' This is an appeal against the order of Captain Mohammad Dawood Khan Special Judge (Central)
Lahore Camp, Rawalpindi dated 29-5-72. Mahmood Khan Saving Bank Clerk and Irshad Hussain Sub-Post Master in the Sub Post Office in the Central Secretariat, Rawalpindi were tried under section 409, P. P. C read with section 5(2) of the Prevention of Corruption Act, 1947. Irshad Hussain was acquitted but Mahmood Khan accused was found guilty on both the counts and sentenced to rigorous imprisonment for a period of one year and a fine of Rs, 4,000 or in default one year rigorous imprisonment.
2. Briefly the facts, necessary for the decision of this appeal are that during 23-11-64 to 30-9-65 appellant while posted as Saving Bank Clerk in Sub-Post Office, Central Secretariat, Rawalpindi, in concert with Irshad Hussain (since acquitted) misappropriated a sum of Rs, 3,455 entrusted to him in his capacity as a public servant by several depositors and account holders. Originally 9 cases were registered with the police and after completion of the investigation all the 9 cases were sent up for trial. As the accused were charged with criminal breach of trust committed within a period of one year, the learned trial Court invoked the provisions of section 222 of the Criminal Procedure Code and framed a consolidated charge against the}.
3. The prosecution examined 15 witnesses to prove the allegations against the appellant. Mahmood Khan while examined under section 342, Cr. P. C. Admitted the receipts of the amounts. He also admitted the entries made by him in some pass books. He further stated that this was done on the verbal instructions of the Post Master Irshad Hussain. On the question "it is in evidence that the amount of Rs, 3,455 received by you was not credited to the Government. How you explain your receipt and its omission in the postal account 2". The appellant explained that he handed over the amount to Irshad Hussain under hand-to-hand receipt book. This hand-toband receipt book used to be in the custody of Post Master and it has been destro3ed by him.
4. In order to appreciate the merits of the case in its true perspective I would like to discuss the facts of each case. In case of F. I. R No, 128 lodged on 15-10 65 and registered at serial No, 232/69 of the trial Court's file the amount involved is alleged to be Rs, 250 belonging to Muhammad Bakhsh P.
W.
4. This witness when examined in Court stated that he went to the Post Office twice or thrice and deposited the amount and the same is correctly given in my pass book. In respect of entrustment of the amount he stated that he used to tender amount to Irshad Hussain who used to make entries and receive the deposits. It may be mentioned here that the sanction of the prosecution was given by Ministry of Home and Kashmir Affairs, Islamabad, in the sanctioning order dated 4-9- 69 the amount misappropriated is mentioned as Rs,
85. In Case No, 233/69, F. I. R was lodged on 15- 10-65. The amount misappropriated was stated to be Rs, 195 relating to pass book No, 408590 belonging to Mst. Izca Rashid P. W.
2. In her statement before the Court she has stated that the amount was usually received by Irshad Hussain and on occasions by Mahmood Khan appellant. Sanction order in this case is dated the 20th September, 1969 wherein the amount misappropriated is mentioned as Rs, 200, In Case No, 234/69 relating to F. I. R No, 45 dated 10-11-65 the amount misappropriated is mentioned as Rs 200 relating to pass book No, 411942 belonging to Ghuiam Rasool P. W.
3. When appeared as witness he stated that the amount was tendered to Irshad Hussain alongwith his pass book Exh. P. W. 3/1. The sanction in this ease was granted on 4-9-69 the amount misappropriated is also Rs, 200. In Case No, 235/69 registered on 8-10-65 the amount involved is Rs, 3,775 relating to pass book No, 410155 belonging to Bashir Ahmed P. W.
6. In his statement before the Court he states that his Clerk Mian Mohammad used to deposit the amounts in my account. This Mian Mohammad has not appeared as a witness in the Court. The sanction for prosecution of this case was also granted and the misappropriated amount mentioned therein is Rs, 869. In Case No, 236/69, F. I. No, 142 dated 10-11.65 the amount involved is given as Rs, 200 relating to pass book No, 436762 belonging to Mohammad Arif Siddiqui who appeared as P. W. 5 before the trial Court. He could not pin-point as to whom he tendered this amount. In the sanction order the amount misappropriated is mentioned correctly as Rs, 200, In Case No, 237/69 pertaining to F. I. R N o. 135 date 27-10-t5, misappropriated amount is given as Rs, 250 belonging to Mian Khan P. W.
7. There is nothing in his statement before the trial Court as to whom this amount was tendered by him or who made entry in his pass book. In sanction order dated 4.9-69 the misappropriated amount is given as Rs,
150. In Case No, 238/69 P.
1. R. No, 144 was lodged on 10-11-65 and the alleged misapporiated amount is given as Rs, 10 relating to pass book No, 445898 belonging to Abdul Latif P. W.
9. In his statement before the Court he stated that I used to pay the amounts to Irshad Hussain accused.
' He has not mentioned that any time the amount was received by Mahmood Khan appellant.
Again in the sanction order dated 4-9-69 the misappropriated amount is given different as alleged in the F. I. R. Le. Rs,
80. In case No, 239/69, F. I. R. No, 141 dated 29.10-65 allegation was that a sum of Rs, 11,056 was misappropriated by Irshad Hussain and Mahmood Khan. This misappropriation relates to pass book No, 406219 which is in the name of one lzhar-ul-Haq, who did not appear as a witness in the Court as he had left for East Pakistan and his whereabouts were not known. Sanction for prosecution in this case was granted on 4-9-69 and the amount misappropriated is mentioned to be Rs, 1,220. In the last case which is at serial No, 240/69 of the trial Court, F. I. R. In this case was registered at No, 139 on 29-10.65 and the amount misappropriated was stated to be Rs, 773 belonging to Mr. Kifayat Ullah P. W.
