1993 PLP 61 (SCMR)

SHAFIUR RAHMAN, J.‑‑‑Leave to appeal was granted to the State (Provincial Government) and the Chairman, Enquiries and Anti‑Corruption Establishment, Punjab, Lahore, to examine whether `Explanation' added to section 6, subsection (5) of the Pakistan Criminal Law Amendment Act, 1958 (hereinafter referred to as the Act), did not authorise the Provincial Government to accord sanction for criminal prosecution of the respondent who was in the employment of the Federal Government but at the time of the alleged commission of offence was serving in connection with the affairs of the Province.

2. The respondent Mr. Hafeez‑ur‑Rahman Najmi was admittedly an employee of the Federal Government who came to be posted as Chief Audit and Accounts Officer in the Punjab Text Book Board established under West Pakistan Text Book Board Ordinance of 1962. On the 21st of October, 1976, a First Information Report was registered with Anti‑Corruption Establishment, Lahore under sections 547, 409/109, P.P.C. against the respondent and Chairman of the Board and two others. After completing the investigation of the case the challan was submitted in the Court of Special Judge Anti -Corruption (Provincial). The Provincial Government was moved for the sanction of prosecution of the Chairman and the respondent and the Provincial Government reacted by letter dated 29th of December, 1977 as hereunder:‑‑. "Sanction for prosecution of Raja Ghalib Ahmed, ex‑Chairman, Punjab Text Book Board, now O.S.D., Secondary Board of Education, Lahore, in case F.I.R. No.50 dated 21‑10‑1976 PS/ACE, Lahore, is hereby accorded. Sanction for prosecution of Mr. Hafeez‑ur‑Rehman Najmi, ex- Chief Audit and Accounts Officer Punjab Text Book Board, Lahore, now O.S.D. Office of Accountant‑General Punjab, Lahore should be obtained from the Federal Government as he is an employee of the Accountant‑General's Office which is under the administrative control of the Federal Government." The Special Judge, Anti‑Corruption, thereafter on the 2nd of January, 1978, addressed a letter to the Chief Secretary, referring to the letter reproduced above and stating as hereunder:‑‑ "2: In para. 3 of your Memo. under reference you have mentioned that the sanction for the prosecution of Hafeez‑ur‑Rehman Najmi who is nowadays working as O.S.D. Office of the Accountant‑General Punjab, Lahore should be obtained from the Federal Government as he is employee of the Accountant‑General Office. In this respect I would like to draw your kind attention to the explanation of subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act XL of 1958 which reads as follows:‑‑ `Explanation.‑‑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.'

3. In the light of this explanation the Punjab Government is the appropriate Government to accord sanction for the prosecution of Hafeez‑ur‑Rehman Najmi accused as he was working under the Punjab Government at the relevant time."

3. The respondent invoked the jurisdiction of High Court by filing an application under section 561, Cr.P.C. claiming that the sanction had not been obtained for prosecuting him from the Federal Government and unless that was done, the trial could not proceed and also that his trial, in any case, had to take place before the Special Judge (Central) and not the Special Judge (Provincial). The learned Judge of the High Court by referring to the letter of the Provincial Government itself dated 29th December, 1977 held as hereunder:‑‑ "I am of the opinion that the proceedings qua the petitioner pending in the Court of respondent No.1; namely, the Special Judge, Anti -Corruption (Provincial), Lahore‑I are without lawful authority and cannot be permitted to proceed, therefore, I allow the application and proceedings qua the petitioner in the Court of respondent No.1 are declared to be without jurisdiction. When and if so advised, the initiating authority after obtaining necessary sanction from the appropriate Government may launch the prosecution in the proper forum, which would be the Court of Special Judge, Anti‑Corruption established by the Central Government."

4. Mr. Muhammad Nawaz Abbasi, Assistant Advocate‑General, has contended that the High Court has not taken a correct view of the law applicable to the case inasmuch as the `Explanation' added to subsection (5) of section 6 of the Act has not been kept in view, as the respondent was at the time of commission of the offence, serving in connection with the affairs of the province. It was the Provincial Government alone which was the appropriate Government and, hence competent to sanction the prosecution. As the letter had been addressed to the Provincial Government and it had not refused the sanction, the trial could proceed.

5. The respondent was present unassisted by the counsel.

6. The definition of "appropriate Government" provided in clause (a) of section 2 of the Act deserves attention and is reproduced below:‑‑ "In this Act, unless there is anything repugnant in the subject or context‑‑ (a) "appropriate Government" means in relation to a person serving in connection with the affairs of the Federal Government and any other person employed by the Federal Government or by a corporation or other body or organization set up, controlled or administered by, or under the authority of the Federal Government, the Federal Government, and in the other cases, the Provincial Government concerned."

7. The three broad categories for whom the Federal Government is the `appropriate Government' are ‑‑ firstly, persons serving in connection with the affairs of the Federal Government, irrespective of the fact whether they are Provincial or Federal employees. It is the functional connection which determines, which is the `appropriate Government' for them. The second to or comprises of those persons who are employed by the Federal Government irrespective of the functions which they happened to discharge at any particular time. This category relates to the employer. The third category is of those persons who are employed by the corporation, other body or organizations, set up, controlled or administered by or under the Authority of the Federal Government. For all their employees the appropriate Government is the Federal Government. It is for the persons left out of those categories that the Provincial Government comes in the picture. `Explanation' requiring consideration is reproduced hereunder:‑‑ . "Explanation‑‑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."

8. At the time when the offence was committed the respondent was in the employment of the Federal Government though he was serving in connection with the affairs of the Province. He was covered by category No.2 indicated in the definition and unlike the case where a person is serving in connection with the affairs of the Federation such a person while serving the province will not come under the sanctioning power of the Province. This is the distinction which is clear from the definition itself.

9. The decided case referred to by the learned Assistant Advocate -General relates to a person who had retired from service and is of little use in deciding the question now before us. The principles forming the basis of the Act have been enunciated in the case The State v. Muhammad Hussain PLD 1968 SC 265 in the following words:‑‑ "The provisions contained in the Pakistan Criminal Law Amendment Act relating to sanctions for the prosecution of persons serving in connection with the affairs of the Centre, the appointment of Special Judges by the Centre for the trial of such persons, the power reserved to the Centre to withdraw prosecutions launched against such persons and finally the power reserved to the Centre to move an appeal against the acquittal of such a person by a Special Judge (Central) combine to create a clear impression that control of prosecutions and of proceedings in Court on behalf of the State against such persons, are matters wholly and exclusively within the power of the Central Government. The general powers of the Provincial Government under the Criminal Procedure Code in these respects are by expression excluded."

10. Another decision of some assistance is of Rashid Ahmad v. The State PLD 1972 SC

271. In that case the sanction of the Officer authorised by the Provincial Government was held to be not in accordance with law as the accused was an employee of the Federal Government. The consequences were pointed out by the Court in the following words:‑‑ "In the absence of any such sanction the trial of the appellant appears to be illegal and without jurisdiction. The Special Judge could not take cognizance of the case without the proper sanction."

11. It is clear to us, therefore, that the Provincial Government was not the appropriate Government and the view expressed by the Provincial Government in the matter and communicated to the Special Judge by letter dated 29‑12‑1977 was the correct one. This, appeal is found to be without merit and is dismissed. N.H.Q./S‑710/S Appeal dismissed.