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Petitioner: SHEIKH MUJIBUR RAHMAN AND ANOTHER VS Respondent: THE STATE
P L D 1964 Dacca 330
P L D 1964 Dacca 330
Before Asir and Sikandar Ali, JJ
Sheikh MUJIBUR RAHMAN AND ANOTHER‑Appellants
versus
THE STATE‑Respondent
Criminal Appeals Nos. 622 and 623 of 1960, decided in July 1963.
(a) Penal Code (XLV of 1860), S. 21, cl. 9‑Words "and every officer in the services or pay of the crown or remunerated by fees or commission" occurring in concluding portion of clause‑Sets out different category of persons from those mentioned in first part.
Some specific public duties seem to have been indicated in the first portion of the ninth clause of section 21, Penal Code, 1860, whereas any public duty seems to be the range of activities for the purpose of an officer described in the second part of the said clause. The principle of ejusdem generis cannot, therefore, be a real guidance for the purpose of holding that they come under the same head or genus with respect to persons who may be charged with looking after the property or pecuniary interests of the Government alone. It is quite likely that an officer in the service or pay of the Government may be charged with looking after its property or pecuniary interests, but he may also be charged with some more functions in his capacity as an officer while doing public duties.
Maxwell on "Interpretation of Statutes", Tenth Edition, pp. 337 and 338 ref.
(b) Pakistan Criminal Law (Amendment) Act (XL of 1958), S. 2 (b) read with S. 21 (9), Penal Code (XLV of 1860)‑"Public servant"‑Meaning‑‑"Provincial Minister"‑Within description indicated in latter part of clause ninth, S. 21, Penal Code (XLV of 1860)‑Prevention of Corruption Act (II of 1947), S. 5 (1) (d).
Emperor v. Hamendra Prasad Ghosh I L R 1939 2 Cal. 411 ; Emperor v. Sibnath Banerji and others A I R 1945 P C 156 ; and Singh and another v. The State of Vindhya Pradesh A I R 1953 S C 394 ref.
(c) Pakistan Criminal Law (Amendment) Act (XL of 1958), S. 6 (5), Explanation‑ Scope of Explanation wide enough -Sanction for prosecution‑"Appropriate Government"‑ Meaning- Person committing offence while in office as Provincial Minister- Prosecution started after person ceasing to hold such office Sanction for prosecution given by Provincial Government after considering report of Investigation Officer and other material records before it‑Held, sanction "properly" given by "appro priate Government".
Hamed Ghulam Sadiq v. Pakistan and others P L D 1960 S C 351 ; Abul Mansur Ahmed and Azizur Rahman v. The State P L D 1961 Dacca 753 ; Tufail Muhammad v. The Crown P L D 1954 Lah. 37 ; Gokulchand Dwarkadas Morarka v. The King P L D 1948 P C 11 and Muhammad Jafer v. The State P L D 1959 War SRS ref.
(d) Prevention of Corruption Act (II of 1947), S. 5 (1) (d) Criminal misconduct‑Mens rea‑Criminal intention sine qua non for an offence under S. 5 (1), Prevention of Corruption Act (II of 1947).
Daluram Bahani v. The State P L D 1958 Dacca 188 ref.
(e) Prevention of Corruption Act (II of 1947), S. 5‑Words "obtain" and "abuse"‑Meaning.
The word "obtain" implies and presupposes some amount of effort on the part of the person who means to obtain a thing ; and an effort is never possible without a conscious state of mind. If any person wants to obtain or obtains anything for himself or for others he must be presumed to have made some efforts so that in normal routing course without such effort the thing sought to be obtained might not be available. The word "abuse" in this connection also presupposes that the position held by the public servant is used in a perverse manner and not in a normal way. It also indicates in essence that the public servant concerned moves in the matter unfairly in order to obtain either for himself or for others a pecuniary advantage or a valuable thing.
(f) Evidence-‑Circumstantial evidence‑Value‑Fact that accused was once seen in persons's house‑Not sufficient by itself to prove "deep friendship" between two‑Circumstantial evidence capable of alternative reasonable hypothesis‑ Conviction, mainly on such evidence‑Not sustainable.
Siraj v. Crown P L D 1956 F C 123; Fazal Elahi alias Sajawal v. The Crown P L D 1953 F C 214 and Emperor on the prosecution of Hurjee Mull v. Immam Ali Sircar 8 C W N 278 rel.
H. S. Suhrawardy and H. Kobir Chowdhury for Appellant (in Criminal Appeal No. 622 of 1960).
A. Salam Khan and Serajul Huq for Appellant (in Criminal Appeal No. 623 of 1960).
Azizuddin Ahmad and A. W. Mullick for the State (in both the Appeals).
