1968 P Cr (PLP)

FEROZE NANA GHULAMALLY, J.‑--This is an appeal by the State under section 10 of the Pakistan Criminal Law Amendment Act, 1958 against the order of the learned Special Judge Anti‑Corrup tion (Provincial) at Mirpurkhas acquitting the respondent of offences punishable under section 161,' P. P. C. read with section 5 (2) of the Prevention of Corruption Act II of 1947.

2. It is necessary to set out here a few facts of the case in that the respondent who was a peon in the office of the S. D. O., Roads & Buildings Division at Mirpurkhas had accepted hundred rupees as a bribe from one Moula Bux on behalf of the S. D. O. Mr. Abdul Sattar. Moula Bux a contractor had deposited Rs. 720 with the S. D. O. for ten tons of cement for his own use. The S. D. O. had issued five tons of cement after the deposit was made and as Moula Bux stated that he did dot require the remaining five tons of cement he was asked to take away the balance of the five tons which cement according to Moula Bux was in a damaged condition and had turned into stone. He, therefore, declined to take it and demanded a better quality of cement for which the S. D. O. allegedly demanded Rs. 100 as a bribe. After report ing the matter to the Anti‑Corruption Department and after several trape had been arranged which initially were unsuccessful, the prosecution case is that hundred rupees were paid to the respondent, at the behest of his S. D. O. Abdul Sattar, by this Moula Bux and that the amount was recovered from this res pondent after a search of his person by the raiding party. This incident took place. on the 11th June 1960. The learned Special Judge‑cum‑Enquiry Officer, Hyderabad, acquitted the respondent on the 5th October 1960, the order of acquittal being based on the evidence of Syed Ghulam Murtuza Shah the Executive Engineer who had accorded sanction for the prosecution of this respondent and admitted in evidence that he had signed a pro forma sanction order under the impression that he was bound to accord sanction and could not exercise his personal discretion in the matter. The learned Judge held that without considering the facts and the expediencies of the case as contemplated by law, the sanction to prosecute the respondent was invalid and that "this Court had no jurisdiction to try the accused without proper sanc tion for his prosecution. He is acquitted".

3. The respondent was then a temporary peon in the office of the S. D. O., Roads & Buildings Division at Mirpurkhas and it is stated and indeed admitted that he was employed as a temporary hand and was discharged on the 31st May 1961. He was, however, freshly challaned on the 9th June 1965 when the substance of the charge was read over to him on the 13th July 1966 to which he pleaded not guilty. Thereafter Moula Bux, the contractor concerned, and one Madanlal a mashir of the securing of the hundred rupees from the person of the respondent had been examined, when the counsel for the respondent made an application under section 403, Cr. P. C. referring to the earlier decision of the 5th October 1960 by the learned Special Judge‑cum‑Enquiry Officer, Hyderabad, urged that the order of acquittal of the respondent vas still in force and he could not be tried for the same offence for the second time. The impugned order dated 27th December 1966 was then passed by the learned Special Judge, Hyderabad, and it is necessary to reproduce here the relevant and final part of the order "It is admitted by both parties and also abundantly clear from the perusal of Criminal Case No. 26 of 1960 that offence in the present case, namely, Special Case No. 107/65 is the same for which the accused was tried in the year 1960 and acquitted in Criminal Case No. 26/60, I am of the opinion that the proper course for the prosecution in this case after the acquittal of the accused in Criminal Case No. 26/60 was to go up either in appeal or revision against the judgment of the Court passed and delivered on 5‑10‑

60. In any case it is quite obvious that accused Karam Ali cannot be tried for the same offences for which he was acquitted, in the year 1960 so long the order of the acquittal of the Court is intact and in force. I, therefore, hold that under the provisions of section 403, Cr. P. Code accused Karam Ali cannot be now tried in the present case. I, therefore, acquit him in the present case for the reasons mentioned above."

4. The case of the State is that the judgment dated 5th October. 1960 did not operate as an acquittal against the respon dent, that it amounted to a discharge since it was passed for want of a proper sanction and that, therefore, the learned Special Judge had jurisdiction to try the respondent being misled by the use of the word "acquitted" in the judgment of his predecessor dated 5‑10‑60, since under the law the judgment merely operated as an order of discharge and that thus the provisions of section 403, Cr. P. C. had been misapplied. It is further urged that the respondent being no longer in Government service no grant of sanction was necessary before prosecuting him again that the case against him should have proceeded and the invalidity of sanction and the subsequent discharge of the respondent did not operate as a bar against the granting of a fresh sanction and the subsequent trial.

