1. Atiq Ahmed son of Shafiq Ahmed, ex-Assistant Cashier Incharge of Utility Store Booth at the State Bank Building, Karachi who was tried by the Special Judge (Central) Karachi in case No. 15 of 1975 and convic--ted under section 409, P. P. C. Read with section 5 (2) of the Prevention of Corruption Act, 1947 and sentenced to suffer R. I. For one year and to pay a fine of Rs. 17,000 or in default to undergo further R. I. For one year has filed the instant appeal against the aforesaid conviction and sentence.
2. The facts of the case against the appellant briefly stated are as under : The appellant was an employee in the National Bank of Pakistan as Assistant Cashier from where he was put on duty as Assistant Cashier Incharge of Utility Store Booth at the State Bank of Pakistan. It was the case of the prosecution that the appellant used to deposit the collections of money made at the Booth daily in the Cash Department of the parent Branch that is Liaquat Bazar Branch of National Bank of Pakistan under the prescribed form. Although the Utility Store of the State Bank of Pakistan was run and managed by Mr. Abdul Wahab, the Manager of the Store and his subordinates, the cash transactions were handled by the appellant who was Cashier posted thereby the Manager, National Bank of Pakistan. The procedure adopted was that sale vouchers were pre--pared by the Manager of the Store in triplicate and the customer took the same to the appellant who was the Cashier and who used to receive the cash and certify payment keeping one copy of the sale voucher with him, while the remaining two copies were given to the customer who used to give one to the Manager or his staff and retain the original sale voucher. In the evening, after the close of transactions, the accused used to prepare the statement of the receipts for each day which was compared with the sale vouchers kept by the Manager of the Store. The statement used to be signed by the Manager of the store and the appellant, and the appellant used to deposit the cash alongwith the statement and the cash vouchers in the National Bank of Pakistan, Liaquatabad Bazar Branch, Karachi after getting signature of the Head Cashier. It was the case of the prosecution that the accused-appellant collected sale-proceeds for the dates from 30th August, 1972 to 2nd September, 1972 and 4th and 5th September, 1972 amounting in all to Rs.
3. 16,378.24 and kept the amount in the safe provided by the bank for the purpose in the Utility Store, but did not deposit the amount in the bank as per statements prepared by him.
4. It was the case of the accused-appellant that he had kept the afore--said amount of Rs. 16,378.24 in the safe and could not attend the office due to sickness and had sent application. It was further his case that the misappropriation of the amount was done by the Manager Shaikh Ahmed, of National Bank of Pakistan, Liaquatabad Bazar Branch, Karachi as he had quarrelled with him a month prior to the incident.
5. The learned Special Judge (Central) for the reasons given in the impugned judgment considered and gave his findings in the affirmative on the following points which he had determined:
(1) Whether a sum of Rs. 16,378.24 was entrusted to the accused as the bank amount for deposit in the National Bank of Pakistan, Liaquat Bazar Branch, Karachi ?
(2) Whether the accused committed criminal breach of trust of the said amount in the discharge of his official duties as cashier of Utility Store State Bank Branch, Karachi ?
(3) Whether the accused committed criminal misconduct in the dis--charge of his official aforesaid duties by criminally misappropriating the aforesaid amount ?
6. Mr. Usman Ghani Rashid, the learned counsel for the appellant has not argued the appeal on the merits and has challenged the judgment of the learned Special Judge on the legal point that the sanction for prosecution of the appellant was defective in that it was not accorded by the appropriate authority of the appropriate Government and therefore the proceedings which resulted m the conviction of the appellant were illegal and should therefore be set aside.
7. The sanction order, which was produced by P. W. Muhammad Zamir Khan, Inspector of Special Police, National Bank Unit, Karachi purports to be an order issued by the Ministry of Interior States, Frontier Regions and Kashmir Affairs (Interior Division) of the Government of Pakistan and is dated 4th March, 1974. It is authenticated by a Section Officer of the aforesaid Ministry. From the deposition of the Manager, National Bank of Pakistan, Liaquat Bazar Branch who was the complainant it is clear that the appellant was Cashier Incharge of Booth Utility Store situated in the State Batik premises and the Store was for the employees of the State Bank of Pakistan. According to the witness, the National Bank had the sole authority to keep their own man as Cashier in the Utility Store which was established by the Central Govern--ment in Karachi, and the appellant was the employee of the National Bank of Pakistan. Under the Rules of Business of the Federal Govern-- ment Central Banking, that is the State Bank of Pakistan and other banking or credit giving institutions come under the Finance Division and, therefore, it has been argued, by the learned counsel for the appellant that the aforesaid Division and not the Ministry of Interior States, Frontier Regions and Kashmir Affairs (interior Division) was the appropriate authority for according sanction to the prosecution of the appellant. In order to stress the point with regard to the appropriate Ministry of Division being the proper authority reliance has been placed on the decision of this Court in Muhammad Tufail v. The State (1980 P Cr. L J 1206). In that case the accused was working in the Postal Department, and the relevant authority for obtaining sanction fir prosecution was the Director-General, Posts and Telegraphs or the t1tnistry of Communications, but the trial Judge had addressed the Secretary, Ministry of Interior and, after waiting for 60 days had deemed that the sanction pad been accorded. It was held that since the letter had not been addressed to the competent authority, the failure on the part of the Government to reply to such letter could not be deemed as sanction under proviso 2 to subsection (5) of section 6 of the Criminal Law Amendment Act, 1958: The emphasis has been put by the learned counsel on the fact that the Ministry of Interior was not considered as the appropriate authority and according to the aforesaid decision, the appropriate authority for according sanction was the Ministry of Communications. The learned counsel has also referred to the decision of the Lahore High Court in Muhammad Ibrahim v. The State (1976 P Cr. L J 1441). In the precedent case aforesaid challan against a Government servant had been in Court without obtaining sanction for prosecution. The trial Court had written to the Ministry of Home for granting requisite sanction, although the accused was employee of the Ministry of Defence, On receiving no reply, Court counted the statutory period of 60 days from the date of issue of the letter and proceeded with the trial. It was held that since sanction for prosecution had not been sought from the competent authority, there was no justification in law in drawing presumption under section 6 (5) of the Act. In the aforesaid case cited as precedent, it had been stressed by the learned counsel appearing on behalf of the appellant that the Ministry of Home was considered not to be the appropriate authority inasmuch as the Ministry of Defence was the authority under whom the accused Government servant was serving.
8. In the instant case there is no indication from the record as to why the sanction was accorded by the Ministry of Interior States, Frontier Regions and Kashmir Affairs (Interior Division).
9. Mr. Niaz Ahmed Khan who appeared on behalf of the State could not explaln as to how the order of sanction to prosecute the appellant was issued by the Ministry of Interior. As a matter of fact he very readily conceded that, in view of the fact that the Finance Ministry was the Ministry concerned which was the appropriate authority for according sanction, the sanction order is defective. The learned counsel for the appellant has relied upon PLD 1972 SC 271 in stressing that where A proper sanction for prosecution had not been obtained all proceedings were rendered illegal and without jurisdiction. In this view of the matter the appeal is accepted, and the conviction and sentence against the appellant is hereby set aside. He can, however, be proceeded against in case the prosecution desires to do so, after obtaining proper sanction from the appropriate authority.
10. The appellant is on bail and his bail bond stands cancelled.