JUDGMENT
ASIR, J.‑These two appeals arise out of an order of con viction and sentence as passed by the learned Senior Special Judge, Dacca, in Special Case No. 72 of 1959. They were heard together and the same judgment will govern both the appeals.
Mr. Sheikh Mujibur Rahman is the appellant in Criminal Appeal No. 622 of 1960 and Mr. Qazi Abu Naser is the appellant in Criminal Appeal No. 623 of 1960. Both the appellants were tried together. Mr. Sheikh Mujibur Rahman, appellant in Criminal Appeal No. 622 of 1960, was convicted under section 5 (2) of Act II of 1947, and sentenced to simple impri sonment for two years and to pay a fine of Rs. 5,000 in default further simple imprisonment for six months. Mr. Qazi Abu Naser was convicted under section 5 (2) of Act II of 1947, read with section 109 of the Pakistan Penal Code and 'sentenced to simple imprisonment for two years and to pay a fine of Rs. 5,000 in default further simple imprisonment for six months.
2. According to the prosecution Mr. Sheikh Mujibur Rahman was appointed by the Governor to be a Minister pursuant to Notification No. 4657, dated 7th September 1956 of the Government of East Pakistan. He was incharge of Commerce, Labour and Industries, Social Welfare including Urban Community Project and Village Aid, Co‑operative Branch of the Food and Agriculture Department and Anti‑Corruption. He, however, resigned on or about 7th August 1957. Mr. Qazi Abu Naser, the appellant in the other appeal, was an Indian national and the Managing Director of the firm styled as Messrs Coal Mining and Trading Company (Pak.) Limited, having its registered office at first at 85 and thereafter at 112, Delisle Road, Narayanganj. Both the appellants were close friends and Mr. Mujibur Rahman was particularly interested in his friend Mr. Abu Naser and his said concern. Tenders were invited pursuant to a notice, dated 8th January 1955, issued by the Assistant Director of Consumer Goods and Fuels, and among the various applicants the said Coal Mining and Trading Company Limited and Messrs Hasan Ahmed Limited were parties. In all there were 21 such parties. After the selection by the Tender Committee of Messrs Hasan Ahmed Limited as the most desirable party to have the agency of procuring and handing coal or coke imported on Government account from India for this Province, the said firm, namely, Messrs Hasan Ahmed Limited were doing their work and in spite of various difficulties carried on with their job as reasonably as possible. There is the further prosecution case that Qazi Abu Naser of the Coal Mining and Trading Company Limited having failed to get the agency approached Nawabzada Sayed Hasan Ali, the Managing Director of Messrs Hasan Ahmed Limited in the month of March 1955, and suggested that the business might be shared as between them. The proposal, however, was not accepted.
3. After Mr. Mujibur Rahman took over his office as Minister he abruptly and arbitrarily passed orders on 7th April 1957, cancelling the agency of the aforesaid firm Messrs Hasan Ahmed Limited at the request or in the interest of Qazi Abu Naser In spite of serious objections raised by the Secretary of the Department concerned, and on that very day Mr. Mujibur Rahman appointed Messrs Coal Mining and Trading Company Limited as the agent on the existing terms and conditions as were available to Messrs Hasan Ahmed Limited ; but no fresh tender was called and all this was done in flagrant violation of the financial rules and official procedure regarding appointment of an agent, and that without any application received from Qazi Abu Naser or from Coal Mining and Trading Company Limited. The further prosecution case is that Mr. Mujibur Rahman also granted permission to Messrs Coal Mining and Trading Company Limited for setting up a plant at Darsana in the District of Kushtia for converting hard coal into soft coke and also to import 500 tons of hard coal from India to start a new plant there. This order was also passed in spite of the opposition of the Secretary of the Department concerned and contrary to the financial rules and departmental procedure. According to the prosecution the appellant Mr. Mujibur Rahman did all such acts by abusing his position as a public servant with a view to obtaining for his friend‑the other appellant Qazi Abu Naser and his firm Messrs Coal Mining and Trading Company Limited, pecuniary advantage, and that thereby he committed the offence of criminal misconduct within the meaning of section 5 (1) (d) of Act II of 1947 (the Prevention of Corruption Act).
4. With regard to the other appellant Qazi Abu Naser the prosecution case was that he actively abetted Mr. Mujibur Rahman to commit such criminal misconduct.
