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Petitioner: MUHAMMAD ARSHAD JAVED VS Respondent: The STATE
Court Name: Sindh High Court Judge(s): Ajmal Mian, Syed Haider Ali Pirzada Title: MUHAMMAD ARSHAD JAVED vs The STATE Case No.:Criminal Appeals Nos. 43 of 1976, 265 of 1977; 62 and 63 of 1980 and 65 of
JUDGMENT
Reported As: 1985 P Cr. L J 310 Result: Order accordingly Judgment JUDGMENT ' AJMAL MIAN, J.-- The above 5 appeals are directed against the convictions and sentences passed by the learned Special Judge (Central Karachi) under the relevant section of the P.P.0 and section 5(2) of the Prevention of Corruption Act, 1947 (Act II of 1947) (hereinafter referred to as the Act). The above appeals were to be heard by a learned Single Judge of this Court as per the High Court Rules. However, the learned Chief Justice has referred a legal point, namely, who is entitled to grant sanction for prosecution in respect of Central Employees under section 6(5) of the Pakistan Criminal Law (Amendment) 1958 (hereinafter referred to as Act of 1958) to the bench. 2. Before taking up the above legal point, it may be pertinent to observe that it is an admitted position that all the appellants by virtue of the definition given in section 2(a) of Act of 1958 come under the administrative control of the Federal Government. It may be advantageous to give some relevant facts pertaining to the above appeals, namely:- Appeal No. and parties name.Name of Deptt. / designation.Date ofoffence.Date of letter addressed by SpI.Judge or date of sanction order. Cr. A.No.43/76 Muhammad Arshad JamilSub-Post Master. 12-8-1969 Letter dated22-5-1974 Cr. A . No. 256/77 Riaz AhmadU . D. C . & Machine operator of Machine No. 2 C.S.D Shop2-10-1975 letter dated 19-1-1977
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Cr.-A.No.62/80 Salamat AliS.D.O.2 Electricity WAPDA Hyd.21-6-1978 order dated 17-1-1979 Cr. A.No.63/80 Nisar Ahmed.Peon Electricity WAPDA Hyd.21-6-1978 Order dated17-1-1979 Cr. A.No.65/81 Mazhar AliBooking Clerk Pak. Railway.23-7-1973 upto18-8-1973letter dated 29-1-1980 3.(a) In order to resolve the above issue, it may be appropriate to refer to the relevant provisions of Act of 1958, namely sections 2(a), 2(b), 6(5) and 12(a), which read as follows:- "Section 2. Definitions:-- In this Act, unless there is anything repugnant in the subject or context:- (a) "appropriate Government" means in relation to a person serving in connection with the affairs of the Federal Government and any other person employed by the Federal Government or by a corporation or other body or organization set up, controlled or administered by, or under the authority of the Federal Government, the Federal Government, and in the other cases, the Provincial Government concerned: (b) "public servant" means a public servant as defined in section 21 of the Pakistan Penal Code and includes an employee of any corporation or other body or organization set up, controlled or administered by, or under the authority of the Federal Government" "Section 6(5).-Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, previous sanction of 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: ' Provided further that no such sanction shall be required in respect of a case transferred under the proviso to subsection (3) of section 4 or by virtue of subsection (3) or subsection (4) of section 5, if such sanction in respect thereof has been duly accorded or deemed to have been so accorded before the case is so transferred. Explanation:-- For the purpose of this subsection "appropriate Government" shall mean the Government which at the time of the commission of the offence was the appropriate Government". "12. Power to make rules:-- (1) The appropriate Government may frame rules to carry out the purpose of this Act. (2) In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for any of the following matters, namely:- (a) authorization of persons to exercise the power to sanction prosecution on behalf of the appropriate Government in respect of various grades of public servants." ' A perusal of the abovequoted section 2(a) indicates that the appropriate Government, which has been referred to in proviso to subsection (5) of section 6 of Act of 1958 has been defined in relation to a person serving in connection with the affairs of the Federal Government and any other person employed by the Federal Government or by a corporation or other body or organization set up, controlled or administered by, or under the authority of the Federal Government, the Federal Government, and in the other cases, the Provincial Government concerned. ' Whereas the definition of a public servant has been extended by including an employee of any corporation or other body or organization set up, controlled or administered by or under the
