P L D 1964 (W (PLP)

J. ORTCHESOH, J.‑This is an appeal under section 10 of the Pakistan Criminal Law (Amendment) Act 1958, by the State praying that the order of the Special Judge (Central), Rawalpindi, dated the 21st of December 1961 purporting to acquit Muhammad Shaft son of Ghulam Muhammad, Muhammad Shafi son of Muhammad Ramzan, Muhammad Amin and Ghulam Qadir of charges under sections 420 and 120‑B, P. P. C. and section 5 (2) of the Prevention of Corruption Act, 1947, be set aside.

2. All the four respondents are connected with the Military Engineering Service, Muhammad Shafi son of Ghulam Muhammad being an Executive Engineer, his name sake son of Muhammad Ramzan a Garrison Engineer, Muhammad Amin a Sub‑Divisional Officer and Ghulam Qadir a contractor.

3. On the 3rd of December 1957 a case (F. I. R. No. 87 of 1957) was registered against the respondents on the basis of an alleged dishonest over payment of Rs. 13,149 to a firm of contractors, Messrs Abdul Khan Ghulam Qadir, of which respondent No. 4 is a partner, in connection with work done at the Domestic Camp, Pakistan Air Force, Chaklala. A challan was subsequently put in the Court of the Special Judge, Central, Rawalpindi, under sections 420 and 120‑B, P. P. C. and section 5 (2) of the Prevention of Corruption Act, 1947. As the learned Special Judge considered that the sanction of the Central Government was necessary for the prosecution of all the respon dents he wrote a letter dated the 16th of June 1960 to the Secretary to the Government of Pakistan, Ministry of the interior, asking that the requisite sanction be accorded. The reply, dated the 18th of August 1960, runs: "Please refer to your letter No. 882, dated the 16th June 1960. On examination it has been found that this case requires further investigation by the S. P. E. (Special Police Establishment). Government has, therefore, decided that sanction for prosecution of the three accused public servants in this case should be withheld."

4. On the 9th of December 1960, the learned Special Judge passed an order in the course of which, after referring to the above letter, he remarks: "I do not agree with the learned P.P./S.P.E. that the letter did not disclose that the Government had refused to accord sanction for prosecution of the accused, but had only deferred the consideration of the matter. The language of the letter is clear. Similarly, it cannot be presumed that the Government had accorded the sanction simply for the reason that no reply of the Government was received within 60 days of the inquiry made by this Court from the Government about it. The letter clearly shows that the Government did not want to accord sanction for the prosecution of the accused, and the contention of the learned P. P. has no force. I, therefore, acquit the accused."

5. No appeal was filed by the State against the above order, but on the 21st of June 1961 the Government of Pakistan, Ministry of Home Affairs, granted sanction for the prosecution of Muhammad Shafi son of Muhammad Ramzan, Garrison Engineer, and Muhammad Amin, then Overseer, Grade

1. Muhammad Shafi son of Ghulam Muhammad had meanwhile retired, and in view of the relevant provisions of the Criminal Law (Amendment) Act, 1958, no sanction for his prosecution was considered necessary. Similarly, no sanction was required for the prosecution of Ghulam Qadir as he had never been in Government service. A fresh challan was put up on the 8th of August before the learned Special Judge who, by order dated the 21st of December 1961, again acquitted the respondents, remark ing, inter alia: "I am of definite opinion that the accused cannot be retried for the same offence if they had been acquitted because the Government had refused to accord sanction for their prosecution. It would have been absolutely different if the Government had not been approached for getting sanction or it had not passed any order in this respect. I doubt very much if any of the accused could be prosecuted even in an ordinary Court after the Government had refused to accord sanction for their prosecution. The learned Public Prosecutor was unable to show me any authority fn which a re‑trial was allowed in a case in which the accused had been acquitted of the same offence because the Government had refused to accord sanction. The next point is that the previous trial could not be held as invalid or void ab initio. It cannot be disputed that the previous proceedings before this Court amounted to a trial. For these reasons I hold that the accused cannot be tried again for the same offence."

6. Against the above order the present appeal has been filed by the State.

7. The first question for consideration is whether the impugned order of the learned Special Judge amounted to an acquittal within the meaning of section 403, Cr. P. C., sub section (1) of which provides that a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence.

8. The answer to this question must clearly be in the negative. In the first place, a special procedure has been laid down by the Pakistan Criminal Law (Amendment) Act, 1958, for the trial of the cases falling within its ambit. Section 6 of the said Act lays down that the Court of a Special Judge shall be deemed to be a Court of Session trying cases without the aid of assessors or jury, while section 5 (6) provides that for the purpose of trial before a Special Judge the provisions of Chapter XVII1 of the Code of Criminal Procedure shall not be applicable. The combined effect of these two provisions is that cases falling within the ambit of the Pakistan Criminal Law (Amendment) Act, 1958, are to be tried as Sessions cases without the preliminary commitment procedure laid down in Chapter XVIII of the Code of Criminal Procedure. Subsection (1) oil section 271 of the latter Code runs: "When the Court is ready to commence the trial, the accused shall appear or be brought before it, and the charge shall be read out in Court and explained to him, and he shall be asked whether he is guilty of the offence charged, or claims to be tried." It is not disputed that in the first proceedings before the learned Special Judge no charge had been framed against the respondents,, and it follows that the trial had not begun. The respondents, B cannot therefore, be said to have been "tried" for the previous, offences.

