' TUFAIL ALI A. REDMAN, C. J.-A Single Judge of this Court while hearing Criminal Appeal No, 170 of 1970 has referred to the Division Bench the following question for decision :- "Where a person who is a Public Servant at the time of the alleged offence ceases to be such but acquires other Government service before the date of his trial is a sanction necessary for his prosecution by reason of section 6 (5) of the Criminal Law Amendment Act, 1958 ?"
2. Criminal Acquittal Appeal No, 245 of 1969 arises out of one judgment given by the learned Special Judge-cum-Enquiry Officer, Anti-Corruption, Hyderabad in two different cases, namely Special Case No, 74 of 1966 and Special Case No, 86 of 1967, in which the respondents Aziz Ahmad and Ishratullah Khan were the accused persons respectively and by which the learned Judge acquitted the respondents on the ground that sanction, having been granted by the Provincial Government in their case, was not sufficient authority for their trial. On one of the hearings of the Reference to the Divisional Bench it was suggested that the two matters involved common questions of law and they were therefore directed to be connected and we have heard them together and have had the benefit of the arguments not only of learned counsel who appeared for the persons concerned, namely, the accused persons in the original cases but also the learned Additional Advocate-General and Mr. Muhammad Hayat Junejo appearing at our request as amicus curate.
3. Two principal questions of law, I think, really arise for decision as a result of which the Reference can be answered and the appeal decided. The first of these may be stated thus : when a person who was a Government servant at the time of the commission of the alleged offence is prosecuted under the provisions of the Criminal Law Amendment Act, 1958 is a sanction any longer necessary if, at the time when cognizance is taken, he has ceased to be a Government servant ? Another way of putting the same question is to ask whether the material time for determining the status of the accused is the time of the commission of the offence or the time of the taking of the cognizance.
The other main question is, assuming that in a given case sanction is necessary, is the further question which is the appropriate Government to grant sanction to be answered by reference to the time when the offence was committed or by reference to the time when cognizance is being taken of it, that is to say if the Governments under which the Government servant in question was serving at the two times is different which is the Government which is authorised to grant such a sanction.
4. We have been taken by learned counsel in this case through a number of decisions of the Supreme Court of Pakistan and in the light of these cases I do not think that it can be said that the question is res Integra as far as we are concerned, the answers following quite clearly from these decisions by which we are of course bound. It is unnecessary, therefore, to attempt to debate the question afresh or to consider the language of the section for ourselves and it will suffice to refer to these cases. It u ill be convenient, however to reproduce first the provision of law under which sanction is necessary and this is section 6 (5) of the Act of 1958 which reads as follows :- "6(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 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 tribal under this Act : ' Provided that in cases where the complaint or report referred to in subsection (1) of section 4 is not accompanied by such sanction, the Special judge shall, immediately on 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 : ' Provided further that no such sanction shall be required in respect of a case transferred under the proviso to `(3)' of section 4 by virtue of subsection (3) or subsection (4) of section 5, if such sanction in respect thereof has been duly accorded or deemed to have been so accorded the case is so transferred.
' Explanation.- For the purpose of this subsection, "appropriate Government" shall mean the Government which at the time of the commission of the offence was the appropriate Government."
' It will be seen that the subsection refers to the 'appropriate Government' and that expression is defined in section 2 (a) of the Act as follows :- "2 (a) "appropriate Government" means in relation to a person serving in connection with the affairs of the (Centre) and any other person employed by the Central Government or by a corporation or other body or organization set up by the Central Government), the Central Government, and in other cases, the Provincial Government concerned."
' The first of these cases is that of Humid Ghulam Sadiq v. Pakistan (1), and in this case the facts were somewhat peculiar. The appellant was admittedly in the service of the Government of Punjab and was then deputed to the Central Government where, by reason of some misconduct alleged, he was charge-sheeted but her he was retired in circumstances which seemed to indicate that Government intended to drop the entire proceedings against him. Thereafter while in receipt of a pension from the Provincial Government he was prosecuted with the sanction of the Central Government and before the Special Judge he took up the defence that the trial was invalid inasmuch as he was no longer in service but, although that Court did not give effect to this objection, it gave him time to have the matter decided by the Central Government. This not being done in his favour he applied to the High Court in a petition for on the ground that he was not serving the Central Government and also on the ground of the decision of the Central Government to which I have alluded. The point was not taken before the High Court that since he was not in Government service at all he could not be tried. So far as the contention that the previous decision of the Central Government barred his trial both the High Court and the Supreme Court to which he appealed by special leave came to a conclusion against him. The Supreme Court however held that since he was not at the time of the prosecution a servant of any Government at all he could not be tried before a Special Judge. Now on principle it would seem to follow from this judgment not only that the material point of time is the time of the prosecution but that if a person be not a servant of any Government at the time of the prosecution he cannot be tried by a Special Judge at all. This decision however is no longer in the field because it was a decision upon the 1943 Act which has since been repealed and replaced by the 195s Act the provisions of which are in question before us in the present cases. I am not therefore making any greater reference to this decision of the Supreme Court.
