THE STATE Versus Sh. MANZAR MASUD

The accused, Sheikh Manzar Masud, in this case, was put to `trial Under the provisions of Holders of Representative Offices (Trial of Offences) Ordinance, 1978 (Ordinance No. VIII of 1978) hereinafter to be referred ac 1978 Ordinance). At the very outset, I cannot help, but to regret that the complaint does not provide a happy reading. The charges therein are verbose and clumsily framed and in most of them one fails to under stand as to what in fact the prosecution is about. In this state of affairs, the Special Prosecutor was asked to let me know as to what precisely the charges are. The learned Special' Prosecutor, in his written arguments, formulated the charges which in substance are:-

1. (a) That the accused while holding the office of Speaker, Legisla tive Assembly, used two (AJK-1 and AJK-3038) Government vehicles simultaneously with effect from 16th September 1973 to 16th April 1975 for which the Government had to incur expenditure of Rs. 26,978 and Rs. 26,168 respectively. He was entitled to use only one vehicle;

(b) That the accused on 17th April, 1975 in addition to his duty as Speaker, also took over as President and thereafter used without any entitlement vehicle No. AJK-1 as Speaker and vehicle No. AJK-3038 as President;

(2) That the accused after relinquishing the charge of Speaker, did not return the Government vehicle No. AJK-3038 which was on Assembly pool and repeated communications on the subject also proved futile. The vehicle, thereafter, was found damaged in the year 1977 lying in front of Allied Bank Building Mirpur. The accused then was asked by the authorities to pay an amount of Rs. 22,900 as cost of vehicle, but he failed to make the payment;

(3) That the accused illegally, received an amount of Rs. 8,500 from Deputy Commissioner Poonch, which he did not return. This amount was received by him, on his own directions, when he was acting as President in absence of Sardar Muhammad Abdul Qayyum Khan;

(4) That the accused, without any authority, ordered the payment of huge amounts out of Auqaf funds to various undeserving persons;

(5) That the accused illegally received some amount as T. A./D.A. while he was Adviser in Azad Jammu and Kashmir Council. An amount of Rs. 6,000 (which had been inadvertently written as Rs. 60,000 was received by him in advance and some amount was also received by him in March, 1977. The journey was not under taken in the interest of the State, rather it was undertaken for political purpose;

(6) That while the accused was acting as President a sun, of Rs. 5,50,000 was drawn from Peoples Works Programme. This amount was distributed amongst politicians, journalists and students etc. who were not entitled to receive any amount from the Govern ment Exchequer.

2. The accused when called upon, under section 242, Cr. P. C. to answer the charges in writing, denied the correctness of all the charges. After the close of prosecution evidence the accused in his statement under section 342, Cr. P. C. has also denied the validity of the charges.

3. The prosecution case rests on the statements of the following witnesses:-

(1) Ghulam Ahmed Abbasi, Deputy Secretary Assembly, P. W. 1.

(2) Khalil Ahmed Qureshi, Secretary Services, P. W. 2.

(3) Ghulam Hussain, Senior Auditor Accounts Branch, P. W. 3.

(4) Ghulam Superintendent Office of the Accountant-General, P. W. 4.

(5) Mahboob Ahmed Qureshi, Assistant Accounts Officer P. W. 5.

(6) Ghulam: Rasool, Photographer P. W. 6.

(7) Muhammad Riaz Butt, Photographer P. W. 7.

(8) Noor Muhammad, Section Officer, Ministry of Kashmir Affairs P. W. 8.

(9) Muhammad Akbar Accountant, Azad Jammu and Kashmir Council Islamabad P. W. 9.

(10) Sardar Said Hussan, D. I. G. P. W. 10.

(11) Fiaz Ahmed, Stenographer, Ministry of Kashmir Affairs P. W. 11.

(12) Raja Nasim Akhtar, Project Director, Cadet College Pallandri, P. W. 12.

(13) Sardar Ashfaq Ahmed Khan, Administrator Auqaf, P. W. 13.

(14) Kala Khan, Driver P. W. 14.

(15) Abdul Hamid Butt, Accountant, Assembly Secretariat P. W. 15.

(16) Qamar-ud-Din Bashir, Assistant Director, Peoples Works Pro gramme P. W. 16.

Qazi Faizvab Deputy Director, Peoples Works Programme and S. Ijlal Hussain Zaidi. Chief Secretary of the time were given up by the prosecution. The accused did not examine any witness in defence.

