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Criminal Appeals Nos. 19‑K of 1983, 26‑K of 1985 and 78‑K of 1984, decided on 1st April, 1986.
(On appeal from the Judgments and orders, dated 29‑11‑1982, 31‑1‑1985 and 3‑9‑1984 of the High Court of Sind in Criminal Miscellaneous Application No. 136 of 1982/Criminal Appeals Nos. 265 of 1977 and 43 of 1976, respectively).
‑‑ Ss. 6(5) & 12(2)(a) ‑ Rules of Business, 1973 ‑ Public servant serving in connection with affairs of Federal Government‑Sanc tion for prosecution‑Appropriate Department to accord sanction for prosecution.
Subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958, makes it obligatory for the exercise of jurisdiction, a duly accorded sanction by the appropriate G6verament while section 12(2)(a) of the said Act empowers the appropriate Government to authorise persons to exercise the power to grant sanction on behalf of the appropriate Government in respect of various grades of public servants.
It is the appropriate Government which is competent to grant sanction, and a reference to the Rules of Business, 1973, shows that it is the Interior Division to which the Federal Government has delegated the authority to exercise power in relation to Anti‑Corruption laws. This has reference to the distribution of business among the Division under Schedule 11, rule 33 of the Rules of Business, 1973, framed under the unamended Articles 90 and 99 of the Constitution of the Islamic Republic of Pakistan. No other Division has been allocated the business in regard to Anti‑Corruption laws. This being the supreme law, it will take effect in the absence of any delegation of its powers by the Interior Division under section 12(2)(a) of the Pakistan Criminal Law Amendment Act 1958.
It was the Interior Division of the appropriate Government (Federal Government) which was alone the competent authority to grant sanction in regard to a case sent for trial before the Special Judge.
It is not the appropriate Department but the appropriate Government which is so stated under section 6(5) of the Pakistan Criminal Law Amendment Act to be the competent authority. It is only the Rules of Business which allocate and regulate the functions of the appropriate Government and except for the Interior Division no other Division has been assigned this function by the Federal Government. As for sec tion 12(2)(a) of the said Act, it was the appropriate Government which could delegate its function under this provision and in the absence of any such delegation, this power exclusively rested with the Interior Division.
Asghar Ali v. The State P L D 1985 Lah. 258 approved.
Muhammad Ibrahim v. The State 1976 P Cr. L J 1441 and Muhammad Tufail v. The State 1980 P Cr. L J 1206 not correctly decided.
Criminal Appeals Nos. 52 of 1975 and 231, of 1970 ref.
‑‑ S. 21‑Public servant‑Upper Division Clerk of Canteen Store Department, held, a public servant.
‑‑-- Ss. 6(5) & 12t2)(a) ‑ Rules of Business, 1973‑Public servant serving in connection with affairs of Federal Government‑Sanction for prosecution‑Plea that distribution of business to Ministry of Interior in Rules of Business, 1973, could not supersede S. 12(2)(x), Pakistan Criminal Law Amendment Act, 1958, held, was illogical as S. 12(2)(a) of Act only dealt with delegation of powers of the Officers to exercise it while the power itself resided with the Interior Division.
Murtaza Hussain, Advocate Supreme Court and Yousaf Rafi, Advocate- on‑Record for Appellant.
Respondents Nos. 3 and 4 in person:
Muhammad Ali Sheikh, Advocate Supreme Court and Faizanul Haq, Advocate‑on‑Record for Appellant.
Sattar A. Sheikh, Advocate‑General, Sind and Muzaffar Hassan, Advocate‑on‑Record for the State.
Usman Ghani Rashid, Advocate and Faizanul Haq. Advocate‑on‑Record for Petitioner.
Nemo for the State.
Date of hearing: 1st April, 1986.
This judgment will disp6se of Criminal Appeal No. 19‑K of 1983, Criminal Appeal No. 26‑K of 1985 and Criminal Petition No. 78‑K of 1984.
In all these matters, the question for consideration is whether the Special Judge (Central), Karachi rightly, took the sanction to be duly accorded under section 6(5) of the Pakistan Criminal Law Amendment Act, 1958, by the appropriate Government in the absence of any communica tion from it as to whether it was accorded or refused within 60 days of the receipt of the letter addressed to it.
In Criminal Appeal No. 19‑K of 1983, the respondents were charged to face trial under sections 419, 420, 471, 477‑A read with section 34, P. P. C. and section 5(2) or the Prevention of Corruption Act 11 of 1947, before the Special Judge (Central), Karachi, for "fraudulently and dishonestly" receiving Khas Deposit Certificates, failure to account for them in the stock‑register and for encashing them. Respondents Nos. 2 to 4 on the relevant date served in the Directorate of National Savings, Saddar Centre, Hyderabad, a Department under the Ministry of Finance, Government of Pakistan, Islamabad, while respondent No. 1, not being a public servant, was also involved in the crime.
