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Criminal Appeal No. 40 of 1962, decided on 9th November 1964

S. 6(5) Power to sanction prosecution on behalf of Central Government Exercisable by Head of Department and office concerned o/ employee‑Special Judge by letter, seeking sanction from W1,0rg officer and not receiving any reply, commencing trial on assumption that sanction deemed to have been accorded‑Trial, held, without jurisdiction for want of proper sanction‑Central Government Notification No. S. R. O. 624(K)/61, dated 5‑6‑61.

M. H. Junejo for Appellant.

Murtaza Hussain and A.K Sheikh, A. A.‑G. for the State.

Dates of hearing: 29th, 30th July and 9th November 1964.

The appellant Muhammad Ishaq son of Muhammad Raza Qureshi was convicted by Mr. Ghulam Hyder K. S. Pir, Special Judge, (Central), Karachi, by his judgment dated 23rd January 1962, in Case No. 85/61, under section 161, P. P. C. read with section 5 (2) of Act II of 1947 and sentenced to rigorous imprisonment for 12 months and a fine of Rs.500 In default further R. I. for 3 months.

2. The substance of the accusation against Muhammad Ishaq accused was as follows:‑

"That you Mohammad Ishaq Qureshi employed as U.D.C. Resettlement Department K. D. A., Karachi, being a public servant at Karachi on 18‑5‑61 accepted from Rafiq Hussain a sum of Rs. 400 as an illegal gratification as motive to show him favour by getting an allotment order of, quarter No. E‑1‑16/4 "in Malir Extension Colony, Karachi, d to him and thereby committed an offence punishable under section 161, P. P. C. and section 5 (2) of Act 11 of 1947."

To this the accused pleaded that he was innocent. He admitted that he had been paid the sum of Rs. 400 by the complainant Rafiq Husain but added that it was an advance rent for room in his house situated near Civil Hospital, Mission Road, Karachi.

3. Mr. Junejo, the learned Advocate for the appellant, before me has also addressed me upon the merits but his principal contention in this appeal was that the trial of the accused was vitiated for want of a sanction as required by subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act XL of 1958. That subsection with the first proviso which is material may be reproduced:‑----

"(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, previous sanction of the appropriate Government shall be required for the prosecution of a public servant for an offence under this Act and such sanction shall be sufficient for the prosecution of a public servant for an offence triable under this Act:

Provided that in cases where the complaint or report referred to in subsection. (I) of section 4 is not accompanied by such 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 sixty days of the receipt of the letter by the appropriate Government, such sanction shall be deemed to have been duly accorded."

The material facts in connection with this point are these:

The date of the commission of the alleged offence in this case is 18‑5‑61, the day on which the money was received by the accused and when he was apprehended upon a trap being laid for the purpose. A charge‑sheet dated 22nd September 1961, was presented in the Court of the Special Judge (Central) Mr. Ghulam Hyder K. S. Pir and he recorded an order on 26‑9‑61 saying that the challan had been received without a sanction and that a reference be made. On the same date he asked for the sanction as per his letter Exh. 20. This letter was addressed to the Secretary, Ministry of Home Affairs, Government of Pakistan, Rawalpindi and was received in that ministry on 3rd October 1961, A reply dated 30th November 1961, was sent by the said ministry to the Special Judge over the signature of a Section Officer of that ministry. This letter reads as follows:‑

"With reference to your letter No. 486/61 dated 29/30th September 1961, on the subject noted above, I am directed to say that in accordance with this Ministry's Notification No. 1/10/61‑Police‑II (2), dated the 10th November 1961, (copy enclosed for ready reference) the power to sanction prosecution in the case under reference vests in the officer "competent to remove the accused from office. Your letter has, therefore, been forwarded to the Ministry of Rehabilitation and Works, Karachi, for transmission to the competent authority. All future correspondence in the matter may kindly be referred to that Ministry direct.

2. I am further to add that the sanction may be deemed to have been withheld till the expiry of a period of two months from the date of issue of this letter unless earlier issued or finally withheld by the competent authority."

This letter was received by the Special Judge on 6th December 1961. He, however, had commenced the trial on 5th December 1961.

4. The objection on the question of sanction was taken before the learned Special Judge but he overruled it upon the ground that the Government (what is meant is perhaps the Central Government) is represented by the Home Ministry. He has also said that 60 days had elapsed after the Ministry of Rehabilitation and Works got the letter. This, however, does not appear from the letter, Exh. 36‑A, and the learned Additional Advocate‑General Mr. Abdul Kadir Shaikh ‑has not taken this stand before me, and rightly so, because there was neither any evidence nor any material upon which the learned Special Judge could have held that this letter Exh. 36‑A which was addressed by the Section Officer, Home Ministry to the Special Judge, had been received by the Ministry of Rehabilitation and Works at any time or within the requisite period. Therefore, the position boils down to this: The Special Judge wrote for sanction on 29‑9‑61, to the Home Ministry and the Home Ministry wrote back to say on 30th November 1961, that the letter had been forwarded to the Ministry of Rehabilitation and Works and that according to the rules the power to sanction prosecution vests in the officer competent to remove the accused from office.

5. Two questions arose in this case, firstly, whether the letter of the Special Judge dated 29th September 1961, was properly addressed to the appropriate Government, and, secondly, whether in spite of paragraph 2 of the letter of the Home Ministry dated 30th November 1961, Exh. 36‑A, it could have been deemed that the sanction had been duly accorded within the meaning of the proviso to subsection (5) of section 6 of the Act. With regard to the second point, the contention of Mr. Junejo was that considering that the Home Ministry had said on 30th November 1961, that the sanction may be deemed to have been withheld, it must follow that for the time being the sanction had been refused and it was not open to the learned Special Judge to fall back upon the deeming clause contained in the latter part of the proviso to subsection (5), I do not think it necessary to decide this point because of the view that I have taken upon the first point in respect of which a concession was made by the learned A. A.‑G.

6. The "appropriate Government" is defined in section 2 (a) of the Act and in this case it would be the Central Government. Section 12, however, of the Act empowers the appropriate Government to frame rules, particularly, with regard to the authorisation of persons to exercise the powers to sanction prosecution on behalf of the appropriate Government. The relevant rule which is applicable to the present case was notified in the Gazette dated 5th June 1961, bearing No. S. R. O. 624(K)/61. It reads:‑

"Subject to such general or special instructions as may, from time to time, be given to them by the Central Government, the Heads of Attached Departments and office tray sanction prosecutions under subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act (XL of 1958) on behalf of the Central Government in respect of all such public servants as are serving under, and are removable from service by, such Heads of the Attached Departments and offices or by an authority subordinate to them without the prior approval of the administrative Ministry or Division concerned.".

The learned Additional Advocate‑General stated that in view of this rule the letter in question should have been addressed to the Head of the Department who in this case would have been the Chairman, Karachi Development Authority. It was, therefore, conceded that as in the present case neither the letter was addressed to the Chairman, Karachi Development Authority, nor to the Ministry concerned, namely, the Ministry of Rehabilitation and Works, Government of Pakistan, it was not open to the learned Special ‑Judge to commence the trial on the 5th of December 1961, upon the assumption that the sanction must be deemed to have been duly accorded. In this view of the matter it was pointed out that the trial by, the Special Judge, as it took place in this case, was without jurisdiction. I accept this concession which, in my opinion; proceeds upon the right basis. I accordingly hold that the trial was vitiated for want of a sanction and, therefore, accept this appeal and set aside the conviction and sentence passed upon the appellant upon this technical ground. It would be open for the prosecution agency to apply to the Special Judge for the retrial of the accused according to law.

K.B.A Appeal accepted.

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