This appeal is directed against the judgment of learned Special Judge, Anti-Corruption, Lahore, dated 28-6-1973, whereby Abdul Karim and Bashir Ahmad appellants were convicted and sentenced as follows:-
(i) Abdul Karim:Under sections 420, 423, 468, 161, P.P.C. and section 5(27) of the Prevention of Corruption Act, 1947 read with section 109, P.P.C. Two years' R.I. on each count.
Sentences on all counts to run concurrently.
(ii) Bashir Ahmad:Under sections 420, 423, 468, 161, P.P.C. and section 5(2) of the Prevention of Corruption Act, 1947. R.I. for two years on each count. Sentences on all counts to run concurrently.
2. The Director, Anti-Corruption Establishment, West Pakistan, Lahore, was informed through Letter No. 18008/66/3380-Adm, dated 24-10-1967, from Assistant Secretary (General), Board of Revenue, West Pakistan, that two cases of forgery had come to the notice of Board of Revenue. One of those cases was in respect of the allotment of Lambardari Square on Pedigree Livestock Breeding Condition to Jalal-ud-- Din son of Abdullah, Chak No. 30/S.B., Tehsil and District Sargodha, while the other was with regard to the allotment of land to one Ghulam Qadir of Chak No. 680/21-C.B. District Sargodha. The Director, Anti-Corruption Establishment, West Pakistan, Lahore, sent confidential memo., dated 28-11-1967 Exh. P.W. 7/B-1 to the Superintendent of Police, Anti-Corruption Establishment, Central Region, Lahore, for the registration of the case. The Superintendent of Police gave direction for the registration of the case as a result of which formal F.I.R. Exh. P.W. 7/A was recorded on 26-1-1968.
3. Umar Din Lambardar (P.W. 11) submitted application, dated 6-12-1965 Exh. P.W. 4/A to the Member (Colonies), Board of Revenue, West Pakistan, for the allotment of Lambardari grant on Pedigree Livestock Breeding Condition. He disclosed in the petition that Charagah land about 65 Acres was available in the Chak out of which 25 Acres from Square No. 53 had been reserved for Abadi but it had not been utilized so far. He made a prayer that Kills Nos. 5, 10, 11, 13, 14, 15, 16, 17, 18 and 25 of Square No. 25 and Killas Nos. 16/2, 17/2, 24 and 25 of Square No. 46 and Killa No. 21 of Square No. 16 be reserved for the creation of New Lambardari Square and allotted to him. The Deputy Commissioner, Sargodha, through Commissioner, informed the Board of Revenue vide letter, dated 11-4-1966 Exh. P.W. 4/B that no suitable State area or Charagah land (in excess of 39 Acres) was available for allotment to petitioner, under the Pedigree Livestock Breeding Scheme. The Commissioner, however, did not agree with the Deputy Commissioner. He wrote letter Exh. P.W. 4/C on 20-4-1966, stating that since the Lambardar was entitled to allotment of State land under the Pedigree Livestock Breeding Scheme, his request for allotment of Charagah land beyond 25 Acres could be granted by waiving the condition of having 39 Acres of Charagah land in Chak No. 30/S.B.
Tehsil and District Sargodha. The case was processed by hair appellant who wrote a note Exh. P.W.
4/D. He pointed out that according to the prescribed rules, Charagah land could not be reduced from 39 Acres and as such, the recommendation of the Commissioner could be accepted At the end, the appellant wrote a note that the application of umar Din may be filed for the present. This note was accepted and the application was filed on 30-6-1966.
Letter Exh. P.W. 4/H, dated 21-6-1966 was forged. The signatures of the Deputy Secretary to Government, West Pakistan, Colonies Department were also forged. Through this letter, Commissioner, Sargodha Division was informed that his recommendation was accepted and the application of Umar Din for the creation of New Lambardari grant of 121 Acres of Charagah land comprising Squares Nos. 25 and 46 by waiving the condition of having 39 Acres of Charagah land in Chak No. 30/S.B., Tehsil and District Sargodha, was allowed by the Governor of West Pakistan. On the basis of this forged document, the case .Was processed and Umar Din was allotted the said land. On coming to know of this irregular allotment, Jalal-ud-Din resident of Chak No. 30/S.B.
Submitted application, dated 16-9-1966, to the Member, Board of Revenue (Colonies) West Pakistan, Lahore, for the resumption of the land allotted to Umar Din Lambardar. It was pointed out in the said application that the allotment in favour of Umar Din was in utter contravention of the scheme which provided that Charagah land in excess of 39 Acres belonging to Provincial Government could be allotted under the scheme. This application made the matter clear and it- came to light that document Exh. P.W. 4/H had been forged.
4. The case was investigated Specimen signatures of Bashir Ahmad appellant were obtained and sent to M. Yaqoob Butt, Examiner of Questioned Documents, Lahore (P.W.9) alongwith the routine writing of Bashir Ahmad appellant. The appellants were challaned after investigation.
