1972 PLP 239 (SCMR)

MUHAMMAD YAQUB ALI, J.‑A case under section 161, P. P. C. and section 5(2) of the Prevention of Corruption Act II of 1947 was registered on the 4th October 1965, against the appellant in the Court of the Special Judge, Hyderabad, on the accusation that while, serving as Assistant Health Officer, Municipal Committee, Hyderabad, he had accepted a bribe of Rs. 100 from the Secretary of the Local Tonga Union. On the same day the presiding officer directed that the appellant be summoned to stand trial on these charges on the 11th November 19,

65. On the 11th October 1965, he addressed a letter to the Chairman of the Municipal Com mittee, Hyderabad, the appropriate Authority within the Pakistan Criminal Law (Amendment) Act, 1958, informing him that a charge‑sheet had been filed against the appellant and that sanction for his prosecution be accorded or refused within 60 days failing which it would be presumed that sanction has been given. On the 3rd November 1965, the Chairman, replied to the Court with a., copy of Resolution No. 847 passed by the Municipal Com mittee, on the 21st October 1965, refusing sanction and accepting the resignation of the appellant from the post of Assistant Health Officer. On the receipt of the intimation the Special. Judge discharged the appellant whereupon the Provincial ,Government filed a revision petition in the High Court disputing the legality of that order on the grounds that since the appellant had ceased to be a public servant before the Special Judge took cognizance of the case no sanction for his prosecution was necessary. The plea was allowed and a retrial was ordered from which leave to appeal was granted to consider whether the Special Judge had taken cognizance before the resignation of the appellant was accepted and as such sanction for his prosecution was necessary and whether. the High Court was right in holding that prosecution can be said to start only when the substance of the accusation is read to the accused. On hearing the learned counsel for the parties, we find no warrant for the view adopted by the learned Judge that cognizance is taken by a Court only when the substance of the accusation is read to the accused. As contended by the learned counsel for the appellant in the High Court, the Special Judge had applied his mind to the facts of the case before he decided to issue summons to the appellant on 4‑10‑1965. Such an order could be passed only after the Court had taken cognizance of the accusa tion made against the appellant. It also escaped the notice of the learned Judge that in case the appellant had ceased to be a public servant, the Special Judge had no jurisdiction to try the case. Section 4 of the Pakistan Criminal Law (Amendment) Act, 1958, provides that a Special Judge shall have jurisdiction within such territorial limits as may be fixed by the appropriate Government by notification in the official Gazette and may take cognizance of any offence committed or deemed to have been committed within such limits and triable under this Act upon receiving a complaint of facts which constitute such offence or upon a report in writing of such facts made by any police officer. "Appropriate Government" is defined in section 2 as follows :‑ "`Appropriate Government' means in relation to a person serving in connection with the affairs of the Federation a Railway employee and any other person employed by the Central Government or by an organization or body corporate notified by the Central Government, in pursuance of the next succeeding clause, the Central Government, and in other cases, the Provincial Government concerned;" The governing clause in the definition clause is "a person serving is connection with the affairs of the Federation, a Railway employee and any other person employed by the Central Govern ment or by an organization or body corporate notified by the Central Government". A fortiori there can be no appropriate Government in relation to an accused who is not serving in con nection with the affairs of the Federation, a province or is not a railway employee or an organization or body corporate notified by the Central Government. Under section 6(5) of the Act not withstanding anything contained in the Code of Criminal Pro cedure or any other law previous sanction of the appropriate Government shall be required for the prosecution of a public servant for an offence under this Act. A Special Judge has the jurisdiction to try offences specified in the Schedule to the Act which fall in three categories :‑ (a) Offences punishable under sections 161 to 166, 168, 217 and 218 of the Pakistan Penal Code, and as attempts, abetments and conspiracies in relation thereto or connected therewith. (b) Offences punishable under sections 403 to 409, 417 to 420, 465 to 468, 471 and 477‑A of the Pakistan Penal Code and as attempts, abetments and conspiracies in relation thereto or connected therewith, when committed by any public servant as such or by any person acting jointly with or abetting or attempting to abet or acting in conspiracy with any public servant as such. (c) Offences punishable under the Prevention of Corruption Act, 1947, and as attempts, abetments and conspiracies in relation thereto or connected therewith. A plain reading of the aforementioned provisions of the Criminal Law (Amendment) Act and the description of the offences in the Schedule leave no doubt that the Special Judges leave jurisdiction only .to try public servants for the commission of the offences specified above and to try persons who are connected with the commission of those offences by public servant as abettors, conspirators, etc. While an accused person in the first category must be a public servant at the time of the commission of the offence it does not stand to reason that with the termination of his service, he loses the protection provided in section 6(5) that previous sanction of the appropriate Government will be required to prosecute him. Mr. Jamaluddin Ahmad appearing for the State concedes this position. In either view of the case the order for retrial of the appellant by the High Court was not justified in law. The appeal is, accord ingly, allowed and the order passed by the Special Judge discharging the appellant is upheld. Appeal accepted.