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authority of the Federal Government. ' It may also be noticed that under subsection (5) of section 6 it has been provided that notwithstanding anything contained in the Code of Criminal Procedure, 1898 sanction of the appropriate Government shall be required for the prosecution of a public servant. However, the first proviso to the above subsection provides that in cases where the complaint or report referred to in subsection (1) of section 4 of Act of 1958 is not accompanied by such sanction, the Special Judge shall, immediately on receipt of a 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 appropriate Government, such sanction shall be deemed to have been duly accorded. The second proviso of the above subsection is not relevant. It may also be noticed that the explanation to the above subsection further explains the term "appropriate Government" by providing that it shall mean the Government which at the time of the commission of the offence was the appropriate Government. Whereas subsection (1) of section 12 provides that the appropriate Government may frame rules to carry out the purposes of Act of 1958 and in particular without prejudice to the generality on the matters referred to therein including on the question of authorization of persons to exercise the power to sanction prosecution on behalf of the appropriate Government in respect of various grades of public servant. 4. In the present cases the main controversy is not that the appropriate Government is not the Federal Government, but the issue which has been raised by the learned counsel for the appellants is that the appropriate Government means "appropriate department" of the appropriate Government. As indicated from the facts referred to herein-above, the learned Special Judge Anti- Corruption had addressed his letters under proviso (1) to subsection (5) of section 6 to the Ministry of Interior, Government of Pakistan, and not to the Ministries under which the appellants were in administrative control or the requisite sanction has been accorded by the Home Ministry and not the concerned Ministry. It has, therefore, been urged by them that there was no valid sanction for prosecution. The reliance has been placed by them on the following cases: (i) Muhammad Ishaq v. The State PLD 1956 (W.P.) Kar. 192, in which the facts were that the appellant was working in the K.D.A office, he was prosecuted and sentenced under the anti- corruption law. In appeal before the High Court, it was urged that there was no valid sanction for porsecution. It may be observed that the learned Special Judge had addressed a letter under proviso (1) to subsection (5) of section 6 of Act of 1958 to the Secretary, Ministry of Home, the Government of Pakistan, which was received by the Ministry on 3rd October, 1961 a reply dated 30th November, 1961 was sent by the said Ministry to the Special Judge informing him that in view of the Notification No,1/10/61 Police-II(2), dated 10th November, 1961 power to sanction in the prosecution under reference was vested in the Officer competent to remove the accused from the office. It was also stated that his letter was forwarded to the Ministry of Rehabilitation and Works. The appeal was allowed as it was conceded by the learned Additional Advocate-General, apearing for the State that the letter addressed by the learned Special Judge was not addressed to the appropriate Government. (ii) The State through the Additional Advocate-General, West Pakistan and Ex-Officio Public Prosecutor, Karachi v. Aziz Ahmad and another 1975 P Cr.L J 105. In the above case, the appellant was working in the City Deputy Collector Office, Karachi in connection with the recovery of the Income-tax as arrears of land revenue. The appellant was prosecuted for taking bribery on the basis of the sanction accorded by the City Collector Office, Karachi, but the case was dismissed by the learned Special Judge on the ground that the sanction should have been accorded by the Central Government as the recovery of the Income-tax amount was on behalf of the Central Government. The State filed an appeal against the above acquittal judgment, which was allowed by a Division Bench of the erstwhile High Court of Sind and Baluchistan. It was held that since the
