MUHAMMAD ASHRAF Versus THE STATE

Muhammad Ashraf Patwari, aged 58 years was tried, in Crime No.2, dated 8-1-1985 under section 468/477-A/420/467, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947, registered with Police Station A.C.E., Jhang at the instance of one Abdur Rehman son of Mehr Ahmed. The learned Special Judge, Anti-Corruption, Sargodha Camp at Jhang, vide his judgment, dated 20-11-1992, convicted the appellant under section 468. P.P.C. and sentenced him to six months' R.I. with a fine of Rs.1,000 in default whereof to further undergo R.I. for one month and also convicted under section 477-A, P.P.C. and sentenced him to six months' R.I. and a fine of Rs.1,000 or in default of payment of fine to further undergo R.I. for one month. Both the sentences were ordered to run concurrently.

2. This judgment has been challenged through this appeal.

3. Briefly the facts of the case are; that the complainant had submitted an application Exh.P.F. to the Additional Director, Anti-Corruption Establishment to the effect that Muhammad Ashraf, Patwari, during his posting as Patwari Halqa Kot Lal Tehsil Shorkot District hang, received the illegal gratification from his opponents and tampered with the record and prepared the forged record of Khasra Girdawari of Rabi 1984 and Rabi 1985 and Register Haqdaran Zameen pertaining to the land in Square No.101, Killa Nos.11, 20 and 21/1, making the opponent party entitled to have a path of two Karams in the abovesaid land owned by the complainant. On receiving the complaint Exh.P.F., the inquiry was marked to Ch. Shahbaz Ahmed (P.W.5), who conducted the inquiry and prepared a report. On the receipt of the inquiry report, Deputy Director (Investigation), Anti-Corruption Establishment Faisalabad Range Faisalabad permitted for the registration of the case against the accused/appellant vide Exh.P.F. In view of the order (Exh.P.L.), Circle Officer, A.C.E., Jhang registered a case F.I.R. (Exh.P.M.) against the appellant.

4. After the accomplishment of usual investigation, the challan against the accused/appellant was prepared and the same was submitted, after obtaining sanction (Exh.P.N.) in the trial Court.

5. On the receipt of the challan, formal charge was framed by the learned trial Court to which the accused/appellant pleaded not guilty and claimed the trial. The appellant denied the incriminating circumstances.

6. The prosecution, in order to substantiate its case, produced as many as six witnesses. Abdur Rehman, complainant, appeared as P.W.1 Usman Ali, as (P.W.2) and gave the ocular account, P.W.3 Safdar Hussain, Patwari, produced the Register Haqdaran Zamin, 1984-85, Aurangzeb, Patwari, appeared as (P.W.4) Shehbaz Khan, Assistant Director, A.C.E., Faisalabad entered appearance as P.W.5 and Ch. Muhammad Islam, Inspector/A.S.D.P.O. entered into the witness-box as P.W.6.

7. The learned counsel for the appellant contended that the appellant has been falsely implicated. He had to incorporate in the register Khasra Girdawari, the actual position at the spot. He did not receive illegal gratification from anybody for this purpose. Further argued that the sanction Exh.P.N. was obtained from an authority i.e. the Commissioner, Faisalabad Division, Faisalabad which was not competent to accord under the law. So the trial is vitiated. He placed reliance on Tazeem Hussain v. The State 1988 PCr.LJ 331.

8. Learned counsel for the State supported the judgment on the ground that the people have addicted to the corruption and the corrupt officials are not entitled to any leniency.

9. I have heard the learned counsel appearing for the respective parties. I have also gone through the record and given my anxious consideration to the facts and the circumstances of the case and the relevant provisions of law.

10. The admitted position of the case is that the complaint (Exh.P.F.) was submitted by the complainant, Abdul Rehman, in the office of Additional Director, Anti-Corruption, Faisalabad on 18-7-1988 and the same was entertained on 30th July, 1988. The matter, thereafter, was got inquired into and on the basis of the result of inquiry a case F.I.R. (Exh.P.M. was registered on 19-1-1989. On the finalization of the preliminary investigation, sanction Exh.P.N. for prosecution of the appellant was obtained from the Commissioner, Faisalabad Division, Faisalabad.

The main point urged in support of this appeal is that the requisite sanction required under subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958, was given by Mr. Shahzad Hussain Pervaiz, Commissioner, Faisalabad Division, Faisalabad, who according to the learned counsel for the appellant, was not authorised to do so as under Rule 2 of Pakistan Criminal Law Amendment (West Pakistan) Rules, 1962, the only officer competent to grant the said sanction, was the Officer competent to remove the appellant from service. The appellant was a Patwari and the Officer competent to remove him from service at the time of commission of offence in 1988 and when the F.I.R. against him was recorded on 8-1-1989, was the Collector/Assistant Commissioner, under whom he was working and since the sanction in this case was given by an unauthorised officer, the conviction and sentence of the appellant is vitiated in view of the judgment of his Lordship Mr. Justice Qurban Sadiq Ikram reported as Tazeem Hussain v. The State. I do not reconcile with the learned counsel on this ground.

