Sheikh MUHAMMAD TUFAIL and others vs THE STATE
This matter concerns criminal petitions filed against an order of the Lahore High Court, which declined to interfere with an ongoing trial involving charges of misappropriation and corruption under the Pakistan Penal Code 1860 and the Prevention of Corruption Act 1947. The petitioners, accused of offences while serving on a Zakat and Ushr Committee, sought acquittal under Section 265-K of the Code of Criminal Procedure 1898, arguing that they were public servants and that their prosecution was invalid due to the absence of prior sanction from the competent authority. The Supreme Court upheld the High Court's decision, noting that the trial was at an evidence stage and the determination of the petitioners' status as public servants required the appreciation of evidence. The Court affirmed that the trial court must decide this objection before rendering a final judgment. The key principle reiterated is that the necessity of sanction for prosecuting a public servant depends on their status at the time the court takes cognizance of the offence, and such factual determinations are best left to the trial court to decide upon the conclusion of evidence.
- Is prior sanction for prosecution required for a public servant who has ceased to hold office at the time the court takes cognizance of the offence?
- Can a trial court determine the status of an accused as a public servant during the trial proceedings?
- Should a petition for acquittal under Section 265-K of the Code of Criminal Procedure 1898 be granted when the determination of the accused's status requires the appreciation of evidence?
- Section 409, Pakistan Penal Code 1860
- Section 420, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
- Section 218, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 21, Pakistan Penal Code 1860
- Section 5, Prevention of Corruption Act 1947
- Section 173, Code of Criminal Procedure 1898
- Section 265-K, Code of Criminal Procedure 1898
- Section 23, Zakat and Ushr Ordinance 1980
ORDER
' IRSHAD HASAN KHAN, J.---Through this common order we intend to dispose of Criminal Petition No,401-L of 1997 and Criminal Petition No,425- L of 1997, arising out of common judgment of the Lahore High Court, Lahore dated 23-10-1997, passed in Criminal Revision No,278 of 1997.
2. Petitioners herein are being tried in a case registered against them through F.I.R. No,31 of 1991, dated 25-7-1991, under section 409/420/468/ 471/218/109, P.P.C. Read with section 5 of the Prevention of Corruption Act, 1947, Police Station Anti-Corruption, Lahore, on the allegation of misappropriating an amount of Rs,11,70,000 and further mis-appropriation of lacs of rupees at different times, break-up whereof has been stated in the report under section 173, Cr.P.C.
3. The prosecution evidence has already been closed since long after examination of more than 68 witnesses. During the course of trial, the petitioners moved separate applications under section 265-K. Cr.P.C. Alleging that at the time of commission of the alleged offences and at the time of the submission of the challan they were not public servants within the ambit of section 21 of the P.P.C.
And in absence of proper sanction from the competent authority their trial was not warranted.
4. The learned Judge in Chambers, after hearing the parties and perusing the material available on record dismissed the revision petition. It would be advantageous to reproduce paragraph 5 of the impugned judgment, which reads thus:-- "I have gone through the report under section 173, Cr.P.C. Wherein it has specifically been mentioned that:-- ' It is not denied that the sanction for prosecution with regard to Muzaffar Hussain co-accused has already been obtained. The main ground urged by the petitioners is that no order about their removal from the Zakat and Ushr Committee had been produced by the prosecution before the learned Special Judge Anti-Corruption, Lahore. I am afraid such an argument could have been relevant when the entire prosecution evidence had been recorded and petitioners had produced their defence as well. The trial is still at the evidence stage. It would be for the prosecution to bring on record, as asserted in the report under section 173 Cr.PC, that the petitioners were no longer Government servants at the time of submission of challan. The petitioners would have opportunity to adduce evidence in defence to show that they were public servants at the time of commencement of trial. Any finding at this stage is likely to prejudice case of either side. Since the point raised of necessity and would require appreciation of evidence, no case for quashment of F.I.R. Is made out. The law is settled that no sanction is necessary for the prosecution of a public servant who was no longer a public servant when the trial commenced. Reliance is placed on Nazir Hussain Shah v. The State (PLD 1965 Supreme Court 139) where at page 145 it was held as under:-- "If this background of the enactment is borne in mind there is no room for doubt that the intention of the Legislature was that no sanction would be necessary for prosecution of a public servant who had ceased to be a public servant when the Court was taking cognizance of an offence which had been committed by him when he was a public servant and this was also made clear by adding an explanation to section 6 (5)".
' The precedent case law to which reference has been made by the learned counsel for the petitioners is distinguishable and, therefore, is not relevant."
5. Mr. Irshad Ahmed Qureshi, learned counsel for the petitioners reiterated the submissions made before the High Court that the petitioners being members of the Zakat and Ushr Committee, Imamia Colony, District Sheikhupura, were public servants by virtue of the provisions of section 23 of the Zakat and Ushr Ordinance, 1980, therefore, they could not be prosecuted for the offences charged without prior sanction of the appropriate Government.
6. After hearing the learned counsel for the petitioners we are of the view that the order of the High Court declining interference in the matter is based on cogent grounds warranting no interference.
Be that as it may, the petitioners shall be at liberty to take up the points, sought to be urged in this petition before the trial Court. We have no doubt in our minds that before rendering the final judgment the trial Court shall decide the objection raised by the petitioners as to their status as public servants at the relevant time in the context of the relevant law.
7. With the above observation, these petitions are dismissed and .