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Criminal Appeal No. 22 of 1960, decided on 30th May 1960.

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 14th April 1959, in Writ Petition No. 280 of 1957).

Does not possess validity of order of Government.

Accused's plea that there was a prior determination by Government that accused should not be prosecuted-Whether affects validity of sanction (Quaere).

(c) Interpretation of Statutes-Repealed provision of one Act may be referred to in construing similar provision in another Act intended to supplement former Act-Prevention of Corruption Act (Il of 1947), S. 6 (since repealed)--Referred to in interpreting S. 5 (5), Pakistan Criminal Law Amendment Act (XIX of' 1948).

(d) Pakistan Criminal Law Amendment Act (XIX of 1948), S. 5 (5) read with S. 2 (2)-Sanction for prosecution can only be given in relation to a person who is "actually serving" at time sanction is given-Prosecution of a pensioner before Special Judge under sanction-Not a competent proceeding.

Held, that the prosecution of a pensioner before a Special Judge under a sanction granted under section 5 (5), Pakistan Criminal Law Amendment Act 1948, is not a competent proceeding.

The definition of "appropriate Government" in the Pakistan Criminal Law Amendment Act 1948 is worded so as to give the clear impression that the determination of the "appropriate Govern ment" for the purpose of grant of sanction to a prosecution, can only be made in relation to a person who is actually serving.

Where, when the sanction was given, the public servant concerned was not serving any Government but was a pensioner Held, that there was no "appropriate Government" which could grant a sanction for his prosecution and that the proceeding bcfore the Special Judge under such a sanction was not competent.

In the case of a retired officer who is in receipt of a pension, the incident of his being amenable to departmental discipline for actions performed in the course of his service is altogether missing. Consequently, the requisite of sanction for prosecution becomes inapt, since redress or requital by administrative process is not available, and this furnishes a basis in reason to support the construction that for un officer who has retired, there is, within

"appropriate Government" which can validly sanction his prosecution for an offence allegedly committed during the period of his service. The restriction would be out of place, for there could be no valid reason for imposing the requirement of sanction.

S. 5 (5)-Criminal Procedure Code (Y of 1898), S. 197-Whether necessity of sanction for prosecution meant for protection of public servants.

M. Anwar and Ataullah Sajjad, Advocates Supreme Court, instructed by M. A. Rahman, Attorney for Appellant.

Abdul Haque, Advocate, Supreme Court, instructed by Iftikharuddin, Ahmad Attorney for Respondents.

Dates of hearing : 10th and 11th May 1960.

CORNELIUS, C. J.-This appeal is by Mr, Hamed Ghulam Sadiq, a retired officer of the Provincial Agriculture Service, Class 1, and calls in question a judgment of a Division Bench of the High Court dismissing his petition for a writ to quash a criminal proceeding which had been commenced against him in the Court of a Special Judge at Karachi under the Criminal Law (Amend ment) Act, 1948. The facts necessary for the disposal of the appeal are as follows. Mr. Sadiq while serving the Provincial Government of the Punjab was transferred on deputation to the Central Government of Pakistan for service as Deputy Secretary in the Ministry of Food, in January 1953. While serving in that capacity, he received on the 3rd of March 1955 a charge sheet alleging that he had been guilty of corruption, punishable under the Prevention of Corruption Act, 1947, and within the cognizance of the Special Judge at Karachi. He was given time to submit his reply. Certain incidents followed of which it is only necessary to mention that about the end of September 1955, Mr. Sadiq's health deteriorated seriously, and he applied for permission to retire from service. It is his case that the then Minister of Food and Agriculture told him personally that after consultation with the Minister of Interior it had been decided that "everything against him should be dropped and he should be allowed to retire." There is nothing on the record to indicate that any decision by the Government had been taken as to the dropping of the intended criminal proceedings, and on the other hand, there is an affidavit on the record by an officer of the Ministry of Interior to the effect that no such decision was ever taken. An oral statement by a Minister does not possess the validity of anf A order of the Government. The point is of importance as, not-1 withstanding the reference to the taking of cognizance by the Special Judge a written sanction for the prosecution would have been necessary before the Special Judge could proceed with the case.