Reference to accord sanction was made by letter, dated 28th of May, 1978, to the Secretary, Government of Pakistan, Ministry of Home Affairs Division (Interior Division), Islamabad, but for want of communica tion in this behalf from the said Ministry within 60 days, the Senior Special Judge (Central) took the sanction to have been duly accorded by the appropriate Government.
Thereupon an application under section 561‑A, Cr. P. C. was filed in the High Court of Sind, Karachi, by respondent No. 1 seeking for the quashment of the proceedings on the ground that it was not the Ministry of Interior but the Ministry of Finance which was, in law, required to be addressed for according sanction, therefore, the Senior Special Judge (Central) wrongly took the sanction to have been duly accorded. The High Court, upon a review of the cases reported as Muhammad Ibrahim v. The State (1976 P Cr. L J 1441), Muhammad Tufail v. The State (1980 P Cr.L J 1206), and two unreported decisions in Criminal Appeals Nos. 52 of 1975 and 231 of 1970, held that it was the concerned Department of the Government, which was the competent authority and the reference for sanction should have been made to it. Accordingly, the High Court held the proceedings to have been vitiated for want of proper sanction for prosecution.
Now for resolving the question as to which is the competent authority under the Act which can accord sanction, a reference may be made to section 6(5) and section 12(2)(a) of the Pakistan Criminal Law Amendment Act. 1958. these provisions run as under:
"6(5)‑Notwithstanding anything contained in the Code of Criminal Procedure 1898, or in any other law. previous sanction of appropri ate 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 case 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 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:
Provided further that no such sanction shall be required in respect of a case transferred under the proviso to subsection (3) of section 4 or by virtue of subsection (3) or subsection (4) of section 5, if such sanction in respect thereof has been duly accorded or deemed to have been so accorded before the case is so trans ferred.
Explanation.‑For the purpose of this subsection, "appropriate Government shall mean the Government which at the time of the commission of the offence was the appropriate Government.
12(2)(a) Power to make rules.‑(1) The appropriate Government may frame rules to carry out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for any of the following matters, namely:‑‑
(a) authorization of persons to exercise the power to sanction prosecu tion on behalf of the appropriate Government in respect of various grades of public servants."
Subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act makes it obligatory for the exercise of jurisdiction, a duly accorded sanction by the appropriate Government while section 12(2)(a) of the said Act empowers the appropriate Government to authorise persons to exercise the power to grant sanction on behalf of the appropriate Government in respect of various grades of public servants.
There is no dispute that respondents Nos. 2 to 4 were public servants and in regard to them ‑ the appropriate Government was the Federal Government as they were serving in connection with the affairs of the Federal Government in the Ministry of Finance. The dispute is as to which Department of the Federal Government was competent to accord sanction. Under section 12(2)(a) of the Act, the Central Government issued a notification, dated 10th of November, 1961, being in the nature of a rule, which read as under:
"In exercise of the powers conferred by clause (a) of subsection (2) of section 12 of the Pakistan Criminal Law Amendment Act, 1958, (XL of 1958), the Central Government, in supersession of the rules published under S. R. O. 174 and S. R. O. 624 (K)/61, dated the 8th April, 1959, and 5th June, 1961, respectively, is pleased to make the following rule namely:
Rule authorising exercise of power to sanction prosecution on behalf of the Central Government:
Subject to such general or special instructions as may, from time to time, be issued by the Central Government, the power to sanction prosecution of public servants, other than those who are not removable from office save by or with the sanction of the Central Government, or some higher authority, under subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958 (XI of 1958), may be exercised, on behalf of the Central Govern ment, by an Officer having the power to remove from office the public servant, sanction for whose prosecution is required to be issued.
Note.‑--In this rule the term public servant' includes persons who have, for any reason, ceased to be public servants after the commission of the offence, and the employee of corporate bodies concerning the Central Government."
