' G. M. SHAH, J.-The respondents were challaned on 7-4-1972 by the Special Police Establishment for offences under sections 409/471/120 (B), P. P. C. Read with section 5(2) of Prevention of Corruption Act II of 1947. The respondent No, 1, Shafiuz Zaman was employed on or about 16-5-69, as Manager National Bank of Pakistan, Newtown Branch Karachi. Respondent No, 2 Faizuddin had an account, in the same branch, bearing Account No, 525. It is alleged that Shafiuz Zaman, while employed as a Manager, entered into a criminal conspiracy with Faizuddin and in furtherence of that conspiracy transferred a sum of R9. 30,010 from Account No, 85 of the Hyderabadi Imdadi Trust, without authority and deposited the same into the account of Faizuddin who subsequently withdrew the said amount and appropriated it to himself.
2. Before the case was sent up in the Court of the Special Judge (Central), Karachi for trial, Shafiuz Zaman was removed from service. The case, however, proceeded in the Court, without obtaining the sanction for prosecution, from the appropriate Government, as required under section 6(5), A of the Criminal Law Amendment Act, 1958, upto a stage when the objection was raised, before the trial Court, that it had no jurisdiction to try the respondent in absence of appropriate sanction to prosecute them. The question of want of sanction, weighed with the learned Special Judge, who- while placing reliance on the case of Dr. Abdul Fateh Usrani v. The State (1) acquitted the respondents, holding that the protection provided under section 6(5) of the Criminal Law Amendment Act 1958, extended to a public servant, who was not in service, at the time, the Court took the cognizance and in absence of the sanction, the cognizance so taken was without jurisdiction.
3. This acquittal appeal is directed against the said judgment, of acquittal. On behalf of the State, it has been contended that the learned Judge had seriously erred in law, by placing reliance on the case of Dr. Abdul Fetch, when the same question was reconsidered by the Supreme Court of Pakistan in its latest decision, in the case of Muhammad Abbas v. The State (2). The view held in the case of Dr. Abdul Fateh was not approved and it was further held as follows :--- "The effect and scope of the provisions contained in subsection (5) of section 6 of the Criminal Law Amendment Act, 1958, was considered by the Full Court in the case of Nazir Hussain Shah v. State and it was held that the bar to prosecution contained in section 6(5) of the Criminal Law (Amendment) Act would, on the plain meaning of term 'public servant' apply to, only those persons, who were public servants at the time, when the Court took cognizance of the offence, with which they were charged, under the Act and not to persons, who at {{FOOT NOTE}}
(1) 1972 SC M R 239 (2) 1974 S CMR 444 {{FOOT NOTE}} the time of the alleged commission of the offence were such public servants. This view was reiterated in Ataur Rehman v. State. The learned counsel has, however, drawn our attention to.
Abdul Fateh v. State in which a Division Bench of this Court seems to have taken a contrary view, by observing that "it does not stand to reason that with the termination of his service the accused loses the protection provided in section 6(5) that previous sanction of the appropriate Government will be required to prosecute him". We consider that in view of the dictum of the Full Court, in the case Nark Hussain Shah, which was reiterated in the subsequent case of Ataur Rehman, the view taken by the Division Bench in the case of Abdul Patch, cannot prevail. It appears that the two previous decisions were not brought to their Lordships' notice.
4. We find that the Supreme Court judgment in the case of Mohammad Abbas was delivered on 25-1-1974. It is evident that the judgment was not available before the learned Special Judge (Central), Karachi, as no reference thereto, is made in the acquittal judgment dated 27-4.1974.
5. The acquittal of the respondents was based on the technical ground of absence of sanction, which we find was not based on the proper consideration and appreciation of law, on the point. We accordingly sat aside them acquittal, as it had resulted in the miscarriage of justice and we direct, that the case may be remanded to the Court of the Special Judge (Central), Karachi and proceeded with, from the stage of passing of the acquittal judgment. The appeal is accordingly allowed.