P L D 1967 Supreme Court 23 (PLP)

MUHAMMAD YAQUB Au, J.‑Ataur Rahman, Ex‑Cashier, Dacca College, a Government administered institute, is being tried in the Court of the Special Judge, Dacca, under section 409, P. C. read with section 5(2) of Act II of 1947 for misappropriating the sum of Rs. 1,280‑9‑0 entrusted to him as a public servant between 1‑1‑1960 and 3‑12‑1960 by students of intermediate and degree classes as tuition fee and other college dues. It was mentioned specifically in the charge that no previous sanction of the appropriate Government within the purview of section 6 (5) of the Criminal Law Amendment Act XL of 1958 vas necessary as he was no longer in service. After the examinat ion of the witnesses by the prosecution the appellant on 25‑1‑1964 took up the objection that in the absence of the sanction the trial was without jurisdiction, illegal and void. Reliance in support of the objection was placed on the following observations 1 the case The State v. Saeed Ahmad.( P L D 1962 S C 277) "As regards the second contention, namely, that sanction was required "for the prosecution of a public servant" and the respondent was not a public servant at any time when he was prosecuted reliance has been placed on the judgment of this Court in Criminal Appeal No. 9‑D of 1961 (Ali Ahmed v The State). In that case there is an observation to the effect as the accused was no longer a public servant, no sanction for his prosecution was needed. However, there is the argument on this interpretation the public servant would be left altogether without any protection for after termination of his service on account of retirement, resignation or otherwise he would be liable to be 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 the proper case what we said in that judgment in the present case, it is not necessary to do so for we find that lie provision as to sanction is otherwise‑not applicable." Since no specific decision on the point raised was given in the case the learned trial Judge rightly considered himself bound to follow the dictum in the earlier case of All Ahmed alias Ali Ahmed Miah v. The State (P L D 1962 S C 102). In dealing with the absence of sanction at the time when the complaint was lodged it was observed in that case: "The prosecution in this case was on the basis of a formal complaint lodged by the Assistant Inspector of Anti‑Corruption Branch, Comilla, on the 5th of March 1958, but the sanction was actually granted on 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." The objection to the legality of the trial was accordingly overruled. From the order of the trial Judge the appellant preferred a revision petition in the High Court of East Pakistan reiterating the objection that sanction under subsection (5) of section 6 of the Criminal Law Amendment Act,.1958, to prosecute hire was wrong and relied on the observations, reproduced above, in the case of The State v. Saeed Ahmed. The rule was discharged by Mr. Justice S. Ali on 21‑4‑1964 as in the opinion of his Lordship the view taken by the trial Court was sound and correct. The con tention raised by the counsel that the decision in the case of Ali Ahmed alias Ali Ahmed Miah had been overruled in Saeed Ahmad's case was repelled and it was held that it continued to be the law binding on. all Courts in the country. We are in agreement with ‑the learned Judge as regards the effect of the observations made in the latter case on the binding nature of the decision in Ahmad Ali alias Ahmed Ali Miah's case. Leave to appeal from the order of the High Court was granted to consider the question as to whether under the Criminal Amendment Act, XL of 1958, sanction is necessary for the prosecution of a person in respect of an act committed by him while working as a public servant and in his capacity as such public servant even after he has ceased to be a public servant. The question raised in the appeal has since been decided by the Full Court in the case of Nazir Hussain Shah v. The State (P L D 1965 S C 138). In that case the appellant as a sarpanch had committed criminal breach of trust in misappropriating a sum of Rs. 3,478‑3‑

0. He was convicted by the Special Judge under section 409, P. P. C. and sentenced to imprisonment for four years and fine. On appeal the High Court of West Pakistan maintained his conviction, but reduced the sentence to two years and a fine of Rs. 4,

000. Leave was granted to consider whether prosecution for an offence under section 409, P. P. C. without requisite sanction under subsection (5) of section 6 of the Criminal Law Amendment Act, XL of 1958, could be legally sustained. Mr. Zullah, learned counsel for the appellant, urged that for sanction under section 6 (5) the status of the accused at the time of commission of 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 contrary the counsel for the State contended that for such a sanction It is necessary that only the offence must be committed by a public servant, but he must be in office when cognizance is Rah by of such an offence. The answer was considered to depend on the construction of subsection (5) of section 6 of the Criminal law Amendment Act which against the background of the enactment as per statement of objects and reasons in the Bill introducing Act XL of 1958, left no room for doubt that the introducing 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 takes cognizance of the offence allegedly committed by him when he was a public servant. The law on the point is thus settled but it may. be usefully aided that subsection (5) of section 6 of the Criminal Law ,amendment Act requires sanction of the appropriate Government for the prosecution of a "public servant" and not of a person who at the time of the alleged commission of an offence was a "public F servant", Definition of public servant" in section 21 of the Pakistan Penal Code which is applicable by reference to the Criminal Law Amendment Act also denotes a person who is holding an office The definition applies to a covenanted servant to commissioned officer, judge, officer of Court of justice, juryman, assessor or member of a panchayat assisting a Court of justice, an Arbitrator to whom a cause has been referred by any Court of justice, a person who holds any office by virtue of which he is in powered to place or keep any person in confinement, every officer whose duty it is as such officer to prevent offences, etc every officer whose duty it is as such officer to receive keep or expend any property on behalf of the State to make any survey or assessment etc. and every person who holds any office by virtue of which he is empowered to prepare, maintain and revise an electoral roll. The bar to prosecution contained in subsection (5) of section 6 of the Criminal Law Amendment Act would, therefore, on the plain meaning of the term. "public servant" apply to only those persons who are public servants at time when the Court takes cognizance of the offence with which they are charged under the Act and not to persons who at the time of the alleged commission of the offence were such public servants. There is another aspect of the case. Under the Constitution all citizens are equal before law and are entitled to equal protection of law (Fundamental Right No. 15). The protection against prosecution without previous sanction of the appropriate Government conferred on public servants by the Criminal Law Amendment Act, XL of 1958, is discriminatory and a clog on the dispensation of justice, The provisions of sub section (5) of section 6 must therefore be narrowly construed and not given the wider meaning so as to include even those who at the time the Court takes cognizance of the offence allegedly, committed by them have ceased to be public servants. The Courts below have in this view rightly held that previous sanction of the Provincial Government was not necessary to prosecute the appellant under section 409, P. P. C. The appeal is dismissed A. H Appeal dismissed.