1. Waheeduddin Ahmad, J.--This appeal by special leave is directed against the judgment of the former High Court of West Pakistan, Lahore, in Criminal Appeal No. 777 of 1964 dated the 20th March 1968. By this judgment, the appeal of the appellant was dismissed.
2. The appellant was a Cashier in the year 1958, in the office of the Cantonment Board, Wah. In the course of his duties, he was to receive certain amounts, issue necessary receipts and to enter the same in the subsidiary register to be maintained by him. On the basis of this register entries were to be made in the general cash register to be maintained by the Accountant. The amounts Rashid received by him were to be duly accounted for and deposited in Ahmad the Government Treasury or ia the Bank. During the period state from 17th January 1958 to the 22nd October 1958, the appellant received a sum of Rs. 3,467-7-0 from Muhammad Aslam P. W. 18 Waheedud- Muhammad Hussain P. W. 19, Muhammad Yaqub P. W. 20, 'Syed Anwar Hussain P. W.
38. On the checking of accounts, it was discovered that a sum of Rs. 13,227.40 had been defalcated including the sum of Rs. 3,467-7-0 received by the appellant. On receiving the report, Exh. P. W. 14/C, from the Auditor Mr. Fakhruddin, Executive Officer, reported the matter to the Police vide letter, Exh. P. A., on which a case was registered against the appellant, vide formal F. I. R., Exh. P. A./l. After necessary investigation and sanction, the appallant was challaned.
3. A preliminary challan was submitted on the 2nd December 1959.
4. Sanction was accorded by Mr. Fakhruddin, Executive Officer and a formal challan was presented on the 7th April 1960. On the 29th September 1961, the cognizance of the case was taken.
5. Evidence was recorded on the 16th November 1964. Special Judge, Central Government, Rawalpindi, convicted the appellant and sentenced him to six months' rigorous imprisonment anddtnJ a fine of Rs. 7,000. In default, he was to undergo a further imprisonment of six months.
6. The appellant challenged his conviction in the above- mentioned appeal. He raised the plea that the sanction accorded for his prosecution was illegal. The High Court did not consider this plea but dismissed his appeal as stated above on the 20th March 1968. The appellant has challenged this order in this appeal before us.
7. At the leave stage, a report was called from the Government of Pakistan, Ministry of Defence and on the 26th December 1968, a report was received which showed that the Executive Officer, Wah Cantonment, accorded sanction for the prosecution of the appellant under Notification No. C.
8. B. 5-77/56 dated the 14th April 1956, which was issued by the Provincial Government. It was admitted in the report that sanction of the Central Govern* ment was not obtained in this case.
9. Special leave was granted in this case to consider the question whether the Special Judge who has convicted the appellant could take cognizance of the case without a valid sanction by the appropriate Govemment under section 6(5) of the Pakistan Criminal Law Amendment Act of 1958 and whether the trial was illegal.
10. Sh. Muhammad Shafi, learned counsel for the appellant, has contended that the appropriate Government in the present case was the Central Government and sanction for the prosecution of the Central Government was necessary. According to the learned counsel, the sanction accorded by Mr. Fakhruddin was without jurisdiction and the learned Special Judge could not take cognizance of the case and convict the appellant for the offence alleged to have been committed by him. In support of his contention, he relied on the cases of Chittaranjan Cotton Mills Ltd. v. Staff Union (1), Mansab AH v. Amir and 3 others (2), Gokulchand Dwarkadas Morarka v. The King (1) and Chief Kwame Asante v. Chief Kwame Tawia (2). lt was held ln these cases that if a mandatory condition for exercise of jurisdiction by a Court, Tribunal or Authority is not fulfilled, all proceedings which follow become illegal and without jurisdiction. In this connection, the following observation was made in the case of Mansab Ali v. Amir and others :-- "It is an elementary principle 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. The learned Advocate- General fully supported this view and asked for dismissal of the appeal." If the case of the appellant is considered in the light of the above observation, it is quite clear that the sanction accorded by the Executive Officer, Wah Cantonment was without jurisdiction. Wah Cantonment is under the Central Government and under section 6(5) of the Pakistan Criminal Law Amendment Act, the sanction could only be issued by the Central Government or by any Officer authorised by it. Under section 2(a) of the Pakistan Criminal Law Amendment Act, the appropriate Government is 4 the Central Government and the sanction in this case should have been issued by the Central Government, ln the absence of any such sanction the trial of the appellant appears to be illegal and without jurisdiction. The Special Judge could net take cognizance of the case without the proper sanction. In reply, Sh. Maqbool Ahmad, learned counsel for the respondent, has urged three points, ln the first place, the learned counsel has contended that the objection should have been taken at the earliest stage, namely, before the trial Judge and as no such objection was raised, it should not be allowed to be taken before this Court. Secondly, the learned counsel, contended that when the Court took cognizance of the case a valid sanction existed. In this connection he referred to the Notification No. SRO- 1122(K)/61, dated the 10th November 1961 of the Central Government, by which the power to sanction prosecution of public servants, other than those who are not removable, from office save by or with the sanction of the Central Government, or some higher authority, under subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958) may be exercised, on behalf of the Central Government by an officer having the power to remove from office the public servant, sanction for whose prosecution Is required to be issued. According to the learned counsel, in December 1961, when cognizance was taken by the Special Judge, there existed a valid sanction by the Executive authority of the Cantonment Board who was competent to remove the appellant from service. Lastly, the learned counsel argued that the appellant was dismissed on the 28th January 1961 and as he was not a public servant, no sanction was necessary for his prosecution. These points will be taken up separately.
