Petitioners above-named have filed the above petition for quashment of criminal proceedings pending against them, in Case No. 16/73 under section 420/468/409, P. P. C. Read with section 5 (2) of Act II 1947 in the Court of Special Judge (Anti-Corruption) Central, Karachi, on the following facts and grounds :-
2. That, the petitioner No. 1 is an employee of National Bank of Pakistan, Local Branch, Karachi. He submitted his resignation on 29th January, 1968 and stopped attending to his duties in the National Bank of Pakistan. The acceptance of his resignation, since then and till this day, has not been communicated to him nor has he been paid off his emoluments by the Bank. The petitioner No. 1, therefore, continues to be in the service of the National Bank of Pakistan.
3. That, the respondent No. 2 is an employee of Karachi Develop--ment Authority and has been in its service much prior to the incident and continues to be as such till this date.
4. That, on 26th February, 1968 a case was registered under section 420/468/471/409, P. P. C. Read with section 4 (2) of Act II of 1947, on a written complaint of Mr. Abbas Hashmi, Chief Accountant, National Shipping Corporation, against (1) Pervez Iron and Steel Works, Karachi (2) Mils. Rehman Sons and (3) Officials of National Bank of Pakistan, Local Branch, Karachi.
5. That, after a protracted investigation of about 5J years, a charge --sheet was submitted in the Court of Special Judge, Central, Karachi on 21st July, 1973 against the petitioners and the respondent No. 2 for their prosecution under section 420468409, P. P. C., read with section 5(2) of Act II of 1947.
6. That, in view of the fact, that the charge-sheet submitted by the prosecution was not accompanied by sanction, as required under section 6(5) of Pakistan Criminal Law (Amendment)
Act, 1958, the learned Special Judge, Karachi, vide order dated 20th April, 1.974 ordered, that a reference be made in respect of the petitioner No. 1, he being in the service of National Bank of Pakistan and adjourned the case to 1st July, 1974.
7. That, so far as the respondent No. 2 was concerned no sanction was obtained by the prosecution despite the fact, that he was an employee of K. D. A. Nor any reference within the meaning of section 6(5) of Pakistan Criminal Law (Amendment) Act, 1958 was ever made by the learned Special Judge, Karachi, for his trial.
8. That, on 1 July, 1974 the learned Special Judge Karachi passed art order to the effect, that a reference was made for sanction of prosecution against the petitioner No. 1, under section 6(5) of Pakistan Criminal Law (Amendment) Act, 1958 and that the letter was received by Government on 22nd April, 1968 and that no sanction was either received or refused by the appropriate Government and, as such, the same was presumed to have been accorded.
9. That, on 3rd August, 1974 the substance of accusation was read out to the petitioners and the respondent No. 2, the accused persons in the present case.
10. That, during the trial, which has stretched for a period of 2-- years, as many as 16 witnesses have so far been examined and almost the entire material evidence has come on the record, with the exception of the evidence of a Handwriting Expert.
11. That, on 31 January, 1976 an application was moved in the Court of the Special Judge, Central, Karachi, on behalf of the petitioners for the grant of a certified copy of the letter purported to have been addressed by the Court to the National Bank of Pakistan for sanction for the trial of the petitioner No. 1, but the same was not made available, as according to the remarks made by the office of the Court thereupon, no such letter was available in the case file.
12. That, in view of this position an application was moved on behalf of the petitioners on 6th February, 1976 in the Court of Special Judge, Central, Karachi, praying therein to adjourn the case, so as to enable the petitioners to approach this hon'ble Court for quashment of the proceedings, pending against them on the ground, that the sanction within the meaning of section 6(5) of the Pakistan Criminal Law (Amendment) Act, 1958 for the prosecution of the petitioner No. 1, had not been obtained and, as such, Court had no jurisdiction to try the case.
13. That, the application so moved by the petitioners was rejected by the learned Special Judge, Karachi, vide his order dated 6th February, 1976.
14. The above petition has been filed on various grounds as mentioned in the memo. Of petition, specially as it is alleged by the petitioners, that the said proceedings pending against them are prima facie illegal, mala fide and malicious, as they are innocent and their trial, if permitted to protect, shall amount to an abuse of the process of the Court, in view of the fact that no sanction has been obtained for the prosecution of petitioner No. 1 as well as of the respondent No. 2, as required under the law, and as such the Court of Special Judge, Central, Karachi, has no jurisdiction to try the instant case.
