to the defence, if they object to the validity or sufficiency of the sanction, to take one: objection in the trial Court and to rely on a completely different objection relating to the sufficiency of the sanction in this Court, specially when the objection could have been easily met by the production of a single witness in the trial Court. It must be mentioned that no objection of any type whatever to the sanction was raised in the High Court though the hearing of the appeal lasted for several days. More over, there can be little, doubt that the operative effect of the first sanction, viz., to remove a bar to the prosecution, as well as to the taking of cognizance by the trial Court, was not affected by the purported cancellation. The sanction was not void ab initio, since the failure to mention facts then in could be remedied and no warrant can be found for the belief that the relevant power extends also to the withdrawal of prosecution launched thereunder or to depriving a Cobra of jurisdiction which it has commenced to exercise, by a mere cancellation of a sanction already issued. The issue of the second sanction, coupled with cancellation of the first, must be understood as amending or amplifying the first sanction, and the resultant effect is, in material respects, no different from that which the production of "extraneous evidence" might have brought about.
(b) Criminal Procedure Code (V of 1898),
S. 239 (d)‑Applica bility to be determined by reference to accusation‑"Transaction" not synonymous with `offence"‑Offence under S. 509 Forgeries to cover the offence, committed next day‑Same transaction.
The applicability of clause (d) of section 239 of the Criminal Procedure Code has to be determined by reference to facts mentioned in the accusation as read out to the accused persons. The accusation clearly stated that it was in order to facilitate the commission of the removal of excess material or to destroy the evidence in support thereof and to cover-up the track of the offence that Alvi, with the active assistance of his co‑accused, committed or abetted the commission of several forgeries in the records of his office relating to the issue of iron and steel.
The word "transaction" as used in section 239 of the Code can not be regarded as synonymous with the word "offence".
It is the continuity of design and purpose which determines JJ whether various acts or events, constitute one transaction.
It is well‑settled that the point of time at which, for the purposes of applying the provisions of section 239 (d), Criminal Procedure Code, it falls to be determined whether different offences charged were committed in the course of the same transaction, is the stage of the accusation, and not the stage of conclusion of the trial. The validity of joinder is to be judged in relation to the facts contained in the accusation, and not in relation to the facts eventually found.
Held, that there had been no misjoinder of charges in this case.
Choukhani v. The King‑Emperor A I R 1939 P C 130 ref./
(c) Federal Court‑
Mere disregard of technicality without resulting injustice not enough for interference by, in criminal cave.
(d) Pakistan Criminal Law Amendment Act (XIX of 1948)
S. 9‑Appeal from acquittal by Crown‑Competent.
The provisions of Chapter XXXI of the Criminal Procedure Code relating to appeals are fully applicable to the judgments delivered by the Special Judge under the provisions of the Pakistan Criminal Law Amendment Act. The provisions of Chapter XXXI authorise the Provincial Government to prefer an appeal against an order of acquittal. Sections 5 and 417 of the Criminal Pro cedure Code, read with section 9 of the Criminal Law Amendment Act, 1948, therefore, provided the machinery for the filing of the appeal by the Advocate‑General, Punjab, in the High Court under the orders of the Provincial Government. Section 404 of the Criminal Procedure Code lays down that no appeal shall lie from any judgment or order of a "Criminal Court" except as provided by that Code or by any other law for the time being in force. The expression "criminal Court" would include a Court such as that of the Special Judge. This provision can also be availed of by the Crown in support of the appeal preferred in the present case, and the appeal was entirely competent.
(e) Criminal Procedure Code (v of 1898),
S. 342‑Failure to question accused on important ingredient of case though not of charge‑Not open to Court to come to a finding on such matter and thereby to come to an inference in regard to knowledge or intention of accused with reference to offence charged.
(f) Evidence
Previous acts similar to one charged‑When admissible.
(g) Accomplice
‑Appearing as witness‑Evidence of=Necessity of independent corroboration.
(h) Expert evidence‑
Necessity of, in identification or writing Court's own opinion unaided by such evidence‑How far reliable.
