Aziz Masih, a Supervisor, WPADC, Incharge, Agricultural Supply Depots at Shorkot Road and Shorkot City in the District of Jhang, was tried for misappropriating Government money and goods of the value of Rs. 10,408.75. Sh. Ijaz Ahmad, Special Judge, Jhang vide his judgment and order passed on 1-3-1972 did not find him guilty for misappropriation of goods but convicting him under section 409, P. P. C. For misappropriation of Government money of Rs. 1,200 in cash sentenced him to suffer rigorous imprisonment for one year and ordered that the amount of Rs.1,200 recovered in the case be paid to the Agricultural Development Supplies Corporation.
The convict has come up in appeal.
2. According to the prosecution case as disclosed in the F. I. R. Aziz Masih appellant was Supervisor of the Agricultural Development Corporation posted as Incharge of Agriculture Supply Depots at Shorkot Road and Shorkot City. On 16-7-1966 at about evening time, the Deputy Director, Agricultural Development Corporation, Sargodha and Muhammad Ashraf Khan P. W., Assistant Director, Agricultural Development Corporation, complainant, made surprise checking of the depot at Shorkot Road in the charge of the appellant and found that an amount of Rs. 1,200 in cash belonging to the Government was short and further found that 40 bags of Amunium Nitrate (fertilizer) of the value of Rs. 440 were short in the godown at Shorkot Road. The appellant told them that those 40 bags of Amunium Nitrate had been sold on credit at the instance of Ch. Miran Bux, Commission Agent. According to the rules no sale could be effected on credit basis. The appellant also told them that he had a dispute for Rs. 1,200 wit'' Haji Ghulam Muhammad P. W., Commission Agent, Shorkot Road and although the appellant did not give that amount to Haji Ghulam Muhammad aforementioned but delivered it as a trust money to Abdul Ghafoor P. W., Commission Agent. On 17-7-1966 at about 9 a.m. The same officers checked the depot at Shorkot City in the charge of the appellant. The appellant accompanied the officers while Abdul Hafiz P. W., Commission Agent, Shorkot City also reached there. They found 240 bags of cotton seed present in the store. On the same day the same officers checked the other store under the charge of the appellant and found no stock there although 65 bags of cotton seed of the value of Rs. 1,868.75 should have been available in the stock. The Checking Officers sent for Abdul Ghafoor P. W., Commis--sion Agent and demanded of him the Government amount of Rs. 1,201 but he refused to pay in the presence of Ghulam Muhammad P. W., Commission Agent till the decision of Panchaytat. In the meantime the appellant slipped away from the spot and left the town by Chanab Express Train. Muhammad Ashraf P. W., complainant tried to get him arrested but the appellant was not available. Muhammad Ashraf P. W,, complainant was present at Shorkot Road on 20-7-1966 when Abdul Hafiz (P. W. 1), Commission Agent of Shorkot City informed him that Abdul Hafiz P. W , was present on the roof of his shop when on 17-7-1966 at about 11 p.m. The appellant brought a truck and took of 240 bags of cotton seed and when asked the appellant told Abdul Hafiz P. W., that he was transporting the aforementioned goods under the order of his officers. The appellant was reported to have mis--appropriated Rs. 1,200 in cash, 40 sacks of Ammonium Nitrate valued at Rs. 440 and 240 bags of cotton seed, in all Rs. 10,408.75 and after mis--appropriating it the appellant bad gone in hiding and tried to exert influence and was blackmailing the Government.
On this written report (Exh. P. C.), dated 23-7-1906, of Muhammad Ashraf P. W., Assistant Director, Agricultural Development Corporation, Agricultural Supply, Jhang, a formal F.
