P L D 1981 Supreme Court 642 (PLP)

SHAFI‑UR‑REHMAN, J.‑The four Criminal Appeals by the same convict, and a review petition by another, raise a common question of law viz. Whether sanction for .prosecution under section 6 subsection (5) of the Pakistan Criminal Law Amendment Act, 1958, is necessary for prosecuting a person who a public servant at the time of the alleged commission of the crime mentioned in Schedule to the Act but ceased to be so when prosecuted in Court.

2. This specific question of law stood decided earlier by this Court in the following cases: (i) Ali Ahmad alias All Ahmad Mia v. The State P L D 1962 S C 102. (ii) The State v. Saeed Ahmad P L D 1962 S C 277. (iii) Nazir Hussain Shah v. The State P L D 1965 S C 139. (iv) Ataur Rahman v. The State P L D 1967 S C

23. The controversy over it was, however, revived on certain observation made in the case of Abdul Fateh Khan Usmani v. State 1972 S C M R 239.

3. The factual background of the cases in which this controversy has arisen is as follows:‑ Syed Ashfaque Hussain Nasri, the appellant in the four appeals, was an Accountant in the office of the Divisional Forest Officer, Silviculture at Hyderabad during the period 1958 to 1961. The appellant showed in the account books deposit of various amounts in National Bank of Pakistan, but these amounts were not in fact deposited in the Bank. In 1961 Comptroller, Southern Area, reported to the Divisional Forest Officer that the account statements were not being received from his office in spite ‑ of repeated reminders. On personal checking Mr. Moin Alam Kadri, Divisional Forest Officer, found defalcations. On 6‑4‑1961 he reported the matter to the Anti‑Corruption Police. Four separate cases were instituted against the appellant in all of which he was convicted and sentenced as follows:‑ (i) Case No. 151 of 1.965 relating to December, 1958, involving an amount of Rs. 3,258, convicted under section 409, P. P. C. and 5(2) of Prevention of Corruption Act and sentenced to two years' rigorous imprisonment and a fine of Rs. 3,500, or in default four months' rigorous imprisonment. (ii) Case No. 152 of 1965 involving an amount of Rs. 2,280, for the period 27‑1‑61 to 25‑2‑1961, convicted under section 409, P. P. C. and section 5(2) of the Prevention of Corruption' Act and sentenced to one year's rigorous imprisonment and a fine of Rs. 200, or in default one month's rigorous imprisonment. (iii) Case No. 153 of 1965 relating to the period 1‑1‑1959 to 29‑12‑1959 involving an amount of Rs. 5,950, convicted under section 409, P. P. C. read with section 5(2) of the Prevention of Corruption Act, and sentenced to two year's rigorous imprisonment and a fine of Rs. 1,000, or in default four months' rigorous imprisonment, (iv) Case No. 154 of 1965 relating to the period 30‑1‑1960 to 30‑12‑1960 involving in all a sum of Rs. 10,498‑10‑6, convicted under section 409, P. P. C. and section 5(2) of the Prevention of Corruption Act and sentenced to two years' rigorous imprisonment and a fine of Rs. 1,000, or in default there months' rigorous imprisonment. The convict appealed from Jail against his convictions and sentences and did not succeed. The main legal ground taken up by him in appeal to the Supreme Court was one of want of sanction for prosecution admitting that "no sanction for prosecution of the petitioner was obtained by the prosecution as he was not in the employment at the time of challan" The sentence of the appellant was suspended on 13‑8‑1970 pending the hearing of his appeal in the High Court. On the dismissal of his appeal in the High Court on 26‑3‑1973 he was required to undergo his sentence. He was admitted to bail by this Court on 24‑8‑1973 while granting him leave to appeal on the strength of decision in the case of Dr. Abdul Fateh Khan Usmani decided by this Court. In the review petition one Muhammad Abbas A. S. I. was trapped on 28‑2‑1968 and caught red‑handed while accepting Rs. 200, as illegal gratifica tion. He was tried by the Special Judge, convicted of the offences under section 161, P. P. C. read with section 5(2) of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for nine months and a fine of Rs. 400, or in default rigorous imprisonment for three months. His appeal against conviction and sentence was dismissed on 13‑9‑

