LATAFAT HUSSAIN GHORI Versus THE STATE
1. The appellant and the co-accused Mohammad Zahid were charged under sections 471, 409/34, P.P.C. read with section 5 (2) of Act II of 1947 and tried before the learned Special Judge (Central) Karachi who has convicted the present appellant under section 471 and sentenced him to undergo R.I. for 12 months and under section 409 read with section 5 (2) of Act II of 1947 and sentenced to undergo R.I. for two years an"' to pay fine of Rs.50,000 or in default to undergo R.I. for six months more, while co-accused was acquitted.
2. The brief facts of the prosecution case are that on 7-1-1975 one Hafiz Abdul Haq had purchased National Deposit Certificates bearing Nos. F-142351 to F-142364 of Rs.5000 each total value of Rs.70,000 from Mohammad Shafiq National Savings Officer, Latifabad, Hyderabad No.1, Hyderabad and registration No.542 were assigned to them. On 14-2-1976 Hafiz Abdul Haq presented eight N.D.Cs. Before National Savings Officer Latifabad Mr. Saeeduz Zaffer for encashment bearing Nos. F-142357 to F-142364 which have been produced as Exh.8/1 to 8/8 and he was paid an amount of Rs.40,000 as price of the said, and Rs.3200 as profit. Such an entry was made at serial No.8 of page 35 of NDC's Discharge Register, which has been produced as Exh.10, and in the Cash Book Exh.13, and also on the Discharge Journal Exh.
18. On 28-12-1976 Mr. Saeeduz Zaffer handed over charge to Mohammad Zahid under Charge Farad, which has been produced as Exh.8 in which he has acknowledged the receipt of Discharge Certificates as per Discharge Journal. On 29-6-1977 the seal of the discharge and date of the discharge put thereon is said to have been erased through some chemical. On 29-6-1977 the present appellant who was then working as N.S.O. NSC, Lateefabad has again re-discharged seven amongst eight discharged NDCs Exh.16/2 to Exh.i6/8 and had withdrawn the amount of Rs.35,000 towards the price and Rs.5,950 towards the profit and had put another seal and date of discharge on the same, and made such entry on Journal, and Certificate Discharge dated 29-6-1977 which has been produced as Exh.18 and on the Cash Book dated 29-6-1977 produced as Exh.23. Thus the amount of these NDCs was withdrawn from NSCs Lateefabad No.1, Hyderabad on 14-2-1976 by Mr. Saeeduz Zaffer National Savings Officer NSC-1 with regard to the numbers bearing F-142357 to F-142364 and the accused Latafat Hussain on 29-6-1977 by erasing the seal of discharge and date of discharge on these certificates by some chemical and putting a new stamp and date of discharge and allegedly mis appropriated the amount of Rs.40,950. While checking the record of NSC.1 and NSC.II, Lateefabad, Hyderabad Mr. Abdul Qayyoom Audit Inspector detected the above fraud in October, 1977 and therefore he made such written report to the Deputy Director F.I.A, Hyderabad, which was received by him on 6-11-1977 and the same was incorporated in 154 Book by Mr. Ahsanullah Inspector F.I.A. Hyderabad. The report has been produced as Exh.32. After necessary investigation the appellant and co-accused Mohammad Zahid were challaned before the Court, to stand their trial under sections 477-A, 468-409, P.P.C. read with section 5 (2) of Act II of 1947. The appropriate government was approached for necessary sanction as envisaged by subsection (5) of section 6 of the Criminal Law Amendment Act, but before such letter could be issued, the Ministry of Interior was pleased to accord sanction to prosecute both the accused vide letters dated 13-8-78 which have been produced as Exhs.34 and 35.
3. On 16/12/1978 a formal charge was framed against the appellant and the co-accused under sections 467, 409, 477-A, P.P.C. read with section 5(2) of Act II of 1947 to which they pleaded not guilty. However the charge was amended on 6-8-1980 and the appellant and the co-accused were charged under sections 471, 409/34, P.P.C. read with section 5 (2) of Act II of 1947 also to which the accused pleaded not guilty.
