1. This is an application under section 561-A, Cr.P.C. For the quashment of proceedings pending against the applicant under section 161, P.P.C. Read with section 5(2).Of Act 11 of 1947, before the learned Sessions Judge, Sukkur.
2. The brief facts giving rise to the application are that on 1-6-1977 F.I.R. Under section 161, P.P.C. Read with section 5(2) of Act II of 1947 was lodged against the applicant and the co-accused. After necessary investigation they were sent up before the Senior Special Judge (Central), Karachi on 30-5-1978. After obtaining necessary sanction charge was framed against the accused. However, case was later on transferred to the Court of learned Sessions Judge, Sukkur. The applicant moved an application for quashment before this Court being Criminal Miscellaneous Application No.511 of 1984 which was allowed by my learned brother Saiduzzaman Siddiqi, J. On 11-4-1985 on the ground that sanction was not proper. However, it was observed that quashment of proceedings will be no bar to the subsequent prosecution of the petitioner on the basis of valid sanction, if permissible otherwise under the law.
3. That thereafter fresh sanction was obtained and supplementary challan was submitted before the Court can 28-6-1986. The applicant moved an application under section 249-A, Cr.P.C. Read with section 265-K, Cr.P.C. But the same was dismissed by the learned Sessions Judge, Sukkur on 6-6- 1987. The present application has been filed for the quashment of the above proceedings.
4. I have heard Mr. Abdul Rehman Bullo, learned counsel appearing for the applicant and Mr. Imam Bux Shaikh, learned counsel appearing for the State. I have also gone through the documents produced alongwith the quashment application including the sanction order. It has been contended by Mr. Abdul Rehman Bullo, learned counsel appearing for the applicant that the sanction does not contain the date and other details. It does not even show as to what material was considered by the sanctioning authority nor it shows that the sanctioning authority had applied mind before accord of sanction, and therefore, it could not be regarded as sanction under the law. In support of his contention he has relied upon PLD 1960 Kar. 251 and 1982 P Cr. L J 530. Mr. Imam Bux Shaikh, learned counsel appearing for the State has conceded to the above factual position.
5. SANCTION ORDER "Whereas it appears that accused Shafqatullah Shaikh, being employed as Inspector F.I.A. Sukkur and as such a public servant m the employment of Central Government sometime during November, December, 1976 in collusion with co-accused Abdul Rashid and Nazir Ahmed Abbasi A.S.I. And in furtherance of common intention demanded Rs.2 lacs as illegal gratification from Abdul Rehman, Contractor as a motive to show favour to him by absolving him from the charge of smuggling and being in possession of smuggled bottles of liquor. He in collusion with other two co- accused later on reduced the demand to Rs.60,000 and accepted the said amount of illegal gratification as motive or reward.
6. The accused thus committed the offences punishable under section 161/347/34 of the Pakistan Penal Code and subsection (2) of section 5 of the Prevention of Corruption Act, 1947 (1I of 1947).
7. And whereas the Federal Government on perusal of papers, consideration of the facts and expediency of the matter, is satisfied that there exists a prima facie case against the accused and he may be put on trial.
8. Now, therefore, the Federal Government is pleased under subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958) to sanction the prosecution of the said accused for the aforesaid offences, or any other offence under any provision of law that the Court may consider fit, in the Court of the Special Judge (Central) having jurisdiction in the matter."
9. The bare reading of the above sanction order shows that it does not show as to on what date the accused had demanded illegal gratification nor does it show as to on what date the amount of Rs.60,000 was accepted as illegal gratification. Even it does not show as to what material was placed before the Government at the time of according sanction. Even it does not show as to on what date the Committee had met and the sanction was granted. In the case of Masoodul Hassan Oureshi v. The State and another 1982 P Cr. L J 530 it was observed that a perusal of the alleged sanction order shows that neither it bears a direction for the prosecution of the petitioner nor any date, thus, it cannot be treated as proper sanction. In the case of Abdul Rashid v. The State PLD 1960 (W.P.) Kar. 251 it was observed that no extraneous evidence has been given in this case to prove that Mr. Nizam Din was made aware of the details and of the explanation given by the accused. This sanction order suggests some pro forma was sent to him with a draft and he merely decided. Such sanction and was held to be mechanical sanction was disapproved by the Court."
10. From the above factual as well as legal position it is clear that the authority who had accorded sanction did not apply its mind to the facts of the case. Even date of offence and date of sanction are not mentioned nor it is mentioned as to what documents were taken into consideration, and therefore, I am of the considered view that the sanction was accorded mechanically without applying mind to the facts of the case and, therefore, the prosecution of the A applicant on the basis of the above sanction was illegal. I, therefore, allow this application and quash the proceedings pending against the applicant before the learned Sessions Judge, Sukkur. However, this will have no bearing over the departmental action against the applicant, or which may be taken against him in future.
11. I had decided the above application on 19-1-1989 by a short order and these are the reasons for the same.