' This appeal is directed against the judgment dated 27-6-1988 passed by the learned Special Judge, Anti-Corruption, 'Lahore whereby he was convicted under section 417, P.P.C. And sentenced to imprisonment till rising of the Court and to pay a fine of Rs,2,000 and in default of payment of fine to undergo R.I. For two weeks. He was acquitted under section 5(2) of the Prevention of Corruption Act and also under sections 420, 468, 471, 409, P.P.C.
2. The brief facts of the case are that the appellant was employed as Head Clerk in Town Committee Hujra Shah Muqeem District Okara in June, 1978 and served there till January, 1984 when he tendered resignation on 18-1-1984 which was accepted by the competent authority on 23- 1-1984. During this period it transpired that the date of birth of the appellant was 1-1-1942 but he forged the same in the certificate as 1-1-1953. Some other allegations of misappropriation and corruption were also levelled against him so a case was registered against him under the above- noted sections. He was challaned and tried, and convicted as mentioned above.
3. The appellant has filed an appeal under section 10 of the Pakistan Criminal Law Amendment Act, 1958 challenging his conviction and sentence. Before raising the contentions on merits of the case the learned counsel for the appellant at the very outset contended that as the sanction for the prosecution of the appellant was not sought from the appropriate authority because when the occurrence took place the appellant was a public servant and he does not lose the protection provided to him under section 6(5) of previous sanction of the appropriate Government for prosecution. It was also argued that trial without sanction was illegal as the same is to afford protection against frivolous prosecutions and this protection is available to public servant for acts done as public servant even after he ceases to hold the office.
4. Conversely the learned counsel appearing on behalf of the State submitted that the sanction was not required in this case as the appellant had resigned on 18-1-1984 which was accepted on 23-1-1984 and the case was registered against him much after his resignation was accepted so he was no longer the public servant. He also argued that the provision of sanction of the President or a Governor of the Province or any other Executive Authority has been declared as repugnant of the Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) by the Federal Shariat Court and a direction has been issued to amend the law upto 1st January, 1990 failing which this provision of sanction shall cease to have effect.
5. I have heard both the learned counsel at length and have gone through the judgment of the learned Supreme Court reported as Dr. Abdul Fateh Ursani v. The State 1972 SCM R 239 and a judgment of Sindh High Court reported as Ghulam All Jinnah v. The State 1975 P Cr. L J 583, wherein it has been laid down that, "A plain reading of the provisions of sections 2, 4 and 6(5) 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 specified offences 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."
6. It is correct that pevious sanction of the Executive Authorities in section 197, Cr.P.C. And in section 6(5) of the Pakistan Criminal Law Amendment Act (XL of 1958) has been declared as repugnant to Islam and Sunnah but that has been challenged in the Supreme Appellate Court and no decision has so far been made. Moreover it has been rightly argued by the learned counsel for the appellant that this judgment does not apply to this case because the pronouncement of the Federal Shariat Court is a procedural law which can be applicable only in prospective and not in retrospective. It may be pointed out that the occurrence of this case took place before 1978 when the appellant was employed in the Town Committee, Hujra Shah Muqeem.
' Resultantly I allow this appeal and set aside the judgment and acquit the appellant. The retrial cannot be ordered in this case as laid down by the Supreme Court of Pakistan in the aforesaid judgment that the same is not justified in law.