5. The first case of importance and indeed one which still really holds the field is that of Ali Ahmad v. The State (2). In this case the position was that the appellant was a public servant at the time of the offence but not when he was prosecuted. The sanction of the Provincial Government of East Pakistan had been obtained for his prosecution and it was therefore argued, on the authority of Hamid Ghulam Sadiq's case that the trial was bad. This contention was repelled by the Supreme Court in the following language :- "It is lastly contended by the learned counsel that the trial of the appellant was without jurisdiction, as the sanction was not granted by any competent authority. In support of his argument he has also invoked in aid the decision of this Court in the case of Hamid Ghulam Sadiq v. Pakistan and others PLD 1960 SC 351. It is argued that since on the date the sanction to prosecute the appellant was given by the Provincial Government he was not a President of the Union Board and, therefore, not a public servant, the Provincial Government of East Pakistan could not possibly have granted the sanction for his prosecution. He was not serving any Government at {{FOOT NOTE}}
(1) PLD 1960 SC 351 (2) PLD 1962 SC 102 {{FOOT NOTE}} that tree, as he had after being actually defeated in the election, actually made over charge of his office on the 21st of July, 1958. He was re-elected as Basic Democrat only on the 9th March 1960, he was not a public servant serving any Government and, therefore, no Government could have granted the sanction for his prosecution.
' This decision is, however, distinguishable, fog, in the case of //amid Ghulam Sadig the impugned sanction was granted under the Criminal Law Amendment Act of 1948 and under subsection (5) of section 5 of that Act no prosecution for any offence exclusively triable by a Special Judge could be commenced without a sanction from the appropriate Government. The appropriate Government was also differently defined therein. The Criminal Law Amendment Act of 1948, has, however, now been repealed and replaced by the Pakistan Criminal Law (Amendment) Act of 1958. Under clause
(b) of the Schedule appended to this Act an offence under section 409 when committed by any public servant in his capacity as such public servant is still by virtue of subsection (1) of section 5 triable exclusively by a Special Judge but under subsection (5) of section 6 thereof sanction of the appropriate Government is required only for the prosecution of a public servant for an offence under the said Act. The prosecution in this case was on the basis of a formal complaint lodged by the Assistant Inspector of the District Anti-Corruption Branch, Comilla, on the 5th of March 1953, but the sanction was actually granted on the 16th of April I 959. At the time, therefore, the sanction was granted he had ceased to be a public servant. Thus under the provisions of the Act of 1958, no sanction for his prosecution was at all necessary. In any event, under the explanation given under subsection (5) of section 6 of the Act of 1958, an appropriate Government for the purposes of the said subsection means the Government which at the time of the commission of the offence was the appropriate Government. Thus, if sanction was necessary for the prosecution of the appellant, the only Government that could grant such sanction under the Act of 1958, was the Government under which the appellant was a public servant at the time of the commission of the offence. At that time there can be no doubt that the appropriate Government was the Provincial Government of East Pakistan which had, in fact, granted the sanction in the present case.
' In either event, therefore, this argument is of no assistance to the appellant, for, if sanction was necessary, sanction was granted by the appropriate Government under the Act of 1958, and if no sanction was necessary then the sanction on the record can be treated as a nullity, but the prosecution cannot be said on that account to be without jurisdiction. The Special Judge alone had under the Act of 1958, jurisdiction to try the offence alleged to have been committed by the appellant in his capacity as a public servant and he has done so in the valid exercise of jurisdiction."
