2009 PLP 1874 (YLR)

MRS. QAISER IQBAL, J.

The applicant has preferred Miscellaneous application under' section 561-A of the Criminal Procedure Code seeking quashment of the proceedings in Special Case No.14/2005 pending before the Special Judge Anti-Corruption (Provincial) at Karachi arising out of F.I.R. No.21/2004 under section 161, P.P.C. read with section 5(II) Corruption Act, 1947 registered at Police Station A.C.E. The applicant moved an application under section 249A, Cr.P.C. before the Trial Court which has dismissed by order dated 8-5-2008, being aggrieved of the said order applicant has filed present proceedings. Learned counsel for applicant has argued that the sanction/permission has not been granted by the competent authority under section 6(5) of Pakistan Criminal Law Amendment Act, 1958 to the prosecution to prosecute the applicant but the learned Special Judge has proceeded to take cognizance in the matter. In support of the above contention reliance has been placed on Qazi Khalid Saif Ullah v. Sh. Lutfur Rehman, Special Judge, Anti-Corruption (1986 PCr.LJ 2619) and Dr. Nazir A Shaikh v. The State (1989 PCr.LJ 1361). Learned A.A-G. contended that at one stage the report under section 173, Cr.P.C. was submitted for disposal of the case for want of evidence, but the trial Court has taken cognizance, in the matter, upon rejecting such report. Admittedly after submission of report under section 173, Cr.P.C. before the trial Court, the prosecution did not resort to the appropriate Government for seeking sanction for prosecution of the applicant, at the time of taking cognizance there was no sanction available before the Special Judge nor any letter was written to the competent authority for grant of sanction thus the pre-requisite for taking cognizance in the matter was missing as the proceedings were proposed to be dropped against the applicant not based upon sufficient evidence. It is spelled out from the record that meeting of the Anti-Corruption Committee held on 13-12-2606 on the basis of minutes the applicant has filed an application before the Trial Court under section 249-A, Cr.P.C. which was dismissed through the impugned order. The ground for dismissal of the application are that there are direct allegation of demand and acceptance of bribe money against applicant in. presence of witnesses and allegation requires scrutiny through evidence at trial. On the appraisal of the unreported judgment in case of Nisar Ahmed Channa v. The State in Criminal Miscellaneous No. 314/2002 this Court while dealing the issue relying on Dr. Nazir A. Shaikh (supra) a Division Bench of this Court at page 1365 of the reported judgment has laid down as follows:-- "(5) When an application under section 10(4) of the Pakistan Criminal Law Amendment Act, 1958 on the basis of orders in writing of appropriate Government is moved and it is a State case then permission or consent of Court is not necessary. There is identical provision in section 345, Cr.P.C. the cases which are compoundable and application is made, the Court has no option, but to accept compromise, provided in some cases the permission of Court is required for which the Trial Court has discretion. Therefore, in this case neither the public prosecutor is competent to withdraw the case, except under the orders in writing from appropriate Government nor the consent of Court is necessary. It is for the appropriate Government to apply mind independently for withdrawal of such cases." In view of the above, the sanction to prosecute the applicant was not obtained by the competent authority under section 6(5) of the Pakistan Criminal Law Amendment Act, 1958 so much so the case against the applicant was dropped by the prosecution. There appears to be no basis for the trial Court to proceed with the prosecution against the applicant. In view of the above facts and circumstances and law laid down by this Court in case of Dr. Nazir A. Shaikh (supra) I am inclined to extend the benefit available under the law. In view of the above circumstances the impugned order is hereby set aside, consequently Criminal Misc. Application is allowed, proceedings are quashed, applicant is acquitted from the charges levelled against him. H.B.T./Z-15/K Proceedings quashed.