1. ABDUL RASHID, C. J.-I would dismiss this appeal on the ground that the offence committed by the appellant falls within the definition of criminal breach of trust as given in section 405 of the Pakistan Penal Code and is not covered by clause (c) of sub-sec--tion (1) of section 5 of the Prevention of Corruption Act, 1947 The appellant was entrusted with the sale of cinders by the Rail-- way Department and he sold the cinders in violation of the directions given to him prescribing the mode in which the trust was to be discharged.
2. AKRAM, J.-This appeal with our leave obtained by one Babu Khan arises from a judgment of the High Court of Judicature at Lahore, setting aside, on an appeal under section 417, Cr. P. C., an order of acquittal passed by the Special Sessions Judge of Lahore, in favour of Babu Khan. The prosecution case was that the appellant, a railway employee, was entrusted with some stock of cinder mixed with small pieces of coal for sale to the railway employees at a fixed rate on their securing sanction from the proper railway authorities for purchase ; that on the 26th of May 1950, the appellant contrary to his instructions, improperly sold three bags out of the said stock to an outsider Muhammad Din P. W. 10 who was not entitled to buy ; that the police had laid a trap in concert with Muhammad Din P. W. 10 and the appellant was caught in the act of sale. The defence was a denial of the sale and an explanation that the marked notes for Rs. 22 found with the appellant were in re-payment of a loan given to Muhammad Aslam P. W.
4. The trying Magistrate convicted the appellant and sentenced him to rigorous imprisonment for six months and a fine of Rs. 200 under section 408, Penal Code. On appeal the Sessions Judge allowed the appeal and set aside the conviction and the sentence. Against this order of acquittal the Provincial Government preferred an appeal to the High Court of Jud4cature at Lahore under section 417, Cr. P. C. The learned Judges reversed the order of acquittal and convicted and sentenced the appellant to rigorous imprisonment for three months under section 408 of the Penal Code. The appellant thereupon preferred the present appeal by our leave.
3. Counsel for the appellant contended that inasmuch as the facts alleged constituted "criminal misconduct" under sec--tion 5 (1) (c) of the Prevention of Corruption Act (II of 1947) the prosecution of the appellant under section 408 of the Penal Code in the absence of a previous sanction under section 6 of the Act II of 1947, was without jurisdiction and, therefore, his convic--tion and his sentence were of no legal effect. On the other hand the Advocate-General of the Punjab, for the respondent, contended that no previous sanction under section 6 of Act II of 1947, was needed for a trial under section 408 of the Penal Code as the said section was not one of the sections mentioned in section 6 of the Act ; that an offence may fall under different enactments and in that event there was no bar to record a conviction under any or all of them, vide section 26 of the General Clauses Act.
4. The contention put forward on behalf of the respondent appears to me to be well-founded. The relevant part of section 6 of Act II of 1947, is as follows :- "No Court shall take cognizance of an offence punishable under section 161 or section 165 of the Indian Penal Code or under subsection (2) of section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction :-
(a) ------------------------------------------------.
(b) . ------------------------------------------------.
(c) ------------------------------------------------.
5. Subsection (2) of section 5 referred to above merely prescribes the punishment :- "Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both."
6. What is "criminal misconduct" is stated in clauses (a) to (d) of section 5 of the Act. Clause (c) which alone need be considered here inset forth below :- "If he dishonestly or fraudulently misappropriates or other--were 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."
7. Comparing clause (c) with the definition of "criminal breach of trust" as given in section 405 of the Penal Code ;- "Whoever, being in any manner entrusted with property, or with any dominion over property dishonestly misappropriates or converts to his own use that property,, or dishonestly uses or disposes of that property in violation of any direction of law prescribing, the mode in which such trust is to be discharged or of any legal contract, express or implied, which he had made touching the discharge of such trust, or willfully suffers any other person so to do, commits criminal breach of trust."
