' The present application under section 561-A, Cr.P.C. For abashment of proceedings pending against the applicant in the Court of Sessions Judge, Sukkur, under section 161-347/34, P.P.G. Read with section 5(2) of the Prevention of Corruption Act, 1947, (Crime No,6 of 1977, F.I.A. Sukkur), arises out of the following facts and circumstances.
2. On 7-12-1976 complainant Abdul Rehman made an application against Shafqatullah Inspector, Rashid Ahmed Sub-Inspector (present applicant) and Nazir Ahmed Abbasi A.S.I. Of F.I.A. Sukkur, to Assistant Director F.IA. Sukkur, alleging therein that they being public servants, had demanded a sum of Rs,2,00,000 which was subsequently reduced to Rs,60,000 and was accepted by them as illegal gratification for releasing him from their unlawful custody. Qn the basis of this application F.I.R. In Crime No,6 of 1977 F.IA. Sukkur, was registered against the accused and after usual investigation all the three accused were sent up before Special Judge (Central) Karachi. The case was, however, transferred to the Court of Sessions Judge, Sukkur. Co-accused Shafqatullah and Nazir Ahmed Abbasi moved an application under section 561-A, Cr.P.C. (Criminal Miscellaneous Application No,511 of 1984) on the ground that the sanction was not proper. This application was allowed by this Court on 11-4-1985, leaving it open to prosecute them on the basis of valid sanction, if permissible otherwise under the law. Thereafter fresh sanction was obtained and supplementary charge-sheet was submitted against the said accused on 28-6-1986. Both Shafqatullah Inspector and Nazir Ahmad Abbasi A.S.I. Filed separate applications under section 561-A, Cr.P.C. Before this Court for quashment of proceedings, being Criminal Miscellaneous Application No,356 of 1988, and Criminal Miscellaneous Application No,40 of 1989, respectively, and both were allowed. It is in these circumstances that the applicant has now approached this Court with the same prayer.
3. I have heard Mr. Abdul Rehman Bullo, learned counsel for applicant and Mr. Aziz-ur-Rehman, learned counsel for State. The latter has submitted that the sanction to prosecute the applicant in terms of subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958, appears to be valid and proper.
4. Subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958, which speaks of previous sanction to prosecute a public servant lays down as follows: -- "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 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.
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."
5. Mr. Abdul Rehman Bullo, learned counsel for applicant has questioned the validity of sanction to prosecute the applicant on various grounds. According to him the Section Officer to Ministry of Interior was not competent to accord the requisite sanction. Admittedly the applicant was working as Sub-Inspector F.I.A. At Sukkur at the time of the commission of offence. The explanation to subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958, makes it clear that Federal Government is the appropriate Government in relation to the present applicant. The case of The State v. Syed Afaq Ali and others reported in PLD 1986 SC 550, is relevant on this point. At page 554 it was observed:- "There being no such rule, it is the appropriate Government which is competent to grant sanction, and a reference to the Rules of Business, 1973, shows that it is the Interior Division to which the Federal Government has delegated the authority to exercise power in relation to Anti-Corruption laws. This has reference to the distribution of business among the Divisions under Schedule II, Rule 33 of the Rules of Business, 1973, framed under the unlamented Articles 90 and 99 of the Constitution of the Islamic Republic of Pakistan. No other Division has been allocated the business in regard to Anti-Corruption laws. This being the supreme law, it will take effect in the absence of any delegation of its powers by the Interior Division under section 12(2)(a) of the Pakistan Criminal Law Amendment Act, 1958."
6. The sanction to prosecute the applicant was accorded by the Federal Government (Ministry of Interior). The Section Officer had simply signed the order which he is empowered under the Rules of Business, 1973.
7. Mr. Bullo, learned counsel for applicant has also contended that sanction to prosecute was accorded mechanically without applying mind to the facts of the case. He has placed reliance upon the judgments of my brother Allah Dino Memon, J. In Criminal Miscellaneous Application No,356 of 1988 and Criminal Miscellaneous Application No,40 of 1989, on applications filed by co- accused Shafqat Ullah Inspector and Nazir Ahmad Abbasi, A.S.I., thereby quashing the proceedings against them in the same case in which the present applicant is facing trial. He has also invited my attention to following cases in support of his contention:--
(i) Altaf Ahmad v. The State PLD 1960 Kar. 170,
(ii) Abdul Rashid v. The State PLD 1960 Kar. 251,
(iii) Muhammad Ishaq v. The State PLD 1965 Kar. 192,
(iv) Muhammad Saleem v. The State 1978 P Cr. L J 62,
(v) Abdul Rashid v. The State 1983 P Cr. L J 353 and
(vi) Muhammad Jaffar v. The State PLD 1984 Kar.
125.
8. Out of the above authorities the cases at Nos. (iii), (iv), (v) and (vi) are not relevant in this case. In Muhammad Ishaq v. The State reported in PLD 1965 Kar. 192, the Special Judge sought sanction from wrong officer and commenced trial after not receiving any reply. It was in that context that A.S. Faruqi, J. (as he then was) held that the trial of accused was without jurisdiction. In cases at Nos. (iv) to (vi) the sanction for prosecution was accorded by wrong persons.
