P L D 1956 Federal Court 58 (PLP)

MUHAMMAD MUNIR, C. J.‑

This appeal, by special leave, in a criminal matter raises the important question whether the Chief Commissioner of Karachi is competent to accord sanction to the prosecution of a person under section 161 of the P. P. C. before a Special Judge appointed under the Pakistan Criminal Law (Amendment) Act (XIX of 1948) as amended by Act XXXVII of 1953. The appellant who was an Inspector of Civil Supplies at Karachi is alleged to have received an illegal gratification on 23rd April 1954. The Chief Commissioner of Karachi purpor ting to act under subjection (5) of section 5 of the Criminal Law (Amendment) Act, 1948, as amended by the Act of 1953 sanctioned his prosecution before a Special Judge under section 161 of the P. P. C. The appellant was then tried by Mr. S. A. M. Ghaznavi, Special Judge. (Anti‑Corruption), found guilty of the offence charged and sentenced to one year's rigorous imprisonment and a fine of Rs. 1,

000. His appeal in the Chief Court of Sind was summarily dismissed by a Division Bench on 16th February 1955. Both before the Special Judge and the Chief Court the appellant contended that the sanction for his prosecution was invalid, but the objection was overruled, the Special Judge observing that under some notification shown to him the Chief Commissioner of Karachi had stepped into the shoes of the Government of Sind and that since the Directorate of Civil Supplies was under his control he had the authority to accord sanction for the prosecution of the employees of that office, and the Chief Court dismissing the contention with the casual observation that because the "Chief Commissioner's order and sanction were in exercise of the Governor‑General's executive authority" the sanction was in order. The provision relating to sanction in such cases is contained in subsection (5) of section 5 of the Pakistan Criminal Law (Amendment) Act of 1948, which, as amended by Act XXXVII of 1953 says that "Notwithstanding anything contained in the Criminal P. C., 1898 (Act V of 1898), or in any other law, the previous sanction of the appropriate Govern ment shall be required for any prosecution under this Act and such sanction shall be sufficient for the prosecution of a public servant for an offence triable under this Act". "Appropriate Government" is defined by clause (a) of section 2 of that Act as follows :‑ "Appropriate Government means in relation to a person serving in connection with the affairs of the Federation, a railway employee and any other person employed by the Central Government or by such organisation or body as may be notified by the Central Government in pursuance of the next succeeding clause, the Central Government, and in other cases, the Provincial Government concerned." Even if Karachi be held to be a Provincial Government, the sanctioning authority must still be the Central Govern ment because under clause (43‑a) of section 3 of the General Clauses Act, 1897, the "Provincial Government", as respects anything done or to be done after the establishment of the Federation of Pakistan, means in a Governor's Province, the Governor, and iii a Chief Commissioner's Province, the Central Government. But there can be no manner of doubt that a person serving in a Chief Commissioner's Province serves in connection with the affairs of the Federation and therefore the sole issue in the case is whether the sanction by the Chief Commissioner was a sanction by the Central Govern ment within the meaning of the 5th subsection. "Now "Central Government" is defined in clause (8ab) (c) (ii) of section 3 of the General Clauses Act as meaning in relation to anything done or to be done after the establishment of the Federation of Pakistan, the Governor‑General, and includes in relation to the administration of a Chief Commissioner's Province, the Chief Commissioner acting within the scope of the authority given to him under subsection (3) of section 94 of the Government of India Act, 1935. Thus the issue is reduced to whether the Chief Commissioner in this case acted within the scope of such authority. The history of the formation of Karachi into an administrative unit up to the time of the granting of the sanction is as follows :‑‑ In pursuance of a resolution passed by the Constituent Assembly of Pakistan, the Governor‑General by his Order No. 15, dated the 23rd July, 1948, called The Pakistan (Establishment of the Federal Capital) Order, 1948, carved Karachi out of the territories subject to the jurisdiction of the Provincial Government of Sind and created it into a separate administrative unit under section 290‑A of the Government of India Act, 1935. Under Article 5 of that Order the executive authority of 'Karachi was to be exercised by the Governor General either directly or to such extent as he thought fit through an Administrator to be appointed by him, and such authority was also to extend to all matters included in List 11 of the Seventh Schedule to the Government of India Act. Under the 6th