For the proper appreciation of the correct legal position about the sanction required for the prosecution of a public servant under subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958, reference to an interpretation of the following statutory provisions is necessary:--

(i) Section 6(5) of the Pakistan Criminal Amendment Act, 1958 and the explanation attached to it alongwith section 12 of this Act, reads as under:.-

"(5) Notwithstanding' anything contained in the Code of Criminal Procedure, 1898, or in any other law, previous sanction of appropriate Government shall be required for the prosecution of a public servant for an offence under this Act and such sanction shall be sufficient for offence triable under this Act.

Explanation . For the purpose of this subsection 'appropriate Government' shall mean the Government which at the time of the commission of the offence was the appropriate Government.

Power to make Rule: --(1) The appropriate Government may frame rules to carry out the purposes of this Act.

(2) In particular and without prejudice to the generality of the foregoing powers, such rules may provide for any of the following matters, namely:--

(a) authorization of persons to exercise the power to sanction prosecution on behalf of the appropriate Government, in respect of various grades of public servants."

(ii) Rules 2 of the Pakistan Criminal Law Amendment (West Pakistan) Rules, 1962 is as follows:---

"(2), Sanction for prosecution. ---- The power to sanction prosecution of a public servant under subsection (3) of section 6 of Pakistan Criminal Law Amendment Act, 1958 (XL of 1958) may be exercised on behalf of the Provincial Government by an Officer competent to remove such public servant from office."

(iii) The following amendment was made on 16-7-1980 in-Rule 2 of the Pakistan Criminal Law Amendment (West Pakistan) Rules, 1962:--

"(3) For Rule 2, the following shall be substituted:---

"2. Sanction for prosecution .--- The power to sanction prosecution of a public servant under subsection (5) of section 6 of the Pakistan Criminal Law Amendment act, 1958 (XL of 1958) may be exercised on behalf of the Provincial Government by the Chairman of the Council or the Committee as the case may be, on the basis of the opinion of Council or Committee.

Explanation .--- For the purpose of this rule Council or Committee shall mean the council or committee as defined in the Punjab Anti -Corruption Establishment Rules, 1974."

(iv) The Rules, 1962 were further amended through Pakistan Criminal Law Amendment (Punjab) Rules, 1985, promulgated on 24-4-1985 as under:--

"In exercise of the powers conferred upon him by subsection (2) of section 12 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958) and is supersession of Pakistan Criminal Law Amendment (Punjab) Rules, 1962 the Governor of the Punjab is pleased to frame the following rules namely:--

(1) Short title and commencement: --(1) These rules may be called the Pakistan Criminal Law Amendment (Punjab) Rules, 1985.

(2) They shall come into force on a day to be notified by the Government.

(3) Sanction for prosecution .--- The power to sanction prosecution of a public servant under subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958) shall be exercised on behalf of the Provincial Government by the authorities specified below:--

(a)

Public servant in B.P.S.-1-18.

(1) Commissioner of the Division where the offence or a part thereof has been committed and "

(v) The above rules 'of 1985 were notified for enforcement with effect from 23-5-1985.

(vi) In Zafar Awan v. Islamic Republic of Pakistan PLD 1989 FSC 84, the Federal Shariat Court declared section 6(5) of the Pakistan Criminal Law Amendment Act, 1958, as repugnant to the Injunctions of Islam. This judgment was upheld by the Shariat Appellate Bench of the Supreme Court in Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad v. Zafar Awan, Advocate, High Court PLD 1992 SC 72. The Supreme Court fixed 30-6-1992 as the date from which the said subsection would cease to have effect.

4. From the abovesaid statutory provisions; it can be safely concluded that the authorities competent to grant sanction for the prosecution of a Patwari was the Collector/Assistant Commissioner of his Sub-Division upto 16-7-1980, as the said Officer is competent to remove a Patwari from service. After the amendment of Rule 2 of the Pakistan Criminal Law Amendment (West Pakistan) Rules, 1962 made in 1980, the sanctioning authority was the Chairman of the relevant council or committee as constituted under the Punjab Anti-Corruption Establishment Rules, 1974. This position continued from 16-7-1980 until 23-5-1985 when the Pakistan Criminal Law Amendment (Punjab) Rules, 1985, came into force. From 23-5-1985 to 23-6-1992, the sanctioning authority is the case of a Patwari (who falls within B.P.S. 1-18) was the Commissioner of the Division. In view of the judgment reported in PLD 1992 SC 72 (Supra), no sanction of any kind is required for the prosecution of a public servant for an offence committed by him after 30-6-1992."