4. At the trial prosecution examined Mr. Hidayatullah, National Savings Officer who acted as mashir P.W.1 Mr.Naseem Mohammad, National Savings Officer P.W.2, Abdul Qayoom Abbasi Audit Inspector, United Bank Ltd. P.W.3, who has produced his report which was sent to the Deputy Director, F.I.A . Hyderabad Exh.19, Saeeduz Zaffer, National Savings Officer P.W.4, Mohammad Din, National Savings Officer P.W.5, Hafiz Abdul Haq P.W.6, Abdul Ghafoor Inspector F.I.A., Hyderabad P.W.7. Application made by the prosecution regarding amendment of charge Exh.30, and statements of the accused that they do not wish to recall any witness already examined after the amendment of the charge have been produced as Exh.30/1. Ahsanullah Inspector F.I.A. P.W.8, has produced the F.I.R. as Exh. 32, Mashirnama regarding recovery of photo copy of Discharge Journal of NDC page 27 and cash book containing 400 pages as Exh. 33, Sanction Letter sanctioning prosecution of Mohammad Zahid Exh.34 and appellant Latafat Hussain Exh.35.
5. After the close of the prosecution case the statements of the accused were recorded under section 342, Cr.P.C. in which they denied the allegations. It was further stated by the appellant Latafat Hussain that the certificates were originally issued to Hafiz Abdul Haq from NSC-I Lateefabad, Hyderabad, but they were not discharged at the said centre by P.W. Saeeduz Zaffer. The certificates when presented before him by Hafiz Abdul Haq did not bear any seal, date of discharge and signature of Hafiz Abdul Haq or P.W. Saeeduz Zaffer in token of which having been discharged. That the entries shown in Exhs. 10 to 13 have been manipulated, they are dishonest and false. He denied to have misappropriated the amount shown in the charge nor he redischarged the certificates. In fact the certificates were presented before him by Hafiz Abdul Haq on 29-6-1977 for discharge and payment thereof. He accordingly discharged the certificates by observing due legal formalities, made payment to Hafiz Abdul Haq, and entered the payment details in the Discharge Journal and Cash Book. He had admitted that he had handed over the said discharged saving certificates to his successor but he did not remember his name. However, he did not examine any witness in his defence.
6. I have heard Mr. Ghulam Hyder Memon, learned counsel for the appellant and Mr. Ali Bux Leghari for the State.
7. It was contended by the learned counsel for the appellant that after the amendment of charge in which section 471, P.P.C. was added, it was necessary for the learned trial Judge to have written. to the Sanctioning Authority for granting sanction to prosecute the appellant under section 471, P.P.C. as well as envisaged by section 230, Cr.P. Code. He has further contended that the sanction order does not show that the Sanctioning Authority had applied mind to the facts of the present case and therefore the sanction was vitiated and the trial of the applicant was illegal. In this connection he has pointed out that the charge-sheet shows that the offence was committed on 29-6-1977 whereas the sanction order in respect of appellant Latafat Hussain shows the date as 26-6-1976 on which co-accused Muhammad Zahid was not even posted at NSC-I Lateefabad Hyderabad.
8. He has further contended that there was no direct or circumstantial evidence to connect the appellant with the alleged crime.
9. Mr. Ali Bux Leghari learned counsel for the State has contended that the sanction order. passed in respect of the present appellant was `defective, but otherwise there was sufficient evidence to prove the guilt of the appellant.
