This appeal under section 410, Cr. P. C. Is directed against the judgment of Mr. Ghulam Hussain S. Ansari Special Judge-cum-Enquiry Officer, Sukkur, dated 12-3-1970, whereby he tried and convicted the appellant for 'an offence under section 409, P. P. C. Read with section 5(2) of the Preven-- petition of Corruption Act (II of 1947) and sentenced him to undergo R: I. For three years and a fine of Rs. 5,000 or in default of payment of fine to further 6 months' R. I.
2. The facts briefly are that the appellant was working as a junior Clerk in the year 1962 in the office of Agricultural Assistant, Kot Lalu, District Khairpur. It is alleged that in January 1962, the appellant sold 700 bags of fertilizer at the rate of Rs. 7 per bag and mis-appropriated the cost amounting to Rs. 4,900. At that time one Kazi Allahdino was Agricultural Assistant there and the appellant was working as a clerk in that office. In the absence of Kazi Allahdino, 35 wagons of fertilizer reached at mot Lalu Station, for unloading, on 13-1-1962, which were unloaded and kept there and when Kazi Allahdino came the appellant told him that fertilizer had reached and he had disposed of 1212 bags and gave him Rs. 2,500 and he further told that he had paid Rs. 1,680 to coollies for unloading the bags and 400 bags he sold to one Sumar Khan on credit. He was asked by Kazi Allahdino to clear the account immediately or he will report the matter to the police. The appellant requested for one day tine but had not return. On 3-3-1962, Kazi Allahdino sent a report to the Extra Assistant Director Agricultural, Khairpur against the appellant and when after a few days he reached there, he found that the appellant was working there as a clerk. He immediately informed Mr. Kouser A.I, the Extra Assistant Director that the appellant has not cleared the accounts and had not returned the sale proceeds of the fertilizer sold by him without authority.
3. It appears that the appellant thereafter, did not return to the office and sent his resignation.
There is an observation of the learned trial Judge that the appellant's resignation was accepted but he was discharged from the service. I am at a loss to find his report from the record of the case before me. Neither Mr. Manzoor Hussain counsel for the State was able to state that the resignation of the appellant was rejected by the Department. On the other hand he candidly conceded that before the cognizance of the case was taken the appellant was riot in Govern--ment service. As I have pointed out, the record of the case is silent on this point, except a letter of the Deputy Director Agricultural, Khairpur Division No. E-3/8103/67 dated 25-11-1967, sent to the Circle Officer, A. C. E., Khairpurit reply of his letter whereby he states that "Mr. Ghulamullah Jamro, Jr. Clerk, is, at present, not in service. He is residing at Ranipur," and the same fact is repeated in the charge-sheet dated 30-4-1968 at page 91.
4. I have heard Mr. Nooruddin Sarki, Advocate for the appellant and Mr. Manzoor Hussain, Advocate for the State. At the very outset a pre--liminary legal objection was raised by counsel for the appellant that the entire trial of the appellant is illegal because the learned Judge Anti-Corrup-- petition had no jurisdiction whatsoever in absence of prior sanction under the Anti-Corruption Laws from the relevant authority and no such sanction existed or has been obtained. In the alternative it was submitted by counsel relied on Dr. Abdul Fateh Ursani v The State (1972 SCMR 239) wherein it was held the Prevention of Corruption Act (II of 1947) section 5 (2) read with Pakistan Criminal Law Amendment Act (XL of 1958) sections 4 and 6(5) give jurisdiction to Special Judge only to try public servants or those who are connected withcommission of offence by public servants as abettors, conspirators etc., sanction for prosecution having been refused from a, proper authority and resignation from his post having been accepted, the trial by the Special Judge in the circumstances would not be permitted lay law. This was a case where Assistant Health Officer was charged under section 161, P. P. C. And section 5(2) of the Prevention of Corruption Act (11 of 1947) in the Court of Special Judge, Hyderabad for taking bribe of Rs.