9. The cases at Nos.(i) and (ii) were decided by M.B. Ahmad, J. (as he then was). Both these cases pertained to misappropriation of different amounts at different time. The order by which sanction to prosecute the accused was accorded did not give the details of the amount so misappropriated and it was in this context that the learned Judge held that the sanction was mechanical. The facts of this case are distinguishable and it relates to acceptance of Rs,60,000 as illegal gratification.
10. As observed in the case of Ghulam All Jinnah v. The State reported in 1975 P Cr. L J 583, the purpose of providing for sanction appears to be none other than affording a protection to a public servant against frivolous accusations and prosecutions.
11. For prior sanction no particular form is prescribed. Therefore, in accordance with commonsense and requirement of fairplay all that the order of sanction must show is that all relevant materials were placed before the competent authority and that the authority considered the said material before according the required sanction. In the case of Manzoor Elahi v. The State reported in PLD 1960 Kar. 607, the requirement of sanction was considered and it was held:-- "The sanction need not be in any particular form, but it should be a sanction, that is to say, deliberate approval of the proposal to prosecute for an offence. There is no approval if the sanctioning authority did not apply its mind to the question; nor is it a valid approval if prosecution for a particular offence or specified offences is not approved. The manner in which such a sanction may be granted is a matter of detail, relevant to the facts of each sanction; but the onus of proving that such sanction was validly granted is on the prosecution. If prima facie the sanction is good yet the accused seeks to challenge it as invalid in reality he should question it 'at the earliest moment when the prosecution could have supported by evidence the inference which even without it can be drawn'. If this is not done then the inference cannot be challenged."
12. In Abdul Salam v. The State reported in 1968 P Cr. L J 675, it was observed that where the sanctioning authority granted sanction after perusing relevant record and on consideration of all the facts of the case, the mere fact that sanction was not in proper form or did not contain full particulars, would not lead to conclusion that the sanction was invalid.
13. The case reported as The State v. Muhammad Moosa and 4 others PLD 1970 Kar. 386, is a direct authority on this subject. At page 395 Muhammad Hayat Junejo, J. (as he then was), observed that simply because the exact date or the place, where the offence is alleged to have taken place was not mentioned, it would not render the sanction invalid.
14. The case reported as The State v. Malik Riaz-ur-Rehman PLD 1965 Quetta 1, is another important authority on the point of sanction, wherein a Division Bench of erstwhile High Court of West Pakistan held that the mere fact that sanction is not in proper form or does not contain fully particulars cannot lead to conclusion that no sanction was given.
15. An attempt was also made on behalf of applicant to show that explanation of the applicant was not called before according requisite sanction. The answer to this contention is provided by cases reported as Manzoor Elahi v. The State PLD 1960 Kar. 607 and Zahooruddin Shah v. Azad J&K Government PLD 1960 Azad J&K 62, wherein it was observed that consideration of explanation of the accused before according sanction is not the requirement of subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958.
16. The sanction order is on record. In order to appreciate the point in issue, it would be profitable to reproduce it in extenso:-- "Sanction order ' WHEREAS it appears that accused Rashid Ahmed, Sub-Inspector, F.IA. Sukkur, sometime during November/December, 1976 in collusion with co-accused Shafqatullah Shaikh, formerly Inspector, F.IA. Sukkur and Nazir Ahmed Abbasi, A.S.I. F.IA., Sukkur illegally arrested and wrongfully confined contractor Abdul Rehman and in furtherance of common intention of himself and the said co- accused demanded illegal gratification for his release and thereafter, with a view to extorting money from the said Abdul Rehman, he (accused Rashid Ahmed) and co-accused Shafqatullah Shaikh escorted him (Abdul Rehman) to Allied Bank, Frere Road, Sukkur, on 1-12-1976, and there Abdul Reman encashed Cheque No,194385 through over draft facility for a sum of Rs,62,000 out of which Rs,60,000 were delivered as illegal gratification to him (accused Rashid Ahmad) and co- accused Shafqatullah Shaikh for all the accused persons as a motive or reward for releasing contractor Abdul Rehman and thereby committed the offences punishable under section 161/347/34 of the Pakistan Penal Code, and 5(2) of the Prevention of Corruption Act, 1947 (No,II of 1947).
(2) AND WHEREAS the Federal Government, on perusal of papers and 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.
(3) 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 Rashid Ahmed, for the aforesaid offences, or any other offence/offences under any provision of law that the Court may consider fit, in the Court of the Special Judge (Central) having jurisdiction in the matter."
17. A glance to the order of sanction would show that it is in proper form and the sanctioning authority had before it relevant material on the basis of which I the sanction was accorded.
18. A prima facie case is disclosed against the applicant. The exercise of inherent jurisdiction for abashment of criminal proceedings at an early stage gives an unfortunate impression of stifling of criminal prosecution. The cases reported as M.S. Khawaja v. The State PLD 1965 SC 287 and Ghulam Muhammad v. Muzammil Khan and 4 others PLD 1967 SC 317 are leading judgments on this point.
19. For the above reasons, I see no merit in this application filed under section 561-A, Cr.P.C. And dismiss it.