P L D 1969 Lahore 103 (PLP)

3. The offence under section 161, P. P. C. read with section 5(2) of the Act, was committed by the petitioner, when he was on deputation with the Enforcement Staff Evacuee Property and Claims. He was serving at Larkana District in the old Sind Province at the material time. When he was on deputation with the Enforcement Staff, Evacuee Property and Claims he was serving in connection with the affairs of the Centre. This was not seriously contested by Major Mufti Nazar Muhammad, who appeared for the State. According to the explanation to subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, XL of 1958, the sanction for prosecution of the petitioner should have been accorded by the Central Government under whom he was serving at the material time, for, that was the "appropriate Government" within the meaning of the explanation which runs :‑ "Explanation.‑ For the purpose of this subsection "appro priate Government" shall mean the Government which at the time of the commission of the offence was the appropriate Government." The Central Government in exercise of the powers con ferred by clause (a) of subsection (2) of section 12 of the Pakistan Criminal Law Amendment Act, XL of 1958, in supersession of the rules published under S. R. O. 174 and S. R. O. 624(K)/61, dated the 8th of April 1959 and 5th of June 1961, respectively, framed the following rule :‑ "Subject to such general or special instructions as may, from time to time, be issued by the Central Government, the power to sanction prosecution of public servants, other than those who are not removable from office save by or with the sanction of the Central Government, or some higher authority, under subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958), may be exercised, on behalf of the Central Government. by an officer having the power to remove from office the public servant, sanction for whose prosecution is required to be issued." The rule had been framed in order to empower the authority competent to remove the officer to accord sanction for prosecution on its behalf but this rule was rescinded by the Central Government by means of Notification No. S. R. O. 731(K)/64, dated Rawalpindi, the 10th of September 1964. The Notification is reproduced below for the sake of con venience ;‑ "In exercise of the powers conferred by section 12 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958), the Central Government is pleased to rescind the rule published sander S. R. O. 1122(K)/61, dated the 10th November 1961 with immediate effect."

4. The revised sanction in the instant case was accorded on the 30th of October 1966, that is, long after the rule delegating the power had been rescinded. There is thus no escaping the conclusion that after the 10th of September 4 1964, the Superintendent of Police, Khairpur, was no longer competent to accord sanction for the prosecution of the petitioner.

5. Major Mufti Nazar Muhammad, who was unable to meet the argument, was given one hour's adjournment to refer to any notification, order or the rule subsequently matte by the Central Government authorising the authority competent to remove a public servant froth service in the instant case the Superintendent of Police to sanction prosecution of an officer of the rank of Sub‑Inspector of Police, on deputation with the Enforcement Staff at the time of commission of offence for his prosecution under section 161, P. P. C. and 5(2) of the Act. When I resumed the hearing of this revision at 11‑15 a.m. I was informed that Major Mufti Nazar Muhammad decided to go and appear before the Division Bench. The representa tive of the Anti‑Corruption Establishment who was sent for by Major Mufti Nazar Muhammad, did not care to appear and assist him.

6. It appears that the absence of a proper sanction was so obvious to Major Mufti Nazar Muhammad that he decided not to appear after the interval.

7. For the reasons already stated, I am clear in my mind that the proceedings going on against the petitioner in the Court of Captain Muhammad Daud Khan, Special Judge (Central), Lahore, suffer from lack of jurisdiction in the absence of a valid sanction for his prosecution from the appropriate Government and as such are ordered to be quashed.

8. Needless to add that the learned counsel for the state was unable to bring to my notice the provision of law autho rising the Superintendent of Police, Khairpur, to grant necessary sanction.

9. It would be open to the Government to acquire proper sanction and then proceed against the petitioner, if so advised. Petition accepted. Proceedings quashed.