1980 P Cr (PLP)

It is an admitted position that appellant Tufail is working in the Postal Department, and therefore, the relevant Department for obtaining sanction for prosecution would be Director‑General of Post and Telegraph or at least Ministry of Communication. But, in this case, on 22nd February 1977, the Special Judge (Central), Karachi wrote a letter to the Secretary Ministry of Interior, Government of Pakistan, Islamabad that Government be moved to accord sanction under section 5 of Pakistan Amendment Law Act, 1958. Since, no sanction was refused, therefore, after waiting for 60 days the learned Special Judge (Central), Karachi came to the view that sanction should be deemed to be granted as it was not refused. The relevant provision for sanction is subsection (5) of section 6 of Criminal Law Amendment Act, 1958 and the same reads as under :‑ "Notwithstanding anything contained in the Code of Criminal Proce dure, 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 case 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." Counsel for the appellants relied upon 1976 P Cr. L J 1441, where it was held that where the trial Court had written to the Ministry of Home for granting the requisite sanction, although, the appellants were employees with Ministry of Defence and after waiting for 60 days the Court proceeded with the trial. The High Court held chat the sanction for prosecution had not been sought from the competent authority. Reliance was placed upon P L D 1972 S C 271, where it was held that where proper sanction for prosecution had not been obtained, all proceedings were rendered illegal and. without jurisdiction. Mr. Ali Bakhsh Laghari, Advocate appearing for the State was not able to cite any ruling to the contrary. In these circumstances, I have to hold that the letter addressed by the Special Judge to Ministry of Interior for sanction of prosecution against the appellant Muhammad Tufail had not been addressed to the competent authority and the failure on the part of the Government to reply to the said letter could not be deemed as a sanction under the proviso to subsection (5) of section 6 of Criminal Law Amendment Act, 1958. Consequently, all proceedings before the Special Judge (Central), Karachi after 22nd February 1977 in respect of Muhammad Tufail were invalid and he could not be convicted. The conviction is, therefore, set aside. It would, however, be open to the prosecution to proceed against him in case that they desire to do so after obtaining the requisite sanction. The appeal of Mustaqeem is also to be allowed on the same technical ground and since it was a joint trial of Muhammad Tufail and Mustaqeem and Mustaqeem alone could not be tried before the Special Judge as he was not a public servant and since the trial of Muhammad Tufail has been held to be illegal after 22nd February 1977, and conviction has been set aside, therefore, as a necessary consequence of the same, the conviction against Mustaqeem is also being set aside. He can, however, be also proceeded against in case the prosecution desired to do so after obtaining the proper sanction against Tufail. Consequently, the two appeals are allowed and the convictions are set aside and the appellants acquitted in terms of the above judgment. The bail bonds of the appellants, stand discharged. Appeals allowed.