1. MUHAMMAD YUSUF SARAF, J.--Appellant Ghulam Nabi Mir while working as Wasil Baqi Nawees in Hattian is alleged to have embezzled Government money in the sum of Rs, 4,723 between 2nd January and 12th of February 1962. The Special Judge, Muzaffarabad has sentenced him to two years' R. I. and a fine of Rs, 5,000 under section 409, Penal Code. His appeal against this conviction is pending before my brother Mr. Justice Chaudhury Rahim Dad Khan.
2. The conviction appears to have been attacked on the following grounds:-- (1)That the investigation of the case having been conducted in violation of the provisions of section 5-A of the Prevention of Corruption Act, the trial had been vitiated.
3. (2)That the Council Order empowering officers to grant sanction for prosecution of the non- gazetted staff, not having been published in the Government Gazette, was a nullity and the consequent trial and conviction of the appellant was illegal.
4. There being conflicting decisions on the first point and the second point being of considerable importance, my learned brother has referred them to the Full Bench.
5. We have heard Mufti Muhammad Idris the learned counsel the appellant at great length. We have also heard the learned Advocate-General.
6. We would like to record our appeciation for the hard labour put in by Mr. Idris and for having brought to our notice the entire case-law on the question of investigations.
7. The Prevention of Corruption Act was enforced here in 1950, section 3 read as follows:-- "An offence punishable under sections 161 and 165 of the A. K. Penal Code shall be deemed to be cognizable offences for the purposes of Criminal Procedure Code, notwithstanding anything to the contrary contained therein : Provided that a Police Officer below the rank of A. S. P. shall not investigate any such offence or take proceedings for the arrest of a person accused of such offence without the order of a Superintendent of the Police.
8. Subsection (4) of section 5 read as follows:-- "Notwithstanding anything contained in the Code of Criminal Procedure, a Police Officer below the rank of A. S. P. shall not investigate any offence punishable under subsection (2) or take proceedings for the arrest of a person accused of such offence without the order of the Superintendent of Police."
9. Council Order No, 167/56, dated 17-5-1956 omitted the proviso to section 3 and substituted the following for subsection (4) of section 5:-- "The provisions of this section shall be in addition to and not in derogation of any other law for the time being in force and nothing contained herein shall exempt any public servant from any proceedings which might, apart from this section, be instituted against him."
10. The Council Order then inserted a new section as section 5.A which reads :-- "Notwithstanding anything contained to the contrary in the Code of Criminal Procedure, no officer below the rank of an Inspector of Police shall investigate any offence punishable under any of the section of the Azad Kashmir Penal Code mentioned in section 3 or any offence punishable under section 5 without an order of a Superintendent of Police or a Magistrate of the First Class nor make an arrest without such order or warrant as the case may be, provided that an officer of the Anti- Corruption Department not below the rank of a Sub-Inspector who is generally or specially authorised in this behalf by the Assistant Inspector-General of Police, Anti-Corruption or by the Inspector-General of Police may, if he has reason to believe that on account of the delay involved in obtaining the order of a Magistrate of the First Class or a Superintendent of Police any valuable evidence relating to such offence is likely to be destroyed or concealed, investigate the offence without such order but in every case where he makes such investigation, he shall as soon as may be, send a report of the same to a Magistrate of the First Class or to the Superintendent of Police together with the circumstances in which the investigation was made."
11. The present case relates to the post amendment period. A plain reading of the amended Act shows that it is only in cases under section 5 of the Prevention of Corruption Act and sections 151 and 165 of the Penal Code that an officer below the rank of an Inspector is normally prohibited either from conducting the investigation or arresting the accused without a warrant. There is no corresponding provision in the Criminal Law Amendment Act of 1956 as in force in Azad Kashmir.