Where the features relied upon are physical characteristics which are susceptible of examination by scientific methods, with a view to identification ; or as the case may be, differentiation, it is advisable that such aids should be called in for the resolution of doubts, which in the absence of reliable direct evidence must necessarily attach to such features, regarded as evidence. It can only be in a very rare case that mere visual inspection with the naked eye, unaided by scientific training or methods, can afford the necessary degree of satisfaction.
A. K. Brohi, Senior Advocate Federal Court (M. H. Munir, Advocate Federal Court, with him) instructed by M. A. Rahman, Attorney for Appellant.
Faiyaz Ali, Advocate‑General of Pakistan (M. Mahmud All, Advocate Federal Court, with him) instructed by M. Siddiq, Attorney for Respondent.
Dates of hearing : 18th, 19th, 20th, 23rd, 24th, 25th, 26th Ith and 28th February, 1933.
JUDGMENT
ABDUL RASHID, C. J.‑This is an appeal, by special leave, from a decision of the High Court of Judicature at Lahore convicting the appellant Sardar Muhammad Khan Alvi (who will hereinafter be referred to as Alvi) for offences under section 409 and section 465/109 (two counts) of the P. P. C. and sentencing him to imprisonment till the rising of the Court and a fine of Rs. 10,000 in respect of the first offence, and to a fine of Rs. 500 on each count under section 465/102. Five other persons, namely, Ata Muhammad, the brother of Alvi, Rustam Ali and Akhtar Ali, two clerks in the office of Alvi, and Jammat Ali Shah and Tufail Muhammad, servants of Ata Muhammad, were also jointly tried with Alvi under sections 409, 420, 380, 411, 201, 120‑B, 468 and 477‑A of the P. P. C., read with section 5 of Act II of 1947.
Alvi was the Steel Licensing Officer and an Assistant Rehabi litation Commissioner, Punjab, in the year 1948. He was placed in charge of several dumps of iron and steel, two of which were located near his office on Abbott Road, Lahore. Ata Muhammad (accused No. 2), the brother of Alvi, was the pro prietor of the Standard Engineering Company at Jullunder prior to August 1947. As a result of the communal disturbances that broke out all over the Punjab at the time of the Partition, Ata Muhammad had to leave his concern‑ at Jullunder and had to migrate to Pakistan. He settled at Jaranwala in the District of Lyalipur. In December, 1947, he presented an application to the Director of Industries, West Punjab, that the Sant Engineering Co., which belonged to a Sikh evacuee should be allotted to him. As soon as his application was granted, he started business at Jaranwala but altered the name of the "Sant Engineering Co." to the "Standard Engineering Co." On the 10th of March, 1948, Jammat Ali Shah (accused No. 3) made an application on behalf of the Standard Engineering Company for the purchase of 171 tons of material from the Government dumps which were under the charge of Alvi. This application was granted by Alvi for the purchase of "about four tons of various categaries" of the material asked for. A detailed "invoice" was prepared by Jalaluddin Inspector (D. W. 1), showing specifications, weights, rates and values of twelve categories of iron and steel which could be supplied, the total weight shown being "3.96 tons".
