1968 P Cr (PLP)

S. A. RAHMAN, J.‑This order will deal with two petitions for special leave to appeal, bearing Nos. K‑58 and K‑59 of 1967, presented on behalf of the State from orders passed in two cases by the High Court of West Pakistan, Karachi Bench. The point involved in both the petitions is similar and it will be convenient to dispose of them together. In the first case the three respondents were put on trial for offences falling within the Prevention of Corruption Act, 1947, the offences having been committed in 1955. It appears that after the Investigation Agency had completed enquiry into the matter, the Government was approached for obtaining sanction for the prosecution of the respondents. At that stage Government decided that the case had better be dealt with departmentally and declined to accord sanction to prosecute the second respondent by its letter dated the lat October‑ 1963. The Chief Engineer, Irrigation, Sukkur Zone, as the delegate of the Provincial Government had also declined to accord sanction for the prosecution of the first respondent. An Enquiry Officer was then appointed but before he could proceed in the matter, the Govern ment reviewed its previous order and accorded sanction for the prosecution of the second respondent who held the office of Executive Engineer. Under a direction of the Government the Chief Engineer also reviewed his previous order and accorded at sanction for the prosecution of the first respondent who was working as a Sub‑Divisional Officer in the Public Works Depart ment. The third respondent, Azmatullah, is a contractor and was being tried along with these two officials. Objection was raised in the trial Court that the orders of sanction for the prosecution of the first two respondents were bad in law. This objection prevailed in the trial Court and all the three respondents were discharged from the case. This order was upheld in revision by a learned Single Judge of the High Court of West Pakistan. The main grounds of decision in the High Court were that the Chief Engineer had acted under a directive of the Government and that the Government having once exercised its discretion in withholding the sanction for prosecution, it was not open to the Government subsequently to change its mind. In the second case the respondent who is a Sub‑Inspector of Railway Police, was also prosecuted for an offence under section 161 of the Pakistan Penal Code, read with section 5 (2) of Act 11 of 1947. Sanction for his prosecution was first obtained from the Deputy Inspector‑General of Police on the 14th March 1962. It was objected that he was not the appropriate authority for the requisite sanction. The objection was given effect to by the trial Court and the respondent was discharged from the case. Thereafter, the Inspector‑General of Police, West Pakistan, was approached for sanction of the prosecution but he declined to grant it by order dated the 12th September 1962. Subsequently, however, the Governor of West Pakistan sanctioned the prosecution of the respondent by order dated the 7th June 1965. This sanction was challenged in the trial Court as bad in law. A revision petition was moved in the High Court calling in question the validity of the sanction order. The same learned Single Judge who disposed of the revision petition of Muhammad Ismail and others disposed of the revision petition of the respondent Masood Hussain and held that the exercise of the relevant power had been exhausted with the order of the delegate of the Provincial Government, namely, the Inspector General of Police who had refused to sanction the prosecution of the respondent and the Governor's order, therefore, was devoid of legal authority. In both cases the learned Assistant Advocate‑General has argued before us that any exercise of the relevant power by a delegate or even an order by an appropriate authority declining to grant sanction on the first occasion would not exhaust the discretionary power and that in fact that power could only be said to have been exercised when sanction was granted and not by its refusal. He also urged that the view that prevailed in the High Court that such an order could not have been subsequently revised, is erroneous as there was no law which precluded such revision of opinion on a subsequent occasion. The sanction for the prosecution was a condition precedent to the two cases proceeding in Court and it is contended that the appropriate authority could at any time, grant the requisite sanction even if on an earlier occasion it had been reluctant to do so. The point is one of law of general importance and we grant leave in both cases to consider it on the condition that the Government should bear the costs of the defence of the respondents in the shape of fee to be paid to their counsel in accordance with the rules of this Court, irrespective of the result of the cases. Petition accepted.