8. We find that the words underlined do not find a place in. Clause (c), subsection (I) of section 5 quoted above. Evidently section 408 read with section 405 of the Penal Code covers a much larger area than clause (c) of subsection (1) of section 5 of the Act. The reason, therefore, why section 408 of the Penal Code is not included in section 6 of the Act is not far to seek. But, what--ever the reason, in, fact section 408 of the Penal Code is not specifically mentioned in section 6 of the Act, although sectional 161 and 165 are so mentioned ; one cannot presume that this is an omission through inadvertance and not a deliberate act on the part of the Legislature, and even if it be regarded as an omission due to in advertence, it is not for a Court to make laws or to amend them.
9. Unless express words are used, the provisions of one enactment cannot be treated as curtailed or repealed by lo implication by a subsequent enactment and this is all the more so if it is found that the later enactment is auxiliary in character or of a limited scope, section 26 of the General Clauses Act reads as follows :---- "Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enact--ments, but shall not be liable to be punished twice for the same offence."
10. I am of opinion that the provisions of section 6 of Act II of 1947, do not apply to a proceeding under section 408 of tile Penal Code so as, to operate as a bar for want of necessary sanction ; moreover the offence of unauthorised sale of cinder found to have been committed by the appellant does not appear to me in the circumstances of the present case to fall within the purview of section 5 (1)
(c) of Act II of 1947, so as to constitute criminal misconduct. I would accordingly dismiss the appeal.
11. SHAHABUDDIN, J.-The appellant Babu Khan who was shunter---in-charge of the railway shed at Kasur, was convicted and sentenced by the Special Magistrate, Lahore to rigorous imprison--ment for six months and a fine of Rs. 200 under section 408, P. P. C. On appeal the Sessions Judge, Lahore agreed with the trial Court that the accused 's act amounted to an offence under section 408, P. P.
12. C. But he set aside the conviction and sentence and acquitted the appellant on the ground that as the sanction required under section 6 of the Prevention of Corruption Act had not been obtained the entire proceedings before the Magistrate were without jurisdiction. The High Court on appeal under section 417, Cr P. C. Set aside the acquittal, convicted the appellant under section 408, and sentenced him to rigorous imprisonment for three months. Special leave to appeal from the judgment of the High Court was granted, as this Court was of opinion that the question whether sanction was necessary to prosecute the appellant needed consideration.
13. The case for the prosecution was that the appellant who was entrusted with cinders to, be supplied to the railway servants at a low rate, dishonestly disposed of some of those cinders in contra-- vention of the directions of the railway by selling them at a higher rate to those who were not in the service of the railway and, therefore, not entitled to purchase them, P. Ws. 4 and 5 who were working under the appellant were compelled by him to sell cinders for him in the market and when they protested, he threatened them with stoppage of their wages. After two or three months these witnesses brought the appellant's action to the notice of P. W. 12, Inspector of Special Police Establishment, who in the presence of P. W. 8, a Magistrate, laid a trap by making P. W. 10, Muhammad Din, who was not a railway servant, approach the appellant as a purchaser with currency notes, the numbers of which had been noted by the Magistrate. P. W. 10 played his part and the appellant asked P. W. 10 and another to take three bags of cinders, two from the shed and one from the appellant's quarters and received Rs. 22 from P. W. 10 in currency notes, the numbers of which had been noted by the Magistrate. At that stage the police officer and the Magistrate appeared and the latter demanded the money paid by P. W. 10 as the price of the cinders sold to him. The appellant denied having sold cinders to P. W. 10 and tried to go inside his house when he was detained and searched and currency notes of the value of Rs. 22 numbers of which had been noted by the Magistrate were seized from him. P. W. 11, Loco Inspector, checked the stock with the appellant and found an excess of three cwt.
14. The appellant denied that he had sold cinders as alleged by the prosecution. His version on the other hand was that the bags recovered from him were intended for P. Ws. 1 and 3 railway servants entitled to purchase the cinders at the low rate, but these witnesses stated that they were given their supplies the previous day. As for the Rs. 22 seized from him the appellant explained that P. W. 4 had paid him that amount in part repayment of a loan he had given to the witness. He examined witnesses to support his version of his having given a loan to P. W. 4, but the defence witnesses were not believed. P. W. 4, on the other hand denied that he took a loan from the appellant, and as already stated the currency notes seized from the appellant were those which P. W. 10 gave him.
