' The appellant K.S. Noorullah son of K.S. Nasrullah was tried by the learned Special Judge (Central- 1), Anti-Corruption, Karachi, who by his judgment, dated 3-8-1992 convicted the appellant under section 409, P.P.C. Read with section 5(2) of Act II of 1947 and sentenced him to suffer R.I. For 10 years and fine of Rs,22,00,000 or in default to undergo R.I. For 3 years more. The appellant has challenged his said conviction and sentence under this appeal.
2. The prosecution case is that on 9-3-1987 a written complaint made by Mr. Ahmed Abbasi, Divisional Manager, P.S.O. Karachi Division, was received in the office of the F.I.A. For registration of the case. In the complaint it was alleged that the company had installed petrol pumps at different places in Pakistan. One such petrol pump was installed at P.1 Defence Housing Society, Karachi which is operated by the company itself under the name and style of Defence Service Station. The complainant's company is controlled and managed by the Ministry of Petroleum and Natural Resources. On 7-5-1986 the appellant was posted as Manager at the petrol pump known as Defence Service Station. The appellant had employed Muhammad Khalid as Accountant and two cashiers namely Abdul Qayoom and Hyder Zaman. The appellant was to run and operate the said petrol pump. The amount collected from the daily sale proceeds of the said petrol pump was to be deposited by the appellant in the company's bank Account No,250-30 H.B.L. Defence Housing Society Branch. On 12-2-1987 a news item appeared in Daily `Mashriq' and `Evening Special' regarding the malpractice committed by the appellant at the said petrol pump. The complainant being the Divisional Manager took note of it and deputed Mr. Syed Zulfiqar Ali Sales Executive of Karachi Division to take into custody all the accounts, register and other relevant record for scrutiny. From the scrutiny of the record carried out by Accounts Manager Mr. Sabir and Accounts Executive Ishaque Siddiqui it was found that with effect from 8-5-1986 the appellant has not been depositing the full amount in the account of the company and has misappropriated a sum of Rs,2,193,153.40. It also appeared that the said amount was misappropriated in conspiracy with his Accountant Muhammad Khalid. On the receipt of the complaint the case was registered and investigated. The appellant and co-accused Muhammad Khalid were arrested. During . The course of investigation co-accused Muhammad Khalid was released under section 249, Cr.P.C. While the appellant was challaned before the Special Court to face his trial.
3. The trial against the appellant commenced when the formal charge was framed against the appellant for having committed offences under section 409, P.P.C., 477-A, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947. The appellant did not plead guilty and claimed to be tried. At the trial the prosecution examined P.W.1 Ahmed Abbasi, complainant, P.W.2 Abdul Rasheed, P.W.3 Zulfiqar Ali, P.W.4 Muhammad Ishaque, P.W.5 Syed Iqbal, P.W.6 Muhammad Asif, P.W.7 Muhammad Khalid, P.W.8 Muhammad Azam and P.W.9 S.I. Muhammad Hand Awan, Investigating Officer. Thereafter the statement of the appellant was recorded under section 342, Cr.P.C., the appellant denied all the prosecution allegations and had submitted a written statement Exh.38.
However, the appellant neither wished to be examined on oath nor wanted to examine any defence witness. After the conclusion of prosecution case, the appellant was convicted and sentenced as already mentioned.
4. I have heard Mr. A.Q. Halepota, learned counsel for the appellant and Mr. Muhammad Zubair Qureshi, Advocate for A.-G. For State. With the assistance of the learned counsel I have gone through the entire evidence available on record and so also the original record of the lower Court. It will not be out of place to mention here that the learned counsel for the appellant has raised a legal question which goes to the very root of the matter and, therefore, it is not necessary to refer to the evidence available on record.
5. The learned counsel for the appellant has stated that the appellant was a public servant at the time of the commission of the alleged offence and even when the challan was submitted at that time also the appellant was public servant, therefore, the appellant could not be tried without prior sanction in writing from the appropriate Government. It is for this reason that the record of the lower Court was carefully scrutinized with the assistance of the learned counsel for the appellant as well as learned counsel for the State. After careful examination of the record it was evident that the sanction for the trial of the appellant was neither obtained nor exhibited on the record.
6. From the perusal of the record it appears that there is no denial of the fact that the appellant is a public servant and right from the initial stage the trial Court has also treated the appellant as a public servant. In this regard I may refer to the charge framed against the appellant (Exh.2). In the charge also the allegation against the appellant was that he had abused his official position as a public servant. Even in the judgment of the trial Court under points Nos.1 and 2, for determination the learned trial Judge, has also formulated the point whether the appellant during his tenure as Sales Manager at Defence Service Station, Karachi was public servant and answered it in the affirmative. Again 'under point No,2 the point formulated was whether the appellant abused his official position as such public servant committed criminal breach of trust. This point was answered as proved. In the statement of the appellant under section 342, Cr.P.C. The very first question put to the appellant was that between 8-5-1986 and 17-2-1987 the appellant was posted as a Sales Manager at the Defence Service Station and as such was a public servant. The appellant replied "Yes Sir". All these circumstances will go to show that the appellant was a public servant and, therefore, his trial and prosecution could not commence without prior sanction in writing. As already mentioned such a sanction was not obtained.
7. In the absence of a valid sanction in writing of the appropriate Government, the very trial of the appellant was illegal and consequently the conviction and sentence of the appellant is not sustainable. It may be noted that the learned Special Judge, Anti-Corruption acquires the jurisdiction to try a public servant only when necessary sanction is accorded. In the absence of such a sanction the learned trial Judge has no jurisdiction. In these circumstances the judgment of the trial Court is not sustainable.
8. In the light of my above discussion I am of the considered view that the conviction and sentence of the appellant is not sustainable in the eyes of law, the trial Court had no jurisdiction, consequently this appeal is allowed and the conviction and sentence of the appellant is hereby set aside. The appellant is in custody, he is to be released forthwith if not required in any other case.