4. To start with, the learned counsel for the accused had attacked the validity of the prosecution of the accused for want of proper sanction on various grounds. The grounds are:-

(a) That proof lacks to say that the sanctioning authority had applied its mind prier to the sanction and the prosecution also failed to prove, independently of the sanction, that the facts were placed before the sanctioning authority and the authority had applied its mind before according sanction. In his view the provisions of sub clause (2) of section 5 of 1978 Ordinance which makes a valid prosecution only after due sanction, has not been complied with. The sanction, as contended, is a condition precedent to institute proceedings and here in this case evidence lacks proof that facts were placed before the sanctioning authority and he took into consideration the facts so posted before him. Prosecution for that reason, it is claimed, is cab initio void.

(b) That the sanction in the present case which is sought to be validat ed under Ordinance No. CLXIX of 1979 made on 15th December 1979 cannot be considered as a previous sanction because this Ordinance provides that the sanction accorded under Ordinance No. VIII of 1978 and succeeding Ordinances shall be deemed to have been accorded under this Ordinance namely Ordinance No. CLXIX of 1579 which came into existence in November, 1979 aria by virtue of this amendment the sanction in the present case which was accorded on 26th August 1978 shall be deemed to have beep validly accorded only in November, 1979 while the prosecution, against the accused had commenced in the year 1978, when there was no valid sanction. His case is that this sanction cannot be deemed to have been given prior to the prosecution of the accused.

(c) That sanction has not been proved in accordance with law.

For the sanction being defective, 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.

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 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 cl. 23, it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since cl. 23 dons not require the sanction to be in any particular form, nor even to be in writing. 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. The sanction to prosecute is an important matter; it constitutes a con dition 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 know ledge 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 cl. 23".

5. With due respect to the learned Judge, this judgment contains contradictions, hardly to be reconciled. At first it is observed. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since cl. 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 cons tituting 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 considera tion 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 to be invalid.

In the next case 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."

6. 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 accord ing sanction.

In the third case Ahdul Rashid v. The State (P L D 1960 Kar. 251) the relevant observa tion 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 investi gation 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 ease to prove that Mr. Nizamuddin was made aware of the details and of the explanation given by the accused."

7. 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, sanction 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 sanctioning authority was made known of the facts before sanction was given; but will this fact make the sanction defective, is a point which shall be taken up at the appropriate stage. But one thing is clear that the acts 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 mechanical 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 this case has no application to the facts of the present case.

8. Let me 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 relat ing to the very incident which was the subject-matter of the trial. It was maintains" 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 Tufail Muhammad v. Crown (P L D 1954 Lah. 37) wherein it was held that a sanc tion 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. There are no such circumstances."

It may be stated here that in Tufail Muhammad v. Crown (P L D 1954 Lah. 37) 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' (P L D 1955 Lah. 661) that all official acts are presumed to be regularly performed unless circumstances justify a different course, holds good for the case in hand.

In the next case 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 tinder subsection (1) of section 197, Criminal P. C., 1898, for the prosecution of the said T. S. Swaminathan, 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 his individual judgment', as laid down in S. 197, Criminal P. C. as amended in the light of the provisions of Ss. 52 and 271 (2), Government of India Act. The argument precisely was that although the genuineness of the sanction order may have been proved by the prosecution, something more was necessary to establish that the Governor exercised his individual judgment in accord ing 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 S. 197, Criminal P. C., that is in our opinion a sufficient proof that His Excellency has sanctioned the prosecution in 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 judg ment 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 is 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 record ing 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 bands 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:-

"Whilst obviously it is desirable that the sanction should be given in writing and should on the face of it indicate reasonably clearly by statement or references to other documents the I necessary matters above set out, it is not possible in our judgment to hold that the section requires any particular form of sanction or even that it should be always in writing. What is necessary is that if challenged by a defendant or accused person the plaintiff or prosecutor should be able to establish to the satisfaction of the Court that the requisites of the sanctions as set out above have been complied with in respect of the sanction on which he relies, so that the Court can be satisfied that it has jurisdiction to entertain the particular proceedings before it."

In Emperor v. J.C. D' Souza (A I R 1947 Bom. 151) it is held

"The clause in my view is not very happily worded as it does not specify the precise sanction which has to he given, but used in that context the words `the previous sanction' must relate to a prosecu tion for a `contravention, and in my opinion it is incumbent on Government in each case to show that such a sanction had been given."

9. After studying the case law on the point, I am of the view that the sanction is not mechanical for the following reasons:-

(i) The law does not provide that sanction shall be in any specific form or it shall show that facts were placed before the sanctioning authority who applied its mind before giving sanction;

(ii) Presumption under section 114, Evidence Act is attached to the validity of sanction i.e. it shall be presumed that sanction has been regularly given unless on the face of the sanction order there is some visible defect (such defect is not traceable in this case) ;

(iii) There is nothing on record to show that material facts were not posted before the sanctioning authority prior to the sanction

(iv) I have also, for my own satisfaction, requisitioned the relev ant file containing the sanction order by the Chief Executive. The file shows that the facts were brought to the notice of the authority prior to the grant of sanction. Photostat copies of the relevant record are placed on the file.