15. Relying on the excess it was argued before the Sessions Judge that the cinders sold to P. W. 10 were not railway property. This contention was rejected on the ground that for the excess no explanation was given by the appellant, that the excess was also railway property which the appellant appro-- priated for selling the same for his own benefit. It is in the evidence of P. W. 1 that the railway staff was complaining that they were not getting cinders. The Sessions Judge therefore concluded that at least two bags of cinders recovered from the shed was the property of the railway and the appellant was guilty under sec--tion 408, P. P. C. But, as already stated, he acquitted him on the ground that no sanction had been obtained for his prosecution. The learned Judges of the High Court accepted as correct the findings of fact arrived at by the Magistrate and the Sessions Judge.
16. On the facts, therefore, all the Courts are agreed that the case for the prosecution has been proved ; and we have not been shown that in reaching this conclusion there was contravention of any of the principles of natural justice resulting in prejudice to the appellant. Consequently, the only question for consideration in this appeal is whether sanction, required under section 6 of the Prevention of Corruption Act was necessary in this case. On this question it was contended by the learned Advocate for the appellant that as under section 5 of the said Act an offence of criminal breach of trust committed by public servants amounts to criminal misconduct which is punishable under section 5 (2) of the Act, no Court could take cognizance of such an offence with--out the sanction required and-.r section 6 of the Act. The position taken by the learned Advocate-General for the Crown was this. The Prevention of Corruption Act did not apply to this case, firstly, as in view of section 137 of the Railways Act the appellant was not a public servant as far as this case was concerned, and secondly because the offence of which the Magistrate took cogni--zance was not of the type of criminal breach of trust covered by section 5 of the Prevention of Corruption Act. He further submitted that even if the appellant. Had b.-en accused of the type of criminal breach of trust covered by section 5 (1), sanction was not required under section 6.
17. Section 137 of the Railways Act no doubt restricts the appli--cation of the definition of a public servant under section 21, P. P. C. To railway servants only as far as offences mentioned in Chapter 9 of the Penal Code are concerned, while the offence for which the appellant was prosecuted does not come under Chapter 9 ; but under the provisions of the Prevention of Corrup--tion Act there is no such restriction on the application of section 21, P. P: C. Section 2 of this Act is "for the purposes of these Acts public servant means a public servant as defined in section 21 of the I. P. C.". That the appellant was a public servant within the meaning of that expression in section 21, P. P. C. There is no doubt.
18. As for the second pint urged for the Crown, I am not altogether satisfied that this case is not covered by section 5 (I) (c) of the Prevention of Corruption Act. It appears to me that the act of the appellant in selling the cinders to an unauthorised person and receiving; payment himself amounted to dishonest violation of his duty in relation to the property as well as dis--honest conversion to his own use.
19. But the contention of the learned Advocate-General on the question of sanction must in my opinion prevail. I am in agree--ment with the views expressed on this point in the judgment of the High Court under appeal. As pointed out therein by Cornelius, J. In view of section 26 of the General Clauses Act, prosecution can be launched under the Penal Code or the Preven--tion of Corruption Act in respect of the offences common to both the enactments, unless there is the clearest implication in the later Act that it supersedes the earlier general law the Penal Code, in respect of the offences common to both the enactments. It is clear that as far as offences punishable under sections 408 and 409, P. P. C. Are concerned there is no such implication in the Prevention of Corruption Act. Section 6 of the Act relied on in this connection by the learned Advocate for the appellant is as follows :- "No Court shall take cognizance of an offence punishable under section 161 or section 165 of the Pakistan Penal Code or under, subsection (2) of section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction. . . . . . .
20. As observed by the learned Judges the express mention of only offences, punishable under sections 161 and 165, P. P. C. In the above section clearly indicates that the Legislature intentionally excluded from the application of this section, prosecution for offences under the Penal Code other than those expressly mentioned o in section 6 of the Act. In the present case the appellant was prosecuted not under the Act for criminal misconduct but only for the offence of criminal breach of trust under the Penal Code which, though it may come under section 5 (1) (c) of the Act also, is not expressly mentioned in section 6.
21. I would, therefore, dismiss this appeal.