1. ' ABDUL KADIR SHAIKH, J.--This appeal by leave is directed against judgment of a learned Single Judge of Sind High Court dated 14-6-1984 by which an appeal filed by appellant was dismissed and the conviction recorded against him by the Special Judge Anti-Corruption, Hyderabad, under section 409, P.P.C. Read with section 5(2) of the Prevention of Corruption Act (II of 1947), was upheld with the modification, however, that the sentence of three years' imprisonment was reduced to the period already undergone by him in Jail--the sentence of fine of Rs, 25,000 imposed upon him was maintained.
2. ' Appellant at the relevant time was posted as Food Inspector at Nawabad Centre, District Sanghar, and in that capacity he was responsible for the purchase of storage of wheat on behalf of the Government. According to prosecution he mis-appropriated 1035 bags of wheat valued at Rs, 72,118.80 and therefore committed criminal breach of trust to that extent and was also guilty of misconduct. He, however, repaid the afore-said amount in instalments before his trial took place.
3. ' For the purpose of resolution of the controversy in the case the relevant facts are that F.I.R. Was registered against appellant at the instance of Deputy Director Food, Hyderabad, on 31-12-1974 and on receipt of sanction for prosecution dated 27-12-1978 under section 6(5) of Pakistan Criminal Law Amendment Act, 1958, granted by the Deputy Director Food in his capacity as the appointing authority of the appellant, the Special Judge, Anti-Corruption, Hyderabad, took cognizance of the case on 12-2-1979 and proceeded with the trial. Ultimately, learned Special Judge on the basis of prosecution evidence led before him held the appellant guilty, as stated above.
4. ' Appeal filed by the appellant against his conviction and the sentence was dismissed by the High Court with the modification in the sentence as mentioned earlier.
5. Leave to appeal was granted by this Court in order to examine the plea raised by the learned counsel for the appellant that the sanction for prosecution granted by the Deputy Director, Sukkur, is invalid for only the Chairman of the Anti-Corruption Committee No, II constituted under the West Pakistan Anti-Corruption Establishment Rules 1965 was authorised to grant the sanction. In this connection, reliance was placed on Notification No, PE and AC-150/26/76 dated 2-5-1978 issued by the Chief Secretary to Government of Sind.
6. ' In order to appreciate the point of law raised before us reference may firstly be made to the provisions of section 6(5) of Pakistan Criminal Law Amendment Act-XL of 1958, which read as under:-- "6. Procedure in trial of cases and powers of Special Judges.-- (1)
7. (2)
8. (3)
9. (4)
(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other Law, previous sanction of the appropriate Government shall be required for the prosecution of a public servant for an offence under this Act and such sanction shall be sufficient for the prosecution of a public servant for an offence triable under this Act:-- ' Provided that in cases where the complaint or report referred to in subsection (1) of section 4 is not accompanied by such sanction, the Special Judge shall, immediately on receipt of the complaint or report, address, by letter, the appropriate Government in the matter, and if the required sanction is neither received nor refused within sixty days of the receipt of the letter by the appropriate Government, such sanction shall be deemed to have been duly accorded:-- ' Provided further that no such sanction shall be required in respect of a case transferred under the proviso to subsection (3) of section 4 or by virtue of subsection (3) or subsection (4) of section 5, if such sanction in respect thereof, has been duly accorded before the case is so transferred.
10. ' Explanation--For the purpose of this subsection, "appropriate Government" shall mean the Government which at the time of the commission of the offence was the appropriate Government."
11. ' Under subsection (2) of section 12 of the Act provision has been made for framing of the rules including "authorization of persons to exercise the power to sanction prosecution on behalf of the appropriate Government in respect of various grades of public servants". The Government of the former Province of West Pakistan framed the Rules by virtue of the above power, which are published in the Gazette of West Pakistan Extraordinary dated 10-12-1962. These read as follows:-- "No, PRC-3-7/62. In exercise of the powers conferred by clause (a) of subsection (2) of section 12 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958) and in supersession of the Pakistan Criminal Law Amendment (West Pakistan) Rules, 1956, the Governor of West Pakistan is pleased to frame the following rules, namely, Rule 1. Short title and commencement. (1) These rules may be called the Pakistan Criminal Law Amendment (West Pakistan) Rules, 1962.
