1. Applicant, Ajmal Aqeel, is an Inspector of Income Tax Department, who was posted at Karachi. On 8-6-1985 on the complaint lodged by one Nisar Ahmed, FIA, Crime Circle 11, Karachi, took up the investigation of this case and a trap was led by them. The FIA party under the supervision of a Magistrate caught the applicant and his (clerk Shamsher Ali along with the tainted money. The tainted money according to the case of prosection was received by Ajmal Aqeel, the applicant herein, who had passed it on to co-accused Shamsher Ali from whom it was recovered.
2. During the investigation of the case, the FIA Police approached the concerned department for according sanction to prosecute both the accused in the case before the Court of Special Judge, Anti-Corruption (Central) at Karachi. The Government of Pakistan in the Ministry of Interior by their letter dated 16th October, 1986 addressed to the Director-General, Federal Investigation Agency, Islamabad, declined to accord sanction to prosecute applicant but directed that a departmental enquiry be conducted against him. Ultimately the Federal Investigation Agency put up a report under section 173, Cr.P.C. Against Shamsher Ali in Court but placed the applicant in column 2 of the Challan.
3. Column 2 in the charge-sheet (Challan) is meant for accused persons who are either not sent up for trial by the Investigating Authorities or Tnnot A be apprehended by them. The latter are shown as absconders in red ink. The name of the applicant has not been shown in red ink which clearly indicates that he was not required in the case.
4. Ordinarily when the name of a person appears in column 2 f the . Challan it is up to the trial Court to take cognizance of the offence against that person as well if on the basis of evidence brought on its record he is found to be involved in the case. The name of such persons are mentioned in the charge-sheet as otherwise Courts who are required to take cognizance of the offences and the accused persons on the basis of some Police report, cannot at a later stage take cognizance against such persons even though found involved in the commission of the offences. The mention of such persons in the final .Report filed in Court by the Police to enable the Court to take cognizance against persons at a later stage without any legal difficulty.
5. It appears that in the present case after recording of some evidence against co--accused.
6. Shamsher Ali, the Special Judge found that some evidence had been brought against the present applicant as well. He therefore issued him a show-cause notice why he should not be prosecuted in the case. The applicant approached this Court and judgment was passed on his application (bearing No.Cr. Misc. Application No.347 of 1990) on 31-3-1991, whereby it was dismissed as being premature.
7. The applicant then filed a written explanation to the show-cause notice issued by the trial Court and pointed out that the competent authority had declined to accord sanction to prosecute him.
8. The trial Court passed an order on 24th August, 1991 and held that it was a fit case where a reference for grant of sanction in terms of section 6(5) of the Criminal Law Amendment Act, 1958 be made to the Central Government.
9. The trial Judge waited for 60 days calculated from 3rd October, 1991' when he had sent such a reference and passed an order on 9th January, 1992. He then addressed a letter to the applicant intimating him that as he had not received any decision of the Federal Government either ways he would presume grant of sanction to prosecute him.
10. It is against the order passed on 9th January, 1992 that the present application has been filed by the applicant.
11. Mr. Gul Zaman Khan, Advocate for the applicant ' has mainly contended that in the present case when the sanction to prosecute the applicant was specifically refused by the Federal Government, he could not be tried in the Court for that offence at a subsequent date. According to him section 6(5) of the Criminal Law Amendment Act, 1958, is applicable to only such cases where the competent authorities delay in taking decision either to accord or refuse sanction. In this case since the sanction was refused even the Special Judge was not competent to make such reference in terms of provison of section 6(5) of the Criminal Law Amendment Act, 1958.
12. Mr. Habibur Rasheed, Advocate appearing for the State, does not oppose this application.
13. In a case where a Government servant is to be prosecuted for offences under section 161, P.P.C.
14. Read with section 5(2) of Act 11 of 1947, the Special Judge, a Court of special jurisdiction under a special enactment, can only assume jurisdiction if the primery requirement of law is met with and previous sanction to prosecute a public servant is obtained under section 6(5) of the Pakistan Criminal Law Amendment Act, 1958. The first proviso to that subsection, however, provides that the Special Judge can take cognizance in cases where the complaint or the Police report is not accompanied by a proper sanction to prosecute a public servant after he makes a reference to appropriate Government for grant of such sanction and the Government do not decide either ways on expiry of 60 days from making of such reference when he shall presume that sanction is duly accorded.
15. It is thus clear that grant of notional sanction under the law can only be acted upon when no communication either ways has been received from the appropriate Government. In the present case admittedly sanction, to prosecute the applicant was already refused and it has also been pointed that in answer to the reference made by the Court, the appropriate Government referred to the previous decision and addressed a letter to it and thereby E reaffirmed their decision and refused to accord sanction to prosecute the applicant.
16. In a case like the present one where the Government refused to accord a sanction to prosecute the applicant the FIA could not enter the name F of the applicant in column 2 of the Challan. In such a case it would have been appropriate to mention above facts in column 6 of the Challan to give an indication to the Special Judge that he could not proceed to try the applicant as sanction to prosecute him was already refused by the concerned Government.
17. In view of above the proceedings against the applicant pending in the Court of Special Judge (Central) 1, at Karachi, are quashed and the application. Allowed.