73. He filed a petition seeking leave to appeal which was dismissed on 25‑1‑1974 the decision is reported as Muhammad Abbas v. The State 1972 S C M R 239 and the decision in Dr. Abdul Fateh Usrani which was pointedly referred by the petitioner, was considered by the Court and not followed. Leave was refused. Then a review petition was moved by him on the ground that on the point of law canvassed by him leave to appeal had already been granted in four petitions already referred. By an order dated 13‑8‑1975 it was directed that this review petition should also come up for hearing along with the appeals. As regards the facts of his case it was stated by the petitioner that he was undoubtedly a public servant when the offences were allegedly committed but he had ceased to be so on account of dismissal from service on 20‑5‑1968. The interim chal_lan in the case was, according to him, filed on 13‑3‑1968 and the charges read out to him by the Court on 20‑1‑1970. In the meantime the petitioner was admitted to bail by the High Court on 18‑3‑1968.

4. The legal grounds pressed into service are the following:‑ "(i) The Government servants have always enjoyed protection against frivolous and vexatious prosecution in respect of offences allegedly committed by them while holding public offices in the colour of office or in the purported exercise of the powers of the public office. The rationale behind this protection continues even though the public servant may at the time of trial cease to be a public servant. Reliance for this submission is placed on Suganchand v. Seth Naraindas A I R 1932 Sind 177; In re: S. Y. Patil A I R 1973 Nag. 293; Ghulam Ali Jinnah v. The State 1975 P Cr. L J 583 and Dr. Abdul Fateh Usrani's case. (ii) Statutory support for this view is found in the explanation at the conclusion of subsection (5) of section 6 of the Act. It reads: 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." It is argued that this explanation is decisive not only for determining the authority competent for the time to grant sanction but also for deciding whether any sanction is at all required‑both to be decided by reference to the time the offence was allegedly committed leaving nothing else to be determined by reference to the date of filing of report, the date of taking cognizance of the case, or the date of initiation of prosecution or the date of trial. (iii) If the appellant and the petitioner ceased to be public servants when their prosecution was launched, the Special Judge could not hold the trial as his jurisdiction extended to public servants alone and to others only when they were concerned m one of the manners specified in the Schedule, in the commission of the crime along with the public servant. (iv) In the case of Muhammad Abbas, it was argued that the date of taking cognizance could be when interim report was filed by the Police on 13‑3‑1968, or, when the trial Court refused bail on 14‑3‑1968 or when the High Court granted bail on 18‑3‑

68. As on all these dates Muhammad Abbas was a public servant, sanction for prosecution was necessary, failing which the entire trial was a nullity as held In re: Angel (1968) 2 All E R 607 and Rashid Ahmad v: The State P L D 1972 S C 271.

5. It is correct that public servants enjoyed a certain degree of protec tion against prosecution on criminal charges. Section 197 of the Criminal Procedure Code, before its amendment in 1923 restricted the protection to (i) Judge, when accused as such Judge, or (u) any public servant not removable from his office without the sanction of the Government of India, or the Local Government, accused as such public servant. After the amendment of this section in 1923, the protection was limited to (a)(i) Judge or Magistrate, (ii) any public servant not removable from his office save by or with the sanction of the Central or Provincial Government, (b) in respect of offences alleged to have been committed ‑ by him . while acting or purporting to act in the discharge of his official duty. The expression "acting or purporting to act" was given a very restricted meaning in Albert West Mean V. The King (A I R 1948 P C 156), Gill v. King (75 1 A 41), and Phanundra Chandra Neagy v. King (PLD1948PC273). The 'Commission of offences like taking of bribe, forgery, misappropriation breach of trust committed by public servant while holding public office were held not to fall within the purview of his "acting or purporting to act" as public servant and hence protection of section 197, Cr. P. C. was denied. In Gill v. King very pointed reference to this fact was made in the following words:‑ "A public servant can only be said to act or purport to act in the discharge of his official duty, if the act is such as to lie within the scope of his official duty. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act; nor does a Government Medical Officer act or purport to act as a public servant in pricking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that what he does, he does in virtue of his office."

