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Criminal Appeal No. 637 of 1967J(BWP), heard on 27^th May 1968.

S. 409 read with Pakistan Criminal Law (Amendment) Act (XL of 1958), S. 6 (S)--‑Criminal misappro priation by public servant‑--Sanction for prosecution not sought for or obtained from proper competent authority‑--Trial of accused, held, illegal--‑Conviction and sentence set aside.

S. Mahmood Khan for Appellant.

Pirzada Fakharuddin for A.G. for the State.

Date of hearing: 27th May 1968.

Muhammad Bashir appellant was convicted under section 409, P. P. C. and sentenced to 11 years' rigorous imprisonment with a fine of Rs. 500 or in default to further undergo rigorous imprisonment for six months by the learned special Judge, Bahawalnagar, vide his order dated the 30th of September 1967. The appellant, against his conviction and sentence, has preferred this appeal.

2. The appellant was originally a Gangman in the Railway, put in October 1961, he was appointed as a Salesman of the Employees Co‑operative Store, Bahawalnagar and as such he worked uptil 19^th of May 1962.

3. The accusation against the appellant was that on 29th of April 1962, he; was entrusted with Rs. 1,500 in order to deposit with the Regional Co‑operative Store Railway, Multan which he did not do and instead he absconded for some days. During his absence it was found that he had misappropriated some other property, i.e. the cash and other articles of the Co‑operative Store to the tune of Rs. 1,828.15. The total amount alleged to have been misappropriated by him came to Rs. 3,328.15.

4. At the outset the learned counsel for the appellant contended that no previous sanction for the prosecution of the appellant was obtained as required under section 6 (5) of the Pakistan Criminal Law (Amendment Act, 1958), and as such the whole trial was illegal.

Section 6 (5) of the said Act reads as follows:‑

"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 (1) 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 Govern ment 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."

On the 19th of January 1965, the learned special Judge, passed an order that the competent authority be moved for the grant of sanction. Accordingly he sent letter dated the 26th of January 1965 to the Divisional Superintendent (Personnel) P. W. R., Multan, requesting him to accord sanction for the prosecution of the appellant. Since no reply was received within 60 days of the receipt of the letter by the appropriate authority the sanction was deemed to have been duly accorded and there after the learned special Judge proceeded with the trial. From the perusal of the record I find that the Divisional Superintendent, Multan was not the appropriate authority in this case. Nasir Ahmad Saifi, Welfare Inspector, Headquarters Office, P. W. R., Lahore (P. W. 11) admitted in the trial Court that the Executive Committee wanted to run Co‑operative Store, Bahawalnagar and that the said committee was competent to appoint and remove the appellant. Even the letter of appointment Exh. P. A. of the appel lant shows that it was the Managing Committee of the Railway Co‑operative Store, Bahawalnagar, who had appointed the appellant as a Salesman. That letter was issued by the Secretary, P. W. R. Co‑operative Store, Bahawalnagar, on behalf of the managing committee. Under these circumstances the letter by the learned special Judge requesting to accord the sanction for the prosecution of the appellant should have been addressed to the Executive Committee and not to the Divisional Superintendent. In view of the above this trial is illegal and as such the conviction and sentence of the appellant cannot stand. I, accordingly, accept the appeal of the appellant, set aside his conviction and sentence and acquit him. He should be released forthwith if not wanted in any other case.

Appeal accepted.

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