MUHAMMAD BASHIR Versus THE STATE
1. The appellant Muhammad Bashir, son of Abdul Latif was tried by the learned Special Judge Anti-Corruption, Sukkur who by his judgment, dated 15-10-1990 convicted the appellant under section 5(c) read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to undergo R.I. for two years and fine of Rs.1.000 in default of payment of fine to undergo R.I. for three months more. The House No.B /2024 was also ordered to be forfeited to the Provincial Government. The appellant has challenged the impugned judgment under this appeal.
2. I have heard Mr. Muhammad Aslam Bhutto learned counsel for the appellant and Mr. Abdul Sattar Chohan, learned counsel appearing for the State. Since a legal point was raised by the learned counsel for the appellant, therefore, it is not necessary to refer the evidence available on record. Accordingly the evidence on record is not being referred.
3. It is an admitted position that the appellant was employee as Senior Clerk in Mechanical Engineering Department Sukkur Division, and therefore, he was a public servant. It is also an admitted position the appellant being a public servant at the time of his trial, he cannot be tried without prior sanction from the competent Authority. The point raised by the learned counsel for the appellant is that the competent Authority had refused the sanction for the trial of the appellant and the same could not be reviewed by the competent Authority, therefore, the trial of the appellant on the basis of sanction order granted subsequently to the initial order of refusal of sanction, is not sustainable and consequently the trial Court could not take cognizance of the offence on the basis of subsequent sanction. In this regard the learned counsel has placed reliance on the case of Mukhtiar Ahmed v. The State reported in 1980 P Cr. L J 725 and another case of Shabbir Ahmed Khan v. The State reported in 1981 P Cr. L J 1262. Faced with this position, the learned counsel for the State does not support the impugned judgment.
4. The point raised by the learned counsel has a lot of force. In this regard the evidence of Investigating Officer is very material. P.W.4 Circle Officer Hafiz Muhammad Chhutal has admitted in his cross-examination as under:--
5. "It is correct that the Committee had declined to accord sanction for prosecution of accused and they ordered for departmental enquiry. Thereafter, reference was made to Committee No.II against the decision of Committee No.III and with the request to accord prosecution sanction and it was accordingly accorded."
6. It will appear from the above admission made in the cross examination of the Circle Officer that competent Authority i.e. Committee No.I11 in which the Investigating Officer himself was also Secretary of that Committee, where the sanction was applied for, it was refused and departmental enquiry was ordered. Once the sanction was refused, it could not have been reviewed by another committee and therefore the subsequent grant of sanction by Committee No.II which amounted to reviewing the decision of Committee No.I1I was not in accordance with the law. In the reported case Mukhtiar Ahmed v. The State relied upon by the learned counsel as aforesaid, position was exactly the same as in thus case In the reported case, the applicant Mukhtiar Ahmed was a public servant and was posted as Building Inspector. He was accused of accepting illegal gratification from one Muhammad Parviz for making a favourable report. The Anti-Corruption Police after investigating the matter recommended that the accused should be dealt with departmentally, subsequently the District Anti-Corruption Committee decided that the accused should be prosecuted. However, the competent Authority refused to grant sanction and the orders were conveyed to the Anti-Corruption Police. In the meanwhile the Chairman of the Committee who was the competent Authority was transferred and was succeeded by a new Chairman.. The new Chairman reviewed the order of his predecessor and granted sanction. The applicant accused Mukhtiar Ahmed filed quashment application under section 561-A, Cr.P.C. and the case pending before the Special Judge AntiCorruption which was based on the subsequent sanction was quashed. It was observed that a similar question had arisen before the Honourable Supreme Court in Criminal Appeals Nos.K-31 and K-32 of 1969, the Supreme Court applied the principle of locus poenitentiae, came to the conclusion that since a decisive step had been taken in both the appeals, there was nothing left in the Government to revise order of refusal to grant sanction for prosecution. In the case of Mukhtiar Ahmed accused the High Court came to the conclusion that the same principle was attracted and as the sanction had been refused by the competent Authority and the same had been conveyed to the police, therefore, it was not open to the competent Authority to revise the earlier order and grant sanction.
7. In the present case also the position is the same. The competent Authority was Anti-Corruption Committee No.III and the Investigating Officer was also its Secretary. The said Committee No.III had refused to grant sanction and had ordered for departmental enquiry. Since the Investigating Officer was its Secretary, it will be presumed that the decision was conveyed to the Anti-Corruption Police. It is further obvious that the decision was conveyed from the fact that the Anti-Corruption Police then applied for review of the order to Committee No.II and the S.P. Anti Corruption by virtue of his official capacity was Secretary of Committee No.11. It will thus appear that not only the competent Authority i.e. Committee No. III had refused to grant sanction for the prosecution of the appellant but in fact the decision was conveyed to the police as well as the concerned department. As such a decisive step had already been taken and, therefore, the Committee No.11 could not revise earlier order.
8. The result of the above discussion is that since the grant of sanction for the trial of the appellant was illegal, the prosecution of the appellant before the Special Judge, Anti-Corruption also became illegal and therefore, the impugned judgment is not sustainable. Accordingly I allow this appeal and set aside the conviction and sentence of the appellant. The appellant is on bail, his bail bond is discharged..
9. N.H.Q./M-1871/K Appeal allowed.