This is a petition under section 561-A, Cr. P.C. By Muhammad Yaqub, petitioner, for quashment of criminal proceedings pending against him under section 5 (2) of the Prevention of Corruption Act, 1947, in the Court of the Senior Special Judge, Anti-Corruption, Lahore, Camp at Gujranwala.
2. The brief facts of the case are that on 25-6-1977, one Abdul Hameed son of Muhammad Sadiq, resident of Joyan Wala, Tehsil and District Gujranwala, submitted a complaint against Muhammad Yaqub, petitioner, alleging that he was holding immovable properties beyond the scope of his known sources of income, on which an inquiry was initiated by the Anti-Corruption Establishment.
The Circle Inspector, Anti-Corruption Establishment, Gujranwala, came to the conclusion that the petitioner had not submitted the prescribed declaration in respect of the purchase of a piece of land and that the petitioner had only contravened the Departmental rules. He further held that no evidence was forthcoming to show that the petitioner ever indulged in misconduct/corrupt practices during the whole period of his service. Accordingly, he submitted that a Departmental inquiry be held against him. In the meantime, on 19.10-1978 the petitioner was compulsorily retired from service. The petitioner's inquiry report was placed before the Anti-Corruption Committee, which found that the petitioner was in possession of property valuing many lacs (the details of which are given in the F. I. R. Annexure 'C' to the petition), which properties were held in the name of his wife and children and other near relatives, the value of which properties was obviously disproportionate to his known sources of income, which he could not account for. Accordingly, the petitioner was challaned. During the course of trial, the petitioner filed an application under section 265-K, Cr. P. C. Before the trial Judge for his acquittal, which was rejected by the learned trial Judge on 8-3-1980. Being aggrieved by the proceedings continuing against him. The petitioner preferred a petition for quashment, which is now before me for disposal.
3. The learned counsel for the petitioner, in support of his petition, has submitted that the petitioner's appeal against his compulsory retirement was pending adjudication before the Punjab Administrative Tribunal and that since the said appeal had as yet not been decided, for the limited purposes of deciding .Tether sanction for prosecution was required under section 6 (5) of the Pakistan Criminal Law (Amendment) Act, 1958, his client should be deemed to be in service. In the said connection Rashid Ahmad v. State (1) was cited. It was further submitted that the proceedings against the petitioner were begun without any formal sanction having been secured from the appropriate Government for the petitioner's prosecution and, that as such, the proceedings were void. It was, therefore, prayed that the proceedings pending against the petitioner deserved to be quashed.
4. The learned Advocate-General, Punjab, who appeared for the State, strongly opposed the petition. The learned Advocate-General submitted that the rule in Rashid Ahmad's case with regard to the pendency of the appeal only related to appeals and other proceedings of a Departmental nature which were taken by civil servants for securing redress from their own parent Departments. It was further submitted that statutory appeals filed under section 4 of the Punjab Administrative Tribunals Act, 1974, against final orders, whether original or appellate, made by Department authorities in respect of the terms and conditions of their service, were not covered by the principle laid down in Rashid Ahmad's case, as the Administrative Tribunal constituted under the Punjab Administrative Tribunals Act, 1974, was intended to replace the old remedy of civil suits, which were previously filed by civil servants to seek redress of their grievances after all attempts made by them before their parent Departments had failed. In this connection, it was submitted that the petitioner, who had preferred an appeal and a review petition before his departmental authority had failed in securing relief and it was thereafter that he had filed an appeal before the Administrative Tribunal constituted under the Punjab Administrative Tribunals Act, 1974. It was lastly contended, on the principle laid down by the Supreme Court in Nazeer Hussain Shah v. The State (2), Ataur Rehman v. The State (3) and Muhammad Abbas v. The State (4), that sanction was not necessary in the instant case, as the petitioner had ceased to be a civil servant when cognizance of the case was taken by the Special Judge, Anti-Corruption. In the light of these cumulative facts, it was urged that the petition deserved to be dismissed.
5. In the instant case, it cannot be denied that the petitioner was compulsorily retired on 19-10-1978 and that the challah was not filed before the Special Judge, Anti-Corruption, till 22-9-1979. In the challan, it was also mentioned that as the petitioner had been retired from service, therefore, sanction for his prosecution was not necessary. It thus appears that the same was neither sought initially by the Anti-Corruption Establishment, nor granted by the appropriate department nor sought by the Special Judge under section 6 (5) of the Pakistan Criminal Law Amendment Act, 1958, before taking cognizance of the case. There is authority for th view that where a person has ceased to be a public servant on the dat when cognizance of his case is taken by the Special Judge under the Pakistan Criminal Law Amendment Act, 1958, sanction for prosecution is not necessary. Nazir Hussain Shah v. The State, Ataur Rehman v. The State and Muhammad Abbas v.
The State support such a view.