10. Let us adjudge the issue from still another angle. If the sanction to this case could be held otherwise invalid, when it was given, it stands validated under Ordinance No. CLXIX of 1979 made on 15th of Decem ber, 1979. Under section 2 (a) of this Ordinance, it is provided that:-

"Any prosecution sanction accorded under the provisions of Holders of Representative Offices (Trial of Offences) Ordinance, 1978 (VIII of 1978) or its succeeding ordinances issued from time to time shall be deemed to have been validly accorded under this ordinance."

In my view the provisions of section 2 (a) provides that sanction even otherwise deemed to be invalid under 1978 Ordinance is validated under this Ordinance. This law contemplates that the state of affairs should be deemed to have existed at a prior time (at the time of institution of the complaint) which actually did not exist, by fiction of law, In this view of the matter even if it is presumed that the sanction was not proper yet it would be deemed, under this ordinance, to have been given in a regular manner. It seems that this ordinance is made to validate the sanction, if otherwise it may be held to be defective and it will operate retrospectively. On the point Crawford in his book 'Construction of Statutes' 1940 edition at page 577 says:-

"Acts of this character are obviously retroactive and hence entitled, as a general rule, to retrospective operation. Being retroactive in their very nature, they will not usually be given any prospective effect. Being subject to a liberal construction, any doubt should be resolved in favour of retrospective operation."

For the view I have taken in the matter, I do not feel safe to agree with the learned counsel that the sanction under this ordinance shall not date back to the time of the institution of the complaint.

11. The next criticism levelled about the sanction is that it has not been proved in accordance with law. I cannot persuade myself to agree with the learned counsel for the following reasons:-

(1) The Government Gazette, No. 194 dated 27th August, 1978, placed on record, shows that sanction has been accorded for the prosecu tion of the accused. This gazette, under section 81 of the Evidence Act, is sufficient proof of the sanction.

(2) Ameer Ali on Law of Evidence (11th Edition) dealing with the issue under section 81 at page 1431 says:-

"Under this section the genuineness of the Gazette must be presumed, though it is not formally tendered at the trial. It is enough if the Court has the Gazette before it. Notifications and orders published in the Gazette need no proof as the Court will take judicial notice of them under section 57 and presume their genuineness under this section."

(3) Similarly Monir in his Law of Evidence (Pak. Edition) under section 114 dealing with the issue says at page 1165:-

"Where a sanction for prosecution by the Chief Secretary to the Government referred to the `under-mentioned persons', and the names of the persons were shown on the back of the paper, it was held that there was a presumption that all official acts were regu larly performed and that it could not be assumed that the Chief Secretary signed the sanction before the names of the accused persons were written on the paper. Signature of the officer sanction ing is presumed to be genuine and it is not necessary to call for its proof. Since it must be presumed that all official acts have been duly performed, section 114 of the Evidence Act which recognizes this presumption supplies any omissions in the method of com munication of the sanction to the prosecuting officer and the Magistrate."

In view of the above I hold that the sanction is duly proved.

12. I have held that the sanction, as required under 1978 Ordinance was valid sanction but if we take the matter from another angle we come to the same conclusion. The provision of sanction as originally framed it, 1978 Ordinance was substituted by Ordinance No. CLXIX of 1979 dated 15th December, 1979. Subsection (2) of section 6 (originally it was section 5 (2) was amended to say that:-

"No person shall be prosecuted under the provisions of this ordinance except with the previous sanction of the Government."

This provision is pointedly in departure with the original provision incorporated in 1978 Ordinance. In 1978 Ordinance the sanction was necessarily required to be given in respect of the offences charged with. But under the amended ordinance, sanction was required for the prosecu tion under the provisions of the Ordinance and not for the offences charged with. This means that sanction was required only for the prosecution under the Ordinance and not for the offences for which the accused was being tried. The Ordinance provides that this amendment shall date back and be deemed always to have been so substituted. So by legal fiction it will date back to the date of the institution of the complaint. This amend ment, in my view, also provides a satisfactory answer to the criticism levelled about the sanction.

After deciding the question of sanction, now I proceed to decide the charges seriatim.