According to his estimate, a sum of Rs. 1,470 was fixed as the price of the material. On the 17th April, 1948, two permits were prepared by Rustam Ali (accuzed No. 5) in favour of Syed J. S. Shah & Co.. Jaranwala. The first permit (Exh. P. 2) authorised J. A. Shah to acquire iron and steel weighing 3 tons, 13 cwt., 1 quarter and 19 lbs. (about 100 maunds), and the second permit (Exh. P. 3) accorded permission to J. A. Shah to remove the materials from the dump. Alvi ordered Miraj Din, Head Clerk (P. W. 12) and some other clerks to attend office on the 18th April which happened to be a Sunday to issue the necessary material. The clerks who had been ordered to attend office came to the dump on Sunday. Ata Muhammad brought a truck which was loaded with iron and steel from two Government dumps on Abbott Road which were situated close to each other. Rustum Ali accused attended to the loading of the truck. Alvi came twice to the dump to supervise the loading: On the first occasion, he stayed there from 15 to 30 minutes between 11‑0 and 12‑0 a. m. He returned to the dump at about 1‑30 p.m., and remained there till the loading of the truck was completed. Ten galvanized iron sheets were placed on the top of the other material in the truck. Rashid driver (P. W. 5) told Alvi that as the truck had not been properly loaded and as some of the material was jutting out of the truck he was likely to be prosecuted for breach of traffic regulations. Alvi assured the driver that he would send a telephonic message to the Ravi Checking Post that the truck should be allowed to pass without any interference by the police. In the presence of Rashid, Alvi rang up the Ravi Checking Post, and requested the police officer‑in‑charge to allow the truck to pass, saying it was carrying goods belonging to a relation of his. While final touches were being put to the loading of the truck, Ata Muhammad went away to Alvi's house leaving a message that he should be picked up from there by Rashid. The truck left the dump in the evening and stopped a short distance away in front of the Nishat Cinemaaear Alvi's house to pick up Ata Muhammad. While the truck was waiting opposite Alvi's house, Muhammad Shafi (P. W. 2) who is also an Assistant Rehabilitation Commis sioner happened to pass by the truck in the car of a friend of his, named Ghulam Sarwar, (P. W. 3). When Muhammad Shaft passed by the truck he suspected that ` unauthorised material was being carried away from the Government dumps. The car was stopped and Muhammad Shafi and Ghulam Sarwar began to make enquiries from the driver as to the ownership of the material in the truck. The driver of the truck could not give Muhammad Shafi the required information and told him that the iron in the truck belonged to Ata Muhammad accused. Meanwhile Ata Muhammad arrived and showed Muhammad Shafi the two permits which authorized him to take the material to Jarawala. Muhammad Shafi and Ghulam Sarwar began comparing the contents of the truck with the permits. A discussion took place between Muhammad Shafi and Ata Muhammad. The latter contended that the truck did not contain any excess ; that he had purchased the material from the Government dumps and had paid the price therefor. Muhammad Shaft asked one of the constables who was nearby and Ghulam Sarwar to keep s watch over the truck. He himself resorted to the Nishat Cinema to send a telephonic message to his superior officer Mr. Kureshi, Director of Industries Punjab. In the meanwhile, Alvi arrived and went to the Nishat Cinema to persuade Muhammad Shaft to come to his house and have a talk with him on the subject, Muhammad Shaft at the time was insisting that according to his estimate the truck was carrying a great deal of material not included in the permit. As soon as Muhammad Shaft agreed to go to the house of Alvi, the latter told him that the contents of the truck belonged to his own brother ; that it was possible that there might be some excess ; chit it was a common occurrence in those days that when articles of one category were not available articles of another category were substituted for it ; and that Muhammad Shafi should not therefore create any further trouble and should over look any slight excess that there might be. As a result of these efforts, Muhammad Shafi handed over the permits Ata Muhammad. Before he left, however, he and Sarwar noted that some of the iron sheets were being unloaded.
Not being satisfied with the explanation given by Alvi. Muhammad Shafi decided to go to Muzaffar Hassan (P. W. 14) who was another Assistant Rehabilitation Commissioner in order to consult him. After Muzaffar Hassan had heard the whole story he decided to accompany Muhammad Shaft to the Ravi Checking Post and get the truck weighed. They went there, but as the truck had not arrived till then, they began to search for it, and ultimately found it standing near Serai Rattan Chand. Muhammad Shaft then went to attend a function while Muzaffar Hagian and Ghulam Sarwar went back to the Ravi Checking Post and waited for the truck. When it arrived, the truck was stopped there by the A. S. I. of Police in charge of the post, and the truck with the entire loaded material was weighed. The total weight was found to be 224 maunds whereas according to the permit it should have been 100 maunds, excluding the weight of the truck which is variously stated to be between 82 maunds and 90 maunds. After the weighing, Muzaffar Hassan recorded the statement of the driver, brought back the truck to the office of the Director of Industries, and recorded the statements of Ata Muhammad, Tufail Muhammad, Abdul Aziz, and Muhammad Ismail. He hurriedly typed out a report of the incident, put the truck in charge of the Chowkidar of the office of the Director of Industries, and then went and met Muhammad Shafi on Nisbat Road. Muhammad Shafi and Muzaffar Hassan then went to the house of Mr. Kureshi, Director of Industries, but he was not at home.