6. In two decisions shortly thereafter a somewhat liberal interpretation was given. The matter was considered in Matiar Rahman Dewan v. State (PLD1958SC(Pak.)21), and Syed Ahmed v, State (P L D 1958 S C 27). In the latter it was held that: "Since it is clear that commission of offences can never be part of the duties of any official,, the scope of such duties must be interpreted for the purpose of protection afforded by section 197, Criminal Procedure Code in a sense wider than that covered by the precise acts which the official is authorized by the law or other instrument govern ing the matter, to perform."

7. In the cases of Suganchand (A I R 1932 Sind 177), S. Y. Patil (A I R 1937 Nag. 293), and Dr. Abdul Fateh Usrani, the decision takes into account the fact that the precondition of sanction is directed against protecting the public servant against frivolous and vexatious prosecutions and this very reason justified the continuation of the protection and observance of the precondition even though the public servant concerned may have retired. If this had been the only reason the protection would not have been limited to a restricted category. of public servants. It should have been extended to all of them. Again, it would not have been limited to a very restricted category of offences on the periphery of their official duties, not exactly forming a part of the charter of their duties. Going by the general presumption attaching to exercise of. all public power and legislative dispensation it has to be assumed that the protection was not thereby afforded to an individual or a class of individuals but that it was in advancement of public good, for achieving smooth and orderly functioning of public services and maintaining effective and continuing vigilance on performance of public servants. It was this aspect of the power which was highlighted in Hamed Ghulam Sadiq v. Pakistan (PLD1960SC351), in the following words:‑ "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 exaggera tions 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 instigated by the Courts, it should possess at the time when it exercises its disciplinary jurisdiction over its Officers. Otherwise. the power given by the law, would be a naked power to stifle a prosecu tion at all, irrespective of the truth or otherwise of the allegation."

8. This historical background concerning the exercise of power of sanction for prosecuting public servants was necessary not so much for understanding the specific provision requiring interpretation in the matters before us as for taking note of the arguments advanced by the parties. The specific law requiring interpretation is Pakistan Criminal Law Amend ment Act, 1958, particularly its section 5 subsection (1) read with the Schedule and section 6 subsection (5) with its provisos and explanation. These are reproduced hereunder. "

5. Offences to be tried by Special Judges.‑(1) Notwithstanding any thing contained in the Code of Criminal Procedure, 1898, or in any tether law, the offences specified in the Schedule shall be triable exclusively by a Special Judge. (2) . . . . THE SCHEDULE (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 408 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 the 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." Section 6 (1) . (2) .; (3) (4) (5) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in 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 and such sanction shall be sufficient for the prosecution of a public servant for an offence triable under this Act: Provided that in cases where the complaint or report referred to in sub section (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 transferred. Explanation.‑For the purpose of this subsection, `appropriate Govern ment' shall mean the Government which at the time of the Commis sion of the offence was the appropriate Government."

9. Certain distinctive features of these provisions must be noted in order to distinguish them from section 197, Cr. P. C. (rendered inapplicable to the cases covered by the Act) and section 6 of the Prevention of Corruption Act, 1947 (omitted by Act XXXVII of 1953). Firstly, the word "cognizance" has not been used in the Act. Instead the expression which replaces it is "the prosecution of a public servant". The argument advanced in so far it relates to the legality or to the exercise of the jurisdiction to take cognizance of the case is concerned omits to take note of this change and continues to rely on the expression used in section 197 of Criminal Procedure Code or section 6 of the Prevention of Corruption Act. Secondly, there is no mention of the offences by describing them as those `committed by him while acting or puruorting to act in the discharge of his official duties'. Instead, in the Schedule they have been described by reference to sections of the Penal Code, the other requirement in certain others being that they should have been committed by public servants as such. Thirdly, and this is very important, a duty has been cast on the Special Judge to satisfy himself about the existence of the jurisdictional fact and if it is absent to seek it, and in a certain eventuality to deem its very existence without its actual existence. This power of completing the requirement of jurisdictional fact necessarily implies application of judicial mind and taking of certain steps which could ordinarily be taken only after cognizance of the case had been taken.