5. On these allegations a First Information Report was lodged on 2nd February 1959, by Mr. A. Jalil Khan, Inspector, Bureau of Anti‑Corruption, Dacca, who has been examined as P. W. 12 in this case. In due course P. W. 15 Fazlur Rahman prayed for according to the necessary permission to investigate the case, and the Sub‑Divisional Magistrate (South), Dacca, by his order dated 10th February 1959, accorded such permission. After necessary investigation they were charge‑sheeted on 1st December 1959. In the meantime necessary sanction as required by sub section (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958, was obtained on 25th June 1959, in relation to Mr. Mujibur Rahman. As it will be necessary for us to consider the order of sanction in some details, it will be proper at this stage to quote the terms of order of sanction as appears to have been passed by the relevant authority ;
"Whereas from a refusal of the reports and the records placed before the Governor in connection with Ramna (Dacca) P. S. Case No. 3, dated 2nd February 1959, under section 5 (2) of Act II of 1947 against Mr. Sk. Mujibur Rahman, ex‑Mi nister‑in‑charge of the Commerce, Labour and Industries Department, Government of East Pakistan, the Governor is satisfied that there are sufficient materials for establishing a prima facie case of criminal misconduct under section 5 (1) of Act II of 1947 against the said Mr. Sk. Mujibur Rahman, for obtaining for himself or for Messrs Coal Mining and Trading Co., Ltd., Narayanganj, by corrupt or illegal means or by otherwise abusing his position as a public servant in the capacity of a Minister, a valuable thing or pecuniary advantage to wit, appointment of the aforesaid Company as agent of the Provincial Government for procuring and hand ling a huge quantity of soft coke from India on a commission basis as well as the granting of permission to the said Company to set up a plant at Darsana, District Kushtia, for converting hard coal into soft coke and also to import 500 tons of hard coal from India ;
Whereas Messrs Hasan Ahmad Ltd., were duly appointed agent by the Provincial Government on 16th March 1955, for procuring and handling 3,000 tons of soft coke per month from India on a commission basis, and that the firm carried on with the said agency with satisfaction till 7th April 1957.
Whereas the said Mr. Sk. Mujibur Rahman, while Minister- in‑charge of the Commerce, Labour and Industries Department, abruptly and arbitrarily and without recording any reason passed orders on 7th April 1957, cancelling the agency of the aforesaid firm despite serious objections raised by the Secretary of the Department concerned and appointed on the same day Messrs Coal Mining and Trading Co. (Pak.) Ltd., Narayanganj, of which Mr. Qazi Abu Naser, an Indian National, was the Managing Director, as agent for the aforesaid purposes on the existing terms and conditions, but without calling for a fresh tender fn violation of the financial rules and office procedure regarding appointment of a new agent, in spite of the fact that the latter firm did neither submit any application for the said agency nor did they quote any rate ;
Whereas the said Mr. Sk. Mujibur Rahman granted per mission to Messrs Coal Mining and Trading Co. Ltd., for setting up a plant at Darsana, District Kushtia, for converting hard coal into soft coke and also to import 500 tons of hard coal from India to start a new plant there. The orders to that effect were passed by the ex‑Minister in spite of opposition of the Secretary of the Department concerned who suggested that the decision in regard to the new project and the selection of the agency should be taken after advertisement as in the case of setting up other industries in consonance with the financial rules and departmental procedure ;
Whereas the said Mr. Sk. Mujibur Rahman, who was thick and thin with Mr. Kazi Abu Naser who in turn was one of the Directors of Messrs Green and White Ltd. in which Mr. Sk. Mujibur Rahman was also directly interested, favoured the said Coal Mining and Trading Co. Ltd., by granting them the coal licence disregarding the normal procedure. The setting up of a plant at Darsana by the firm was merely a plea seized upon by the said ex‑Minister to bestow undue favour upon the said Mr. Qazi Abu Naser for his personal gain. As a matter of fact, the proposed plant was never set up by the firm ;
Whereas the said Mr. Sk. Mujibur Rahman committed the offence of criminal misconduct punishable under section 5 (2) of Act II of 1947 and Mr. Qazi Abu Naser committed the offence of abetment punishable under section 5 (2) of Act II of 1947 read with section 109, Pakistan Penal Code ;
Now, therefore, in excercise of the powers conferred by subsection (5) of section 6 of the Pakistan Criminal Law Amend ment Act, 1958 (Act XL of 1958), the Governor is pleased to accord sanction to the prosecution of the said Mr. Sk. Mujibur Rahman for an offence punishable under section 5 (2) of Act II of 1947 and or under any other relevant law or laws that may apply."