However that may be, there are letters on the record to show that the Central Government in the Ministry of Agriculture informed the Government of West Pakistan, which had by that time replaced the Government of Punjab, that final orders had been passed by the Central Ministry of Agriculture, upon Mr. Sadiq's application of 21st October 1955, for permission to retire, which permission had now been given, and further, the Provincial Government was informed that the "Central Government have found his services to be satisfactory." In consequence of this letter, about a year latter, formal orders were made by the Government of West Pakistan, granting to Mr. Sadlq a pension of Rs. 7,000 per year, to which was added a special additional pension of Rs. 1,503 per year. ' This was said to be done after examination of Mr. Sadiq's confidential personal file, and the Governor was satisfied that the pension should be paid in full. As was natural, the appellant relied strongly upon the grant of pension, and the approval of his service by both the Central and Provincial Governments, as implying that when he was given permission to retire, the Government had already decided that the prosecution which they had contemplated against him would not be proceeded with. About four months later, that is in August 1956, Mr. Sadiq was informed that the Central Government had directed that his prosecution should be proceeded with, and accordingly proceedings were commenced under appropriate sanction by that Government in the Court of the Special Judge at Karachi. Mr. Sadiq thereupon made an application in that Court, dated the 20th August 1956, contending that the sanction for the prosecution was "invalid, incoperative and void and does not confer the requisite jurisdiction on this Hon'ble Court" for two specific reasons, viz. (1) that at the time the sanction was given viz. the 21st June 1956, Mr. Sadiq was no more in Government service, having retired on the 21st October 1955; and (2) that there had previously been a decision by the Ministry of Food with the concurrence of the Interior Ministry that there should be no prosecution, but Mr. Sadiq should be permitted to retire.

The Special Judge was apparently impressed by the reasons of the application, for he allowed Mr. Sadiq to approach the Central Government to obtain an order from them in the sense he desired. After waiting for about eight months and receiving no answer, the Special Judge on the 5th May 1957 framed a charge against Mr. Sadiq, whereupon he moved the High Court of West Pakistan by petition for a writ of certiorari to quash the proceedings. In this petition the point as to the validity of the sanction was stated in three paragraphs as follows, viz. that at the time the prosecution was sanctioned Mr. Sadiq was not a person serving in connection with the affairs of the Federation, that the Central Government had no jurisdiction to sanction the prosecution at a time when he was not in the service of the Central Government not serving in connection with the affairs of the Federation, and'that the sanction was a nullity because previously there had been "a clear determination by the Government that the petitioner should not be prosecuted." It is important to note that in these grounds it was not stated as clearly as it had been in the petition to the Special Judge on the 20th August 1958 that the fact of Mr. Sadiq being no longer in Government service was a bar to the grant of sanction

Taking first the argument of a prior determination against prosecution the High Court has found that he mated on the point "is extremely scanty" and could not serve to found conclusion that any decision was taken refusing sanction for the prosecution of the petitioner. It was, in fact, clear that the petitioner could not establish that any definite steps had been: taken by the Central Government, which could, in law, have the effect of a prior determination. There is however a great deal more substance in the second argument, based on the fact that on the date of the grant of sanction, the appellant was not serving in connection with the affairs of any Government. This precise point did not receive the attention of the High Court mainly by reason of the failure of the appellant to state it in clear terms in his petition. As presented. before the High Court, the point taken was that the grant of sanction of the Central Government was invalid because at the time when it was given, Mr. Sadiq was not serving in connection with the affairs of the Central Government. Reference was made by the High Court to sub section (5) of section 5 of the Criminal Law (Amendment) Act, which states briefly that "previous sanction of the appropriate Government shall be required for any prosecution under this Act" and to section 2 (a) which defines the expression "appropriate Government" as meaning the Provincial Government except in the case of certain persons, for whom the appropriate Government was to be the Central Government, such persons being those "serving in connection with the affairs of the Federation, a railway employee and any other person employed by the Central Government or by such organisation or body as may be notified by the Central Government in pursuance of the next succeeding clause." In the present case, at all material times, Mr. Sadiq was either "a person serving in connection with the affairs of the Federation," or a pensioner of the Punjab, later the West Pakistan Government. When it was placed before the Court that the expression "serving in connection with the affairs of the Federation" should be applied with reference to the date on which the sanction was given and not to the date of the offence, the learned Judges expressed their disagreement giving the reason that the Legislature when it enacted this law "overlooked the possibility that the alleged offender might be serving one Govern ment at the time of the commission of the offence and another at the time of the granting of sanction." It seemed, however, to the learned Judges that the plain meaning of the section was that "the Government by which the sanction is to be granted is that under which the person concerned was serving at the time the alleged offence was committed." They considered that it would be absurd to expect from. the Government under which the offending officer was subsequently serving to enquire into the circumstances surrounding the commission of an offence with which such Government had no concern. The larger question whether at the time of the sanction, any Government (had) any concern with Mr. Sadiq as a serving officer thus escaped examination.