(2) They shall come into force at once. Rule 2. Sanction for prosecution. The power to sanction prosecution of a public servant under subsection (5) of section 6 of Pakistan Criminal Law Amendment Act, 1958 (XL of 1958) may be exercised on behalf of the Provincial Government by an officer competent to remove such public servant from office."
12. Later on, the Provincial Government of Sind, however, amended the above rules under Notification dated 2-5-1978 which reads as follows: "No, PE & AC-150/26/78: In exercise of the powers conferred by clause (a) of subsection (2) of section 12 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958), the Government of Sind are pleased to make the following Amendments in the Pakistan Criminal Law Amendment (West Pakistan) Rules, 1962:-- ' AMENDMENTS
1. In rule 1, for the words "West Pakistan" the word "Sind" shall be substituted.
2. For rule 2, the following shall be substituted:--"Sanction for prosecution-- ' Chairman of the Council or Committee as the case may he shall on the basis of the opinion of such Council or Committee be authorised to accord sanction for prosecution of a public servant as required under subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958).
13. ' Explanation:-For the purpose of this rule Council or Committee shall mean the Council or Committee as defined in the West Pakistan Anti-Corruption Establishment Rules, 1965".
14. ' It is on the basis of the above amended rules that Mr. Azizullah Shaikh, learned counsel for the appellant, advanced the plea that since the power to grant sanction for prosecution was vested in the Chairman of the Council or Committee, as the case may be, in terms of the amended rules, the Deputy Director Food who had been earlier delegated this power was not competent to grant sanction on 27-12-1978.
15. ' In reply to this plea, learned Advocate-General who appeared for the State submitted that since admittedly the offence took place in 1974 much earlier than the rules were amended by the Provincial Government of Sind, the Deputy Director Food was competent to exercise powers under the unamended rules. This submission is based on the judgment of Sind High Court in the case of Muhammad Jaffar v. The State (PLD 1984 Kar. 126). Facts of this reported case are that appellant in the case who was a compounder in Dispensary Bobi, District Sanghar, was entrusted with pay of the staff working under him by way of a cheque for Rs, 658.97, including his pay of Rs, 260. He got the cheque encashed on 3-9-1975, but did not disburse the amount of Rs, 398.97 to the staff immediately, and kept away the amount with himself. He, however, disbursed the amount on 19-10- 1975 and was tried for temporary mis-appropriation. The Special Judge found him guilty and sentenced him under section 409, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 to suffer imprisonment till rising of the Court and pay fine of Rs, 400. In support of the 'appeal, it was submitted on behalf of the appellant that the sanction for prosecution granted by the Chairman, Anti-Corruption Committee on 3-9-1975 was bad in law as he was not the competent authority in this behalf on that day. Learned counsel appearing for the State conceded to the plea raised and stated that he was not supporting the impugned judgment. In this connection, learned Judge of Sind High Court observed as follows:-- "It is admitted position that on 3-9-1975, Chairman of Anti-Corruption Committee was not competent authority to sanction the prosecution of the appellant under subsection (5) of section 6 Pakistan Criminal Law Amendment Act, 1958. It was only by Notification No, FE & AC-150/26/78, dated 2-5-1978, issued by Government of Sind, that Chairman Anti-Corruption Committee was authorised to give such sanction, and consequently prosecution of the appellant on the basis of sanction accorded by Chairman, Anti-Corruption Committee was illegal and without jurisdiction."
16. There is nothing in this judgment that has parallel to the facts of the present case. What is important for the purposes of this case is the fact that as from 2-5-1978 the power to grant sanction for prosecution in respect of the appellant before us was vested in the Chairman of the Council or Committee in terms of the amended rule framed by the Provincial Government of Sind by virtue of the clause (a) of subsection (2) of section 12 referred to above, and the Deputy Director Food who was the appointing authority of the appellant and who, was empowered under the previous rules framed by the Government of former Province of West Pakistan on 10-12-1962 stood relieved of the power to grant sanction for prosecution. He was, therefore, not competent in law to grant sanction for prosecution on 27-12-1978. On this clear position in law, the sanction granted by the Deputy Director Food was totally invalid in law, and the appeal must therefore succeed and is accordingly allowed with the result that the conviction and the sentence recorded against the appellant are set aside.