1. Appellant Obaidul Haque was convicted by Mr. S. R. Karmakar, Assistant Sessions Judge and ex- officio Special Judge, Dacca under section 1.61, P. P. C. And sentenced to pay a fine of Rs. 400, in default to rigorous imprisonment for sir months. It was further directed that half of the fine, if realised will be paid to P. W. 1 Shiya Ram Poddar. The appellant was also convicted under section 5
(2) of Act II of 1947, but no separate sentence was passed under this section.
2. The prosecution case is that the appellant was a Sub-Inspector of Police attached to the Detective Branch, Dacca in the year 1963. He caused arrest of P. W. 1 Shiya Ram Poddar and his brother Obadh Lal two hand-cart drivers who were attached to Punjab Iron Safe Works of 4/11, English Road, Dacca on 21-4-62 in connection with Kotwali P. S. Case No. 9 of 1962 under section 457/380, P. P. C.
3. The two arrested persons were forwarded to the Court from, which they were released on bail on 23-4-62. A few days thereafter the appellant is said to have sent for Shiya Ram Poddar and gave out to him that the final report in his case would be submitted if he paid the appellant Rs. 200. Shiya Ram Poddar reported the matter to P. W. 4 Abdul Wahab, Sales Manager of the Punjab Iron Safe Works and requested him to give a loan of Rs. 200. P. W. 4 promised to pay him the amount on 7-5-
62. On the morning of 7-5-62 the appellant visited the shop and had talk with P. W. 1 when P. W. 4 told-the appellant that he would pay the money a few hours later, whereupon the appellant went out of the shop. Thereafter, P. W. 1 and P. W. 4 went to the Anti-Corruption Office with a sum of Rs.
4. 200 and narrated the occurrence to P. W. 12 Ali Kassem Khan Choudhury, Assistant Director of the Bureau of Anti-Corruption who recorded the statement of P. W. 1 prepared an inventory of the notes and arranged a trap party consisting of himself, P. W. 14 Inspector Mosharraf Hossain, P. W. 15 Inspector Afsaruddin and a constable. The members of the trap party visited the Punjab Iron Safe Works, had the inventory verified with the notes by the persons present in the shop and also by S. D.
5. O. Of Dacca and handed over the money to P. W.
1. P. W. 12 then asked P. W. 4 to call the appellant and the members of the trap party retired to the back side room of the shop and lay in ambush. P.
6. W. 4 talked to the appellant over phone and asked him to come for the money. The appellant came at about 12 noon and had some cold drink offered to him by P. W. 4 and talked to him. Shortly afterwards, the appellant asked for the money which was paid by P. W. 1 and the appellant kept the money in 'the right side pocket of the pant which he was wearing and moved out of the shop and was proceeding towards the Nowabpur Road on the east accompanied by P. W. 1 and P. W.
4. The members of the trap party witnessed the payment and acceptance of the money and at once they rushed out and P. W: 12 caught hold of the right hand of the appellant and the two Inspectors P. W. 14 and P. W. 15 caught hold of his left hand from behind just in front of Shaheen Metal Works a few yards away from Punjab Iron Safe Works: There was a struggle in course of which P. W. 12 slipped down and the appellant put his right hand into his pocket and threw away the money into the adjoining drain. P. W. 12 rose up and picked up the notes and showed them to all who collected there and narrated the occurrence. He got the notes verified with the inventory and put the appellant under arrest and took him to the thana where P. W. 1 lodged F. I. R. The case was investigated by P. W. 1.5 and after sanction was obtained P. W. 16 Obaidur Rahman an Inspector of Police submitted charge-sheet on 1342-65. The appellant was put on trial in Court of the Special Judge. He pleaded not guilty to the accusation of having accepted bribe from P. W. 1 Shiya Ram Poddar. His case was that he had been implicated falsely in this case and had neither demanded nor accepted bribe from Sbiya Ram and that the currency notes which were picked up from the drain near the Punjab Iron Safe Works by P. W. 12 were not thrown by him after taking out from his pocket. His further contention was that the sanction said to have been accorded by the Superintendent of Police Dacca on 9-9-65 for his prosecution was not a valid sanction under the law. The learned Special Judge on consideration of the evidences came to a finding that the appellant had committed the offence with which he was charged and that the sanction was a valid one and convicted and sentenced the appellant as stated. Hence this appeal.
