P L D 1965 (W (PLP)

WAHIDUDDIN AHMED, J.‑This Criminal Acquittal Appeal under section 417, Cr. P. C. is from the judgment of Syed Ahmed Mehmood Ghaznavi, Special Judge, Government of Pakistan, Quetta, dated the 29th September 1962. By this judgment the learned Special Judge acquitted, Malik Riaz‑ur‑Rehman, the respondent, on the ground that no proper sanction for his pro secution was given by the sanctioning authority.

2. Briefly, the facts leading to the present appeal are that in the year, 1960, the respondent, who was Presentation Organizer in Radio Pakistan, in his capacity as a public servant, was alleged to have committed an offence of cheating. It is alleged that on his transfer from Rawalpindi to Quetta he had made misrepresentation on or about 30th November 1960, to the effect that he had paid Rs. 151/10/(Rupees one hundred fifty‑one and ‑ten annas) on account of the railway freight charges for the luggage on his transfer by producing false railway receipt bearing No. 728647, dated the 29th November 1960. It was alleged that he had obtained this receipt by deceiving Salim Javed, clerk, Pakistan Western Railways, Quetta, knowing that he had never paid such money to railway. According to the prosecution the respondent by misrepresentation obtained the orders of the Assistant Regional Director, Radio Pakistan to the effect that he may retain the said amount by adjusting it towards Rs. 600 (Rupees six hundred) which he had taken as advance. On these allegations, the prosecution alleged that the respondent had committed an offence punishable under section 420, P. P. C. and section 5 (2) of the Prevention of Corruption Act (II of 1947).

3. The respondent was put on trial before the Special Judge, Quetta but since the challan was not accompanied by the previous sanction of the sanctioning authority, the learned Special Judge by letter dated 26th September 1961, asked the Director‑General, Radio Pakistan to issue the requisite sanction. It appears that after exchange of several letters the Director‑General, Radio Pakistan under letter, dated 26th December 1961, accorded sanction for the prosecution of the respondent in the following terms:‑ "We hereby accord necessary permission to the prosecution of the case against Malik Raiz‑ur‑Rehman."

4. The matter came up for hearing before the learned Special Judge, who by judgment dated 29th September 1962, acquitted the respondent on the ground that no proper sanction for the prosecution of the respondent was given by the Sanction ing Authority. In this connection the learned Special Judge observed as under:‑ " In the present case, the sanctioning authority had given full consideration to the facts of the case and had come to the conclusion that the accused had no dishonest intention to defraud the Government and, therefore, showed its reluctance to accord the sanction." The State has challenged this order in this Criminal Acquittal Appeal.

5. Mr. Ataullah Sajjad, the learned Additional Advocate -General has attacked the order of the learned Special Judge, on two‑fold ground. In the first place, he contended that the absence of any sanction for the prosecution has no material bearing on the facts of the present case because Mr. Tafazzul Hussain, the learned predecessor of the Special Judge, by order dated 21st May 1962, after holding the aforesaid sanction as invalid has treated it as non‑existent and in exercise of his powers under section 6 (5) of the Pakistan, Criminal Law Amendment Act, 1958, had proceeded to try the respondent. In the alterna tive he contended that even if it is found that the predecessor of the learned Special Judge has improperly exercised powers under the aforesaid provision of law, the view of the Special Judge that no proper sanction was given is based on irrelevant considera tion. According to the learned counsel there was no form prescribed for the sanction of the prosecution and the learned Special Judge should have decided this objection after affording reasonable opportunity to the prosecution establishing that the order of the sanction was passed by the Sanctioning Authority after satisfying itself that it was a fit case for the prosecution of the respondent under the law applicable to public servant in a Court of law. We will deal with these points separately.

6. In support of his first contention, the learned counsel has referred us to section 6 (5) of the Criminal Law Amendment Act, 1958, which is reproduced below:‑ "6 (5).‑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." The learned Additional Advocate‑General has relied on the provisor to subsection (5) of section 6 which provides that if the enquired 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. He has further referred us to the order of Mr. Syed Tafazzul Hussain, Special Judge, Quetta, dated 21st May 1960, which is reproduced below: "The S. P. E. had challaned the accused on 20th September 1961, without attaching the proper sanction for prosecution of the accused. This Court, ‑however, vide its memorandum No. 2848/1961, dated 22‑11‑1961, asked the Director‑General, Radio Pakistan, Karachi, to send the sanction for prosecution of the accused in this case. Thereafter, the Department concerned had sent the sanction, but the learned P. S. I. objected to the said sanction saying that it was not on proper form as required by law. This Court vide its order, dated 13‑3‑1962, again requested the Department concerned to send a proper sanction as required by law. In pursuance of this order, this Court had sent letter No. 618, dated 17‑3‑1962, to the Director‑General, Radio Pakistan, Karachi. The said officer vide his letter No. 3 (16)‑A/61 of April 1962, intimated that he had referred to the Government to revise the sanction, and the same would be sent immediately on receipt of the reply. This Court waited for their reply or requisite sanction up to this time, which has not been received. Obviously, the period of 60 days as provided under proviso to subsection (5) of section 6 of the Criminal Law Amendment Act, has expired. This Court can proceed further with the case. Case be registered. Particulars of the offence read over and explained to the accus6d, who does not plead guilty. Prosecution evidence be summoned for 12th, 13th and 14th July 1962. To come up accordingly." It is quite correct that the learned Special Judge in this case has proceeded to try the respondent in exercise of his powers under section 6 (5) of the Pakistan Criminal Law Amendment Act, 1958, but in our opinion, in the circumstances of the present case it is not possible to hold that no sanction was received from the Sanctioning Authority. Admittedly, the Sanctioning Authority by letter dated 26th December 1961, has accorded the necessary sanction for the prosecution of the respondent. The mere fact that it was not in proper form or did not contain the full particu lars would not lead to the conclusion that in fact no sanction was A received for the prosecution of the respondent. In our view the predecessor of the learned Special Judge, on the facts of the present case, was not justified to exercise the power vested in him under the above‑mentioned provision of law. It could not be invoked because the sanction for the prosecution of the respondent had in fact been received by the time the said order was passed. We, would, therefore, repel the first contention.