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appellant was a Provincial Government servant, the appropriate Government was the Provincial Government and not the Central Government. (iii) Muhammad Ibrahim v. The State 1976 P Cr.L J 1441, in which the facts were that the appellant working as a Supervisor in a Workshop at Lahore Cantt. He was convicted under anti-corruption law, thereupon he filed an appeal, in which inter alia it was urged that the learned Special Judge under proviso (1) to subsection (5) of section 6 of Act of 1958 addressed his letter to the Ministry. Of Home, for granting of requisite sanction though the appellant was an employee of the Ministry of Defence. It was further urged that even before the expiry of the sixty days from the date of receipt of the above letter the trial had commenced. Both the above grounds found favour with a learned Single Judge of the Lahore High Court and the appeal was allowed. (iv) Muhammad Islam Shah v. The State 1977 P Cr.L J 1061. In the above case the facts were that the appellant was a Revenue Patwari of Helga Kalowal, Teshil Chiniot, he was convicted and sentenced under the anti-corruption law. Against the above conviction, he filed an appeal in the High Court, in which it was urged that the sanction to prosecute was accorded by the Assistant Commissioner, Chiniot, who was not the appropriate Government. It was held that since the Collector under the relevant rules was the competent authority, the sanction accorded by the Assistant Commissioner was not valid. (v) Muhammad Tufail v. The State 1980 P Cr.L J 1206, in which the facts were that the appellant was working as Postman, he was prosecuted and sentenced under the anti-corruption law. Thereupon, he filed an appeal before the High Court of Sind at Karachi, in which it was urged that the learned Special Judge should have addressed his letter to the Director-General Post and Telegraph or Ministry of Communication and not to Ministry of Interior Government of Pakistan. The above argument was found favour with a learned Single Judge of. This Court. (vi) Unreported judgment namely, Muhammad Mazhar All v.The State Cr. Appeal No,231/79 decided by a learned Single Judge of this Court on 17-12-1981. In the above case the facts were that the appellant was an employee in the Postal Department, he was prosecuted and convicted under the anti-corruption law. Against the conviction and sentence, he filed an appeal in the High Court of Sind. It was urged before a learned Single Judge of this Court that the sanction under subsection (5) of section 6 of Act of 1958 was accorded by the Ministry of Interior instead of the Ministry of Communication, which plea was accepted and the appeal was allowed. The Advocate for the State conceded the above legal position. (vii) Atiq Ahmad v. The State 1982 P Cr.L J 815. In this case the appellant was working as an Assistant Cashier Incharge of the Utility Store Booth, at the State Bank Building, Karachi, he was prosecuted and convicted under the anti-corruption law. Thereupon, he filed an appeal in the High Court, in which it was contended that the sanction accorded by the Ministry of Interior was not invalid as the Finance Ministry was the concerned Ministry. The above contention found favour with a learned Single Judge of this Court and the appeal was allowed. (viii) Syed Afaq All v. The State and 3 others 1983 P Cr.L J 897, in which the facts were that the appellant, who was working in the office of Director National Saving at Hyderabad was convicted and sentenced under the anti-corruption law, he filed an appeal against his conviction in the High Court, in which inter alia it was contended that the learned Special Judge anti-corruption addressed his letter to the Ministry of Interior instead of to the Finance Ministry, which contention was upheld by a learned Single Judge of this Court and the appeal was allowed. (ix) Abdul Rashid v. The State 1983 P Cr.L J 353, in which the appellant was as Assistant Sub- Inspector Police, he was prosecuted and sentenced under the anti-corruption law. Against which, he filed an appeal in the High Court. It was urged that the sanction for prosecution accorded by the Superintendent Police was not the sanction of the appropriate Government as under the Bombay
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Police Manual, the I.G. Sind Police was the competent authority. The above position was conceded by the counsel for the State and the appeal was allowed. (x) Aftab Ahmed v. The State and another 1984 P Cr.L J 735. In the above case the appellant who was working as the National Saving Officer, Hyderabad was convicted and sentenced under the anticorruption law, the appellant filed an appeal in the High Court, which was allowed on the ground that the learned Special Judge addressed his letter to the Ministry of Interior, for getting sanction instead of to. The Ministry of Finance, which was the relevant Ministry. 