However, by a subsequent Notification No. S. R. O. 731(K)/64, dated 10th of September, 1964, the Ministry of Interior rescinded the notification, dated 10th of November, 1961. In between this date and the date on which the charge‑sheet was filed in the Court of the Special Judge (Central) there was no rule in existence under section 12(2)(a), and if any such rule did exist, then the Special Judge was bound to make the reference to the competent authority as provided therein. There being no such rule, it is the appropriate Government which is competent to grant sanction, and a reference to the Rules of Business, 1973, shows that it is the Interior Division to which the Federal Government has delegated the authority to exercise power in relation to Anti‑Corruption laws. This has reference to the distribution of business among the Divisions under Schedule II, rule 33 of the Rules of Business, 1973, framed under the unamended Articles 90 and 99 of the Constitution of the Islamic Republic of Pakistan. No other Division has been allocated the business in regard to Anti‑Corruption laws. This being the supreme law, it will take effect in the absence of any delegation of its powers by the Interior Division under' section 12(2)(a) of the Pakistan Criminal Law Amendment Act, 1958.
This question was examined by a learned Single Judge of the Lahore High Court in Asghar Ali v. The State (P L D 1985 Lah. 258), and it was held that it was the Interior Division of the appropriate Government (Federal Government)t which was alone the competent authority to grant sanction in regard to al case sent for trial before the Special Judge. This view appears to us to be' the correct view and we would approve it.
In the instant case, the High Court,, however, without examining the question held the Department concerned to be the competent authority, which is an erroneous view as it‑is not the appropriate Department but the appropriate Government which is so stated under section 6(5) of the Pakistan Criminal Law Amendment Act to be the competent authority. It is only the Rules of Business which allocate and regulate the functions of the appropriate Government and except for the Interior Division no other Division has been assigned this function by the Federal Government. As for section 12(2)(a) of the said Act, it was the appropriate Government which could delegate its function under this provision and in the absence of any such delegation, this power exclusively rested with the Interior Division. As to the two cases on which reliance is placed by the High Court, namely Muhammad Ibrahim v. The State and Muhammad Tufail v. The State, we are inclined to view that they have not been correctly decided as the learned Judges in the High Court at Lahore and Karachi did not consider the effect of the Rules of Business, 1973, in the absence of any rule framed under section 12(2)(a) of the Act.
In the result, we would allow Appeal No. 19‑K of 1983, and set aside the impugned order of the High Court. The Senior Special Judge shall proceed with the trial of, the case.
In Criminal Appeal No. 26‑K of 1985, the appellant, who was serving as Upper Division Clerk and Machine Operator in Canteen Store Depart ment, Super Market. Karachi, was booked for trial for misappropriating Government money to the tune of Rs. 13,671.62 under section 409, P. P. C. read with section 5(2) of the Prevention of Corruption Act, 1947.
Before the High Court, it was only on the merits of the case that the arguments were addressed, but while seeking leave to appeal a question was also raised as to the validity of the sanction, in that, that it should have been recorded by the Ministry of Defence which was the competent authority and not the interior Division. This matter has been dealt with at length in the preceding paragraphs, and it needs no further consideration, There was thus proper sanction in this case.
The learned counsel for the appellant, however, raised the question that the appellant was not a public servant, but this plea Was neither taken at the stage of the trial nor before the High Court. A reference to the judgment in the appeal itself shows that the C.S.D. shop was run by the Canteen Store Department, and for running it, the G.H.Q. had published manual of instructions and procedure wherein the duties of Lower Division Clerks and Upper Division Clerks are prescribed. As he was an employee of the Canteen Store Department, we have no doubt that he was a public servant.
The Appeal No. 26(K) of 1985, accordingly, fails and is hereby dismissed. The appellant is on bail, and he should be taken into custody to serve out the remaining sentence.
In Criminal Petition for Leave to Appeal No. 78‑K of 1984, the appellant was at the relevant time Sub‑Postmaster, and, therefore, working under the Ministry of Communication. A similar question was raised as to whether the sanction accorded by the Ministry of Interior was valid. The appellant had been convicted under section 409, P. P. C. read with section 5(2) of the Prevention of Corruption Act, 1947, and sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs. 4,000 or in default to suffer rigorous imprisonment for one year. A Division Bench of the High Court to which the relevant question was referred, held as under:‑
"It is, therefore, evident that the Ministry of Interior, Government of Pakistan is the competent Ministry to accord suction of prosecu tion."
This conclusion, in our view, was correct, and, accordingly, we would uphold it for the reasons given earlier.
The learned counsel for the petitioner, however, submitted that the distribution of business to the Ministry of Interior in the Rules of Business cannot supersede section 12(2)(a) of the Pakistan Criminal Law Amendment Act. 1958, but this submission appears to be wholly illogical as sec tion 12(2)(a) of the said Act only deals with the delegation of powers of the Officers to exercise it while the power itself resides with the Interior Division.
Accordingly, we see no merit in this petition, which is dismissed.
M. B. A. Appeal allowed. Petition dismissed.
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