Charge No. 1 (a) and (b):

13. Charge No. 1 (a) and (b) is in respect of illegal utilization of two Government vehicles (AJK-1 and AJK-3038) simultaneously by the accused as Speaker from 16th September, 1973 to 16th April, 1975 and from 17th April, 1975 onward as President. It needs to be mentioned here that after the removal of Sardar Mohammad Abdul Qayyum Khan as President, the accused for his being Speaker, was sworn in as President on 16th April, 1975.

14. The prosecution claims that the accused as Speaker and later as President was only entitled to have one Government vehicle but he, during this period, used two vehicles simultaneously which amounts to misconduct as stipulated under 1978 Ordinance. When asked, to refer to any law or rule which prohibits the utilization of two vehicles simultaneously by the Speaker or the President, the learned Prosecutor frankly conceded that, there is none. Utilization of two vehicles, therefore, simultaneously as Speaker or President cannot form basis of conviction as it offends no law of rule. The accused, therefore, stands exonerated from this charge. Even otherwise under clause (e) of 1978 Ordinance, Speaker cannot be said to have held a representative office and for that reason even if the charge could be held to have been otherwise proved, the accused as Speaker cannot be condemned.

Charge No. 2:

15. Under this charge the accused is stated to have retained and used a Government vehicle No. A J K-3038 even after relinquishing his charge as Speaker. It is further claimed that he, despite repeated cor respondence, declined to return the vehicle. The vehicle, it is said, was later on found damaged lying in front of Allied Bank Building Mirpur. It is further said that the accused thereafter was asked to pay an amount of Rs. 22,900 as cost of the vehicle but no heed was paid to this demand.

This charge is assailed by the defence inter alia on the grounds :-

(i) That the Ordinance namely, Holders of Representative Offices (Trial of Offences) Ordinance, 1978, does not include, 'Speaker' and the accused, therefore, cannot be tried for his acts taken during his tenure as Speaker;

(ii) That the accused cannot be punished; because he was holding no office in connection with the affairs of Azad Government of the State of Jammu and Kashmir and therefore even if the vehicle was used without any entitlement, it cannot be said that the accused had committed an offence of 'misconduct'. The plank of his argument is that under section 3 of the Ordinance in question, it is provided that where there is suspicion that a person who held any ofl3ce, post or position including membership of elective body under or in connection with the affairs of the Azad Government of the State of Jammu and Kashmir has committed the offence of misconduct, the enquiry may be launched against such a man. His case is that the accused as Speaker or Member of the Assembly, had no connec tion with the affairs of the Azad Government, he cannot be, there fore, prosecuted for misconduct under the Ordinance;

(iii) That as the accused was required to pay Rs. 22,900 as cost of vehicle, the matter had assumed the complexion of civil nature and for that reason he cannot be saddled with, criminal liability;

(iv) That the documents tendered in evidence are not proved in accor dance with law and as such cannot be read in evidence;

(v) That the evidence does not connect the accused with this charge.

16. I am in agreement with the learned counsel that the Speaker cannot be proceeded against under the Ordinance, but his criticism is satisfactorily repelled in the statement of Ghulam Ahmed Abbasi when he says that the accused ceased to be Speaker on 28th June, 1975 and thereafter (the period for which he is charged with) he only enjoyed the status of an M. L. A. Apart from it the objection even fails when we find that the accused is not even charged as Speaker.

It is a matter of record and judicial notice can legitimately be taken that the Azad Jammu and Kashmir Interim Constitution Act, 1974 was amended on 5th November, 1975. By virtue of this amendment, under section 21 (81 of the amendment Act, a member of the Assembly was also made eligible to be appointed or nominated as Adviser in Azad Jammu and Kashmir Council. Obviously, the accused after quiting the office of Speaker remained only a Member of the Assembly and could not be appointed or nominated as Adviser in the Council prior to 7 th November, 1975. The charge obviously pertains to the period when he was M. L. A.

17. The learned counsel maintained that as the accused was not charged as Member of the Assembly and no sanction in that capacity was given his prosecution as M. L. A. is not tenable. I am not impressed by this argument. Holders of Representative Offices (Trial of Offences) (Amendment) Ordinance, 1980 (Ordinance XIX of 1980) made on 2nd 'February, 1980 provides:---

"Any sanction accorded under the provisions of Holders of Representative Offices (Trial of Offences) Ordinance, 1978 (Ordinance No. VIII of 1978) or its succeeding Ordinances issued from time to time for the prosecution of holders of representative offices in one capacity shall be deemed to include all offices held by him for which he has been or may be prosecuted under the provisions of this Ordinance."

This Ordinance obviously allows the trial and conviction of a person in any other capacity and it matters not if sanction is not accorded or such person is not charged in that capacity, if offence is otherwise established.

