The appellant Muhammad Islam Shah, in 1962, was a Revenue Patwari of Halqa Kalowal, Tebsil Chiniot. In his capacity as public servant, he recovered Rs. 1,193.97 as land revenue pertaining to Rabi 1969 from Sh. Fazal Karim, Sullan and Muhammad Siddiq P. Ws. The allegations are that he did not deposit the same in the Government Treasury and had embezzled it. He was tried for an offence under section 409, P. P. C. By a Special Judge, Jhang and was convicted, accordingly. He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,200. In default of the payment of fine, he was to uneergo further R,, I. For six months. Out of the fine, if recovered, a sum of as. 1,193.97 was to be deposited in Government Treasury to compensate the loss. The sentence awarded in the cases was to run concurrently with the sentence awarded in the case registered vide a F. I. R. No. 197, dated 21-1-1969.
2. The learned Advocate appearing for the appellant has questioned the legality of the conviction for want of proper sanction. He has referred to section 6(5) of Pakistan Criminal Law Amendment Act (XL) of 1958. It provides that notwithstanding anything contained in Criminal Procedure Code, 1898 or in any other law previous sanction of the appropriate Government shall be required for the prosecution of a public servant for an offeace under this Act and such sanction shall be sufficient for the prosecution of a public servant for an offence triable under this Act. He has relied on Rashid Ahmad v. The State . In this judgment their Lordships of the Supreme Court have laid down that if a mandatory condition for the exercise of jurisdiction before a Court, tribunal or authority is not fulfilled, then the entire proceedings which fellow become illegal and suffer for want of jurisdiction.
In case, therefore, I find that the proper sanction to prosecute the appellant has not been given by1 the appropriate Government I shall -have to set aside the conviction without going into the merits of the appeal.
3. The appellant was posted as Revenue Patwari is 1969, when the occurrence took place' The case was registered on 2-7-1970. The sanction to prosecute was accorded by Assistant Commissioner, Chiniot, vide his order dated 17-4-1971 which is on the file. It will have to be seen as to who was the competent authority to grant sanction on 17-4-1971. Under subsection (5) of section 6 of the Criminal Law Amendment Act (XL) of 1958 the appropriate Government is to accord such sanction.
Explanation to this subsection, however, provides that appropriate Government shall mean the Government, which at the time of the commission of the offence was the appropriate Government.
Appropriate Government has been defined in section 2-A and means in relation to a person serving in connection with the affairs of the federation, a railway employee and any other person employed by the Central Government or by a Corporation or other Body or Organization set up, controlled or administered by or under the authority of the Federal Government, the Federal Government and in other cases the Provincial Government concerned. Under section 12 the appropriate Government can frame rules to carry out the purposes of the Act with regard to matters, inter alia authorization of persons to exercise the powers to grant sanction for prosecution on behalf of the appropriate Government in respect of various grades of public servants. The Provincial Government in exercise of its powers under section 12 have made Rules vide Notification No. PRC-3/7/62. Rule 2 provides that the power to sanction prosecution of a public servant under subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act (XL) of 1958 may be exercised on behalf of the Provincial Government by an officer competent to remove such Government servant from office. It, therefore, follows that the authority competent to grant sanction of a public servant employed in the affairs of the Province shall be the officer competent to remove him from office.
4. The West Pakistan Northern Zone Patwar Subordinate Service Rules, 1963 were in force in the year 1971. Rule 2(b) defines Collector, which means Collector of a district as defined in the Punjab Land Revenue Act, 1887 and includes the Settlement Officer, Colonization Officer, Political Agent and any other officer empowered to exercise the powers of a Collector under the said Act. Rule 4 provides that the Collector concerned is the appointing authority to the service. The Patwari, therefore, can be removed from service by the appointing authority, namely, the Collector. The Rules were amended by Notification No. SOR-III-1-14/71 dated 151-1972. For clause (b) of rule 2 a new clause was substituted and it reads "(b)" "Assistant Commissioner" means an Assistant Commissioner incharge of a Sub-Division of a District empowered to exercise powers of Collector under the West Pakistan Land Revenue Act, 1967. In rule 4 for the word "Collector" the words "Assi-taut Commissioner" were substituted. It, therefore, follows that the Assistant Commissioner Incharge of the Sub-Division became the appointing authority of a Revenue Patwari with effect from 15-7-1972.
5. However, it may well be that the powers to remove a Patwari from service was delegated to the Assistant Commissioner before the amendment was brought about in the relevant Rules by notification dated 15-7-1972. In the event of such a delegation, the Assistant Commissioner would be an authority competent to accord sanction.
6. The point was raised in Criminal Appeal No. 25/73 decided by me on 14-6-1977. The learned counsel for the State appearing in that case took time to find if such a power wai ever delegated to the Assistant Commissioner before 15-7-1972. He could not point out any such delegation. The learned counsel appearing for the State was also questioned if be could refer to any such delegation. He too, vFas unable to point out any delegation, The learned counsel for the State wants me to presume that as the sanction had been accorded by the Assistant Commissioner, he had the authority to remove the appellant from the service. I am afraid, it cannot be presumed that such a power was in fact, delegated to him. I, therefore, have come to the conclusion that the order granting sanction to prosecute by the Assistant Commissioner, in April, 1971 was not valid as he was not an appropriate Government in terms of subsection (5) of section 6. I have, therefore no option but to set aside the order of conviction of the appellant. Learned counsel for the appellant, then, argued that the appellant has suffered since 1969 and, therefore, I should not order re-trial of the appellant. I am afraid I cannot accept this. I have set aside the conviction of the appellant taking the view that the legal sanction to prosecute has not been accorded. It will, therefore, be for the appropriate Government to decide whether after such a long delay they should retry the appellant after appropriate sanction. The appeal, is, therefore, disposed of with the above observations. The case is sent back to the conerned Special Judge for taking further steps as are provided under the law. PLD 1972 SC 271