6. Clearly, as their Lordships point out Sadly's case was cntirell distinguishable because under the Act of 1948 the prosecution could bt validly held only if a sanction had been obtained and, once it be held that in the case of a person who has ceased to be in Government service a the time of the prosecution no sanction can be awarded, it would obviously' follow that the trial of a retired Government servant before the Specia Judge would be legally impossible. Such is not the position, under the Act of 1958 in which the language which requires a sanction is different as will be seen from the provisions which I have already quoted. Their Lordships of the Supreme Court are therefore clearly holding that in such a case no sanction is at all necessary. But they nevertheless go on to hold, that, if sanction was necessary at all, the appropriate Government would be the Government which was concerned when the offence was committed and that of course in that case was the Provincial Government which had accorded a sanction.
7. The question again arose, at least for discussion, in the case of the State v. Saeed Ahmad (1), and although the judgment of the Supreme Court was in that case delivered by Mr. Justice Kaikaus it is to be noted that his Lordship the present Chief Justice, Mr. Justice Hamoodur Rehman, was a party to this decision and also the author of the judgment of the Supreme Court in the earlier case of Ali Ahmed. In this case some doubt was cast upon the correctness of the decision in the earlier case and the following observation was made :- "As regards the second contention, namely that sanction was required for the prosecution of a public servant and the respondent was not a public servant at any time when he was prosecuted, reliance has been placed on the judgment of this Court in Criminal Appeal No, 9-D of 1961 (Ali Ahmad v. The State). In that case there is an observation to the effect that as the accused was no longer a public servant no sanction fur his prosecution was needed. However, there is the argument that on this interpretation the public servant would be left altogether without any protection for after termination of his services on account of retirement, resignation or otherwise, he would be liable for being prosecuted for every offence alleged to have been committed by him while acting as public servant, even for an offence with respect to which the Government had refused to grant sanction and it may be that we have to reconsider in a proper case what we said in that judgment. In the present case it is not necessary to do so for we find that the provision as to sanction is otherwise no applicable."
' For reasons, which it is unnecessary to detail here it was possible to decide, in that case, that the trial was valid without deciding this question and, apart from the doubt that was cast upon the correctness of the earlier decision, nothing further was said by their Lordships.
8. Ali Ahmed's case was in fact reconsidered in Nazir Hussain Shah v. State (2) but was reaffirmed ; the judgment was delivered by Mr. Justice Fazle-Akbar but it is worth noting that both Mr. Justice Kaikaus and Mr. Justice Hamoodur Rahman were parties to this decision. The following passage from their Lordships' judgment makes it clear that the Court re-affirmed the decision in Ali Ahmed's case :- "`This amended section was construed by this Court in the case of Ali Ahmed alias All Ahmed Mia v.
The State PLD 1962 SC 102. The question for consideration in the above case was : whether sanction n as necessary for prosecution of a public servant in relation to an offence committed by him as a public servant although he {{FOOT NOTE}}
(1) PLD 1962 SC 277 (2) PLD 1965 SC 139 {{FOOT NOTE}} ' had ceased to be a public servant at the time when cognizance was taken of the offence. This Court while holding that no sanction was necessary, observed : "The decision is, however, distinguishable, for, in the case of Hamid Ghulam Sadiq the impugned sanction was granted under the Criminal Law Amendment Act of 1948 and under subsection (5) of section 5 of that Act no prosecution for any offence exclusively triable by a Special Judge could be commenced without a sanction from the appropriate Government. The appropriate Government was also differently defined therein. The Criminal Law Amendment Act of 1948 has, however, now been repealed and replaced by the Pakistan Criminal Law (Amendment) Act of 1958. Under clause ( b) of the Schedule appended to this Act an offence under section 409 when committed by any public servant in his capacity as such public servant is still by virtue of subsection (1) of section 5 triable exclusively by a Special Judge but under subsection (5) of section 6 thereof sanction of the appropriate Government is required only for the prosecution of a public servant for an offence under the said Act. The prosecution in this case was on the basis of a formal complaint lodged by the Assistant Inspector of the District Anti-Corruption Branch, Camilla, on the 5th of March 1958, but the sanction was actually granted on the 16th of April 1959. At the time, therefore, that the sanction was granted he had ceased to be a public servant. Thus under the provisions of the Act of 1958, no sanction for his prosecution was at all necessary."