Mr. Anwar for the appellant has argued that on interpretation of section 5 (5) read with section 2 (a) of the Criminal Law Amendment Act, 1948, the necessary condition for the compe tency of the prosecution, of a public servant is that he should be actually serving under the Government which is the appropriate Government for the purposes of the case. He contended that a person who had been permitted to retire and was actually drawing a pension could not be regarded as a person "serving in connection with the affairs of the Federation" or any Government. He was prepared to concede that a pensioner owes certain obligations to the Government from which he draws his pension, as a condition of continuing to draw it, but he contended that such obligations are in no sense similar to the conception of service, and in any case these obligations were owed by Mr. Sadiq to the Provincial Government of which he was a pensioner. The order granting him pension purported to apportion the pension between the Central and Provincial Governments, but that did not detract from the position that Mr. Sadiq was a pensioner of the Provincial Government only, which undertook by its order to pay him the stated amount as pension, and it was immaterial from which source or treasury, a part of that pension was eventually to be derived. Mr. Anwar cited before the Court in support of his argument the decision of the Supreme Court of India in the case of Venkataraman (P L D 1958 S C (Ind.) 308), where the section for interpretation was section 6 of the Prevention of Corruption Act, 1947, and it was held after review of a number of earlier decision that no sanction of Government is necessary under section 6 for the prosecution of a person who is not in Government service at the time when the sanction is given. In that case, it was being contended on behalf of the accused person Venkataraman that in spite of the fact that he had already been removed from service at the time when his prosecution was started, nevertheless he was entitled to the protection afforded by section 6 of the Prevention of Corruption Act in respect of acts allegedly performed by him as a public servant. One of the arguments which prevailed with the Supreme Court of India was that the requirement of section 6 of the Prevention of Corruption Act, making previous sanction a sine qua non, was that the alleged offender should be a person who is employed in connection with the affairs of a Government and who is not removable from his office save by or with the sanction of a Government. The third case provided for in section 6 was that of a public servant not falling within the previous categories. Where also the requisite sanction was to be that of "the authority com petent to remove him from his office." The terms employed appeared to the Supreme Court of India to indicate clearly that in praesenti such person should be employed, and that he should be holding an office, for otherwise the aspect of removeability would be irrelevant. In Pakistan, section 6 of the Prevention of Corruption Act has been repealed since 1953, and the provision of sanction in respect of the trials of public servants for offences under that Act is contained exclusively in section 5, subsection (5) of the Criminal Law Amendment Act, to be read with section 2 (a) of that Act. 7 he jurisdiction of special Judges in respect of offences by public servants falling under the Prevention of Corruption Act and certain other penal provisions having been made exclusive, it was probably thought unnecessary to retain the provision for sanction

Act. Notwithstanding the repeal of the latter provision, however its terms may appropriately be referred to as an aid to the construction of relevant provisions in the Criminal Law Amendment) Act, for the latter Act was plainly intended to supplement the provisions of the Prevention of Corruption Act, by providing special machinery for investigation and trial of offences under that Act, and cognate offences by public servants punishable under other laws. With respect, I concur in the view expressed by the. Supreme Court of India in regard to the question for sanction' under section 6 of the Prevention of Corruption Act, to the prosecution of a retired officer. That conclusion is not without a bearing on the question arising in this case.