5. The prosecution examined eleven witnesses in support of the case. I need not discuss the evidence of Fazal Elahi, Junior Clerk, D.C. Office, Sargodha (P.W. 1) Sh. Muhammad Arshad, Officer Superintendent, Board of Revenue, Lahore (P.W. 4), Raja Sultan Maqsood, Deputy Secretary (Colonies) (P.W. 5), Muhammad Hussain, Examiner Issue Section, Board of Revenue Lahore (P.W. 6), and Syed Bashir Ahmad Bokhati, Assistant Secretary (General), Board of Revenue, Lahore (P.W. 8) because it is an admitted fact that letter Exh. P.W. 4/H is a forged document and on the basis of this forged document, the above-mentioned land was allotted to Umar Din P. W. The sole point for consideration is as to what evidence was furnished by the prosecution which connected the appellant with the commission of the offences for which they were convicted. Umar Din (P.W. 11), throughout his statement, did not name in Court that Bashir accused was the person who was contacted and who demanded the illegal gratification and received the amount through Abdul Karim appellant. Alam Khan (P.W. 3) was the person who was present when the illegal gratification was passed on to Abdul Karim appellant, but Alam Khan dial not support the prosecution case. He Was allowed to be cross-examined by the P.D.S.P. The portion of the statement of the witness in cross-examination, "it is correct that about, 2/3 years back, Umar Din P.W. Told me that Abdull Karim accused Patwari had obtained Rs.1,100 as bribe for Bashir Ahmad Clerk of B.O.R., accused now present in Court, for the allotment of land" could not be used against the appellants for two reasons firstly., according to the prosecution version, he was not present when the bribe money was paid and secondly, this portion of the statement was hearsay as Umar Din did not mention so in his entire statement. Umar Din was a decoy witness and his statement could be relied upon without independent corroboration.
Bashir Ahmad appellant had written a note against the interest of Umar Din P.W. And thus, Umar Din could have grudge against him on that account. Under these circumstances, I hold that Umar Din complainant was an interested witness. The evidence of an interested witness needs independent corroboration. The statement of Umar Din complainant is lacking corroboration so far as the question of demanding and receiving the illegal gratification is concerned.
The trial Court came to the conclusion that Bashir Ahmad had forged letter Exh. P.W. 4/H and had forged the signature of the Deputy Secretary at Exh. P.W. 4/H/1. The prosecution had examined M.
Yaqoob Butt, Handwriting Expert (P.W. 9) who gave an opinion that questioned signatures Exh P.W.
4/H/1 appeared to have been written by the author of the specimen signatures and handwriting Exh. P.W. 9/A and Exh. P.W. 9/B. Against this evidence, Bashir Ahmad appellant produced Hafeez Ullah Butt, Handwriting Expert, an Examiner of questioned documents (D.W. 4) who formed an opinion that the questioned signatures were not identical of Bashir Ahmad and he was not responsible for writing signatures in dispute. Statement of one Expert is pitched against the statement of another Expert. The learned Special Judge had drawn his own conclusion and he had agreed with the opinion of M. Yaqoob Butt (P.W. 9) for getting that the prosecution failed to produce the Magistrate in whose presence the specimen signature of Bashir Ahmad had been obtained. Bashir Ahmad appellant was also not put any question during his statement under section 342, Cr.P.C. That specimen signatures of sample paper Exh. P.W. 9/A were obtained from him by the Magistrate or that the document Exh. P.W. 9/B was his routine writing. Without proof that signatures Exh. P.W. 4/H/1 tallied with the specimen signatures of the appellant which had been obtained in the presence of the Magistrate, any opinion in respect of the signatures could not be legally used against Bashir Ahmad appellant.
6. It was contended on behalf of Abdul Karim appellant that so far as his case was concerned, the trial had vitiated for want of sanction. Reliance was placed on case titled Lt. Mahbub Khan v. The Crown PLD 1954 FC 248. It is a fact that no sanction for prosecution of Abdul Karim appellant was obtained from the competent authority. This objection was met by the learned Special Judge by stating that since the appellant did not commit the offence is his official capacity, no sanction was needed for his prosecution. This view of the learned Special Judge cannot be upheld as Abdul Karim appellant was public servant at the time of the commission of the offence and the law does not make any distinction between acts done in private capacity or official capacity. If a public .Servant is involved in an offence covered under the Schedule .Of the Pakistan Criminal Law Amendment Act, 1958, whether done in his private capacity or official capacity, sanction for his prosecution is required under section 6(5) of the said Act. Prior sanction is a condition precedent to confer jurisdiction on a Court to try an accused person. The provisions regarding previous sanction are mandatory in nature and in the prosecution, absence of previous sanction before the initiation of prosecution, is bad in law. The absence of sanction renders the entire prosecution void ab initio and this defect is not curable under section 537, Cr.P.C. In the instant case, Abdul Karim appellant had taken up the objection in his written statement, dated 13-6-1973. After having considered the legal proposition involved, I hold that the prosecution of Abdul Karim without the proper sanction was bad in law and the trial against him had vitiated.
The upsot of the entire discussion is that the appeal is accepted and both the appellants are acquitted of the charges. They are discharged of their bail bonds.