KHALID KHAN KHATAK, A.S.P., SADAR, RAWALPINDI and another vs SPECIAL

ORDER

' Heard.

2. By this order, petition under section 561-A, Cr.P.C. Filed by Khalid Khan Khatak, A.S.P., Saddar, Rawalpindi and also another petition under section 561-A, Cr.P.C. Filed by Muhammad Khalid Malik, Sub-Inspector, Qurban Lines, Lahore, for quashment of proceedings initiated by Mian Feroze Salahud-Din, resident of 99-D, Model Town, Lahore, pending in the Court of learned Special Judge Anti-Corruption, Punjab, being disposed of together which have emerged from judgment passed by Rai Muhammad Zafar Bhatti, Special Judge Anti-Corruption, Lahore, dated 15-101999, as common questions of law and facts are involed.

3. Some relevant facts for disposal of these petitions are that Mian Feroze Salah ud Din, complainant who is respondent No,2 in these petitions, was an accused in the case bearing F.I.R.

No, 93 dated 25-4-1999 registered against him and other accused persons under different sections with Police Station Model Town, Lahore while refuting the facts of the said F.I.R. Mainly alleged that Muhammad Khalid Malik, S.-I., Police Station Model Town, Lahore demanded an amount of Rs,50,000 as bribe to resolve the dispute and he clarified that this amount was to be distributed amongst the senior police officers including Muhammad Khalid Khatak, D.S.P., Model Town, Lahore but he did not agree with him and moved the applications to the higher police officers and also to Additional Director, A.C.E., Lahore indicating therein the illegal demand made by the said police officers. But when he could not succeed in the inquiries the high-ups in the police hierarchy became active and arrested the step-sons of the widow lady named Shahnaz and committed cognizable offence. Last of all he filed a complaint under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947. After recording the preliminary evidence of the complainant the learned Special Judge Anti-Corruption arrived at this conclusion that prima facie there are reasonable grounds to summon the police officers i.e, the present petitioners to face the trial and on the same day i.e, 18-6-1999 the learned Judge directed in writing to the competent authority for according the sanction for prosecution. The letter sent by him was received in the Office of Commissioner, Lahore, on 9-7-1999 and it was on 9-9-1999 when the learned trial Court was intimated that the competent authority was pleased to refuse the sanctions for the prosecution.

' After hearing the learned counsel for the parties the learned Judge arrived at this conclusion that there is quite some force in the arpment of the learned counsel for the complainant (respondent No,2 at present) that/ if 22 days of remaining month of July and 31 days of August, 1999 are calculated lack of sanction should have been accorded by 7-9-1999 but as it was sent on 9-9-1999 which shows that it was accorded after 62 days, therefore, the presumption is that the sanction was legally accorded by operation of law.

4. After hearing the learned counsel for the parties there is a simple point for determination as to how sixty days would be counted, but before that it is essential to know the relevant provisions of law which is as under:-- "(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, previous sanction of the appropriate Government shall be required for the prosecution of a public servant for an offence under this Act and such sanction shall be sufficient for the prosecution of a public servant for an offence triable under this Act: ' Provided that in cases where the complaint or report referred to in subsection (1) of section 4 is not accompanied by such sanction, the Special Judge shall, immediately on receipt of the complaint or report, address by letter, the appropriate Government in the matter and if the required sanction is neither received nor refused within sixty days of the receipt of the letter, by the appropriate Government, such sanction shall be deemed to have been duly accorded."

' It is obvious from the proviso to subsection (5) of section 6 of Pakistan Criminal Law Amendment Act, 1958 (XL of 1958) that question with regard to sanction or refusal should be disposed of within sixty days. The letter for sanction might have been written two weeks earlier but the first day shall be counted when the letter is received in the office of the competent authority and in the same way the last day shall be counted when the sanction is sent by the competent authority and not when the letter disclosing therein the sanction or refusal is received by the Court for the reason that the sanction for the prosecution is adverse to the cause of the accused and refusal is a beneficial to the accused and that the system of Criminal Justice is to give benefit of doubt to the accused.

6. The sanction for the prosecution should be treated as an upper limit and refusal to be as a lower limit and when the letter of refusal is received within sixty days and some days are consumed in sending and receipt of letter, those days should be excluded, moreover, for counting of the days there should be a clear deduction by writing the days as under 9-9-1999 (-) 9-7-1999 and for convenience thirty-first day of July and thirty-first day of August would be excluded from counting and also the public holidays and other gazetted holidays which come in the way after sending of the letter of sanction for prosecution and, therefore, within sixty days means all working days and no holiday, as by counting those days, as it reflects in the instant case, the receipt of sanction/refusal would be two days' late. Therefore, there should be deduction in the manner as indicated above. Even otherwise by the delay of two days, it does not mean that the sanction was not refused. Reliance has been placed on Qamar ud Din v. State NLR 1982 Criminal 451.

6-A. Therefore, in view of above circumstances, the proceedings pending against the petitioners as mentioned above before the learned Special Judge Anti-Corruption, Punjab are hereby quashed.