P L D 1962 Supreme Court 277 (PLP)

B. Z. KAIKAUS, J.‑‑

This judgment will dispose of Criminal Appeals Nos. 87 and F8 of 1961, which have been filed by the State challenging the acquittal of Saeed Ahmad respondent by the High Court in cases under sections 409 and 477‑A of the Pakistan Penal Code. Saeed Ahmad respondent was employed as a Registration Sorter in the Railway Mail Service Lahore and used to carry mail from Lahore to Multan and back. The case against hint was that in the course of these journeys on the 10th and 11th of June, 1952, be misappropriated a number of insured letters and insured articles and he also falsified the relevant accounts. On the next day, that is, the 12th of June 1952, he resigned from service. There was a provision In his contract of service that the services could be terminated by one month's notice on either side and in lieu of one month's notice the respondent deposited on the same day one month's salary. After some days the misappro priation of letters and articles was discovered. A report was made to the police and after investigation the respondent was sent up for trial under sections 409 and 477‑A, P. P. C. in the month of September 1952. He was being tried by a Special Magistrate Ch. Qadir Bakhsh. Ch. Qadir Bakhsh commenced recording of evidence on the 9th of July 1953 and after recording the evidence of 82 witnesses framed charges under section 409 and 477‑A, P. P. C. on the 14th of October 1953. From this stage the case was split up and proceedings were started separately under section 409 and section 477‑A, P. P. C. After the charge the respondent named a number of witnesses to be re‑summoned for further cross‑examination. It appears that no further proceedings were in fact taken by the Special Magistrate and, in the meantime, on account of an amendment in the Criminal Law (Amendment) Act, the case became triable only by a Special Judge appointed under the Criminal Law (Amendment) Act, and the cases were accordingly sent to Mr. Riaz Ahmad Qureshi, Special Judge. Mr. Riaz Ahmad Qureshi too does not appear to have taken any proceedings. The cases then came up for hearing before Mr. Abdul Hameed, Special Judge, Lahore, on the 13th of January 1958. The further cross examination of witnesses was concluded before him and on the 29th of April 1959, the cases were put up before Qazi Ghazanfar Hussain, Special Judge. Qazi Ghazanfar Hussain after hearing the remaining prosecution witnesses and recording the defence evidence convicted the respondent in both cases and In each case he sentenced him to imprisonment till the rising of the Court and a fine of Rs. 2,000, or in default to rigorous impri sonment for 18 months in the case of section 409, P. P. C. and a fine of Rs. 1,000 and, in default, rigorous imprisonment for one year in the case of conviction under section 477‑A, P. P. C. The respondent filed no appeal against these convictions. The State, however, filed revision petitions in the High Court for enhancement of the sentences. When called upon to show cause against enhancement the respondent urged that his convictions were illegal on account of want of sanction for the prosecution by the appropriate authority as required by the Criminal Law (Amendment) Act. The learned single Judge of the High Court who heard the revision petitions was of the opinion that on account of the judgment of this Court in Hamid Ghulam Sadiq v. Pakistan (P L D 1960 S C (Pak.) 351), the Special Judge had no jurisdiction in the cases against the respondent and therefore the convictions were illegal and void. He therefore set aside the convictions. In these appeals filed by the State the only point for determination Is whether the proceedings before the Special Judge were void for want of proper sanction. For a proper understanding of the question involved the history of the Criminal Law (Amendment) Act has to be referred to. The Criminal Law (Amendment) Act was enacted for the first time in the year 1948, being Act X of 1948. The object of the Act, as stated in the preamble, was the speedy and more effective trial of certain offences. The offences mainly in the contemplation' of the Act were those relating to public servants but the Act was not confined to such offences. The offence mentioned in the Schedule, to which the Act was applicable, were not such as could be committed only by public servants in the discharge of their functions and the Act permitted the Government to add to the list of the Act. The Act also made provision for the creation of Special Judges who would hear cases mentioned in the Schedule. The jurisdiction of the Special Judges was not however exclusive and the offences mentioned in the Schedule remained triable by the ordinary criminal Courts. 