6. The substance of the accusation as can be gathered from examination of the appellants under section 242, Criminal Procedure Code may be noted as follows:
The charge against Mr. Mujibur Rahman:
Pursuant to tender notice, dated 8th January 1955, by the Assistant Director of Consumer Goods and Fuels of the Government of East Pakistan, tenders were invited for appoint ment of agents for procuring and handling soft coal/coke from India and some 21 tenders including that of Messrs Coal Mining and Trading Co. (Pakistan) Ltd., of which the other accused Qazi Abu Naser was the then Managing Agent and of Messrs Hasan Ahmed were received, and finally on the recommendation of Tender Committee Messrs Hassan Ahmed were appointed as the agents on commission basis by the order dated 16th March 1955, and, thereafter, the said firm Messrs Hasan Ahmed were acting as such according to written terms of stipulation ;
That you are said to be a friend of the other accused Qazi Abu Naser and for that you were interested with his firm Messrs Coal Mining and Trading Co., (Pak.) Ltd. ;
That you were appointed a Minister of the Government of East Pakistan on and from 7th September 1956, by Notifi cation No. 867‑CE, dated 7th September 1956, and you were allotted the portfolio of the Department of Commerce, Labour and Industries on 10th September 1956, by Notification, No. 869‑CE, dated 10th September 1956, and while serving as such you were a public servant under the said Government;
That holding charge of the said Department, you bad passed orders on 7th April 1957, cancelling the order of appointment of Messrs Hasan Ahmed abruptly, and arbitrarily despite serious objections raised by the Secretary of the Department concerned, and that you did so by abusing your powers as a public servant solely with a view to show favour to your friend the accused Qazi Abu Naser and his agency with which you were personally interested ;
That you further granted permission to the said Messrs Coal Mining and Trading Co., Ltd., for setting up a plant at Darsana, District Kushtia, for converting hard coal into soft coke and to import 500 tons of hard coal from India to start a new plant there, and that you passed such orders despite the objections raised by the Secretary of the Department concerned and in flagrant violation of financial rules and normal procedure, with a view to obtaining pecuniary advantage to your said friend and his agency in which you were interested ;
That you have by abusing your position, while acting as public servant, committed offence of criminal misconduct punishable under section 5 (2) of Act II of 1947 ;
These are the indictments against you what is your answer? Ans: I am innocent, Sir. All these accusations are false."
The charge against Qazi Abu Naser:
"That you while an Indian National and a resident of District Murshidabad in the West Bengal, were the Managing Agent of Messrs Coal Mining and Trading Co., (Pak.) Ltd., having its registered office at Narayanganj ;
That you were an applicant for appointment as an agent in response to a notice dated 8th January 1955, by the Assistant Director of Consumer Goods and Fuels of the Government of East Pakistan amongst 21 parties including that of Messrs Hasan Ahmed, and that by the recommenda tion of the Tender Committee Messrs Hasan Ahmed Ltd., and not you, were appointed agents on commission basis by order dated 16th March 1955 ;
That the other accused Mr. Mujibur Rahman is your personal friend and that he was personally interested with you and your agency firm ;
That your friend other accused Mujibur Rahman was appointed a Minister of the Government of East Pakistan on and from 7th September 1956, by Notification No. 867‑CE, dated 7th September 1956, and that he was allotted portfolio of the Department of Commerce, Labour and Industries on 10th September 1956 by Notification No. 869‑CE., dated 10th September 1956, and while serving as such he was, to your knowledge and information, a public servant under the said Government ;
That while holding charge of the said Department the accused Mujibur Rahman had passed order on 7th April 1957, cancelling the order of appointment of Messrs Hasan Ahmed abruptly and arbitrarily, despite serious objections by the Secretary of the Department concerned and abusing his powers as a public servant with a view to show favour to you and your agency and that he did so by your active abetment to do so.
That your friend accused Mujibur Rahman granted permis sion to you and your agency Company for setting up a plant at Darsana, District Kushtia, for converting hard coal into soft coke and to import 500 tons of hard coal from India to start a new plant there, and that the said accused passed such order in your favour despite strong objections raised by the Secretary concerned and in flagrant violation of financial rules and normal procedure with a view to obtaining pecuniary advantage for you, and that he did so by your active abetment to do the same ;
That your friend accused Mujibur Rahman by abusing his position while acting as public servant, has thus committed offence of criminal misconduct punishable under section 5 (2) of Act II of 1947 by your such abetment, and as such, you have committed the offence under section 5 (2) of Act II of 1947 read with section 109 of the P. P. Code ;
"These are the indictments against you, what is your answer? Ans. I am innocent, Sir."
