1. By this single order the abovementioned three bail applications are being disposed of.
2. All the applicants in these cases were granted interim pre-arrest bail and today the matter is fixed for confirmation or otherwise of that order. Learned D.A.-G. Has very frankly conceded that the applicants are entitled to pre-arrest bail and therefore, he does not oppose the confirmation of the order granting interim pre-arrest bail to them.
3. The procedure for trial of cases before the Special Judge is laid down in section 6 of Pakistan Criminal Law Amendment Act, 1958. Subsection (5) of section 6 of Pakistan Criminal Law Amendment Act has provided that previous sanction of the appropriate Government shall be required for the prosecution of a public servant for an offence under this act. In case there was no previous sanction received by the Investigating Officer before the challan, there is provision that the Special Judge shall immediately on receipt of the report write a letter to the Government requiring such sanction and in case the sanction is neither received nor refused within sixty days of the receipt of that letter, such sanction shall be deemed to have been duly accorded.
4. Apart from that the necessary sanction, could not be said to have been granted in this case as the pre-requisite for a sanction of prosecution is that, a person must stand reported or challaned, in the Court of law under provisions of section 173, Cr.P.C. For whom sanction of prosecution is needed for trial.
5. Another aspect of the case is that even if the trial Court was of the view that these applicants stand challaned, the Court had to write a letter to the Government under provision of subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act and thereafter if no reply was received from the Government within a period of sixty days, the Court could presume the sanction. In this case, the letter in respect of the applicants requiring sanction from the Government has not been written by the trial Judge and the learned D.A.-G. Has conceded to this position. He has further stated that he had ascertained through the Investigating Officer that no such letter seeking sanction against the present applicants was ever written by the trial Judge.
6. Mr. Ilyas Khan, learned counsel for the applicants placed before me a certified true copy of a letter written by Special Judge, Central-1. Karachi (Syed Hassan Shah Bukhari) which shows that sanction was requested for prosecution of the co-accused who were actually shown in the report under section 173, Cr.P.C. The names of the present applicants are not included in that letter. It appears that learned Presiding Officer, who took over from Syed Hassan Shah Bukhari, has considered the first letter to be sufficient for seeking the sanction of the prosecution against the present applicants. Learned D.A.-G. Has conceded that, that letter does not fulfil the requirements of the provision of subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958, as against the present applicants, as their names do not appear in this letter. Therefore, it cannot be said that there exits sanction against the present applicants for their trial by the Special Judge.
7. Be that as it may, unless there is clear sanction of prosecution of the case against the applicants, they cannot be tried in this case. If the prosecution wants to include the names of the applicants in the charge-sheet under section 173, Cr.P.C., it can make such clear move. Thereafter, the question of sanction has to be resolved under the terms as provided by section 6(5) of Pakistan Criminal Law Amendment Act. 1958. Till such time that these matters are resolved, the applicants who arc public servants, are entitled to freedom and therefore, entitled to pre-arrest bail. Consequently, they are allowed to remain on bail. The earlier order of granting them interim pre-arrest bail is hereby confirmed, on the same terms and, conditions.
8. The observations made in this order, should not influence the mind of the trial Court, as the same were considered tentatively for deciding these bail applications.