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 are concerned, there was a provision that they could not be prosecuted before a Special Judge without the sanction of the Central Government. On the 17th of November 1953, there came an amendment of the Criminal Law (Amendment) Act by Act XXXVII of 1953 and this was followed by Ordinance VI of 1953 and Act of 1954, which had retrospective effect from 17th November 1953. By these amendments two Schedules to the Act were created. The Second Schedule related to offences which could only be committed by a public servant acting as such, while the First Schedule related to offences which could be committed by any person. The Special Judges were granted exclusive jurisdiction for trial of offences mentioned in the Second Schedule to the Act, while they were granted concurrent jurisdiction with the ordinary Courts in respect of offences mentioned In the First Schedule. The restriction that they were to try only such cases as were sent up for trial by the Special Police Establishment was removed. A provision was made that all cases relating to offences under the Second Schedule which were pending in any Court other than the Court of the Special Judge would stand transferred to the Special Judge having jurisdiction over such cases. Section 5 (5) which related to sanction of the Government for prosecution of the public servant was amended so as to provide that "for any prosecution under this Act" the previous sanction of the appropriate Government would be required. "Appropriate Government" was defined as the Central Government in cases where a person was serving in connection with the affairs of the Federation and in any other case the Provincial Government. With respect to the cases which stood transferred from the ordinary Courts to the Court of the Special Judge it was provided that sanction would not be needed in such cases. The Criminal Law (Amendment) Act of 1948 was repealed and substituted by the Criminal Law (Amendment) Act of 1958, being Act XL of 1958. It substantially re‑enacted the provisions of the Act of 1948 but made some amendments which are relevant to the discussion in this case. The two Schedules to the Act were combined into one and the offences mentioned therein were made exclusively triable by a Special Judge. The provision as to sanction was amended so as to revert to the position as it stood in the Act of 1948 before it was amended by the Amendment Act of 1953, that is, sanction of the appropriate Government was henceforth needed only for the prosecution of a public servant, An explanation was added which stated that the appropriate Government meant the Government under which the public servant was serving at the time of the commission of the offence. The prosecution in the present case was commenced in 1952 and the respondent was being tried by a Special Magistrate under the Criminal Procedure Code when the amendment of 1953 came into force. Offences under sections 409 and 477‑A when committed by a public servant as such were included by the amendment In the Second Schedule to the Act and therefore the offences in the present case became exclusively triable by a Special Judge. By section 4 of the Act as amended cases relating, to Second Schedule which were already pending before a Court other than the Court of a Special Judge stood automatically transferred to the Court of the Special Judge and for such case. sanction was unnecessary. This case had in accordance with, section 4 been transferred to the Court of a Special Judge, and had it not beets for the fact that the Criminal Law Amendment Act of 1948 was repealed and submitted by the Criminal Law Amendment Act of 1958 no objection with respect to sanction could have been possible. But the Criminal Law (Amendment) Act of 1948 having been repealed and there being a provision in the Act of 1958 that no public servant was to be prosecuted without sanction of the appropriate Government an objection was raised in the High Court which was given effect to that proceedings without sanction were incompetent. Section 6 (5) of the Criminal Law (Amendment) Act of 1958 which contains the provision for sanction runs:‑-- "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 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." Learned counsel for the State has put forward two contentions in support of his plea that sanction was not needed In this case. The first is that the case was validly pending before a Special Judge even without a sanction when the Act of 1958 came into force and this Act which in substance is a reproduction of the Act of 1948 as it stood when repealed was not intended to invalidate any pending proceedings. The second is that according to section 6 (5) sanction is needed "for the prosecution of a, public servant" and as the respondent was no longer a public servant when section 6 (5) came Into force the provision is not attracted. With the first of these contentions we have little hesitation in agreeing. The Act of 1958 is substantially a reproduction Of the Act of 1948 as it stood in