' In this connection reference may also be made to another decision of this Court in State v. Saeed Ahmed (I) in which a similar question arose and Kaikaus, J. Who wrote the principal judgment observed : "As regards the second contention, namely that sanction was required for the prosecution of a public servant at the time when he was prosecuted, reliance has been placed on the judgment of this Court in Criminal Appeal No, 9-D of 1961 (Ali Ahmad v. The State). In that case there is an observation to the effect that as the accused was no longer a public servant no sanction for his prosecution was needed. However, there is the argument that on this interpretation the public servant would be left altogether without any protection for after termination of his services on account of retirement, resignation or otherwise, he would be liable for being prosecuted for every offence alleged to have been committed by him while acting as public servant, even for an offence with respect to which the Government had refused to grant sanction and it may be that we have to reconsider in a proper case what we said in that judgment. In the present case it is not necessary to do so for we find that the provision as to sanction is otherwise not applicable."
' In view of the above observations we have re-examined the question of necessity of sanction in such cases. It seems to us that the language of the Explanation appended to subsection (5) of section 6 being clear and unambiguous it is not open to us to read into it limitation which is not there, by reference to extraneous circumstances. Acceptance of Mr, Zullah's contention would mean that by mere fact of retirement or remova' {{FOOT NOTE}}
(1) PLD 1962 SC 277 {{FOOT NOTE}} ' from service, a public servant who had been guilty of grave offences referred to in the Act of 1958 could escape the stringent procedure and heavy punishment provided by that Act and would be subject only to ordinary law providing lesser punishment and more relaxed procedure. It seems that with a view that such retired or removed officers should not be relieved of the stringent procedure and heavy punishment necessary provisions were made in the Act of 1958 by adding an Explanation to subsection (5) of section 6. This is also clear from the statement of object and reasons in the Bill introducing the enactment. It is therein stated : "It has been clarified that sanction is only necessary in the case of public servants and not in the case of private individuals or retired Government servants and that sanction is required of the Government under whom the public servant was serving at the time of the commission of the crime."
' Though it is not legitimate to refer to the statement of objects and reasons as an aid to construction or for ascertaining the construction of the words used in the Act, nevertheless it can be referred to for the limited purpose of ascertaining the conditions prevailing at the time which actuated the sponsor of the Bill to introduce the same and the extent of urgency or evil which he sought to remedy. If this background of the enactment is borne in mind there is no room for doubt that the intention of the Legislature was that "no sanction would be necessary for prosecution of a public servant who had ceased to be a public servant when the Court was taking cognizance of an offence which had been committed by him when he was a public servant and this was also made clear by adding an Explanation to section 6 (5)". The question was again considered by the Supreme Court in the case of Ataur Rehman v. State (1) but in this case their Lordships referred to the fact that the question had since been decided in the case of Nazir Hussain Shah and, while again re-affirming the decision in Ali case, added another reason for that decision by observing :- "There is another aspect of the case. Under the Constitution all citizens are equal before law and are entitled to equal protection of law (Fundamental Right No, 15). The protection against prosecution without previous sanction of the appropriate Government conferred on public servants by the Criminal Law Amend rent Act, XL of 1958, is discriminatory and a clog on the dissension of justice. The provisions of subsection (5) of section 6 must therefore be narrowly construed and not given the wider meaning so as to include even those who at the time the Court takes cognizance of the offence allegedly committed by them have ceased to be public servants."
8. On the basis of these cases therefore it seems to me that the position in law is perfectly plain namely that a sanction is necessary if the person accused is a public servant at the time of the prosecution but not if he is no longer so and that, when sanction is necessary, the question which is the appropriate Government has 'to be decided with reference to the time at which the offence took place. Some difficulty has been however created by an observation in a subsequent case decided by their Lordships of the Supreme Court, namely, the case of Abdul Fateh v. The State (2).
Here really the question was the time at which cognizance could be said to have {{FOOT NOTE}}
(1) PLD 1967 SC 23 (2) 1972t C M R 239 {{FOOT NOTE}} ' been taken. Admittedly up to a particular date the appellant in that case was in service and the High Court took the view that cognizance was taken after that date but the Supreme Court, reversing the High Court, came to the conclusion that cognizance was taken earlier and therefore held that the trial was bad. Later in the judgment however, their Lordships made this observation :- "A plain reading of the aforementioned provisions of the Criminal Law (Amendment) Act and the description of the offence in the Schedule leave no doubt that the Special Judges have jurisdiction only to try public servants for the commission of the offences specified above and to try persons who are connected with the commission of those offences by public servants as abettors, conspirators, etc. While an accused person in the first category must be 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."
