The appellant above named, being aggrieved by judgment dated 28th December, 1980 of the learned Special Judge. Anti-Corruption, Hydera--bad, by which he has been convicted under sections 468, 471 and 409, P. P. C. Read with section 5 (2) of Act II of 1947 and sentenced to suffer imprisonment till rising of Court and to pay fine of Rs. 2,500 or in default to suffer R. I. Of further period of 12 months, has preferred this appeal on the following facts and grounds :-
2. Prosecution case. Briefly stated is that one Syed Hakim Ali Shah Circle Officer, Hderabad City had lodged an F. I. R. No. 38/76 at the Anti-Corruption- Police Station, Hyderabad City, District Hyderabad, on 30th December, 1976 under sections 409, 420, 466, 465, 468/34, P. P. C. Read with section 5 (2) of Act 11 of 1947, disclosing therein the offence alleged to have been committed by the appellant, on 4th January, 1975, at the office of the Director-General (Chief Minister) Inspection Team, Hyderabad.
3. In the said F. I. R. The complainant had mentioned, that during the investigation of Crime No. 25 of 1976 A. C. E., Hyderabad City against the appellant Alimuddin, it was discovered, that appellant Alimuddin prepared a bogus contingent bill of Rs. 1,735 under hr forged signatures, of his Incharge Officer Mr. A. F. Kirio, Director-General ( Chief Minister---s Inspection Team), Hyderabad, Sind and having got it passed from the Treasury Office, as per treasury voucher No. 79, dated 4th January, 1975 in collusion with the staff, got the same encashed from the bank and embezzeled the amount.
A report to that effect was submitted to the Director A. C. E., Sind Karachi, through S. P., A. C. E., "Hyderabad who vide his order No. 14443/49, dated 30th December, 1976, accorded sanction to register the case, and consequently case was registered against the appellant and appellant was challaned before the learned Special Judge Anti-Corruption, Hyderabad.
4. The learned trial Court on the basis of appellant's plea of guilt, convicted and sentenced the appellant as hereinabove mentioned and consequently the appellant has preferred the above appeal on the grounds mentioned in the memo. Of appeal. The learned counsel for the appellant has also urged, one additional legal ground before me, that the sanction accorded for the prosecution of the appellant was invalid sanction and as such the assumption of the jurisdiction by the learned Special Judge, Anti. Corruption, Hyderabad, was without jurisdiction.
5. In support of the above legal ground, the learned Advocate for the appellant has drawn my attention to notification No. P R C.-3-7/62, dated 10th December, 1962 issued by then West Pakistan Government. In exercise of the powers conferred by clause (a) of subsection (2) of section 12 of the Pakistan Criminal Amendment Act, 1958 (XL of 1958). According to clause (2) of the said Notification, then Government of West Pakistan was pleased to delegate power to sanction prosecution of public servant under subsection (5) of section 6 of the Pakistan Criminal Amend-- ment Act, 1958, on behalf of the Provincial Government, to an officer competent to remove such public servant from office. After drawing my attention to this Notification, which according to the learned Advocate appearing for the State, was in force at that time, the learned Advocate for the appellant draw my attention to the sanction granted by Deputy Com--missioner, Hyderabad and the Chairman, Anti-Corruption Committee-III, Hyderabad, on the basis of which the prosecution in question was initiated against the present appellant. The learned Advocate for the appellant submitted, that Deputy Commissioner. Hyderabad is neither the appoin--ting or removing authority, so far as the present appellant is concerned, and as such the sanction accorded by him for the prosecution of the present appellant was an invalid sanction and as such the jurisdiction assumed by the Special Judge, Anti-Corruption, Hyderabad on the basis of this sanction was without jurisdiction and ultra vires and consequently the conviction of the appellant by impugned judgment dated 29th Decem--ber, 1980, is without lawful authority and as such cannot be sustained.
6. The learned Advocate for the appellant further submitted, that the above appeal was competent as under the provision of section 412, Cr. P. C., the appellant could challenge the quantum of legality of the sentence passed against him, in spite of his plea of guilt. In support of this contention, the learned Advocate for the appellant has relied upon the case of Muhammad Hussain v. State (PLD 1967 Pesh. 307).
7. The learned Advocate appearing for the State submitted before me, that the sanction on the basis of which the prosecution was initiated against the present appellant was not given by a competent officer, duly authorised under the above-mentioned Notification, dated 10th December, 1962 and as such the jurisdiction assumed by Special Judge, Anti-Cor--ruption, Hyderabad was not warranted and consequently he does not sup--port the impugned judgment in question. The learned Advocate for the State further submitted, that the above appeal was competent in respect of the quantum as well as legality of the sentence, which is being challenged, on the ground, that the sanction accorded for the prosecution was not a valid sanction, under the provisions of subsection (5) of section 6 of the Pakistan Criminal Amendment Act, 1958.
8. I have carefully considered the above submissions made by the learned counsel before me and have gone .Through the sanction in question, which on the face of it shows was not accorded by officer authorised under Notification No. P. R. C.-3-7162, dated 10th December, 1962, of A the then West Pakistan Government and as such the assumption of the jurisdiction by the Special Judge, Anti-Corruption, Hyderabad, was illegal and without jurisdiction and as such the above appeal is competent and maintainable. The learned counsel for the appellant did not press any other ground before me.
9. The learned Additional Advocate-General, who was also present on notice from this Court has also supported the contentions of the learned counsels as mentioned hereinabove.
10. Therefore in view of my above conclusion, that sanction fort prosecution of the appellant was not given by an officer empowered vide B notification dated 10th December, 1962, I allow the above appeal an 1d set aside conviction and sentences awarded to the appellant and acquit the appellant.
11. However, before parting with this appeal, I would like to mention, that the prosecution would be at liberty to initiate fresh proceedings against the present appellant, after obtaining valid and proper sanction from the requisite officer, for such prosecution.