5. After having dealt that the above cases, it may be pertinent to refer to the following 3 cases, which have some bearing, which were referred to by the learned counsel for appellants as well as by the State counsel. (i) Khalid Waheed and another v. The Crown PLD 1956 (W.P.) Lah. 541 in which the facts were that the two appellants were working in the Income-tax Office, Multan, they were prosecuted and convicted under the anti-corruption law.They filed an apeal against their convictions in the Lahore High Court, it was contended that in terms of section 17(1) of the Government of India Act sanction for prosecution should have been given in the name of Governor-General and not by a Deputy Secretary of the Ministry of Interior, Government of Pakistan. The contention was repelled by Rehman, C.J. (as he then was), it was held that the above provision was directory and that under the relevant business rules, the competent authority was the Deupty Secretary. It may be advantageous to reproduce hereinbelow a passage from the above judgment, which reads as follows:- "Mr.Nazir Ahmad Khan, who appeared for the appellants did not challenge their conviction on the merits. He, however, raised a legal point. The order of sanction for the prosecution of the two appellants emanated from the Ministry of Interior, Government of Pakistan, under the signatures of Mr. Hamid-ud-Din Ahmed, Deputy Secretary. After setting out the allegations against the two accused, the order recited that the Central Government was pleased, under subsection (5) of section 5 of the Pakistan Criminal Law Amendment Act, 1948 to sanction the prosecution of Khalid Waheed and Badr-e-Alam for the offences falling within section 162, P.P.0 and section 5 of the. Prevention of Corruption Act, 1947, in the Court of the Special Judge, Lahore. Mr.Nazir Ahmad Khan did not controvert the fact that the Deputy Secretary had authority under the rules of business framed under section 17 of the Government of India Act, 1935, to sign and authenticate an order on behalf of the Central Government. He, however, contended that the order of prosecution was not a valid order inasmuch as it was not expressed to be issued in the name of the Governor-General, as was required by subsection (1) of section 17 of the Constitution Act ' It seems to me, however, that the provision in question is directory rather than mandatory, I am therefore, inclined to hold that non-conformity with the provisions of subsection (1) of section 17 would not invalidate the order if in fact it proceeded from the appropriate authority after a consideration of the relevant facts. I am fortified in this view by a reference to certain authorities cited at the Bar, which I proceed to examine." (ii) Muhammad Sarwar v. The State PLD 1969 SC 278. In the above case the facts were that the appellant, who was working as a Reader to the Settlement Commissioner, was convicted and sentenced under the anti-corruption law, he filed an appeal, which was dismissed by the erstwhile High Court of West Pakistan, Lahore. The appellant went in an appeal before the Hon'ble Supreme Court, in which inter alia it was contended that the trial was in violation of certain provisions of the Cr.P.C. However, this contention was repelled and the appeal was dismissed. In the above case the reliance was placed by the State on the instructions to the Special Police Establishment issued by the Central Government under the provisions of the Pakistan Police Establishment Ordinance, 1948. The above instructions inter alia contained the procedure relating to investigation of an anti- corruption case and its prosecution. It was held by the Supreme Court that the above instructions
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had a force of law and in case of inconsistently between the instructions and the provisions of sections 154, 156, 157 and 173, Cr.P.0 the former was to prevail. It may be advantageous to reproduce the relevant observations on the point, which read as follows: "After the investigation is completed the Special Police Establishment is required to submit to the Ministry of Interior in the case of Central Government servants and to the Chief Secretary of the Provincial Government in the case of Provincial Government servants full facts of the case, the opinion of the legal adviser, the draft sanction order, a charge-sheet and a brief statement of the allegations to be supplied to the accused Government servant. Then follow provisions of giving a show-cause notice to the Government servant concerned why he should not be prosecuted in a Court of law. After the reply has been received the Government may decide either to prosecute him in a Court of law or take departmental action against the Government servants. ' The instructions reproduced above were issued in pursuance to the power conferred on the Central Government by subsections (2) and (3) of section 2 of the Pakistan Special Police Establishment Ordinance, 1948. The powers of the members of the Pakistan Special Police Establishment for the purpose of "inquiry" or "investigation" of offences, bribery and corruption are, therefore, regulated by these instructions notwithstanding anything to the contrary in the Code of Criminal Procedure. As seen paragraph 5 of the instructions envisages secret inquiry before the registration of the case. Even after the case is registered no report under section 173 of the Code is to be sent