7. The defence inter alia was the denial of all the allegations as made against the appellant. In particular it was pleaded on behalf of the appellant Mr. Mujibur Rahman that whatever act appears to have been done by him at the material time, was done in good faith and in the best interest of the country as a public representative, namely, a Minister. The particular defence of the other appellant is that he had nothing to do with the order passed on 7th April 1957, and he never tried for any agency since he failed in securing the same in the hands of the Tender Committee. With regard to the question of manufacturing soft coke it was the contention of Qazi Abu Naser that he was serious and earnest in setting up the plant and helping in saving foreign exchange.
8. The learned Special Judge after considering the evidence on record found that the order by which permission to manu facture soft coke was given to Messrs Coal Mining and Trading Company and a grant of lease for mining of peat in Gopalganj Sub‑Division was made in favour of the same Company as also the order by which the agency of Messrs Hasan Ahmed Limited was cancelled and the Coal Mining and Trading Company was appiinted, were not only illegal but also made by Mr. Mujibur Rahman by abusing his powers as a Minister just to secure some pecuniary advantage for Qazi Abu Naser. The learned Judge, therefore, took the view that Mr. Mujibur Rahman was guilty of the offence of criminal misconduct and Qazi Abu Naser was guilty of abetment in the relation thereto, and as such, liable to be convicted under section 5 (2) of Act It of 1947 (The Prevention of Corruption Act). It was also found by the learned Judge that the manner of appointment as indicated in the orders dated 21st March 1957, and 7th April 1957, was illegal and not satisfactory, and that Mr. Mujibur Rahman was determined to cancel the agency of Messrs Hasan Ahmed Limited and appoint Messrs Coal Mining and Trading Company. It was also found that it was not a rough and ready decision in the interest of the State that Mr. Mujibur Rabman gave permis sion to the manufacturing of soft coke. 1t was a camouflage for giving an appointment to Coal Mining and Trading Company, and this in fact was the primary intent of the parties. He also found that no plant for manufacturing soft coke was ever set up, and as such, the story of manufacturing soft coke was a mere cloak for obtaining pecuniary advantage in the shape of the agency of procuring and handling soft coke from India to East Pakistan. The learned Judge also found that Qazi Abu Naser having failed to get the agency approached Messrs Hasan Ahmed Limited and being a failure there too was in search of an opportunity to grab the said agency. The manufacturing of soft coke, according to him, being a subtle device, Qazi Abu Naser was the main actor wire‑pulling from behind and instigating and abeting Mr. Mujibur Rahman just to secure the agency after cancelling that of Messrs Hasan Ahmed Limited.
9. Mr. Suhrawardy on behalf of the appellant Mr. Mujibur Rahman has contended that whatever was done by him was done is good faith as a Minister, and as such to promote the welfare of the country, and the findings of the learned Special Judge are based mainly on surmises without proper appreciation of the entire evidence on record Legal objections have also been taken from his side. According to him, the sanction was not taken from the appropriate Government as required by law, and that it was not also duly obtained after placing all the necessary materials. He has also contended in this connection that Mr. Mujibur Rahman was not a public servant while acting as a Minister, and even if he were a public servant, the sanction as required by subsection (5) of section 6 of the Criminal Law Amendment Act, 1958, being not in accordance with law, the pre‑requisite condition of the exercise of jurisdiction or cognizance of an offence like criminal misconduct by the learned Special Judge was wanting, and as such, the whole trial was illegal and without jurisdiction. It has also been contended that wrong facts were placed before the sanctioning authority.
10. On behalf of Qazi Abu Naser, Mr. Abdus Salam Khan has contended that Naser has been convicted on no evidence. According to him there is no direct evidence and whatever evidence is there is nothing but circumstantial. He has also contended that no notice was given to the appellant Qazi Abu Naser according to the substance of accusation specifically in the statement under section 242 of the Code of Criminal Procedure.
11. Both Mr. Suhrawardy and Mr. Salam Khan have relied upon certain decisions which will be referred to hereafter.
12. According to Mr. Azizuddin Ahmed it was necessary that sanction should be obtained according to law, and that it has rightly been given by the appropriate authority. He has also contended that Mr. Sheikh Mujibur Rahman while acting in the office of Minister was a public servant as defined in the relevant Act, and even if it were conceded that he was not a public servant yet he was liable to be tried by the learned Special Judge and who had an exclusive jurisdiction to try cases of this nature, and the mere fact that there was…
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