1. He also states in his statement before the Court that the amount was handed over to Irshad Hussain and about the entries in his pass book he has shown his ignorance. Sanction for prosecution in this case was granted on 4-9-69 and the amount misappropriated is mentioned as Rs, 460.
5. Learned counsel for the appellant contends that the prosecution has miserably failed to prove the factum of entrustment to the appellant. All the prosecution witnesses have stated that the amount was entrusted to Irshad Hussain, Sub-Post Master. It is, further contended that the sanction order is not a valid order, as it clearly indicates that all the relevant papers of the case were not before the sanctioning authority and it was granted in a mechanical fashion and without any proper application of mind. Attention in this respect has been drawn to different sanction orders wherein the amount misappropriated was different from that alleged in the F. I. R. Which is quite indicative of the fact that the sanctioning authority was not made aware of the major details of the case. Total amount as given in the F.
1. Rs, comes to Rs, 6,709 and according to the sanction orders the amount alleged to have been misappropriated comes to Rs, 3,455. In the F. I. R. The allegation was that Irshad Hussain Sub-Post Master, and Mahmood Khan by adopting deceitful means have misappropriated the Government amount and in fact both the accused were tried by the learned Special Judge, but strangely enough the sanctioning orders speaks only for the prosecution of Mr. Mahmood Khan appellant.
One of the sanction orders is reproduced as below :- "Where as it appears that Mr. Mahmood Khan, Clerk in the Central Secretariat Day Post Office, Rawaipindi, a public servant, during the period from 3-7-1965 to 19-8-1965 received a total sum of Rs, 85 from Mr. Mohammad Bux for depositing in Saving Bank Account No, 393216 but he committed criminal breach of trust thereof by not accounting them in the postal records, and thereby committed the offences punishable under section 409 of the Pakistan Penal Code read with subsection (2) of section 5 of the Prevention of Corruption Act 1947 (II of 1947), the Central Government on perusal of papers, consideration of the facts and expediency of the matter, is pleased under subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958), to sanction the prosecution of the said Mr. Mahmood Khan for the aforesaid offences, or any other offence under any provision of law that the Court may consider fit, in the Court of the Special Judge (Central), Lahore "
' From these facts, it is contended, it can be safely inferred that the sanction was granted in a mechanical fashion. In this respect reliance is placed on Abdul Rashid v. State (1) wherein the appropriate authority giving sanction for the prosecution of the accused did not show anywhere what papers were put up before him and what issues were involved nor any extraneous evidence was given in this case to prove that the sanctioning authority was made aware of the details and of the explantion given by the accused, it was held that such a sanction was a mechanical sanction and was net valid.
6. The contention of the learned counsel is not without substance Section 6(5) of the Pakistan Criminal Law (Anendment) Act, 1953 is a mandatory provision making sanction a condition precedent to the commencement of the trial. In this respect the appropriate authority has an absolute discretion to grant or withhold the sanction. To exercise this discretion judicially, it is essential that all the relevant facts relating to the case be placed before the sanctioning authority.
Where facts are not referred to on the face of the sanction nor it is otherwise proved that they were placed before the sanctioning authority, the sanction is invalid and the trial Court is debarred to try that case. Omission on the part of the sanctioning authority to mention the correct amount misappropriated and the name of Irshad Hussain co-accused in the sanction order is clearly indicative of the fact that all the relevant papers were not before the sanctioning authority and sanction was granted in a mechanical fashion.
7. The leaned trial Court while convicting the appellant has mainly relied on the admission of the accused. The learned counsel for the appellant submits that the accused cannot be convicted on his admission alone. It is further submitted that the statement of the accused is to be read as a whole and it cannot be split in parts so as to reject that portion which goes in favour of the accused.
8. The contention of the learned counsel is not without force. It is a well-established principle of law that the statement of the accused is to be read in its entirety and it is to be accepted or rejected as a whole. While determining the innocence or guilt of the accused, Court has to take into consideration the exculpatory and the inculpatory part of his statement. In this case, B the appellant in his statement under section 342, Cr. P. C. Stated that he did receive the amount in dispute and also made entries but he handed over this amount to Irshad Hussain Sub-Post Master under hand-to-hand receipt book. It is in evidence that this hand-to-hand receipt book used to be in the custody of the Sub-Post Master and it was neither recovered nor produced by the prosecution at the trial. This missing link in the chain of prosecution evidence substantially damages the entire prosecution case. In the absence of this piece of evidence the accused cannot by any stretch of imagination, be held guilty for criminal breach of trust,
9. As discussed above the prosecution has failed to produce any cogent evidence to prove that the accused was guilty of criminal breach of trust. The sanction in this case was also granted without any proper application of mind by the sanctioning authority and in the absence of a valid sanction trial Court was not competent to try this case. The statement of the appellant under section 342, Cr.
P. C. When placed in juxtaposition to the prosecution evidence is more plausible and sufficient to give him the benefit of doubt.
(I) PLD 1960 Kar. 251 ' In view of the discussion made above I accept this appeal, set aside the order of conviction and sentence awarded by trial Court. Appellant is acquitted. His bail bond is discharged.