10. Keeping these distinctive features in view the question is what is the meaning of the word "prosecution". The word "prosecution" in its widest sense means‑ "the continuous following up through instrumentalities created by law, of a person accused of a public offence with a steady and fixed purpose of reaching a judicial determination of the guilt or innocence of the accused A more restricted definition is to be found in Maqbool v. State (A I R 1953 S C 325), as‑ "initiation or starting of a proceedings of a criminal nature before a Court of law or a judicial tribunal in accordance with the procedure prescribed in the statutes which creates the offence and regulates the procedure." On the extended meaning of the word "prosecution" all the steps taken) by the Court after the filing of a Police report of a complaint with the object of holding the trial would amount to prosecution of the accused. The law did not intend its extended meaning while providing that "previous sanction of the appropriate Government shall be required for the prosecution of a public servant". This is so because the Special Judge has a duty under the law of determining the necessity or otherwise of a sanction in a given case, ascertaining the appropriate Government by reference to explanation following the two provisos to subsection (5), addressing that Government for sanction wherever required, and after waiting for the prescribed period) deeming it and then proceeding with the trial. In discharging these duties the Court may as well summon the accused for satisfying itself about the existence of the jurisdictional requirement for initiating prosecution.

11. The explanation has the limited role of readily identifying th appropriate Government for the purposes of sanction, wherever necessary.

12. It is not quite correct to suggest that the jurisdiction of the Special Judge extends only to those persons who were at the time of the alleged commission of crime public servants and continue to be so at the time of the trial. A glance at the Schedule shows that the very first offence in clause (a made triable by Special Judge may concern a person who committed it not as public servant, but as an ordinary citizen expecting to be a public servant. The other category of offences for which any person can be tried comprises those which are of the specified description and committed "jointly with or abetting or attempting to abet or acting in conspiracy with any public servant as such." Such a distinction is, however, not of much importance in the cases now before us because in each the allegation was that, it was, while acting as public servant, that they committed the offences which are admittedly, the Schedule offences. By their ceasing to be public servant, they or their cases did not go outside the jurisdiction of the Special Judge.

13. The provision of the Pakistan Criminal Law Amendment Act, 1958, with regard to sanction for prosecution was considered in the case of Ali Ahmad v. State (PLD1962SC‑102). The accused was a public servant when he allegedly committed the offence. When the sanction for prosecution issued he had ceased to be a public servant. Subsequently he again became a public servant. The defence of Ali Ahmad was that as he had ceased to be a public servant, there was no appropriate Government which could grant sanction, and without sanction he could not be tried for a scheduled offence. For this defence reliance was squarely placed on the decision in the case of Hamed Ghulam Sadiq which decision was under a law which had a materially different provision. Besides, it was held that on his ceasing to be a public servant no sanction for his prosecution was at all necessary. It was also observed that "in any event, under the explanation given under subsection (5) of section 6 of the Act of 1958, an appropriate Government for the purposes of the said subsection means the Government at the: time of the commission of the offence was the appropriate Government. Thus, if sanction was necessary for the prosecution of the appellant, the only Government that could grant such sanction under the Act of 1958, was the Government under which the appellant was a public servant at the time of the commission of the offence. At that time there can be no doubt that the appropriate Government was the Provincial Government of East Pakistan which had, in fact, granted the sanction in the present case".

14. In the case of State v. Saeed Ahmad (PLD1962SC277), the difference in the law regarding sanction applicable to Hamed Ghulam Sadiq's case was fully brought out in the following words: "The Act of 1958 is substantially a reproduction of the Act of 1948 as it stood in 1958. The provision as to sanction is a little narrower in the Act of 1958, than it was in the Act of 1948, as it stood in 1958. While under the earlier Act sanction was needed for any prosecution under the Act", it is needed under the Act of 1958, only for the prosecution of a public servant . The case was decided under the Criminal Law (Amendment) Act of 1943 (as amended in 1953, and 1954) and on both the points which it decided it could not be of any assistance in deciding a case under the Act of 1958. As regards the first point there is a clear provision in the Act of 1958, that "appropriate Government" has reference not to the time of grant of sanction but to the time of commission of the offence. As regards the second point the provision in the Act of 1948, as amended later, was that sanction was needed for any prosecution" under the Act, while under the Act of 1958, it is needed only "for the prosecution of a public servant."