7. The next question for consideration is whether the learned Special Judge, Quetta was justified on the material placed before him to come to the conclusion that the sanction accorded by the Director‑General by letter dated 26th December 1961, was not proper sanction under the relevant provision of law. The learned Special Judge in his elaborate judgment has discussed and reproduced the letters exchanged between the Special Judge and the Director‑General, Radio Pakistan on the question of the sanction for the prosecution of the respondent. In arriving at this conclusion he was influenced by the contents of a copy of the letter of the Director‑General of Radio Pakistan to the Superin tendent of Special Police Establishment, dated 3rd October 1961, in which he expressed his doubt about the propriety of taking any action against the respondent and showed reluctance to accord sanction. For this reason he came to the conclusion that the Sanctioning Authority was not willing to sanction the prosecution but accorded it on the insistence of his predecessor. It seems to us that the learned Special Judge has fallen into an error in approaching the objection raised before him in this manner. The learned Additional Advocate‑General contended that the Special Police Establishment furnished further material to the Director‑General, Radio Pakistan and it was thereafter that the sanction was accorded.

8. There is much force in the contention of the State counsel that the question whether sanction for prosecution was granted after full satisfaction or otherwise could not be decided without examining the Sanctioning Authority. It, however, appears to us that it was not brought to the notice of the learned Special Judge that according to the provision of law applicable to the case under consideration, no particular form has been prescribed for according sanction for the prosecution. In law even if form in which sanction is accorded is found to be defective, it is open to the prosecution to prove by extraneous evidence that necessary data was placed before the Sanctioning Authority and he had satisfied himself for the justification to accord sanction. In this connection reference is made to the view of the Judicial Com mittee expressed in Gokulchand Dwarkadas Morarka v. The King (P L D 1948 P C 11). It was observed by their Lordships in that case that even if the form in which the sanction for prosecution is issued is found to be defective ; an opportunity should be provided to the prosecution to prove by extraneous evidence that necessary facts were placed before the Sanctioning Authority for the prosecution of a public servant for finding out whether the sanction was proper or not. The following observation of the Privy Council throws abundant light on this aspect of the question:‑ "In their Lordships' view, in order to comply with the provisions of clause 23, it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential since clause 23 does not require the sanction to be in any, particular form nor even to be in writing. But if the facts constituting the defence charged are not shown on the face of sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or with hold their sanction. They are not, as the High Court seem to have thought, concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds they regard a prosecution as inexpedient. Looked at as a matter of substance it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or withhold the sanction without a knowledge of the facts of the case. Nor, in their Lordship's view, is a sanction given without reference to the facts constitut ing the defence a compliance with the actual terms of clause

23. Under that clause sanction has to be given to a pro secution for the contravention of any of the provisions of the order. A person could not be charged merely with the breach of a particular provision of the order, he must be charged with commission of certain acts which constitute a breach, and it is to that prosecution that is for having done acts which constitute a breach of the order that the sanction is required. In the present case there is nothing on the face of the sanction, and no extraneous evidence, to show that the sanctioning authority knew the facts alleged to constitute a breach of the order and the sanction invalid."

9. Unfortunately, in the present case the learned Special Judge did not record any evidence of the parties. Nor did he give any opportunity to the prosecution to prove by extraneous evidence that the sanctioning authority was posted with all the, material facts and sanctioned the prosecution of the respondent after complying with the requisite condition. In these circum stances, we consider that the learned Special Judge, Quetta has fallen into an error and the order of the acquittal of the respondent cannot be sustained.

10. It was urged on behalf of the respondent that the Sanctioning Authority has moved the appropriate authorities for the withdrawal of the case. This, however, cannot lead to. the inference that the sanction for prosecution was defective. In law it is open to the Sanctioning Authority after sanctioning pro secution to move for the withdrawal of the case. There is nothing wrong in it.

11. Towards the conclusion of the arguments the respondent prayed that since the respondent has now been transferred to Lahore, the case be sent to the Special Judge, Lahore for trial. We do not deem it proper to order the transfer of this case at this stage. The respondent may, if so advised, file a transfer application when proper order would be passed.

12. Accordingly, the order of the acquittal of the respondent is set aside. The case is sent back to the learned Special Judge, Quetta with a direction to proceed with the trial of the respondent in accordance with law.

13. In the result, subject to the above remark the appeal is allowed. S. Q. Appeal allowed.