1. R. Was registered at Police Station, Shorkot, District Jhang, on 23-7-1966 at 4 p.m. The distance between the spot at Shorkot Road and the Police Station was given 11 miles. During investigation Muhammad Latif Shah (P. W. 17). Who was the Police Sub-Inspector, secured Rs 1,200 (P. 1 to F. 12) in cash from Abdul Ghafoor (P. W. 4), vide memo. Exh. P. A., on 28-7-1966. Muhammad Ashraf complainant (P. W. 15) produced before him registers and sale memos. Etc. (Exhs. P. 13 to P. 21), and were secured, vide memo. Exh. P. B., on 1-8-1966. One of those registers contained the entries relating to 240 bags of cotton seed. Those registers were of Agriculture Supply Depots under charge of the appellant. On completion of investigation the Police challaned the appellant for trial.
At the trial prosecution examined 17 witnesses in all to prove all the three allegations about misappropriation of cash of Rs. 1,200, 40 bags of Ammonium Nitrate (fertilizer) and 240 bags of cotton seed. However, the learned trial Judge found that the charges relating to the shortage of 40 bags of Ammonium Nitrate (fertilizer) and 240 bags of cotton seed had not been proved by the prosecution and acquitted the appellant of those charges. The Mate has not filed any appeal about it. The appellant was convicted of misappropriation of Rs. 1,200 in cash and his appeal is before me against that conviction alone.
To prove the misappropriation of Rs. 1,200 in cash the prosecution examined Haji Ghulam Muhammad (P. W. 3), Abdul Ghafoor (P. W. 4), Ali Ahmad (P. W. 6), Muhammad Yousaf (P. W. 8), Ghulam Nabi (P. W. 9), Nur Ahmad (P. W. 13), Ghulam Muhammad (P. W. 16) and the complainant, Muhammad Ashraf (P. W. 15). Haji Ghulam Muhammad, P. W., deposed that he gave Rs. 1,200 in cash to the appellant for purchase of fertilizer on the assurance given by the appellant that stock of fertilizer was expected shortly and will be supplied to the witness. P. Ws. Abdul Ghafoor, Ali Ahmad, Muhammad Yousaf, Ghulam Nabi and Ghulam Muhammad deposed that Panchayat was held relating to the dispute of Rs. 1,200 and according to its decision the appellant deposited Rs.
1,200 in cash with Abdul Ghafoor P. W. 4 to be retained by him as trust money till the decision of the Panchayat about the dispute between the appellant and Haji Ghulam Muhammad--mad (P. W. 3).
Ghulam Muhammad (P. W. 16) proved the recovery of Rs. 1,200 vide memo. Exh. P. A , from Abdul Ghafoor P. W. And the recovery was also proved by the Investigating Officer, Muhammad Laitf Shah (P. W. 17). Muhammad Ashraf (P. W. 15), complainant, who was then Assistant Director, Agricultural Supply, Agriculture Development Corporation, Jhang proved his written report (Exh. P. C.) and the F.
1. R. Registered on the basis of that report. He almost repeated the allegations at the trial as contained in his written report.
4. The appellant pleaded not guilty to the charge. When examined under section 242, Cr. P. C. He denied all the allegations but admitted that he was posted as Supervisor, Agricultural-- Development Corporations as Incharge Agricultural Supply Depots at Shorkot Road and Shorkot City at- the relevant time. He also admitted that the Deputy Director, Agricultural Development Corporation and Muhammad Ashraf complainant P. W. Visited the depot at Shorkot Road on 16-7- 66 but there was not shortage of 40 bags of Ammonium Nitrate (fertilizer) but there was shortage of Rs 1,200 in cash because the appellant had entrusted that amount to a person as trust money and that person had paid that amount to the Depart--ment by that time. When examined at the conclusion of the trial under section 342, Cr. P. C. The appellant denied the shortage of Rs. 1,200 in cash and explained that Ghulam Muhammad P. W. Had forcibly taken Rs. 1,00 from him. In reply to a further question as to why the case against him the appellant stated that the transport of fertilizer was restricted within the district but a relation of Muhammad Ashraf complainant P. W. Demanded fertilizer from the appellant which he refused and as a result thereof Muhammad Ashraf complainant P. W. Falsely involved the appellant in the case. In his defence he examined Khan Skaser (D. W. 1), Abid Hussain (D. W. 2) and Ghulam Rasul (D. W. 3) who supported the appellant on th3 point that a relative of the complainant had demanded the supply of fertilizer which was refused by the appellant and that relation of the complainant had threatened the appellant with dire consequences. They also deposed that a few days later the appellant was involved in the case.
