' This judgment furnishes reasons for the acquittal of the appellant by a short order on 29-6-1982 of a charge under section 5 of the Explosive Substances Act (Act VI of 1908).
2. The brief facts of the case are that the appellant was hauled up as a result of a raid conducted by a police officer in the company of two Lambardars of another Chak. A challan against the appellant was put up and registered by the Special Court Punjab constituted under the Suppression of Terrorist Activities (Special Courts) Act XV of 1975 on 4-2-1979. On 27-2-1979, there were certain objections recorded by the learned Judge, Special Court which inter alia were to the effect that report under section 173, Cr.P.C. Was not clear about the commission of the scheduled offence, that no sanction of Government was on the record, that the report of the Explosive Inspector was also not on the file. The challan was accordingly returned to P.D.S.P. Sahiwal for doing the needful and to report compliance by 15-4-1979. There were certain reminders isst.:.?.d for compliance. The challan was received back on 19-9-1979 from the P.D.S.P. Sahiwal on which date the learned Special Court also ordered the summoning of the accused for 27-11-1979. Copies of the statements and other documents were supplied to the accused on 27-11-1979. The case was then adjourned to 8-1-1980 when the charge was framed. The appellant pleaded not guilty to the charge. The prosecution evidence was summoned for 11-3-1980. The case property had also been produced on the same day. On 11-3-1980, four P.Ws. Were examined and on 22-4-1980 three further P.Ws. Were examined and the case for the prosecution was closed. The statement of accused was recorded on 10-6-1980. He desired to have defence witnesses examined. He was directed to file a list of defence witnesses which was complied with by mentioning eight witnesses. He desired in particular to examine Asghar Shah, Abdul Hameed, Malik Allah Dad and Kafayat Hussain Shah.
These witnesses were ordered to be summoned for 9-9-1980 on which date the learned Judge Special Court was busy in Sessions Court. The case was accordingly adjourned to 4-11-1980 on which date no D.Ws. Were present. The appellant repeated his request that the aforementioned D.Ws. Be summoned through Court. The request was granted and it was ordered that they be summoned for 27-1-1981. On this date, statements of two D.Ws. Were recorded. The others did not turn up. It was accordingly directed that they may be brought by the accused on his own. The case was adjourned to came up on 3-2-1981. On this date the appellant accused was absent. The Court ordered notices to be issued to the sureties. It was further noted that the accused had to give his defence evidence but he was absent. The case was then adjourned to 7-4-1981. Notices to the sureties were ordered to be repeated for 12-5-1981. It was also presumed that the appellant was intentionally absenting. It was ordered that he should be tried in absentia. The case was then fixed for 12-5-1981 for arguments. The arguments in the absence of the appellant were heard on 12-5- 1981 and the case was fixed for orders on 2-6-1981. On this date, the judgment was announced and the appellant was convicted and sentenced under section 5 of the Explosive Substance Act, 1908 in absentia to a term of two 'years' R. I. The record shows that the Special Public Prosecutor on 22-4- 1980 tendered sanction ordered by the Commissioner Exh.P.E for the prosecution of the accused and closed that case.
3. The learned counsel appearing at State expenses for the convict appellant has argued that the entire trial of the appellant was vitiated for non-compliance with the mandatory and prohibitory provisions of section 7 of the Explosive Substance Act. A grievance was also being made that the appellant was arrested on 7-2-1981 in a case under section 302/307, P.P.C. In F.I.R. No, 20/80, dated 31-1-1981 and thereafter, because of being in injured condition he was also lodged in Jail Hospital, Sahiwal. The proceedings for the trial in absentia of the appellant when he was not a free person but had been all along lodged in jail were wholly unwarranted which also resulted in denial of right to produce the defence as well as to argue his case.
4. We notice that section 7 of the Explosive Substance Act, 1908 is indeed mandatory couched in the prohibitory terms by providing that no Court shall pr-ceed to the trial of any person for an offence against this Act except with the consent of the Provincial Government or an officer authorised in this behalf by the Provincial Government. It is evident from the plain language of the statute that the sanction for the prosecution must precede the trial and unless this condition precedent is fulfilled, there exists no jurisdiction in the Special Court to hold the trial.
5. Coming now.To the facts of the present case, it is to be noted that the sanction for the prosecution was produced on 22-4-1980 whereas the cognizance of the case was taken and the accused was summoned by the trial Court on 19-9-1979. Copies of the statements and other documents were supplied to the accused on 27-11-1979. Charge had been framed against the appellant on 8-1-1980. The prosecution case was closed on 22-4-1980. The date for the production of the sanction in terms of section 7 of the said Act, therefore, synchronizes with the closure of the prosecution case. It is thus patent on the face of the proceedings that condition precedent for the holding of the trial was not fulfilled in this case and the sanction has been produced after the trial was held and the prosecution case had concluded. This was done in express violation of the prohibitory and mandatory provisions of the Statute. The trial of the appellant, therefore, would stand vitiated.
6. We may advantageously rely upon the dictum of the Supreme Court in re: Rashid Ahmad v. The State PLD 1972 SC 271 arising under the Pakistan Criminal Law Amendment Act in relation to sanction for prosecution. It was laid down by the Supreme Court that if a mandatory condition for the exercise of jurisdiction by a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction. On the plain language of section 7 of the Act, the learned Special Court would have the jurisdiction to hold the trial only if the required sanction in terms of section 7 had preceded the holding of the trial. This not having been done, the entire proceedings taken would be void and without jurisdiction. It may also be pointed out that if a Statute requires certain things to be done in a particular manner, then that act must be performed in the manner laid down by the Statute and any laxity on that score cannot be countenanced specially in criminal matters. The appeal, therefore, is liable to succeed on this short ground.
7. We may, however, further add that there is no rebuttal on behalf of the State of the assertion of the appellant that he was arrested in a murder case on 7-2-1981 and thus was not a free person.
His production before the Special Court, therefore, had to be arranged by the State. The proceedings for 'trial in absentia ordered against the appellant on 3-3-1981 when he was still lodged in jail would thus appear to be not justified and open to serious exception. The appeal, therefore, is liable to succeed on this score as well.
8. The upshot of the entire discussion is that there has been no lawful or fair trial of the appellant at the hands of the learned Judge, Special Court. The appeal is, therefore, accepted and the conviction and sentence of the appellant are hereby set aside.