This appeal is directed against the judgment dated 31st July, 1979 passed by Senior Special Judge, Kalat Divisions convicting the appellant under sec--petition 409, P. P. C., read with section 5(2) of Act II of 1947 to a term of fine of Rs. 2,000 or in default to undergo simple imprisonment for six months.
2. Briefly the facts of the case are that the appellant was posted as "Mohasib" in Tehsil Mastung: and was entrusted with the responsibiljty of recovering the proceeds of the lands in the "Mianjikhana" (Court of Wards). In 1964, he was arrested on the charge of murder of a Tehsildar and while in Jail he was asked to account for the amounts lying with him in respect of the properties of one Ghulam Nabi, and it is stated that he could not satisfactorily account for the money lying in deposit with him. Thereafter the then Tehsildar lodged an F. I. R. With the local Police, alleging that an amount of Rs. 18,437'90 had been misappropriated by the appellant on various scores including the amounts of land revenues recovered by him. The investigation lingered on upto 1969 and finally on 5th February, 1969 challan was submitted to the Special Judge, Kalat, disclosing an embezzel-- ment to the tune of Rs. 2,320 on account of land revenue collections. Neces--sary sanction for the prosecution was obtained from the Deputy Commis--sioner, Kalat which too recited that the appellant had misappropriated an amount of Rs. 2,320 which he had collected from the "Zamindars" by way of land revenues.
3. At the trial it was disclosed by the evidence led by the prosecution that the -embezzlement in question was not on account of land revenue collections of Rs. 2,320 but an amount of Rs. 1,885 deposited by P. W. Faiz Muhammad (a lessee on the lands of Mir Ghulam Nabi lying in "Mianji-- khana") had not been accounted for satisfactorily. The conviction was also recorded for not depobiting this amount in the Government Treasury or otherwise accountings for the same. It would thus be seen that up to the stage of conviction varying details of the alleged misappropriation had been given, and that the initial charge-sheet and sanction order did not disclose the allegation upon which the appellant was tried.
4. In his reply to the charge-sheet the appellant admitted having received Rs. 1,885 from P. W. Faiz Muhammad but explained that according to the practice prevalent in the Tehsil this amount was deposited with P. W. Ram Chand, the Nazir of the Court. Ram Chand also did not deny having received various amounts from the appellant by way of AMANAT as he did in other cases also and further disclosed that at the time of appellant's arrest on murder charge an amount of Rs. 5,474 deposited by him was lying in his custody. He, however, does not say as to which particular item of recovery this amount pertained to. He also said that as Amount of Rs. 1,869 had been taken back from him by the appellant but does not explain as to when and for what purpose this amount was collected by him. It is interesting to note that since the amount is almost equivalent to the amount paid by P. W. Faiz Muhammad, therefore, it was presumed that this amounts must have been the same which said P. W. Had deposited with the appellant. He has further testified that the practice was that various amounts recovered by various officials on different scores were deposited with him and he kept note of the sam; in a private note book. This note book has been produced by him as Exh. P./18, of which some entries are doubtful and chances of subsequent manipulations cannot be eliminated from consideration as this witness too had been in pressure in these days and was also subsequently tried on the charge of misappropriation as disclosed by learned A. A.-G. Even otherwise this is not an official record and cannot be attached much weight. Any way, there is no evidence that the amount on the basis of which the appellant's conviction - was recorded, was or was not included in the deposit of Rs. 5,474 lying with this witness. The position might be otherwise.
It would not, therefore, be safe to-draw an inference about embezzlement on this ground alone.
Learned Assistant Advocate-General, however, submits that the fact which patently goes against the appellant is that the amount in question has not been shown in the relevant registers. That may be a mere oversight. Even otherwise this fact by itself is not sufficient to establish the offence in face of the varying stands of the prosecution and the addi--tional fact of deposit of Rs. 5,474 with P. W. Ram Chand. Then another weighty factor which goes against the prosecution is that D. W.
Abdul Karim who had been cited as prosecution witness but was dropped, appeared and stated that 'he audited the Mianjikhana' account for the year 1964-65 in his capacity of Accountant but he did not find any misappropriation in this account. On the other hand he says that he found some over payments in this account. Thus a wide scope for doubts is created and. Its benefit would naturally go to the appellant.
5. Mr, Qadir also pointed out that the order of sanction was mechani--cally passed as the authority did not apply its mind to the facts of the case. It is apparent from the order of sanction that it was accorded in respect of an amount of Rs. 2,320 allegedly misappropriated by the appellant and such amount was recovered by him, as the order says, from various "Zamin--dars" by way of Land Revenue and not as the proceeds of land in "Minanjikhana" which is a separate and distance head of account. . It is obvious that the sanction was accorded keeping in view the challan which too mentions the alleged misappropriating from the land revenue amounts ; and in this respect it has clearly come in evidence that appellant was un--concerned with the same. Then there is also no details as to how and when any amount on account of land revenue recoveries came to be deposited with the appellant. Mr. Qadri relied upon Tufail Muhammad v. The Crown (PLD 1954 LAH 37) and Abdul Rashid v. The State (PLD 1960 KAR251), to contend that a valid order oft sanction should take into account the facts of the case and it should be sapable of revealing that the authority bad applied its mind to the same and satisfied himself that prosecution of the public servant was necessary. It is correct that section 6 of the Prevention of Corruption Act, 1947 does not specify any particular form in which the order of sanction was to be recorded but the safeguards provided to the public servants demand that the order of sanction should be capable of revealing the allegations with some degree of accuracy and the view of the authority on the point as to what he had gathered from the facts which necessitated the trial by a Criminal Court of Law. No matter if particular section of law or date of the offence or such like details are omitted. But; to be precise about it, one should be in a position to assess that the authority did go through the evidence appearing against the public servant and after being satisfied that trial by a Court of law was necessary accorded the sanction and not merely under the influence of the challan. In the instant case, as already observed the relevant authority kept in mind misappropriation of Rs. 2,320 on account of land revenue recoveries as was disclosed by the challan and proceeded to pass .The order of sanction most mechanically. It would ' be clear when charge-sheet and the challan are put in juxtaposition and examined. Learned A. A: G. Referred to Saadat All Khan v. The Crown (1) and 'State v. Muhammad Moosa and 4 others (2) to explain that no particular form or details were necessary to be given in the order of sanction. I agree with him but find these authori--ties inapt as they do not deal with that aspect of section 6 of Act II of 19,47 of which care has been taken in the authorities referred to supra and such authorities have been followed consistently. In view of above I find the order e of sanction invalid.
For the reasons given above I allow this appeal set aside the order of conviction and direct that the amount of fine paid by the appellant should be refunded to him forthwith.
(1) PLD 1952 Bal. 1(2) PLD 1970 Kar. 386