18. The question, therefore, to be resolved is whether as M. L. A. he was entitled to have a Government vehicle. If the answer is in affirma tive, no offence had been committed by the accused (if the charge is otherwise proved) but if the answer is in negative, it requires determina tion as to whether any offence had been committed by the accused.

19. Firstly it needs determination as to whether the retention or utilization of vehicle without any entitlement amounts to an offence under sub-clause (d) of section 1 of the Public Offices (Misconduct) Ordinance, 1965:-

'Misconduct' as defined therein, means any doctrine or the doing of any act which contributes to political instability, bribery, corruption, jobbery, favouritism, nepotism, wilful mal-administration, wilful misapplication or diversion of public money or moneys collected whether by public subscription or otherwise or any other abuse of whatsoever kind of power or position and any attempt at or abet ment of, such misconduct."

It will be observed that in the definition clause, in addition to other factors any abuse of power or position and any attempt at or abetment of such abuse is misconduct. Besides mere retention of vehicle without any entitlement is misappropriation under section 403, Penal Code and amounts to misconduct. It, therefore, needs no deep wisdom or Laboured argument to say that the retention or use of a Government vehicle without any entitlement amounts to misconduct and misappropriation.

20. I have gone through the provisions of Members of Legislative Assembly Privileges Ordinance which do not entitle an M. L. A. to utilize a Government vehicle. Therefore, my conclusion is that from 28 th June, 1975 at least upto 7 th November, 1975 when members of the Assembly were also made eligible to be appointed or nominated as Advisers, the accused (if otherwise proved to have used the vehicle) is guilty of misconduct.

21. I cannot agree with the learned counsel that the accused as Member of the Assembly had no connection with the affairs of the Azad Government. My reasons are:-

(a) A Government consists of three limbs ; the executive, the judiciary and the legislature. Legislature makes laws and the Government is duty bound to obey and implement the laws so enacted by the Legislature.

(b) The Assembly, whose member the accused was, elects the Prime Minister who is head of the Government and this forum has also power to pass a vote of no confidence against Prime Minister

(c) The Government under the Interim Constitution Act is' virtually answerable to the Assembly whose member the accused was.

(d) The Assembly also passes the budget of the Government.

Obviously Mr. Manzar Masud (an M. L. A.) by virtue of his office was holding an office in connection with the affairs of the Azad Government of the State of Jammu and Kashmir. The argument, therefore, being without any substance, stands repelled.

22. On the point of civil nature of the transaction, my view is that the retention of the vehicle (if proved) is clearly misconduct under the provisions of Public Misconduct Ordinance, 1965. It is also an offence of misappropriation under section 403. Penal Code. If the Government had shown indulgence to the accused to make good loss of vehicle, it cannot be said that the accused has been exonerated from criminal liability. Of course, if he had paid the amount, which was not done, perhaps it may have been said that the accused could not be vexed twice for civil as well as criminal liability.

23. Let me now determine whether it is established that the accused has utilized the Government vehicle without any entitlement.

In support of this charge the prosecution has examined Mr. Ghulam Mohammad Abbasi, P. W. 1 and Khalil Ahmed Qureshi. P. W. 2 as witnesses. Documents Exh. P. C., F. G., P. L. and P. N. addressed to the accused in addition to letters Exh. P. D., P. E., P. F., P. J., P. K. and P. M. which is correspondence on the subject between various function aries of the Government have also been tendered in evidence. Exh. P. C. is a telegram .to the accused. Exh. P. C. is a letter by Col. Muhammad Mansha Khan, the Speaker of the time, addressed to the accused for the return of the vehicle. Exh. P. L. is a letter from the Secretary Assembly to the accused for the return of the vehicle. All the above mentioned correspondence (official record) has been proved by Ghulam Mohammad Abbasi P. W.

1. The authenticity of documentary evidence (being official record) is above board. It contains sufficient proof to the effect that the accused after relinquishing the charge as Speaker had taken along a Government vehicle (No. A J K-3038) and then retained the same despite repeated demands. 1t is significant that the accused failed to put up any explanation to show as to how he was entitled to retain and use this vehicle. The vehicle, it is in the evidence of Ghulam Mohammad Abbasi P. W. 1, was found damaged in front of a Bank at Mirpur. In these circumstances, it was for the accused who retained the vehicle to explain as to how the vehicle was damaged. His absence to do so raises a presumption that during his use the vehicle was damaged.

