ABDUL QADEER CHAUDHRY, J.--The brief facts leading to this peti--tion are that on 27-11-1979 a case was registered against the petitioner and it was alleged that the petitioner had accepted Rs.
300 as illegal gratifica--tion from one Mulla Abdur Rabim for helping to get one Hyder Jan release on bail, who was in judicial custody. The petitioner was apprehended and the tainted amount was recovered from his person. In this petition it is stated by the petitioner that at the time of his arrest the petitioner gave his explanation that this amount has been given to him by the complainant Abdur Rahim for making payment to one Advocate.
2. After usual investigation, the petitioner was sent up for trial before the Summary Military Court.
The charge-sheet under section 161, P. P. C., section 5 (2) of Act 11 of 1947 and M. L. O. 33, Zone `D' read with M. L. R. 14 was framed. The Court examined witnesses for the prosecution and the defence, and convicted the petitioner to pay a fine of Rs. 30,000 or suffer R. I. For one year in default thereof.
3. The petitioner has challenged his conviction through this Consti--tutional Petition.
4. The learned counsel for the petitioner was a Government servant and proper sanction as required under section 6(5) of the Criminal Law Amendment Act, 1958 was necessary for the prosecution of they petitioner. Such objection was also raised before the Summary Military Court but even then the petitioner was tried. In order to appreciate this conten--tion the provisions under which he was tried have to be examined. Sec--tion 161, P. P. C. Provides punishment which may extend to 3 years, or with fine or with both, if a public servant accepted or agrees to accept any gratifica--tion as a motive or reward for doing any favour through any person. Sec--tion 5(2) of Act II of 1947 prescribes the punishment which may extend to 7 years or with fine or with both if he commits or, attempts to commit criminal misconduct. "Criminal misconduct" has teen defined under sec--tion 5(1) and it includes section 161, P.P.C. Now a public servant can only be tried by a Special Judge under the Pakistan Criminal Law Amendment Act, 1958 and thus a public servant if found guilty, may be imprisoned for a term which may extend to 7 years. Section 161, P.P.C., has been incorporated in the definition of misconduct and a Special Forum has been created for the trial of a public servant. In view of this admitted position a public servant cannot be tried by a Court constituted under the Code of Criminal Procedure for an offence under section 161, P.P.C. It is also not disputed that previous sanction of appropriate Government shall be required for the prose-- cution of the public servant.
5. In the present case the petitioner was also charged with M. L. O. 33 in addition to the charge of an offence under section 161, P. P. C. Read with section 5(2) of Act 11 of 1947. It has been contended on behalf of the respondents, first that the conviction of the petitioner was only under M. L. O. 33, and secondly, that because this M.L.O. Creates a new offence therefore no sanction for prosecution of a person proceeded against is necessary. The learned A. A.-G. Relies upon the case of Allah Bakhsh 1980 P Cr. L J 83
6. Though the petitioner is charged with offence, as detailed above the conviction slip does not indicate as to under which of these offences the accused was found guilty. In the absence of a specific finding on the ques--tion the presumption would be that the petitioner was found guilty of the offence with which he was charged.
7. 1 am unable to agree with the proposition that M. L. O. 33 (Zone D) creates a new offence. This Martial Law Order deals with the offences of illegal gratification. Such offence already stand created under section 161, P. P. C., which reads a: under:- "Section 161, P. P. C.--;Whoever, being or expecting to be a public servant, accepts or obtains, or agrees, to accept, attempts to obtain from any person, for himself or for any other person, any gratification whatsoever, other than legal remuneration, as a motive or reward for doing or for bearing to do any official act or for showing or for--bearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person, (with the Central or any Provincial Government of Legislature), or with any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
I may also reproduce M. L. O. 33 (Zone D) as it would be convenient to compare the two provisions :- "No one shall accept or obtain, or agree to accept, or attempt to obtain from any person, for, himself or for any other person, any gratification whatsoever, other than legal remuneration, as motive or reward for doing or forbearing to do any official or other functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person, or with any public servant as such."
8. Basically the two provisions declare that illegal gratification would be an offence. At the same time they give, in detail, the acts, which, if committed, constitute such offence. In fact they have used similar langu--age for detailing such acts of commission. The difference lies only in the) scope of applicability and sentence prescribed by the two provisions, M. L. O. 33 (Zone D) is larger in scope than section 161, P. P. C., in so fart as the former applies to all persons, while the latter is applicable only to public servants, or persons expecting to become such public servants. Secondly punishment provided under M. L. O. 33 is greater than that prescribed under section 161, P. P. C. With those two differences there is no distinction between the language used by section 161, P. P. C. And M. L. O. 33 (Zone D).
9. With great respect I am unable to follow the reasoning given in the case of Allah Bakhsh 1980 P Cr. L J 83. In this reported case Aftab Hussain, J. After given the history of changes in M. L. O. 7 (Zone A) has come to the conclusion that this M. L. O., as reconstituted creates a new offence. The reasoning is as follows :- "Now that Martial Law order has been twice re-constituted, it is clear that at least as from 28th January, 1978, it created a new offence. The sentence for that offence under Martial Law Regulation No. 14 is also different. It may be stated that while the sentence for an offence under section 161, P. P.
C., is 3 years or file or both and in sec--tion 5(2) of the Prevention of Corruption Act is 7 years of fine or both, the sentence for an offence inter alia under Martial Law Order No. 7 is 5 years, rigorous imprisonment, forfeiture of property and/or whipping not exceeding 20 stripes. While the maximum sentence in M. L. R. 14 is reduced to five years, much more deterrent sentences of forfeitures of property and of whipping have been added. To all intents and purposes the offence under Martial Law Order No. 7 as reconstituted is a new offence."
10. An offence is said to have been committed if certain acts of commission or omission are held to be suitable under the penal laws. The.' applicability, its scope and the amount of punishment for the commission of an offence, do not constitute a penal offence. They deal with the consequences that flow from such offences. In the present case the acts declared to constitute an offence of illegal gratification are similar both under section 161, P. P. C., and M. L. O. 33 (Zone D), The difference in their scope, and the punishment prescribed, does not alter that fact. We are therefore unable to hold that M. L. O. (Zone D) creates a new offence. In our opinion it referred to the same offence which already stood created under section 161, P. P. C.
11. For such reason we would hold that it was imperative that sanction for the prosecution of the petitioner should have been obtained from the appropriate Government before his trial could take place. In the absence of such sanction the trial was without jurisdiction. We are also supported in this view by Division Bench judgments of Sind High Court in case of Manzoor Ahmad (PLD 1978 Kar.
623and the case of Muhammad Ismail (PLD 1980 Kar. 47 For the foregoing reasons we would hold that the trial of the petitioner and his conviction, by Summary Military Court is without lawful authority and is of no legal effect.
M. Z.M.