1989 P Cr (PLP)

Date of hearing: 29th March, 1989. This revision is directed, against the order of Special Judge Anti -Corruption, Lahore, dated 28‑3‑1988, whereby the learned Presiding Officer declining to acquit the petitioner, wrote to Deputy Commissioner Lahore, vide letter dated 6‑4‑1988 for granting sanction for prosecution of the petitioner.

2. The petitioner is a clerk in the Office of the Deputy Commissioner, Lahore. He was posted as `Ahlmad' in the Court of an Honorary Magistrate in the year 1981. On 14‑2‑1981, F.I.R. No. 6 was registered against him with the Anti‑Corruption Police on various allegations under sections 420, 468 and 471, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947. After completing the investigation sanction for prosecution was obtained from Commissioner, Lahore Division and the challan was submitted in the Court of Special Judge Anti‑Corruption, Lahore for trying the petitioner.

3. Learned Special Judge summoned the petitioner for 2‑3‑1988 vide order, dated 13‑2‑1988. The petitioner having appeared in Court moved an application under section 265‑K, Cr.P.C. for his acquittal on the ground that sanction for his prosecution granted by Commissioner, Lahore Division, was defective as he was not the" appropriate authority to grant it as held in Tazeem Hussain's case 1988 P Cr. L J

331. Learned trial Court in‑ its impugned order while agreeing that the sanction appended with report under section 173, Cr.P.C. was not valid, observed that in the circumstances it would seek sanction from the appropriate Government' under proviso to section 6(5) of Pakistan Criminal Law (Amendment) Act, 1958, and then wrote a letter to Deputy Commissioner, Lahore for the purpose, hence this revision.

4. Section 6(5). of the Criminal Law (Amendment) Act (XL of 1958), hereinafter called the Act, reads as under‑‑ "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 (3) 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 accorded before the case is 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. It would be seen that sanction from the appropriate Government is a condition precedent for taking cognizance of offences under the Act by a Special Court and, Therefore, cognizance taken, in the absence of such sanction, is illegal and without jurisdiction. According to the first proviso, if a complaint or report (under section 173, Cr.P.C.) is not accompanied by requisite sanction then Special Judge would write to the appropriate Government for granting sanction before taking cognizance, i.e., before summoning the accused/public servant. The reason for this is to save the public servant from unnecessary harassment because it is just possible that the sanction is refused. Obviously, therefore, sanction sought/obtained by Special Judge after having taken cognizance of the offence is not contemplated by the Act. Consequently, I find that all proceedings taken by the Special Judge, including the writing of letter by him to the Deputy Commissioner, Lahore, for granting sanction for the prosecution of the petitioner after having taken cognizance vide order, dated 13‑2‑1988 (summoning the petitioner) are absolutely illegal and without jurisdiction. Resultantly, the proceedings pending against the petitioner are illegal and the petitioner deserves to be acquitted. I, therefore, order accordingly. The prosecution, however, may obtain sanction from appropriate Government and then submit challan in the competent Court, if so advised, for trying the petitioner. SA./M‑1556/L Acquittal ordered.