7. Mr., Abdur Rasheed appearing on behalf of the appellant has challenged the validity of the sanction for prosecution of the appellant from two angles. His first contention is that the sanction order was not passed by the Superintendent of Police, Dacca on proper application of his mind on the allegation against the appellant but that he had passed a mechanical order which was passed at the behest of an extraneous body namely an Anti-Corruption Committee which was dominated by P. W. 12 who being a member of the trap party was very much interested in the prosecution. It was secondly contended that as the appellant was transferred from Dacca and had made over charge of all cases with him on 24-4-62 and was about to leave for Saidpur in the afternoon of 7- 5-62, he was no longer under the administrative control of S. P., Dacca who had sanctioned for prosecution. The order according sanction for prosecution of the appellant was passed by the Superintendent of Police, Dacca on 9-9-65. It appears from the cross-examination of P. W. 12 that the question of according sanction was considered in a meeting of the Anti-Corruption Committee on 20-1-65 on which date the S. P. Who was a member of the said Committee was not present but a Deputy Superintendent of Police deputised for him. P. W. 12 was himself the member---Secretary of the said Anti-Corruption Committee of which the Deputy Commissioner, Dacca was the Chairman. It is, therefore, evident that the Anti-Corruption Committee in the absence of the S. P. Of Dacca decided on the question of action to be taken against the appellant. The S. P: of Dacca thereafter addressed a letter on 26-6-65, which is Exh. B' to the Director of Bureau of Anti- Corruption for reconsideration of the matter. The letter is as follows OFFICE OF THE SUPERINTENDENT OF POLICE, DACCA.
8. Memo. No. 6052-E. Dated: 26-6-65, To The Director, Bureau of Anti-Corruption, East Pakistan, Dacca.
9. Subject: -Proposal for sanction to the prosecution of S. I. Obaidul Haque in connection with Kotwali P. S. Case No. 16 dated 7-5-62 under section 161, P. P. C.
10. Reference:-Your Memo. No. 19-S/AB dated 13-2-65 and 2392 AB dated 30-4-65.
11. In this connection I along with Md. Ali DACO discussed with the Deputy Commissioner, Dacca yesterday (23-6-65) in his Chamber. It has been decided that the matter will be taken up in the next meeting of the Anti-Corruption Committee at Deputy Commissioner's Chamber after which further report will be sent.
12. (Sd.) Illegible 26/6 (Syed Mannan Baksh)
13. Superintendent of Police, Dacca.
14. It does not appear that either a reply was sent to this letter of the Superintendent of Police or any other meting, as requested, was called for consideration of the subject. In fact P. W. 12 asserted that sanction once decided in the Anti---Corruption Committee meeting, cannot be reconsidered in any subsequent meeting and further stated that no date for this case was again fixed by the Committee. It is surprising that when the S. P. Informed the Director of the Bureau of Anti-Corruption that after he had had a discussion along with Md. Ali, District Anti-Corruption Officer with the Deputy Commissioner, Dacca, the question of according sanction was desired to be considered in the next meeting of the Anti-Corruption Committee, his request was not heeded to and thereafter the S. P. Passed the impugned sanction order. Mr. Abdur Rasheed has contended with some force that on 9-9-65 when Pakistan was passing through a critical period in history being involved in a deadly war with a formidable enemy, the S. P. Of Dacca had neither any time nor the mood to go through the various papers in connec--tion with his case against the appellant and form an independent opinion on the question of granting sanction for prosecution There is considerable force in this contention. Halving regard to this fact and having regard to the facts that the S. P. Of Dacca himself was not present in the meeting of the Anti-Corruption Committee on 20-1-65 on which date the said Committee decided upon the prosecution of the appellant and the apparent' unwillingness of the S. P., Dacca to accord sanction on account of which he had requested the Director of B. A. C. For taking tip the matter in a subsequent meeting, there can be no doubt that the sanction order issued by the S. P., Dacca was a mere mechanical act which was carried out according to the desire almost amounting to a command, of a superior authority. The sanction granted under such circumstances was not a valid sanction on account of which the trial was vitiated. Reference in the connection may be made to the decision in the case of Sher Muhammad v. The State (PLD 1962 Kar. 658), where it was held that where the person concerned does not apply his minds to the facts of the case at the time of granting the sanction but carries cut the direction from a superior officer to grant sanction, such sanction is not a valid sanction and a trial founded upon such sanction is vitiated. The facts in this case were almost identical with the facts of the present one and I fully agree with the view expressed in that case. There is accordingly no other option but to set aside the conviction and sentence passed against the appellant.
15. The learned Advocate appearing on behalf of the State frankly conceded that the sanction granted by the S. P., Dacca in this case for prosecution of the appellant cannot be said to be a valid sanction.
16. In view of my finding on the preliminary point I need not and should not go into the merits of the case against the appellant. This judgment, of course, would be no bar to the prosecution of the appellant upon valid sanction but it is for the authorities concerned to consider whether in the facts and circumstances of the case they would still sanction prosecution of the appellant who has already undergone sufferings and suspense during the last eight -years. I understand that departmental inquiry was held against the appellant and he has already been appropriately dealt with. It further appears from the statement of the appellant made during the examination under section 342, Cr. P. C. That in spite of final report-being No. 234 dated 1-7-62 having been submitted, the case was revived against him and in order to cover up that fact, some of the papers have been destroyed. These are serious allegations, which if true, reflect on the bona fide of the persons in charge of the prosecution case.
17. The appeal is accordingly allowed and the conviction and sentence passed against the appellant are set aside.