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Criminal Review Petition No. K‑1 of 1974, decided on 13th August 1975.
(On review from the judgment of this Court dated 25‑1‑1974, in Criminal Petition No. K‑81 of 1973).
‑‑‑Art. 188‑‑Review‑Sanction to prosecute‑Contrary view appearing to have been taken in (no case as against others on question of applicability of bar to prosecution due to lack of sanction for prosecution and leave to appeal granted in some cases to consider such question‑Some conflict existing on question, review petition asked to be put up for hearing alongwith such other appeals and sentence being a short one for only nine months, petitioner released on bail in meantime‑‑‑Penal Code XLV of 1860), S. 161 read with Prevention of Corruption Act (II of 1347), S. 5(2).‑[Review‑Sanction for prosecution].
Nazir Hussain Shah v. State P L D 1965 S C 138 1 Ataur Rehman v. State P L D 1967 S C 2s and Abdul Fateh v. State 1972 S C M R 239 ref.
Z. U. Ahmed, Advocate Supreme Court instructed by Ali Akbar, Advocate‑on‑Record for Petitioner.
Nemo for the State.
Date of hearing : 13th August 1975.
This is a petition for the review of an order of this Court passed on the 25th January 1974, dismissing a petition for special leave to appeal, being Criminal Petition No. K‑81 of 1913.
One of the questions which arose for consideration in this case was as to whether the Special Judge‑cum‑Enquiry officer, Anti‑Corruption, could take cognizance of the case against the petitioner under section 161, P. P. C, read with subsection (2) of section 5 of the Prevention of Corruption Act, 1947, without a proper sanction,
This Court, relying on a Full Court decision in the case of Nazir Hussain Shah v. State (PLD1965SC138) took the view that the bar to the prosecution contained in subsection (5) of sect ion 6 of the Criminal Law (Amendment) Act applied only to those persons who were public servants at the time when the Court took cognizance of the offence and not to persons who) only at the time of the alleged commission of the offence, were such public servants.
This view was reiterated also in the case of Ataur Rehman v. State (PLD1967SC23) bait a contrary view, it appears, has since been taken in Abdul Fateh v. State (1972SCMR239) and again, it appears that this Court has granted leave to appeal, in Criminal Petitions Nos. K‑32 and K‑35 of 1973 to reconsider this veer' question.
Review is, accordingly, sought for reconsideration of the order of this Court dated the 25th January 1974.
It appears to us that since there is some conflict in this Court on this question, the appropriate order to make at this stage would be to direct that this review petition should also come up for hearing along with the appeals arising out of Criminal Petitions Nos. K‑32 and K‑35 of 1963.
In the meantime, since the sentence is a short sentence of only 9 months the petitioner should be released on bail in the sum of Rs. 5,000 and on surety of Ole like amount to the satisfaction of the Special Judge, Anti Corruption, Karachi.
Order accordingly.
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