' SYED INTIKHAB HUSSAIN SHAH, J.--- This criminal appeal is directed against the order, dated 12-10- 2004, passed by the then learned Special Judge Central, Rawalpindi, whereby he while dismissing the private complaint filed by the present appellant acquitted the respondents/accused.
2. The facts forming background of this appeal are that a criminal case under sections 420, 406, P.P.C. Was registered at the instance of present appellant against respondent No,1 at Police Station Golara Sharif vide F.I.R. No,127, dated 21-10-1994. Being dissatisfied with the attitude of the local police the appellant filed a private complaint against the respondents/accused under sections 420, 468, 471, 409, P.P.C. Read with section 5(2)/47, Prevention of Corruption Act, 1947 on 7-12-1996 in the Court of learned Special Judge Central, Rawalpindi, by levelling allegations in the manner that he entered into an agreement with Pakistan Medical Cooperative Housing Society through Chairman Dr. Muhammad Aslam Khan Niazi. The complainant purchased and mutated land measuring 115 Kanals in the name of society and received amount through cross-cheques except Rs,57,20,000 as price of land measuring 27 Kanals, 5 Marlas. It was added that Dr. Enayat Hussain Malik in connivance with others drew the said amount fraudulently and dishonestly by issuing two cheques in his own name. The learned Special Judge Central, Rawalpindi after summoning the respondents/accused vide order, dated 3-1-2002 acquitted the respondents/accused by observing that the complaint could not proceed in the light of the refusal of the Government of Pakistan to grant sanction for prosecution.
3. The appellant assailed the aforesaid order before the Honourable Lahore High Court, Rawalpindi Bench, Rawalpindi through P.S.L.A. No,12 of 2002 and the same was converted into Criminal Appeal No,628 of 2002. The Honourable High' Court decided the said appeal and remanded the case to the learned Special Judge Central, Rawalpindi with the direction to record his decision on the following-points:---
(i) Whether the complaint against respondents is competent in the Court of learned Special Judge for the allegations that the respondents are not public servants.
(ii) Whether prior sanction is required for prosecution of the respondents.
(iii) The effect of provisions of section 6(5) of Criminal Law Amendment Act, 1958.
4. After remand, the learned Special Judge Central, Rawalpindi, heard the learned counsel for the parties and dismissed the complaint filed by the appellant by holding that the same was not competent before the said Court etc. Feeling dissatisfied by the impugned order, the appellant preferred P.S.L.A. Which was converted into appeal vide order, dated 19-3-2007.
5. The learned counsel for the appellant has argued that the impugned order is liable to be set aside inasmuch as the order passed by the learned Special Judge Central, Rawalpindi is against the law and facts. According to him the Court below has failed to consider that in terms of section 65(b) of the Cooperative Societies Act, 1925, the respondents/accused being office-bearers of Cooperative Society would be public servant within the meanings of section 21, P.P.C. And instant complaint was competent before the trial Court. He urged that the learned Court below failed to discuss the points referred by the Honourable Lahore High Court at the time of remanding the complaint. It is further contended that the impugned order is without lawful authority/jurisdiction and does not qualify to be a judicial order. It is next contended that the complaint could not be rejected without recording of evidence of the complainant after its admission; that the impugned order is based on the decision of a civil suit for recovery. The criminal proceedings have different course and have no concern with the civil matters and the criminal liability can only be adjudicated by the proper forum; that the complainant was technically knocked out by the trial Court. He summed up his arguments by requesting that the case be remanded to the learned trial Court for its decision on merits after recording evidence of the complainant.
6. Conversely, the learned counsel for the respondents/accused strenuously controverted the view point presented by the learned counsel for the appellant and maintained that the learned Special Judge Central, Rawalpindi passed the impugned order in accordance with law. The respondents/accused were office-bearers of Pakistan Medical Cooperative Housing Society and had not been appointed in the Society by the Government rather they were elected as office- bearers by the members of the Society through elections. The offence, if any, with which they are charged have not been committed in their capacity as Government employees/public servants, therefore, the complaint against them was not competent in the Court of Special Judge Central as they are not public servants.
7. I have heard the arguments advanced by learned counsel for the parties at length and surveyed the record with care and caution.
8. The perusal of impugned order, dated 12-10-2004 rendered by the then learned Special Judge Central, Rawalpindi depicts that he while acquitting the respondents/accused dismissed the complaint filed by the present appellant by holding that:---
(i) the respondents were not public servants and the offence if any with which they were charged had not been committed in their capacity of Government employees;
(ii) that since the respondents were not public servants, so prior permission for prosecution was not required and even otherwise sanction for prosecution had been refused by the competent authority vide letter, dated 7-12-2001, and;
(iii) that the civil suit for recovery of amount filed by the appellant/ complainant stood dismissed by the learned Civil Judge, Islamabad, vide judgment, dated 11-7-2001.