11. So far as the first point is concerned that the objection should have been taken in the trial Court and any subsequent objection raised before the High Court or this Court could not be taken into consideration. Reliance was placed in the cases of Abdul Rashid v. The Crown (1), S. M. K. Alvi v. The Crown (2), Gokulchand Dwarkadas Moraka v. The King (3), Nirode Chandra Biswas and others v.
12. The State (4), F. D. Costa v. The State (5), Abdul Khallq v. The State (6), Qazi Mushtaq Ahmad v.
13. Muhammad Ramzan and another (7) and Abdul Khaliq v. The State (8). The trend of these decisions is that objection of this nature should be taken in the trial Court and an objection raised at the appellate stage is not fatal to the case. It will be noticed that in the present case no objection about the sanction was taken before the trial Court. An objection to this effect was taken before the High Court and before this Court. In my view, the latest view of this Court in the case of Mansab Alt v. Amir and others is a complete answer to these questions. It has been held by this Court in the above-mentioned case that if a mandatory condition for the exercise of a jurisdiction before a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. And order passed in continuation of these proceedings in appeal or revision equally suffers from illegality and is without jurisdiction. It was further held in the case of Chittaranjan Cotton Mills Ltd. v. Staff Union that ''question relating purely to the juristic-i tion of the Court should be raised at any stage of the proceedings." In this connection, the following observation is relevant :-- "Where the Court is not properly constituted at all the proceedings must be held to be coram non judice and, therefore, non-existent in the eye of law. There can also be no doubt that in such circumstances 'it could never be too late to admit and give effect to the plea that the order was a nullity', as was observed by the Privy Council in the case of Chief Kwame Asante Tredahone v. Chief Kwame 9 D L R 686 (P C>."
14. In view of this clear observation of this Court, I am of the view that the appellant was entitled to raise objection in the High Court and the High Court should have decided this point raised before it.
15. In the circumstances of the present case, this Court also is competent to go into this question.
(1) PLD 1951 FC 2 (3) PLD 1948 PC 11(1) PLD 1951 FC 2 (3) PLD 1948 PC 11
(5) PLD 1959 Dacca 744 (7) 1970 P Qr. L J 1181
(5) PLD 1959 Dacca 744 (7) 1970 P Qr. L J 1181 (2) PLD 1953 FC 189
(4) PLD 1958 Dacca 90
(6) PLD 1963 Kar. 26
(8) 1970 P Cr. L J 1189 Coming now to the second point raised by the learned counsel for the respondent that when the Court took cognizance of the case a valid sanction existed. According to the learned The contention of the learned counsel has not impressed me. The Court took cognizance of the case on the 29th September 1961, when the appellant was summoned. On this date, the notification dated the 10th November 1961, did not exist, therefore, the sanction relied upon could be of no avail to the respondent. It was not a valid sanction and the trial of the appellant on this basis was Illegal and without jurisdiction. counsel, the Executive authority of the Cantonment Board was competent to grant sanction in view of the notification dated the 10th November 1961, reproduced below and this sanction was quite valid on the date when the Special Judge, Central Government, Rawalpindi took cognizance of the case :-- "In exercise of the powers conferred by clause (a) of sub-? section (2) of section l2 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958), the Central Government, in supersession of the rules published under No. S. R. O. 174 and S. R. O. 624(fC)/61, dated the 8th April 1959 and 5th June 1961, respectively, is pleased to make the following rules, namely :-- Subject to such general or special instructions as may, from time to time, be issued by the Central Government, the po wer to sanction prosecution of public servants, other than those who are not removable, from office save by or with the sanction of the Central Government, or some higher authority, under subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958; may be exercised, on behalf of the Central Government, by an officer having the power to remove from office the public servant, sanction for whose prosecution is required to be issued." The last point urged by the learned counsel that the appellant was dismissed on the 28th January 1961 and he was not a public servant and, therefore, no sanction was necessary for his prosecution has received my anxious consideration. The appellant was dismissed from service on the 28th January 1961. According to him he filed an appeal before D. M. L. & C., Rawalpindi on the 25th February 1961 and sent a reminder to the Director, Military Lands and Cantonment, Rawalpindi on the 30th March 1961. This allegation is denied by the respondent. They have produced a letter dated the 31st December 1971, issued on behalf of the Director, Military Lands and Cantonment. This letter shows that the record of the Headquarters has been thoroughly searched and that no appeal from Mr. Rashid Ahmad, ex-Cashier of Cantonment Board, Wah, is traceable or pending. In reply, the appellant filed a written statement on the 10th January 1972 and along with that written statement, has filed postal Receipt No. 125 dated the 25th February 1961, acknowledgement receipt duly signed dated the 25th February 1961 and certificate of posting dated the 30th June 1961 of a letter of reminder sent to the Appellate authority. These documents leave no doubt in my mind that the appellant did file an appeal against the order of his dismissal and the same is still pending adjudication before the Appellate authority. The mere fact that it is not traceable will not show that it is not pending before the Appellate authority. In view of this, lt Is quite clear that the appeal of the appellant is still pending and he is still in service of the respondent. In this view of the matter, the principles enunciated in two decisions of this Court, namely, Nazir Hussain Shah v. The State (1) and Ataur Rahman v. The State (2), have no application to the facts of the present case. In the result, I would hold that the appellant is still in the service of the respondent.
16. After careful consideration of the whole matter, I am of the view that proper sanction was necessary under section 6(5) of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958) and as the case was tried by the trial Court without such sanction, the whole trial is without jurisdiction and of no effect. I would, therefore, accept the appeal and direct that the case against the appellant be tried after proper sanction has been obtained.
17. In the result, the appeal is allowed.
18. Hamoodur Rahman, C. J.--I agree.
19. Sajjad Ahmad, J.--I agree.
20. Salahuddin Ahmed, J.--I agree.
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