This is an application by Muhammad Yousaf, petitioner, under section 561-A, Cr. P. C. For the quashment of proceedings in a criminal case under section 409, P. P. C. Pending against him in the Court of the Special Judge, Gujrat.
2. Briefly, the facts are as follows:- The petitioner was employed as a Divisional Accountant in the WAPDA. On the basis of a letter, dated the 4th of August 1964, sent by the Executive Engineer, alleging a misappropriation of about Rs. 40,000 a case under section 409, P. P. C. Was registered against the petitioner on the morning of August 1964, at Police Station Dinga, District Gujrat. He was arrested on the 25th of October 1964, but was released on bail on the 21st of November 1964. After a prolonged inves--tigation the challan was finally submitted in the Court of the Special Judge, Gujrat, on the 300th of September 1969. The sanction required under section 6 (5) of the Pakistan Criminal Law (Amendment) Act, 1958, however, was not submitted along with the challan. The Court called for the sanction vide its letter dated the 28th of November 1969. The same was sent by the appropriate Government vide its letter dated the 17th of December 1969. But the sanction was found to be defective and the Court intimated the Government of this fact by its letter dated the 7th of January 1970 and asked for a proper sanction. A reminder was then sent to the Govern--ment vide letter dated the 20th of January 1970. The Govern--ment informed the Court by a letter dated the 4th of February 1970 saying that the Court's letter dated the 7th of January 1970 had not been received and that it had already sent the sanction vide its letter dated the 17th of December 1969. It appears that the Government was referring to the previous sanction which was found to be defective. A revised sanction was ultimately sent on the 25th or 26th of March 1970, but the petitioner raised an objection against its validity. The learned Special Judge, thereupon fixed a date for arguments on the said objection.
3. In the meanwhile the petitioner had filed the present application in the High Court for the quashment of proceedings, on the 17th of March 1970.
The grounds urged by the learned counsel for quash--ment are :--
(i) That the Special Judge did not write to the appropriate Government for the sanction for prosecution, immediately on receiving the police report, as he was required to do, under the proviso to subsection (5) of section 6 of the Act (Act XL of 1958) ;
(ii) that on receiving a defective sanction after the pres--cribed period of 60 days it was not open to the Court to seek the sanction again. Moreover, there is no provision in law empowering the Government to accord the sanction over and over again; (i.e) that the letter of the Executive Engineer, on the basis of which the case was registered does not 'disclose any offence; and
(iv) that there has been an inordinate delay in the completion of the investigation.
4. I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate- General (I) for the State. I had asked for the attendance of a Law Officer to assist me on the question of admission. But, since the learned counsel for both sides have been heard by me at some length I am treating the application as having been admitted and heard finally on merits.
5. The grounds urged by the learned counsel do not impress me as having any force.
The first ground appears to be misconceived. No doubt the relevant provision requires the Special Judge to write to and ask the appropriate Government for its sanction `immedi--ately' but it does not mean that he should address a letter to the Government at once or on the very day on which the challan is put in. What is required is that there should not be an inordinate delay in addressing a letter to the Government in this behalf. In any case, the delay of to months in addressing letter to the Government does not have the effect of vitiating the entire proceedings as it is not shown to have caused any prejudice.
6. The second ground to is misconceived. According to the relevant provision (i.e. Proviso to subsection (5) of section 6 of the Act) if the sanction is neither received nor refused within 60 days of the letter written by the Special Judge to the appropriate Government, it shall be deemed to have been granted. The Special Judge can, in that case, proceed on the assumption that the sanction had been received although in fact it had not been accorded or received. But if the sanction is in fact, accorded and sent by the Government, the provi--sions of the proviso would not come into play. The mere fact that, the sanction is not in the proper form or is otherwise defective would not lead to the conclusion that it was either refused or not received-Reference: State v.
Riazur Rehman (PLD 1965 Quetta 1) and Abdul Salam v. The State (1968 P Cr. L J 675). Nor does the fact the sanction accorded is defective rendered the Government functus officio. The authority empowered to pass an order is also empowered to rescind, amend, vary or add to it by virtue of section 21 of the General Clauses Act, 1897. Reference: Abdus Salam v. State. In this view of the matter the revised sanction sent by the Government, if not otherwise defective, is not invalid merely, because the Government had rescinded the earlier ones sent by it and issued a revised one in proper form.
7. The third ground urged by the learned counsel for the petitioner is that the letter of the Executive Engineer, dated the 4th of August 1964, on which the F. I. R. Is based, does not disclose any offence.
The argument overlooks the facts that what forms the basis of the proceedings before the Special Judge is not the letter of the XEN, but the final report of the police under section 173, Cr. P. C.
Submitted after the completion of the investigation. It is not alleged by the learned counsel that the said report does not disclose any offence. This ground to, therefore, has no force.
8. As to the ground that there has been an inordinate delay in the completion of investigation the learned Assistant Advocate-General (1) explained that as the case involved very complicated flatters of account, the investigation, had, therefore, to be rather protracted. In any case, the delay in the investigation cannot form a ground for quashment of the trial proceedings at this stage when the challan has been put in and the Court is seized of the matter. The trial would have begun by now but for the present application by the accused --petitioner.
9. In view of the above-noted discussion I find that no ground for quashment of the proceedings has been made out. The application is accordingly dismissed.