to the Magistrate having jurisdiction in the area where the offence has taken place. Instead a statement of facts and the proposed charge-sheet and a draft order sanctioning prosecution are sent to the Ministry of Interior or the Provincial Chief Secretary as the case may be whereupon a show-cause notice is issued to the accused. It is then for the authority concerned to decide whether to prosecute the Government servant in a Court of law or to take a departmental action only. All these instructions which have the force of law are in derogation of the provisions of sections 154, 156, 157 and 173 of the Code of Criminal Procedure and to the extent of inconsistency override the group of sections in Chapter XIV on which the learned Judges based their majority view." ' It was also be observed that the rules framed under the West Pakistan Anti-Corruption Establishment Ordinance XX of 1961 also provide the procedure of finalising a case under anti- corruption law. Reference has been made by the Honourable Supreme Court in the above case to the above rules. (iii) Rashid Ahmed v. The State PLD 1972 SC 271. In the above case the facts were that the appellant was working as a Cashier in the Office of Cantonment Board Wah, he was convicted and sentenced under the anti-corruption law. Against the above conviction and sentenced an appeal was filed in the High Court, in which it was urged that the sanction for porsecution was not accorded by the appropriate Government i.e the Central Government, but was accorded by the Executive Engineer, Wah on the basis of a notification issued by the Provincial Government. The High Court did not allow the appellant to raise this plea on the ground that the same was not raised before the trial Court. Upon an appeal before the Supreme Court, the appellant's appeal was allowed and it was held that the High Court was in error in not allowing the appellant to raise the plea about the validity of the sanction and that the sanction accorded by the Executive Officer, Wah Cantt. Was without jurisdiction as the Wah Cantt. Was under the Central Government and the sanction could be accorded by the Central Government or by any officer authorised by it. It was further held that the prosecution was without valid sanction. It may be advantageous to reproduce hereinbelow the relevant observation on the above point. "If the case of the appellant is considered in the light of the above observation, it is quite clear that the sanction accorded by the Executive Officer, Wah Cantonment was without jurisdiction, Wah Cantonment is under the Central Government and under section 6(5) of the Pakistan Criminal Law
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Amendment Act, the sanction could only be issued by the Central Government or by any Officer authorised by it. Under section 2(a) of the Pakistan Criminal Law Amendment Act, the appropriate Government is the Central Government and the sanction in this case should have been issued by the Central Government. In the absence of any such sanction the trial of the appellant appears to be illegal and without jurisdiction. The Special Judge could not take cognizance of the case without the proper sanction." 7. It was vehemently urged by Mr. Ibrahim Memon, learned Additional Advocate-General appearing for the State in one of the above appeals that the cases relied upcn by the counsel for the appellants have not taken into consideration, the relevant instructions issued by the Central/Federal Government and the business rules framed by the Federal Government under 1962 and 1973 Constitution, and, therefore, they had no relevancy. We may again observe that, in subsection (5) of section 6 the' words used are "appropriate Government" and not "appropriate department". The definition of the above term given in section 2(a) of Act of 1958 also makes it clear that the intention was to convey which of the Governments is' to grant sanction, namely whether the Federal Government or a Provincial Government. Once it is shown that an accused is an employee of the Federal Government in terms of Act of 1958, the sanction to prosecute is to be accorded by the Federal Government, which functions through the ministries/divisions for the purpose of administrative convenience. The work to each ministry or division is assigned under the Business Rules or the instructions issued by the Federal Government. The answer to the question, which of the Ministry is to accord sanction under subsection (5) of section 6 of Act of 1958, is to be ascertained with reference to the relevant rule, if any, framed under section 12 of Act of 1958 or the instructions or the Rules of Business framed by the Federal Government and not with reference to the factum under which Ministry 'the accused public servant is in administrative control for appointment…
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