24. It has come in the evidence of Mr. Ghulam Mohammad Abbasi P. W. 1 that Sh. Manzar Masud, despite repeated reminders for the return of vehicle (A J K 3038) after he ceased to be Speaker, failed to return it. The letters (official documents) listed above are also proved by the witness. A telegram Exh. P. C., it is stated by the witness, was also sent to the accused for the return of the vehicle. It is also in the evidence of Khalil Ahmed Qureshi P. W. 2 that when he took over the charge as Secretary Assembly, it was brought to his notice that vehicle No. A J K 3038 was taken along and still remains under the use of Sh. Manzar Masud. The evidence proves the charge of misconduct and misappropriation against the accused beyond the reasonable doubt.

25. The learned counsel for the accused in his written arguments maintained that the vehicle was taken on the orders of Chef Secretary as letter of Col. Mansha Khan shows. Firstly no such order is exhibited; but even otherwise the Chief Secretary had no competence to allot a vehicle to Sh. Manzar Masud. As such how an invalid order can validate an illegal act.

26. It is significant to state that no question, in cross-examination was even suggested to and of the witnesses that the accused had' not taken and retained the vehicle alongwith him. In criminal cases if the accused fails to put up his case to a witness it may, in the circumstances of a given case, be inferred that the accused admits the correctness of the statement of such a witness on the relevant point. I, therefore, feel justified to raise a strong inference against the accused for his failure to cross-examine the witnesses on this point.

27. It is correct, as contended, that after his nomination as Adviser Jammu and Kashmir Council, he was entitled to have a Government vehicle, provided it was given to him by the Council. But there is nothing on record and the accused has also failed to suggest that vehicle in question was allotted to him by the Council. Whether the Council was competent to allot a vehicle of the Azad Jammu and Kashmir Government (on the Assembly pool) to any of its advisers is also doubtful. The accused was a competent witness to rebut the charge. But he did not put himself into the witness box. Though no adverse inference against him can be drawn for his not appearing as a witness still an impression against the accused, in the circumstances of the case, not easily to be shaken of', is created for his failure to examine himself as a witness.

28. The upshot of the whole discussion is that this charge is satis factorily brought home against the accused. It is in the evidence of two respectable witnesses and I have no reason to disbelieve them that despite notices and demand, the accused declined to return the vehicle which was taken by him, when he ceased to be a Speaker.

This act earns no credit for him. The accused for a considerable time remained Speaker of a forum which makes laws for the country and it was, therefore, naturally expected of him to respect and not violate laws. About his action it may be said:

29. As stated elsewhere, the evidence proves that despite notices the accused failed to return the vehicle but even if the evidence contained insufficient data in proof of this fact, it would, in my view, have made very little difference. Once it stands proved that the accused retained the venicle after he left the office of the Speaker, the offence is established. The reason is not far difficult to be traced. The accused was not entitled to retain or use the vehicle as an M. L. A. Therefore, the mere fact that the accused had taken along the vehicle after he ceased to be Speaker and thereafter failed to return the same amounts to misconduct and misappro priation. Notices for the return of vehicle, need not be proved to consti tute the offence.

Charge No. 3:

30. Under Charge No. 3 the prosecution claims that the accused had received an amount of Rs. 8,500 from Deputy Commissioner, Poonch which he dill riot return. It is said that this amount was received by him on his own directions when he was acting as President in the absence of Sardar Mohammad Abdul Qayyum Khan. In support of this charge the prosecu tion has examined Raja Naseem Akhtar P. W. 13 who at the relevant tine was Deputy Commissioner Poonch. He, in his statement, does not own the prosecution case in its entirety and in departure to the prosecution case says that the accused had only received an amount of Rs. 5,000 and not Rs. 8,500 as alleged by the prosecution. Ghulam Hussain, Ghulam Mohammad Manko and Mahboob Quresh have also been examined as witnesses. They are all Auditors and are one on the point that Rs. 8,500 were found to have been paid to the accused during the audit check up.

This charge must fail for the following reasons:--

(a) The receipt of Rs. 5,000, as stated by Deputy Commissioner Poonch, by the accused becomes doubtful in view of the fact that the charge is about the receipt of Rs. 8,500 and not Rs. 5,000;

(b) Raja Naseem Akhtar, Deputy Commissioner says that the amount was given without any receipt while the Auditor Ghulam Hussain P. W. states that during the audit check up, the receipt of this amount was seen by him.

For the above-stated reasons this charge, for the evidence being of doubtful character, falls to the ground and the accused earns acquit tal.

