MUHAMMAD ABBAS vs The STATE
This review petition was filed before the Supreme Court of Pakistan seeking reconsideration of an order dated 25th January 1974, which had dismissed a petition for special leave to appeal. The core legal question concerned whether the Special Judge-cum-Enquiry Officer, Anti-Corruption, could take cognizance of an offence under Section 161 of the Pakistan Penal Code 1860, read with Section 5(2) of the Prevention of Corruption Act 1947, without proper prosecution sanction. The Court had previously held, relying on precedent, that the statutory bar to prosecution without sanction applied only to individuals who were public servants at the time the court took cognizance, rather than at the time of the commission of the offence. However, noting a conflict of judicial opinion in subsequent decisions of the Supreme Court on this exact question, the Court directed that the review petition be heard alongside other pending appeals raising the same issue to resolve the conflict.
- Whether the statutory bar requiring sanction for the prosecution of a public servant applies only to persons who are public servants at the time the court takes cognizance of the offence.
- Can a court take cognizance of an offence under Section 161 of the Pakistan Penal Code 1860 read with Section 5(2) of the Prevention of Corruption Act 1947 without proper sanction if the accused has ceased to be a public servant at the time of cognizance?
- How should the Supreme Court proceed when there is a conflict of opinion within its own decisions on a material question of law in a review petition?
- Section 161, Pakistan Penal Code 1860
- Section 5(2), Prevention of Corruption Act 1947
- Section 6(5), Criminal Law (Amendment) Act
ORDER
1. HAMOODUR RAHMAN, C. J.-This is a petition for the review of an order of this Court passed on the 25th January 1974, dismissing a petition for special leave to appeal, being Criminal Petition No. K-81 of 1913.
2. One of the questions which arose for consideration in this case was as to whether the Special Judge-cum-Enquiry officer, Anti-Corruption, could take cognizance of the case against the petitioner under section 161, P. P. C, read with subsection (2) of section 5 of the Prevention of Corruption Act, 1947, without a proper sanction, This Court, relying on a Full Court decision in the case of Nazir Hussain Shah v. State (PLD1965SC138) took the view that the bar to the prosecution contained in subsection (5) of sect ion 6 of the Criminal Law (Amendment) Act applied only to those persons who were public servants at the time when the Court took cognizance of the offence and not to persons who) only at the time of the alleged commission of the offence, were such public servants.
3. This view was reiterated also in the case of Ataur Rehman v. State (PLD1967SC23) bait a contrary view, it appears, has since been taken in Abdul Fateh v. State (1972SCMR239) and again, it appears that this Court has granted leave to appeal, in Criminal Petitions Nos. K-32 and K-35 of 1973 to reconsider this veer' question.
4. Review is, accordingly, sought for reconsideration of the order of this Court dated the 25th January 1974.
5. It appears to us that since there is some conflict in this Court on this question, the appropriate order to make at this stage would be to direct that this review petition should also come up for hearing along with the appeals arising out of Criminal Petitions Nos. K-32 and K-35 of 1963.