This Criminal Revision Application has arisen in the following circumstances:-
1. The applicant and three other persons were put for trial before the Special Military Court, Hyderabad, for contravention of Martial Law Regulations 16(a) and 22. On the conclusion of the trial, the findings of the Military Court were submitted to the Confirming Authority. The findings were however not confirmed and a re-trial was ordered. Before the proceed--ings would start afresh before the Summary Military Court, Presidential Order 14 of 1972 was promulgated, in consequence whereof, the case stood transferred to the file of the Special Judge-cum-Inquiry Officer, Hyderabad, which was the competent Court for trial.
2. A notice was issued for the appearance of the applicant and the other co-accused on 27-5-1972.
On 21-6-1972, an application was filed by the applicant for his release on the ground that there was no sanction for the trial of the case. The application however came to be turned down by the learned Special Judge for the reasons given by him. It is this order which has been challenged here.
3. It is a trite proposition of law, that the existence of a valid sanction is a mandatory condition for the exercise of jurisdiction in a case under the Criminal Law Amendment, Act, 1958. The learned Special Judge, however, was of the view that if the proceedings had been initiated properly it would not be necessary to accord sanction for its continuance in his Court.
4. I have gone through the case of Stare v. Saeed Ahmed (PLD 1962 SC 277), relied upon by the learned Special Judge but the case is clearly distinguishable as is that case there was a sanction when the case had been submitted before the Special Magistrate. Thereafter it was transferred to the file of a Special Judge, where fresh sanction under the law was not necessary. It was after the repeal of the Criminal Law Amendment Act, 1958, that the case was again transferred to another Special Judge; and it was observed that, in the circumstances of the case, it was not necessary that there should have been a fresh sanction for the trial of the accused before the Special Judge under the Criminal Law Amendment Act, 1958.
5. Subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958, reads as under:- "(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, previous sanction of the appropriate Government shall be required for the prosecution of a public servant for an offence under this Act and such sanction shall be sufficient for the prosecution of a public servant for an offence triable under this Act: Provided that in cases where the complaint or report referred to in sub--section (1) of section 4 is not accompanied by such sanction the Special Judge shall, immediately an receipt of the complaint or report, address, by letter, the appropriate Government in the matter, and if the required sanction is neither received nor refused within sixty days of the receipt of the letter by the appropriate Government, such sanction shall be deemed to have been duly accorded t Provided further that no such sanction shall be required In respect of a case transferred under the proviso to subsection (3) of section 4 or by virtue of subsection (3) or subsection (4) of section 5, if such sanction in respect thereof has been duly accorded before the, case is so transferred."
6. Admittedly, none of the two provisos are attracted and subsec--petition (5) of section 6, clearly mentions that notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law; previous sanction would be necessary. Sanction admittedly was not necessary for the prosecution under the Martial Law Regulations. It has its own Code of Procedure, and certainly it constitutes a law. However, once the case stood transferred from the Military Court, the existence of sanction was a condition precedent to the trial of the accused in the case. It was open to the learned Special Judge even to write to the appropriate Government immediately on the receipt of the case to his file. That also was not done.
7. To my mind, in the circumstances of the case, the trial of the applicant, without a due sanction under the law, would be illegal. The proceedings are therefore quashed and the applicant stands discharged.