100. He was, however, discharged by the learned trial Judge on production of refusal of sanction by the proper authority i.e. Municipal Authority but the Provincial Govern--ment however, filed a revision petition in the High Court challenging the legality of that order, on the grounds, that since the appellant had ceased to be a public servant before the Special Judge took cognizance of the case, no sanction for his prosecution was necessary. This appeal was allowed by the above order and special leave to appeal was obtained to challenge the legality of the order of the trial Court. It was held that in case the appel--lant has ceased to be a public servant. The Special Judge had no jurisdiction to try the case and that the accused person does not lose the protection provided in section 6(5) that previous sanction of the Government will be required to prosecute him after termination of his service.
5. The next case relied, is Rashid Ahmad v. The State (PLD 1972 SC 271). This was a case where Rashid Ahmed was tried and convicted by the Special Judge for mis-appropriating Government money and he was sentenced to six months, R. I. And a fine of Rs. 7,000. The conviction-was challenged by the appellant under the plea that the sanction accorded for his prosecution was illegal. High Court did not consider this plea and. Dismissed his appeal and at the leave stage before their Lordships of the Supreme Court, a report was called from the Government of Pakistan.
Ministry of Defence wherein it was admitted that the sanction of the Central Govern--ment was not obtained and on the other hand Executive Officer Wah Cantt. Accorded sanction of Rashid Ahmed by notification which was issued by the Provincial Government. A preliminary objection on behalf of the respon--dent was raised that as no objection to the jurisdiction of the Special Judge was raised by Rashid Ahmed before the learned Special Judge, as well as the High Court, was repelled referring to the following observation made in the case of Mansab A.I v. Amir and others (PLD 1971 SC 124): "It is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction. The learned Advocate- General fully supported this view and asked for dismissal of the appeal." and it was held by their Lordships that "the sanction accorded by Executive Officer Wah Cantt. Was without jurisdiction.
Wah Cantonment is under the Central Government and under section 6 (5) of the Pakistan Criminal Law Amendment Act, the sanction could only be issued by the Central Government or by any officer authorised by it. Under section 2(a) of the Pakistan Criminal Law Amendment Act, the appropriate Government is the Central Government and the sanction in this case should have been issued by the Central Government. In the absence of any such sanction the trial of the accused was declared illegal and without jurisdiction. The Special Judge could not take cognizance of the case without the proper sanction." The appeal was accepted and a fresh trial after proper sanction was ordered.
6. In the present case the alleged mis-appropriation of the amount is said to have occurred in the year 1962 while the F. I. R. Was filed after three years i.e. On 29-3-1965 and the appellant was charge-sheeted on the 20th March 1969, while it is stated by the Department in the letter stated above that the appellant was no more in service in the year 1967 and admittedly no sanctionprosecution of the appellant has been passed on that application. Neither the original application was produced before the Court by the Department nor resigna--petition of the appellant was produced by the Department nor any order if passed by the Department was produced in Court. Neither any order for sanction to try appellant granted by the-proper authority has been produced. Mr. Manzoor Hussain counsel for the State conceded that in the absence of proper sanction to prosecute the appellant, the learned Special Judge could not take cognizance of the offence, therefore, the trial was not warranted by law. He, however, submitted that although the impugned order of the learned Special Judge suffers from want of jurisdiction, which may be set aside, yet the Department may be allowed to prosecute the appellant under the ordinary criminal law in Criminal Court if so advised. To this submission, Mr. Nooruddin Sarki counsel for the appellant has no objection.
7. I therefore hold that no proper sanction as required by law to prosecute him, has been obtained.
The result is I accept this appeal and set aside the order of the learned Special Judge dated 12-3- 1970. It is however, open to the prosecution to try the appellant under the ordinary law in a Criminal Court if so advised.
8. I had accepted this appeal by my short order on 7-11-1972 and here are the reasons for the same.