P L D 1963 (W (PLP)

A. A.‑G. for Respondent No.

1. M. A. Hameed A. P. P. for Respondent No.

2. Dates of hearing : 27th, 28th February 1963 and 1st March 1963, FARUQUI, J.‑The facts material for the consideration of these two revision applications, one by the accused Mahboob Ahmad and the other by the State, are these : An offence under section 161, P. P. C. read with section 5 (ii) of the Prevention of Corruption Act was alleged to have been committed by Mahboob Ahmad son of Mashooq Ahmad Khan on 5‑8‑61 in respect of which the Special Police presented a challan on 29‑12‑61 before Mr. Ghulam Hyder Pir, Special Judge (Central) Karachi. This challan was not accompanied by a sanction as required by subsection (5) of section 6 of the Pakistan Criminal Law (Amendment) Act, 1958 and, therefore, in pursuance of the proviso to that subsection the learned Special Judge wrote to the Commissioner, Karachi for a sanction. It is common ground that the Commissioner was competent to grant this sanction. On 28‑2‑62 Mr. Pir finding that the accused had by virtue of section 8 of the President's Order No. 9 of 1961 attained the status of the servant of the Provincial Government, he had no jurisdiction to try the case against him as he was Special Judge (Central). He, therefore, sent the case to the file of the Sessions Judge, Karachi who had been appointed ex officio Special Judge within his sessions division for the employees of the Provincial Government by Notification dated 7th May 1960. He was also appointed Senior Special Judge for Karachi and he shall be referred to as such in this order. Having received this case Mr. Awan, the Senior Special Judge, wrote to the Commis sioner, Karachi Division on 24‑5‑62 asking for sanction for the prosecution of the accused for the aforesaid offence. This sanction was not received and on 7th June 1962, the Commissioner passed an order which was communicated to the learned Senior Special Judge. In this order the Commissioner purported to withdraw the prosecution against Mahboob Ahmad in exercise of his powers under subsection (4) of section 10 of the Pakistan Criminal Law (Amendment) Act read with clause 5 of the West Pakistan Administration (Merger of the Federal Territory of Karachi) Order, 1961. This order was communicated besides the Senior Special Judge to the S. P. Special Police Establishment and it was stated in the endorsement that "it was not considered fit to accord prosecution sanction in respect of Mr. Mahboob Ahmad Khan". When this letter was received by the Senior Special Judge it was contended before him by the Prosecuting Inspector, Special Police Establishment that the Commissioner, Karachi Division was not empowered to withdraw the pro secution. The learned Senior Special Judge accepted this contention by his order dated 18‑8‑

62. The ground upon which he came to this conclusion was that by notification dated 17th January 1959, the Chief Commissioner of Karachi (who has been succeeded by the Commissioner, Karachi Division) was merely delegated the power to sanction prosecution and no power had been delegated to him for withdrawing prosecution. Mahboob Ahmad has challenged this order in his Revision Application No. 424/62. The other Revision (No. 667/62) is by the State through the Additional Advocate General Mr. Khalid Ishaq in which the order of Mr, Ghulam Hyder Peer, dated 28‑2‑62 by which he had held that he had no jurisdiction and had, therefore, sent the case to the Senior Special Judge, was challenged. The ground of this challenge was three‑fold : firstly, that once the charge‑sheet had been submitted in the Court of the Special Judge (Central) he was competent to try this case and that this jurisdiction was not taken away if the accused had, after the presentation of the charge, become a Provincial Government servant, Secondly, that the learned Special Judge (Central) had no power to transfer the case to the Court of the Special Judge (Provincial). The third ground was directed against the expression "let off" which was used by Mr. Pir while he was transferring the case to the Court of the Special Judge (Provincial).

