1992 P Cr (PLP)

Rashid Ahmed v. The State P L D 1972 SC 271 rel. (c) Prevention of Corruption Act (II of 1947)‑‑‑ ‑‑‑‑S. 5(2)‑‑‑Penal Code (XLV of 1860), S.409‑‑‑Pakistan Criminal Law Amendment Act (XL of 1958), S.6(5)‑‑‑Criminal Procedure Code (V of 1898), S.561‑A‑‑‑Quashing of proceedings‑‑‑Sanction for prosecution‑‑‑Appeal of accused against his dismissal from service was pending before Services Tribunal prior to framing of charge by Trial Court or submission of challan in that Court‑‑‑Obtaining of sanction for prosecution of accused was, therefore, necessary‑‑‑Proceedings taken by Trial Court against accused without obtaining said sanction were consequently quashed. Rashid Ahmed v. The State P L D 1972 SC 271 and Muhammad Yaqub v. The State 1980 P Cr. L J 1208 rel. M.M. Saeed Beg with Muhammad, Yaseen Bhatti for Petitioner. Khalil Ahmed AA.‑G. for the State. Facts leading to the filing of this application for quashment of proceedings pending before Special Judge, Anti‑Corruption, Sialkot, at Lahore, are that petitioner is facing prosecution before the trial Court in which challan was submitted on 1‑4‑1991 and charge was framed on 7‑5‑1991. The prosecution had examined five witnesses till 2‑12‑1991 when an application by the petitioner was moved praying that the proceedings be quashed because no sanction for prosecution was accorded in accordance with Rule of under Pakistan Criminal Law Amendment Act, 1958, wherein competent authority was Commissioner of the Division where petitioner was working. Learned trial Court while disposing of the application held that petitioner had ceased to be a Government servant when challan was submitted in Court or when cognizance was taken, therefore, there was no need for obtaining sanction for prosecution. The trial Court further held that an appeal filed by the petitioner against his removal from service was admitted to, regular hearing on 2‑11‑1991 but cognizance was taken prior to the said date. In the present application learned counsel for the petitioner prayed that the order impugned be set aside and the proceeding be quashed.

2. I have heard the learned counsel at length. According to him petitioner had filed an appeal challenging his dismissal from service on 6‑10‑1990 and charge was framed against him by the trial Court on 7‑5‑1991, therefore, the reasons given by the learned trial Court were not attracted to the facts of the case. Argued that reliance was placed on a judgment of the Supreme Court of Pakistan reported as Rashid Ahmed v. The State P L D 1972 SC 271 which was applicable on all fours yet the trial Court did not rely upon the same nor gave cogent reasons. Argued that under Criminal Law Amendment Act, 1958, petitioner could not be tried without valid sanction for prosecution; therefore, the proceedings are bad in law. Petition was opposed by learned Assistant Advocate‑General. He conceded the proposition that sanction for prosecution obtained was bad in law but supported the order impugned on the ground that no sanction for prosecution was required in the instant case.

3. I have heard both the sides in detail and gone through the file as well as judgment relied upon. I have also gone through the order impugned. After going through the order impugned it is held that the reasons given by the learned trial Court are not available in law. It could not be the intention of law that if a person has filed a departmental appeal then sanction for prosecution is necessary but an appeal filed before Services Tribunal, praying for the same relief, sanction for prosecution would not be necessary. The reasons given by the learned trial Court that the appeal was admitted to regular hearing after charge was framed cannot be sustained in .law. The judgment of their Lordships of the Supreme Court discussed above, clearly states that an appeal should be pending against an order of dismissal, even if it was admitted to regular hearing subsequently. Appeal is always is a matter of right. Admitting it to regular hearing is only a procedural requirement and, in such circumstances, if the appeal of the petitioner was pending prior to framing of charge or submission of challan then obtaining sanction for prosecution was necessary. In these circumstances, relying upon Rashid Ahmad v. The State P L D 1972 SC 271 and Muhammad Yaqub v. The State 1980 P Cr. L J 1208, petition is accepted and the proceedings taken from the date of framing of charge till today before the trial Court, are hereby set aside. The learned trial Court shall secure sanction for prosecution from an appropriate authority as required under section 6(5) of the Criminal Law Amendment Act, 1958, and thereafter proceed with the case. N.H.Q./M‑443/L???????? Petition accepted.