' This is a petition under section 561-A, Cr.P.C. For abashment of the proceedings pending in the Court of Special Judge, Anti-Corruption, Lahore.
2. Brief facts of the case are that a case F.I.R. No,22 was registered against Muhammad Abbas petitioner on 9-5-1979 under section 5(2) of the/ Prevention of Corruption Act, 1947 and section 161, P.P.C. After the trial the learned Special Judge by his judgment, dated 6-1-1981 convicted the petitioner, and sentenced him to undergo two years' R.I. Plus fine. The petitioner filed an appeal in the High Court against his conviction which was accepted on 15-2-1986 and the case was remanded for retrial. After remand the case was retried by Rao Iqbal Ahmad, the then Special Judge, Anti-Corruption, who recorded the statement of the accused/petitioner and the defense evidence. Before he could conclude the trial he was transferred and was succeeded by Sh. Munir Ahmad, Special Judge, Anti-Corruption, Lahore, who vide his judgment, dated 20-1-1988 set aside the proceedings conducted by his predecessor, namely, Rao Iqbal Ahmad holding the same to be void ab initio and ordered retrial of the petitioner by him.
' Hence, this petition for abashment of the proceedings.
3. The main plank of arguments of the learned counsel for the petitioner is on the competency of the learned Special Judge to hold a de novo trial at his own motion. According to him, after framing the charge, the learned trial Court could either convict the petitioner or acquit him for want of sanction as contemplated by law. It is further contended that the petitioner had already suffered mental torture and agony for about 12 years and his third trial would be a great hardship to him and will not advance the cause of justice in any manner.
4. The prosecution case against the petitioner was that he had accepted Rs,900 as illegal gratification from Muhammad Hussain complainant on 9-5-1979 while serving as Building Inspector, L.D.A. For not taking action against him in the construction of his shops without getting the plan approved from L.D.A.
5. Mr. Munir Ahmad Sheikh, Special Judge, Anti-Corruption, Lahore held that since the sanction for prosecution of the petitioner was not proved to have been granted by the competent authority before the framing of charge, therefore, the proceedings held in absence thereof were void ab initio and for that reason ordered his fresh trial.
6. Learned counsel for the petitioner contends that section 6(5) of the Pakistan Criminal Law Amendment Act, 1958 makes it mandatory that sanction shall be obtained for the prosecution of a public servant from the appropriate Government, but in the case against the petitioner the prosecution had failed to prove that the sanction for prosecution had been obtained or accorded before 19-4-1980 when the charge against Aim was framed, or that the Special Judge had addressed a letter to the appropriate Government for according the necessary sanction.
7. No date of the grant of sanction is mentioned in the order Exh.P.D. Which casts a serious doubt on the prosecution assertion that it had been granted before the framing of charge. It is an admitted position that it was not appended with the challan papers. The grant of sanction for prosecution before taking cognizance of the case by the Court was a mandatory requirement which was not fulfilled by the prosecution. Therefore, his trial was illegal. It is a settled proposition of law that trial of a public servant without sanction by the competent authority is illegal and the conviction if recorded in its absence would also be illegal. The present case was registered against the petitioner on 9-5-1979 and it would not be in the interest of justice to start his trial afresh after a period of more than 16 years, particularly when he is reported to have retired from service. Since he has already suffered the agony of these proceedings for such a long period, I do not consider that his fresh trial would advance the cause of justice. Furthermore no power under the law vests in the learned Special Judge to set aside the earlier proceedings of the case and order de novo proceedings. By doing so, he tried to fill in the lacuna in the prosecution case.
7. In the above circumstances, the petition is accepted and the order of the learned Special Judge, dated 20-1-1988 is set aside and the petitioner is ) honourably acquitted of the charge.