9. This observation does seem, if I may be permitted to say so with the utmost respect, to imply that where a public servant is prosecuted after his retirement sanction is still necessary but it seems to me that their Lordships had in this case already decided that sanction was necessary because cognizance was taken at the time when the appellant was in service and that this observation is in the nature of an obiter dictum. Of course even though an obiter dictum the observations of the Supreme Court are entitled to the very highest respect. In view however, of the long line of decisions in which the other conclusions had been reached and the fact that the other decisions are Full Court decisions while the case of Abdul Fateh was decided by two of their Lordships I think I must still understand the law as it has been laid down in the earlier cases.
10. It would follow from what I have stated above that the reference to the Division Bench must be answered in the affirmative. Although this Bench is required only to answer the question of law so far as the reference is concerned, I think it would be as well to point out the peculiar circumstances of that particular case. The appellant was admittedly in the service of the Government of West Pakistan when the offence took place and was employed in that part of West Pakistan which is now Sind. It is a matter of some controversy whether he was thereafter dismissed or he resigned but in either event his connection with Government as an employee seems to have ceased and when he was later prosecuted he was prosecuted sanction, presumably on the basis of the view of the law taken by the Supreme Court. It has however now transpired that in the meantime he had been re- employed by the Government of West Pakistan afresh and was posted somewhere in the Punjab and is now a. Servant of the Government of Punjab. In other words he was a public servant at the time of the commission of the offence and also at the time when he had been prosecuted but in between these dates had severed his connection with Government service. Nevertheless I think sanction would be necessary for his prosecution.
11. So far as the Acquittal Appeal is concerned the two respondents were admittedly at the time when the offence was committed Tapedars in the office of the City Deputy Collector, Karachi and thus in the service of the Provincial ("Averment. However, the offence that is alleged against them is that they misappropriated sums of money which they had recovered and which were recoverable as income-tax. On this account the learned Special Judge took the view that it was necessary to obtain the sanction of the Central Government since the recovery of the tax was on behalf of the Central Government. There is admittedly a sanction in the case but that is a sanction not given by the Central Government but by the City Deputy, Collector who was authorised to grant sanction by the Provincial Government in effect therefore a sanction by the Provincial Government. Now it is perfectly clear on the record that although the moneys were due as income-tax but they were being recovered as arrears of land revenue under the Revenue recovery Act, 1890. I am quite unable to agree therefor with the learned trial Judge that the appropriate Government would be the Central Government. Even though the taxes belonged to the Central Government, the accused persons were still acting as persons serving in connection with the affairs not of the Centre but of the Provincial Government for the recovery of the land revenue is the function of the Provincial Government and if income-tax is recovered by that mean': it is still the Provincial Government which is doing so for the benefit of t Central Government. The employee in question therefore still remains the employee of the Provincial Government and does not become within the meaning of section 2(a) of the Act of 1958 "a person serving in connection with the affairs of the Centre and any other persons employed by the Central Government".
12. The learned trial Judge also relied on some sanction accorded by the Central Government for continuance of the temporary staff of a Mukhtiarkar and some others for recovery work. Admittedly there was no evidence that this included the two accused persons in regard to whom the learned Judge says that they should have been, therefore deemed to be employed by the Central Government. Assuming even that this was so ft it would mean only an administrative arrangement between the two Governments and would not affect the issue whether the accused was serving in connection with the affairs of the Centre. He was still serving not in connection with the affairs of the Centre but with the affairs of the Provincial Government. This Acquittal Appeal must, therefore, I think succeed. I would therefore allow the appeal, set aside the acquittal and direct that the respondents be tried according to law.
13. Learned counsel for the respondents argued that the respondents had already stood their trial from the 25th of August 1967 up to the 8th January 196) and that therefore we ought not to direct a re-trial. Now if we were setting aside an acquittal which was the result of examination of evidence it might be possible to take the view that by reason of a protracted trial it would not be in the interest of justice so to order but the acquittal in this case took place upon the ground only that the prosecution was invalid and I do not think therefore that this is a proper consideration by reason of which we should refuse to order a retrial. It is of course open to the Government to take into account the fact that these Government servants have been under trial or facing this appeal since late 1967 and on that account to withdraw the prosecution but that must be for the Government and the Government alone.
' FAKHRUDDIN G. EBRAHIAI, J.-I agree. . Retrial ordered.