5. As mentioned earlier the learned trial Judge found that prosecution had failed to prove the charges regarding the shortage of 40 bags of Ammonium Nitrate from the stole at Shorkot Road and 240 bags of cotton seed from the store at Shorkot City but the learned trial Judge convicted and sentenced him for misappropriation of Rs. 1,200 in cash. He found that Rs. 1,200 were deposited by the appellant with Abdul Ghafoor P. W. Which amount could not be considered to be a part of the cash of Corporation because no fertilizer against that amount was supplied from the stock of the Corporation to Haji Ghulam Muhammad (P. W 3), that the appellant himself had admitted shortage of amount of Rs. l; 00 in his statement before commencement of his trial and that the statement of the appellant on the conclusion of trial denying the payment of Rs. 1 200 to Abdul Ghafoor P. W. At the instance of Panchayat was an afterthought. He believed the testimony of Abdul Ghafoor P. W. And found that it was corroborated by Muhammad Latif Shah (F. W. 17), the Investigating Officr and was further corroborated by the complainant Muhammad Ashraf (P. W.
15). The learned counsel for the appellant argued that the investiga--tion in the case was incompetent because it was conducted by a Sub-Inspector of Police in violation of the provisions contained in section 5-A of the Prevention of Corruption Act. He further argued that there was no valid sanction as required by section 6(5) of the Pakistan Criminal Law Amendment Act read with section 12(2) thereof and rule 2 of the West Pakistan Rules, 1962, framed thereunder. He also submitted that on the evidence on record no offence was constituted as no goods had been sold to any customer for the amount of Rs. 1,200 alleged to have been misappropriated by the appellant. The learned counsel for the State argued that the investigation by a Sub-Inspector of Police without proper order was only an irregularity curable under section 537, Cr. P. C. And that the appellant who was not a Government servant and was an employee of a Statutory Body but a Public Servant within the meaning of law in relation to the discharge of his duties to the general public due to which even if there was no valid sanction for prosecution his trial was not vitiated and that the objection regarding absence of sanction was not raised before the trial Court. On merits he urged that the offence was constituted and proved against the appellant. I have been taken through the entire evidence which I have read and considered myself in the light of submissions made by the learned counsel for the parties.
6. The investigation in this case was conducted by Muhammad Latif Shah, P. W., who was Sub- Inspector of Police without obtaining a specific order in that behalf by a Magistrate 1st Class.
According to the provisions in section 5-A of the Pakistan Criminal Law Amendment Act, 1958 no Police Officer of a rank below that. Of an Inspector could investigate such a case without a specific order of a Magistrate 1st Class. The objection raised by the learned counsel for the appellant ii that since the provision in section 5-A of the Act had been violated in the instant case and the report under section 173, Cr. P. C. After necessary investigation was submitted by the Police Officer of a rank of Sub-Inspector without obtaining any specific order from a Magistrate of 1st Class authorizing him to do so the trial of the appellant is vitiated in law. This question was raised in State v. Muhammad Hussain (PLD 1968 SC 265) but the Supreme Court left it open because the appeal was dismissed in that case as incompetent. In the cases of Abdul Noor v. State (PLD 1958 Dacca 165), Walizar v, The State (PLD 1968 Kar. 204) and Rishpud v. The State of Delhi (AIR 1955 SC 190) and others mentioned in the judgment of the aforementioned case State v. Muhammad Hussain it was held that in such circumstances, the trial is not vitiated, but the violation of the legal provision specifying by what Police officer a case of corruption by a public servant may be investigated is an irregularity falling to be dealt with under section 537 of the Cr. P. C. Therefore, I am of the view that the investigation by Muhammad Latif Shah, Sub-Inspector Police, without obtaining specific order from a Magistrate of 1st Class in this case has not vitiated the trial of the appellant but the failure in that behalf is only an irregularity curable under section 537,1 Cr. P. C.