12. In the present case the appellant was challaned and tried under section 5 (2), Prevention of Corruption Act and section 409 of the Penal Code. The learned Special Judge has convicted him only under section 409 and the appeal before us is by the accused against this conviction. This is important because there being no conviction under section 5 (2), the argument raised about the alleged violation of the provision with regard to the status of the officer investigating the case loses its force and becomes a mere academic question. It is so because with regard to section 409 of the Penal Code, the only section under which the appellant has been convicted, there is no provision in the Criminal Law Amendment Act requiring investigation of such an offence by an officer of any particular rank. Section 5 of the Prevention of Corruption Act may to the extent of its relevancy to the present discussion be reproduced below:-- "(1) A public servant is said to commit the offence of Criminal misconduct-- (a)if he accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the Azad Kashmir Penal Code, or (b)if he accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been or to be likely to be concerned in any proceeding or business transacted, or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, or (c)if he dishonestly or fraudulently misappropriate, or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do, or (d)if he, by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which any extend to seven years or with fine or with both."
13. It will have been seen that section 5 (1) (c) above also makes criminal breach of trust by a public servant punishable. The difference brought about by this subsection is that it has introduced not only the word 'fraudulently' but also the words: `or allows any person so to do', which are not to be found in the corresponding section of the Penal Code; namely section 405. Thus what the Prevention of Corruption Act makes punishable is not section 409 of the Penal Code as such as is sometimes argued but it seems it has created a distinct offence under section 5 (1) which is made punishable under subsection (2). That it is a distinct offence, independent of section 409 appears to be getting support from the following:--
(1) The existing subsection (4) to section 5 already reproduced above clearly states that provisions of the said section were in addition to any other law for the time being in force and that these provisions shall not exempt any public servant from any proceedings which might, apart from this section, be instituted against him.
14. (2)Section 409 does not punish the misconduct of the public servant as distinct from breach of trust in his capacity as a public servant. In other words it may be said that the section of the Prevention of Corruption Act besides enlarging the definition of criminal breach of trust, penalises the unworthy conduct of the public servant in relation to breach of duties that are covered by the section.
15. (3)The whole scheme of the Act shows that it was enacted not as a concession to the corrupt officials but for effective eradication of corruption and for facilitating their conviction; that is why the scope of sections 161 and 409 has been widened. In this background when we consider the fact that the maximum punishment awardable under section 409 is life imprisonment while the maximum punishment under section 5 is seven years and again while imprisonment is a must under section 409, under section 5 even a sentence of fine only may be awarded, it becomes clear that it could not have been intended to substitute section 409, Penal Code by section 5(1)(c) of the Prevention of Corruption Act.
16. (4)According to the statement of objects and reasons when the Act was first introduced, in undivided India the Act `recognized as a separate offence, the offence of 'criminal misconduct.'
17. In any case as the appellant has not been convicted under section 5 (2), Prevention of Corruption Act, we are not seized in this case with the question as to whether a public servant can be tried both under section 409, Penal Code and section 5 (1)(c) of the Prevention of Corruption Act for the same transaction. That question obviously remains open. All that is held here for purposes of the decision of this case is that both are distinct offences, governed in the matter of investigations by two different Acts i,e, while section 5(2) requires investigation by a Police Officer of a particular rank, there is no such disability attached to the investigation of an offence under section 409 in the Criminal Law Amendment Act.
18. As the appellant has not been convicted of an offence under section 5 of the Prevention of Corruption and as there is no corresponding prohibition in the Criminal Law Amendment Act that the investigation of the offences given in the Schedule of the said Act should be held by an officer of any particular rank, I think the question of the effect of the investigation of the offence under section 5 of the Prevention of Corruption Act allegedly by an officer not authorised by the said Act, becomes unnecessary to decide. I have however gone through the entire case-law available here on the point. It appears to me that the weight of authorities is decidedly in favour of the proposition that investigation by an officer other than the one authorised under the Prevention of Corruption Act does not constitute an illegality but is at best or at its worst, an irregularity curable by section 537 of the Criminal Procedure Code. Apart from A 1 R 1955 SC 196, reference may be made to PLD 1955 Lah. 667 and PLD 1960 Kar. 204. If I am not wrong, the Supreme Court of Pakistan also has in PLD 1968 SC 267 shown its inclination towards the same view.
19. Now I come to the second point of the reference. Under section 3 of the Criminal Law Amendment Act offences enumerated in the Second Schedule of the Act are triable exclusively by the Special Judges. An offence under section 409 of the Penal Code is one of these offences. Subsection (5) of section 5 is reproduced below:-- "Notwithstanding anything contained in the Code of Criminal Procedure, 189 (Act V of 1898) or in any other law, the previous sanction of the Government shall be required for any prosecution under this Act and such sanction shall be sufficient for the prosecution of a public servant for offences triable under this Act."