Alvi received information that the truck had been detained by Muzaffar Hassan. He wanted to see the Director of Industries in this connection and ultimately found him at a restaurant at midnight. Alvi requested him to hand over the truck to him. The Director did not agree. Mr. Alvi followed him to his house add repeated his request on the ground that if the truck were not handed over to him his prestige would suffer. The Director of Industries, however, did not comply with the request of Alvi. When the Director went to his office on the 19th April 1948, Muzaffar Hassan handed over the report which he had typed the previous night to the Director and told him the whole story. The Director for sent a telephonic message to Mr. Mahmud‑ul‑Hassan, Secretary to Government Punjab, Industries Department, and told him all the facts. The investigation was then taken in hand by the Special Police Establishment Alvi wag anxious to get hold of the truck. He approached the Secretary and succeeded in getting his permission to remove the truck on the night between the 19th and the 20th April 1948. The material and the truck were again weighed at an octroi post where there was a weighing machine under the supervision of Ch. Abdul Rahim, Officer -on‑Special Duty. The weight recorded was 216 maunds.
It will be convenient at this stage to r‑produce the charges against the accused. They are in the following terms :‑
"(1) That Mr. Alvi as a public servant, holding the post of the Steel Lieencing Officer, in conspiracy with his co‑accused, by corrupt or by illegal means, or by otherwise abusing his position as a public servant had been obtaining for his brother and other relations many a pecuniary advantage or valuable thing by issuing iron and steel from the Government dump under his control, in excess of the quantity charged for, or entered in the permits issued in that behalf; and that in pursuance of that conspiracy, a d as a part of his usual practice, he bad, on 18th April 1948, issued iron and steel from the Government dumps under direct charge as Steel Licensing Officer, Punjab, in excess of the quantity entered in permit No. 4941 dated 17th April 1948, ostensibly in the name of J. A. Shah & Co. of Jaranwala which quantity was, in fact, intended for the Standard Engineering Co. stated to have been allotted to his real brother, accused No. 2, but actually a joint family concern, in which Mr. Alvi was himself also vitally interested.
(2) That in order to facilitate the commission of the aforesaid offences, or to destroy the evidence in support thereof, and cover up the track of the offences, Mr. Alvi, with the active assistance of his co‑accused, committed, or abetted the commission of, several forgeries in the records of his office relating to the issue of iron and steel pertaining to the above said permit.
The accused had, therefore, committed offences deferred in sections 380, 409, 411, 468, 477‑A and 218 read with section 120‑B, I. P. C., which offences are triable by the Court of Special Judge appointed under Act XIX of 1948."
The trial was conducted in the Court of Mr. Baqar who was a Special Judge appointed by the Government of Pakistan under the Pakistan Criminal Law Amendment Act, 1948. In accordance with the provisions of section 5 of the Act, the particulars of the offences stated in the complaint were read out to the accused. After the protracted trial, Ata Muhammad was convicted under section 379 and Rustum Ali and Tufail under section 379 read with sections 109 and 114 of the P. P. C. Ata Muhammad was sentenced to six months' simple imprisonment and a fine of Rs. 500, and Rustam Ali and Tufail were sentenced to three months' simple imprisonment and a fine of Rs. 50 each. Alvi. J. A. Shah and Akhtar Ali were acquitted. The three convicts preferred an appeal against their convictions in the High Court of Judicature at Lahore, while the Government preferred an appeal against the acquittal of Alvi. An application in revision was also presented for enhancement of the sentences awarded to the convicts. The case was placed before a Division Bench consisting of Mr. Justice Rahman and Mr. Justice Jan in the first instance, but in view of the important questions of law and fact involved in the case, the matter was referred to a Full Bench which consisted of the learned Chief Justice, and Rahman and Jan, JJ. The learned Chief Justice, with whom Jan, J., concurred, convicted Alvi under section 409 and under section 465/109 on two counts and awarded him the sentences already referred to. The sentences awarded to Ata Muhammad and Tufail Muhammad were maintained, while the sentence awarded to Rustam Ali was reduced in appeal.
