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Criminal Miscellaneous No. 4659 of 1968, decided on 13th February 1970.
S. 6(5) read with Penal Code (XLV 9f 1860), Ss. 406 & 420-Jurisdiction--- Accused Government servant alleged to have committed offences while discharging official duties-Prosecution initiated without obtaining prior sanction from competent authority and tried by Magistrate not a Special Judge tinder provisions of Pakistan Criminal Law Amendment Act, 1958-Entire proceedings taken against accused, held, without jurisdiction and void ab initio-Proceedings quashed-Criminal Procedure Code (V of 1898),S. 561-A.
Syed Fayaz Hussain Hamdani for Petitioner.
Gulzar Hassan for the State.
The petitioner, while posted as Patwari Mohall of village Nari, Tehsil Khushab, District Sargodha, is said to have obtained by fraud a sum of Rs. 900 as mutation fee from respondent No. 2 in October 1966, and misappropriated the same in respect of which a complaint under section 420/406, P. P. C. was pending against him in the Court of the then Resident Magistrate, Joharabad. He has filed this application under section 561-A, Cr. P. C. for the quashment of the same mainly on the ground of the incompetency of the learned Magistrate to try this case as it was exclusively triable by a Special Judge under the provisions of Pakistan Criminal Law Amendment Act, 1958.
2. There being no dispute about the relevant facts that the petitioner was a public servant; that the offence under sec tion 420/406, P. P. C. alleged to have been committed by him in the discharge of his official duties, is included in the Schedule attached to the said Act; that the learned Magistrate was not notified as a Special Judge, all the proceedings taken against the A petitioner in this case were without jurisdiction and void ab initio. It is also stated that no prior sanction had been obtained from the competent authority to prosecute the petitioner under the said charge.
3. In the above circumstances of the case I have no option but to accept this petition and quash the proceedings being taken against the petitioner in this case. The respondent will, however, be at liberty to file a fresh complaint after obtaining the necessary sanction from the relevant quarters, if so desired.
Petition accepted.
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