20. Thus under the Act as originally enforced the previous sanction had to be granted by the Government itself. Section 11 of the said Act which empowered the Government to frame rules for carrying out the purposes of the Act, is reproduced below:-- "11. Power to make rules.--(1) The 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 rule may provide for any of the following matters, namely--
(a) authorisation of persons to exercise the power to sanction prosecution on behalf of the Government in respect of various grades of public servants.. .."
21. The Government did not frame any rules as such but a Council Order (No, 380 dated 7-11-1956) which is hereby reproduced, was passed :- "In pursuance of the provisions of section 11 (2) of the Azad Kashmir Criminal Law Amendment Act, 1956 the Azad Kashmir Government is pleased to order that the authorities empowered to exercise the power to sanction prosecution on behalf of the Azad Kashmir Government in respect of various grades of public servants shall be as follows:-- (1)In respect of public servants of gazetted rank: The Azad Kashmir Government.
22. (2)In respect of public servants of non-gazetted rank : The Minister Incharge of the Department concerned in consultation with the President.
23. This order was amended by Council Order No, 111/57 dated 10-3-1957. The order is reproduced below:-- "In partial modification of Council Order No, 380/56 dated 7-11-1956 the Azad Jammu and Kashmir Government has been pleased to order that authorities competent to remove non-gazetted public servants from office shall be competent to sanction the prosecution on behalf of the Azad Jammu and Kashmir Government."
24. It was contended by the learned counsel for the appellant that it was obligatory for the Government to have published the order in the official Gazette and that as it had not been done, the investment of authority in the Heads of Departments to grant sanction for the prosecution of the non-gazetted staff removable by them, had not taken place.
25. As already stated the Government had the power under the Act to empower its officers to exercise the power of sanction. The Government did not frame any rules but that is immaterial because the Council Orders issued under section 11 in this connection by themselves tantamount to rules. It is not at all necessary that the Council Order should have termed it as a rule. If in fact it amounts to a rule, it must be treated as such regardless of how it has been named and vice versa. The question however is as to whether their publication in the Gazette was a pre-requisite for their coming into force.?
26. There is nothing in the Act requiring the publication of such rules in the Gazette. The General Clauses Act in force in Azad Kashmir at the time in question, is silent about the mode of publication of the laws and rules having the force of law. Azad Kashmir did not have a constitution before mid-1970. There was however a document known as the Rules of Business which was interpreted in PLD 1957 Azad J & K 33 as a skeleton constitution for Azad Kashmir. Their Lordships held :- "As regards the contention, that the Rules of Business are not in the nature of constitutional law for this territory, I am afraid, a cursory glance at the rules would repel the argument of the learned counsel, apart from the fact that a Full Bench of this Court in 'Khan Bahadar v. State' has held that the Rules of Business are a 'skeleton constitution'. The First Rules of Business as promulgated by the Supreme Head of the Azad Kashmir movement are in the preamble stated to be applicable 'to all phases of Governmental activities including the legislative, Secretarial executive, judicial, financial and pertaining to the recruitment of public services'. It is stated in rule 5 that the Supreme Head shall nominate the President and other members of the Council and in rule 9 the appointment of the Chief Justice and Judges of the High Court of Judicature shall vest in the Supreme Head and they shall hold office during his pleasure. In rule 11, it is provided that the Supreme Legislative power shall vest in the Council and so on. These are such important, fundamental and far reaching activities that the rules regarding these must be classed as constitutional rules and I hold that the Rules of Business constitute the skeleton constitution of the country."
27. The rulers have benefited from its sanctity as a constitution for well over seventeen years and now when it is the turn of the people to derive a little benefit from its constitutionality, it isn't at all fair for the Government to turn back and repudiate its once closely-embraced sanctity.
28. Therefore, as things existed here before coming into force of the Government Act of 1970 the Rules of Business have to be treated in the nature of a constitutional document. There have been several documents of this name from time to time. The first one was enforced in 1950, the second one with which we are concerned here in 1952 and the third one in 1958. Reproduced below are the relevant provisions from the Rules of Business, 1952:- "8. Supreme Legislative power shall vest in the Council provided that no draft legislation shall be put before the Council without obtaining the advice of the Ministry of Kashmir Affairs thereon, and in case it is proposed to come to a decision at variance with such advice it shall not be given effect to without prior consultation with the Ministry of Kashmir Affairs.
