P L D 1965 Supreme Court 139 (PLP)

FAZLE‑AKBAR, J.‑This appeal by special leave is brought before this Court by one Nazir Hussain Shah who stands convicted and sentenced under section 409 of the Pakistan Penal Code. The appellant was a Sarpanch of the Panchayet Dhudhial and for the offence of having committed criminal misappropriation of a sum of Rs. 3,478‑3‑0 he was convicted by the Special Judge, Chakwal under section 409, P. P. C. and sentenced to rigorous imprisonment for 4 years and a fine of Rs.5,

000. On appeal a learned Single Judge of the High Court of West Pakistan at Lahore while maintaining his conviction reduced his sentence to rigorous imprisonment for two years and a fine of Rs.4,

000. The sole ground upon which leave was granted was of a technical nature, namely, whether prosecution of the appellant for an offence under section 409, P. P. C. without requisite sanction as prescribed by subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958 (Act XL of 1958) could be legally sustained. This question arose under the following circumstances: The alleged offence was committed on 18th April 1959 and a case was registered against the accused on 25th April 1959. The accused's term as Sarpanch expired on 19th April 1959. On 27th October 1959, the Panchayet Act was repealed with the result that he also ceased to be a Member of the Panchayet. Challan was then put into Court on 11th November 1959. On 31st January 1960 he was elected as a Basic Democrat. He was convicted and sentenced by the Special Judge on 31st May 1961. From the above facts it is clear that when he committed the offence he was a public servant but at the time the Special Judge purported to take cognizance of the offence he was not a public servant and therefore, no order of sanction for his prosecution under subsection (5) of section 4 of the Criminal Law Amendment Act 1958 by competent authority was considered necessary. Mr. Zullah the learned counsel for the appellant has contended that for a sanction under subsection (5) of section 6 of the Act the status of the accused at the time of commission of the offence alleged against him was the essence of the matter and not his status at the time when the Court was asked to take cognizance of the offence. On the other hand Mr. Ataullah Sajjad, the learned counsel for the State has urged that for such a sanction it is necessary that not only the offence must be committed by a public servant but he must be in office when cognizance is taken of such an offence. The answer to the question raised in this case depends on the construction of subsection (5) of section 6 of the Act which is in these terms. Section 6(S).‑"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 subsection (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 (2) 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 transferred. 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. Further `appropriate Government' has been defined thus in section 2 (a). "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 organisation 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." Now there can be no dispute that if at the time of taking cognizance of an offence the person committing the offence is a public servant sanction for his prosecution by a competent authority is essential. The question however, is: Whether such a sanction is necessary in order to prosecute a person who has ceased to be a public servant at the time the Court is asked to take cognizance of the offence committed by him while he was a public servant. In other words does the requirement of a sanction extend to a person who is not a public servant at the time when cognizance is taken of the offence. To decide the true scope of this section we must have regard to all such factors as can legitimately be taken into account in ascertaining the intention of the Legislature such as history of Legislation and the purposes thereof, the mischief which it intended to suppress and the other provisions of the statute, and construe the language of this section in the light of the indication furnished by them. As pointed out by Maxwell on Interpretation of Statutes, 10th Ed., p. 19 "to arrive at the real meaning it is always necessary to get an exact conception of the aim, scope and object of the whole Act; to consider according to Lord Coke; (i) what was the law before the Act was passed; (ii) what was the mischief or defect for which the law had not provided; (iii) wha remedy Parliament has appointed; and (iv) the reasons of the remedy." Now the object of the Criminal Law (Amendment) Act, 1948 as stated in the Preamble was "to provide for the more speedy trial and more effective punishment of certain offences punishable under Pakistan Penal Code and certain laws". From the said Act it appears that the offences mainly in the contemplation of the Act were those relating to public servants but the Act was not confined to such offences only. The Act also made provisions for creation of the Special Judges who would hear cases mentioned in the Schedule. The Special Judges could take cognizance only in cases sent up to them for trial by the Special Police Establishment constituted under Special Police Establishment Ordinance VII of 1948. So far as the public servants were concerned, there was a provision that they could not be prosecuted without the sanction of the Central Government. The provision of sanction in respect of the trials of public servants for offences under that Act was contained in subsection (5) of the Act as amended in 1953 and in 1954. It states that `previous sanction of the appropriate Government shall be required for any prosecution under this Act'. The said section 5 (5) came up for interpretation before this Court in the case of Hamed Ghulam Sadiq v. Pakistan and others (P L D 1960 S C 351). In the above case a servant of the West Pakistan Government who was at the relevant time serving in connection with the affairs of the Federation had been prosecuted after his retirement by sanction of the Central Government. This Court observed that "the definition of `appropriate Government' in the Criminal Law Amendment Act is worded so as to give the clear impression that the determination of