Mr. Justice Rahman delivered a dissenting judgment holding that the guilt of Alvi had not been established beyond reasonable doubt ; that he may have been guilty of nepotism as a result of improper exercise of his official discretion for the benefit of hid brother Ata Muhammad; but that such favouritism could not be regarded as an offence under section 409 of the P. P. C. In respect of the charge relating to forgeries he was of the opinion that the evidence against Alvi consisted solely of the statements of accomplices, that this evidence had not been corroborated fn material particulars, and that therefore no convictions under section 465/ 109 of the Penal Code could be recorded against him.
The first question raised by Mr. Brohi on behalf of the appellant was that no valid sanction has been placed on the record by the prosecution and the Special Judge had therefore no jurisdiction to proceed against the appellant. Such sanction was required as a condition precedent to both the prosecution of Alvi, as well as to the taking of cognisance by a Court, of the case against him, under three separate provisions of law, specified in the sanctions issued by the Central Government.
There are two such sanctions on the record, one dated the 2nd February 1949, and the other dated the 10th March. The first sanction is in the following terms:‑
"(No. 18/6/49‑Police, Government of Pakistan Ministry of the Interior, Home Division Karachi the 2nd February 1949).
SANCTION ORDER
The Central Government hereby accords sanction under section 197 of the Cr. P. C., 1898, Act V of 1898, read with section 6 of the Prevention of Corruption Act, 1947 (Act II of 1947) and subsection (5) of section 5 of the Pakistan Criminal Law (Amendment) Act, 1948 (Act XIX of 1948), to the prosecution of Mr. S. M. K. Alvi, Steel Licensing Officer, West Punjab, under sections 409, 420, 380, 411, 201 and 477‑A read with section 120‑B, of the I. P. C., and section 5 of the Prevention of Corruption Act, 1947 (Act II of 1947) in the Court of the Special Judge appointed by the Central Government under section 3 of Act XIX of 1948."
The second sanction states in the opening paragraph that the Governor‑General is satisfied that Mr. S. M. K. Alvi should be called upon to answer charees relating to certain offences, of which details are given in three paragraphs together with the sections of the Penal Code under which Alvi should be prosecuted. At the end of this sanction the following paragraph appears :‑
" The sanction order forwarded with this Ministry's No. 18‑6‑49‑Police, dated the 2nd February 1949, may be considered as cancelled."
Mr. Brohi's argument was that the first sanction was not a valid sanction as it did not show that the facts of the case had been placed before the sanctioning authority and that the second sanction could not be availed of by the prosecution as the summons to the appellant had already been issued on the 3rd of March 1949, showing clearly that the prosecution had already been launched, and cognisance of the case had already been taken, when the sanction was issued, on the 10th of March. It was conceded, however, that so far as the contents of the sanction were concerned, the second sanction was a valid sanction.
The cousel for the appellant relied for the first contention on the judgment of the Privy Council in the case of Gokulchand Dwarkadas Morarka (75 I A 30). This was a case relating to clause 23 of the Cotton Cloth and Yarn (Control) Order, 1943, as amended, which provided that no prosecution for the contravention of any of its provisions should be instituted without the previous sanction of the Provincial Government. It was held by their Lordships that it must be proved that the sanction was given in respect of the facts constituting the offence charged. It was laid down that while it was desirable that the facts should be referred to on the face of the sanction that was not essential since clause 23 did not require the sanction in any particular form, or even to be in writing, but 4f the facts constituting the offence were not shown on the face of the sanction the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. Where, therefore, there was nothing on the face of the sanction, and no extraneous evidence, to show that the sanctioning authority knew the facts alleged to constitute a breach of the order, the sanction was invalid. It was urged that the first sanction in the present case did not show on its face that the facts had been placed before the sanctioning authority and that as no extraneous evidence had been produced to the effect that the facts had been placed before the sanctioning authority, the sanction was invalid and the Court had no jurisdiction to take cognizance of the case against Alvi.
A reference to the judgment of the trial Court shows that this objection was never raised in that Court, and that though it was contended that there was no valid sanction on the record, the validity of the sanction was challenged on different grounds. This is clear from the following extract from the judgment of the trial Court :‑
"The fourth objection raised by the defence counsel was that in any case there was no…
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