9, Now adverting to the first point which is a pivotal question i.e. Whether the respondents were public servants or not? The learned Special Judge Central while holding as such relied upon section 2 of the Prevention of Corruption Act, 1947, read with section 21 of P.P.C. I have given my anxious consideration to this aspect. There is no denial of the fact that the respondents/accused were office-bearers of Pakistan Medical Cooperative Housing Society at the relevant time.
According to section 65-B, the Cooperative Societies Act, 1925, every officer of a society shall be deemed to be a public servant. Section 65-B (ibid) provides as under:- "65-B Officers of societies to be public servants.--- Every officer of a society, including a Cooperative Bank, shall be deemed to be a public servant within the meaning of section 21 of the Pakistan Penal Code (Act XLV of 1860)." (underline is mine)
10. From the above provision of law it is apparent like mid-day sun that the respondents/accused were public servants and the learned Special Judge Central passed the said order by ignoring the provisions contemplated in section 65-B (ibid). Thus, there is no escape from the conclusion that the respondents/accused were public servants.
11. The next question for determination is that whether the prior permission was required to prosecute the respondents/accused. In this context, learned Special Judge Central has observed that sanction for prosecution stood refused by the competent authority vide letter, dated 7-12-2001.
The relevant portion of the letter has been reproduced in the impugned judgment, which reveals that permission was refused by saying that it was not a State case, therefore, matter did not fall under the jurisdiction of Interior Division. The requirement of prior sanction before prosecution of a Government servant has been provided under section 197, Cr.P.C. And under subsection (5) of section 6 of the Criminal Law Amendment Act, 1958 (Act XL of 1958). Before proceeding further, it would be quite advantageous to look into the said provisions, which read as under:---
197. Prosecution of Judges and public servants. --- (1) When any person who is a Judge within the meaning of section 19 of the Pakistan Penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of the Central Government or a Provincial Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence 'except with the previous sanction---
(a) in the case of a person employed in connection with the affairs of the (Federation) of the President; and
(b) in the case of a person employed in connection with the affairs of a Province, of the Governor of that Province.
(2) Power of President or Governor as to prosecution.--- The President or Governor, as the case may be, may determine the person by whom, the manner in which, the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.
Subsection (5) of section 6 of the Criminal Law Amendment Act, 1958. --- "(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."
12. The above provisions of law place an embargo for the prosecution of a public servant except prior sanction from competent authority. In this regard suffice it to .Say that these provisions of law have already been declared repugnant to Injunctions of Islam by the august Supreme Court of Pakistan much earlier in case of Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad v. Zafar Awan, Advocate High Court, reported as PLD 1992 SC 72.
13. Keeping in view the law laid down by the Honourable Supreme Court of Pakistan, it is observed that no prior sanction was required before prosecution of present respondents/accused. Needless to say that under Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973, the decision of Honourable Supreme Court of Pakistan is binding D on all other Courts.
14. So far as the grant of permission by the Registrar of society as envisaged under subsection (3) of section 63, the Cooperative Societies Act, 1925 to prosecute the present respondents/accused is concerned, the same has to be operative regarding the offences provided under section 60 (ibid) and for no other offence. For this, I am fortified by PLD 1992 Kar.
167.
15. As regards the decision of civil suit for recovery 'of amount against the respondents/accused is concerned, in this behalf I would like to to observe that criminal proceedings have their own course and has no nexus with the civil proceedings.
16. The sequel of the above discussion is that the learned Special Judge Central has not acted in a manner he was required to act and has passed the impugned order which shows non-adherence and non-application of law and thus, not sustainable in the eye of law, therefore, the instant appeal is accepted and the impugned order, dated 12-10-2004 is accordingly set aside.
Resultantly, it is held that the complaint filed by the appellant shall be deemed to be pending before the learned Special Judge Central, Rawalpindi, who after summoning the record shall proceed to record the evidence of petitioner and respondents/accused if any after observing the requisite formalities i.e. Distribution of copies and framing of charge.
17. Since it is an old matter pertaining to the year 1996, the learned Special Judge Central, Rawalpindi is directed to conclude the trial within a period of 4 months positively from the receipt of copy of this order under intimation to the Deputy Registrar (Judi.) of this Court.