the `appropriate Government' for the purpose of grant of sanction to a prosecution can only be made in relation to a person who is actually serving". It was therefore, held that as there was no `appropriate Government' after his retirement, no valid sanction could be granted in that case and as such the prosecution was incompetent. In 1958 the Criminal Law Amendment Act of 1948 was repealed and replaced by the Pakistan Criminal Law Amendment Act, 1958. In subsection (5) of section 6 of this Act which deals with sanction, an explanation was added to the effect that "for the purpose of this subsection, `appropriate Government' shall r' mean the Government which at the time of the commission of the offence was the appropriate Government". This amended section was construed by this Court in the case of Ali Ahmed alias Ali Ahmed Mia v. The State (P L D 1962 S C 102). The question for consideration in the above case was: Whether sanction was necessary for prosecution of a public servant in relation to an offence committed by him as a public servant although he had ceased to be a public servant at the time when cognizance was taken of the offence. This Court while holding that no sanction was necessary observed: "This decision is, however, distinguishable, for, in the case of Ramid Ghulam Sadiq the impugned sanction was granted under the Criminal Law Amendment Act of 1948 and under subsection (5) of section 5 of that Act no prosecution for any offence exclusively triable by a Special Judge could be commenced without a sanction from the appropriate Govern ment. The appropriate Government was also differently defined therein. The Criminal Law Amendment Act of 1948 has however, now been repealed and replaced by the Pakistan Criminal Law (Amendment) Act of 1958. Under clause (b) of the Schedule appended to this Act an offence under section 409 when committed by any public servant in his capacity as such public servant is still by virtue of subsection (1) of section 5 triable exclusively by a Special Judge but under subsection (5) of section 6 thereof sanction of the appropriate Government is required only for the prosecution of a public servant for an offence under the said Act. The prosecution in this case was on the basis of a formal complaint lodged by the Assistant Inspector of the District Anti‑Corruption Branch, Comilla, on the 5th of March 1958, but the sanction was actually granted on the 16th of April 1959. At the time, therefore, that the sanction was granted he had ceased to be a public servant. Thus under the provisions of the Act of 1958, no sanction for his prosecution was at all necessary." In this connection reference may also be made to another decision of this Court in State v. Saeed Ahmad (P L D 1962 S C 277) in which a similar question arose and Kaikaus, J. who wrote the principal judgment observed: "As regards the second contention, namely, that sanction was required for the prosecution of a public servant at the time when he was prosecuted, reliance has been placed on the judgment of this Court in Criminal Appeal No. 9‑D of 1961 (Ali Ahmad v. The State). In that case there is an observation to the effect that as the accused was no longer a public servant no sanction for his prosecution was needed. However, there is the argument that on this interpretation the public servant would be left altogether without any protection for after termination of his services on account of retirement, resignation or otherwise, he would be liable for being prosecuted for every offence alleged to have been committed by him while acting as public servant, even for an offence with respect to which the Government had refused to grant sanction and it may be that we have to reconsider in a proper case what we said in that judgment. In the present case it is not necessary to do so for we find that the provision as to sanction is otherwise not applicable." In view of the above observations we have re‑examined the question of necessity of sanction in such cases. It seems to u that the language of the Explanation appended to subsection (5) of section 6 being clear and unambiguous it is not open to us to read into it limitation which is not there, by reference to extraneous circumstances. Acceptance of Mr. Zullah's contention would mean that by mere fact of retirement or removal from service, a public servant who had been guilty of grave offences referred to in the Act of 1958 could escape the stringent procedure and heavy punishment provided by that Act and would be subject only to ordinary law providing lesser punishment and more relaxed procedure. It seems that with a view that such retired or removed officers should not be relieved of the stringent procedure and heavy punishment necessary provisions were made in the Act of 1958 by adding an Explanation to subsection (5) of section

6. This is also clear from the statements of object and reasons in the Bill introducing the enactment. It is therein stated: "It has been clarified that sanction is only necessary in the case of public servants and not in the case of private individuals or retired Government servants and that sanction is required of the Government under whom the public servant was serving at the time of the commission of the crime." Though it is not legitimate to refer to the statement of objects and reasons as an aid to construction or for ascertaining the construction of the words used in the Act, nevertheless it can be referred to for the limited purpose of ascertaining the conditions prevailing at the time which actuated the sponsor of the Bill to introduce the same and the extent of urgency or evil which he sought to remedy. If this background of the enactment is borne in mind there is no room for doubt that the intention of the Legislature was that no sanction would be necessary for prosecution of a public servant who had ceased to be 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 an Explanation to section 6(5). We therefore, came to unhesitating conclusion that the view taken in Ali Ahmad's case is correct. We accordingly; hold that no sanction was necessary in this case for prosecution of the appellant. This appeal, therefore, fails and it is accordingly dismissed. A. H. Appeal dismissed.