15. In.the case of Nazir Hussain Shah (P L D 1956 S C (Pak.) 1,39), the question whether sanc tion was necessary for prosecuting public servant who had ceased to be a public servant was directly in issue and was examined in depth. The conclusion was as follows:‑ "There is so room for doubt that the intention of the Legislature was that no sanction would be necessary for prosecution of a public servant when the Court was taking cognizance of an offence which had been committed by him when he was a public servant and this was also made clear by adding Explanation to section 6(5)."

16. In the case of Ataur Rahman v. State (PLD1967SC23), the same question was once more examined, this time also in the background of constitutional provisions with regard to Fundamental Rights, and incidentally the leading judgment is by the same learned Judge who took a different view in Abdul Fateh Khan Usrani's case. The law was reaffirmed in the following words:‑ "The bar to prosecution contained in subsection (5) of section 6 of the Criminal Law Amendment Act would, therefore, on the plain meaning of the term "public servant" apply to only those persons who are public servants at time when the Court takes cognizance of the offence with which they are charged under the Act and not to person who at the time of the alleged commission of the offence were such public servants. There is another aspect of the case. Under the Constitution all citizens are equal before law and are entitled to equal protection of law (Fundamental Right No. 15). The protection against prosecution without previous sanction of the appropriate Government conferred on public servants by the Criminal Law Amendment Act, XL of 1958, is discriminatory and a clog on the dispensation of justice. The provisions of subsection (5) of section 6 must therefore be narrowly construed and not given the wider meaning so as to include even those who at the time the Court takes cognizance of the offence allegedly committed by them have ceased to be public servants." 1'. In the case of Dr. Abdul Fateh Usrani the facts were somewhat unusual. The doctor was Assistant Health Officer, Municipal Committee Hyderabad and accused as such of accepting a bribe of Rs.

100. He was sent up under section 161, P. P. C. read with section 5(2) of the Prevention of Corruption Act. The Special Judge concerned sought the sanction of the competent authority on 11‑10‑1965 which was refused on the ground that his resignation had been accepted. The Special Judge discharged the accused. The Provincial Government went up in revision contending that after his resignation was accepted he ceased to be a public servant, no sanction was necessary and the trial could proceed. The plea was allowed and a retrial ordered. It was at that stage that the matter came to the Supreme Court. The High Court had proceeded on the ground that the cognizance of the case bad not been taken by the Special Judge during the time that the doctor remained a public servant. This Court in accepting the appeal and reversing the decision held as follows: (i) 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 accusation made against the appellant. (ii) In case the appellant had ceased to be a public servant, the Special Judge had no jurisdiction to try the case. (iiil As per definition of the "appropriate Government" there can be no appropriate Government in respect of a public servant who had ceased to be a public servant. (iv) It does not stand to reason that with the Termination of his Service, he loses the protection provided in section 6(5). (v) The learned counsel appearing for the State conceded.

18. The judgment in Dr. Usrani's case completely overlooks the earlier decisions, all of which were by larger Benches of this Court and dealt with the specific points made the basis for that decision. May be this was so because there was no real context as such. On no principle, therefore, can this judgment be taken to be a precedent for laying down the law different from the earlier decisions of this Court.

19. We therefore hold that the law on the subject has been correctly laid down in the cases of Ali Ahmad, Saeed Ahmad, Nazir Hussain Shah and Ataur Rahman. It remains undisturbed and has binding effect on all Courts notwithstanding a different view taken in Dr. Usrani's case. Consequently the appeals and review petition are dismissed. The convicts shall be rearrested and required to undergo the unexpired sentence. s. n. H. Petition dismissed.