15. I have heard the learned Advocate for the petitioners and the State counsel as well as the Advocate for National Bank of Pakistan and have gone through R and P of the learned trial Court.
16. The learned Advocate for the petitioners in support of the above petition submitted before me as under :-
(a) That learned trial Court had no jurisdiction to take cognizance of the case in question and to start the trial, in the absence of sanctions given by appropriate authorities in respect of petitioner No. 1 and respondent No. 2 In support of this contention, learned Advocate relied on cases reported in PLD 1973 Kar. 478 and 1938 Cr. L J 1042.
(b) That it is an admitted position, that as far as respondent No. 2 is concerned, who continues till today to be employee of K. D. A., no sanction at all for his trial was obtained by the prosecution and as such irrespective of the fact whether sanction in respect of petitioner No. 1 was obtained, byst st sending letter to appropriate authority for the same, still entire trial is vitiated and is liable to be quashed on this ground alone. In support of this contention, learned Advocate also relied on case reported in 1938 Cr. L. J., 1042.
17. The learned Advocate appearing for National Bank of Pakistan, on the other hand submitted, that letter as required by the provisions of section 6(5) of the Prevention of Corruption Act 11 of 1947, was sent to appropriate authority, as mentioned in the order sheet, by the learned trial Court and copy thereof is available on file of the trial Court, which he pointed out and submitted, that in view of this, there is no illegality about the pending trial as far as petitioner No. 1 is concerned. However, he admitted, that there is nothing on record to show regarding sanction as far as respondent No. 2 is concerned, was obtained in respect of said respondent and as such proceedings against him alone may be quashed, with observations, that if prosecution obtains such sanction, his trial could be re-commenced afresh. The learned counsel further submitted, that case reported in 1938 Cr. L J 1042 is distinguishable on facts, from the present case.
18. The learned Advocate appearing for the State also supported the contentions of the learned Advocate for National Bank of Pakistan and further submitted, that beside copy of trial Court letter dated 22nd April, 1974, sent to appropriate authority for sanction under section 6(5) of Act II of 1.947, copy of which is available at page 601 of part II of P. B. The petitioner No. 1 voluntarily resigned his job on 29th January, 1968, as admitted by him in above Petition, and as such in view of the decision of Hon'ble Supreme Court reported m PLD 1981 SC 642, no sanction at all was necessary in respect of this petitioner. The learned State Counsel also submitted, that case reported in 1938 Cr: L J 1042 is distinguishable on facts of this case, as beside public servants, petitioners Nos, 2 and 3 are private persons and as such trial against petitioners could legally continue, even if the proceedings against respondent No. 2 are quashed on technical ground of want of sanction.
19. I have carefully considered the above submissions made by the learned advocates before me and have gone through R and P, as well as authorities cited by learned advocates before me. I have also very carefully read accusations against the petitioners as well as respondent No. 2, which are on record of the learned trial Court.
20. The learned Advocate for the petitioners, after hearing the argu--ments of the learned Advocate for National Bank of Pakistan and State, conceded that in view of copy of letter dated 22nd April, 1974, addressed by the learned trial Court to so-called appropriate authority, prima facie provisions of section 6 (5) of Act II of 1947, were complied with, as far as the trial of petitioner No. 1 is concerned. In view of this, the only question, which now requires consideration, in this matter is, whether in the absence of sanction obtained in respect of respondent No. 2, the entire trial has been vitiated or not. It may be noted, that petitioner No. 1 does not challenge his status as public servant and as such this appeal is being disposed of on the basis that petitioner No. 1 is public servant.
21. The relevant section for holding joint trial of accused persons is section 239, Cr. P. C. This is an enabling section, as held by various authorities. However, it is settled law, that discretion vested in the trial Court, under section 239, Cr. P. C. Cannot be exercised in the manner so as to prejudice the accused persons, in any manner. In this connec--tion, I may refer to case reported in AIR 1936 Sind
47. In this case, it was held, that the prosecution cannot be permitted to examine one accused as witness against co-accused by process of spliting up cases against them. Keeping in view the nature of the provisions of section 239, Cr. P. C., I am of the opinion, that joint trial of all the accused persons is not must under the said provisions.