Charge No. 4:

31. Under charge No. 4 the prosecution case is that the accused ordered the payment of huge amount to different persons out of Auqaf Fund for which he had no authority and further it is claimed that recipi ents of the amount were undeserving persons. The Special Public Prosecu tor during his arguments at the bar frankly conceded that there is no evi dence in support of this charge. However, in his written arguments, he maintained that the charge is proved on the basis of the statement of Sardar Ashfaq Ahmed Khan, Administrator Auqaf. For my own satis faction, I have looked into the evidence of Sardar Ashfaq Ahmed Khan. The evidence lacks substance in proof of this charge. Administrator Auqaf under the Auqaf laws is only a person competent to make payment out of Auqaf Funds. The accused, no doubt, made recommendation for pay ment of certain amount to different persons and the payment was made accordingly the Administrator Auqaf obviously treating them as deser ving persons. The accused is, therefore, acquitted of this charge.

Charge No. 5:

32. Now let me decide allegation No. 5. The prosecution in support of this allegation examined Noor Mohammad Section Officer, Ghulam Rasool Photographer, Riaz Butt Photographer and Mohammad Akbar Accountant. The documents Exh. P. R., P. X., P. W., P. V. and Photos P. T. and P. V. have also been tendered in evidence. The cumulative effect this documentary evidence creates is that the accused did receive an amount of Rs. 6,000 as T. A. and D. A. when he was Adviser, from the Council. The T. A. bills and the tour programme attached alongwith the bills (Exh. P. X., P. W., P. V. etc.) mention the purpose of journey as meeting with the party workers or to attend meeting of Executive'. The tour had been undertaken in different cities of Pakistan.

33. Could the accused draw T. A. and D. A. for his tours under taken for political purpose. The answer is in negative. The accused by virtue of his office as Adviser of the Council was not clothed with the powers to undertake the tour in Pakistan for meeting party workers and attending meetings of the executive on Government expense. He had dual capacity. He was Adviser as well as party leader. Being a man of the People's Party he, of course, could do so at his own expense. The receipt of amount, therefore, clearly amounts to `misconduct' as defined in the Public Office (Misconduct) Ordinance, 1965.

34. But, as contended, it needs determination whether 1978 Ordi nance, which makes the receipt of T. A. and D. A. by the accused, an offence, could legally be enacted by the President Azad Kashmir.

Let us now examine law-making powers of the Assembly and the Council under the provisions of Azad Jammu and Kashmir Interim Consti tution Act, 1974 (hereinafter to be referred as the Constitution Act). Section 31 of the Constitution Act defines the powers of the Legislative Assembly. The relevant provisions for the decision of the issue before rye are:-

"31. Legislative powers.--(1) Subject to the succeeding provisions of this section, both the Council and the Assembly shall have the power to make laws-

(a) for the territories of Azad Jammu and Kashmir ;

(b) for all State subjects wherever they may be ; and

(c) for all officers of the Council or, as the case may be, the Govern ment, wherever they may be.

(2) Subject to subsection (3),-

(a) the Council shall have exclusive powers to make laws with respect to any matter in the Council Legislative List set out in the Third Schedule; hereinafter referred to as the Council Legislative list ; and

(b) the Assembly shall, and the Council shall not, have power to make laws with respect to any matter not enumerated in the Council Legislative list.

35. The plain reading of sub-section (2) (a) makes it clear that on the matters enumerated in Third Schedule, the Council alone has exclusive powers to make laws and the Assembly or the President is incompetent to legislate on such subject through an Act or an Ordinance. Sub-clause (b) of sub-section (2) gives power to the Assembly to legislate on all other matters not set forth in the Council Legislative list.

36. So far Ordinances are concerned, under the provisions of sec tion 41 (1) of the Constitution Act, the President, in matters in respect of which the Assembly is competent to legislate, is competent to make and promulgate an Ordinance. Ordinance in respect of the Council subjects are also dealt with under section 41 of the Constitution Act. Under sub clause (4) of section 41 of the Constitution Act, the President in respect of Council subjects enumerated in the Council Legislative list when the Council is not in Sessions, can validly, on the advice of the Chairman of the Council, promulgate the Ordinance in respect of any matter which can be enacted by the Council and an Ordinance so promulgated is said as an Act of the Council.

37. It is thus manifest that it is very much in the competence of the President to promulgate an Ordinance in respect of all matters on which the Assembly and the Council are authorised to legislate, of course, subject to the condition set out under section 41 of the Constitution. On the matters within legislative competence of the Assembly, an Ordinance can be promulgated by the President on the advice of the Prime Minister while in respect of all matters listed in the Council Legislative list (Third Schedule), the President, to make and promulgate an Ordinance, gets legal sanction on the advice of the Chair man of the Council. Thus for a valid Ordinance on any of the subject of the Council to be made by the President, the advice of the Chairman of the Council is a condition precedent and if it is not there, the Ordinance so made will be ultra vires of the powers of the President.