9. It is further clear that the merits of the case were not gone into in the earlier proceedings and the accused cannot, therefore, be said to have been acquitted on the facts. Attention may be drawn in this connection to Rana Muhammad Afzal Khan v. The State (P L D 1962 S C 397), in which the learned Judges observed: "One argument advanced at the hearing against our altering the conviction to section 182 was that there had been an acquittal and there had been no appeal by the State against the acquittal and, therefore, we should not make an order which the High Court could not have made because the High Court could only have set aside the acquittal and order a re‑trial. This contention can be repelled for the reason that what is called acquittal is really not an acquittal but a mere refusal to take cognizance. An acquittal would mean an acquittal on facts which creates a bar for further trial under section 403, Cr. P. C. What the Additional Sessions Judge said in respect of section 182 is only this that in the absence of a complaint he was not prepared to take cognizance. The refusal to take cognizance is no bar for a further trial and does not operate as an acquittal of a charge." In the present case also the learned Special Judge in the first proceedings refused to continue them on the ground that the Central Government had refused the necessary sanction for the prosecution of the three Engineers accused. The above obser vations of their Lordships of the Supreme Court are, there fore, fully applicable to the present case.

10. Another aspect of the matter is that in the absence of sanction the learned Special Judge had no jurisdiction to try those respondents who were Government servants. In Yusofalli Mulla Noorbhoy v. The King (P L D 1949 P C 108) it is laid down that the whole basis of section 403 (i) is that the first trial should have been before a Court competent to hear and determine the case and to record a verdict of conviction or acquittal. It was further observed that a Court cannot be competent to hear and determine a prosecution the institution of which is prohibited by law as for instance where law prohibits the institution of a prosecution in the absence of a proper sanction.

11. It has been further held in State v. Muhammad Zia Nayyar (P L D 1957 Lah. 477), that where an accused has been acquitted in a former, trial on the sole ground of an invalid sanction, the acquittal is'' no bar to a second trial.

12. The next argument advanced by the respondents is that as the Government failed to file an appeal against the order of the learned Special Judge dated the 9th of December 1960 purporting to acquit the respondents, they cannot now appeal against the latter order. This contention is, in my opinion, misconceived. In the first place, in Yusofalli Mulla Noorbhoy's case, already referred to, their Lordships of the Privy Council observed that if the orders of acquittal were passed by a Court of competent jurisdiction, though wrongly, they would be binding unless set aside in appeal, but if the orders were a nullity, there was nothing to appeal against. Their Lordships further remarked that it can well be that the Government, if embarrassed by the orders of acquittal, might have applied to the High Court to quash them, but that the omission of Government to take such a step, which was not incumbent, could not convert an order made without jurisdiction into an order passed by a Court of competent jurisdiction. The authority cited by the respondents in support of their argument on this point, namely, The Crown v. Sultan Mahmood and others (P L D 1953 Lah. 271), is consequently not in point. In that case their Lordships observed: "The Crown gave out in words of no uncertain import in the course of the private revision petition that they did not regard this as a fit case for an appeal against the acquittal. It was after this assurance, given through the Advocate‑General of the Punjab, that the learned Chief Justice proceeded with the hearing of the revision petition in accordance with the practice of this Court. These circumstances invest the order already passed in revision, with finality in this case. The decision of the Crown as communicated to the Court must be regarded as irrevocable. The Crown cannot now be permitted to turn round and urge that their previous position was ill‑advised." It may here be noted that an appeal was later filed in the Federal Court against the order of the Lahore High Court, but was dismissed. The Federal Court decision is reported as P L D 1955 F C

20. In the present case, on the other hand, the State is not now appealing against the order dated the 9th of December 1960, but against the second order of the 21st of December 1901. This is not, therefore, a case in which Government, having first decided not to file an appeal, later changed its mind.

13. The matter may also be looked at from another point of view. Although the learned Special Judge was wrong in holding that the Central Government, vide its letter dated the 18th of August 1960, had finally refused to accord sanction for the prosecution of those respondents who were Government servants, sanction was not accorded until the 21st of June 1961, and it is obvious that in the absence of sanction an appeal by the Government against the earlier order of the learned Special Judge would have had no hope of success, since it was only on the receipt of sanction that the learned Special Judge acquired jurisdiction to try the case.

14. For the above reasons I am of the opinion that there is no force in this argument of the respondents.

15. Finally, it is contended that the proceedings have been inordinately delayed, and reliance has been placed on several authorities, for example, Muhammad Hussain v. The State (P L D 1959 Lah. 322), Muhammad Rafi Parvez v. The State (P L D 1960 Lah. 986), The State v. Qamar‑uz -Zaman (P L D 1960 Lah. 1199) and Ghulam Qadir Khan v. The State (P L D.1963 Lah. 32), and an unreported judgment of this Court in Cr. R. No. 390 of 1961, decided on the 31st of May 1962. With the utmost respect, I entirely agree with the principle laid down in the above authorities, but, in my opinion, it is not established that there has been such delay in the present case as would justify refusal to order the trial of the respondents. It is true that although the alleged offences are said to have been committed on the 31st of March 1950 the case was not registered until the 3rd of December 1957, but there is nothing in the material before us to show when the alleged over‑payment came to light, and consequently it is not proved that the respondents were subject to what is described by respondent No. 2 as "extreme harassment and mental agony during the whole of the intervening period. Further, the fact that Government refused to accord sanction forthwith but ordered further investigation by the Special Police Establishment, shows that the Government concerned was anxious not to accord sanction to the prosecution of the respondents without being fully satisfied that a good case was made out. Much of the subsequent delay has been caused by the erroneous orders of thee learned Special Judge.

16. If any authority is required for the proposition that in the circumstances of this case this Court can order a re‑trial, reference may be made to the case of Muhammad Afzal Khan v. The State, already cited, in which at page 407 it is observed: "When a trial Court refused to take cognizance we can direct it to do so." I would accordingly accept the appeal and direct the learned Special Judge to take cognizance of the case as required by law. BASHIRUDDIN AHMAD, J.‑I agree. K. B. A. Re‑trial ordered.