1993 P Cr (PLP)

Muhammad Akbar Cheema for Appellant. Raja Muhammad Akram for Respondent No.2. Syed Ali Raja for the State. Date of hearing: 28th September, 1992. This is an appeal under section 10 of the Pakistan Criminal Law Amendment Act, 1958, for the trial of the Income Tax Officer, Ansar Javaid, by the learned Special Judge (Central), Gujranwala, respondent No.1.

2. The appellant had filed a complaint against the said Income Tax Officer on the 18th of February, 1985, under section 161, P.P.C. read with section 5 of the Prevention of Corruption Act, 1947, in the Court of the learned Special Judge (Central), Lahore. Since the respondent was an employee under the Federal Government, therefore, the learned Special Judge, as required by section 6(5) of the Criminal Law Amendment Act, 1958, addressed a letter to the appropriate Government, Ministry of Interior for obtaining sanction for prosecution of the respondent. The letter was addressed on the 21st of June, 1985. This letter, however, did not elicit reply from the appropriate Government within sixty days, nay, not even on the 17th of November, 1985. The learned Special Judge by that time had exhausted his patience and proceeded to dismiss the complaint. The contention of the learned counsel is that since the requisite sanction had not been received within sixty days from the 21st of June, 1985, therefore, the learned trial Court ought to have assumed receipt of sanction and proceeded with the case on merits and that it erred in law by dismissing the complaint instead. The learned counsel for the respondent, however, defended the impugned order on the ground that even late refusal of sanction by the Authority was clothed with validity in view of the provisions of section 21 of the General Clauses Act. In support of his contention, the learned counsel placed reliance on Muhammad Yousaf v. The State 1971 P Cr. L J

520. It would be advantageous to quote first proviso to subsection (5) of section 6 of the Criminal Law Amendment Act, 1958, which reads as follows:-- "Provided that in case where the complaint or report referred to in subsection (1) of section 5 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:"

3. The letter was addressed by the learned Special Judge on the 21st of June, 1985. There was, however, no response from the Authority. The statutory period of sixty days had lapsed. Even by the 17th of November, 1985, the sanction had not been received. The learned Special Judge, however, instead of proceeding with the case, assuming that sanction had not been accorded dismissed the complaint quite contrary to the above provisions of law. In a similar situation, the Karachi High Court in Muhammad Punhal v. Kamal Khan and another 1987 P Cr. L J 2343, had held that the learned trial Court was statutory bound to try the case on merits if the requisite sanction was not received within sixty days. In the cited case the requisite sanction was refused five months after the date of reference, that is three months after the zero hour. In the instant case too, the refusal had been received long after expiry of prescribed period of sixty days and, therefore, was of no effect. The contention of the learned counsel for the respondent based on section 21 of the General Clauses Act and the Muhammad Yousaf's case is entirely misplaced and arises out of different facts.

4. For the reasons aforementioned, I accept the appeal, set aside the impugned order, dated the 17th of November, 1985, and direct the learned Special Judge (Central) to take cognizance of the matter and proceed with the case on merits. N.H.Q./M-1057/L?????? Appeal accepted.