198. The provision as to sanction is a little narrower in the Act of 1958 than it was in the Act of 1948 as it stood in 1958. While under the earlier Act sanction was needed for "any prosecution under the Act", it is needed under the Act of 1958 only for the prosecution of a public servant. By the reproduction of the provision as to sanction, and that too in a narrower form could it be the intention to make sanction a condition precedent for the continuance of proceedings already validly pending? The mere re‑enactment of the provision as to sanction cannot lead to that inference and if the intention was to invalidate previous proceedings a clear provision to that effect would be expected. Not only is there no such provision but there is a provision which expressly validates all that has been done before. According to section 14 (2) of the Act of 1958 "Anything done or action taken before the commencement of this Act during any trial or proceedings before a Special Judge or otherwise under the aforesaid Act shall be deemed to have been done or taken under this Act as if this Act were in force at the time such thing was done or action taken." The cases against the respondent had been transferred by virtue of section 4 (4) of the Act of 1948 as amended in 1953 and according to the proviso to section 6 (5) no sanction was needed in such cases. In accordance with section 14 (2) of the Act of 1958 the transfer is deemed to have taken place under the Act of 1958 and the validity conferred on these proceedings by the proviso to section 6 (5) is deemed to have been conferred by the Act of 1958. The policy of the Legislature consistently has been that it does not apply the provision as to sanction to pending pro ceedings. In 19 53 when the Special Judge was given exclusive jurisdiction over certain offences and all proceedings relating to; those offences were transferred to Special Judges a provision was made that such proceedings would not require sanction. The same thing happened when the Act of 1958 was enacted. Again, a provision was made in section 5 (3) that "All cases relating to offences specified in the Schedule pending in any Court other than the Court of a Special Judge immediately before the com mencement of the Criminal Law (Amendment) Act of 1953 or this Act shall stand transferred to the Court of a Special Judge having jurisdiction in such cases" and in section 5 (4) it was provided that "whenever an offence is included in the Schedule by a notification of the appropriate Government made under subsection (1), all cases relating to teat offence pending in any Court other than the Court of a Special Judge immediately before such notification shall stand transferred to the Court of the Special Judge having jurisdiction over such cases", and the proviso to section 6 (5) said "provided further that no such sanction shall be needed In respect of a case transferred by virtue of subsection (3) or subsection (4) of section 5." The cases against the respondent were not pending in a "Court other than the Court of a Special Judge", but were pending in the Court of a Special Judge appointed under Act of 1948 and it will not be reasonable to infer that while cases transferred from other Courts would not require sanction cases validly pending before the Special Judge himself would require sanction. A Special Judge appointed under the Act of 1948 is by virtue of section 14 (2) deemed to be appointed under the Act of 1958. It may also be observed that sanction is ordinarily a condition precedent to the initiation of proceedings and it will be unusual to require sanction for continuing a validly initiated proceeding. 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 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 al proper case shat 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. The High Court bad based its decision on the judgment of this Court in Hamid Ghulam Sadiq v. The State In that 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 the sanction of the Central Government. It was held by this Court that "appropriate Government" bad reference not to the time of commission of the offence but to the time of grant of sanction, and therefore Here was no "appropriate Government" after his retirement and it was also held that sanction was necessary for every prosecution before a Special Judge and therefore the prosecution before the Special Judge was incompetent. The case was decided under the Criminal Law (Amendment) Act of 1948 (as amended in 1953 and 1954) and on both the points which it decided it could not be of any assistance in deciding a case under the Act of 1958. As regards the first point there is a clear provision in the Act of 1958 that "appropriate Government" has reference not to the time of grant of sanction but to the time of commission of the offence. As regards the second point the provision in the Act of 1948, as amended later, was that sanction was needed for "any prosecution" under the Act, while under the Act of 1958 it Is needed only "for the prosecution of a public servant." The High Court had not decided the petitions for enhance ment on the merits because of the objection as to sanction. We accept these appeals, set aside the judgment of the High Court, and remand the cases to the High Court for decision in accordance with law. A.H. Appeals accepted.