1. ' MUHAMMAD AFZAL ZULLAH, CJ.---This is a case of refusal by the High Court to interfere under section 561-A, Cr.P.C. The case is of an accused/cashier in a bank, charged with the offences under sections 420, 406, 409 and 161, P.P.C. As to whether the (the appellant) had acted as he did "in accordance with the direction of his higher officers. And further that the sanction for his prosecution as required has not been sought". And further that whether, on account of the said reasons the commencement of the proceedings would not amount to "abuse of process of law".
2. ' We having heard the learned counsel for the appellant at some length are satisfied that on facts the findings and observations by the learned Judge in the High Court are unexceptionable.
3. Therefore, it was not a fit case for interference under section 561-A, Cr.P.C.
4. The argument of the learned counsel that the appellant had not committed any offence because he acted under the orders of his superiors to say the least is extraordinary. Learned counsel perhaps was oblivious of the provisions in our Criminal Law relating to the vicarious liability. They might be attracted even if the assertion by the learned counsel is accepted as correct.
5. His argument that the F.I.R. Did not disclose any tangible offence against the appellant, also is in the circumstances of this case of no avail to the appellant as during the investigation and inquiries much more incriminatory matter was discovered. F.I.R.'s author when he acts as a general informant could write therein what was of general character, as in this case. This is so only if the so-called F.I.R. Said to have been lodged in 1970 is treated to be formal F.I.R. And also if many complaints said to have been filed by persons and institutions since 1968, are ignored. This question as to which statement would be treated as F.I.R. And which statement, as made during the investigation, is subject for the trial Court to determine. The question: as to whether, sanction under section 197, Cr. P.C. Was necessary in this case is also one of fact and as held in several judgments, it will be for the trial Court to determine the necessity of sanction or otherwise. The stages for such determination depending upon the circumstances of each case, might be totally different from case to case.
6. ' And even if in a given case sanction would have been necessary but without the same the accused is tried and convicted, as it used to be a practice, for a considerable time the appellate Court would, also be competent and at liberty to set aside the conviction.
7. The last argument that the case falls under section 561-A, Cr.P.C. Is the weakest amongst all. We are constrained to observe that the prosecution should not be stifled at the out set. The parties are to be allowed to produce their witnesses and if in the course of proceedings it appears that the case is such that it cannot be tried without the sanction under section 197 of the Cr.P.C. Of the appropriate authority the proceedings should be stopped and reasonable time be given to the complainant to file the sanction of the appropriate authority. The question of acquittal under section 265-K, Cr.P.C. Will arise only if the complainant fails to do so within a reasonable time despite order of the Court.
8. ' In the light of the foregoing discussion this appeal is dismissed with the approval of the findings by the High Court based, as they are, on M.S. Khawaja's case PLD 1965 SC 287. It is a sad commentary on the misuse of section 561-A, Cr.P.C. And other remedies provided by law.