1. ANWARUL HAQ, J.-The petitioner Muhammad Abbas, a former Assistant Sub-Inspector of police, was convicted by the-Special Judge-cum---Enquiry Officer, Anti-Corruption, Karachi, under section 101 of the Pakistan Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947, and sentenced to undergo rigorous imprisonment for 9 months, and to pay a fine of Rs.400. In default of payment of fine he was ordered to undergo further rigorous imprisonment for three months. His appeal has been dismissed by a learned Single Judge of the High Court of Sind & Baluchistan by his judgment dated the 13th of September 1973.
2. The allegations against the petitioner were that he had demanded a bribe of Rs. 500 from the complainant Masood Pervaiz for showing him favour in the matter of a criminal case relating to the alleged recovery of a stolen transistor radio and a piece of cloth said to have been left at the com- -plainant's house by one Nisar Ahmad. Masood Pervaiz reported the matter to Mr. Sharif Khattak, Advocate, and on his advice the Anti Corruption Police were apprised of the demand. A sum of Rs.
3. 200 was agreed to be paid to the petitioner on the evening of the 28th of February 1968 at the Rainbow Restaurant situate near Majestic Cinema, Karachi. A raid was organized and the services of a Magistrate were secured to supervise the same. The petitioner reached the Rainbow Restaurant at the appointed time, received the money and was apprehended at the spot by the Magistrate and the Inspector of the Anti-Corruption Police. The money was recovered from his person, and the currency notes tallied with the numbers which had been previously recorded by the Magistrate.
4. While pleading not guilty at the trial, the petitioner asserted that he had been taken to the Restaurant by the complainant on false pretences and that in fact he had never taken the money which was picked up by the raiding party from the ground. The petitioner also alleged that he had been falsely implicated owing to the complainant's suspicion that he was on terms of intimacy with the complainant's wife. He produced defence evidence in support of his position.
5. Both the Courts below have, however, rejected the defence of the petitioner and have held that the prosecution had succeeded in establishing the case against the petitioner, especially on the basis of the evidence of the Magistrate who had supervised the raid, and had also made a note at the time the tainted money was recovered from the person of the petitioner.
6. Leave to appeal is sought on the following grounds :-
(a) That the Courts below have omitted to give weight to the fact that according to the complainant the bribe had been demanded on the 24th of February 1968, and was to be paid that very evening, but in fact the payment was made on the 28th of February 1968 ; and
(b) That the trial was bad for want of sanction from the competent authority, and the Courts below were in error in thinking that the sanction was not necessary in this case owing to the dismissal of the petitioner from Government service on the 20th of May 1968.
7. There is no merit in both these submissions. It is correct that according to the complainant the petitioner demanded the bribe on the 24th of February 1968, and that he wanted it to be paid that very evening, but the fact remains that no payment was made on that date, and the petitioner was physically apprehended at the Rainbow Restaurant on the 28th of February 1958. The High Court has rightly observed that when the bribe was not paid on the 24th of February 1968, the petitioner kept on contact--ing the complainant who in turn sought the advice of an Advocate friend, which advice led to the laying of the trap.
8. As regards the second point, the relevant facts are that the petitioner was a public servant on the date of the commission of the offence, viz., the 28th of February 1968, but he was dismissed from service by the Inspector General of Police on the 20th of May 1968. It appears that on the 13th' of March 1968, an interim report was submitted by the Investigating Officer to the Court concerned for obtaining a remand, as the period of the previous, remand was to expire on the.14th of March 1968.
9. The remand was granted by the Court. The argument is that by granting remand the Court had taken cognizance of the offence alleged to have been committed by the petitioner, but on that date the sanction of the appropriate authority had not been obtained even though the petitioner was continuing in public service.
10. The effect anti scope of the provisions contained in subsection (5) of section 6 of the Criminal Law (Amendment) Act, 1958, was considered by the Full Court in the case of Nazir Hassain Shah v. State (PLD 1965 SC 139), and it was held that the bar to prosecution contained in section 6(5) of the Criminal Law (Amendment) Act would, on the plain meaning of the term `public servant' apply to only those persons who were public servants at the time when the Court took cognizance of the offence with which they were charged 8 under the Act and not to persons who at the time of the alleged commission of the offence were such public servants. This view was reiterated in Atau Rehman v. State (PLD 1967 SC 23). The learned counsel has, however, drawn our attention to Abdul Fateh v. State (1972 SCMR 239) in which a Division Bench of this Court seems to have taken a contrary view by observing that "it does not stand to reason that with the termination of his service the accused loses the protection provided in section 6(5) that previous sanction of the appropriate Govern--ment will be required to prosecute him". We consider that in view of the dictum of the Full Court in the case of Nazir Hussain Shah which was reiterated in the subsequent case of Ataur Rehman, the view taken by the Division Bench in the case of Abdul Fateh cannot prevail. It appears that the two previous decisions were not brought to their Lordships' notice.
11. The question, therefore, is whether in this case cognizance was taken by the Court without sanction on a date when the petitioner was still in Govern--ment service. As observed by a Division Bench of the Lahore High Court in A lam Din v. State (1), cognizance is taken by a Court by a judicial act under section 190 of the Cr. P. C. When the Court takes a step indicating that it intends to commence the enquiry or trial in accordance with the provisions of the Code, but the issuance of a miscellaneous order for conducting a search or continuing investigation may not amount to taking of cognizance in the judicial sense. Now in the present case the reliance of the learned counsel for the petitioner is only on the fact that the Court granted a remand order in respect of the petitioner on the 13th of March 1968, although formal cognizance in the judicial sense was admittedly taken after the petitioner had ceased to be a public servant, and accordingly no sanction was required for his trial.
12. For the foregoing reasons, we see no merit in the petition which is accordingly dismissed.