10. I have considered -the contention of the learned counsel and have gone through the R & P of the case.
11. In view of the order which I propose to pass in this appeal it is not necessary to go into detailed discussion of the evidence produced by the prosecution. It is an admitted position that the first charge was framed against the appellant and the co-accused on 16-12-1978 in which there was no charge under section 471, P.P.C. That the amended charge was framed on 6-8-1980 in which section 471 was added while sections 467 and 468 were deleted. In order to appreciate the first contention of Mr. Ghulam Hyder Memon it is necessary to have a look at section 230, Cr.P.C. which reads as under:-
12. "If the offence stated in the new or altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the new or altered charge is founded."
13. The sanction order granting sanction to prosecute the present appellant has been produced as Exh.35. It reads as under
14. Whereas it appears that Latafat Hussain Ghori son of Shafaquat Hussain Ghori in the capacity of National Saving Officer Incharge N.S.O.-II Latifabad and as such public servant on or about 26-6-1976, obtained Paid Discharged National Deposit Certificates bearing Nos. F-142358 to F-142364 of the value of Rs.35,000 from the co-accused Mohammad Zahir and obliterated the discharged seals thereon and re-discharged the said certificates showing payment of Rs.40,950 (inclusive of interest) and thus by falsifying the record and committing forgery misappropriated a sum of Rs.40,950 and thereby committed the offences punishable under sections 477-A, 468, 409, 34 of Pakistan Penal Code and subsection (2) of Section 5 of the Prevention of Corruption Act, 1947 (II of 1947).
2. And whereas the Federal Government on perusal of papers, consideration of the facts and expendiency of the matter, is satisfied that there exists a prima facie case against the accused and he may be put on trial and is pleased under subsection (5) of section 6 of the Pakistan Criminal Law. Amendment Act 1958 (XL of 1958) to sanction the prosecution of the said Latafat Hussain Ghori for the aforesaid offences, or any other offence under any provision of law that the Court may consider fit, in the court of the Special Judge (Central) having jurisdiction in the matter."
15. The bare reading of the sanction order Exh.35 shows that no sanction was granted by the appropriate Government for prosecuting the appellant under section 471, P.P.C. nor the government was approached for necessary sanction in respect of offence under section 471, P.P.C. as envisaged by the provisions of section 230, Cr.P.C.
16. Moreover the date of incident mentioned in the charge-sheet is 29-6-1977 while the date mentioned in the sanction order Exh.35 shows to be 26-6-1976. Even the evidence of P.W. Abdul Qayoom Audit Inspector shows the date of incident to be 29-6-1977 and thus it is clear that the sanctioning authority did not apply his mind to the facts of the case, and that the sanction was granted mechanically and no sanction was obtained in respect of offence. under section; 471 P.P.C. In the case of Abdur Rasheed v. The State P L D 19601 Kar. 251 it was observed by this Court that:-
17. "No extraneous evidence has been given in this case to prove that Mr. Nizamuddin was made aware of the details and of the explanations given by the accused. This order of sanction suggests that some pro forma was sent to him with a draft and he merely signed it. Such sanction is held to be a mechanical sanction and has been disapproved by this Court in Tufail Mohammad's case.
18. In the case of Rasheed Ahmed v. The State P L D 1972 SC 271, it was held by their Lordships of the Supreme Court that;
19. "If a mandatory condition for the exercise of a jurisdiction before a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffers from illegality and is without jurisdiction.
20. After careful consideration of the legal position I am of the view that the sanctioning authority had not applied his mind while granting sanction to prosecute the appellant and no sanction was obtained regarding offence under section 471, P.P.C. which was included in the amended charge, and on this ground alone the judgment of the learned trial Judge is liable to be set aside, without considering the other contentions of the learned counsel.
21. In view of the above discussion I allow this appeal, set aside the conviction and sentence of the appellant, and he is acquitted. He is on bail, his bail bonds stand discharged.
22. However, the prosecution will be at liberty to initiate fresh proceedings against the appellant if they want to, after obtaining the necessary sanction from the appropriate government as envisaged by law.
23. I had allowed this appeal by a short order dated 14-10-1987 and these are the reasons for the same.
24. S.A./L-13/K Appeal accepted.