P L D 1962 (W (PLP)

Mr. Halim, the learned counsel for the petitioner, has urged before me that the learned Special Judge had no jurisdiction to hold a preliminary inquiry against the respondents. Under the law, on receipt of the complaint, he should have approached the. Central Government for obtaining sanction to prosecute the' respondents and could not after holding preliminary inquiry; come, to the conclusion whether a prima facie case was made out against them or not: He has, therefore, urged that the learned `Special judge was not justified in discharging respondents Nos. 2 and 4 and in seeking sanction from .the Central Government, against respondent No. 3 alone. The learned counsel has further urged before me that the Special Judge under the Criminal‑Law Amend ment Act of 1958, is deemed to be a Court of Session trying cases without the aid of assessors or a jury and is not an ordinary Magistrate under the Criminal Procedure Code. According to the learned counsel, therefore, the provisions of section 202 Cr. P. C. in Chapter XVI had no application before him. Both Mr. Abdul Kader Sheikh, the learned Assistant Advocate‑General end Mi Talmiz Burney, the learned counsel for the respondents, have strongly contested the arguments advanced on behalf of the petitioner. The question raised in this revision application is not free from difficulty The answer to the objection whether the learned Special judge has jurisdiction to hold a preliminary inquiry for finding out a prima facie case on a complaint filed before him under the above‑mentioned provision of law depends on the provision of the Criminal Law Amendment Act of 1958. On a Perusal of these provisions it is absolutely clear that the learned Special Judge is a Court of Session for all intents and purposes except that Chapters 18 and 38 of the Criminal Procedure Code are not applicable to proceedings pending before, him. The provisions of the Code of Criminal Procedure, except the above‑men tioned chapters, are applicable to the proceedings before him in so far as they are not inconsistent with the provisions of the Pakistan Criminal Law (Amendment) Act of 1958. The question, therefore, arises, whether the provisions of Chapter XVI of the Criminal Procedure Code are in, any way inconsistent with the provisions of the Criminal Law Amendment Act of 1958, so that they are not applicable to the proceed ings pending before the Special Judge, under the above‑mentioned enactment. It is doubtful whether the learned Special Judge is entitled to take cognizance of any offence against a public servant under the above‑mentioned provisions of law on the complaint of a private party. But assuming that he is competent to take cognizance of any offence committed or deemed to have been committed within his jurisdiction upon a private complaint, the jurisdiction to hold a preliminary inquiry for finding out a prima facie case is not specifically conferred on him under the Crimi nal Law (Amendment) Act of 1958. Under section 4(1) of this Act he is empowered to take cognizance of any offence committed are deemed to have been committed within his jurisdiction upon receiving a complaint of facts which con stitute such offence or upon a report in writing of such facts made by any police officer, but under section 6(5) it is specifically provided that notwithstanding anything contained in the Code of Criminal Procedure, or in any other law, previous sanction of the appropriate Government is a condition precedent for the prosecution of a public servant for an offence under this Act. Then in the proviso to this section it is 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 the sixty days of the receipt of the letter by the appropriate Government such sanction shall be deemed to have been duly accorded." Thus, it is quite clear from the above‑mentioned proviso that immediately the Special Judge receives a complaint or report for prosecuting a public servant, it is not open to him to proceed in the matter unless and until previous sanction is obtained from the appropriate Government for the prosecution of such public servant. Impliedly under the above‑mentioned provision of law the learned Special Judge is not empowered to hold any inquiry whatsoever for finding out a prima facie case against such public: servant nor is he competent to decide the question against whom he should seek sanction and against whom he should not seek sanction. The scheme of the Criminal Law Amendment Act limits the jurisdiction of the Special Judge in this respect. The only step he can take on receiving the complaint or the police report is to immediately write to the appropriate Government for obtaining sanction to prosecute the public servant concerned. The question whether the public servant concerned should be prosecuted or note is entirely and completely within the jurisdiction of the appropriate Government. In my opinion the learned Special Judge has no say in the matter. It is not for him to decide whether a prima facie case has been made out against the public servant or not. It was urged by Mr. Abdul Kadir Shaikh that there is nothing in the provisions of the Criminal Law Amendment Act which takes away the jurisdiction of the Special Judge to hold inquiry under Chapter XVI of the Criminal Procedure Code. He has referred me to the various provisions and urged that this is an inherent right of Criminal Courts for taking cognizance of a case. He contended that a Special Judge, although deemed to be a Court of Session, holds the position of ordinary Magistrates and is competent to hold preliminary inquiry for finding out whether a prima facie case has been made out against the alleged accused. The learned Assistant Advocate‑General further argued that the holding of a preliminary inquiry is not in the nature of a prosecu tion but is only for the satisfaction of the Special Judge for taking action under the proviso of section 6 of the Criminal Law Amend ment Act. The contentions of the learned Assistant Advocate General have not impressed me. There are very weighty reasons for that. If the contention of the learned Assistant Advocate -General, is accepted, the fate of the public servants for prosecution under the above‑mentioned provision of law will depend on the decision of the Special Judges. In my opinion the provisions of the above‑mentioned enactment have not laid down any such thing and in public interest also such decision cannot be consi dered to have been vested in the Special Judge acting under the Criminal Law (Amendment) Act, 1958. There is not the slightest doubt in my mind that the question whether a public servant should be prosecuted under the anti‑corruption laws is entirely within the discretion of the Central Government and in no, other body. In the light of the above discussion, it is perfectly clear to me that the learned Special Judge was not justified in dropping proceedings against respondents 2 and

4. It was not competent for him to decide the question whether these persons had prima facie committee any offence under the anti‑corruption laws. It was his bounden duty, on the receipt of the private complaint, to obtain sanction from the appropriate Government before taking any proceedings against these gentlemen. It seems to me that they learned Special Judge in this respect has exceeded his jurisdiction and his order in this respect cannot be sustained. Consequently the impugned cider cannot be sustained and is liable to be quashed. Mr. Talmiz Burney drew my attention to the fact that the sanction sought to be obtained by the learned Special Judge against respondent No. 3 has been refused. He has produced before me a typed copy of the order of the learned Special Judge dated the 19th of April, 1962, which shows that the appropriate Government had declined to give sanction to prosecute Abdul Rashid Bhatti. The learned Assistant Advocate‑General is not in a position to admit this fact. The record of the case also before nee does not throw any light on this question. If this is so there will be no need for the Special Judge to proceed against this gentleman under the proviso of section, 6 of the Criminal Law Amendment Act but so far .as the other respondents are, concerned, the learned Special Judge must comply with the above mentioned provisions. He should forward the complaint filed against the other respondents to the appropriate Government for obtaining sanction. If the sanction is granted to prosecute them, he can further proceed against them or drop the proceedings against them as he deems fit. In the result the impugned order is quashed and the case is remanded back to the learned Special Judge for taking appropriate steps. S. S./A. H. Case remanded.