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Criminal Revision No. 319 of 1961, decided on 2nd January 1963.

Sch. (b) & S. 6 (5)‑Accused, public servant at time of alleged com mission of offence but ceasing to be so at time of trial‑Prosecution under Act not invalid‑Public servant committing offence of cheating under S. 420, P. P. C.‑Cannot be said to be acting in discharge of his official duty‑No sanction for prosecution necessary.

Hamid Sadiq v. The State P L D 1960 S C 351 rel.

Yaqub Hussain Zaidi for Petitioner.

F. M. Anwari for Respondent.

Date of hearing: 11th April 1962.

Sikandar Khan was sent up for trial for an offence under section 420 of the Pakistan Penal Code on the allegation that he, on the 19th of June 1949, at the time of his re‑employment, as a refugee from India, in the office of the Deputy Commissioner, Sialkot, had wrongly given his date of birth as the 4th of September 1898, and his education up to the Matriculation.

2. When the service record of Sikandar Khan arrived from India, it was found that his date of birth recorded therein was the 1st of September 1889, and his education up to the Matriculation standard. It was on the basis of these entries that Sikandar Khan was accused of having cheated the Government by remaining in service beyond his actual date of superannuation. The case against Sikandar Khan was sent up to Court on the 7th of January 1959 and was dealt with by Captain M. A. Majid, P. S. C., Special Judge, Sialkot. By his order dated the 10th of October 1960, the learned trial Judge discharge the accused. This order of discharge was not passed on merits but on the ground that Sikandar Khan having retired from service on the 3rd of September 1953 he could not be prosecuted on the basis of a sanction for prosecution granted on the 14th of December 1953. In arriving at this conclusion, the learned trial Judge, relied on a decision of the Supreme Court of Pakistan in Hamid Sadiq v. State (PLD 1960 SC 351). Against the order of the learned trial Judge the State has presented this petition for revision with a view to having the order of discharge set aside.

3. Learned counsel for the petitioner contended that the decision of the Supreme Court of Pakistan on which reliance was placed by the learned trial Judge was not applicable. The reason he gave to support this contention was that the decision relied upon by the learned trial Judge was given under the Criminal Law Amendment Act, 1948, which was not in force at the time when the present case was dealt with by the learned trial Judge the relevant law, at the relevant time, being the Pakistan Criminal Law (Amendment) Act, 1958, which was passed by the National Assembly of Pakistan on the 8th of September 1958 and became law on the receipt of the assent of the President of Pakistan on the 23rd of September 1958. Learned counsel for Sikandar Khan who is the respondent to the petition, contended that as at the time when the sanction was granted Sikandar Khan was not a public servant he could not be said to be serving under any Government and, therefore, he could not have been prosecuted. This argument is fallacious because if accepted it would amount to this that a person had committed an offence when he was a public servant but happens to retire before he is prosecuted, he shall be deemed to have been purged of his offence, it appears to me clear that under the Pakistan Criminal Law (Amendment) Act, 1958, person who was a public servant, at the time he is alleged to have committed of an offence continues to be triable for the offend subject to the provisions of the relevant law of procedure with regard to matters like sanction etc. Now, under subsection (1) of section 5 of the Pakistan Criminal Law (Amendment) Act, 1958 the offences mentioned in the Schedule attached to the Act shah be triable exclusively by a Special Judge, and an offence under section 420 of the Pakistan Penal Code is one of the offence; mentioned in the Schedule to the Act. It follows, therefore, that an offence under section 420 of the Pakistan Penal Code could be tried by a Special Judge alone.

4. With regard to the necessity of sanction of the appropriate authority for the prosecution of the respondent, however, his learned counsel could point no provision of law, and I have bee able to find none either in the Pakistan Criminal Law (Amendment) Act, 1958, or in any other relevant law. It follows, there fore, that the offence under section 420 of the Pakistan Penal Code, alleged to have been committed by the respondent, could be tried notwithstanding the fact that though the respondent was a public servant at the time when he is alleged to have done the acts ascribed to him he had retired before he could be tried. "Cheating" cannot be deemed to be a part of duty of a public servant and, therefore, it is obvious that a public servant who cheats cannot be considered to be acting in the discharge of his public duties with the result that no sanction for prosecution would be required under the provisions of the Code of Criminal Procedure.

5. In view of what I have said above, I would hold that the order passed by Captain M. A. Majid discharging Sikandar Khan was based on an entirely untenable ground and is, therefore, unsustainable in law. Consequently, I accept the petition and, setting aside the order of discharge passed in favour of the respondent, direct that he should be tried for the offence under section 420 of the Pakistan Penal Code alleged to have been committed by him. I need hardly add that this order shall not debar the learned trial Judge from passing an order of discharge or acquittal of the respondent if his conclusion be that no case was established against him.

K. B. A./A. H. Petition accepted.

Retrial ordered.

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