9. Rules made under any law and having the force of Law shall be subject to the same procedure as proposals for legislation.
29. 10.Legislation or rules having the force of law after receiving the concurrence of the Ministry of Kashmir Affairs shall be published in the Government Gazette and shall then be deemed to have come into force on such date as is specified therein."
30. Even in the Rules of Business of 1950 and 1958 the provision was substantially the same.
31. An argument was raised by the learned Advocate-General as to whether the rule in question could be said to be a rule having the force of law?
32. What is meant by law. To my humble knowledge the term has not been defined in any enactment.
33. According to Salmond, Austin while trying to define law, devoted 6 lectures while Kantorowiez wrote 89 pages towards the same end. Says Salmond, "what is law" is a theoretical question, not a question of law but a question about law. Consequently the standard procedure used to construct a definition of a legal concept, maping out its boundaries by references to statutes and judicial decisions, will not apply to the problem of defining law itself. Conclusions of law do not depend on the definition of law, and Legislatures and Courts, concerned as they are with practice rather than theory, have not therefore sought to lay down definition or clarifications of this concept". Salmond then proceeds to say "of course we could define law as a species or rules and set out what distinguishes legal from non-legal rules", but then he is conscious that such a definition would be largely inadequate and then he says "what emerges then is that no neat and simple definition of law would do", According to Webster's International Dictionary "in more highly developed society as opposed to primitive legal system, the law becomes chiefly of special enactment, or of statutory origin and the authority imposing the sanction is a sovereign State".
34. While therefore it would be futile for me, in all humility, to attempt a definition of the term 'Law', it can be easily concluded that as prosecution of a person accuses of an offence under Schedule IL is dependent upon the previous sanction of the Government or the officers empowered in this behalf, despite the fact that such sanction is not an ingredient of the offence, the rule delegating the powers of sanction is undoubtedly one having the force of law because an illegal sanction goes to the root of the case and vitiates the whole trial.
35. The Council Order No, 111/57 has not been published in the Gazette. We have gone through the Gazette files maintained in' this Court and find that this Order has not been published. Mr. Hafeez the learned Advocate-General has conceded before us that despite his best efforts spread over three months he has not been able to trace the publication of the Council Order in the Government Gazette.
36. As it was mandatory that the Government Order under section 11 of the Criminal Law Amendment Act empowering officers to grant sanction for prosecution under this Act of the staff removable by them, to be published in the official Gazette and as the same has not been so published, this order, in the light of the wording of rule 10 of the Rules of Business, has not come into force so far. The result is that there is no sanction or valid sanction in the present case. Sanction in such cases invests the Court with jurisdiction; that without such a sanction the Court has no jurisdiction to try the accused and the proceedings are invalid, require no authorities as the matter is itself very clear. However, reference may be made to PLD 1954 FC 248, PLD 1934 Lail. 37 and AIR 1949 Mad.
710. The sanction granted by Mr. A. R. Saleem the Deputy Commissioner of the time for prosecution of the appellant being thus without proper authorisation, is, therefore, ineffective and illegal.
37. The answer to the points of reference before us are therefore returned as follows:-- (1)As the appellant has not been convicted under section 5(2) of the Prevention of Corruption Act and as there exists no corresponding provision in the Criminal Law Amendment Act, 1956 prohibiting the investigation of an offence under section 409, P. C. by a Police Officer of any particular rank, the question becomes unnecessary to decide.
(2) The Government Order No, 111 dated 10-3-57 does amount to a rule within the meaning of section 11 but as it has not been published in the official Gazette as required by rule 10 of the Rules of Business, 1952, the same has not come into force so far with the result that the sanction granted by the Deputy Commissioner, Muzatfarabad for prosecution of the appellant was without authority and consequently invalid and ineffective.
38. The reference is now returned to the learned Single Judge for further necessary action in the case.
39. MUHAMMAD SHAREEF, C. J.--Iagree.
40. RAHIM DAD KHAN J.--I agree.