It is evident from a bare reading of the judgment of this Court cited by the learned counsel for the appellant reported as Tazeem Hussain v. The State 1988 PCr.L1331 that all the above statutory provisions were not brought to the notice of the learned Judge who decided that case.

In the present case, the sanctioning authority at the time of the commission of the offence was the Commissioner of the Division concerned. The sanction in the case of the appellant was competently granted by the Commissioner, Faisalabad Division, who was duly authorised in this behalf under the Pakistan Criminal Law Amendment (Punjab) Rules, 1958.

Now I revert to the merits of the case. Abdul Rehman, complainant appeared as P.W.1 and stated the story as he had already mentioned in his complaint Exh.P.F. In his cross-examination, he admitted that the case was got registered by him against his brother who had ploughed his field but he did not admit that the police had cancelled the case as being false. He denied the suggestions that he was given 1 Kanal 13 Marlas land in lieu of that path; he however, admitted that Rab Nawaz had filed a civil suit regarding the same path restraining him to demolish the same but denied the suggestions that the civil suit was decided in the light of the decision taken by the arbitrators, who have been nominated with the mutual consent of the parties.

Usman Ali (P.W.2) deposed that the said land was in possession of the complainant at the relevant time. Rab Nawaz and others brought a tractor and ploughed the land illegally and made a path. He very categorically admitted in his cross-examination that when the land was ploughed, he was not present there. He also admitted that the case was got registered but the same was later on cancelled. He also admitted that there was party politics in Mauza Kot Lal. Safdar Hussain, Qanungo (P.W.3) stated that in Register Haqdaran Zamin, 1984-85 of Mauza Kot Lal there was no mention of any path in Killa No.il Square No.101 of Mauza Kot Lal nor there is any path shown existed in the record in Killas Nos.20, 21/1. He has admitted in the cross-examination that Patwari was to record the actual position at the spot and if there was any mistake the order was to be obtained from the Deputy Commissioner for its correction. Aurangzeb, Patwari (P.W.4) Halqa Kot Lal had brought the original record to show that necessary corrections were made under the orders of the Deputy Commissioner. He admitted in his cross-examination that Khasra Girdawari is to be prepared according to the position existing at the spot. He further made it clear that the path exists in Khasra Nos.20 and 21/1 of Khatoni No.362 and the path was existing there from the time prior to his posting. Ch. Shahbaz Khan, Assistant Director (P.W.5) deposed that he had inquired into the matter and prepared the inquiry report on the basis of which case was registered. Ch. Muhammad Islam, Inspector/A.S.D.P.O. (P.W.6) entered appearance and deposed that he after recording the F.I.R., conducted the investigation and recorded the statements of the witnesses, and arrested the accused. He after obtaining sanction submitted the challan. In cross-examination he categorically stated that he, during the investigation, only recd upon the findings in the inquiry report. He did not even investigate the matter and obtained the specimen signatures of the accused for referring the same to the Handwriting Expert. He did not join any person in the investigation.

On the conclusion of the trial, the evidence was put to the accused/appellant, who refused the allegations levelled against him and his statement under section 342, Cr.P.C. was recorded. He produced Allah Bakhsh as D.W.1 who supported his stand but he himself did not enter into the witness-box to make a statement under section 340(2) of Cr.P.C. in disproof of the charge.

The complainant has alleged that after receiving the illegal gratification, the accused/appellant had tempered with the record. Neither he had seen passing on of the illegal money nor he had seen him tempering with the record. In addition thereto the Investigating Officer had also not obtained the specimen to refer the same for obtaining the opinion of the Handwriting Expert. The complainant has also, during the trial, suppressed material point aid had shown his ignorance regarding the cancellation of the criminal case against Rab Nawaz and others, decision of the civil suit and his concurrence to the appointment of the arbitrator. The testimony of the witnesses did not inspire confidence. He is inimical and interested witness. His testimony could not be relied upon without some independent corroboration, which was not forthcoming in this case. The appellant was not beneficiary of the changing o the record. The necessary corrections were made in the record under the orders of the Deputy Commissioner. If the prosecution case is examined in juxtaposition vis-a-vis the prosecution case, that the corrections were made under the orders of the competent authority, appear to be more probable and nearer the truth. No disinterested witness was produced by the prosecution which reflected adversely on the prosecution case.

For the foregoing discussion, I hold that the judgment of the learned trial Court was not found supporting correct reasoning in arriving at the conclusion for the conviction of the appellant which is liable to be set aside. Resultantly, the appeal is accepted. The conviction and sentence is set aside and the appellant is acquitted of the charge by giving him the benefit of doubt. The appellant is on bail his bail bonds stand discharged.

N.H.Q./M-2494/L

Appeal accepted.