5. We have heard Mr. Murtuza Hussain for the State and Mr. Abdul Rasool Agha for the respondent. It is by now well settled that an order of acquittal based solely on the ground that there has been no proper sanction in a case of this nature does not operate as an order of acquittal but of discharge. The law has been fully discussed in State v. Mohd. Shafi and others (P L D 1964 Lah. 1) where a D. B., discussing section 5(6) of the Criminal Law Amendment Act read with Ch. XVIII of the Criminal Procedure Code and the combined affect of the two provisions and of a Special Judge acquitting an accused person before framing a charge when (the accused) cannot be said to have been tried, held that an acquittal is no bar to a second trial in respect of the same offence. Their Lordships also considered of a case where the prosecution required the necessary sanction and the trial was held in the absence of that sanction, and the accused was acquitted as a result the Court being, without jurisdiction to do so and held that the mere fact that no appeal had been preferred against that order of acquittal was no ground for not holding such an order as a nullity. In that case the Government had withheld sanction for the prosecution of tile three respondents who were public servants and the learned Special Judge field that the Government must be presumed to have withheld the sanction since there was no reply received from them within sixty days of the enquiry made by the Court and thus the accused must be acquitted. No appeal was filed by the State against that order but later the Government of Pakistan (Ministry of Home Affairs) granted sanction for the prosecution only of Mohd. Shafi of the three respondents and put tip a fresh challan against them. The learned Special Judge was of the view that the respondents could not be tried for the same offence for which they had been previously acquitted. An appeal was filed against that order and the observations of their Lordships in this judgment were as a result of the various points urged before them the first one being whether the impugned order of the Special Judge amounted to an acquittal within the meaning of section 403, Cr. P. C., subsection (1) which provides that a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall not be liable to be tried for the same offence. The answer to this question was given in the negative, it being observed that the merits of the case had not been gone into in passing the earlier order and. therefore, the accused could not be said to have been acquitted on facts. Reference was made to Rana Mohd. Afzal Khan v. The Slate (P L D 1962 S C 397) and the observation trade there in that‑‑ "What called acquittal is really not an acquittal but a me refusal to take cognizance. An acquittal would mean an acquittal on facts which creates a bar for further trial under section 403, Cr. P. C." These observations also apply to the present case. It is clear that the order dated 5th October 1960 passed by the Special Judge -cum‑Enquiry Officer was based oil the Court having no jurisdic tion to try the respondent without the proper sanction‑‑‑the sanc tion allegedly accorded by G. M. Shah being a mere formality without the necessary mental exercise. The next point is whether the respondent who is not now a Government servant can be proceeded against he having retired after the first judgment of acquittal in his favour delivered on 5th October 1960. This aspect was settled in Nazir Hussain Shah v. The State (P L D 1965 S C 139) where the entire law the history and the background and the purpose of the Criminal Law Amendment Act. 1948 and section 5(5) and section 6(5) of the Criminal Law Amendment Act XL of 1958 was discussed. It was held that in the background of the enactment and the Statement of Objects and Reasons given in the enactment that sanction was necessary in the case of public servants and not in the case of private individuals or retired Government servants and that sanction as required by Government under whom the public servant was serving at the time of the commission of the crimes left no room for the view that the intention of the Legislature was that no sanction would be necessary for the 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 that this had also been made clear by adding an Explanation to section 6(5) of the Act.

6. We are, therefore, firmly of the view that the order dated 27th December 1966 passed by the learned Special Judge‑curt‑t Enquiry Officer, Hyderabad, cannot be sustained that the) earlier order dated 5th October 1960 amounted to an order of discharge and not of acquittal and that the respondent could Have been tried by the successor Special Judge‑cum‑Enquiry Officer, Hyderabad, his sanction not being .in service (sic) for the same offence and that the provisions of section 403 of the Cr. P. C. were not applicable.

7. Learned counsel for the respondent next urged that we should invoke our revisional powers in refusing, to order a fresh trial of the respondent in consequence of our earlier decision. Reliance was placed on Mohd. Shafiullah v. The State (P L D 1967 Dacca 826) where the conviction of the appellant was set aside oil the ground that the sanction for his prosecution had not been obtained from the appropriate Government and that, therefore his conviction was incompetent. Their Lordships refused to order a re‑trial on the ground that he could not be subjected to the hazard of a fresh trial for what they considered to be no fault of his and went on to observe that it was for the prosecution to obtain the necessary sanction for putting him on trial and for a default on the part of the prosecution the appellant should not suffer. They, therefore, refrained from ordering a fresh trial. We feel that in the present case the circumstances in favour of the respondent for not ordering his re‑trial are much stronger. He bears in mind the observations of their Lordships of the Supreme Court in Raja Haq Nawaz v. Mohd Afzal and others (P L D 1967 S C 354) and the principles laid down by the learned Chief Justice in quashment proceedings as to care being taken not to quash proceedings at an earlier stage so as to not give an unfortunate impression of stifling the criminal prosecutions by exercise of an extraordinary power "which is given for the dispensation of complete justice in the forms provided by law. It is necessary that these cases may be examined further to ensure that the course of even‑handed justice has not been prejudiced." What has impressed us is that although the respon dent allegedly accepted the bribe of Rs. 100 on behalf of his superior Officer, the S. D. O. Mr. Abdul Sattar, no sanction was accorded against him, that the bribe was accepted allegedly on I 1‑6‑60, that the respondent was first acquitted on 5‑10‑60 and after being challaned afresh was acquitted on the 27th December 1966. He was not the main accused in the case because the bribe was accepted on behalf of some one else. He has undergone two trials in the course of nearly six years between the date of the acceptance of the bribe and the final judgment dated 27th December 1966. After the order of 5th October 1960, the Government made no move either by way of an appeal against that order or to obtain fresh sanction for the prosecution of this respondent. The respondent was after all a petty peon and in the period between the October of 1960 to. date more than seven years have passed in the course of which he has had to bear the strain of two trials and to have his matter heard here. A retrial, therefore, would not be justified in the interests of justice. This is a proper case in which we exercise our powers of revision and hold that re‑trial would amount to further harassment of this respondent. Whilst, therefore, allowing appeal for the State we refrain from ordering a fresh trial of the respondent and order accordingly. Appeal accepted.