(1) PLD 1972 SC 271 (2) PLD 1965 SC 139
(3) PLD 1967 SC 23 (4) 1974 SCM R 445
6. In the present case, however, a further legal question arises. It is contended that an appeal of the petitioner under section 4 of the Punjab Administrative Tribunals Act, 1974, against his compulsorily retirement is pending with the Punjab Administrative Tribunal and that on the principle laid down by the Supreme Court in Rashid Aittnad v. The State the petitioner, for the limited purpose of determining whether sanction is necessary, should be treated as being in service and that, therefore, the sanction for his prosecution by the appropriate authority was necessary. To understand this submission, Rashid's case requires examination. In Rashid's case, the appellant, who was a cashier in the office of the Cantonment Board, Wah, was prosecuted before the Special Judge, on the basis of a sanction granted by the Executive Officer under a Notification issued by the Provincial Government. On behalf of, the appellant, it was contended before the Supreme Court that the appropriate Government in the appellant's case was the Central Government, that the sanction granted by the Executive Officer on the basis of the Notification issued by the Provincial Government was not a proper legal sanction, that an appeal of the appellant before the Director, Military Lands and Cantonments, against his dismissal, was still pending with the Appellate Authority, that in view of the pendency of his appeal, the appellant was still in service of the respondent and that, therefore, the sanction of the appropriate Government was necessary. For the State, it was urged that when the Special Judge took cognizance of the case, the Notification of the Central Government authorising the Executive Officer to grant sanctions for prosecution of servants of the Cantonment Board was present and, therefore, the Executive Officer's earlier sanction was valid and that as the appellant was dismissed from service on 28-1-1961, he was not a public servant on 29-9-1961, when the Court took cognizance of the case, and, therefore, no sanction for his prosecution was necessary. The Supreme Court held that as on 29-9-1961, when the Court took cognizance of the case, the Notification of the Central Government dated 10-11-1961 did not exist, the earlier sanction granted under the Provincial Government's Notification was of no avail to the State and that as the appeal of the appellant was still pending and he was still in service of the State, the principles enunciated by it in Nazir Hussain Shah's ex.: and Ata-ur-Rehman's case had no application to the facts of the case before it and that the appellant was still in service of the respondent and sanction was necessary. The only point for determination in this case is whether the principle laid down by the Supreme Court in Rashid's case is only applicable to appeals and proceedings of a departmental nature which a civil servant (who is dismissed from service, or has been retired, or has otherwise been punished) may avail under the Rules of his Department, as contended by the Advocate-General, or includes even appeals filed under the Punjab Administrative Tribunals Act, 1974. To answer this point, it is necessary to understand the ratio in Rashid's case. The right of a civil servant who is dismissed or compulsorily retired from service or has otherwise been punished, to prefer an appeal or memorial against the action taken against him, or to file a further review or representation thereafter, is generally provided by the Rules of his department. The rules seldom provide for maintenance of status quo pending the determination of such an appeal, memorial, review or representation. In cases where a civil servant is dismissed or compulsorily retired, in almost all cases he languishes outside the service, bereft of all rights and privileges, till his appeal or representation succeeds. For all practical purposes, he is treated as not being in service. In this background, the view of the Supreme Court that a public servant who has been retired from service and has filed an appeal must be treated as in service, should be read in the limited context in which it has been made, namely, that no sooner a public servant who has been retired has preferred an appeal, his original case of retirement must be treated as having become sub judice again and, for the limited purposes of deciding whether sanction is necessary, he should be figuratively treated as being in service. If this be the ratio, then the the appeal filed by a civil servant before the Administrative Tribunal against his retirement, will be covered by the principle laid down in Rashid's case. Section 4 of the Punjab Administrative Tribunal's Act, 1974, provides a clear statutory appeal to a civil servant against any final order, whether original or appellate, which may be made by his departmental authority in respect of the terms and conditions of his service, subject of course to certain exceptions. This remedy is basically a statutory extension of his departmental remedy, for, it cannot be denied that the Administrative Tribunals comprise senior officers of the service who are well trained to examine the cases of civil servants and the object of the Punjab Administrative Tribunals Act, 1974, is to provide a forum so that civil servants may have their cases examined afresh "by their own senio peers". In view of this position, sanction of the appropriate Department for the prosecution of the petitioner was necessary. It appears that the criminal proceedings against the petitioner have been taken without such a sanction. The learned Senior Special Judge, Anti-Corruption, could no have taken cognizance of the offence. His proceedings are, therefore, without jurisdiction and deserve to be set aside.
7. For the foregoing reasons, this petition is accepted and the criminal proceedings taken from the date of framing of the charge until date against the petitioner under section 5 (2) of the Prevention of Corruption Act, 1947, in the Court of the Senior Special Judge, Anti-Corruption, Lahore, Camp at Gujranwala, are hereby set aside. The learned trial Judge will now secure the said sanction from the appropriate authority under section 6 (5) of the Pakistan Criminal Law (Amendment) Act, 1958, and proceed from that point onwards in the case. A copy of this judgment shall be sent by the office to the Director, Anti-Corruption Establishment, Punjab, Lahore so that they may take necessary steps to secure the sanction, in view of the above findings.