Moreover, the definition of "appropriate Government" in the Criminal Law Amendment Act is worded so as to give the clear impression that the determination of the "appropriate Government" for the purpose of grant of sanction to a prosecution, can only be made in relation to a person who is actually serving. In the present case, we are not concerned with the situation to which the conclusion reached by the High Court has been addressed. The case is not one of a person serving one Govern ment being sought to be prosecuted for offences committed while he was serving under some other Government. Here, at the time when the sanction by the Central Government was given, Mr. Sadiq was not serving any Government, but was a pensioner of the Provincial Government of West Pakistan. The solution of the problem arising at that time as to the necessity of sanction for the prosecution, and the determination of the "appropriate Government" for the purposes of such sanction would depend upon the answer to the question-in connection with the affairs of which Government is Mr. Sadiq at present serving The answer to that question must necessarily have been that he was not serving in connection with the affairs of any Government, and therefore there was no "appropriate Government" which could grant a sanction for his prosecution such as would make the prosecution of Mr. Sadiq a competent proceeding before the Special Judge under section 5 (5) of the Criminal Law Amendment Act. That conclusion is sufficient for disposal of the present case, since it becomes plain that the prosecution before the Special Judge cannot proceed in view of the absence of a valid sanction, which in the circumstances of the case cannot be given by any Government.

Mr. Abdul Haque for the Central Government attempted to argue that the intention of the Criminal Law Amendment Act could not be that by the mere fact of retirement, public servants who had been guilty of grave offences referred to in the Criminal Law Amendment Act, should be relieved of the stringent procedure and heavy punishment provided by that Act, but should be subject only to the ordinary law providing less heavy punish ments and a more relaxed procedure. He further attempted to argue that in a case of deputation like the present, the lending Government might furnish protection to the lent officer, even in 4 serious case, by recalling him and then proceeding to allow him to arguments are of no avail against the plain meaning of the legal provisions which determine the competency of the Special Judge to proceed with the prosecution in the present case. On the other hand, it would seem to follow upon a true construction of t a relevant provisions in the special law that the intention of the special Act is to assert in relation to public servants, the authority of administrative law, conferring upon the Government under whom an officer is serving, the power to decide whether any error of which he had been guilty, even should it amount to a crime of one of the specified classes, should not be visited by the exercise of departmental discipline within the, discretion of the employing Government. It has been said in a] number of cases decided upon the terms of section 197 of the Criminal Procedure Code, which also makes the previous sanction of the employing Government a requisite for the prosecution of a public servant for an offence "alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" that its main purpose is to protect public servants from vexatious prosecutions. It may have been the case at some time in the past that public servants in the sub continent in the discharge of their official duty were generally free from blame of every kind, but were yet liable to vexatious prosecutions by members of the public with whom they had to deal, owing to some evil tendency or perversion of outlook in such members of the public, but that can hardly be said with truth in the state of affairs which at present prevails. Even in the period when Judges found it necessary, for the understanding of section 197, Criminal Procedure Code, to assume that public servants require to be protected against vexatious prosecution by members of the public, the more logical interpretation of section 197 in my opinion was that with reference to actions of a public servant, performed in the discharge of his official functions, which might be regarded as exaggerations or excesses or behaviour amounting in certain cases to a crime, the law preserved in favour of the employing Government an option to deal with the offender under its plenary powers of discipline, subject to a decision by the Court that the alleged offence had been committed "while acting or purporting to act in the discharge of official duty." Thus, the definition of the limits within which administrative law could be allowed in individual cases by the Courts to prevail, at the option of the Government, was reserved to the Courts. It would seem to follow that in a case where a Government purports to act so as to prevent an alleged misdeed by one of its officers from being investigated by the Courts, it should possess at the time when it exercises its option, a power to visit the offence with its disciplinary jurisdiction over its officers. Otherwise, the power given by the law, would be a naked power to stifle a prosecution at will, irrespective of the truth or otherwise of the allegation.

Viewing the matter in that light, it seems to me to be plain that in the case of a retired officer who is in receipt of a pension the incident of his being amenable to departmental discipline for actions performed in the course of his service is altogether missing. Consequently, the requisite of sanction for prosecution becomes inept, since redress or requital by administrative process is not available, and this furnishes a basis in -reason to support the construction I have arrived at above, viz., that for an officer who has retired, there is, within the contemplation of the Criminal Law Amendment Act, no "appropriate Government" which can validly sanction his prosecution for an offence allegedly committed during the period of his service. The restriction would be out of place, for there could be no valid reason for imposing the requirement of sanction.

For the reasons given above, I would allow this appeal, and would direct that a writ of certiorari should issue to quash the proceedings before the Special Judge as being incompetent in the absence of a valid sanction. The appellant will have his costs throughout.

AMIRUDDIN AHMAD, J.-I agree.

S, A. RAHMAN, J.-I agree.

A. H. Appeal allowed.

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