22. The only point which now requires consideration is that, in view of the admitted position, that respondent No. 2 in the above Petition was a K D A employee from 19th September, 1962, and was transferred to K h4 C with effect from 31st July, 1974 and is working there till today, as envisaged by certificate dated 3rd May, 1982, issued by the Executive Engineer Water and Sewerage Division 111, K M C, Karachi, which has been produced under the orders of this' Court, by the petitioner No. 1 and is kept on record, the cognizance of the case against respondent No. 2 prima facie, without complying with provisions of section 6 (5) of Act 11 of 1947, was without lawful authority and as such, whether the entire proceedings pending against the petitioners as well as respondent No. 2 are liable to be quashed, as urged by the learned Advocate for the petitioners or proceedings against respondent No. 2 alone are liable to be quashed, as urged by the learned Advocate for the .
National Bank of Pakistan and the State counsel.
23. Learned Advocate for the petitioners in connection with his above contention has relied on a case of Emperior v. Fazlur Rehman and others (1938 Cr. L J 1042) end submitted that the entire trial is liable to be quashed. Learned counsel for National Bank of Pakistan State on the other hand submitted, that this case in question, is distinguishable on facts, as in the said case Fazlur Rehman was the only accused, who was a public servant and since the trial of the said accused was vitiated for want of sanction, and since the said trial has resulted in conviction of all the accused in the said case, the entire proceedings were considered to be without jurisdiction and consequently the conviction of all the accused persons were set aside. In the present case, petitioner No. 1 as well as respondent No. 2 on their own admission are public servants and this fact is not disputed by the learned counsel for National Bank of Pakistan as well as the State counsel and furthermore the trial in question is still not complete and is pending before the trial Court. In view of this, the authority cited by the learned counsel for the peti--tioners is distinguishable according to learned counsel for National Bank of Pakistan and State Counsel.
24. I have carefully considered the above submissions made by the learned advocates for the parties before me and have gone through the provisions of section 239, Cr. P. C. As well as authority cited by the learned counsel for the petitioners. To my mind, if respondent No. 2 was the only public servant in the trial in question, the assumption of the juris--diction by the learned trial Court would have been completely without jurisdiction, However, since petitioner No. 1 is also a public servant and the- provisions of section 6 (5) of Act 11 of 1947, in connection with this petitioner have been duly complied with, the assumption of the jurisdiction by the trial Court cannot be considered to be totally without jurisdiction, as it was in the case reported in 1938 Cr. L J 1042. Keeping this in view, it may also further be noted, that in cases of joint trial, if one of the accused persons dies o R absconds, still the trial against the remaining accused will proceed in accordance with law and the case of such deed or absconding accused person will be separated, from the remaining accused persons, in such circumstances. In my opinion, the present case is of this nature and according to me, respondent No. 2, in view of the absence of sanction obtained in respect of his trial, the case against him could not have proceeded in the same manner, as against a dead or absconding accused person. Therefore, I am of the opinion, that it is not necessary to quash the entire proceedings and the ends of justice would be fully met, if the proceedings respondent No. 2 alone are quashed in the present case, as I agree with the contention of the learned counsel for National Bank of Pakistan as well as the State counsel, that the case reported in 1938 Cr. L J 1042 is distinguishable on facts.
25. Therefore, in view of my conclusions and findings, I quash the proceedings pending against respondent No. 2 alone, as no sanction was obtained for his prosecution and as such assumption of jurisdiction by the learned trial Court in respect of this respondent was without any lawful authority. However, the prosecution will be at liberty to initiate fresh and separate proceedings against respondent No. 2, after obtaining neces--sary sanction, as required by the law in respect of respondent No. 2.
26. As far as petitioners are concerned, I dismiss the above petition, for the reasons given hereinabove, as quashment of their proceedings, which is likely to lead to fresh trial, after obtaining sanction in respect of respon--dent No. 2, after the lapse of nearly .14 years, would amount to abuse of the process of this Court and would lead to great hardship to these petitioners in my opinion, as quashment of their proceedings may not lead to end of proceedings, as prosecution always has a right to obtain sanction in respect of respondent No. 2 and re-start the entire trial against all the petitioners as well as respondent No. 2 afresh. Any obser--tions made in this order or judgment in respect of any legal point or fact involved before the learned trial Court are tentative observations and shall not be binding on the learned trial Court. Before parting with the above petition, I would like to mention, that the prosecution cannot take advantage of quashment of proceedings against respondent No. 2, by C as a witness against the petitioners, in view of the law laid down by using him case reported in AIR 1936 Sind 47, with which I am in full agreement, for the reasons given therein.