' The appellant Ghulam Ali Jinnah was tried by the Special Judge (Central) Karachi on charges under section 409, P. P. C. Read with section 5(2) of the Prevention of Corruption Act. Six separate reports were tiled before him in regard to six different items of embezzlement and separate trials were instituted against him. Although it is not necessary for the purpose of this judgment to state the facts in detail, the prosecution case against the appellant was that by changing the denomination of motor vehicle tax stamps he had collected a higher amount from the owners of the vehicles and credited a lesser amount to the Government and by so doing misappropriated the balance of the amount.
2. The Special Judge received the charge-sheets submitted by the Investigating Agency on the 27th of August 1971, and the trials in each one of the six cases opened on the 26th of January 1972.
The judgments in each one of these cases were recorded on the 21st of January 1973. By separate judgments in each one of the six cases the appellant was convicted of the offences alleged against him and was sentenced to pay varying amounts of fine in each one of these cases although he was ordered to suffer R. I. Until the risine of the Court in each case.
' The appellant has challenged these convictions and the consequent sentences by filing six separate appeals through Mr. S. M. A. Mahmood who has appeared for him ; the State has been represented before me by Mr. Usman Ghani Rashid, Assistant Advocate-General.
3. The contention of Mr. S. M. A. Mahmood, Advocate for the appellant is that the trial of the appellant was without jurisdiction as no sanction for his prosecution had been obtained by the Investigating Agency or by the trial Court in accordance with the provisions of Criminal Law Amendment Act, 1958 In order to fully appreciate this contention it is necessary to make a reference to some dates which are relevant in this context. The offences which are the subject- matter of each one of these appeals were committed at a time prior to the 31st of July 1970. A departmental enquiry was held by the Deputy Controller of Post Offices and the appellant was ordered to be compulsorily retired from service an account of misconduct. After such order of the Deputy Controller of Post Offices the appellant filed a departmental appeal which was decided by the Controller of Post Offices on the 31st of March 1971, and on account of procedural defects in the conduct of the enquiry the earlier order of the Deputy Controller of Post Offices whereby the appellant was compulsorily retired was set aside and a fresh enquiry was ordered. Although there is nothing on the record to indicate as to what ultimately happened in such enquiry Mr. Mahmood has stated before me that the enquiry initiated by the Controller of Post Offices vide his order dated the 31st of March 1971, is still pending. Suffice to say that the established facts are that on the day the charge-sheet was submitted by the Investigating Agency in the Court of the Special Judge the appellant had not ceased to be a public servant and for such reasons a sanction for his prosecution was necessary.
4. The appellant had made an application before the Special Judge during the trial and had made a prayer that the proceedings against him may be dropped by the Court for want of sanction. It seems that the Special Judge heard the parties in regard to this application and by an order dated the 29th of February 1972, the Special Judge came to the conclusion that the appellant having been compulsorily retired was not protected by section 6(5) of the Criminal Law Amendment Act and in such context the Special Judge came to the conclusion that unless the public servant was actively serving he should be deemed to have been removed from service. It would be of benefit to reproduce a paragraph from the order of the Special Judge : "I have heard Mr. M. I. Merchant, Advocate for the accused and Mr. Haqqi, P. Dy. S. P., S. P. E. There is nothing in the order of the Controller of Post Offices, Karachi regarding re-instatement of the accused as Sub-Post Master as a result of setting aside the original order dismissing the accused.
There is no provision in the Pakistan Criminal Law Amendment Act that the sanction was also necessary in case of a public servant, who will be deemed to be in public service. Actually, the accused was not in public service at the time of tiling the challan in this Court nor according to the finding of the Controller of Post Offices, Karachi, in departmental proceedings under the Government Servants Efficiency and Discipline Rules, he will be deemed to be in public service.
Thus the contention of the accused that sanction to prosecute him was necessary in this case cannot be accepted."
5. It is abundantly clear on the record that the allegations in regard to the appellant having committed these offences related to the period woe the appellant was a public servant. It seems that the appellant was proceeded against departmentally and ordered to be compulsorily retired.
Such order of compulsory retirement has also been set aside and a fresh enquiry had been ordered. The actual position therefore, is very clear that on the day the trial of the appellant opened before the Special Judge, the appellant was a public servant and therefore, had protection of section 6(5) of the Criminal Law Amendment Act.
' The learned Assistant Advocate General has invited my attention to a judgment of Supreme Court in the case of Dr. Abdul Fateh Ursani v. State (1). In this case their Lordships of the Supreme Court considered the effect of a public servant ceasing to hold office before the trial and the effect of such cease on the point of obtaining sanction before prosecution. Their {{FOOT NOTE}}
(1) 1972 SCM R 239 {{FOOT NOTE}} ' Lordships came to the conclusion that for the mere fact of a public servant ceasing to hold office, he does not become disentitled to the protection of section 6(5) of the Criminal Law Amendment Act. In such context their Lordships expressed as follows : "A plain reading of the aforementioned provisions of the Criminal Law (Amendment) Act and the description of the offences in the Schedule leave no doubt that the Special Judges have jurisdiction only to try public servants for the commission of the offences specified above and to try persons who are connected with the commission of those offences by public servant as abettors, conspirators, etc. While an accused person in the first category must be a public servant at the time of the commission of the offence it does not stand to reason that with the termination of his service, he loses the protection provided in section 6(5) that previous sanction of the appropriate Government will be required to prosecute him. Mr. Jarnaluddin Ahmed appearing for the State concedes this position."
Under section 6(5) of the Criminal Law (Amendment) Act, the position clearly is that for the prosecution of a public servant previous sanction of the appropriate Government shall be necessary. Such conditions contained in section 6(5) of the Criminal Law (Amendment) Act are identical with the provisions of section 197, Cr. P. C. The purpose of providing for sanction appears to be none other than affording a protection to a Government servant against frivolous accusations and prosecutions. It seems that the purpose is to have a sort of stability in service so that a public servant may not be vexed with prosecution of a nature which could qua the public servant be considered to be frivolous or vexatious. If that be the intention of the Legislature I can possibly see no reason why the protection be available to the public servant only while he is public servant and such protection should be withdrawn as soon as he ceases to hold his office. In essence the accusation is made against a public servant in regard to the acts as a public servant and for such view of the matter that a public servant having ceased to hold office, cannot deprive him of the protection.
' Respectfully agreeing with the observations of their Lordships of the Supreme Court which have been reproduced above I am of the view that the trial of the appellant was without jurisdiction on the ground of want of sanction. The learned Assistant Advocate-General who had brought the judgment of the Supreme Court to my notice has also conceded that the conviction in these cases was illegal and even the trial was without jurisdiction.
6. In the result I allow each one of these appeals and set aside the judgment in each one of these cases and acquit the appellant. The fine if paid shall be refunded.
' Mr. Usman Ghani, the Assistant Advocate-General, has however, made a request that an observation may be made by me in this judgment to the effect that in spite of acquittal on the charges it may be left open to the Investigating Agency to put the appellant on trial should they think it necessary and proper. The position is indeed hypothetical for no sanction has yet been obtained by the prosecution and if the prosecution obtains a sanction it shall be open to the trial Court to consider whether in spite of acquittal having been recorded on these charges a trial would not be barred. It is not necessary for the purpose of these appeals to make a definite order in that regard.