1983 P Cr (PLP)

This is a petition of revision under section 439 read with section 561-A, Cr. P. C. for setting aside the orders, dated 15th February, 1982 and 8th March, 1982 passed by Ch. Ghulam Murtaza, Special Judge, Anti. Corruption, Sargodha, whereby fresh sanction for prosecution of petitioner was ordered to be obtained.

2. F. I. R. No. 254 was registered on 7th April, 1978 with Police Station Factory Area, Faisalabad, for offence under section 409/420/471/ 468/467/109 of the Pakistan Penal Code and section 5 (2) of the Prevention of Corruption Act, 1947. Petitioner and others were accused in that F. I. R. The police after investigation submitted in Court 9 challans against the accused. This is a petition against the order passed in File No. 446/F in which the petitioner alongwith his co-accused is being tried for offence under section 5 of the Prevention of Corruption Act, 1947. The allegation against petitioner is that while employed as Assistant Food Controller, Jaranwala, 1n 1977 the petitioner and his co-accused in col laboration with each other prepared bogus record showing that large number of gunny bags of wheat were transported to different flour mills and after milling the flour were disposed of according to the instructions and thereby unlawfully derived benefit out of it.

3. In all 13 persons were challaned in Court in this case (File No. 446/F) out of which petitioner and seven others belong to the Food Department while three accused were mill owners from the public and two other co-accused were employees of Municipal Committee, Faisal abad. No sanction for prosecution was required for accused from public and two accused, employees of Municipal Committee, Faisalabad, have since been acquitted because the sanction for their prosecution was refused by the Mayor of the Municipal Committee. There were 19 employees of the Food Department who were amongst the accused in the 9 separate challans put up in Court. Initially a joint sanction, dated 8th April, 1980, for prosecution of the petitioner and 18 other employees of the Food Department was obtained from the Deputy Director, Food, Sargodha, copies of which were attached with the nine challans. On 4th December, 1980, the learned Special Judge passed order that separate sanction be obtained in each case and accordingly the Deputy Director Food, Sargodha, sanctioned prosecution of the petitioner and seven other co accused from the Food Department, on 26th March, 1981. The trial of petitioner and the co-accused of his Department commenced before the learned Special Judge on 29th April 1981 who examined 21 out of 25 prosecution witnesses up to 22nd November, 1981. It was on 25th January, 1982 that the learned Special Judge on being pointed out by the Prosecuting Inspector felt the necessity of getting fresh sanction for prosecution of the public servants from the Chairman of the Anti-Corruption Committee concerned according to the amendment made in Pakistan Criminal Law Amendment (West Pakistan) Rules, 1962, on 16th July, 1980. The learned Special Judge, on 15th February, 1982, directed the Prosecu ting Inspector to furnish necessary documents relied upon by him for fresh sanction for prosecution of the petitioner and other accused and on 8th March, 1982, passed an order that the Chairman, Anti-Corruption Com mittee No. 2 be moved for fresh sanction. Petitioner has filed this revision challenging orders, dated 15th February, 1982 and 8th March, 1982 of the Special Judge, Anti-Corruption, Sargodha.

4. Criminal Revisions Nos. 116, 117 and 118 of 1982 are also directed against orders of the learned Special Judge, Anti-Corruption, Sargodha passed in similar circumstances and arise out of the same F. I. R. No. 254 dated 7th April, 1978 of Police Station Factory Area, Faisalabad for which 9 separate challans were filed in Court and initially joint sanction for prosecution of the employees of the Food Department was accorded by the Deputy Director, Food, Sargodha, on 8th April, 1980. Since common questions of law and facts are involved in these petitions this judgment will also dispose of those petitions.

5. It has been argued that authority to sanction prosecution shall continue to remain that which was the authority on the date when offence was committed, that basic sanction accorded on 8th April, 1980 although joint was valid as subsequent sanction, dated 26th March, 1981, for nine challans arising out of the same F. I. R. was just a split up of the names of the accused and that the trial Court could not review its order of 4th December, 1980 whereby sanction for prosecution of petitioner was called from the Deputy Director, Food because that order was not challenged and became final. It was also submitted that amendment of the 1962 Rules did not apply to cases investigated and challans submitted by the local Police under the Police Rules. Learned counsel for the State and learned Assistant Advocate-General have argued that although the appro priate authority continued to be the same the change in the delegatee for according sanction necessitated fresh sanction from the Committee, that fresh sanction was given on 26th March, 1981 and it was not a review of the order, dated 4th December, 1980, passed by the learned Special Judge as the same was only a ministerial act and not a judgment within the meaning of section 369, Cr. P. C. and that the amendment in the Rules fully applied to the case against petitioner.

6. The law contained in section 6 (5) of the Pakistan Criminal Law Amendment Act, 1958 requires that previous sanction of the appropriate Government shall be obtained for prosecution of a public servant for an offence under this Act. According to the explanation under that sub section appropriate Government shall mean the Government at the time offence was committed. The Pakistan Criminal Law Amendment (West Pakistan) Rules, 1962 in section 2 provide that power to sanction prosecu tion of a public servant under subsection (5) of section 6 of Pakistan Criminal Law Amendment Act, 1958 may be exercised on behalf of the Provincial Government by an officer competent to remove such public servant from office. In the case of Ghulam Qadir v. The State (P L D 1968 Lah. 181) the authority under whom accused was working at the time of commission of offence was held to be the competent authority to accord requisite sanction. In the case of Muzajfar Hussain Shah v. The State (P L D 1962 Lah. 744) the Court held that sanction accorded before Pakistan Criminal Law Amendment Act, 1958 came into force was valid and no fresh sanction for trial of accused after amendment in the Act was necessary. In the case of Qabil Shah v. The State (P L D 1966 Kar. 45) when cases against the accused were split into two the Court held that one sanction for prosecution was proper. In the instant case the offence was committed in the year 1977 when petitioner and his co-accused were working under the Deputy Director, Food, Sargodha who was the competent authority to sanction their prosecution. The necessary sanction was originally accorded on 8th April, 1980 in respect of the entire misappropriation. On 25th March, 1981 it was only split up into 9 for regulating the trial of petitioner in nine cases set up by the prosecution out of the same allegation of misappropriation. The trial of the petitioner commenced on 29th April, 1981 and by 22nd November, 1981, 21 prosecution witnesses had been examined and only four police officials were left to be examined. It was thereafter that the trial Court felt the necessity of calling for fresh sanction in view of the amendment in Pakistan Criminal Law Amendment (West Pakistan) Rules, 1962 which came into force on 16th July, 1980 according to which the competent authority to sanction prosecution became Anti-Corruption Committee No.

2. Therefore, I am of the view that the sanction for prosecution accorded on 8th April, 1980 before the amendment of Rules of 1962 is valid and proper and no fresh sanction under the amended rules is required in the circumstances of this case. It is not necessary to decide other points argued before me in this case. For the foregoing reasons the revision is accepted and the orders of the learned Special Judge, Anti-Corruption, Sargodha calling for fresh sanction for prosecution of the accused are set aside. Revision allowed.