7. The appellant was appointed as Supervisor in the Agricultural Supplies Corporation by the Deputy Director, Agricultural Development Corporation, West Pakistan, Sargodha Region, Sargodha as would appear from his order of appointment dated 29-6-1965. The sanction for prosecution of the appellant was accorded under section 6(5) of the Pakistan Criminal Law Amendment Act, 1958 by the same authority and in the sanction order it was mentioned that the sanctioning authority was the authority competent to dismiss the appellant. Tue learned counsel for the appellant did not challenge the competency of the authority sanctioning the .Prosecution of the appellant or the factum of the order sanctioning his prosecution. Precisely his objection was that the relevant order sanctioning prosecution of the appellant on record was not before the learned trial Judge when the cognizance of the case was taken and when the trial commenced. His reason for that was that the sanction order was undated and endorsement on the back of the challan form showing that the sanction order was enclosed with the report was in different ink and, therefore, was subsequently placed on record. According to the provisions contained in section 6(5) of the Pakistan Criminal Law Amendment Act, 1958 previous sanction of the appropriate Government is required for prosecution of a public servant for an offence under this Act provided that in cases where the complaint or report under section 4(1) of that Act is not accompanied by said sanction, the Special Judge shall immediately on receipt of the complaint or report, address by letter, the appropriate Government in the matter, and if the required sanction is neither received nor refused within 60 days of the receipt of the letter by the appropriate Government tae sanction shall be deemed to have been accorded. From the evidence on record of this case no letter was addressed by the learned trial Judge for sanction to any authority. Evidently the sanction order was on record of the case having been submitted along with the report. At no stage before commencement of the trial or during the trial or at the conclusion of the trial the objection on behalf of the appellant was taken to the jurisdiction that the learned trial Judge took cognizance of or tried the appellant without the requisite sanction. All acts shall be presumed to have been performed in due course of law. I do not find that the case of the appellant was prejudiced in any manner. I am satisfied that the sanction order was filed along with the challan in Court.
8. On the merits of the case the allegation of prosecution and the evidence led in that behalf is that Haji Ghulam Muhammad (P. W. 3) advanced the amount of Rs. 1,200 to the appellant for purchase of fertilizer but admittedly no quantity of fertilizer was supplied from the store of Agricultural Development Corporation to Haji Ghulam Muhammad P. W. The prosecution did not allege nor proved that there was any procedure or practice of forward sale. As against this the prosecution filed the duty chart of a Supervisor, item No. 9 of which requires a Supervisor to deposit in Bank each day's amount of sale proceeds of goods. The undisputed position is this that the amount of Rs. 1,200 was not accountable towards the sale of fertilizar from the stock of Depot. The prosecution has not proved that the goods of the value of Rs. 1,200 were short in the stock of Agricultural Depot under the charge of the appellant. It is in evidence that after Haji Ghulam Muhammad (P. W. 3) paid Rs. 1,200 to the appellant as advance money for the purchase of fertilizer he arranged a meeting of a Panchayat in which the same amount of Rs. 1,200 was paid by the appellant to Abdul Ghafoor (P. W. 4), who was to keep it as trust money till the decision of the Panchayat. In the circumstances of the case and on the evidence on record, I am of the view that the amount of Rs.
1,200 did not belong to the Corporation and the appellant did not commit any offence charged with because that amount was not short in the funds of the Corporation and had not been misappropriated by the appellant.
9. As a result of above discussion, the appeal is accepte3, the conviction and sentence of the appellant are set aside and he is acquitted.