This revision petition has been preferred by Fazal Muhammad and Muhammad Amin, who are being proceeded against in the Court of Malik Wazir Hussain, P. C. S.p Magistrate 1st Class, exercising powers under section 30, Cr. P. Code at Vehari in Multan District.
2. The facts leading to the application are that Mst. Raj Tazal Mohd. Bibi lodged a complaint against the petitioner under sections 504, * 452, 354 read with section 34 of the Pakistan Penal Code on 27th a of July 1970, After recording preliminary evidence the Magistrate summoned the accused on the 20th of October 1970.
3. Prosecution evidence was recorded, whereafter the charge was framed under sections 504, 452 and 354 read with section 34, P. P. C. on 30th of April 1971. A few days thereafter, on the 5th of May 1971, the petitioner filed a transfer application in this Court bearing Crl. Misc. No. 396/T of 1971, which was dismissed by my learned brother Muhammad Afzal Zuilah, J. on 7th of June 1971.
4. After the dismissal of their application and while entering upon defence, the accused made a petition to the learned Magistrate on the 28th of June 1971, with the request to summon four persons as their witnesses. One of these happened to be a Secretary of the Union Committee, Okara. The Magistrate summoned the Secretary and refused to summon the rest. He passed the following order :-- "Presented today. The No. 4 is an employee of local body. He may be summoned. The rest arc the babies of the accused.
(Sd.) Magistrate."
5. The matter did not end there. The petitioners made another application on 21-7-1971 to the effect that two of the prosecution witnesses, namely complainant and her daughter should be re- summoned for cross-examination. This was disallow ed on the same day by a lengthy order, which need not be reproduced here. It is against the aforesaid two orders that the petition has been hied by the petitioners.
6. I have heard the learned counsel for the petitioners, learned counsel for the State and the complainant. It may be pointed out that it was candidly admitted by the learned counsel for the petitioners, after some arguments, that there was no force in the petitioner's contention that they should have been allowed opportunity to cross-examine the prosecution witnesses, inasmuch as they had opportunity to cross-examine them and did cross- examine them. The aforesaid admission was made by the learned counsel, when the amendment in section 257(1) was brought to his notice by the learned counsel for the State. Subsection (1) of section 257 of Act V of 1968, has been complctlcy omitted and substituted by section 5 of Code of Criminal Procedure (West Pakistan Amendment) Act XVII of 1964, as follows :-- "(1) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witnesses, other than a witness whom the accused has cross-examined, for the purposes of examination Mushtaq Hussain Munir, f or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be rejected on the ground that it is Pakistan Criminal- Law Journal made for the purpose -of'vexation or delay or" for defeating the ends of justice. Such ground shall be recorded by him in writing."
6. With respect to the second part viz. that the witnesses, whom the petitioners wanted to summon, in defence, were not summoned, it was admitted by the learned counsel for tire State and the complainant, that the Magistrate was not correct. He should have summoned the witnesses unless those were being summoned to delay the proceedings, in the aforesaid view of the matter, the revis on petition is partly accepted and it is directed that the Magistrate shall summon the three witnesses, namely, Muhammad Yousaf, Muhammad Boota and Ch. Wall Muhammad, mentioned in the application, made by the petitioners on 28-6-1971 and shall examine them in defence. The prayer with regard to the summoning of the prosecution witnesses for further cross-examination, is rejected. .
1972 P. Cr. L J 424 [Karachi)
Before Ghulam Rasool K. Shaikh, : AZIZU DD1N AHMAD--Applicant-Accused versus The STATE--Respondent , Criminal Rev is: on Application No, 156 of 1969, decided on 6th October 1971.
(?) Criminal Procedure Code (V of 1898), S. 403-- Double jeopardy, principle of--Trial Court finding sanction order ijefective acquitting accused without further going into merits of case-- Contention that in view of previous acquittal prosecution was barred under S. 403 --Contention, held, had no force mid order in fact was a discharge order, not attracting application of S. 403i Cr, P. C. in circumstance, [p. 426]I (?) Criminal Procedure Code (V of 1898), S. 403-- Double jeopardy, principle of--Sanction for prosecution found invalid on facts placed before sanctioning authority and- trial- Court acquitting accused without going into merits of case--Contention that fresh sanction could not be granted for an offence different from one for which previous sanction was granted--Held, not tenable-- Previous sanction, being no sanction at law, prosecution not debarred from placing proper facts before sanctioning duthoitty and to obtain fresh sanction, [p. 426]# S. Sami Ahmad for Applicant-Accused: S. Nasiruddin for A.-G. for the State. ' '
Date of hearing : 21st September 1971.
