| Citation(s) |
|---|
| 1975 SLG 3007 = 1975 SLD 3007 = 1975 PCRLJ 105 |
Court of Special Judge, Karachi
Criminal Acquittal Appeal No. 245 of 1969 and Cr. Suo Muto Ref. No. 30 of 1973, decided on 12th March 1974.
Presented By: Tufail Ali A. Rehman, C. J. and Fakhruddin G. Ebrahim, J
Jamaluddin H. Ahmed, A. A: G. for the State. S. M. Hazratji for
Respondent (in Cr. Suo Moto Ref. No. 30/73). M. H. Junejo : Amicus curiae. H., A. Jaffery for
Respondent No. 2 (in Cr. Aeq. A. No. 245/69).
Respondent No. 1 (absent).
Criminal Acquittal Appeal No. 245 of 1969 and Cr. Suo Muto Ref. No. 30 of 1973, decided on 12th March 1974.
Presented By: Tufail Ali A. Rehman, C. J. and Fakhruddin G. Ebrahim, J
Jamaluddin H. Ahmed, A. A: G. for the State. S. M. Hazratji for
Respondent (in Cr. Suo Moto Ref. No. 30/73). M. H. Junejo : Amicus curiae. H., A. Jaffery for
Respondent No. 2 (in Cr. Aeq. A. No. 245/69).
Respondent No. 1 (absent).
THE STATE THROUGH THE ADDITIONAL ADVOCATE-GENERAL, WEST PAKISTAN & EX OFFICIO PUBLIC PROSECUTOR, KARACHI-Appellants
VERSUS
AZIZ AHMED AND ANOTHER-Respondents
Law: Pakistan Criminal Law Amendment Act (XL of 1958)
Section: 6(5), 2(a)
Law: Constitution of Pakistan, 1973
Section: 189
Law: Criminal Procedure Code (V of 1898)
Section: 423
Law: Penal Code (XLV of 1860)
Section: 409
(a) Criminal Law Amendment Act (XXXIV of 1958) S. 6(5)-Sanction to prosecute -Person accused a public servant at time of prosecution-Sanction to prosecute necessary-No sanction, however, necessary if such person no longer a public servant at time of prosecution-Sanction when necessary to be obtained from appropriate Government-Appropriate Government to be determined with reference to time at which offence took place. A sanction is necessary if the person accused is a public servant at the time of the prosecution but not if he is no longer so and when sanction is necessary, the question which is the appropriate Government has to be decided with reference to the time at which the offence took place. (b) Constitution of Pakistan (1973) Art. 189-Obiter dictum-Observations of Supreme Court even though obiter dicta-Entitled to very highest respect. (c) Criminal Law Amendment Act (XXXIV of 1958) S. 6(5)-Sanction to prosecute-Accused a public servant at time of commission of offence ceasing to be so subsequently but acquiring other Government service before date of his trial-Sanction to prosecute nevertheless necessary-Penal Code (XLV of 1860). S. 409. The accused was a public servant at the time of the commission of the offence and also at the time when he had been prosecuted but in between these dates had severed his connection with Government Service. Nevertheless sanction would be necessary for his prosecution. Hamid Ghulam Sadiq v. Pakistan P L D 1960 S C 351 and All Ahmad v. The Stare P L D 1962 S C 102 distinguished. State v. Saeed Ahmad P L D 1962 S C 277; Nazir Hussain Shah v. State P L D 1965 S C 139; Ali Ahmed alias All Ahmed Mia v. The State P L D 1962 S C 102; Ataur Rehman v. State P L D 1967 S C 23 and Abdul Fateh v. The State 1972 S C M R 239 ref. (d) Criminal Law Amendment Act (XXXIV of 1958) Ss. 6(5) & 2(a)-Sanction to prosecute-Appropriate Government Accused Provincial Government servants at time of commission of offence charged with misappropriation of money recovered as income- tax-Contention that recovery being on behalf of Central Govern ment, sanction to prosecute must have been that of Central Government-Held: Moneys though due…