' SALEEM AKHTAR, J.---The petitioner seeks leave to appeal against the judgment of the learned Judge in Chambers whereby the criminal appeal filed by the respondent was allowed and his conviction and sentence under section 409, P.P.C. Read with section 5(2) 'of the Prevention of Corruption Act (Act II), 1947 was set aside on the ground that no valid sanction in writing of the appropriate government as required by law had been obtained.
2. Pakistan State Oil is a company controlled and managed by the Ministry of Petroleum and Natural Resources. The company has installed several petrol pumps at different places in Pakistan.
Coming to know of the malpractice in respect of petrol pump installed at P/1, Defence Housing Society, Karachi, investigation was carried out by the officials of the company who discovered that the respondent had not been depositing the full amount in the account of the company and has misappropriated a sum of Rs.21,93,153.50 in conspiracy with Accountant Muhammad Khalid. The Divisional Manager lodged a report with the F.I.A. During investigation Muhammad Khalid was released under section 169, Cr.P.C. While the respondent was challaned before the Special Court.
The learned Special Judge (Central I) Anti-Corruption, Karachi, by judgment dated 3-8-1992 convicted the respondent 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 three years. The respondent filed appeal which was allowed by the impugned judgment dated 17-1-1993.
3. At this stage we may clarify that the petitioner had taken a serious objection to the date on which the judgment was announced. According to the learned counsel for the petitioner the appeal was heard on 10-1-1993 and the judgment was reserved, but from the certified copy of the judgment it seems that it was announced the same day. This controversy has arisen because the judgment bears the date of 10-1-1993. In order to ascertain the correct position we called for the cause list and we found that in the cause list of 17-1-1993 this appeal was fixed for announcement of judgment. We are of the view that the date (10-1-1993) mentioned in the judgment is a bona fide typographical error.
4. The only ground on which the appeal was allowed is that the respondent is a public servant and no valid sanction to prosecute as provided by law was obtained from the appropriate government.
The office has pointed out that the petition is barred by 257 days and this objections has been pressed by Mr. A.H. Memon, learned ASC for the respondent. The petitioner has filed application for condonation of delay pleading that the case related to Federation Government, but no notice of appeal was given to it. The petitioner came to know about the acquittal of the respondent on 10-9- 1993 and started taking steps for filing the petition in this Court. Application for copy of judgment in the criminal appeal was made on 8-10-1993 which was made ready on 11-10-1993 and the petition was filed on 24-10-1993. Considering the facts and circumstances of the case we keep this question of limitation open to be argued at the time of hearing of appeal as we propose to grant leave to the petitioner.
5. Mr. Shahudul Haque, learned counsel for the petitioner contended that as no notice of appeal was issued to the petitioner, it was, heard behind the back of Federal Government as well as F.I.A.
Which is irregular and the judgment cannot be sustained in law. In this regard from the record it transpires that at the time of admission of the appeal the learned Judge in Chambers had ordered notice to be issued to the Advocate-General. This notice was accordingly served on the Advocate- General who handed over the brief to an Advocate of A.-G.'s Panel who had argued the appeal in the Court. We had issued notice to the Advocate-General to appear and he made statement that at no point of time the Adovcate-General or the Panel Advocate who conducted the case, had taken instructions or even referred the matter to the Federal Government or F.IA. The contention of Mr. Memon is that under section 422, Cr.P.C. Notice is issued to such officer as the Provincial Government may appoint in this behalf and as notice had been issued to the Advocate-General, the provisions of law had been complied with. Mr. Shahudul Haque, learned counsel for the petitioner, however, contended that due to non-issuance of notice to the petitioner, its view point was not placed before the Court and it has been put to .Disadvantage. The learned counsel contended that as the provisions requiring sanction for prosecution as provided in Cr.P.C. Have been declared to be void by the Federal Shariat Court and confirmed by the Supreme Court, there was no need for obtaining any sanction from the appropriate government. The Federal Shariat Court pronounced the judgment on 29-6-1989 reported as Federation of Pakistan v. Zafar Awan Advocate PLD 1989 SC 84 which was confirmed by the Shariat Bench of the Supreme Court by judgment dated 13-1-1991 reported as Federation of Pakistan v. Zafar Awan Advocate PLD 1992 SC
72. It was held that the provisions of section 197, Cr.P.C. And section 6(5), Pakistan Criminal Law Amendment Act, 1958, act as a clog or impediment for an aggrieved party against a State functionary to seek redress in a Court of law. It was observed that it is an unguided clog on the right of an aggrieved person to seek redress which is clearly against Injunctions of Islam. The Court granted time for. Bringing about the change in the law till 30-6-1992 failing which these provisions of law would cease to have effect. Nothing has been brought to our notice that any amendment has been made in these provisions of law. The period of six months granted by-the Supreme Court expired on 30-6-1992. The learned trial Court convicted the respondent on 3-8-1992 while the High Court acquitted him on 17-1-1993. As section 197, Cr.P.C. And section 6(5), Pakistan Criminal Law (Amendment) Act, 1958 ceased to have effect from 1-7-1992, question arises whether it will affect the pending proceedings as well. We, therefore, grant leave to consider inter alia the following contentions raised by the learned counsel for the petitioner:--
(i) Whether in the facts and circumstances of the case the delay in filing the petition could be condoned, particularly as the appeal has been decided merely on a technical ground and not on merits?
(ii) Whether failure to issue notice to the Federal Government and F.IA. Rendered the entire proceedings before the High Court illegal and without jurisdiction?
(iii) What will be the effect of judgment reported as Federation of Pakistan v. Zafar Awan Advocate PLD 1992 SC 72 on pending proceedings?
6. Issue bailable warrants in the sum of Rs.50,000 against the respondent.