The applicant was employed as a lower division clerk in the Central Stamps Office, Karachi. He received an indent on 11th April 1962 to supply current postal stamps of Re. 1 and 50 for an amount of Rs. 8,800 to the post offices. In pursuance of this indent he took out the required stamps which he kept with himself and instead supplied stamps of 0.75 and 0.25 which were commomorative stamps of 14th August 1957 which had been withdrawn from circulation with effect from 13th February 1958. This was subsequently detected and a report was lodged. The Anti-Corruption Police after usual investigation challaned the applicant for having entered into criminal conspiracy with Abdul Sattar Mcmon for an offence under sections 120-B, 420, P. P. C. and scctiou 5 (2) of Act II of 1947. The substance of accusation which was read over to the applicant disclosed that the applicant entered into criminal conspiracy with Abdul Sattar Mcmon to do an illegal act, namely, to facilitate in the sale of obsolete and withdrawn postal stamps by their release to the post offices and thereby caused pecuniary advantage to the tune of Rs. 8,800 and further he illegally suppressed the current postal stamps of the like amount. This substance of accusation was consistent with the sanction which was obtained for the prose cution of the applicant. Subsequently evidence was recorded by the learned Special Judge, but on the conclusion of the evidence he come to the conclusion that the sanction was bad in law as it was granted on the ground that the applicant had facilitated the sale of obsolete and withdrawn postal stamps whereas the stamps were not obsolete but they had been with drawn. He, therefore, proceeded to acquit the applicant without discussing the merits of the case. He further observed that it was for the authorities to consider the question of proseeutiou of the applicant after obtaining valid and proper sanction.
Against this order an appeal was filed. In this appeal it was conceded during the course of arguments that there was no case against Abdul Sattar, but so far the applicant was concerned the High Court came to the conclusion that on the basis of the sanction which had been granted the retrial could not be ordered and it was incumbent upon the sanctioning authority to accept the suggestion made by the learned Special Judge to obtain fresh sanction. It was also observed that it would be for the sanctioning authority to decide whether fresh order of sanction of prosecution should be drawn and put up for proceeding against the applicant. With these observations the appeal was disposed of.
After the disposal of this appeal a fresh sanction was obtained and the applicant was challaned. In those proceedings it was stated that the applicant in order to obtain pecuniary advantage for himself supplied the withdrawn commomorative postal stamps of the value of Rs. 8,800 which stamps were not supplied and issued to him for sale by the treasury and in lieu thereof he removed the valid stamps of the equivalent value from the stocks supplied to him for sale and thus committed a criminal breach of trust in respect of postal stumps worth Rs. 8,800 punishable under section 420/409 read with section 5(2) of Act II of 1947. The learned Special Judge prepared the substance of accusation that the applicant dishonestly or fraudulently misap propriated the postal stamps of the value of Rs. 8,800 and thereby committed an offence punishable under section 5(2) of Act II of 1947.
Subsequently an application was made before the learned Special Judge that since the applicant had been acquitted previ ously the fresh trial was barred under section 403, Cr. P. C. It was further pleaded that the fresh sanction was mechanical and illegal and, therefore, it could not confer jurisdiction upon the Court to try the applicant. The learned Special Judge dispelled this contention and dismissed the application. Consequently the present revision application has been filed.
The learned counsel for the applicant raised three points before me. His first point is that in view of the previous acquittal the prosecution was barred under section 403, Cr. P. C. I find no force in this contention for the simple reason that the previous order was not passed on merits and, therefore, section 403 is A inapplicable. Although the learned Special Judge had proceeded to use the word "acquitted" it was merely an error and in fact it was a discharge order. This position is very well settled needing no authority.
The second point that was urged before me is that a fresh sanction could not be granted for an offence different from the one for which the previous sanction was granted. This contention is equally untenable. The previous sanction was held to be invalid on the facts which were placed before the sanctioning authority, and, therefore, the prosecution was not debarred from placing proper facts before the sanctioning authority in order to obtain a fresh sanction. The previous sanction was in law no sanction at all and, therefore, it is to be completely ignored.
The third point which had been raised is that it was mecha nical sanction and proper facts were not placed before the sanctioning authority. This contention is equally devoid of force. The sanction order is very clear and admit of no ambiguity. All the facts had been placed before the sanctioning authority and it was on the basis of the record available before the sanction ing authority that the sanction was granted. It was clear in the sanction order that on perusal of the facts and record of the case and the expediency of the matter the sanction was granted. Furthermore in this very sanction order it was also clearly stated that the applicant had received the indent for the supply of current stamps which he had taken out and subsequently misap propriated the same and instead supplied the withdrawn stamps to the post offices.
Finding no force in this revision application it is dismissed.
Revision not allowed.