2. As the order of Mr. Ghulam Hyder Pir, dated 28‑2‑62 is the earlier in point of time, I would deal first with the revision filed by the State. As has been stated earlier the offence was alleged to have been committed on 5‑8‑61 and the charge sheet was presented in the Court of Mr. Ghulam Hyder Peer on 24‑1‑

62. Mr. Pir was appointed Special Judge (Central) by notification dated 29th July 1961, but before this date Karachi had been merged into West Pakistan by virtue of the President's Order No. 9 of 1961. The merger took effect as from 1st July 1961. Under Article 8 of the said Order all persons serving immediately before 1st July 1961, under the Central Government in connection with such affairs of the "specified territory" (that is, Federal territory) as would have been the affairs of the Province had the specified territory been a Governor's Province, came to be deemed to be persons serving under the Government of West Pakistan. In ground No. 1 of the revision filed by the State it was admitted that the accused Mahboob Ahmad who was employed in the Civil Supplies Department at Karachi had become a Provincial Government servant. The objection, however, was that since this happened after the charge‑sheet had been presented the learned Special Judge (Central) had not lost the jurisdiction which he already assumed. There is no substance in this contention. The offence itself in this case is alleged to have been committed on 5‑8‑61 which was after the merger of Karachi into West Pakistan which took effect on 1st July 1961. Mr. Ghulam Hyder Pir was himself appointed on 29th July 1961, as a Special Judge (Central) by the notification of the Central Government. There was thus no notification by the Appropriate Government as required by section 3 (1) of the [Pakistan] Criminal Law Amendment Act so as to give jurisdiction to Mr. Pir in respect of a Provincial Government servant. He, therefore, could not assume juris diction in this case.

3. The second and third grounds of the revision are not material. It is true, Mr. Pir had no power to transfer the case to the Special Judge (Provincial) but the case in any case would have gone to him and in fact the accused appeared before him and he assumed jurisdiction and wrote for a sanction for prosecution to the Commissioner. As to the third ground it is correct that Mr. Pir wrongly used the expression "let off" but this was merely an error of language because he did by the same order direct the accused to appear before the Senior Special Judge. This disposes of the criminal revision filed by the State against the order of Mr. Ghulam Hyder Pir, dated 28th February 1962.

4. Coming to the revision filed by the accused Mahboob Ahmad the short point upon which Mr. Obaidur Rahman, the learned counsel for the petitioner, addressed us was that even if it was assumed, though not admitted, that the Commissioner, Karachi Division was not empowered to withdraw the pro secution under section 10 (4), his order dated 7th June 1962 would constitute a refusal to grant sanction which had been asked from him for the prosecution of the accused. To this Mr. Khalid Ishaq replied by saying that Mr. Pir had already written for such a sanction on 9‑1‑62 and since sanction was not accorded within 60 days such sanction shall be deemed to have been accorded within the meaning of the proviso to sub section (5) of section 6 of the [Pakistan] Criminal Law Amend ment Act, XL of 1958. The argument was that if such a sanction had, by the effect of the proviso, been deemed to have been accorded then this prosecution could only have been withdrawn under section 10 (4) and in this respect the Commissioner had not been empowered. We have already held that Mr. Ghulam Hyder Pir had no power to assume jurisdiction in this case and from this . it must follow that the letter written by him for the sanction on 9‑1‑62 must be treated as a nullity and the period of 60 days cannot be calculated as from that day. It must then be noticed that Mr. Awan asked for this sanction on 24‑5‑62 and so when the Commissioner passed his order dated 7th June 1962 the period of 60 days had not expired and when on that day he ordered the withdrawal of the case we are of the opinion that in fact he was refusing the sanction which was asked of him. It has to be remembered that the sanction contemplated under the proviso to subsection (5) of section 6 is only "deemed to have been accorded" if it is neither received nor refused within 60 days of the letter written by the Special Judge to the Appropriate Government in this regard. The expression "deemed to have been accorded" only means that though in fact it has not been accorded it shall be so assumed for the purposes of the Act. But when the Commissioner, in answer to a request for sanction orders the withdrawal of the case itself, he cannot be deemed to have granted the sanction. This aspect of the case was not con sidered by the learned Senior Special Judge. Subsection (5) of section 6 lays down that previous sanction of the Appropriate Government is required for the prosecution of public servant. We have construed the order of the Commissioner dated 7th June 1962, as amounting to refusal to grant such a sanction. In this view of the matter the proceedings pending before the learned Senior Special Judge must be quashed and we order accordingly. The criminal revision filed by the State is rejected. K. B. A./A. H. Order accordingly.