Article, unless and until other provision was duly made, all enactments and laws, and all notifications orders, schemes, rules forms or bye‑laws issued, made or prescribed thereunder, which immediately before the date appointed under Article 3 were in force, or prescribed for, any of the areas comprised in Karachi, were to continue to be in force and to have effect in Karachi. By a subsequent Order, Order 4, dated the 28th April, 1952, called The Pakistan (Establishment of Federal Capital) (Amendment) Order 1952, the Governor‑General raised Karachi to the status of a Chief Commissioner's Province and appointed a Chief Commissioner to replace the Administrator who had been appointed by Article 5 of the earlier Order, to exercise executive authority over Karachi on behalf of the, Governor‑General. By a subsequent notification of the Ministry of the Interior, No. 3/4/52‑Kar, II, dated 21st October, 1952, the Governor General in pursuance of Article 5 of the The Pakistan (Establishment of the Federal Capital) Order, 1948, directed "that subject to such general or special instructions as may from time to time be given to him by the Central Government, the Chief Commissioner of Karachi shall have in respect of Karachi all the powers and duties conferred or imposed on the Government of Sind under any enactment, notification, order, rule or bye‑law, referred to in Article 6 of the said Order." This provision can only mean that in respect of Karachi the Chief Commissioner was to have the same powers and duties as bad been conferred or imposed on the Government of Sind under any enactment, notification, order, rule or bye‑law referred to in Article 6 of the earlier Order, the governing words therein being "referred to in Article 6 of the said Order" which restricted the authority delegated to the Chief Commissioner by the Governor‑General. If, therefore, at the relevant time the Government of Sind did not, under the law, have any power in a particular matter, the Chief Commis sioner did not in that matter acquire any power merely by reason of this provision. Thus, the question to be determined is whether under Article 6 of The Pakistan (Establishment of Federal Capital) Order, 1948, the Government of Sind had the authority to accord sanction to prosecutions under Act XIX of 1948. That Act received the assent of the Governor‑General on 11th June 1948 and was in force in the Province of Sind when the Pakistan (Establishment of the Federal Capital) Order; 1948, was issued by the Governor‑General on 23rd July, 1948. But the Act referred only to the Central Government's powers and conferred no new power on the Provincial Government. The Special Judges were to be appointed by the Central Government the offences which they could try were also determined either by the Act or by a notification to be issued by the Central Government ; the offences that could be tried by such Judges were to be investigated by the Special Police Establishment constituted under Ordinance VIII of 1948 ; and sanction for the prosecution of those offences was to be given by the Central Government. If; therefore, the Act of 1948 conferred no power on the Provincial Government, than though the‑‑Act was in force in the area comprised in Karachi when it was created as a Chief Commissioner's Province, the administration of the Act rested entirely with the Central Government and the Provincial Government of Sind had nothing to do with it. Thus when the notification of 21st October, 1952 conferred certain powers on the Chief Commissioner which had been conferred or imposed by law on the Government of Sind, the intention was to invest the Chief Commissioner only with the powers which the Provincial Government was competent to exercise. And if a power rested entirely with the Central Government and was not possessed by, the provincial Government of Sind, that power could not possible be said 'to have, devolved on the Chief Commissioner merely reason of that notification. We have therefore no doubt that since the power to give sanction to prosecutions under the Act of 1948 was not possessed by the Provincial Government of Sind, it wee not delegated by the Governor‑General to the Chief Commis sioner under the notification of 21st October, 1952. On this view it must be held that sanction in this case could only be given by the Central Government and not by the Chief Commissioner. It has been brought to our notice that by a subsequent notification the Governor‑General, acting under section 94 (3) of the Government of India Act, 1935, delegated to the Chief Commissioner the power to sanction prosecutions under the Act of

948. That Notification, however, does not act retrospectively on his case which was taken cognizance of and tried before the date of the Notification. The result therefore is that we accept the appeal and set aside the conviction and sentence of the appellant. It for the‑Central Government to consider whether the appellant should or should not be prosecuted on a fresh sanction. A.H Appeal accepted.