38. The question to be answered is as to whether the President had the power to promulgate the ordinance in question in respect of T. A. and D. A, of the Advisers of the Council. Matters exclusively within the Council Legislative powers are dealt with in the Third Schedule of the Constitution Act which is termed as `Council Legislative list'. The subjects are divergent in nature but relevant to the present issue are subjects dealt under Serial No. 26, 48 and 49 of the list which may with advantage be reproduced:-

"26. The salaries, allowances and privileges of the members of the Council and Advisers.

48. Jurisdiction and powers of all Courts with respect to any of the matters enumerated in this List.

49. Offences against laws with respect to any of the matters enumera ted in this List."

39. It is thus manifest that the President Azad Jammu and Kashmir was not empowered to legislate and create offences against laws with respect to any of the matters enumerated in this List. The salaries, allowances and privileges of the Advisers under Serial No. 26 is the exclusive subject of the Council and under serial No. 49 offences in respect of T. A. and D. A. of the advisers can only be legislated upon by the Council and not the President.

40. In view of the above, I hold that the Ordinance is ultra vires of the powers of the President and for that reason the accused cannot be convicted on the basis of an invalid law.

To satisfy myself as to whether the Ordinance was promulgated on the advice of the Chairman of the Council, I have sent for the original file which was produced before me by Syed Akram Shah Deputy Secretary Law. The file shows that the Ordinance was not promulgated on the advice of the Chairman.

Charge No. 6:

41. This charge even if proved cannot saddle the accused with any criminal liability. Under this charge the prosecution claims that Rs. 5,50,000, drawn from Peoples Works Programme during the period when the accused was acting as President, was distributed among politicians, journalists and students etc. without any entitlement. I fail to understand as to how the accused is responsible for this withdrawal and payment. The prosecution examined Qamar-ud-Din Bashir, who does not link the accused with the responsibility of receiving or distributing this amount. The main actor in this transaction, according to the witness, was Ijlal Hussain, the Chief Secretary of the time. No order of the accused, showing that any distribution of the amount to undeserving persons was made on the orders of the accused, was exhibited. The accused, therefore, also stands exone rated of this charge.

42. In view of overall discussion made above, the accused stands acquitted of all the charges except charge No. 2 which is satisfactorily proved against the accused. He is guilty of 'misconduct' under the Public Office (Misconduct) Ordinance, 1965 (Ordinance No. 1 of 1965) as well as under section 403, Penal Code. However, the accused cannot legally be convict ed under both the Acts. Under section 26 of the General Clauses Act, 1897 which deals against 'double jeopardy' in case of an act or omission which is an offence under more than one Act, the offender cannot be punished under both the Acts although he can be prosecuted for all. It is not permissible to punish the accused twice for the same offence where an act is an offence under the provisions of two enactments which are not in-conflict with each other. The Court should select one under which he chooses to punish. Of course, section 26 of the General Clauses Act. 1897, as said elsewhere, does not act as a bar to try or convict but merely creates a bar for duplicate E punishment. In Niaz Ali v. State (P L D 1961 Lah. 269) it has been observed by Sajjad Ahmad, J.:-

"Section 26 of the General Clauses Act provides a bar to double punishment for the same offence although a person is liable to be prosecuted and punished for an act or omission constituting an offence and falling under two or more enactments. In other words, there is no bar to a trial or a conviction for the same act which is an offence under different enactments, but there is bar to a punish ment being awarded twice for the same offence."

43. In this case I have decided to punish the accused under section 6 (5) of the Public Office (Misconduct) Ordinance, 1965. The accused, as said earlier, was holding a very important position and it was expected of him to respect laws and not violate them and for that reason, violation on his part is most reprehensive. In fixing the measure of punishment however, I am of the view, that as, the relevant authorities had only demanded an amount of Rs. 22,900 as cost of the vehicle, the sentence of fine will meet the ends of justice. The accused, therefore, stands convicted for use and retention of Government vehicle without any entitlement under sec tion 6 (5) of the Public Office (Misconduct) Ordinance, 1965 and sentenced to a fine of Rs. 25,000. After the realisation of the fine an amount of Rs. 22,900 out of the fine amount will go to the Assembly Secretariat. if the amount of the vehicle claimed had not, so far been, paid to the Assembly Secretariat. In default of payment of fine the accused shall suffer six Months' rigorous imprisonment. The accused shall deposit the fine in the Court up to 16th of June, 1980 failing which the law shall take its own course. This order, if the fine is not paid, shall be placed before me on 18th of June, 1980.

Order accordingly.